Franchise Tax Bd. of Cal. v. Hyatt (14-1175)

argument 14-1175

Franchise Tax Bd. of Cal. v. Hyatt

Supreme Court of the United States 1h 1m 5 speakers 8 chapters transcribed 7 days ago official recording ↗

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Why did the Founders embed sovereign immunity into the Constitution?

Donald B. Verrilli Jr. 0:00

Their argument next in Case 14-1175, Franchise Tax Board of California v. Hyatt. Mr. Clement. Mr. Chief Justice, and may it please the Court, the States entered the Union saddled with substantial war debts. As a result, critics of the Constitution were quick to point out any possibility that the States could be hailed into court by individual citizens without their consent in order to secure potentially bankrupting judgments. When this Court opened up the possibility of just such a judgment by allowing Chisholm, a South Carolina citizen, to sue the sovereign state of Georgia in this Court, the nation quickly and emphatically reacted with the 11th Amendment that eliminated the possibility of such a suit even in this most neutral of federal forums.

Donald B. Verrilli Jr. 0:51

Regardless of all that, Respondent's position is that if Chisholm had turned around and sued Georgia in South Carolina State Court, and South Carolina, in its unreviewable discretion, decided to exercise jurisdiction over the sovereign state of Georgia.

Anthony M. Kennedy 1:07

There is nothing in federal law. There's one significant difference there, Mr. Clement, which is that states are on a par with each other. So there's a kind of mutuality. So if one state does something to you that you don't like, you can turn it around and do it to them. And that mutuality also makes it less likely that the State will do that thing to you in the first place because they know that. So I think what Mr. Farr says is the fact that there was this outrage with respect to a federal court might not have registered in quite the same way when States were aware that they were on a par with each other and that they had many weapons that they could use against each other.

Donald B. Verrilli Jr. 1:50

Well, Justice Kagan, here's why I disagree, and because most of the weapons that independent nations would use vis-a-vis each other to ensure that sovereign immunity as of comedy did not become sovereign immunity in name only are precisely the tools that the states surrendered to the national government in the plan of the conventions. So if South Carolina has

Anthony M. Kennedy 2:13

— JUSTICE KAGAN. Well, for sure, Mr. Clement, you know, you couldn't go to war with the neighboring State anymore. And that's a difference. But you could say, if you're going to treat me like that, I'm going to treat you like that. And you have other ways of dealing with a State that you wouldn't have with the Federal Government.

Donald B. Verrilli Jr. 2:31

MR. Well, Justice Kagan, two points. First, it's not just the act of war. It's the ability to impose trade sanctions. It's the ability to withdraw your ambassadors. All of that is taken away from the States.

Unknown 2:41

Is there anything in our jurisprudence or our constitutional tradition that states can protect each other by retaliating against each other?

Donald B. Verrilli Jr. 2:48

Well, that's the second point I was going to make, Justice Kennedy, which is it's an odd thing to think that the framers who had just experienced the Articles of Confederation, where they had unsatisfied judgments and the potential that if the State of New York went after the State of Georgia because Georgia hadn't complied with the requisition for funds that there'd be civil war, the idea that the way they would want sovereign immunity, which no one doubted exists, enforced, was that kind of race to the bottom.

Unknown 3:16

I thought that it was illegal for a state to ban Washington apples.

Donald B. Verrilli Jr. 3:22

Well, there is that. It's something that's implicit in the Constitution.

Unknown 3:26

This is meant to take it down to the practical level. We're not getting involved with war crimes. Take Nevada against Hall. But Justice Kagan's point is if California says that a Nevada truck coming on its California roads injuring a California resident, so Nevada is liable to the courts and the law of California. Nevada can say, fine, if a California truck comes into our state and injures Nevada people, We will do the same thing. That's what I think Justice Kagan had in mind.

Donald B. Verrilli Jr. 4:10

Absolutely. And I think that's the exact opposite of what the framers were trying to do. They weren't trying to adopt a union where there would be signs on state borders that say, if you come in here, you thereby waive any sovereign immunity and we will hail you into court.