PastPaperHero | The relation of nation and states in a federal system

Learning Outcomes

This article explains how intergovernmental immunities structure the relationship between the federal government and the states, including:

The constitutional limits on each sovereign’s power to tax, regulate, or otherwise control the operations of the other;
How the Supremacy Clause, Tenth Amendment, and federalism structure frame those limits and interact with preemption doctrine;
The anti-commandeering rule, with examples of what Congress may and may not demand of state legislatures and executive officials;
The distinction between direct and indirect (generally applicable) taxation and regulation, and how discrimination and legal incidence affect validity;
The scope of immunity enjoyed by federal and state governments, their agencies, and their officers in performing authorized governmental functions;
The relationship between intergovernmental immunity, state sovereign immunity, and Eleventh Amendment restrictions on damages suits in federal court;
How Congress can use the Spending Power and conditional federal grants to influence state policy choices without crossing the line into coercion;
How intergovernmental tax and regulatory immunities differ from tort-based sovereign immunity schemes, such as the Federal Tort Claims Act and state tort claims acts, a frequent bar-exam trap.

MBE Syllabus

For the MBE, you are required to understand the constitutional principles governing the relationship between the federal government and the states, with a focus on the following syllabus points:

The federal government's immunity from direct state regulation and taxation
The states' lack of comparable immunity from generally applicable federal regulation and taxation
The anti-commandeering principle prohibiting Congress from requiring states to enact or enforce federal programs
The distinction between direct and indirect (generally applicable) taxation or regulation of another sovereign
The scope of immunity for state officers and federal officers when enforcing or violating federal law
State sovereign immunity under the Eleventh Amendment and congressional abrogation under the Fourteenth Amendment
The use of the Spending Power to influence, but not coerce, state policy
Basic intersovereign litigation: suits by and against the United States and by one state against another

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

Which of the following is most accurate regarding the federal government’s immunity from state taxation?
1. The federal government is immune from all state taxes, direct or indirect.
2. The federal government is only immune from direct state taxes or regulation.
3. The federal government is not immune from any state taxation.
4. The federal government is only immune from taxes on its employees’ salaries.
Congress passes a law requiring state police to enforce a new federal environmental regulation. Is this law constitutional?
1. Yes, because Congress can regulate the states under the Commerce Clause.
2. Yes, because Congress can use the Spending Power to require state enforcement.
3. No, because the anti-commandeering principle prohibits Congress from compelling states to enforce federal law.
4. No, because the Tenth Amendment prohibits all federal regulation of states.
Can a state tax the income of federal employees who live in the state?
1. No, states may never tax federal employees.
2. Yes, but only if the tax does not discriminate against federal employees.
3. Yes, and states may tax federal agencies directly.
4. No, unless Congress consents.
Congress enacts a statute that imposes a payroll tax only on state governments, but not on private employers. Which statement is most accurate?
1. The tax is valid because Congress has broad taxing power.
2. The tax is likely invalid as an attempt to single out states for special burdens.
3. The tax is valid if Congress acts under the Commerce Clause.
4. The tax is invalid only if the states can show it is economically burdensome.
Congress conditions 5% of a state’s federal highway funds on the state adopting a 21-year-old drinking age. Which is the best characterization?
1. Unconstitutional commandeering of the state legislature.
2. A valid use of the Spending Power if the condition is related and not unduly coercive.
3. Invalid because Congress may not regulate alcohol.
4. Invalid because spending conditions must be approved by all states.

Introduction

The U.S. Constitution creates a federal system in which both the federal government and the states are sovereign within their respective spheres. Inevitably, their powers intersect. A central structural question in Constitutional Law is: to what extent may one sovereign tax, regulate, or otherwise control the operations of the other?

The answer is supplied by the doctrine of intergovernmental immunities. These rules limit how far states may go in taxing or regulating federal operations, and how far Congress may go in directing state governments. For MBE purposes, you must know both directions:

Limits on state power vis-à-vis the federal government; and
Limits on federal power vis-à-vis the states (including the Tenth Amendment, anti-commandeering, and the Spending Power).

These issues are closely tied to the Constitution’s supremacy structure and federalism reservations.

Key Term: Supremacy Clause
The constitutional rule (Article VI) that federal law is “the supreme Law of the Land,” invalidating conflicting state laws and preventing states from controlling or obstructing valid federal operations.

Key Term: Tenth Amendment
The constitutional provision reserving to the states (or the people) those powers not delegated to the federal government nor prohibited to the states. It is often invoked to limit Congress’s ability to control state governments.

Key Term: Intergovernmental Immunity
The doctrine that one sovereign (federal or state) may not unduly tax or regulate the other sovereign in ways that interfere with its core governmental functions or that discriminate against it.

