Independence, Integration, and Immunity: The Relationship of the State and National Legal Systems in the United States Federal Structure

Jonathan D. Varat, Professor of Law, University of California, Los Angeles School of Law

It is an interesting, if perhaps unanswerable question, how and to what extent the compound federalism of the United States--with its complex relationships between federal and state law, and between federal and state government institutions--may affect, if at all, the development of a consciousness of the rule of law in a democratic society--the subject that is the central focus of this Conference. To be sure, the Constitution's division of power between the States and the Nation was designed in principal part to "reduce the risk of tyranny and abuse from either front." 1  Countervailing power centers may well diminish the possibilities of arbitrary exercise of power that is the antithesis of a society governed by the rule of law, although the American descent into Civil War in the last century is a sobering reminder of the limits of law in general, and of the particular benefits of a federal structure in particular. Perhaps a case could be made as well that the necessities of coordinating the legally complex, multiple relationships in multiple judicial and other venues that are entailed in this sophisticated federal structure channel conflicts of power into legally resolvable disputes in such profusion that the sheer routine of resort to law strengthens attachment to the rule of law itself. Or, to the contrary, perhaps frustration with the inefficiencies and lack of clarity seemingly inherent in the federalist structure actually may weaken that attachment. In any event, social, political, and cultural factors may overwhelm any influence, positive or negative, on adherence to the value of the rule of law that the federalist structure might otherwise be thought to have.

Whatever the ultimate impact, in the particulars of the American law of federal-state relations, attention is devoted regularly to the maintenance of the rule of law and several of its constituent elements, including the definition of spheres of proper authority, the coordination of two independent but integrated systems of law, and delineation of lines of legal accountability that are essential for effective democratic participation and for enforcing adherence to the rule of law by governmental officials at all levels. Too complex to treat comprehensively in a brief essay, a sketch of three salient and interactive relationships between the national and state legal systems, with some supporting detail about the political and doctrinal support of each (skewed towards illustrative recent decisions of the Supreme Court of the United States), may suffice to convey the complexity and inherent tensions that constitute the daily operation of the American federal system in its relative constitutional maturity.

The first "relationship" is that of independence. Though of course not complete, there remain significant intended separations between state and national functions and the processes of state and national governance--even if the possibility of more dependent interaction is always present. The objective here is to describe the elements of law that incline towards the ability of each level of government to pursue an independent path, without interference from the "other sovereign." That theme of relative independence was captured a generation ago in an important opinion for the Supreme Court authored by Justice Hugo Black, who, in the context of emphasizing the importance of the independence of the States, described "Our Federalism" as embodying "a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways." 2  Here the effort is to identify important elements supporting the freedom of both the States and the Federal Government to function in their separate spheres.

The second relationship--one that mightily tempers the first—is that of integration. The political and economic union that the Constitution ordained and established necessarily entails foundational legal and political elements that bind together the state and national legal systems. Subtle questions and refinements concerning the interaction of those systems were anticipated at the Founding, and many (though by no means all) of them have been resolved for now, at least in general terms. As Alexander Hamilton wrote in Federalist No. 82, addressing some of the intricacies "expected to flow from the establishment of a constitution founded upon the total or partial incorporation of a number of distinct sovereignties"--particularly intricacies arising from the relationship between the federal and state judiciaries: "'Tis time only that can mature and perfect so compound a system, can liquidate the meaning of all the parts, and can adjust them to each other in a harmonious and consistent WHOLE." 3  More than two centuries later, the system is hardly yet perfected and no doubt never will be, but a number of the parts, to be discussed here, have been "adjusted" in the interest of integration in important and revealing ways.

The third relationship is that of the reach and limits of immunity--the immunity of national governmental institutions from state control, and the immunity of state governmental institutions from federal control. It is a set of relationships implied, as are so many others, by the tension between the relationships of independence and integration. Recognition of such immunities obviously bolsters independence, and rejection of such immunities serves a variety of integrative interests. Yet they are worthy of separate discussion because there are peculiarities of the intergovernmental immunity dimension of American federalism that are particularly illuminating about other relationships, as well as for their own sake.

Perhaps by now it may be unnecessary to say that each of these state-national relationships is only a partial description of the American federalist system and that each is related to each of the other relationships and the values that drive them, making even an instructive disentanglement inherently artificial. In fact, the strength and shape of many individual elements of each of these relationships usually are influenced, often qualified, by the hydraulic force of the others—a fact that should not be overlooked in considering what follows. Blended together, however, a modestly representative picture of the current contours of the state—national relationship should emerge.

It also bears noting, finally, that the definition, reach, and periodic readjustment of all these elements rests significantly in the hands of the Supreme Court of the United States, a national body that has often rejected national authority to preserve that of the States—particularly in recent years—but has also been especially alert to reject state claims when the essence of political or economic integration has been thought to be implicated.

I. Elements of the "Relationship" of Independence

The dual political structure presumed by the Constitution is surely the most significant, if also the most obvious, determinant of the independent spheres of federal and state authority. With respect to the States, today, as in 1787, the States of the Union have their own legislative, executive, and judicial branches to formulate, administer, and apply their own laws. Grounded in separate state constitutions that distribute and limit these internal powers among a variety of state institutions, it remains the case that most law to which Americans are subject—including the bulk of criminal regulation, property, contract, tort, and family law—emanates from, and is enforced by, state government officials. In many States, state electorates also may exercise powers of referendum and initiative to translate their policy preferences more directly into state law. 4  Moreover, not only is it the case that each State has its own lawmaking and law-applying mechanisms for carrying out state majoritarian policies, but in the absence of any conflict with federal law the state constitutions may, and often do, provide independent protections against the abuse of state authority for the individual rights of their inhabitants that extend beyond the protections mandated by the federal Constitution. 5 

With respect to the national government, there is also, of course, substantial independent operating room for the formulation, administration and interpretation of federal law and policy that stems from the Constitution's creation—superimposed upon the pre-existing state governments--of the national Congress, Executive, and Federal Judiciary. The decision of the Constitutional Convention to provide for direct regulation of the citizenry by the Nation assured that. As independent forums for political and legal participation that have wide-ranging authority over the governance of the private and public behavior of the Nation, these national institutions perform a host of independent governmental functions, just as the corresponding state institutions do.

