The Imperial Sovereign: Sovereign Immunity & the ADA

Professors Brown and Parmet examine the impact of the Supreme Court's resurrection of state sovereign immunity on the rights of individuals protected by the Americans with Disabilities Act in light of the recent decision, Board of Trustees of the University of Alabama v. Garrett. Placing Garrett within the context of the Rehnquist Court's evolving reallocation of state and federal authority, they argue that the Court has relied upon a mythic and dangerous notion of sovereignty that is foreign to the Framers' understanding. Brown and Parmet go on to show that, by determining that federalism compels constraining congressional power to abrogate sovereign immunity, the Court limits the ability of individuals with disabilities to obtain federal recourse. They also contend that the Court's restriction of fora for individuals with disabilities raises significant separation of powers problems.