SUPPLEMENTAL MATERIALS ON FEDERALISM. Constitutional Law * * *

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1 SUPPLEMENTAL MATERIALS ON FEDERALISM Constitutional Law * * * Kevin Francis O'Neill Associate Professor of Law Cleveland-Marshall College of Law Cleveland State University

2 I. INTRODUCTION A. The last eight terms have seen an aggressive effort by the Court's right wing to adjust the balance of power between the federal and state governments, bolstering state sovereignty while curbing the scope of federal legislative power. B. This fight has been waged on three different fronts: 1. the 10th Amendment; 1 2. the 11th Amendment; 2 and 3. the Commerce Clause. 3 C. It is a fight that is near and dear to Chief Justice Rehnquist, who has been waging it ever since his early years on the Court. 1. National League of Cities v. Usery, 426 U.S. 833 (1976) (invoking the 10th Amendment to strike down enforcement of the federal minimum wage against state and local governments) (holding that Congress offends the 10th Amendment when it interferes with the traditional functions of state and local governments). 2. Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985) (overruling National League of Cities and holding that it does not offend the 10th Amendment to enforce the federal minimum wage against the states); id. at 580 (Rehnquist, in dissent, correctly predicts that the right wing's vision of federalism "will, I am confident, in time again command the support of a majority of this Court"). D. Because the Court has been so active in the realm of federalism over the past eight terms, I predict that you will see plenty of federalism issues on the bar exam. E. For that reason, let's review the key federalism decisions of recent years, divided into the three categories I have identified. F. We will start with the Commerce Clause, and then proceed to the 10th and 11th Amendments. 1 The 10th Amendment provides: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." 2 The 11th Amendment provides: "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." 3 Article I, Section 8, Clause 3 gives Congress express legislative power "[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." Page 1

3 II. THE COMMERCE CLAUSE A. United States v. Lopez, 514 U.S. 549 (1995) (in a 5-4 decision authored by Rehnquist, the Court struck down a federal statute barring gun possession near schools as beyond Congress's authority under the Commerce Clause) (Lopez marked the first time in 60 years that the Court had invalidated a federal statute on Commerce Clause grounds). B. United States v. Morrison, 529 U.S. 598 (2000) (voting 5-4) (per Rehnquist, C.J.) (striking down -- as an illegitimate exercise of Congressional power under the Commerce Clause -- the civil damages provision of the Violence Against Women Act, which authorized suits in federal court by victims of crimes "motivated by gender"); id. at (invoking United States v. Lopez, 514 U.S. 549 (1995), Rehnquist stressed that "the Constitution requires a distinction between what is truly national and what is truly local," holding that Congress is bereft of power to "regulate noneconomic, violent criminal conduct based solely on that conduct's aggregate effect on interstate commerce"). III. THE TENTH AMENDMENT A. New York v. United States, 505 U.S. 144 (1992) (striking down, 6-3, a federal statute that required state governments either to take title to low-level radioactive waste generated within their borders or to regulate it according to the instructions of Congress); id. at 188 (the 10th Amendment evil identified by Justice O'Connor in her majority opinion was that Congress was effectively "commandeering" the states' legislative processes). B. U.S. Term Limits v. Thornton, 514 U.S. 779 (1995) (striking down state laws limiting the number of terms that members of Congress may serve) (5-4 decision) (significant dissent by Thomas, joined by Rehnquist, Scalia, and O'Connor, in which he advances a radical revision of the Court's traditional view of federalism, asserting that the federal government owes its legitimacy not to the People as an undivided whole but, instead, to the sovereign States). C. Printz v. United States, 521 U.S. 898 (1997) (voting 5-4) (per Scalia, J.) (striking down, on federalism grounds, a part of the Brady gun-control law that required local sheriffs to conduct background checks of prospective handgun purchasers) (observing that this aspect of the federal statute violates "the very principle of separate state sovereignty," and holding that Congress cannot require states to help administer federal programs). IV. THE ELEVENTH AMENDMENT A. Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996) (holding that the 11th Amendment prevents Congress from authorizing suits by Indian tribes against states to enforce legislation enacted pursuant to the Indian Commerce Clause) (sharply curbing the power of Congress to subject states to lawsuits in federal court) (writing for a 5-4 majority, Rehnquist achieves this result by reading the 11th Amendment far more broadly than its text will admit, immunizing states not only from diversity suits but from all federal question claims except those under the 14th Amendment). Page 2