Intergovernmental immunities are structural, not individual-rights doctrines. They protect the autonomy of governments, not the personal rights of private parties (although private litigants often invoke them when challenging taxes or regulations).

They also operate alongside, but are distinct from:

Preemption, where valid federal law displaces conflicting state law; and
Sovereign immunity, which restricts when governments can be sued for damages.

Key Term: Preemption
The doctrine, derived from the Supremacy Clause, under which valid federal law displaces or renders inapplicable inconsistent state law, even if the state law is otherwise within the state’s powers.

Understanding how these doctrines interlock is important for decoding MBE questions about the relationship between federal and state authority.

Federal Immunity from State Taxation and Regulation

The federal government is generally immune from direct state regulation or taxation. This flows from the Supremacy Clause and classic cases such as McCulloch v. Maryland: states may not use their powers to control or destroy federal operations.

In McCulloch, Maryland imposed a tax on the federal Bank of the United States. The Court held the tax unconstitutional, reasoning that “the power to tax involves the power to destroy.” If states could place special burdens on federal instrumentalities, they could undermine federal supremacy.

Key Term: Federal Instrumentality
A federal agency or federally created entity through which the federal government carries out its functions (e.g., a federal agency, federal bank, or federal corporation).

States may not directly tax or regulate the federal government or its instrumentalities unless Congress clearly consents. A “direct” tax or regulation is one that targets the federal government or its agencies as such.

Key Term: Direct Taxation or Regulation
A tax or regulation that, on its face, singles out the federal government or its agencies or attaches specifically to federal activities as such.

Examples of invalid direct state measures include:

A state law imposing a property tax specifically on “all buildings owned by the United States.”
A state statute imposing a special license fee only on federal agencies operating within the state.
A state regulation requiring a federal agency to obtain a state permit as a condition of carrying out a federal function, giving the state effective veto power over that function.

Courts are especially suspicious where compliance gives state officials discretionary control over whether the federal government may operate, or what conditions it must satisfy.

Historically, intergovernmental immunity was read very broadly. Modern doctrine is narrower and more functional: some incidental burdens are acceptable, but measures that discriminate against or directly control federal operations are not.

Indirect and Generally Applicable State Taxes and Regulations

Modern doctrine allows states to impose some indirect, generally applicable burdens on federal operations. If a state uses a neutral rule that applies to everyone, including those working for or contracting with the federal government, the federal government may bear incidental burdens.

Key Term: Indirect Taxation
A tax that applies neutrally to all similarly situated persons or entities—such as general income, sales, or property taxes—and that does not single out the federal government or those dealing with it.

Key Term: Nondiscriminatory Tax
A tax that treats federal and nonfederal actors the same, without imposing heavier burdens because of a federal connection.

Key Term: Discriminatory Tax
A tax that imposes greater burdens on the federal government, federal employees, or federal contractors than on comparable state or private actors, solely because of their federal status.

Key points:

States may not tax the federal government or its property directly (e.g., “a property tax on buildings owned by the United States”).
States may tax private parties who do business with the federal government (e.g., contractors), as long as:
- The tax is nondiscriminatory, and
- The legal obligation to pay (the legal incidence of the tax) falls on the private party, not on the United States.

Key Term: Legal Incidence of a Tax
The person or entity legally obligated to pay the tax, as opposed to who ultimately bears the economic burden. For intergovernmental immunity, courts focus on legal incidence.

For example:

A general state sales tax collected from vendors, applied at the same rate to all sales (including sales to federal agencies), is usually valid because the legal incidence is on the vendor, not the United States.
A state income tax applied at the same rate to all residents’ wages, including federal employees’ wages, is valid, absent discrimination.

States may also apply generally applicable regulations (such as neutral health and safety codes) to private contractors building or operating federal facilities, unless federal law preempts such application.

However, even a generally worded law can be invalid as applied if it conflicts with federal operations. The Supremacy Clause invalidates state laws that:

Directly contradict federal law, or
“Stand as an obstacle” to the accomplishment of federal objectives.

Thus, if Congress specifies construction standards for a federal facility, a conflicting state building code cannot be enforced against a federal contractor building that facility.

Sometimes the issue arises when a state seeks to license federal employees or operations:

A state may not require a federal officer to obtain a state license if that would effectively condition a federal function on state approval (e.g., requiring a postal worker to hold a state commercial driver’s license solely as a condition of driving a mail truck in the course of duty).
By contrast, a generally applicable state law applied to the private conduct of a federal employee (e.g., a speeding law violated while off duty) ordinarily poses no intergovernmental-immunity problem.

