Converse-\u3ci\u3eOsborn\u3c/i\u3e: State Sovereign Immunity, Standing, and the Dog-Wagging Effect of Article III

“[T]he legislative, executive, and judicial powers, of every well-constructed government, are co-extensive with each other . . . [T]he judicial department may receive from the Legislature the power of construing any . . . law [which the Legislature may constitutionally make].” Chief Justice Marshall relied on this axiom in Osborn v. Bank of the United States to stress the breadth of the federal judicial power: The federal courts must have the potential power to adjudicate any claim based on any law Congress has the power to enact. In recent years, however, the axiom has sometimes operated in the opposite direction: If the federal courts lack the constitutional power to adjudicate cases based on certain types of substantive federal statutes, the legislature must lack the power to enact the statute in the first place. This converse operation of the Osborn axiom is reflected in the Court’s decisions on the Eleventh Amendment and state sovereign immunity over the past two decades. Recent standing decisions, including most recently TransUnion LLC v. Ramirez, may reflect a similar doctrinal trajectory in the Court’s standing jurisprudence. The Eleventh Amendment is, by its terms, a limitation of the jurisdiction of the federal courts. Until the Court’s 1999 decision in Alden v. Maine, it was widely believed that sovereign immunity did not protect states from being sued in state courts. The Court’s precedents, in turn, established that Congress had the power to impose primary and remedial obligations on states. Although the Eleventh Amendment prevented enforcement of the states’ remedial obligations in federal court, the obligations were thought to be enforceable in state courts, subject to Supreme Court review. In Alden, the Court held that states also enjoy a constitutional immunity from being sued by private parties in their own courts without their consent. The Alden holding suggested that the immunity reflected in the Eleventh Amendment was not merely an immunity from the jurisdiction of the federal courts, but an immunity from being subjected by Congress to certain forms of liability. The Court’s post-Alden decisions, including its recent decisions in Allen v. Cooper and PennEast Pipeline Co. v. New Jersey, confirm that the states’ sovereign immunity is an immunity from congressionally imposed damage liability to private parties. Thus, a constitutional provision that purports to limit the jurisdiction of the federal courts has been read to reflect a constitutional limit on Congress’ substantive legislative power. The Court’s recent decision in TransUnion LLC v. Ramirez may signal the start of a similar doctrinal trajectory in the context of Article III standing. Article III imposes outer limits on the power of federal courts to adjudicate cases at the behest of persons who have not suffered an “injury in fact.” The Court held some of the plaintiffs lacked standing to seek such damages in federal court because they had not suffered a “concrete” enough injury. Justice Thomas’ dissent noted that the majority’s decision was a pyrrhic victory for the defendant because the plaintiff could turn around and sue in state court, where Article III standing limits do not apply. It is true that standing limits based on Article III do not apply in the state courts. But this essay argues that the most plausible explanation for the Court’s holding is that Congress lacks the power to entitle persons to damage relief if they have not suffered an Article III injury in fact. If Congress had validly given the plaintiffs a right to damages from the defendant, and that right could be enforced in state courts, then the plaintiffs’ failure to receive the damages they claimed the defendant owed them would itself have been a sufficient “injury in fact” to support their standing in federal court. TransUnion can be reconciled with the well-established principle that a legal right to money is a sufficient interest to confer standing only if the Court is understood to have held that Congress lacked the power to create the right to damages it created in statute. But that means standing doctrine is not based on Article III. If understood as a holding that Congress did not validly create their right to damages because their injuries were insufficiently concrete, TransUnion would stand as another example of jurisdictional doctrines operating as a limit on Congress’ substantive legislative power