State sovereign immunity: Five authors in search of a theory

Notre Dame Law Review

Volumn 75, Issue 3, 2000, Pages 1011-1067

  Meltzer, Daniel J ^a  

^a HARVARD LAW SCHOOL   (United States)

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EID: 0034420325     PISSN: 07453515     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (258)

1. See, e.g., Matthew D. Adler & Seth F. Kreimer, The New Etiquette of Federalism: New York, Printz, and Yeskey, 1998 Sup. CT. REV. 71; Evan H. Caminker, State Sovereignty and Subordinacy: May Congress Commandeer State Officers to Implement Federal Law?, 95 COLUM. L. REV. 1001 (1995); Roderick M. Hills, Jr., The Political Economy of Cooperative Federalism: Why State Autonomy Makes Sense and "Dual Sovereignty" Doesn't, 96 MICH. L. REV. 813 (1998); Vicki C.Jackson, Federalism and the Uses and Limits of Law: Printz and Principle?, 111 HARV. L. REV. 2180 (1998); Martin H. Redish, Constitutionalizing Federalism: A Foundational Analysis, 23 OHIO N.U. L. REV. 1237, 1247-48 (1997); Mark Tushnet, Keeping Your Eye on the Ball: The Significance of the Revival of Constitutional Federalism, 13 GA. ST. U. L. REV. 1065 (1997).
2. See, e.g., Matthew D. Adler & Seth F. Kreimer, The New Etiquette of Federalism: New York, Printz, and Yeskey, 1998 Sup. CT. REV. 71; Evan H. Caminker, State Sovereignty and Subordinacy: May Congress Commandeer State Officers to Implement Federal Law?, 95 COLUM. L. REV. 1001 (1995); Roderick M. Hills, Jr., The Political Economy of Cooperative Federalism: Why State Autonomy Makes Sense and "Dual Sovereignty" Doesn't, 96 MICH. L. REV. 813 (1998); Vicki C.Jackson, Federalism and the Uses and Limits of Law: Printz and Principle?, 111 HARV. L. REV. 2180 (1998); Martin H. Redish, Constitutionalizing Federalism: A Foundational Analysis, 23 OHIO N.U. L. REV. 1237, 1247-48 (1997); Mark Tushnet, Keeping Your Eye on the Ball: The Significance of the Revival of Constitutional Federalism, 13 GA. ST. U. L. REV. 1065 (1997).
3. See, e.g., Matthew D. Adler & Seth F. Kreimer, The New Etiquette of Federalism: New York, Printz, and Yeskey, 1998 Sup. CT. REV. 71; Evan H. Caminker, State Sovereignty and Subordinacy: May Congress Commandeer State Officers to Implement Federal Law?, 95 COLUM. L. REV. 1001 (1995); Roderick M. Hills, Jr., The Political Economy of Cooperative Federalism: Why State Autonomy Makes Sense and "Dual Sovereignty" Doesn't, 96 MICH. L. REV. 813 (1998); Vicki C.Jackson, Federalism and the Uses and Limits of Law: Printz and Principle?, 111 HARV. L. REV. 2180 (1998); Martin H. Redish, Constitutionalizing Federalism: A Foundational Analysis, 23 OHIO N.U. L. REV. 1237, 1247-48 (1997); Mark Tushnet, Keeping Your Eye on the Ball: The Significance of the Revival of Constitutional Federalism, 13 GA. ST. U. L. REV. 1065 (1997).
4. See, e.g., Matthew D. Adler & Seth F. Kreimer, The New Etiquette of Federalism: New York, Printz, and Yeskey, 1998 Sup. CT. REV. 71; Evan H. Caminker, State Sovereignty and Subordinacy: May Congress Commandeer State Officers to Implement Federal Law?, 95 COLUM. L. REV. 1001 (1995); Roderick M. Hills, Jr., The Political Economy of Cooperative Federalism: Why State Autonomy Makes Sense and "Dual Sovereignty" Doesn't, 96 MICH. L. REV. 813 (1998); Vicki C.Jackson, Federalism and the Uses and Limits of Law: Printz and Principle?, 111 HARV. L. REV. 2180 (1998); Martin H. Redish, Constitutionalizing Federalism: A Foundational Analysis, 23 OHIO N.U. L. REV. 1237, 1247-48 (1997); Mark Tushnet, Keeping Your Eye on the Ball: The Significance of the Revival of Constitutional Federalism, 13 GA. ST. U. L. REV. 1065 (1997).
5. See, e.g., Matthew D. Adler & Seth F. Kreimer, The New Etiquette of Federalism: New York, Printz, and Yeskey, 1998 Sup. CT. REV. 71; Evan H. Caminker, State Sovereignty and Subordinacy: May Congress Commandeer State Officers to Implement Federal Law?, 95 COLUM. L. REV. 1001 (1995); Roderick M. Hills, Jr., The Political Economy of Cooperative Federalism: Why State Autonomy Makes Sense and "Dual Sovereignty" Doesn't, 96 MICH. L. REV. 813 (1998); Vicki C.Jackson, Federalism and the Uses and Limits of Law: Printz and Principle?, 111 HARV. L. REV. 2180 (1998); Martin H. Redish, Constitutionalizing Federalism: A Foundational Analysis, 23 OHIO N.U. L. REV. 1237, 1247-48 (1997); Mark Tushnet, Keeping Your Eye on the Ball: The Significance of the Revival of Constitutional Federalism, 13 GA. ST. U. L. REV. 1065 (1997).
6. See, e.g., Matthew D. Adler & Seth F. Kreimer, The New Etiquette of Federalism: New York, Printz, and Yeskey, 1998 Sup. CT. REV. 71; Evan H. Caminker, State Sovereignty and Subordinacy: May Congress Commandeer State Officers to Implement Federal Law?, 95 COLUM. L. REV. 1001 (1995); Roderick M. Hills, Jr., The Political Economy of Cooperative Federalism: Why State Autonomy Makes Sense and "Dual Sovereignty" Doesn't, 96 MICH. L. REV. 813 (1998); Vicki C.Jackson, Federalism and the Uses and Limits of Law: Printz and Principle?, 111 HARV. L. REV. 2180 (1998); Martin H. Redish, Constitutionalizing Federalism: A Foundational Analysis, 23 OHIO N.U. L. REV. 1237, 1247-48 (1997); Mark Tushnet, Keeping Your Eye on the Ball: The Significance of the Revival of Constitutional Federalism, 13 GA. ST. U. L. REV. 1065 (1997).
7. 119 S. Ct. 2240 (1999).
8. 119 S. Ct 2219 (1999).
9. 119 S. Ct. 2199 (1999).
10. 514 U.S. 549 (1995).
11. 521 U.S. 507 (1997).
12. 517 U.S. 44 (1996).
13. 521 U.S. 898 (1997).
14. Three years ago, after noting the hazards of prediction, I suggested that there is reason to believe that "the decision in Seminole [Tribe] is not one of a mounting series of blows to the reach of national power, but rather a gesture in the direction of a diffuse conception of state sovereignty that in the end will not be generally enforced by the Court." Daniel J. Meltzer, The Seminole Decision and State Sovereign Immunity, 1996 SUP. CT. REV. 1, 65. Subsequent events have confirmed my view that such predictions are hazardous.
15. Pub. L. No. 103-141, 107 Stat. 1488 (1993) (codified at 42 U.S.C. § 2000bb to bb-4 (1994)).
16. See, e.g., Alden v. Maine, 119 S. Ct. 2240, 2256 (1999). When a "La [w] . . . for carrying into Execution" the Commerce Clause violates the principle of state sovereignty reflected in the various constitutional provisions . . . it is not a "La[w] . . . proper for carrying into Execution the Commerce Clause," and is thus, in the words of The Federalist, "merely [an] ac[t] of usurpation" which "deserve[s] to be treated as such." Id. (quoting Printz, 521 U.S. at 923-24 (quoting THE FEDERALIST No. 33, at 204 (Alexander Hamilton))) (omissions and alterations in Printe).