State Immunity from Federal Regulation

States do not enjoy the same broad immunity from federal regulation that the federal government enjoys vis-à-vis the states. When Congress acts within its enumerated powers (e.g., the Commerce Clause, Taxing Power, Spending Power), it may regulate state activities directly.

The key structural difference:

Federal supremacy prevents states from controlling federal operations; states cannot trump federal law.
But states are subordinate to valid federal law; they are not coequal to the federal government in the sense of being immune from federal regulation.

When Congress legislates under its enumerated powers, it may often treat states much like private actors. The Tenth Amendment plays a role, but its main bite in this area is through the anti-commandeering doctrine, not through a broad “state immunity” from regulation.

Bar examiners often test the distinction between:

Federal laws that regulate states and private actors alike; and
Federal laws that regulate states alone in their capacity as governments.

6. Regulations or Taxes that Apply to States and Private Entities

When Congress enacts a law that subjects state and local governments to regulations or taxes that also apply to private entities, the Supreme Court is highly reluctant to find a Tenth Amendment violation.

Example: Congress can require state and local governments to comply with federal minimum wage and overtime rules that apply to all employers. In Garcia v. San Antonio Metropolitan Transit Authority, the Court upheld application of federal wage-and-hour law to a municipal transit authority. The Court reasoned that states’ interests are protected primarily through their representation in Congress, not through judge-made immunities.

Other examples of generally applicable federal regulation applied to states:

Federal employment-discrimination laws applied to state agencies as employers.
Federal safety standards applied to state-run railroads or utilities that operate in interstate commerce.
Federal environmental rules applied to state-owned facilities (e.g., a state-owned power plant) on the same terms as private plants.

Similarly, generally applicable federal taxes—such as a federal income tax on state employees or a federal excise tax on certain transactions—are permissible even when they reach state entities.

7. Regulations or Taxes that Target States Alone

By contrast, the Tenth Amendment has more force when Congress attempts to regulate or tax states as states, rather than as participants in a generally regulated market. If a federal law imposes special duties or taxes only on state governments, that law is more likely to be struck down.

Examples of problematic measures:

A federal statute that imposes a payroll tax only on state and local governments, but not on comparable private employers.
A federal law that requires only state agencies (not private entities) to perform a specific regulatory function.

Such measures raise the concern that Congress is using its powers to control state governments, not merely to regulate commerce or other matters within its enumerated powers. This concern is most visible in the anti-commandeering doctrine, discussed next, but it also informs analysis of federal taxes or regulations that single out states.

Key Term: Anti-Commandeering Principle
The rule that Congress cannot require state legislatures or state executive officials to enact, administer, or enforce a federal regulatory program.

The Anti-Commandeering Rule

The anti-commandeering principle is a core limit on federal power over states. It is rooted in the Tenth Amendment and the constitutional structure of dual sovereignty.

Congress may not:

Require state legislatures to enact particular laws;
Require state legislatures to maintain or repeal specific state laws; or
Command state executive officials (such as state police or local sheriffs) to administer or enforce federal regulatory programs.

Key Supreme Court applications:

New York v. United States: A federal law required states either to regulate radioactive waste according to federal standards or to “take title” to the waste. The Court held that Congress may not force states to regulate or take ownership as a penalty for refusing to regulate. Congress may encourage or incentivize, but not compel, states to regulate.
Printz v. United States: The Court struck down provisions of federal gun-control legislation that required local law-enforcement officers to conduct background checks on firearm purchasers. The federal government may not conscript state officers to execute federal law.
Murphy v. NCAA: The Court invalidated a federal law that prohibited states from authorizing sports gambling. Congress cannot command a state legislature not to enact a law any more than it can command that legislature to enact one. A federal law that tells states what their statutes must say violates the anti-commandeering principle.

Anti-commandeering is distinct from ordinary preemption:

If Congress regulates private conduct directly (e.g., by banning sports betting nationwide), any conflicting state law is preempted. That is valid.
If Congress does not regulate private conduct, but instead tells states what they may or may not legislate on a subject (e.g., “states may not legalize sports betting”), that is commandeering.

Importantly, anti-commandeering does not prevent Congress from:

Regulating private conduct directly, even if that displaces inconsistent state law (ordinary preemption);
Regulating state entities as market participants through generally applicable laws (e.g., regulating a state-owned utility under federal environmental law); or
Requiring state courts to apply federal law in cases within their jurisdiction (e.g., state courts hearing federal causes of action must apply federal rules).

Key Term: Market Participant
A government acting in a commercial role—as a buyer, seller, employer, or operator of a business—rather than as a regulator. Congress may regulate states in their capacity as market participants through generally applicable laws.