To be sure, the independent sphere of federal activity differs from that of the States in a number of respects. There is no mechanism for direct policymaking by the national electorate--for national plebiscites--that is the counterpart of the initiative and referendum process. Nor does the national government, being a government of enumerated or delegated powers, have a general police power in the way that States do. Nonetheless, the span of independent authority exercised through the national governmental institutions remains very broad indeed.

It is precisely the breadth of the independent powers and actions of each level of government, of course, that necessitates rules of coordination for the melding of both into that "harmonious and consistent WHOLE" of which Hamilton spoke. And because the Constitution also provided for an independent federal judiciary to operate in conjunction with the existing state judiciaries, the rules of coordination have to embrace not only regular questions about how to deal with two bodies of law potentially applicable in a myriad of complex ways in a single case, but rules about how to deal with the relations between state and federal courts. 6 

As to the respective legislative authority of States and Nation, both presumptively may act in areas of concurrent power, 7  but there are some matters exclusively entrusted to just one level of government or the other, rendering the independence of one complete and of the other nonexistent. For example, in a few areas of delegated power, congressional authority is complete and state authority is ousted, such as the power over war, foreign policy, and naturalization. 8  More frequently contested in American history, however, has been what powers are denied to Congress and reserved to the States because the Supreme Court's interpretation of the scope of a delegated power does not encompass the particular power Congress sought to exercise.

Without purporting to trace in any comprehensive way the Court's various attempts, in different historical periods, to curb the scope of delegated congressional power, suffice it to say that since the virtually total judicial relaxation of any such control since 1937, only in the last few years has the Supreme Court sought again to deny power to Congress based on an absence of delegated power. Thus, two years ago the Court held invalid a federal criminal ban on gun possession in or near a school, for lack of a sufficient connection to Congress' power to regulate interstate commerce. 9  Seemingly drawing a line that would require otherwise local, intrastate activity, such as possession, to be both commercial in character and, taking the regulated activity in the aggregate, to have "substantial effects" on interstate commerce before Congress could act in a matter otherwise left fully to the independent regulatory discretion of the States, Chief Justice Rehnquist explicitly rejected more attenuated arguments about the connection between education and commerce and the adverse effects of gun possession on education. To accept such arguments "we would have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States" 10 --a course the bare Court majority was unwilling to follow. 11 

The Court also exhibited solicitude for the independent and exclusive authority of retained state power just a few months ago, when it ruled that Congress lacked power to enact the Religious Freedom Restoration Act (RFRA) as a means to "enforce" the provisions of the Fourteenth Amendment--the primary post-Civil War Amendment adopted specifically to curb state abuses of the rights of state residents. By going beyond "remedial" or "preventive" enforcement against the application of any and all laws, at every level of government, that risked violation of individual rights to exercise religion freely as the Supreme Court had defined it, and itself "defining" the substance of the right to free exercise in a manner at variance with the Supreme Court's own definition, the Court concluded that Congress had unconstitutionally disregarded both the intent of the Fourteenth Amendment's framers not to give Congress too great "a power to intrude into traditional areas of state responsibility" and the need to prevent Congress from defining its own powers by altering the meaning of the Fourteenth Amendment and thereby effectively circumventing Article V's constitutional amendment process. 12 

How significant these decisions will be for future allocations of independent authority remains to be seen, but they do serve to illustrate the demarcation function that the Supreme Court periodically performs in defining the spheres of respective independence of state and federal legislative authority. However sparingly the Court may use its power of judicial review to police the boundaries of independent state and federal authority, the reminder that this is a matter of major constitutional importance is telling in itself.

As to the respective judicial enforcement and interpretive authority of States and Nation, the fact that state and federal law so often simultaneously apply--whether independently, supplementally, or even conflictually--to matters in litigation, and the fact that litigation comprising both federal and state law issues may arise in a state or federal court or both, inevitably has presented exceedingly complex rules of coordination of the state and federal law systems as administered by the state and federal courts. For the most part, state courts are courts of general jurisdiction, not limited in subject matter, whereas the federal courts--by design of Article III's specifications of the types of "cases" and "controversies" to which the federal judicial power extends--are courts of limited jurisdiction. Explicitly intended as a means to preserve state court jurisdiction, this counterpart to the Constitution's grant of only enumerated legislative power to Congress and a reserved general regulatory power in the States defines, of course, a crucial realm of state judicial independence in the elaboration and enforcement of state law. So, too, does the 19th century ruling that federal courts lack power to create common law crimes against the United States 13  and the 20th century understanding that they may not create "federal general common law." 14 

Absent the presence of an issue falling within Article III, there is no federal jurisdiction and independent state authority is preserved. Yet Article III does embrace some lawsuits that will be governed wholly by state law, most notably to avoid biased adjudication and provide a neutral federal forum when there is diversity of state citizenship between the parties, and other lawsuits that involve not just federal issues but state issues as part of the overall controversy. In both instances, state law issues will be brought to federal courts for adjudication. Moreover, the Supreme Court of the United States oversees not just the lower federal courts, but the work of the 50 state court systems as well, whose integrative obligation under the Supremacy Clause of Article VI of the Constitution is to apply federal law when applicable to litigation pursued in their courts.

Under these latter circumstances of each court system's regular involvement with the law of the other sovereign, the risk that independent judicial interpretation and development of state and federal law will be compromised is severe. The impetus to preserve such independence in the interest of a healthy federalism has been strong enough, however, to lead to several foundational premises tending in that direction. Thus, on the fundamental assumption that state courts are the authoritative expositors of state law, the Supreme Court of the United States will not review the state law questions in a lawsuit otherwise within its jurisdiction on appeal from a state court, 15  and it won't even review the case at all if the state law grounds of decision are independent and adequate to sustain the judgment below, whatever the correctness of the state court's decision of any federal issues. 16  Based on the same fundamental assumption, federal courts with jurisdiction over state law issues are directed to apply state law as the state courts would do and not as if they were free to use their own best judgment about how best to interpret the applicable state law in the dispute before them. 17  Moreover, respect for the independent functions of state courts, even when that function is not just limited to applying or interpreting state law, underlie doctrines of equitable restraint and abstention that call for federal courts, respectively, either to refuse to interfere with ongoing state proceedings 18  or to postpone the exercise of federal jurisdiction until state law issues that bear on the shape of the litigation are clarified. 19 