17. The dissenters in Printz asserted, without response from the majority, that the Court's decision did not rule out "commandeering" as a condition of federal spending or federal non-preemption of state law. Printe, 521 U.S. at 958-62 (Stevens, J., dissenting). Whether that reading is correct remains to be seen. See infra notes 210-11.
18. Printz reaffirmed a distinction between state judicial officers (who may in some circumstances be required to implement federal law) and other state officers (who may not be) that the Court first elaborated in New York v. United States, 505 U.S. 144, 178-79 (1992). See Printz, 521 U.S. at 927-29 & n.14.
19. As to whether statutes enacted under the enforcement clauses of the Reconstruction amendments stand on a different footing, see Pennsylvania Department of Corrections v. Yeskey, 524 U.S. 206, 212-13 (1998), Adler & Kreimer, supra note 1, at 119-33, Evan H. Caminker, Printz, State Sovereignty and the Limits of Formalism, 1997 SUP. CT. REV. 199, 236-42, and see also Kathryn Abrams, No "There" There: State Autonomy and Voting Rights Regulation, 65 U. COLO. L. REV. 835 (1994) (noting how frequently federal voting rights legislation requires states to enact changes in their internal political structures).
20. As to whether statutes enacted under the enforcement clauses of the Reconstruction amendments stand on a different footing, see Pennsylvania Department of Corrections v. Yeskey, 524 U.S. 206, 212-13 (1998), Adler & Kreimer, supra note 1, at 119-33, Evan H. Caminker, Printz, State Sovereignty and the Limits of Formalism, 1997 SUP. CT. REV. 199, 236-42, and see also Kathryn Abrams, No "There" There: State Autonomy and Voting Rights Regulation, 65 U. COLO. L. REV. 835 (1994) (noting how frequently federal voting rights legislation requires states to enact changes in their internal political structures).
21. For a discussion of the haziness of the distinction between "retrospective" and "prospective" relief, of the failure of the Court's decisions to track common understandings of those terms, and the possibility that some Justices have abandoned the distinction in recent opinions, see Carlos Manuel Vázquez, Night and Day: Coeur d'Alene, Breard, and the Unraveling of the Prospective-Retrospective Distinction in Eleventh Amendment Doctrine, 87 GEO. L.J. 1 (1998), and see also David P. Currie, Sovereign Immunity and Suits Against Government Officers, 1984 SUP. CT. REV. 149.
22. For a discussion of the haziness of the distinction between "retrospective" and "prospective" relief, of the failure of the Court's decisions to track common understandings of those terms, and the possibility that some Justices have abandoned the distinction in recent opinions, see Carlos Manuel Vázquez, Night and Day: Coeur d'Alene, Breard, and the Unraveling of the Prospective-Retrospective Distinction in Eleventh Amendment Doctrine, 87 GEO. L.J. 1 (1998), and see also David P. Currie, Sovereign Immunity and Suits Against Government Officers, 1984 SUP. CT. REV. 149.
23. On whether Congress has the same power to abrogate under the Enforcement Clause of the 13th Amendment as it possesses under those of the 14th and 15th Amendments, see Henry Paul Monaghan, The Sovereign Immunity "Exception," 110 HARV. L. REV. 102, 107 n.33 (1996).
24. Gregory v. Ashcroft, 501 U.S. 452, 459 (1991).
25. Id. at 461 (quoting Sugarman v. Dougall, 413 U.S. 634, 647 (1973)).
26. Gregory, 501 U.S. at 469.
27. See, e.g., Gregory, 501 U.S. at 464 (stating that adoption of the plain statement rule "may avoid a potential constitutional problem"); Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 556 (1985) (citing Coyle v. Oklahoma, 221 U.S. 559 (1911)) ("These cases do not require us to identify or define what affirmative limits the constitutional structure might impose on federal action affecting the States under the Commerce Clause.").
28. See Florida Prepaid Postsecondary Educ. Expense Bd. v. College Sav. Bank, 119 S. Ct. 2199 (1999).
29. See College Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 119 S. Ct. 2219 (1999).
30. See Alden v. Maine, 119 S. Ct. 2240 (1999). For a discussion of possible differences between federal court and state court immunity, see infra note 95 (discussing Reich v. Collins, 513 U.S. 106 (1994)).
31. 134 U.S. 1 (1890).
32. My own views are set forth in Meltzer, supra note 9.
33. U. at 62.
34. 469 U.S. 528 (1985).
35. For the view that Garcia has already been effectively overruled, see John C. Yoo, The Judicial Safeguards of Federalism, 70 S. CAL. L. REV. 1311, 1334 (1997). One month after granting certiorari in Alden, 119 S. Ct. 443 (1998), the Supreme Court denied a petition for certiorari that, in seeking review of a federal court action under the FLSA brought by private individuals against a local government, presented the question whether Garcia should be overruled. See West v. Anne Arundel County, 137 F.3d 752, 760-61 (4th Cir.), cert. denied, 119 S. Ct. 607 (1998).
36. See 29 U.S.C. §§ 211(a), 216(b), 217 (1994) (granting to the Secretary of Labor authority to seek, inter alia, prospective relief against employers but granting employees authority to seek only back wages and liquidated damages); see also Barrentine v. Arkansas-Best Freight Sys., Inc., 750 F.2d 47 (8th Cir. 1984); Keenan v. Allan, 889 F. Supp. 1320, 1382 (E.D. Wash. 1995) (stating that "with the exception of child labor law violations, only the Secretary of Labor may seek an order to restrain violations of the FLSA"), aff'd, 91 F.3d 1275 (9th Cir. 1996).
37. See Alden, 119 S. Ct. at 2269.
38. See Edelman v. Jordan, 415 U.S. 651, 692 (1974) (Marshall, J., dissenting). Absent any remedy which may act with retroactive effect, state welfare officials have everything to gain and nothing to lose by failing to comply with the congressional mandate that assistance be paid with reasonable promptness to all eligible individuals. This is not idle speculation without basis in practical experience. In this very case, for example, Illinois officials have knowingly violated since 1968 federal regulations on the strength of an argument as to its invalidity which even the majority deems unworthy of discussion. . . . Without a retroactive-payment remedy, we are indeed faced with "the spectre of a state, perhaps calculatingly, defying federal law and thereby depriving welfare recipients of the financial assistance Congress thought it was giving them." Id. (quoting Jordan v. Weaver, 472 F.2d 985, 995 (7th Cir. 1972)); see also Richard H. Fallon, Jr. & Daniel J. Meltzer, New Law, Non-Retroactivity, and Constitutional Remedies, 104 HARV. L. REV. 1731, 1793 (1991) (noting that broad refusals to issue retroactive remedies based on expansive conceptions of new law "threaten the maintenance of an appropriate structure of incentives to learn and comply with constitutional [or other federal] rules"). In a related vein, Vicki Jackson suggested to me in conversation that the Alden decision reduces the incentives for plaintiffs" lawyers to devote time to seeking out-of-court resolutions with state officials, and for state officials to be receptive to such approaches, for only when an injunctive order is secured does the government face the possibility (through contempt sanctions) of monetary liability to a private plaintiff for noncompliance with federal law. See infra note 48. Alden thus strengthens the incentives of plaintiffs to go to court immediately and of defendants to use delaying tactics.
