which was sovereign immunity. While it is true that where the basis of a dismissal is unclear, the jurisdictional ground controls and thus the dismissal does not preclude a future action, see Remus Joint Venture and Envl. Disposal Sys., Inc. v. McAnally, 116 F.3d 180, 184 n. 5 (6th Cir.1997); Restatement (First) of Judgments § 49 cmt. C (1949), it is not clear that a dismissal based on sovereign immunity is sufficiently jurisdictional for the purposes of claim preclusion. Compare Touvell v. Ohio Dept. of Mental Retardation & Developmental Disabilities, 422 F.3d 392, 395 (6th Cir.2005) (“The Eleventh Amendment provides a type of sovereign immunity, and deprives the federal courts of jurisdiction”), with Nair v. Oakland Cnty. Cmty. Mental Health Auth., 443 F.3d 469, 474 (6th Cir. \2006) (<HOLDING>). Undoubtedly, this is a point of heavy
holding that congress had no power under article i to abrogate state sovereign immunity holding that the exercise of judicial power under article iii of the united states constitution requires an actual case or controversy holding that dismissal pursuant to a plea to the jurisdiction based on sovereign immunity is with prejudice holding that the sovereign immunity defense may be raised for the first time on appeal recognizing that a defense based on sovereign immunity is not coextensive with the limitations on judicial power in article iii