The converse of these doctrines of judicial federalism that bolster the independence of state courts in all their adjudicatory functions, especially those that tend the development of the body of state law, rests in mechanisms to assure ultimate federal court control over the corpus of federal law. The primary mechanism is the appellate jurisdiction of the Supreme Court on matters of federal law to insure its supremacy and uniformity. Its ultimate interpretive authority over the scope of federal judicial power delineated in Article III provides all the means necessary to assure that it can perform that function. That its federal law rulings are binding on the state courts extends the range of its independent operation. It is aided, of course, by the lower federal courts which Congress immediately created at the birth of the Republic, using the discretionary power authorized by the Constitution. 20  Moreover, should Congress be concerned that there is increased need for independent judicial development of particular matters of federal law, it is free to vest those matters within the exclusive jurisdiction of the federal courts--an option it has exercised from time to time. 21 

In short, there are refined, sometimes elaborate, mechanisms working to provide substantial room for the independent operation of the national and state legal systems within the American federal structure. They are made even more refined and elaborate by the demands of an integrated Union, but their tendencies to support a significant measure of independence ought not to be underestimated simply because integrative demands require important qualifications.

II. Elements of the Relationship of Integration

Because integration of the States into the federal Union is a national interest, some of the elements of this relationship come in the form of limits on state power in the interest of supporting national authority, including limits that foster interstate cooperation. Other elements of integration arise, not from restricting state power, but from processes of cooperative interaction that embrace both structural sources of joint participation and voluntary exercises of discretionary power to pursue integrative measures.

A. Integrative Limits on State Power

The necessities of Union support the already mentioned exclusivity of federal power over war, foreign policy, and immigration--an exclusivity that guarantees national independence from state interference as it serves the need for integrated policy in dealing with other nations. Internally as well, however, the Nation's integrative needs impose limits on state authority, sometimes by the Constitution itself without any action by Congress, and sometimes only when Congress acts. The limiting lines drawn by the Supreme Court in its elaboration of the meaning of the Constitution, and those it draws in its interpretation of the additional limits periodically imposed by Congress, are always sensitive, to one degree or another, to preserving as much independent state authority as is consonant with the integrative purposes of the text it is enforcing, but the integrative purpose must be satisfied in the event.

One of the most frequently litigated elements of the relationship of integration is the limit the Supreme Court has enforced on state power by virtue of the so-called "dormant commerce clause"--the limit that arises not from congressional exercise of its power to regulate commerce among the States, but from the mere existence of that national power, from which the Court has implied the absence of state power to act in ways that threaten economic and political union. 22  Putting aside for a moment considerable current dispute, and historical ups and downs, over how far, if at all, the dormant commerce clause should be held to limit state authority beyond a virtual ban on protectionist state policies that discriminate against interstate commerce, the strength of the core idea may be illustrated, even in this current era of a Supreme Court more attuned to state authority than it has been for more than half a century, by the Supreme Court's decision a few months ago invalidating a state property tax exemption withheld from charitable institutions "conducted or operated principally for the benefit of" nonresidents. 23  Over the objections of four dissenters that Maine concededly could have limited its provision of social services to its own residents and that the challenged tax exemption provision had done nothing more than provide its social services "indirectly ... by compensating or subsidizing private charitable providers," the majority of the Court concluded, in an issue of first impression, that "the project of our federal Union" required extending dormant commerce clause limits to state laws favoring local nonprofit institutions, even in a context where the "discriminatory burden is imposed on the out-of-state consumer indirectly by means of a tax on the" in-state nonprofit camp. In doing so, the Court emphasized, as it has in so many past dormant commerce clause decisions, its concern that parochially protectionist impulses not be allowed to provoke economic Balkanization and the retaliatory acts of other States that might follow.

Similar constitutional limits on state power in the interest of interstate harmony stem, not from the implication of power delegated to Congress, but from explicit provisions in Article IV of the Constitution--the States' Relations Article. The interstate privileges and immunities clause, which prohibits unwarranted discrimination by any State against the citizens of other States in the Union, was "esteemed" by Alexander Hamilton to be "the basis of the Union." 24  So, too, the obligation of each State to give "Full Faith and Credit ... to the public Acts, Records, and judicial Proceedings of every other State" and the obligation, upon demand, to return fugitives from justice to the State from which they fled, serve to bind the States to one another in an integrated whole not despite, but because of, the restrictions they impose on state independence.

Not surprisingly, in light of the post-Civil War expansion of federal constitutional protection for the individual freedoms of inhabitants of each State from abuse by their own State, a strong integrative limit on independent state authority stems from the Federal Constitution's guarantees of fundamental freedoms against state invasion. Uniform nationwide levels of minimum respect for individual rights not only protect those rights, but establish a common threshold of "national freedom" that reinforces the sense of belonging to an integrated Nation. As indicated earlier, state independence may provide more freedom than the national minimum, but the national floor may not be breached in any State.

Besides all these forms of judicially enforceable constitutional limits on state power in the interest of national integration, the default rule of national supremacy in the event of a clash between exercises of otherwise concurrent state and federal power is a crucial integrative relationship between state and federal law. Pre-emption of state regulation, either by directly conflicting federal regulation or by federal regulation that so fully "occupies the field" that there is no room for state regulation even without a direct conflict, proceeds from the Supremacy Clause of Article VI, which makes validly enacted federal statutes "the supreme Law of the Land" that bind "the Judges in every State ..., any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." 25  To be sure, the judicial process of identifying occupation of the field by Congress takes place under an approach that favors state independence by requiring clear indication of such congressional intent before displacing state power. 26  But when conflict or field occupation is clear, the integrative norm controls.

The Supreme Court has also employed the Supremacy Clause in an integrative fashion to require state courts not only to recognize and apply federal law as supreme over state law in cases that they adjudicate, but to impose an obligation on state courts to accept jurisdiction over congressionally created causes of action that they might prefer not to adjudicate at all. 27  Although not without some occasional expressed concern for the independence of state courts, the Court has suggested that Congress has broad power to impose jurisdiction on otherwise competent state courts to adjudicate federal causes of action. 28  Few practices are more integrative of state and federal law than application of both, to the extent relevant in a particular lawsuit, by the same court. That happens often in the daily practice of American federal and state courts in any event, but the fact that state courts may not refuse to engage in that practice when Congress insists that they do so suggests how strongly the integrative implications of the Supremacy Clause, and its explicit direction to state court judges, have been enforced by the Supreme Court.