39. John Jeffries has objected to unlimited governmental damage liability in the context of actions under 42 U.S.C. § 1983 (1994). He would restrict such liability to situations in which state actors are at fault, which he would determine by applying a test analogous to existing qualified immunity doctrine in § 1983 actions. See John C. Jeffries, Jr., In Praise of the Eleventh Amendment and Section 1983, 84 VA. L. REV. 47, 50-51 (1998). It is not clear whether Jeffries would extend his analysis to violations of statutory duties like those under the FLSA or federal intellectual property laws. However, his analysis is policy-driven; he does not suggest that the Constitution demands his preferred regime. See id. at 51. For present purposes, what is important is that the Alden rule does not address the problem that concerns Jeffries. Even if one agrees with his analysis, one would want a fault requirement whether the nominal defendant was a state or local government or an individual officer. Alden, by contrast, leaves open the possibility that individual officers (in their personal capacity) or local governments might be held liable even when not "at fault" while precluding the imposition of retrospective liability upon state governments even when their "fault" for having violated federal law is undisputed. See also Larry Kramer & Alan O. Sykes, Municipal Liability Under § 1983: A Legal and Economic Analysis, 1987 SUP. CT. REV. 249, 272. A recent manuscript of Daryl Levinson argues that the imposition of constitutional damages liability upon governmental units for torts and takings is ineffectual because governments fail to internalize the costs of constitutional remedies; some aspects of his argument would seem to extend to governmental damages liability in general. See Daryl J. Levinson, Making Government Pay: Markets, Politics, and the Allocation of Constitutional Costs, 67 U. CHI. L. REV. (forthcoming Spring 2000). While Levinson's argument seems to me exaggerated, for present purposes the critical point is that it, like Jeffries's argument, is a functional one about the desirable allocation of liability; unlike the Alden opinion, Levinson does not make a constitutional argument that Congress, even if it seeks to impose governmental liability, should be precluded from doing so. See id.
40. John Jeffries has objected to unlimited governmental damage liability in the context of actions under 42 U.S.C. § 1983 (1994). He would restrict such liability to situations in which state actors are at fault, which he would determine by applying a test analogous to existing qualified immunity doctrine in § 1983 actions. See John C. Jeffries, Jr., In Praise of the Eleventh Amendment and Section 1983, 84 VA. L. REV. 47, 50-51 (1998). It is not clear whether Jeffries would extend his analysis to violations of statutory duties like those under the FLSA or federal intellectual property laws. However, his analysis is policy-driven; he does not suggest that the Constitution demands his preferred regime. See id. at 51. For present purposes, what is important is that the Alden rule does not address the problem that concerns Jeffries. Even if one agrees with his analysis, one would want a fault requirement whether the nominal defendant was a state or local government or an individual officer. Alden, by contrast, leaves open the possibility that individual officers (in their personal capacity) or local governments might be held liable even when not "at fault" while precluding the imposition of retrospective liability upon state governments even when their "fault" for having violated federal law is undisputed. See also Larry Kramer & Alan O. Sykes, Municipal Liability Under § 1983: A Legal and Economic Analysis, 1987 SUP. CT. REV. 249, 272. A recent manuscript of Daryl Levinson argues that the imposition of constitutional damages liability upon governmental units for torts and takings is ineffectual because governments fail to internalize the costs of constitutional remedies; some aspects of his argument would seem to extend to governmental damages liability in general. See Daryl J. Levinson, Making Government Pay: Markets, Politics, and the Allocation of Constitutional Costs, 67 U. CHI. L. REV. (forthcoming Spring 2000). While Levinson's argument seems to me exaggerated, for present purposes the critical point is that it, like Jeffries's argument, is a functional one about the desirable allocation of liability; unlike the Alden opinion, Levinson does not make a constitutional argument that Congress, even if it seeks to impose governmental liability, should be precluded from doing so. See id.
41. John Jeffries has objected to unlimited governmental damage liability in the context of actions under 42 U.S.C. § 1983 (1994). He would restrict such liability to situations in which state actors are at fault, which he would determine by applying a test analogous to existing qualified immunity doctrine in § 1983 actions. See John C. Jeffries, Jr., In Praise of the Eleventh Amendment and Section 1983, 84 VA. L. REV. 47, 50-51 (1998). It is not clear whether Jeffries would extend his analysis to violations of statutory duties like those under the FLSA or federal intellectual property laws. However, his analysis is policy-driven; he does not suggest that the Constitution demands his preferred regime. See id. at 51. For present purposes, what is important is that the Alden rule does not address the problem that concerns Jeffries. Even if one agrees with his analysis, one would want a fault requirement whether the nominal defendant was a state or local government or an individual officer. Alden, by contrast, leaves open the possibility that individual officers (in their personal capacity) or local governments might be held liable even when not "at fault" while precluding the imposition of retrospective liability upon state governments even when their "fault" for having violated federal law is undisputed. See also Larry Kramer & Alan O. Sykes, Municipal Liability Under § 1983: A Legal and Economic Analysis, 1987 SUP. CT. REV. 249, 272. A recent manuscript of Daryl Levinson argues that the imposition of constitutional damages liability upon governmental units for torts and takings is ineffectual because governments fail to internalize the costs of constitutional remedies; some aspects of his argument would seem to extend to governmental damages liability in general. See Daryl J. Levinson, Making Government Pay: Markets, Politics, and the Allocation of Constitutional Costs, 67 U. CHI. L. REV. (forthcoming Spring 2000). While Levinson's argument seems to me exaggerated, for present purposes the critical point is that it, like Jeffries's argument, is a functional one about the desirable allocation of liability; unlike the Alden opinion, Levinson does not make a constitutional argument that Congress, even if it seeks to impose governmental liability, should be precluded from doing so. See id.
42. See Regents v. Doe, 519 U.S. 425 (1997); Jeffries, supra note 32, at 49.
43. See generally PETER SCHUCK, SUING GOVERNMENT (1981).
44. See Fallon & Meltzer, supra note 31, at 1823; Jeffries, supra note 32, at 62. Indeed, Kramer and Sykes have argued that if one makes certain heroic assumptions, individual and entity liability are indistinguishable. See Kramer & Sykes, supra note 32, at 272.
45. For an argument that views the two regimes as being closer to parity than I would, but that acknowledges the limitations of simpler assertions of parity as well as many of the pertinent uncertainties, see Jeffries, supra note 32, at 49-50, 62-66, and see also Carlos Manuel Vázquez, What Is Eleventh Amendment Immunity?, 106 YALE L.J. 1683, 1775 (1997).
46. The FLSA's substantive wage and hour provisions impose liability only on "employers," see 29 U.S.C. § 206(a) (1994 & Supp. III 1997), but that term is broadly defined to "include [ ] any person acting directly or indirectly in the interest of an employer in relation to an employee." Id. § 203 (d). Most courts have ruled that an employer's agent who exercises supervisory authority over an employee's wages and hours may be jointly and severally liable with the employing organization, see, e.g., Donovan v. Agnew, 712 F.2d 1509 (1st Cir. 1983), although some of the holdings in this line relate to the owners or chief executive officers of small businesses, see, e.g., United States Dep't of Labor v. Cole Enter., 62 F.3d 775, 778 (6th Cir. 1995), and thus might not support imposing liability, for example, on a middle manager in a large bureaucracy. Moreover, one circuit has taken the quite different view that individual supervisors are never personally liable under the FLSA. See Wascura v. Carver, 169 F.3d 683, 686 (11th Cir. 1999). Individual liability is less certain still under other federal statutes. For example, considerable authority denies that individual defendants may be held personally liable for damages under the Age Discrimination in Employment Act (ADEA) and the Americans with Disabilities Act (ADA). See, e.g., Butler v. Prairie Village, 172 F.3d 736, 743-44 (10th Cir. 1999) (collecting cases).
47. In this regard, the Alden Court's endorsement of personal liability included an ambiguous qualification: "Even a suit for money damages may be prosecuted against a state officer in his individual capacity for unconstitutional or wrongful conduct fairly attributable to the officer himself, so long as the relief is sought not from the state treasury but from the officer personally." Alden, 119 S. Ct. at 2267-68 (emphasis added). Whether the Court meant to suggest a limit on congressional power to impose liability on state officers for particular state action to which they had only a limited connection remains to be seen.