The last point is important: state courts are bound by the Supremacy Clause. While Congress may not order a state legislature to create a cause of action, Congress can create a federal cause of action and require state courts of general jurisdiction to hear those cases, so long as doing so does not discriminate against federal claims.

Spending Power and Indirect Regulation of States

Congress may encourage state cooperation through the Spending Power. Instead of directly ordering states to act, Congress may offer federal funds and attach conditions to their receipt.

Key Term: Conditional Spending
Congress’s use of federal funds to encourage state action by attaching conditions to grants, so long as the conditions are clearly stated, related to the purpose of the spending, and not unduly coercive.

A federal spending condition will usually be upheld if:

The condition is stated clearly, so states can make an informed choice;
The condition is related (“germane”) to the purpose of the federal program;
The condition is not so severe that it amounts to coercion—a “gun to the head”; and
The condition does not require the state to violate another constitutional provision (e.g., to discriminate on the basis of race).

The classic case is South Dakota v. Dole. Congress conditioned a fraction of federal highway funds on states adopting a minimum drinking age of 21. The Supreme Court upheld the condition because:

The condition was clear.
It related to highway safety.
The amount withheld (5% of highway funds, less than 0.5% of the state’s total budget) was not coercive.

By contrast, in the Affordable Care Act case (NFIB v. Sebelius), Congress threatened to withdraw all existing Medicaid funding from states that refused to adopt a major Medicaid expansion. Because Medicaid funds represented a very large portion (roughly 10%) of a typical state’s entire budget, the Court viewed this as coercive “economic dragooning,” not a genuine choice.

On the MBE, when you see a spending condition, ask:

Is Congress ordering the state to legislate or enforce, or simply attaching conditions to funds?
Are the conditions clear and related to the purpose of the federal program?
Is the threatened loss so large that the state effectively has no real choice?

If the program fits those criteria, it likely survives Tenth Amendment scrutiny even if Congress could not directly regulate the subject matter itself.

Taxation of Federal Employees and Instrumentalities

States may not impose taxes that directly burden the federal government or its agencies. But the federal government has consented to some state taxation of individuals who work for it.

States may:

Tax the income of federal employees who reside in the state, if the tax is part of a generally applicable scheme and does not discriminate against federal employees;
Apply general sales and use taxes to purchases made by federal employees for personal use; and
Tax private contractors’ income or property, even if the contract is with the federal government.

States may not:

Impose taxes that single out federal employees for higher rates or special burdens;
Purport to tax the United States directly (e.g., a tax on “any wages paid by the United States”); or
Impose taxes that effectively control or interfere with federal instrumentalities in performing their federal functions.

Congress has enacted statutes authorizing some state taxation of federal salaries and pensions, but those statutes typically include a nondiscrimination requirement: a state may tax federal employees’ compensation only as part of a tax that does not favor state employees over federal employees.

For example:

A state income tax that applies equally to federal and state employees is valid.
A state tax that exempts state pensions but taxes federal pensions more heavily is invalid as discriminatory.

Congress can authorize more extensive state taxation of federal operations if it chooses, but absent a clear congressional waiver, courts interpret federal immunity broadly and resolve ambiguities in favor of immunity.

Federal Taxation and Regulation of States

The intergovernmental immunity doctrine runs in both directions. Just as states may not directly tax or regulate the federal government, Congress’s ability to target states directly is constrained by the Tenth Amendment.

Federal taxation and regulation of state and local governments breaks down as follows:

Generally applicable federal taxes or regulations that cover both states and private entities are ordinarily valid. For example:
- Congress may impose a federal income tax on state employees’ salaries.
- Congress may require state employers (including state universities or agencies) to comply with federal wage-and-hour laws.
- Congress may tax interest earned on state bonds as part of a general tax scheme, so long as it does not single out states for unfavorable treatment.
Federal laws that single out state governments for special burdens—taxes or regulations that apply only to states—raise more serious Tenth Amendment concerns. A federal tax that falls solely on state governmental entities (and not on comparable private entities) may be invalid as an impermissible attempt to control state governments rather than regulate the economic activity at issue.

For exam purposes, the pattern is:

If Congress is treating states similarly to private actors under a general regulatory or taxing scheme, the law is usually upheld.
If Congress is targeting states as states, especially by forcing them to legislate or administer a federal program, the law is vulnerable under anti-commandeering/Tenth Amendment analysis.

Two important exceptions allow Congress to impose obligations on states that might otherwise raise federalism concerns:

Key Term: Civil Rights Enforcement Power (Section 5 of the Fourteenth Amendment)
Congress’s power to enforce the substantive provisions of the Fourteenth Amendment by enacting remedial or preventive legislation aimed at states that violate, or are likely to violate, constitutional rights.