A final integrative element taking the form of a constitutional limit on state power comes from the Supreme Court's 5-4 decision just two years ago to disallow Arkansas voters from imposing term-limit qualifications on candidates for Congress from their State. 29  The Court had ruled in an earlier case that Congress cannot add to the Constitution's age, citizenship and residency qualifications for Members of Congress. 30  It concluded that, despite the absence of congressional power and any explicit denial of state power, the States still have no "reserved power" to add to the qualifications of Members of Congress from their own States. One of the influential reasons provided for that conclusion was that allowing different qualifications for the national legislature to exist in different States would "undermine[ Congress's] uniformity and [its] national character" and "would also sever the direct link that the Framers found so critical between the National Government and the people of the United States." 31  As Justice Kennedy emphasized in his separate concurring opinion, "there exists a federal right of citizenship, a relationship between the people of the Nation and their National Government, with which the States may not interfere." 32  The integrative element of the "political identity of the entire people of the Union" 33  could not be put at risk by allowing the States to fracture the commonality of the qualifications for election to Congress from any State in the Union.

B. Integrative Processes of Cooperative Interaction

In significant measure, the federal structure created by the Constitution incorporates state participation in integrative functions, thereby bringing sensitivity to the values of state independence into processes of national governance. Perhaps the most important and widely noted of these is what Professor Herbert Wechsler famously called "The Political Safeguards of Federalism." 34  The Constitution's Framers provided for indirect state influence over the selection of the President through the device of the Electoral College and over the selection of Members of the House of Representatives by tying voter qualifications for that office to voter qualifications set by the States for election of members of the State's most numerous legislative branch. More directly, the Senate has two Senators elected from each State regardless of population. Although the Seventeenth Amendment substituted direct election of Senators for the original mode of selection by the State's legislature--undoubtedly the most historically significant dilution of state influence over national politics--the fact that elections are district--based within the States for both Houses of Congress assures that candidates will pay attention to state interests when they represent their state-based constituencies in the national legislature.

The frequency with which Congress, in its pursuit of national objectives, attends to state interests and provides protection for state independence, is impressive evidence of how the balance of independent and integrative relationships between the state and national legal systems is assured by these structural safeguards. Consider, for example, how often federal regulation is rejected because of arguments in Congress that state regulation is more appropriate. The current resistance to adopting national standards for testing students--just one of a myriad of such instances--stems largely from the perception that providing education is traditionally a state function and that the Congress should not seek to control that function, whether or not it possesses the constitutional power to do so. 35 

Congress often exempts state governmental institutions from regulation imposed on private parties, because of influence brought to bear through Members of Congress. Revenue-sharing policies and block grants, which redistribute federally collected tax revenues to state bodies without much in the way of control over how the money is to be spent, are a further testament to congressional reflection of state interests in the formulation of national programs. The Unfunded Mandate Reform Act of 1995, which seeks to limit the ability of Congress to impose costly regulatory obligations on state and local governments unless provision is made for federal funding of compliance costs, is another important recent example of how national policy initiatives are qualified by incorporating the interests of the States. 36  As a final important example, Congress sometimes gives consent to the States to act in ways that would be unconstitutional absent congressional permission, as, for example, when otherwise impermissible state discrimination against interstate commerce is authorized by Congress pursuant to its plenary authority to regulate that commerce. 37 

In each of these ways, respect for the independent functions of the States is manifested by the operation of the national political process. The structure of that process, and the underlying aims of the national initiatives, are integrative of state and national interests in a fashion that makes ample room to respect the independent sphere of state authority. Also incorporating that sort of balance of integration and independence, though often inclining more towards the integrative end of the spectrum, are programs of cooperative federalism involving the provision of federal funds for federally-chosen specific objectives in fields like health, safety, education, and welfare, where minimum federal standards are required to be satisfied if the States accept the money, and the independent state role is comprised of discretion to choose supplemental means of implementation. 38  The nearly irresistible appeal of money for the States, especially when they are left with some often considerable say in how it will be used to care for their citizens, serves as a powerful integrative mechanism, because of the federal strings attached to acceptance of the funds. 39  Congress's use of its conditional spending power can bend state functions to serve national ends to a greater or lesser degree, and the constant interaction between state and federal officials to assure compliance with federal conditions in making use of the funds has its own significant integrative effect. 40 

Finally, the Constitution provides for at least two other important mechanisms of joint structural participation that serve integrative purposes while recognizing the importance of the state role in doing so. First, for the solution of those geographically intermediate problems that are not confined to one State but do not necessarily affect the entire Nation or perhaps are not best addressed by one nationwide approach, the Constitution provides for the possibility of agreements or "Compacts" between States--but only with "the Consent of Congress." 41  The Supreme Court has adopted the view that congressional consent is only needed, however, for interstate compacts that enhance state power at the expense of the national government. 42  As a result, the opportunity for voluntary integrative measures by the States is maximized at the same time that the integrative authority of the United States is fully preserved.

Second is the process established to amend the United States Constitution. Under Article V, proposals for amendment must emanate either from Congress directly (so far all have originated here) or from a convention called by Congress on application from the legislatures of 2/3 of the States; i.e., from either a national or a multistate action. Ratification is only by multistate action, either by the legislatures of, or Conventions in, 3/4 of the States, with the choice of method of ratification to be made by Congress. The content of proposed Amendments is not limited to only those that are integrative, of course, but the amendment process itself surely is, since the objective is to frame a new national norm and the means involves a nationwide process of deliberation.

III. Elements of the Relationship of Immunity

The tension, and consequent need for accommodation, between independence and integration in the simultaneous operation of the state and national legal systems is perhaps nowhere more heightened than when the government institutions of one sovereign seek to tax, regulate, or otherwise control, not the citizenry over whom both have direct power, but the governmental operations, institutions or officials of the other sovereign. There the threat to sovereign independence is sharpest, but the possible solution of complete immunity of one from the other would sacrifice integration values, and perhaps the rule of law itself, to an unacceptable degree. The elements of the immunity relationship thus cast in bold relief the relative weights accorded the values of independence and integration in particular settings. As it happens, the Supreme Court in recent years has had a good deal to say about these elements, particularly in the context of state claims of immunity from federal control.

