By Curt A. Levey
The Legal Times, July 12, 1999
The highlight of the Supreme Court’s just-ended term may well have come on its last day, June 23, when a trio of decisions expanded the boundaries of state sovereign immunity and prompted talk of a constitutional sea change. The cases cap a decade of resurgent federalism, which former Solicitor General Walter Dellinger has described as “one of the three or four major shifts in constitutionalism we’ve seen in two centuries.” While such talk may well be premature, it is now clear that the Court is unabashedly pursuing a federalism agenda.
The three cases –each involving state immunity from federal claims brought by private parties–were decided by identical 5-4 vote. Chief Justice William Rehnquist and Justices Sandra Day O’Connor, Antonin Scalia, Anthony Kennedy and Clarence Thomas formed the majority in each decision.
In Alden v. Maine, 67 U.S.L.W. 4601, the issue was whether Maine could be sued in its own courts under the Fair Labor Standards Act (FLSA). The suit by state probation officers seeking overtime pay was filed in state court after a federal court dismissed it on sovereign immunity grounds. But the state court route is now blocked as well after the Supreme Court ruled that sovereign immunity from federal claims extends to state courts. Writing for the majority, Justice Kennedy noted that “were the rule to be different here, the National Government would wield greater power in the state courts than in its own judicial instrumentalities.”
The other two cases—Florida v. College Savings Bank, 67 U.S.L.W. 4580, and College Savings Bank v. Florida, 67 U.S.L.W. 4590– involved federal litigation between a savings bank and the state of Florida concerning the bank’s patented college investment plan. The bank claimed violations of federal patent and trademark law. The Supreme Court threw out both claims, ruling that Congress exceeded its constitutional authority when it authorized private suits against states for patent infringement and Lanham Act violations
The sharpest point of debate in the three decisions was the majority’s contention, summarized in Alden, that “the scope of the States’ immunity from suit is demarcated not by the text of the [11th] Amendment alone but by fundamental postulates implicit in the constitutional design.”
The more liberal Justices, who have been known to find a constitutional penumbra or two of their own, nonetheless complained bitterly about this extratextual interpretation. Dissenting in Alden, Justice David Souter accused the majority of inventing “a conception of state sovereign immunity that is true neither to history nor to the structure of the Constitution.” Souter called the majority view “unrealistic,” “indefensible,” and probably “fleeting.”
The significance of Alden and the College Savings cases may well lie more with their relationship to other recent federalism decisions than with the substance of the decisions themselves. In particular, the three cases clearly demonstrate that the Supreme Court meant what it said in Seminole Tribe v. Florida, 517 U.S. 44 (1996), and City of Boerne v. Flores, 521 U.S. 507 (1997). In Seminole, the Court said that Congress cannot abrogate state immunity under its Article I powers, but the justices reiterated that explicit abrogation is permitted under the enforcement clause (§ 5) of the 14th Amendment. After Alden, the Seminole analysis clearly applies to federal claims in both state and federal court.
With the Article I route to abrogation blocked by Seminole, and the state court option blocked by Alden, Congress and sympathetic courts will be tempted to characterize federal statutes as enforcement clause enactments. Yet that route is narrower after City of Boerne, which restricted Congress’ ability to legislate under the enforcement clause by demanding “congruence and proportionality” between 14th Amendment violations by the states and Congress’ chosen remedy.
The Supreme Court presumed in the Alden and decided in the College Savings cases that Congress could not rely on its enforcement clause authority to abrogate state sovereignty under the applicable federal statutes. The Court explored the City of Boerne congruence and proportionality requirement at length in the context of patent law, but ultimately concluded that the requirement had not been met, because “Congress identified no pattern of patent infringement by the States, let alone a pattern of constitutional violations.”
The Court’s continued use of the City of Boerne test this term, in combination with Seminole, suggests that sovereign immunity stands as a meaningful limit on federal power. This calls into question the viability of private claims against states under federal accommodation statutes – like the Family and Medical Leave Act and the Americans with Disabilities Act (ADA) The problem those statutes seek to remedy is not one of similarly situated persons being treated differently, the hallmark of an equal protection violation. Thus, there is arguably no 14th Amendment violation for Congress to remedy, causing the statute to fail City of Boerne’s congruence and proportionality test. Harvard law professor Laurence Tribe, who once dismissed the congruence and proportionality test as “rhetoric” now concludes that it is “very clear that even when there is a Fourteenth Amendment right at stake, the court will scrutinize very closely whether congressional legislation is really necessary.”
Alden and the College Savings cases confirm and strengthen a decade-long resurgence of federalism, guided by the same five justices who prevailed last month. The Court has come a long way since Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985), declared that the states would have to depend on the political process to protect their sovereignty.
The rebirth of federalism began rather humbly with the Court’s 1992 decision in New York v. U.S., 505 U.S. 144. Together, New York and Printz v. U.S., 521 U.S. 898 (1997), prohibit Congress from commandeering a state’s legislative or executive branches to administer or enact federal regulations. Seminole, along with Alden and the College Savings cases, represent another facet of protecting state sovereignty. Specifically, they constrain Congress’ ability to impose federal mandates on the states by way of private lawsuits, a favorite Congressional technique. The boldest of the decade’s federalism decisions are certainly City of Boerne and United States v. Lopez, 514 U.S. 549 (1995), which resurrected the enumerated powers doctrine by setting limits on Congress’ authority to legislate under the enforcement and commerce clauses.
Although the rebirth of federalism in the 1990’s has been remarkable, the hysterical reaction from critics of last month’s trio of decisions seems exaggerated. Tribe warns of “pernicious consequences for the enforcement of federal statutes across the board,” while other analysts see a return to antebellum days or even the Articles of Confederation.