48. See supra note 38.
49. See, e.g., Jeffries, supra note 32, at 50-51.
50. See id.
51. See Phillip E. Hassman, Annotation, Validity and Construction of Statute Authorizing or Requiring Governmental Unit to Indemnify Public Officer or Employee for Liability Arising out of Performance of Public Duties, 71 A.L.R.3d 90 (1976).
52. That is the case in my home state of Massachusetts. See MASS. GEN. LAWS. ch. 258, § 9 (1992).
53. See id. (setting a one million dollar limit).
54. See, e.g., ALA. CODE § 11-47-24 (1992 & Lexis Supp. 1999) (requiring state agencies to indemnify employees from any judgment arising out of performance of official duties except where the employee's conduct was "intentional or willful or wanton"); COLO. REV. STAT. ANN. § 24-10-110 (West 1992 & Supp. 1999) (requiring public entities to defend and indemnify employees from judgments arising out of official conduct, except where conduct was "willful and wanton").
55. 509 U.S. 86, 129 (1993).
56. That appears to be the case in my home state of Massachusetts. See Filippone v. Mayor of Newton, 452 N.E.2d 239, 244 (Mass. Ct. App. 1983). The Filippone decision was reversed by the state's highest court, whose opinion cast some doubt on the usefulness, in the specific circumstances of the case, of a distinction between broad indemnity for liability of an indemnitee (which would be established simply by entry of a judgment) and a more limited indemnity for losses suffered by the indemnitee (which would be established only by payment or execution of the judgment). The court did not, however, reject the distinction more generally. See Filippone v. Mayor of Newton, 467 N.E.2d 182, 186-87 (Mass. 1984); see also Restivo v. Town of Swansea, 495 N.E.2d 838, 839 (Mass. 1986) (holding, in a suit by plaintiffs against a town seeking a writ of mandamus requiring the town to pay the plaintiffs the amount of unsatisfied judgments obtained by them against town police officers, that the applicable indemnification provision "does not require the defendant town to satisfy the plaintiffs" . . . judgments against the town's police officers").
57. See Meltzer, supra note 9, at 48. In Hutto v. Finney, 437 U.S. 678, 691 & n.17 (1978), an action against state officials, the Court affirmed an order awarding the plaintiffs certain attorney's fees, to be paid out of the state treasury - an order that the Court treated as analogous to compensatory contempt In rejecting the argument that the order violated the 11th Amendment because it required payment by the state rather than by the officials, the Court declared that to have made the officials liable for the fee award "would be a remarkable way to treat individuals who have relied on the Attorney General to represent their interests throughout this litigation," id. at 692 n.19 - despite the possibility, mentioned in the Hutto dissent, see id. at 716 (Rehnquist, J., dissenting), that state law permitted indemnification.
58. See 29 U.S.C. § 216(c) (1994).
59. The following statistics are compiled from the Report of the Administrative Office of the United States Courts on the Judicial Business of the United States Courts for 1997 and 1998, Hd. C-2 (visited Jan. 17, 2000) 〈http://www.USCourts.gov/judicial_business/c02Sep97.pdf〉. CIVIL CASES COMMENCED IN U.S. DISTRICT COURTS UNDER THE FLSA table presented These statistics do not distinguish suits against states from those against other defendants. Since private plaintiffs sometimes file in state court but the United States virtually never does, these federal court statistics may slightly understate the ratio of private-plaintiff cases to U.S.-as-plaintiff cases.
60. 119 S. Ct at 2269.
61. See generally Mark Tushnet, Foreword: The New Constitutional Order and the Chastening of Constitutional Aspiration, 113 HARV. L. REV. 26, 51-56 (1999) (highlighting impediments to national action arising from the existing configuration of political forces).
62. William M. Landes & Richard A. Posner, The Private Enforcement of Law, 4 J. LEGAL STUD. 1, 36 (1975).
63. See Alden, 119 S. Ct at 2267.
64. Evan Caminker has recently suggested a different point of view: "federal prosecutors have no duty of loyalty to states per se, and thus it seems dubious that they would refrain from initiating an otherwise promising suit out of an abstract respect for the states's dignitary interests." Evan H. Caminker, State Immunity Waivers for Suits by the United States, 98 MICH. L. REV. 92, 122 (1999). My own belief - based in part upon recollections from working at the Department of Health Education and Welfare in the Carter Administration - is that a broader view of federal enforcement would reveal a great deal more complexity than is found in Caminker's picture of prosecutors making discrete decisions whether a particular case is meritorious. In federal agencies, regulation frequently involves a complex of techniques - information gathering, informal oversight, notice of non-compliance, negotiation of remedial plans - and litigation is often a last resort. In that environment, deciding what is a "promising suit" - that is, an occasion for litigation rather than for other approaches to securing compliance - may not be clearcut. Additional unclarity about whether to bring a "promising suit" - for example, against Maine for violation of the FLSA - arises because such a decision is likely to implicate the question whether to allocate scarce resources to suing the state or, instead, to bringing a "promising suit" against a private regulatee. In making decisions that are, it seems to me, less open and shut than Caminker suggests, officials are often operating in a somewhat politicized environment. While Caminker's primary concern is with qui tam actions under the False Claims Act, in which the federal enforcers are located in the Justice Department, federal "prosecutors" often are not officials in the Department of Justice; the Department of Labor, for example, is the agency authorized to bring suit to enforce the FLSA. While efforts to influence Department of Justice officials may be viewed as particularly inappropriate, officials in an executive agency like the Department of Labor routinely are involved in discussion with both regulatees and with "political" actors in the Executive Office of the President or on Capitol Hill. In that environment, agency officials may not infrequently be wary of suing a state, not so much because of an abstract respect for state "dignity," but rather because they may have been subjected to, or fear becoming subject to, political pressure - whether directly from the states themselves, or indirectly through the intervention of other government officials who in turn are responding to state pressure. Having said this, I would note that my phrasing in text - that the political safeguards may operate in "broadly similar fashion" on legislative and executive officials - is not inconsistent with the view, which I would espouse, that the political culture of members of the House and the Senate, and of their staffs, is in general more responsive to political pressure from states than is that of officials in executive agencies. In that respect, the political safeguards may be more robust in the legislative than in the executive branch. In other respects, however, the political safeguards may be more effective in forestalling federal litigation than in forestalling federal legislation: in the legislative process, states may be less likely to have advance notice that adverse action is about to be taken, whereas a government lawsuit is likely to follow a crystallized dispute known to state officials; moreover, identification of a single critical decisionmaker with control over executive enforcement may be easier than identification in Congress of a particular legislator who plainly has the power to control a legislative outcome. More broadly, however, Caminker and I agree that, however one describes the behavior of executive enforcement officials, the Court in Alden fails to offer a convincing reason for permitting only federal officials to seek retrospective damages liability against unconsenting states for their violation of federal laws enacted under Article I.
65. See Larry Kramer, Understanding Federalism, 47 VAND. L. REV. 1485, 1522-60 (1994).
66. Stephen Laboton, Anti-Federalism Measures Have Bipartisan Support, N.Y. TIMES, Sept. 6, 1999, at A12.
67. Exec. Order No. 13,132, 64 Fed. Reg. 43,255 (1999).
68. See id. § 11.
69. See generally DAVID L. SHAPIRO, FEDERALISM: A DIALOGUE 107-40 (1995).
70. See 29 U.S.C. § 201 (1994 & Supp. III 1998).
71. See Employees of Dep't of Pub. Health & Welfare v. Department of Pub. Health & Welfare, 411 U.S. 279, 283 (1973).
72. See Fair Labor Standards Amendments of 1974, 29 U.S.C § 216(b) (1994).
73. HART & WECHSLER'S 1999 SUPPLEMENT, supra note *, at 136.
74. See id. Professor Jackson puts the question another way: Why, if local governments have no 11th Amendment immunity, should they be protected by related principles of federalism (specifically, the anti-commandeering rule of Printz)? See Jackson, supra note 1, at 2194.