A. Federal Immunity from State Control

Most of the law of immunity of federal operations from state control has been disputed less often, has been more settled for a longer period, and is generally more robust, than the law of immunity of state operations from federal control. In the venerable case of McCulloch v. Maryland, 43  the Supreme Court invalidated a state tax on the operations of a federal instrumentality--the Bank of the United States--and established more generally "that the states have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control the operation of the constitutional laws enacted by Congress." Chief Justice Marshall also took advantage of the occasion to reject any notion that state immunity from national control should be understood as equivalent to the Nation's immunity from state control. The representation of the states in the national political process--the political safeguards of federalism--operate to restrain federal control of state operations, wrote the Chief Justice, and in any event national authority, when otherwise valid, embraces all the people in all the States, whereas the Nation's interests are not similarly protected in the political process of any particular State, whose control of national operations would affect the interests of unrepresented people in other States "over whom they claim no control." And he injected the principle of federal supremacy more broadly when he wrote that "[t]he difference is that which always exists, and always must exist, between the action of the whole on a part, and the action of a part on the whole--between the laws of a government declared to be supreme, and those of a government which, when in opposition to those laws, is not supreme." In fact, he continued, "[i]t is the very essence of supremacy to remove all obstacles to its action within its own sphere, and so to modify every power vested in subordinate governments, as to exempt its own operation from their own influence." 44  In short, the integrative values of national supremacy called for independence of the national legal system from state control in a way that did not necessarily require immunity of the state legal system from federal control.

The McCulloch approach has continued to be followed, whether the immunity is for a contractor chosen by federal authorities to build an Air Force Base whom a State sought to subject to its state licensing requirements, 45  or for federal installations that a State sought to subject to an otherwise federally approved state pollution permit requirement. 46  Congress may yield the federal immunity from state control if it clearly wishes to do so, but "where `Congress does not affirmatively declare its instrumentalities or property subject to regulation,' `the federal function must be left free' of regulation." 47 

When it comes to the question of federal immunity from state court control, the situation is more complex, both because the Supremacy Clause itself obligates state judges specifically to apply federal law as the "supreme Law of the Land" to which even Congress, the President, and other federal officials are subject, and because the Constitution contemplated the distinct possibility that Congress might not establish federal courts inferior to the Supreme Court, leaving state courts as potentially the only initial forums for adjudication of claims of law violation by anyone, including federal officials. Here the integrative mandates of the system of federal law--not to mention the essentials of the rule of law--generally supersede any claim that state courts may not apply that law to the acts of federal officials, at least in the first instance subject to Supreme Court review. The supremacy of federal law must be superior to even the supremacy of the institutions and operations of the federal government. Even here, though, the Court has ruled, for example, that state courts lack habeas corpus jurisdiction to consider ordering a federal military recruiting officer to discharge a recruit for alleged violations of the federal enlistment law 48  and that they lack mandamus jurisdiction to compel the register of a federal land office to make a conveyance of property. 49  Moreover, when the Court unanimously decided a few months ago that President Clinton did not have a constitutional entitlement, "in all but the most exceptional cases" to have postponed, until after his term of office concluded, a civil lawsuit brought against him in federal court for alleged sexual harassment before he became President, it left open whether a comparable claim of presidential immunity "might succeed in a state tribunal." 50  The Court noted that instead of the separation of powers arguments advanced in the federal courts, in a state forum the President "would presumably rely on federalism and comity concerns, as well as the interest in protecting federal officials from possible local prejudice that underlies the authority to remove certain cases brought against federal officers from a state to a federal court." 51  And in a footnote, the Court suggested that because of the Supremacy Clause "any direct control by a state court over the President, who has principal responsibility to ensure that [federal law is] `faithfully executed,' Art. II, § 3, may implicate concerns that are quite different from the interbranch separation of powers questions addressed here." 52 

B. State Immunity from Federal Control

As noted earlier, definitional limits on the scope of power delegated to Congress leave the States free to regulate or not as they wish in the nondelegated area, 53  and the political safeguards of federalism tend to operate to protect the States from federal impositions. Those protections for state autonomy are not exhaustive, however. Particularly in the last generation, the Supreme Court has struggled, in a number of closely divided decisions, with claims that Congress has acted unconstitutionally by regulating or attempting to control state activities, and an important body of law, with perhaps an uncertain future, has begun to develop that currently tends toward an enlarged realm of state immunity. Furthermore, recent interpretation of the Eleventh Amendment, which provides an explicit litigation immunity for States from suit in federal court, also has begun to look more favorably on claims of state immunity. What emerges from this complex pattern of regulatory and litigation immunity is a core area of state independence that cannot be breached by national power.

1. State Regulatory Immunity under the Tenth Amendment and the Structure of Federalism

Until 1976, the Supreme Court uniformly rejected claims of state constitutional immunity from federal regulation (adopted in the interest of promoting safety, labor, or price controls, for example) that Congress not only legitimately imposed on private sector activities, but had chosen to extend to the States, when acting in capacities such as employers, sellers, or railroad operators. 54  In that year, the Court, overruling a prior decision, 55  held in a 5-4 decision, that the Fair Labor Standards Act, though within the interstate commerce power of Congress as applied to employees of private businesses, could not constitutionally be applied to state employees performing traditional governmental functions, because Congress could not "exercise power in a fashion that impairs the States' integrity or their ability to function effectively in a federal system." 56  Less than a decade later, however, again in a 5-4 decision, the Court overruled its 1976 decision for being "unworkable" and "inconsistent with established principles of federalism" in that state autonomy interests generally are sufficiently protected by the representation of state interests in the national political process without need for judicial intervention to preserve state autonomy. 57  In essence, the proper balance of integrative and independent relationships between state and national authority in this context was virtually left to congressional discretion, influenced as it is by the political safeguards of federalism.

