6.1 Judicial Review, Federal Jurisdiction & State Sovereign Immunity

6.1 Judicial Review, Federal Jurisdiction & State Sovereign Immunity

The first category of NCBE's Constitutional Law outline asks how federal courts fit into the constitutional system: where judicial review comes from, how state and federal courts relate, how much control Congress has over federal jurisdiction, and when states can be sued. Justiciability doctrines—standing, ripeness, mootness, adequate and independent state grounds, and political questions—are covered in Section 6.2.

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The Power of Judicial Review & Advisory Opinions

The Source of Judicial Review

In Marbury v. Madison (1803), Chief Justice John Marshall established the foundational principle that the federal judiciary possesses the constitutional authority to review the actions of the legislative and executive branches, as well as state enactments, and declare them null and void if they conflict with the United States Constitution. As Marshall famously declared, "It is emphatically the province and duty of the judicial department to say what the law is."

Judicial review extends to:

1. Acts of Congress: Striking down federal statutes that exceed enumerated Article I powers or violate constitutional prohibitions;
2. Executive Actions: Enjoining presidential or agency actions that violate statutory authorizations or constitutional limits (Youngstown Sheet & Tube Co. v. Sawyer); and
3. State Court Decisions and Enactments: Invalidating state statutes or state judicial decisions that conflict with federal treaties, statutes, or the Constitution under the Supremacy Clause (Martin v. Hunter's Lessee; Cohens v. Virginia).

The Absolute Prohibition on Advisory Opinions

Article III, Section 2 limits federal judicial power to actual "Cases" and "Controversies." Consequently, federal courts are strictly barred from issuing advisory opinions—meaning opinions issued on hypothetical facts, abstract questions of law, or friendly lawsuits lacking adverse parties.

To be justiciable and avoid classification as an impermissible advisory opinion, a lawsuit must satisfy three structural criteria:

• Adverse Litigants: The proceeding must involve a real, actual dispute between genuinely adverse parties having opposing legal interests (Muskrat v. United States). A collusive or feigned suit brought merely to test a statute's constitutionality must be dismissed.
• Concrete and Immediate Rights: The action must seek a determination of legal rights based on specific, existing facts rather than speculative or contingent future occurrences.
• Binding Legal Effect: The judicial determination must be final and conclusive, not subject to executive revision or legislative override. In Hayburn's Case (1792), the Supreme Court refused to adjudicate veteran pension claims where the court's determinations were subject to review and revision by the Secretary of War. Similarly, in Plaut v. Spendthrift Farm, Inc. (1995), the Court held that Congress cannot reopen final judgments rendered by Article III courts.

MBE Distinction: While some state constitutions permit state supreme courts to issue advisory opinions upon request of the governor or state legislature (e.g., Massachusetts), federal Article III courts never have this authority. On the MBE, any answer choice suggesting that a federal court may issue an advisory opinion, or that Congress may authorize federal courts to issue advisory opinions, is categorically incorrect.

Declaratory Judgments

A federal court may issue a declaratory judgment under the Federal Declaratory Judgment Act (28 U.S.C. § 2201). A declaratory judgment is not an advisory opinion provided there is an actual, substantial controversy between parties having adverse legal interests of sufficient immediacy and reality to warrant the issuance of a declaratory decree (MedImmune, Inc. v. Genentech, Inc.). The plaintiff must demonstrate that the threatened enforcement of a statute or contractual penalty is sufficiently real and immediate.

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Supreme Court Jurisdiction

Article III Original vs. Appellate Jurisdiction

Article III, Section 2 defines the two categories of Supreme Court jurisdiction:

• Original Jurisdiction: The Supreme Court has original jurisdiction in cases affecting ambassadors, other public ministers, and consuls, and those in which a State is a party. Under Marbury, Congress cannot expand or restrict the Court's original jurisdiction. By federal statute (28 U.S.C. § 1251), Congress has made original jurisdiction concurrent with district courts in most matters, but exclusive over disputes between two or more States.
• Appellate Jurisdiction: The Supreme Court possesses appellate jurisdiction over all other Article III cases, subject to "such Exceptions, and under such Regulations as the Congress shall make" (the Exceptions Clause). Under Ex parte McCardle (1869), Congress has broad power to withdraw or limit the appellate jurisdiction of the Supreme Court, though Congress cannot dictate outcomes or strip courts of all constitutional review (United States v. Klein).