75. On the origins of this distinction, see RICHARD H. FALLON, JR., DANIEL J. MELTZER, & DAVID L. SHAPIRO, HART & WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 1056-57 (4th ed. 1996) [hereinafter HART & WECHSLER'S THE FEDERAL COURTS].
76. 496 U.S. 356 (1990).
77. See Alden, 119 S. Ct. at 2259. Howlett also relied on the ground that the state court's unwillingness to entertain a federal law action under 42 U.S.C. § 1983 (1994), while entertaining analogous state law claims against local school boards, constituted unlawful discrimination against federal rights. See Howlett, 496 U.S. at 378-81.
78. See Alden, 119 S. Ct. at 2247, 2259.
79. United States v. Darby, 312 U.S. 100, 124 (1941).
80. Printz, 521 U.S. at 931 n.15. Although the majority in Printz gave the 10th Amendment only a bit part, two members of the majority made that provision more central to the reasoning in their concurring opinions. See id. at 935 (O'Connor, J., concurring); id. at 936-39 (Thomas, J., concurring).
81. Alden, 119 S. Ct. at 2259.
82. For an example of this argument, see Richard Briffault, "What About the 'Ism"?" Normative and Formal Concerns in Contemporary Federalism, 47 VAND. L. REV. 1303, 1311 (1994).
83. Thus, for example, Richard Seamon - who agrees with the Alden Court that states should generally be immune in their own courts from private suit under federal law, and who would base that immunity on the 10th Amendment and the anti-commandeering principle - argues that the immunity should extend to suits against local governments. See Richard Seamon, The Sovereign Immunity of States in Their Own Courts, 37 BRANDEIS L.J. 318, 389-90 (1998-99).
84. See Meltzer, supra note 9, at 57.
85. Elaborate discussions of the precedents are found in the patties' briefs in Alden and in a number of law review articles. See, e.g., Ellen D. Katz, State Judges, State Officers, and Federal Commands After Seminole Tribe and Printz, 1998 WIS. L. REV. 1465; Seamon, supra note 74; Vázquez, supra note 36; Louis E. Wolcher, Sovereign Immunity and the Supremacy Clause: Damages Against States in Their Own Courts for Constitutional Violations, 69 CALIF. L. REV. 189 (1981); Ann Woolhandler, Old Property, New Property, and Sovereign Immunity, 75 NOTRE DAME LAW REVIEW 919 (2000).
86. Elaborate discussions of the precedents are found in the patties' briefs in Alden and in a number of law review articles. See, e.g., Ellen D. Katz, State Judges, State Officers, and Federal Commands After Seminole Tribe and Printz, 1998 WIS. L. REV. 1465; Seamon, supra note 74; Vázquez, supra note 36; Louis E. Wolcher, Sovereign Immunity and the Supremacy Clause: Damages Against States in Their Own Courts for Constitutional Violations, 69 CALIF. L. REV. 189 (1981); Ann Woolhandler, Old Property, New Property, and Sovereign Immunity, 75 NOTRE DAME LAW REVIEW 919 (2000).
87. Elaborate discussions of the precedents are found in the patties' briefs in Alden and in a number of law review articles. See, e.g., Ellen D. Katz, State Judges, State Officers, and Federal Commands After Seminole Tribe and Printz, 1998 WIS. L. REV. 1465; Seamon, supra note 74; Vázquez, supra note 36; Louis E. Wolcher, Sovereign Immunity and the Supremacy Clause: Damages Against States in Their Own Courts for Constitutional Violations, 69 CALIF. L. REV. 189 (1981); Ann Woolhandler, Old Property, New Property, and Sovereign Immunity, 75 NOTRE DAME LAW REVIEW 919 (2000).
88. See, e.g., Printz v. United States, 521 U.S. 898, 919-21 (1997); Gregory v. Ashcroft, 501 U.S. 452, 457-60 (1991); Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 568-72 (1985) (Powell, J., dissenting). Seegenerally SHAPIRO, supra note 60.
89. Cf. Samuel H. Beer, Federalism, Nationalism, and Democracy in America, 72 AM. POL. SCI. REV. 9, 15 (1978) (noting that the convention and ratification debates made little of the argument that federalism helps to accommodate levels of government to territorial diversity).
90. See, e.g., Adler & Kreimer, supra note 1, at 77 (citing additional sources); Briffault, supra note 73; Malcolm Feeley, The Fundamentality and Irrelevance of Federalism, 13 GA. ST. U. L. REV. 1009 (1997); Jackson, supra note 1, at 2213-14, 2217-28 (citing additional sources; Edward L. Rubin & Malcolm Feeley, Federalism: Some Notes on a National Neurosis, 41 UCLA L. REV. 903 (1994).
91. See, e.g., Adler & Kreimer, supra note 1, at 77 (citing additional sources); Briffault, supra note 73; Malcolm Feeley, The Fundamentality and Irrelevance of Federalism, 13 GA. ST. U. L. REV. 1009 (1997); Jackson, supra note 1, at 2213-14, 2217-28 (citing additional sources; Edward L. Rubin & Malcolm Feeley, Federalism: Some Notes on a National Neurosis, 41 UCLA L. REV. 903 (1994).
92. For a masterful exposition of the arguments on both sides of the question, see SHAPIRO, supra note 60.
93. National League of Cities v. Usery, 426 U.S. 833, 847 (1976).
94. See Printz, 521 U.S. at 920-23 (political accountability); id. at 921 (prevention of tyranny); Lopez, 514 U.S. at 576-77 (political accountability); id. at 552 (prevention of tyranny); New York v. United States, 505 U.S. 144, 168-69 (1992) (political accountability); id. at 181 (prevention of tyranny); Gregory v. Ashcroft, 501 U.S. 452, 473 (1991) (political accountability); id. at 458-59 (prevention of tyranny). The relative emphasis on these considerations is no surprise, as the other considerations typically put forward - matching preferences, permitting citizen choice and exit, permitting social experimentation - have less to do with federal regulation of the states themselves than with locating governmental regulation of private actors and governmental spending decisions at some sub-national level of government. Moreover, the persuasiveness of these other considerations depends upon a complex of empirical and shifting factors (should the national government permit greater flexibility in income maintenance arrangements, or is redistribution a distinctively national responsibility; do the values of uniform national standards outweigh the benefits of experimentation in a specific areas?) particularly unsuited to judicial evaluation. Accord Andrej Rapaczynski, From Sovereignty to Process: The Jurisprudence of Federalism After Garcia, 1985 SUP. CT. REV. 341, 409.
95. See Adler & Kreimer, supra note 1, at 98-102; Caminker, supra note 1, at 1061-72; Caminker, supra note 14, at 220-31; Jackson, supra note 1, at 2195-2205.