In the current decade, however, without overruling, or even addressing, that approach as applied to cases "in which Congress has subjected a State to the same legislation applicable to private parties[,]" a more States'-rights oriented Supreme Court has adopted two important, judicially enforceable categorical rules favoring state immunity from federal compulsion. In a suit brought by the State of New York against the United States, the Court, 6-3, concluded that Congress could not, consistent with the Tenth Amendment and the federal structure's intended guarantee to the States of their "residual and inviolable sovereignty," 58  "commandeer" the legislative processes of the States and directly compel state legislatures to adopt laws whose content was prescribed by the Federal Government. 59  Although Congress may "preempt state regulation contrary to federal interests" by displacing state regulation of the private sector with federal regulation of the private sector in an area of concurrent power, and although Congress may induce state regulation in accordance with its wishes either by threatening such preemption, by authorizing other States to discriminate in interstate commerce against the resisting State in certain ways, or by offering federal funds conditional on adoption of the desired state legislation, the Court held the mechanism of mandating state regulation constitutionally impermissible. For reasons of accountability of the respective sovereign governments to the people, as well as to preserve the essential sovereign right of state legislative policy choice, the Court said categorically that the "Federal Government may not compel the States to enact or administer a federal regulatory program." 60 

This year the Court extended its categorical approach to state sovereign immunity from federal legislative control, moreover, when it held unconstitutional interim provisions of the federal Brady Gun Control Act that required state law enforcement officials to administer some of its provisions for a few years until a national instant background check system could be developed. 61  Insisting that Congress must provide for implementation of federal law exclusively by federal officials unless state officials agree or volunteer to assist, the Court held broadly:

"... The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States' officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policymaking is involved, and no case-by-case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty." 62 
The constitutional immunity of state legislative and executive processes from direct federal compulsion found in these two decisions stands in sharp contrast to what continues to be the recognized power of Congress to direct the actions of the third branch of the state governments--their courts. As previously indicated, Congress generally may require state courts to apply and enforce federal causes of action. In the New York decision, the Court sought to justify the difference as follows:
"... Federal statutes enforceable in state courts do, in a sense, direct state judges to enforce them, but this sort of federal `direction' of state judges is mandated by the text of the Supremacy Clause. No comparable constitutional provision authorizes Congress to command state legislatures to legislate." 63 
Similarly, in the Printz case, the majority was unwilling to accept that statutes enacted by the first Congresses, requiring state courts to provide a variety of enforcement functions that extended beyond just adjudication of cases, implied "a power of Congress to impress the state executive into its service." 64  The assumption that Congress could obligate "state judges to enforce federal prescriptions, insofar as those prescriptions related to matters appropriate for the judicial power[,]" rested both on the implications of the optional power in Congress to create or not create lower federal courts and on the explicit directions of the Supremacy Clause. 65  Indeed, wrote Justice Scalia, "[i]t is understandable why courts should have been viewed distinctively in this regard; unlike legislatures and executives, they applied the law of other sovereigns all the time." 66 

Whether these articulated distinctions between the regulatory immunity from federal legislative compulsion of state legislatures and executive officers, on the one hand, and the lack of immunity of state courts, on the other, are persuasive or will endure, for now the Supreme Court has provided at least symbolic categorical shelter for state independence in the States' nonjudicial branches, while adhering to the integrative approach with respect to the state judiciaries. This represents, at least for the time being, a strikingly distinctive approach to accommodating the need for balance between independence and integration in the relationship between the state and national legal systems.

2. State Litigation Immunity under the Eleventh Amendment

A special immunity for States, from unconsented suits against them in federal court, is provided by the Eleventh Amendment. The scope and character of that immunity has been elaborated in a complex, and particularly divisive, body of Supreme Court decisions. 67  The primary reason for both the complexity and the divisiveness is that meaningful content must be given to the litigation immunity of the States if the explicit constitutional provision is to be respected, but too wide-ranging a definition of the immunity endangers the ability of the federal courts to vindicate claims that state action has violated the supremacy of federal law. Some federal court supervision of whether the States are following the supreme federal law must be preserved, it has been felt, and in fact the integrative mechanism of federal judicial review of state behavior to assure state conformity with fundamental federal norms has been thought at least as important as the integrative mechanism of state court obligations to apply federal law in suits brought before them.

Without purporting to describe at all fully the evolution or current contours of this long, complicated, and somewhat arcane jurisprudence, a few portions of the story may suffice to illustrate the nature of the effect this litigation immunity has on the state-federal relationship. Bending in the direction of a capacious state autonomy, the Supreme Court over a century ago interpreted the 11th Amendment--whatever the most natural reading of its words--to embody, or reflect, a constitutional immunity that prohibited federal court jurisdiction over suits against a State even by its own citizens, and even when they complained of state violations of federal law 68 --an interpretation which, though nearly overturned, 69  remains the law. The potentially huge sacrifice of integrative values that ruling implied was moderated significantly, however, by the landmark decision in Ex parte Young, 70  which held that the 11th Amendment does not prohibit a federal court from enjoining state officials from future enforcement of federally unconstitutional state laws, on the fictional theory that a state officer acting unconstitutionally is acting outside the scope of authority that the State can bestow and hence is not the State for litigation immunity purposes. 71  Without that authority, the federal courts could not have played the crucial role that they have in this century in curbing state infringements of the civil liberties of racial and ideological minorities, among others. When the Court much later, in the 1980's, was faced with the question of whether Ex parte Young should be extended to allow prospective federal court injunctions against state officials based on their violations of state law, it said no, however, emphasizing that the Ex parte Young fiction was deemed "necessary to permit the federal courts to vindicate federal rights and hold state officials responsible to `the supreme authority of the United States[,]'" whereas "it is difficult to think of a greater intrusion on state sovereignty than when a federal court instructs state officials on how to conform their conduct to state law." 72 

