Accountable to None? Challenging Sovereign Immunity Through the Trafficking Victims Protection Act

Abstract

Although amendments to the Trafficking Victims Protection Act (TVPA) have opened the door to greater corporate liability, government liability under the TVPA remains murky. A critical barrier that plaintiffs suing government entities confront is the broad protection from suit that states enjoy under the Eleventh Amendment. One of the few exceptions to this protection is congressional abrogation of state sovereign immunity. In 1996, the Supreme Court held in Seminole Tribe of Florida v. Florida that to abrogate state sovereign immunity, Congress must do so pursuant to a valid source of power. It further held that this valid source includes Congress’s Fourteenth Amendment enforcement powers, but not its Article I powers. Although some courts interpreting the TVPA have noted its roots in the Commerce Clause of the Constitution (an Article I power), others reason that Congress enacted it pursuant to its Thirteenth Amendment enforcement power. This Note argues that Congress enacted the TVPA based on the Thirteenth Amendment, and therefore, suits against state defendants present a novel legal issue: can Congress abrogate state sovereign immunity pursuant to its power to enforce the Thirteenth Amendment? This Note answers in the affirmative. It contends that plaintiffs suing states under the TVPA have an opportunity to simultaneously seek remedy for violations of their rights, while also chipping away at restrictive abrogation precedent that continues to protect states at a high cost to individuals.