96. Probably the key difficulty for any theory that seeks to justify the anti-commandeering principle is to explain why commandeering is more constitutionally offensive than the recognized power to preempt state regulation altogether. Several commentators have explored whether one might justify a distinction between commandeering and preemption based on notions that mandated action is more offensive than mandated inaction. See, e.g., Adler & Kreimer, supra note 1, at 93; Caminker, supra note 1, at 1055 n.218. With regard to the goal of tyranny prevention, Adler and Kreimer suggest that although, at first blush, liberty may be more threatened by government action than by inaction, in the end that claim is unpersuasive. See Alder & Kreimer, supra note 1, at 98-101. Moreover, the suggested distinction assumes that the alternative to federal commandeering of the states is the absence of regulation; it may, instead, be direct federal regulation with a larger federal apparatus and the absence of state participation that might otherwise have served as a counterweight to federal overreaching. See Caminker, supra note 1, at 1014. With respect to the value of promoting local political communities, Adler and Kreimer also note the "sense" that commandeering "seems, somehow, to be more of an interference with state autonomy than a requirement that they refrain from enacting a particular statute." Adler and Kreimer, supra note 1, at 94. In the end, however, they conclude that neither that intuitive sense nor consideration of other values of federalism can justify the preemption/commandeering distinction, noting that either technique limits the options available to self-governing political communities. See id. at 95-101. With regard to the value of political accountability, if federal commandeering risks misallocation of responsibility from federal to state officials for actions the latter undertake only under federal compulsion, so federal preemption risks misallocation of responsibility from federal to state officials for the latter's failure to undertake action that federal law prohibits. See id. at 99; Caminker, supra note 1, at 1061-74; Jackson, supra note 1, at 2200-05. Rick Hills has defended an anti-commandeering rule in part as preventing forced speech and in part on a complicated functional argument about when federal compulsion of states, as distinguished from federal purchase of services from states, is required. See Hills, supra note 1. The argument about compelled speech, it seems to me, also fails to distinguish preemption: if commandeering is forced speech, then preemption is suppression of speech, which should be equally suspect. Hills's complex functional argument is based on the view that the government should have to purchase rather than commandeer state regulatory services, and that doing so will not impair national policy. While the argument is nuanced and sophisticated, at bottom it remains quite uncertain that it adequately distinguishes commandeering from preemption (which in theory could also be purchased). See Adler & Kreimer, supra note 1, at 101-02. Finally, it is not clear that Hills's general argument about commandeering is particularly apt with regard to the rule of Alden. It is hard to think of a requirement that state judges articulate and enforce federal law - whether in private suits or in suits against the states - as "compelled speech" - particularly since their obligation to engage in such "compelled speech" when federal law arises by way of defense seems uncontroversial. Nor, as he recognizes, see Hills, supra note 1, at 928-33, is his concern about federal expropriation of state services limited to a federal obligation that state courts entertain suits against the states; the concern is equally applicable to the long-recognized obligation of state courts to entertain federal actions against private parties when they entertain analogous state law actions. See, e.g., Testa v. Katt, 330 U.S. 396 (1946). He does suggest that perhaps Testa is misguided and that the Madisonian Compromise - under which Congress need not create inferior federal courts and may instead rely on state courts to entertain federal claims - should be understood as requiring Congress to purchase the services of state courts. That is a quite different argument from the Court's, and one that seems to me, even accepting each step of his rather complicated functional argument, a doubtful interpretation of the Constitution. See also infra note 85.
97. See Caminker, supra note 1, at 1051-53; Seamon, supra note 74, at 359. In this vein, Professor Merritt has argued that federal commandeering consumes state political energy in a way that federal preemption does not. See Deborah J. Merritt, Federalism as Empowerment, 47 U. FLA. L. REV. 541, 553-55 (1995). The point is undoubtedly true insofar as it ordinarily is easier to do nothing than to do something. Whether or not that observation relates importantly to notions of federalism is a different matter; requiring state motor vehicle officials to report information to federal authorities seems less intrusive to state self-governance than does preempting all state motor vehicle regulation. Indeed, the observation may be particularly inapt when applied to the judiciary, one of whose distinguishing features is its lack of power to set its own agenda, thus requiring that it devote its adjudicative energy to a set of tasks established by others.
98. I assume existing law under which sovereign immunity does not extend to such actions. But cf. supra text accompanying notes 65-74.
99. See HART & WECHSLER'S THE FEDERAL COURTS, supra note 66, at 469-91. Indeed, application of the anti-commandeering principle to state judges would be hard to square with the one clear implication of cases like Testa v. Katt, 330 U.S. 386 (1947) - that state courts may not refuse to entertain federal actions when they entertain analogous state law actions. The majority in Printz, by contrast, was unconcerned with whether state and local executive officials administered analogous state laws; the bar on federal compulsion of executive officials in Printz, rather, was unqualified. See Printz, 521 U.S. at 935.
100. For a posl-Alden decision re-affirming congressional power to condition the award of federal funds upon a state's waiver of sovereign immunity from suit with regard to the funded activities - and thus upholding private suit against a state in federal court - see Litman v. George Mason University, 186 F.3d 544 (4th Cir. 1999).
101. See, e.g., Steven Croley, The Majoritarian Difficulty: Elective Judiciaries and the Rule of Law, 62 U. CHI. L. REV. 689, 690 (1995).
102. See generally Rapaczynski, supra note 82, at 380-95.
103. Alden, 119 S. Ct. at 2264.
104. Id.
105. Id. (quoting In re Ayers, 123 U.S. 443, 505 (1887)); see also Seamon, supra note 74, at 366-72.
106. Indeed, National League of Cities itself was a suit by governmental plaintiffs seeking to enjoin the application to them of the FLSA, and the Court, in upholding their position, placed considerable weight on the cost and associated burdens of ongoing compliance with the FLSA. See National League of Cities, 426 U.S. at 846.
107. Moreover, the Supreme Court has required state courts to entertain private damage actions against unconsenting states that are of far greater consequence than the Alden litigation. In this respect, Reich v. Collins, 513 U.S. 106 (1994), was an awkward precedent for the Alden Court. In Reich, the Court unanimously reaffirmed that absent an adequate predeprivation remedy, a state court must provide a refund remedy when taxpayers challenge the constitutionality of state taxation - "the sovereign immunity States traditionally enjoy in their own courts notwithstanding." Id. at 110. It is hard to square that precedent - and cases in that line that have required refunds that sometimes reach hundreds of millions of dollars, see, e.g., Harper v. Virginia Dep't of Taxation, 509 U.S. 86, 129 (1993) - with the Court's concern in Alden that suit by Maine probation officers could "turn the State against itself and ultimately commandeer the entire political machinery of the State against its will and at the behest of individuals," Alden, 119 S. Ct. at 2264. Reich posed a difficulty for the Alden Court in two additional ways.First, Reich recognizes the power and obligation of the Supreme Court, even when acting without a congressional clear statement, to require state courts to impose retrospective liability on state governments. (Efforts to re-cast Reich and McKesson Corp. v. Division of Akoholic Beverages & Tobacco, 496 U.S. 18 (1990), as requiring only a remedy against state officials, rather than against the state - see, e.g., Seamon, Supra 394-406; Vázquez, supra note 36, at 1770-77 - seem to me unpersuasive, and, in any event, the Alden Court did not follow that line.) One might have thought that imposition of retrospective liability on state treasuries should be more, not less, tolerable when, as in Alden, it was plainly authorized by the federal political branches. Cf. John E. Nowak, The Scope of Congressional Power to Create Causes of Action Against State Government and the History of the Eleventh and Fourteenth Amendments, 75 COLUM. L. REV. 1413 (1975); Laurence H. Tribe, Intergovernmental Immunities in Litigation, Taxation, and Regulation: Separation of Powers Issues in Controversies About Federalism, 89 HARV. L. REV. 682 (1976). Second, Reich cannot be accommodated to the majority's theoretical construct. In order to circumvent the textual limitation of the 11th Amendment to federal judicial power, the Alden Court reasoned as follows: (a) "the Constitution was understood, in light of its history and structure, to preserve the States' traditional immunity from private suits," Alden, 119 S. Ct. at 2252; (b) Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793), mistakenly interpreted Article III as having stripped states of immunity from suit in federal court, see Alden, 119 U.S. at 2252-53; (c) "[a]s the [11th] Amendment clarified the only provisions of the Constitution [Article III] that anyone had suggested might support a contrary understanding, there was no reason to draft with a broader brush," id. at 2252; (d) state sovereign immunity therefore derives not from the 11th Amendment (which is treated as having merely corrected the error of Chisholm) but from the basic constitutional design, see id. at 2254. On this theory, the scope of the immunities that states enjoy in state and federal courts should be identical, as they derive from the same source in constitutional history and structure - a point that the Court's opinion acknowledged. See id. at 2256 ("The logic of the decisions [denying that Congress has power to abrogate state sovereign immunity from private suit in federal court] . . . does not turn on the forum in which the suits were prosecuted but extends to state-court suits as well."). However, the Court has squarely held that the 11th Amendment bars a federal action by a taxpayer for a refund from the state treasury of taxes alleged to have been unconstitutionally exacted. See, e.g., Great Northern Life Ins. Co. v. Read, 322 U.S. 47 (1944). The contrasting federal and state decisions on whether a state is immune from tax refund suits thus belies the Court's premise in Alden that there is a uniform immunity, rooted in the Constitution - and restored in federal court actions (after the constitutional heresy of Chisholm) by the 11th Amendment - applicable wherever a state is sued by a private party.
