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An increasing number of America’s most contentious issues will be resolved in state legislatures. Consequently, the ability of litigants to seek judicial review of a legislature’s actions is becoming more important. The scope of state legislative immunity, a federal common-law defense that provides state legislators with absolute immunity against certain lawsuits, will also increase in importance. A recent case involving New Hampshire’s legislature raises two significant questions about the scope of state legislative immunity. The first question entails how the United States Congress can abrogate the immunity, and the second question is whether legislators may claim the immunity when a legislature’s rule effectively ousts other members.

In Part I, I provide an overview of the recent New Hampshire case, Cushing v. Packard. Part II discusses the Speech or Debate Clause of the U.S. Constitution and state legislative immunity. Part III explains the various clear statement rules applied by courts. Part IV argues that abrogating state legislative immunity requires a clear statement, akin to the heightened requirements of abrogating sovereign immunity or altering the usual balance of powers between the states and federal government. This best safeguards the underlying values of federalism that the immunity protects. Part V considers limitations on the scope of legislative immunity. I contend that courts should review claims by state legislators, who allege that they have effectively been ousted by legislative rules, by analyzing whether the rule is neutral and generally applicable, in light of the framework provided under the Free Exercise Clause. Furthermore, the rule must have a rational connection to the legislative process. These limitations will best promote the immunity’s underlying rationale, which is to enable lawmakers to better represent their constituents.



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