Key Term: Section 5 of the Fourteenth Amendment
The provision authorizing Congress to enforce the Fourteenth Amendment’s substantive rights (such as due process and equal protection) by enacting “appropriate legislation,” including, in some circumstances, authorizing suits against states.

Civil Rights Enforcement: Congress may use its enforcement powers under the Fourteenth and Fifteenth Amendments to restrict state activities that threaten civil rights. For example:
- Invalidating state literacy tests for voting, even though states generally control voter qualifications.
- Requiring preclearance of certain state voting changes to prevent racial discrimination in voting.
Spending-Power Conditions: As discussed above, Congress may indirectly influence state policy by conditioning federal funds, even in areas where it could not directly regulate, so long as the conditions satisfy the constitutional limits on conditional spending.

Immunity of State Officers and Federal Officers

Intergovernmental immunities also affect the liability and regulatory exposure of individual officers. This is where intergovernmental immunity, sovereign immunity, and individual officer liability intersect.

Key Term: Sovereign Immunity
The principle that governments are generally immune from suit for damages unless they consent. It is distinct from, but related to, intergovernmental immunity from taxation and regulation.

Key Term: Prospective Injunctive Relief
A court order directing a government official to comply with the Constitution or federal law in the future, rather than awarding money damages for past conduct.

Federal Officers

State governments may not regulate federal officers in a way that interferes with their performance of federal duties. Under the Supremacy Clause:

States cannot require federal officers to obtain state permits or licenses if that would give the state effective control over a federal function (for example, requiring a federal postal worker to obtain a state driver’s license solely as a condition of driving a mail truck in the course of duty).
State criminal or civil laws of general application may be enforced against federal officers, but not where doing so would effectively penalize them for carrying out federal law.

If a federal officer is prosecuted or sued under state law for conduct that federal law authorized or required, the officer may raise the Supremacy Clause as a defense. Courts then decide whether the officer:

Acted within the scope of federal authority; and
Used means that were “necessary and proper” to execute that authority.

Suits against federal officers also raise issues of sovereign immunity. A suit nominally against an officer may, in substance, be a suit against the United States if:

The judgment would be satisfied out of the federal treasury; or
The relief sought would interfere with federal administration (e.g., by invalidating an entire federal program).

Such suits are barred unless the United States has consented (for example, via a statute authorizing suit).

However, specific relief (often injunctive or declaratory) against a federal officer will be allowed where the officer:

Acts beyond statutory authority; or
Exercises valid authority in an unconstitutional manner.

Key Term: Ultra Vires
Action taken beyond the legal power or authority granted to an official. Officers acting ultra vires are not protected by sovereign immunity to the same extent as those acting lawfully.

Additionally, Congress has provided certain statutory protections to federal officials in tort, such as the Westfall Act, which substitutes the United States as the defendant for many state-law tort claims arising from acts within the scope of federal employment. Those protections are part of tort-based sovereign immunity and do not change the constitutional rules on intergovernmental tax and regulatory immunities.

State Officers

State officers are not immune from direct federal regulation and may be held personally liable for violating federal law. For example:

State officials may be sued under 42 U.S.C. § 1983 for money damages in their personal capacity when, acting under color of state law, they violate federal constitutional rights.

Key Term: Section 1983
A federal statute authorizing suits for damages and equitable relief against state and local officials (and, in some cases, local governments) who, under color of state law, violate federal constitutional or statutory rights.

State officials may be sued in their official capacity for prospective injunctive relief to stop ongoing violations of federal law. This is the classic Ex parte Young–type suit.

Key Term: Ex parte Young Doctrine
The legal fiction that allows suits in federal court for prospective injunctive relief against state officers who are enforcing unconstitutional state laws, even though the state itself is immune from damages.

Under Ex parte Young:

A private plaintiff may sue a state officer in federal court to enjoin enforcement of a state law alleged to violate federal law.
The relief must be prospective (to stop ongoing or future violations), not retroactive monetary damages from the state treasury.

However, suits that effectively seek damages from the state treasury—rather than from the officer personally—are treated as suits against the state and are limited by the Eleventh Amendment, discussed next.

State officers also have defenses such as qualified immunity in § 1983 actions (protecting them unless they violated clearly established federal law), but that doctrine is part of individual-rights analysis rather than intergovernmental immunity.

Eleventh Amendment and State Sovereign Immunity

The Eleventh Amendment is a separate but related doctrine that limits suits against states in federal court. It reflects a form of state sovereign immunity.

Key Term: Eleventh Amendment
A constitutional limitation that bars most suits in federal court for damages against a state by private parties, unless the state consents or Congress validly abrogates that immunity under Section 5 of the Fourteenth Amendment.