108. Alden, 119 S. Ct. at 2288-89 & n.34 (Souter, J., dissenting).
109. Of course, the Court in Printz was unmoved by any suggestion that federal "commandeering" of state executive officials to administer federal law - when compared to the alternative of exclusive federal administration - might improve local participation and governmental responsiveness to local problems, "make valuable use of" the distinctive perspectives of state officials, and promote diversity and experimentation. See Caminker, supra note 1, at 1014. Indeed, similar rationales for relying on state implementation of federal directives underlay the scheme of the Articles of Confederation. See Jack N. Rakove, The Origins of Judicial Review: A Plea for New Contexts, 49 STAN. L. REV. 1031, 1043-44 (1997). That that scheme did not work well as the exclusive basis for national action in the chaotic and embryonic stages of nation-building following the Revolutionary War hardly demonstrates that it would not be a useful, if relatively uncommon, mode of national action more than two centuries later. See, e.g., Caminker, supra note 1, at 1046.
110. See Gregory v. Ashcroft, 501 U.S. 452, 460-61 (1991). Needless to say, there is considerable tension between Justice O'Connor's opinion for the Court in Gregory and the Garcia opinion, from which she dissented. SeeYoo, supra note 28, at 1335-40 (contending that Gregory rejects the underlying tenets of Garcia).
111. See generally Kramer, supra note 56.
112. There is, indeed, evidence that the political safeguards of federalism have, in some cases, helped state and local governments to secure their objectives in the national political process. In 1985, following the Garcia decision, Congress amended the FLSA to permit state and local governmental employers (unlike their private counterparts) to provide compensatory time-off rather than premium compensation for employees who work overtime. See Fair Labor Standards Amendments of 1985, Pub. L. No. 99-150, 99 Stat. 878 (1985) (codified at 29 U.S.C. § 207(o)(1) (1994). That same act also exempted legislative employees from protection, while several other provisions of the current law accommodate particular concerns of governmental employers. See, e.g., 29 U.S.C. § 203(e) (2) (C) (1994) (exempting certain positions from overtime requirements); id. § 207(k) (1994) (establishing special overtime rules for law enforcement personnel). Needless to say, state and local government interests do not always prevail in Congress, nor has the national legislative process always focused very clearly on whether federal regulation should extend to state and local governments. See generally Carol F. Lee, The Political Safeguards of Federalism? Congressional Responses to Supreme Court Decisions on State and Local Liability, 20 URB. LAW 301 (1988).
113. See Meltzer, supra note 9, at 57-59.
114. For an overlapping but somewhat different set of arguments, see Vicki C.Jackson, The Supreme Court, the Eleventh Amendment, and State Sovereign Immunity, 98 YALE L.J. 1, 88-104 (1988).
115. See id. at 99-100.
116. See Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30, 41 (1994); see also Employees of Dep't of Pub. Health & Welfare v. Dep't of Pub. Health & Welfare, 411 U.S. 279, 293-94 (1973) (Marshall, J., concurring in result). The issue is not the general immunity of the States from private suit - a question of the common law - but merely the susceptibility of the States to suit before federal tribunals. Because of the problems of federalism inherent in making one sovereign appear against its will in the courts of the other, a restriction upon the exercise of the federal judicial power has long been considered to be appropriate in a case such as this. Id.
117. 521 U.S. 261 (1997).
118. Id. at 287 (plurality opinion).
119. See generally HART & WECHSLER'S THE FEDERAL COURTS, supra note 66, at 1247-1308; see, e.g., Younger v. Harris, 401 U.S. 37 (1971); Burford v. Sun Oil Co., 319 U.S. 315 (1943).
120. 28 U.S.C. § 1342 (1994).
121. Id. § 1341 (1994).
122. The enthusiasm is particularly notable with regard to the Younger doctrine, see, e.g., HART & WECHSLER'S THE FEDERAL COURTS, supra note 66, at 1256-75, and decisions concerning the Tax Injunction Act, see, e.g., id. at 1216-22. In any event, the majority's approach creates other anomalies. One that David Shapiro pointed out to me can be made concrete with this hypothetical: Suppose Nevada employees were to spend several months living in California to study the operation of its public university system. If the employees work more than 40 hours a week and Nevada denies them overtime pay, Seminole Tribe indicates that they cannot sue Nevada in a federal court, and Alden now adds that they likewise cannot sue in Nevada state court. However, under Nevada v. Hall, 440 U.S. 410 (1979), they may be able to sue the state of Nevada in California state court. My hypothetical can be distinguished from Hall, where the claim against Nevada was based on California tort law rather than on federal law, but the position that Nevada has greater immunity from federal law than from the law of a sister state seems impossible to justify. In the example given, the constitutionality of California's exercise of personal jurisdiction would not seem to be in doubt, given the ample "minimum contacts" between the defendant state of Nevada and the forum state of California. And more generally, if state lines are not themselves of significance in restricting the federal government when establishing personal jurisdiction over civil cases in the federal courts, see HART & WECHSLER'S THE FEDERAL COURTS, supra note 66, at 1587-88, it is far from clear that they should hamper the federal government in authorizing the exercise of personal jurisdiction by state courts over those same federal civil claims. If there is a theory that would support this set of results, it escapes me. Of course, of the six Justices in the Hall majority, only Justice Stevens remains on the Court, and the current Chief Justice authored a sharp dissent in Hall; thus, perhaps that decision will be the next victim of the seemingly relentless expansion of state sovereign immunity.
123. The enthusiasm is particularly notable with regard to the Younger doctrine, see, e.g., HART & WECHSLER'S THE FEDERAL COURTS, supra note 66, at 1256-75, and decisions concerning the Tax Injunction Act, see, e.g., id. at 1216-22. In any event, the majority's approach creates other anomalies. One that David Shapiro pointed out to me can be made concrete with this hypothetical: Suppose Nevada employees were to spend several months living in California to study the operation of its public university system. If the employees work more
124. A Westlaw search, conducted on October 26, 1999, of the SCT database (which extends back to 1945) for the terms ["Eleventh Amendment" and dignit!] turned up a number of private suits against states, all decided after 1992: Alden v. Maine, 119 S. Ct. 2240 (1999), Idaho v. Coeur d'Alene Tribe, 521 U.S. 261 (1997), Seminole Tribe v. Florida, 517 U.S. 44 (1996), Hess v. Port Authority Trans-Hudson Corp., 513 U.S. 30 (1994), and Puerto Rico Aqueduct & Sewer Authority v. Metcalf & Eddy, Inc., 506 U.S. 139 (1993). Only two other cases turned up by this search even mention protection of state dignity in connection with state sovereign immunity. In Nevada v. Hall, 440 U.S. at 416, the Court, in the course of rejecting a claim of sovereign immunity, stated that any protection Nevada could claim against suit in a California court must emanate not from the 11th Amendment but from "the voluntary decision of the second [state] to respect the dignity of the first [state] as a matter of comity." In Petty v. TennesseeMissouri Bridge Commission, 359 U.S. 275 (1959), the Court, in discussing the Chisholm decision, quotes, in a footnote, a secondary source that describes the movement to adopt the 11th Amendment as motivated by the desire "to prevent subsequent affronts to the dignity of states." Id. at 276 n.1 (quoting MARIAN DORIS IRISH & JAMES WARREN PROTHRO, THE POLITICS OF AMERICAN DEMOCRACY 123 (1959)). This passing reference was not of particular significance in Petty, where the Court ruled that the states involved had waived any immunity by virtue of their entry into an interstate compact; nothing in the waiver analysis turned on conceptions of state dignity.