Supreme Court Review Methods

1. Writ of Certiorari (Discretionary): The vast majority of cases reach the Court by certiorari. Review is granted upon the affirmative vote of at least four Justices (the Rule of Four). Certiorari is available to review final decisions of federal courts of appeals and final judgments of the highest state courts involving federal questions.
2. Mandatory Appeal: Direct appeal is mandatory in extremely narrow statutory contexts, most notably appeals from three-judge federal district court panels granting or denying interlocutory or permanent injunctions (28 U.S.C. § 1253).

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Congressional Control Over Federal Jurisdiction

Lower Federal Courts

Article III, Section 1 vests the judicial power in "one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." Because Congress was not required to create lower federal courts at all, it may decide which Article III cases they hear (Sheldon v. Sill, 1850). The amount-in-controversy requirement for diversity jurisdiction and the grant of exclusive federal jurisdiction over patent cases are ordinary examples of that power.

The Supreme Court's Appellate Jurisdiction and Its Limits

• Exceptions Clause: In Ex parte McCardle (1869), the Court upheld Congress's repeal of its appellate jurisdiction over a pending habeas corpus appeal.
• No dictating results: Congress may not prescribe a rule of decision that tells a court how to decide a pending case under existing law (United States v. Klein, 1872). A statute saying, in effect, "in Smith v. Jones, Smith wins" is invalid.
• Changing the law is allowed: Congress may amend the substantive law that applies to pending cases, even when the amendment decides the outcome (Bank Markazi v. Peterson, 2016).
• Final judgments: Congress may not require federal courts to reopen final judgments (Plaut v. Spendthrift Farm, Inc., 1995).
• Other constitutional limits still apply: A jurisdictional statute that violates another provision—for example, one that denies access to courts on the basis of race—is unconstitutional even though Congress has broad control over jurisdiction.

Article III Judges and Non-Article III Tribunals

• Protections: Article III judges hold office during good behavior and receive compensation that cannot be diminished while they serve. They can be removed only by impeachment and conviction.
• Legislative courts and agencies: Congress may assign "public rights" matters—such as many disputes arising under federal regulatory programs—to agencies and non-Article III tribunals, and it may create territorial courts, military courts, and local courts for the District of Columbia.
• Limits: Congress may not remove traditional common-law claims from Article III courts for final decision by non-Article III judges (Stern v. Marshall, 2011). In SEC v. Jarkesy (2024), civil penalty claims for securities fraud were held to be legal claims closely analogous to common-law fraud that required a jury trial rather than agency adjudication.
• Consent: With the parties' knowing and voluntary consent, bankruptcy judges may decide certain claims that would otherwise require an Article III judge (Wellness International Network, Ltd. v. Sharif, 2015).

The Relationship Between State and Federal Courts

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The Eleventh Amendment & State Sovereign Immunity

Constitutional & Jurisprudential Scope

The Eleventh Amendment provides: "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State."

Although the text explicitly mentions only suits by citizens of other states, the Supreme Court in Hans v. Louisiana (1890) and Alden v. Maine (1999) held that the Eleventh Amendment reflects a foundational principle of state sovereign immunity that bars:

1. Private suits against unconsenting states in federal court (under both diversity and federal question jurisdiction);
2. Private suits against unconsenting states in state court on federal causes of action (Alden v. Maine); and
3. Private proceedings against unconsenting states before federal administrative agencies (Federal Maritime Comm'n v. South Carolina State Ports Authority).

This immunity shields the state government itself, state departments, and state agencies acting as "arms of the state" where a monetary judgment would be satisfied from public treasury funds.