Key Term: State Sovereign Immunity
The broader constitutional principle that states, as sovereigns, are generally immune from suits for damages brought by private parties without their consent, especially in federal court, subject to limited exceptions and valid congressional abrogation.

In general:

A state may not be sued in federal court by its own citizens or citizens of another state for money damages, unless the state clearly waives its immunity.
The Amendment also bars suits in federal court by foreign citizens against states.
The United States may sue a state without its consent.
One state may sue another state, with such suits falling within the Supreme Court’s original jurisdiction.
Political subdivisions (cities, counties, school districts) do not share Eleventh Amendment immunity; they may be sued directly in federal court.

Eleventh Amendment immunity extends not only to the state itself, but also to state agencies and departments where the judgment would be paid from the state treasury. It does not protect local governments, which can be sued directly under § 1983 and other federal statutes.

Congressional Abrogation of State Immunity

Congress can abrogate state sovereign immunity only when:

It clearly expresses its intent to do so in the text of the statute; and
It acts pursuant to a valid grant of constitutional authority—most often, Section 5 of the Fourteenth Amendment.

Congress may not abrogate state immunity simply by relying on its Article I powers (such as the Commerce Clause). That is, Congress cannot say “states may be sued for damages” in a statute enacted solely under the Commerce Clause and thereby overcome Eleventh Amendment immunity.

When Congress acts under Section 5 of the Fourteenth Amendment, abrogation is permissible if:

The statute is aimed at remedying or preventing violations of Fourteenth Amendment rights; and
The legislation is “congruent and proportional” to the pattern of constitutional violations it seeks to address.

Thus, Congress may authorize private damages actions against states for some forms of discrimination that violate the Fourteenth Amendment, but not for every type of statutory violation.

Examples (conceptual, not exhaustive):

Congress can permit private damages suits against states for intentional race discrimination in employment (an equal protection violation).
Congress may not be able to authorize damages suits against states for failing to meet minimum-wage standards purely as an economic regulation under the Commerce Clause.

Intersovereign Litigation

Intergovernmental immunity and Eleventh Amendment immunity interact with the rules governing who may sue whom:

United States v. State: The United States may sue a state without the state’s consent. Eleventh Amendment does not bar such suits.
State v. United States: A state may sue the United States only when Congress has consented to such suits, usually by statute.
State v. State: One state may sue another state directly in the Supreme Court, which has original (and often exclusive) jurisdiction over such controversies. Eleventh Amendment does not prevent suits by one state against another.

On the MBE, be alert to who the plaintiff is:

If the plaintiff is a private individual seeking damages from a state in federal court, Eleventh Amendment immunity is the central issue.
If the plaintiff is the United States or another state, Eleventh Amendment immunity is generally no bar.

Relationship Between Eleventh Amendment and Officer Suits

As noted earlier, suits against state officers for prospective injunctive relief under the Ex parte Young doctrine are allowed, despite Eleventh Amendment immunity. The logic:

The suit is formally against the officer, not the state.
The relief is future-oriented, to stop an ongoing violation of federal law.

Suits seeking retroactive monetary damages payable from the state treasury, however, are treated as suits against the state itself and are barred unless the state consents or Congress validly abrogates immunity.

Distinguishing Intergovernmental Immunity from Tort Immunity

The word “immunity” also appears in tort law. Under sovereign immunity doctrines (often modified by statutes like the Federal Tort Claims Act and state tort claims acts), governments have historically been immune from tort suits unless they consented.

Those tort immunities determine:

When an injured person can sue the federal or state government for negligence or intentional torts; and
When government officials are personally immune from tort liability for discretionary acts.

Key Term: Federal Tort Claims Act
A federal statute that waives the United States’ immunity for many torts committed by federal employees acting within the scope of employment, while retaining immunity for certain intentional torts and discretionary functions.

Key Term: Governmental Function
A function traditionally and uniquely performed by government (e.g., policing, operating courts). Many tort-claims statutes retain immunity for such functions.

Key Term: Proprietary Function
A function that could just as easily be performed by a private entity (e.g., operating a parking lot or utility). Many tort-claims statutes treat governments more like private actors and provide less immunity for such functions.

Key features of tort-based governmental immunity (high level, for contrast):

The Federal Tort Claims Act allows suits against the United States for many forms of negligence, but retains immunity for:
- Certain intentional torts (such as assault, battery, false imprisonment, and defamation);
- Discretionary functions at the policy-making level.
Most states have similar tort-claims acts governing when the state or municipalities may be sued.
Many statutes distinguish between governmental functions (where immunity is broader) and proprietary functions (where governments are treated more like private parties).

