Thomas, J., dissenting
And, “[t]his issue is predicate to an intelligent resolution of the question presented,” as it makes no sense to analyze whether PROMESA abrogates state sovereign immunity without first determining whether that immunity is implicated at all. United States v. Grubbs, 547 U. S. 90, 94, n. 1 (2006) (internal quotation marks omitted).[1] Because I think the Court has a duty to pass upon issues that are fairly presented, preserved by the parties, and necessary to support its judgment, I would consider whether the Board has the immunity it asserts.
From the start, the Board has asserted only that it possesses what it has called “Eleventh Amendment immunity.” The First Circuit agreed, explaining that it “has long treated Puerto Rico like a state for Eleventh Amendment purposes.” 35 F. 4th, at 14. However, the plain text of the Eleventh Amendment applies only to lawsuits brought against a State by citizens of another State. And, because CPI is a resident of Puerto Rico, I can only assume that the Board and the First Circuit meant to refer to the sovereign immunity that is inherent in the 50 States. See Allen v. Cooper, 589 U. S. ___, ___ (2020) (slip op., at 4).
As we have explained, inherent state sovereign immunity reflects the original design of the Constitution. See Franchise Tax Bd. of Cal. v. Hyatt, 587 U. S. ___, ___–___ (2019) (slip op., at 5–12). At the Founding, the “States considered
- ↑ We have often recognized the need to address such logically antecedent questions. See, e.g., Caterpillar Inc. v. Lewis, 519 U. S. 61, 75, n. 13 (1996); see also Vance v. Terrazas, 444 U. S. 252, 258–259, n. 5 (1980) (collecting cases). For example, we explained in Grubbs that it would “mak[e] little sense to address what the Fourth Amendment requires of anticipatory search warrants if it does not allow them at all.” 547 U. S., at 94, n. 1. And, in Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U. S. 47 (2006), we explained that “granting certiorari to determine whether a statute is constitutional fairly includes the question of what that statute says.” Id., at 56.
App. to Pet. for Cert. in Smith v. United States, O. T. 2022, No. 21–1576, p. 15a.
