Bulletin n. 2-3/2013
February 2014
CONTENTS
  • Section A) The theory and practise of the federal states and multi-level systems of government
  • Section B) Global governance and international organizations
  • Section C) Regional integration processes
  • Section D) Federalism as a political idea
    • Philip Tassin
    Why Treaties Can Abrogate State Sovereign Immunity: Applying Central Virginia Community College v. Katz to the Treaty Power
    in California Law Review , vol. 101, issue 3 ,  2013 ,  755-812
    Can individuals sue state governments in federal court for violations of their treaty-based rights? For a long time, the answer to the question appeared to be no - the Supreme Court's doctrine seemed to allow direct suits against states only where Congress properly used its powers under Section 5 of the Fourteenth Amendment to abrogate state sovereign immunity. But with its 2006 decision in Central Virginia Community College v. Katz, the Court opened a small breach in the seemingly insurmountable barrier of state sovereign immunity. In Katz, the Court held that state sovereign immunity did not bar a private action against a state under a federal bankruptcy statute. To reach this holding, the Court found it irrelevant whether the bankruptcy statute in question was a proper exercise of Congress's powers under Section 5. Rather, the Court concluded that just by ratifying the Constitution, the states surrendered their sovereign immunity with regard to private suits based on federal bankruptcy law. So far, Katz is unique in upholding a private right of action against a state based on an implied surrender of state sovereign immunity in the Constitution. However, its reasoning is applicable to contexts other than bankruptcy. This Comment applies Katz's analytical framework to the treaty power. After considereing the historical backdrop of the Constitutional Convention, the Framers' understanding of the treaty power and the function of the treaty power in the U.S. federal system, this Comment concludes that just by ratifying the Constitution, the states surrendered their sovereign immunity with regard to treaty-based private suits.
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