These tort doctrines are conceptually separate from intergovernmental tax and regulation immunities, which address structural limits on how far one sovereign can tax or regulate another. On the MBE, make sure you apply the correct doctrine for the question’s subject:

Constitutional Law for intergovernmental tax/regulation issues, anti-commandeering, and Eleventh Amendment questions.
Torts for questions about negligence liability of governments and government officials under tort-claims statutes.

Worked Example 1.1

A state passes a law imposing a special tax on the income of all federal employees working within the state, but not on other residents. Is this tax constitutional?

Answer:
No. The federal government and its employees are immune from discriminatory state taxation. A tax that imposes a higher burden on federal employees solely because of their federal employment is invalid. States may tax federal employees only under a generally applicable, nondiscriminatory scheme that applies equally to similarly situated workers (e.g., all residents’ wage income).

Worked Example 1.2

Congress enacts a statute requiring state legislatures to pass laws banning the sale of a certain product. Is this statute valid?

Answer:
No. The anti-commandeering principle prohibits Congress from requiring states to enact specific legislation. Congress may regulate the product directly (for example, under the Commerce Clause) or encourage state action through conditional funding, but it cannot compel state legislatures to pass particular laws.

Worked Example 1.3

A state imposes a general sales tax that applies to all purchases, including those made by federal agencies. The tax is collected from vendors at the time of sale and is the same rate for all buyers. Is this tax valid?

Answer:
Yes. If the tax is nondiscriminatory and applies equally to all purchasers, including the federal government, and its legal incidence falls on the vendor, the tax is generally permissible. States may not impose taxes that specifically target federal agencies or that interfere with their operations, but incidental burdens from neutral taxes are allowed.

Worked Example 1.4

A federal statute requires local sheriffs to conduct background checks on firearm purchasers and to report the results to a federal database. The statute applies only to state and local law-enforcement officials, not to private entities. Is the statute constitutional?

Answer:
No. This is a classic anti-commandeering problem. Congress is compelling state executive officials to administer and enforce a federal regulatory program. Under cases like Printz, Congress may not commandeer state officers in this way, even when the substantive regulation (e.g., background checks) would be within Congress’s enumerated powers if enforced by federal officials.

Worked Example 1.5

Congress offers states additional highway funds on the condition that they adopt a 21-year-old minimum drinking age. Only 5% of each state’s highway funds will be withheld for noncompliance. A state challenges the condition under the Tenth Amendment. How should a court rule?

Answer:
The condition is likely constitutional. Congress is using the Spending Power, not directly ordering the state legislature to act. The condition is clearly stated, relates to highway safety, and the amount withheld is relatively modest. It is an incentive, not coercive “gun to the head” pressure. Thus, the arrangement does not violate the Tenth Amendment.

Worked Example 1.6

Congress passes a law requiring all employers, including state universities, to provide a federal minimum wage and overtime pay to their employees. A state university claims that, as a state entity, it is immune from such regulation. Is the university correct?

Answer:
No. This is a generally applicable federal regulation that covers both private and public employers. Under modern doctrine (e.g., Garcia), the Tenth Amendment does not exempt state employers from such laws. Congress may regulate state activities directly through generally applicable laws enacted under its enumerated powers.

Worked Example 1.7

Congress enacts a statute regulating the sale of driver information by all “persons who maintain motor vehicle records,” including state departments of motor vehicles and private database companies. The law prohibits selling such data without the driver’s consent. A state argues that the law unconstitutionally commandeers state agencies. How should a court rule?

Answer:
The statute is likely constitutional. Congress is regulating states as data holders in the same way it regulates private database companies, not ordering state legislatures to enact laws or commanding state officials to administer a federal program. This is a generally applicable regulation of market participants, not anti-commandeering. It is akin to Reno v. Condon, where a similar law was upheld.

Worked Example 1.8

A private citizen sues a state in federal court for money damages under a federal statute enacted solely under the Commerce Clause. The statute contains a clear statement that “states shall be subject to suit in federal court.” The state asserts Eleventh Amendment immunity. What result?

Answer:
The state’s immunity prevails. Although Congress clearly expressed an intent to subject states to suit, it acted under the Commerce Clause (an Article I power), which does not allow Congress to abrogate Eleventh Amendment immunity. Congress may abrogate state immunity only when legislating under a valid enforcement power such as Section 5 of the Fourteenth Amendment.

Worked Example 1.9

A business owner sues the state attorney general in federal court, seeking an injunction preventing enforcement of a newly enacted state statute that allegedly violates the federal Constitution. The owner does not seek damages. The state moves to dismiss based on the Eleventh Amendment. How should the court rule?