The latter ruling is just one indication that, as with issues of state regulatory immunity from federal control and the scope of enumerated federal power, in recent years the Supreme Court has resolved 11th Amendment issues with a thumb on the state independence side of the scale rather than the national integration side. 73  Perhaps that has been most starkly true, finally, in cases where the question is not just whether the federal courts, in cases otherwise within their jurisdiction, are precluded by the 11th Amendment from entertaining on their own authority a claim against state officials, but whether Congress can subject the States to suit in federal court by lifting the immunity they otherwise would have. When first presented with the issue, the Court held that Congress had acted constitutionally in subjecting the States to suit in federal court despite the 11th Amendment, because Congress in that case had acted pursuant to its power to enforce the provisions of the 14th Amendment, which had been adopted well after the 11th Amendment and had operated to alter the pre-existing balance between state and federal power. 74  Although that specific ruling appears to remain good law for now, the Court recently overruled, 5-4, its later decision extending congressional authority to abrogate 11th Amendment immunity to exercises of its power--found in the original Constitution--to regulate commerce among the States. 75  As with recent 10th Amendment jurisprudence, the Court's slim majority generally appears to be unwilling to rely exclusively on the political safeguards of federalism to protect the States' litigation immunity under the 11th Amendment. Importantly, however, though it has moved the line in the direction of state independence from federal judicial control somewhat, a footnote in the Seminole decision sought to reassure that "other methods of ensuring the States' compliance with federal law" remain available--"the Federal Government can bring suit in federal court against a State; an individual can bring suit against a state officer in order to ensure that the officer's conduct is in compliance with federal law; and this Court is empowered to review a question of federal law arising from a state court decision where a State has consented to suit." 76 

Few would suggest that the particular lines drawn by the Supreme Court in its enforcement of the 11th Amendment are in any sense logically or historically compelled, and arguments about the location of each one--and new ones yet to be drawn--more likely are driven by whether it is perceived that the overall balance between state immunity and accountability in federal court tilts too strongly in one direction than the other, than by the nearly Byzantine detail that close inspection of the Court's rulings reveals. What is noteworthy, however, is the ferocious clash of independence and integration values that these immunity questions so often provoke.

In this admittedly non-exhaustive survey of some of the key elements of the relationships of independence, integration, and immunity between the state and national legal systems of the American federal structure, there is good reason to be sensitive to distinctions between relationships of state and federal law and relationships of state and governmental institutions. Because the States and the Nation are organized with three branches of government in each, there is also good reason to be sensitive to how the various branches of each level of government may interact with the various branches of the other. In particular, sharp differences between the role of courts and the role of legislative and executive branches emerge from this examination.

No doubt further adjustments involving as yet untested relationships, much less changes in direction from current resolutions, are to be expected. James Madison argued in Federalist No. 39 that "[t]he proposed Constitution ... is, in strictness, neither a national nor a federal Constitution, but a composition of both." 77  The ongoing constitutional enterprise that is the American federal structure, it might be said, is neither wholly integrative, nor wholly independence-maximizing, but a "composition of both." The elements of that composition have become exceedingly refined, as anticipated at the Founding, and the very multiplication of those elements virtually assures struggle and change. The current pattern and balance is an interesting one, but it can claim no monopoly on wisdom. With luck, the wisest of these elements will be retained and the less wise discarded or modified within the framework of adherence to the rule of law.

1. In Gregory v. Ashcroft, 501 U.S. 452, 457-458 (1991), the Supreme Court described the intended design and expected benefits of the federalist division of power this way:
"This federalist structure of joint sovereigns preserves to the people numerous advantages. It assures a decentralized government that will be more sensitive to the diverse needs of a heterogeneous society; it increases opportunity for citizen involvement in democratic processes; it allows for more innovation and experimentation in government; and it makes government more responsive by putting the States in competition for a mobile citizenry....

"Perhaps the principal benefit of the federalist system is a check on abuses of government power.... Just as the separation and independence of the coordinate Branches of the Federal Government serves to prevent the accumulation of excessive power in any one Branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front...." (Emphasis added).

2. Younger v. Harris, 401 U.S. 37, 44 (1971).

3. The Federalist No. 82, p. 491 (C. Rossiter ed. 1961).

4. See generally, T. CRONIN, DIRECT DEMOCRACY (1989); Eule, "Judicial Review of Direct Democracy," 99 Yale Law Journal 1503 (1990).

5. See, e.g., Brennan, "'State Constitutions and the Protection of Individual Rights," 90 Harv. L. Rev. 489 (1977); Brennan, "The Bill of Rights and the States: The Revival of State Constitutions as Guardians of Individual Rights," 61 N.Y.U. L. Rev. 535 (1986)

6. See generally, Hart, "The Relations Between State and Federal Law," 54 Colum. L. Rev. 489 (1954).

7. I say presumptively, because if both act in an area of concurrent power in a sufficiently conflicting fashion, the preemptive element of the relationship of integration disables any claim to independent state authority.

8. See generally, L. TRIBE, AMERICAN CONSTITUTIONAL LAW § 5-16 (2d Ed. 1988).

9. United States v. Lopez, 514 U.S. 549 (1995).

10. Id., at 567.

11. Even where the Court has assumed that Congress has the delegated authority to criminalize behavior that normally would be within the domain of state criminal regulation, it often has interpreted the reach of federal criminal statutes narrowly, because "unless Congress conveys its purposes clearly, it will not be deemed to have significantly changed the federal-state balance." United States v. Bass, 404 U.S. 336, 349 (1971). Such "clear statement rules" of federal statutory interpretation do not limit congressional authority in any ultimate sense, but as a practical matter they do act powerfully to buttress the independent control of criminal behavior by the States.

12. City of Boerne v. Flores, 117 S.Ct. 2157 (1997).

13. United States v. Hudson & Goodwin, 11 U.S. (7 Cranch) 32 (1812).

14. Erie R.R. v. Tompkins, 304 U.S. 64, 78 (1938).

15. Murdock v. City of Memphis, 87 U.S. (20 Wall.) 590 (1875).

16. See generally, Michigan v. Long, 463 U.S. 1032 (1983); Hill, "The Inadequate State Ground," 65 Colum. L. Rev. 943 (1965).

17. See generally, C. WRIGHT, LAW OF FEDERAL COURTS § 58 (5th Ed. 1994).

18. See Younger v. Harris, 401 U.S. 37 (1971); E. CHEMERINSKY, FEDERAL JURISDICTION 715-55 (2d ed. 1994).

19. See Railroad Commission of Texas v. Pullman Co., 312 U.S. 496 (1941); Field, "Abstention in Constitutional Cases: The Scope of the Pullman Abstention Doctrine," 122 U. Pa. L. Rev. 1071 (1974); Field, "The Abstention Doctrine Today," 125 U. Pa. L. Rev. 590 (1977).