If the critics’ reaction is exaggerated, it’s largely because the impact of the federalism revival has so far been muted by the cases the Court has used to make its statements about state sovereignty and the limits on federal power. The Court has steered clear of hot-button issues, refraining from invalidating any popular statute or angering the potent civil rights constituencies most likely to force a constitutional showdown. Only tribes were angry when Seminole limited suits under the Indian Gaming Regulatory Act. Lopez and Printz, both involving federal gun control, were decided in the halcyon days before Littleton, when the National Rifle Association still dominated the issue. The usual supporters of plenary federal authority were predictably silent when City of Boerne struck down the Religious Freedom Restoration Act, a favorite of the religious right. And who ever heard of the Low-Level Radioactive Waste Policy Act at issue in New York?
This term was no different. Sure, organized labor has an interest in seeing the FLSA enforced against state employers, but that interest was apparently not great enough to prompt any amicus briefs in Alden from traditional labor organizations. And, while elements of the business community might be concerned about holes in patent and trademark protection, business leaders were noticeably silent when the College Savings decisions came down. Compare the muted reaction of the business community to the outcry generated last month by the disabled when the Supreme Court interpreted the ADA to exclude correctable impairments. No wonder the Court sidestepped the federalism issue raised below when it decided Olmstead v. L.C., 67 U.S.L.W. 4567, another of this term’s ADA cases.
Observers are left to wonder whether the Supreme Court will continue to advance its federalism agenda, even when that means striking down statutes supported by politically potent groups like the National Association for the Advancement of Colored People, National Organization for Women, and the Sierra Club? If the Court ultimately shrinks back from the implications of its agenda and declines to tackle the volatile issues at the forefront of the American political debate, the rebirth of federalism will have limited impact. But perhaps, the conservative coalition on the Court is methodically laying the groundwork for a true federalism revolution, using precedents that won’t set off a political counterattack until it’s too late. Then again, the pro-federalism justices may simply be content to push their agenda up to, but not over, the water’s edge.
In the short term, feminist advocacy groups appear most likely to disturb the quiet march of federalism. In contrast to the noticeable absence of traditional labor groups among the Alden amici, the leading feminist advocacy groups have been involved directly and as amici in two high-profile cases this year that pitted federalism against feminism. In Davis v. Monroe County Board of Education, 119 S.Ct. 1661 (1999), a quasi-federalism case decided in May, the Court avoided a showdown with feminist groups when it ruled 5-4 that schools are liable under Title IX for student-on-student sexual harassment if they fail to take appropriate measures to stop it.
On the other hand, the U.S. Court of Appeals for the 4th Circuit, braved an outcry from women’s groups when it struck down the civil remedy provision of the federal 1994 Violence Against Women Act in Brzonkala v. Virginia Polytechnic Institute, 169 F.3d 820 (4th Cir. 1999) (en banc). The court held that the provision, which allows victims of gender-motivated violence to seek damages and other relief, was not authorized under either the commerce clause or the 14th Amendment’s enforcement clause. Supreme Court watchers predict that this enumerated powers case will reach the Court’s docket in the coming term.
The importance of Davis lies primarily in the vote of Justice O’Connor, who wrote the majority opinion. She was clearly the swing vote in that case, abandoning the five-justice coalition that prevailed in the Alden and College Savings decisions. Her switch was all the more notable because of the Kennedy concurrence she joined four years earlier in Lopez. Their concurring opinion emphasized that “education is a traditional concern of the States,” and as such, the Court has “a particular duty to insure that the federal-state balance is not destroyed.” Yet caught between her commitment to federalism and her feminist sympathies, O’Connor sided with the latter in Davis, making federal judges and bureaucrats the final arbiters of what constitutes appropriate discipline in the classroom.
Although the Lopez and City of Boerne suggests that the Supreme Court would affirm Brzonkala, O’Connor’s choice of feminism over federalism in Davis suggests just the opposite. Should the Court affirm Brzonkala, it will cast grave doubt on Congress’ power to enact hate crime statutes and send a strong signal that that the Court meant what it said in Lopez– Congress’s commerce clause authority really is limited to those activities that substantially affect interstate commerce. Thus, Brzonkala could do for Lopez what Alden and the College Savings cases have done for Seminole and City of Boerne. On the other hand, if the Court is determined to build its federalism jurisprudence without touching volatile issues, it may surprise observers and refuse to hear the case.
In the end, the outlook for the Court’s federalism doctrines depends more on future appointments than on the Court’s caseload. The survival of the decade’s modest federalism gains may hinge on a single appointment. The four dissenters in last month’s trio of cases– Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer– can be counted on to dismantle those gains the first chance they get. And they will very likely get that chance if a Democrat wins the White House in 2000 — after all, Rehnquist is 74 and O’Connor is 69.
Regardless of future appointments, there is little doubt that Alden and College Savings will be remembered for their contribution to the cause of state sovereignty and the broader federalism agenda. And if the modest advance of federalism in the 1990’s ultimately grows into a full-fledged constitutional revolution, last month’s trio of decisions may loom even larger in retrospect than they appear today.
Curt A. Levey is director of legal and public affairs at the Center for Individual Rights, a nonprofit, public interest law firm in Washington, D.C. that specializes in civil rights, sexual harassment, federalism and the First Amendment. CIR represents Tony Morrison, one of the defendants in Brzonkala v. Virginia Polytechnic Institute, 169 F.3d 820 (4th Cir. 1999).