Answer:
The suit may proceed. Under the Ex parte Young doctrine, a private party may seek prospective injunctive relief against a state officer who is enforcing an unconstitutional law. Because the relief is forward-looking and does not require payment of damages from the state treasury, the Eleventh Amendment does not bar the action.

Worked Example 1.10

A federal immigration officer uses force to arrest a noncitizen in a manner authorized by federal law but arguably violating a state assault statute. The state seeks to prosecute the officer for assault. May the officer assert intergovernmental immunity as a defense?

Answer:
The officer can raise the Supremacy Clause as a defense, arguing intergovernmental immunity. If the officer acted within the scope of federal authority and used means that federal law authorized or required, the state may not criminally punish the officer for those actions. State criminal laws of general application cannot be applied to penalize federal officers for carrying out valid federal duties.

Exam Warning

The MBE may test subtle distinctions between direct and indirect taxation or regulation. Always ask whether the law targets the federal government (or state governments) specifically, or applies generally to all.
Do not confuse anti-commandeering with ordinary preemption. A federal law that directly regulates private conduct and conflicts with state law may preempt that law without commandeering states. Commandeering occurs when Congress controls the state’s legislative or executive machinery.
Distinguish intergovernmental immunity questions from Eleventh Amendment questions. One asks whether a sovereign may be taxed or regulated; the other asks whether a sovereign may be sued for damages in federal court.
Distinguish constitutional immunities from tort-based sovereign immunities. A question about whether a city can be sued for negligent maintenance of roads is almost certainly a Torts question, not an intergovernmental immunity problem.

Revision Tip

Remember: Congress cannot force states to legislate or enforce federal law, but it can regulate states directly under generally applicable federal laws and can use conditional funding to encourage state cooperation.
When state taxes or regulations burden the federal government, look for (1) discrimination against federal interests and (2) whether the law targets the federal government directly or is generally applicable.
When federal laws burden states, ask whether Congress is regulating states as ordinary market participants under a generally applicable scheme, or instead commanding the states’ legislative or executive processes.
When you see a damages suit against a state in federal court, ask whether Eleventh Amendment immunity applies and whether Congress has validly abrogated it under Section 5 of the Fourteenth Amendment.
When a suit is nominally against a government officer, ask:
- Is the real party in interest the government (judgment paid by the treasury)?
- Is the relief prospective injunctive relief (Ex parte Young) or retroactive damages?

Key Point Checklist

This article has covered the following key knowledge points:

Intergovernmental immunity limits how far states may tax or regulate the federal government, and vice versa.
The federal government is generally immune from direct state taxation and regulation; states may impose nondiscriminatory, indirect taxes that apply equally to private parties and federal employees or contractors.
The focus in tax cases is on the legal incidence of the tax and whether the tax discriminates against the federal government or those dealing with it.
States are not immune from generally applicable federal regulation and taxation enacted under Congress’s enumerated powers.
The Tenth Amendment, through the anti-commandeering principle, prohibits Congress from compelling states to enact, maintain, or enforce federal regulatory programs.
Congress may influence state policy indirectly via the Spending Power, but conditions must be clear, related to the program, not unduly coercive, and not require states to violate other constitutional provisions.
Congress may use its Fourteenth and Fifteenth Amendment enforcement powers to impose obligations on states to protect civil rights, including abrogating state immunity in some circumstances.
Federal and state officers enjoy limited protections: federal officers are shielded from state control when carrying out federal duties, while state officers may be sued for violating federal law, especially for prospective injunctive relief or personal-capacity damages under § 1983.
The Eleventh Amendment bars most damages suits against states in federal court unless the state consents or Congress validly abrogates immunity under Section 5 of the Fourteenth Amendment.
Suits for prospective injunctive relief against state officers under the Ex parte Young doctrine are permitted despite Eleventh Amendment immunity.
Tort-based sovereign immunity (e.g., under the Federal Tort Claims Act or state tort claims acts) is distinct from the intergovernmental tax and regulation immunities tested in Constitutional Law.

Key Terms and Concepts

Supremacy Clause
Tenth Amendment
Intergovernmental Immunity
Direct Taxation or Regulation
Federal Instrumentality
Indirect Taxation
Nondiscriminatory Tax
Discriminatory Tax
Preemption
Legal Incidence of a Tax
Anti-Commandeering Principle
Conditional Spending
Market Participant
Sovereign Immunity
State Sovereign Immunity
Prospective Injunctive Relief
Eleventh Amendment
Section 5 of the Fourteenth Amendment
Civil Rights Enforcement Power (Section 5 of the Fourteenth Amendment)
Section 1983
Ex parte Young Doctrine
Ultra Vires
Federal Tort Claims Act
Governmental Function
Proprietary Function

The relation of nation and states in a federal system - Inte...