4 B. Alden v. Maine, 527 U.S. 706 (1999) (voting 5-4) (per Kennedy, J.) (expressly transcending the 11th Amendment's text by invoking "the Constitution's structure, and its history," id. at 712, the Court's right wing holds that states are immune from suit for violating federal legislation enacted by Congress under its Article I powers). C. Kimel v. Florida Board of Regents, 528 U.S. 62 (2000) (voting 5-4) (per O'Connor, J.) (continuing its extravagant expansion of 11th Amendment immunity for the states, the Court holds that Congress has no power to expose the states, as employers, to suit under the federal Age Discrimination in Employment Act). D. Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356 (2001) (under the 11th Amendment, Congress has no power to expose the states, as employers, to suit under the federal Americans with Disabilities Act). E. Federal Maritime Commission v. South Carolina State Ports Authority, 122 S. Ct (2002) (the 11th Amendment bars Congress from authorizing the Federal Maritime Commission to adjudicate complaints filed by private persons against state-run ports). F. Let's take a closer look at Alden and its implications: 1. Coming on the heels of Seminole Tribe which held that states are immune from suit in federal court for violating Article I legislation the result in Alden is to leave private plaintiffs powerless to sue in state or federal court when they believe that a state has violated their rights under federal statutory law. 2. Alden was a suit by state employees alleging that Maine had violated their rights under a federal statute, the Fair Labor Standards Act. Blocked by Seminole Tribe from suing in federal court, they sought recourse in state court, only to learn that their employer was entirely immune from suit for violating federal law. 3. In achieving this result, Justice Kennedy went far beyond the text of the 11th Amendment, which immunizes states only from suits in federal court brought by citizens of another state. 4. Asserting that "the sovereign immunity of the States neither derives from nor is limited by" the text of the 11th Amendment, Kennedy locates this sweeping new source of states' rights in "the Constitution's structure, and its history." 527 U.S. at The irony here is rich. In conferring vast new powers upon the states, the Court's right wing which prides itself on a jurisprudence rigorously confined to the Constitutional TEXT grounds this decision not upon the text but upon an amorphous conception of Constitutional "structure." Unable to point to specific language in the text, Kennedy is reduced to relying on the penumbras of the Constitution, like the liberals who found a right to privacy in Griswold v. Connecticut, 381 U.S. 479, (1965). 6. Happily, there are limits to the sweep of this decision. The federal government itself may sue on a state employee's behalf but, as the New York Times reported, the Department of Labor is not equipped to bring more than a token number of such lawsuits on behalf of the 4.8 million people Page 3

5 in this country who work for state governments. 7. The sovereign immunity recognized in Alden does not extend to suits authorized by Congress pursuant to its ' 5 enforcement power under the 14th Amendment. 8. Alden sovereign immunity does not extend to lesser governmental entities like municipalities. 9. And, finally, Alden sovereign immunity does not bar actions against state officers for injunctive or declaratory relief. 10. Nevertheless, at the end of the day, Alden v. Maine effects a vast shift in federal-state power, accomplished by means of a "structural" analysis that the right-wing textualists profess to disdain. G. In a stunning departure from this trend, the Supreme Court last term held that the 11th Amendment does NOT prevent state employees from recovering money damages in federal court for a state's failure to comply with the family-care provision of the federal Family and Medical Leave Act. Nevada Department of Human Resources v. Hibbs, 123 S. Ct (2003). 1. The family-care provision gives both men and women the right to take up to 12 weeks off without pay to care for a seriously ill family member. A Nevada state employee, William Hibbs, successfully sued the state after being denied the full 12 weeks he requested to care for his ailing wife, who was recovering from a car accident and neck surgery. 2. In an opinion by Chief Justice Rehnquist, the Court voted 6-3 to reject Nevada's claim that, under the 11th Amendment, it was immune from suit under the Family and Medical Leave Act. 3. How did the Court reconcile this result with its holdings in Kimel and Garrett where it ruled that states are immune from suit under federal laws that bar age and disability discrimination? 4. The answer is that the statute in this case (the Family and Medical Leave Act) was designed to eradicate gender discrimination in the workplace -- and gender discrimination, unlike age or disability discrimination, is subject to heightened scrutiny under the Equal Protection Clause. Accordingly, Congress has a strong basis for enacting this statute under its Fourteenth Amendment enforcement powers (the only enforcement powers that Alden leaves unscathed). 123 S. Ct. at Page 4