20. Art. I, § 8, cl. 9, which confers power on Congress to "constitute Tribunals inferior to the Supreme Court," and Art. III, § 1, which says that the "judicial power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish," reflect the so-called Madisonian Compromise between those Framers who wanted the Constitution to require the creation of lower federal courts and those who wanted it to preclude their creation. See generally, R. FALLON, D. MELTZER & D. SHAPIRO, HART & WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 7-9 (4th ed. 1996).

21. See The Moses Taylor, 71 U.S. (4 Wall.) 411 (1867); FALLON, MELTZER & SHAPIRO, supra note 20, at 450-55.

22. See generally, Regan, "The Supreme Court and State Protectionism: Making Sense of the Dormant Commerce Clause," 84 Mich. L. Rev. 1091 (1986).

23. Camps Newfound/Owatonna, Inc. v. Town of Harrison, 117 S.Ct. 1590 (1997).

24. Federalist No. 80.

25. See generally, L. TRIBE, supra note 8, at 479-511.

26. See, e.g., Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947) (When Congress has legislated "in a field which the States have traditionally occupied," the Court starts "with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress."); O'Melveny & Myers v. FDIC, 512 U.S. 79, 85 (1994).

27. See, e.g., Testa v. Katt, 330 U.S. 386 (1947); Felder v. Casey, 487 U.S. 131 (1988).

28. See Fallon, Meltzer & Shapiro, HART & WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 472-477 (4th ed. 1996).

29. U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995).

30. Powell v. McCormack, 395 U.S. 486 (1969).

31. 514 U.S., at 822.

32. Id., at 845.

33. Id., at 841.

34. See Wechsler, "The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government," 54 Colum. L. Rev. 543 (1954).

35. For an argument that this perception is historically inaccurate, see Katyal, "National Testing's Pedigree," N.Y. Times Op-Ed Page, Sept. 12, 1997.

36.P.L. 104-4, 109 Stat. 48 et seq.

37. Prudential Ins. Co. v. Benjamin, 328 U.S. 408, 427-31 (1946)(The McCarran-Ferguson Act of 1945 permissibly validated discriminatory state taxes on out-of-state insurance companies that would otherwise violate the dormant commerce clause.). See generally, Cohen, "Congressional Power to Validate Unconstitutional State Laws: A Forgotten Solution to an Old Enigma," 35 Stan. L. Rev. 387 (1983).

38.See Scheiber, "Cooperative Federalism," 2 ENCYCLOPEDIA OF THE AMERICAN CONSTITUTION 503 (1986).

39. See generally, Rosenthal, "Conditional Federal Spending and the Constitution," 39 Stanford L. Rev. 1103 (1987).

40. Even without the carrot of federal funding playing much of a role, state and federal officials may cooperate voluntarily when both levels of government have a common objective and pooling their efforts is deemed advantageous to achieving it. Thus, joint task forces to fight organized or other crime is not uncommon, and the efforts involved are often integrative.

41. Art. I, § 10, cl. 3.

42. See, e.g., United States Steel Corp. v. Multistate Tax Commission, 434 U.S. 452 (1978).

43. 17 U.S. (4 Wheat.) 316 (1819).

44. Id., at 427.

45. Leslie Miller, Inc. v. Arkansas, 352 U.S. 187 (1956).

46. Hancock v. Train, 426 U.S. 167 (1976).

47. Id.

48. Tarble's Case, 80 U.S. (13 Wall.) 397 (1872).

49. McClung v. Silliman, 19 U.S. (6 Wheat.) 598 (1821).

50. Clinton v. Jones, 117 S.Ct. 1636, 1642 (1997).

51. Id., at 1642-43.

52. Id., at 1642n.13.

53. Especially important in this regard is the recent decision in City of Boerne v. Flores, 117 S.Ct. 2157 (1997), holding that Congress may not use its power to enforce the 14th Amendment to enlarge the Amendment's substantive restrictions on state action and then regulate to remedy or prevent violations of the enlarged set of limitations on state discretion.


55. Maryland v. Wirtz, 392 U.S. 183 (1968).

56. National League of Cities v. Usery, 426 U.S. 833, 843 (1976)(quoting Fry v. United States, 421 U.S. 542, 547 (1975).

57. Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985).

58. The Federalist No. 39, p.245 (C. Rossiter ed. 1961).

59. New York v. United States, 505 U.S. 144 (1992).

60. Id., at 188.

61. Printz v. United States, 117 S.Ct. 2365 (1997).

62. Id., at 2384.

63. 505 U.S., at 178-79.

64. 117 S.Ct., at 2371.

65. Id.

66. Id.

67. See generally, E. CHEMERINSKY, FEDERAL JURISDICTION 367-419 (2d ed. 1994).

68. Hans v. Louisiana, 134 U.S. 1 (1890).

69. See, e.g., the dissenting opinion of Justice Brennan for four Justices in Atascadero State Hospital v. Scanlon, 473 U.S. 234 (1985).

70. 209 U.S. 123 (1908).

71. The pendulum swung back in the other direction later when the Court held that while federal courts could issue injunctions against state officials that were prospective, they could not issue injunctions that essentially were the equivalent of awarding retroactive damages. Edelman v. Jordan, 415 U.S. 651 (1974).

72. Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 104, 106 (1984).

73. Another such indication came a few months ago when the Court decided, without "question[ing] the validity of the Ex parte Young doctrine"-and without agreement among the 5-Justice majority on the exact rationale for their conclusion-that an Indian tribe could not sue officials of the State of Idaho in federal court to stop interference with the tribe's claimed ownership, based on federal law, of banks and submerged lands of a lake and some adjacent rivers and streams. Idaho v. Coeur d'Alene Tribe of Idaho, 117 S.Ct. 2028, 2034 (1997). The decision rested on supposedly "particular and special circumstances," id., at 2043-essentially that the suit was functionally the equivalent of a suit to vest title in the Tribe to uniquely sovereign lands impressed with a public trust (when suits against a State to quiet title admittedly fall within the Eleventh Amendment), and that the Tribe also sought a ruling that the lands were not even within the State's regulatory jurisdiction.

74. Fitzpatrick v. Bitzer, 427 U.S. 445 (1976).

75. Seminole Tribe of Florida v. Florida, 116 S.Ct. 1114 (1996), overruling Pennsylvania v Union Gas Co., 491 U.S. 1 (1989).

76. 117 S.Ct., at 1131n.14.

77. Federalist No. 39, p. 246 (C. Rossiter ed. 1961).

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