States should be treated as market participants and not be given sovereign immunity under the Eleventh Amendment when they are acting as private employers. Through an expansive reading of the Eleventh Amendment, the Supreme Court has restricted the right of state employees to sue under federal statutes intended to protect employees when the state is the employer and claims sovereign immunity. Under the market participant exception to the dormant Commerce Clause, if a state is acting as a market participant, rather than as a market regulator, it is no longer bound by the restraints of the Commerce Clause. The reasons states acting as employers should be treated as market participants rather than sovereigns are as persuasive as the arguments supporting the market participant exception. This doctrine should be transferred by analogy from its exclusive application in the dormant Commerce Clause context to include instances when states are acting as employers and thus, market participants. Traditionally, the market participant exception has worked to states' benefit, allowing them to act in the same capacity as a private company without Commerce Clause concern. As an employer, a state is not acting in its regulatory capacity. Rather, it is acting as a private actor. Therefore, it should be treated as a market participant and should not be able to evade regulation by claiming sovereign immunity. If states are going to enjoy the same benefits as private employers, they ought to be subject to the same limits as well.
State Employers Are Not Sovereign: By Analogy, Transfer the Market Participant Exception to the Dormant Commerce Clause to States as Employers,
Chi.-Kent L. Rev.
Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol79/iss2/17