What the Eleventh Amendment Does NOT Bar

The MBE frequently tests the precise boundaries of Eleventh Amendment sovereign immunity. Sovereign immunity does not bar:

• Political Subdivisions: Cities, counties, school districts, and municipal corporations are not protected by the Eleventh Amendment (Lincoln County v. Luning, 1890; Mt. Healthy City School District Board of Education v. Doyle, 1977);
• Suits by the United States: Lawsuits brought against a state by the federal government or another sister state;
• Bankruptcy In Rem Proceedings: Federal bankruptcy court adjudications exercising in rem jurisdiction under Article I (Central Virginia Community College v. Katz);
• Suits Against State Officials for Prospective Relief (Ex parte Young, 1908): Private plaintiffs may sue individual state officials in their official capacities seeking prospective injunctive or declaratory relief to stop an ongoing violation of federal law or the Constitution. While prospective orders requiring future compliance are permitted (even if they require substantial ancillary state expenditures), retroactive monetary damages paid from the state treasury are strictly barred (Edelman v. Jordan); and
• Suits Against State Officials in Their Individual Capacities: Private plaintiffs may sue individual state officials in their personal/individual capacities for monetary damages paid out of the official's personal pocket (e.g., under 42 U.S.C. § 1983), though the official may assert common law qualified immunity.

Overcoming Eleventh Amendment Sovereign Immunity

Apart from the situations listed above, a private plaintiff can overcome a state's immunity in two main ways:

1. State Consent / Explicit Waiver

A state may waive its sovereign immunity, but the waiver must be express, unequivocal, and explicit. A state does not waive immunity merely by appearing in court to defend (although a state that voluntarily removes a case to federal court waives its immunity from suit there, Lapides v. Board of Regents, 2002), nor by accepting general federal funds, unless Congress explicitly and unambiguously made waiver of sovereign immunity a condition of receiving those specific funds under Dole.

2. Congressional Abrogation Under Section 5 of the Fourteenth Amendment

Congress possesses the constitutional power to abrogate state sovereign immunity and authorize private individuals to sue states for monetary damages in federal court, provided two strict requirements are met:

1. Unequivocal Intent: Congress must express its intent to abrogate state sovereign immunity unambiguously in the statutory text; AND
2. Valid Enforcement Authority (Fourteenth Amendment § 5): Congress must act pursuant to Section 5 of the Fourteenth Amendment (or § 2 of the 13th or 15th Amendments). Under Seminole Tribe of Florida v. Florida (1996), Congress cannot abrogate state sovereign immunity under its Article I powers (including the Interstate Commerce Clause, Indian Commerce Clause, Patent Clause, or Copyright Clause, Allen v. Cooper, 2020). The Court has recognized narrow exceptions where the states surrendered their immunity in the plan of the Constitutional Convention: bankruptcy proceedings (Central Virginia Community College v. Katz, 2006), condemnation suits under a federal delegation of eminent-domain power (PennEast Pipeline Co. v. New Jersey, 2021), and Congress's power to raise and support armies (Torres v. Texas Department of Public Safety, 2022).

The "Congruence and Proportionality" Test (City of Boerne v. Flores, 1997)

When Congress enacts legislation under Section 5 of the Fourteenth Amendment abrogating state sovereign immunity, there must be a "congruence and proportionality" between the constitutional injury to be prevented or remedied and the means adopted to that end:

• Strict or Intermediate Scrutiny Rights: When Congress protects fundamental rights or suspect/quasi-suspect classifications (e.g., racial discrimination, voting rights, gender discrimination under the Family and Medical Leave Act, Nevada Department of Human Resources v. Hibbs), courts grant Congress broad remedial latitude to abrogate state sovereign immunity.
• Rational Basis Rights: When Congress legislates regarding classifications subject only to rational basis review under the Equal Protection Clause (e.g., age or disability), Congress cannot abrogate state sovereign immunity without demonstrating a widespread historical pattern of unconstitutional state discrimination (Kimel v. Florida Board of Regents for age under ADEA; Board of Trustees of the University of Alabama v. Garrett for disability under ADA Title I).

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Applying Section 5 Abrogation

Whether abrogation is congruent and proportional can depend on the right involved and how the statute is applied. In Tennessee v. Lane (2004), Title II of the Americans with Disabilities Act validly abrogated state immunity for claims involving the fundamental right of access to the courts, even though Title I employment claims could not be brought against states for damages (Garrett). When a question describes a damages suit against a state, work through these steps:

1. Is the defendant the state or an arm of the state, rather than a city, county, or official sued individually?
2. Did the state expressly waive immunity or remove the case to federal court?
3. Is the plaintiff seeking only prospective relief against a state official under Ex parte Young?
4. If Congress authorized the suit, did it do so in unmistakably clear statutory language, under Section 5 of the Fourteenth Amendment (congruent and proportional) or one of the narrow Article I exceptions?