The Eleventh Amendment as curb on bureaucratic power

Scholars frequently attack the Court's recent sovereign immunity jurisprude nce on the ground that it serves no practical function. In particular, crit ics can identify no sensible purpose to the doctrine's distinction between private lawsuits seeking "prospective" (injunctive) relief against state go vernments (which are allowed under Ex Parte Young) and private lawsuits see king "retrospective" (monetary) relief against state governments (which is barred by the principle of sovereign immunity). This article takes issue wi th this objection to sovereign immunity doctrine by suggesting a practical function to the injunction-damages distinction. The doctrine might serve th e function of strengthening the position of elected non-federal policy "gen eralists " (governors and state legislators) against appointed state bureau crats. State agency specialists often are more loyal to their counterparts in federal agencies, because they share a professional culture, career path s, program priorities, etc. Such a stare official might not resist federal agency mandates in the rule-making process, because such mandates comport w ith his or her own thinking about governmental priorities, and they are a g ood excuse for a larger budget request from the state legislature. State ag ency specialists, therefore, can become a surreptitious force for undermini ng the policy-making discretion of state legislatures and governors. The Eleventh Amendment doctrine's distinction between damages and injunctio ns might possibly protect against this threat to federalism. The reason is rooted in the practical reality of budgeting. The money necessary to pay da mages rarely comes out of the revenues appropriated for an agency's operati ons. Instead, states typically maintain some sort of "Judgments Fund" for t he payment of damages award. Because damages judgments do not affect an age ncy's bottom line, damages are a political headache for the state legislatu re, which must figure out how to find the money to pay the judgment, often out of other programs' budget. By contrast, each agency must itself decide how to comply with injunctions by reallocating their existing resources. Gi ven the practical inertia of state budgeting, the cost of the federal manda te, when enforced with an injunction, will tend to lie where it falls - on the budget of the state agency subject to a state mandate - if the mandate is enforced only by an injunction and not by damages. By forbidding damages, sovereign immunity doctrine places a "firewall" betw een each state agency, insuring that federally mandated costs imposed on on e state agency - perhaps with that agency's acquiescence - do nor spill ove r onto the budgets of other rival state programs. Thus, the doctrine preven ts any state agency from using federal mandates to enlarge its own budget. In this way, the states' immunity from damages might be a partial cure or a t least palliative for the ill of state agency's disloyalty to the state 's political leadership.