Abrogation doctrine

The Abrogation doctrine is a doctrine of United States constitutional law which determines when and how the United States Congress may waive a state's Sovereign immunity and subject the state to lawsuits to which it has not consented (i.e., to "abrogate" their immunity to such suits).

Most of the powers delegated to Congress spring from Article One of the U.S. Constitution, and these powers cannot be used to abrogate state sovereign immunity. See Seminole Tribe v. Florida. However, the Congress can authorize lawsuits seeking monetary damages against individual U.S. states when it acts pursuant to powers delegated to it by amendments subsequent to the Eleventh Amendment. This is most frequently done pursuant to §5 of the Fourteenth Amendment, which explicitly allows Congress to enforce its guarantees on the states and thus overrides states' Eleventh Amendment sovereign immunity.

The doctrine was first announced by the United States Supreme Court in a unanimous decision written by then-Associate Justice William Rehnquist, Fitzpatrick v. Bitzer, 427 U.S. 445 (1976). Bitzer "continued the line of reasoning that Rehnquist had acknowledged in Fry v. United States ... that cases involving Congress’ authority under Section Five present different problems than cases involving Congress’ commerce clause authority." The doctrine has since developed a number of nuances and limitations. In particular, later cases explained that the Court would not infer Congressional intent to abrogate sovereign immunity, but would only uphold abrogations where Congress has "unequivocally express[ed] its intention to abrogate the Eleventh Amendment bar to suits against states in federal court." In order to do this, Congress must "mak[e] its intention unmistakably clear in the language of the statute." Atascadero State Hospital v. Scanlon, 473 U.S. 234 (1985).

Another limitation that the courts have read into Congressional power to abrogate is the "congruence and proportionality" test, first discussed in City of Boerne v. Flores, 521 U.S. 507 (1997). Because the Fourteenth Amendment allows Congress to take "appropriate" action to enforce rights, the Court has determined that such action must be congruent and proportional to the deprivation of the right that Congress is seeking to remedy. For an example of a case where an act of Congress failed the Boerne test, see Kimel v. Florida Board of Regents; for an example where an act passed the Boerne test, see Nevada Department of Human Resources v. Hibbs.