125. Alden, 119 S. Ct. at 2268; see also id. at 2263.
126. Id. at 2247 ("[The Constitution] reserves to [the states] a substantial portion of the Nation's primary sovereignty, together with the dignity and essential attributes inhering in that status.").
127. See Michael C. Dorf, The Limits of Socratic Deliberation, 112 HARV. L. REV. 4, 61 (1998); Monaghan, supra note 16, at 132.
128. See Daniel J. Meltzer, The History and Structure of Article III, 138 U. PA. L. REV. 1569, 1598 (1990).
129. The history is sketched in HART & WECHSLER'S THE FEDERAL COURTS, supra note 66, at 1212-15.
130. For discussion of formal versus functional elements in the Court's federalism decisions, see Kathleen M. Sullivan, Dueling Sovereignties: U.S. Term Limits, Inc. v. Thornton, 109 HARV. L. REV. 78 (1995). For a broader, if even a bit overstated, critique of the Supreme Court's federalism decisions as formalistic, see Erwin Chemerinsky, Formalism and Functionalism in Federalism Analysis, 13 GA. ST. U. L. REV. 959 (1997). Even the formal distinction between injunctions against state officers (permissible under Ex parte Young, 209 U.S. 123 (1908)) and damage actions against state treasuries (forbidden by Alden and Seminole Tribe) breaks down in practice. Injunctions, as Owen Fiss noted, can be viewed as pinpointed obligations under the governing constitutional or statutory provisions. See OWEN M. FISS, THE CIVIL RIGHTS INJUNCTION 32-37, 68-74, 80-81 (1978). And the Court has held that violation of the pinpointed obligations set forth in federal injunctions can lead to a judicial levy against the public fisc for contempt. See Hutto v. Finney, 437 U.S. 678 (1978); see also supra note 48. Why state dignity requires immunity from general statutory duties (no matter how clear) but not from pinpointed obligations as specified in a court order is never explained. Perhaps the Supreme Court is more concerned about adequate enforcement of judicial directives (injunctions) than of congressional directives (statutes).
131. For discussion of formal versus functional elements in the Court's federalism decisions, see Kathleen M. Sullivan, Dueling Sovereignties: U.S. Term Limits, Inc. v. Thornton, 109 HARV. L. REV. 78 (1995). For a broader, if even a bit overstated, critique of the Supreme Court's federalism decisions as formalistic, see Erwin Chemerinsky, Formalism and Functionalism in Federalism Analysis, 13 GA. ST. U. L. REV. 959 (1997). Even the formal distinction between injunctions against state officers (permissible under Ex parte Young, 209 U.S. 123 (1908)) and damage actions against state treasuries (forbidden by Alden and Seminole Tribe) breaks down in practice. Injunctions, as Owen Fiss noted, can be viewed as pinpointed obligations under the governing constitutional or statutory provisions. See OWEN M. FISS, THE CIVIL RIGHTS INJUNCTION 32-37, 68-74, 80-81 (1978). And the Court has held that violation of the pinpointed obligations set forth in federal injunctions can lead to a judicial levy against the public fisc for contempt. See Hutto v. Finney, 437 U.S. 678 (1978); see also supra note 48. Why state dignity requires immunity from general statutory duties (no matter how clear) but not from pinpointed obligations as specified in a court order is never explained. Perhaps the Supreme Court is more concerned about adequate enforcement of judicial directives (injunctions) than of congressional directives (statutes).
132. For discussion of formal versus functional elements in the Court's federalism decisions, see Kathleen M. Sullivan, Dueling Sovereignties: U.S. Term Limits, Inc. v. Thornton, 109 HARV. L. REV. 78 (1995). For a broader, if even a bit overstated, critique of the Supreme Court's federalism decisions as formalistic, see Erwin Chemerinsky, Formalism and Functionalism in Federalism Analysis, 13 GA. ST. U. L. REV. 959 (1997). Even the formal distinction between injunctions against state officers (permissible under Ex parte Young, 209 U.S. 123 (1908)) and damage actions against state treasuries (forbidden by Alden and Seminole Tribe) breaks down in practice. Injunctions, as Owen Fiss noted, can be viewed as pinpointed obligations under the governing constitutional or statutory provisions. See OWEN M. FISS, THE CIVIL RIGHTS INJUNCTION 32-37, 68-74, 80-81 (1978). And the Court has held that violation of the pinpointed obligations set forth in federal injunctions can lead to a judicial levy against the public fisc for contempt. See Hutto v. Finney, 437 U.S. 678 (1978); see also supra note 48. Why state dignity requires immunity from general statutory duties (no matter how clear) but not from pinpointed obligations as specified in a court order is never explained. Perhaps the Supreme Court is more concerned about adequate enforcement of judicial directives (injunctions) than of congressional directives (statutes).
133. See Alden, 119 S. Ct. at 2271-73.
134. See U.S. CONST. art. I, § 10.
135. United States v. Lee, 106 U.S. 196, 206, 208-09 (1882).
136. See Lopez, 514 U.S. at 564-65.
137. See, e.g., JACK N. RAKOVE, ORIGINAL MEANINGS 57-93, 181-201 (1996).
138. Alden, 119 S. Ct. at 2255-56.
139. Rakove, supra note 97, at 1043.
140. Jack N. Rakove, Making a Hash of Sovereignty, 2 GREEN BAG 35, 35 (1998).
141. See Rapaczynski, supra note 82, at 346-59.
142. 514 U.S. 779 (1995).
143. The same five Justices joined the majorities in Lopez, Seminole Tribe, Alden, Printz, and Gregory. Justice Souter added a sixth vote to the Gregory majority.
144. See Sullivan, supra note 117, at 103.
145. 514 U.S. at 838 (Kennedy, J., concurring).
146. See id. at 840-41 (quoting McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 403 (1819)). I refer to transformative nationalism as the view that while the Articles of Confederation were a traditional federation that preserved state sovereignty, the Constitution represented a novel re-ordering of affairs, in which the sovereign people designed a new national government that was supreme over the states but whose powers were limited in important respects. That view can be seen as standing between two others. A more purely nationalist view would stress that the separate colonies acted collectively through the Declaration of Independence and the Continental Congress and suggest that neither before nor after Independence were the states fully sovereign in the classic sense - most notably in their lack of traditional authority over foreign affairs. See, e.g., SAMUEL H. BEER, To MAKE A NATION: THE REDISCOVERY OF AMERICAN FEDERALISM 192-94, 235-36 (1993). A more state-oriented conception would contend that the states not only became sovereign entities during Independence and remained so during the Confederation period, but also that they preserved their political sovereignty even when the Constitution was ratified, except insofar as they delegated limited powers to the national government. See, e.g., U.S. Term Limits, 514 U.S. at 845-49 (Thomas, J., dissenting). History rarely falls into neat models. As Jack Rakove suggests, The deeper political reality underlying American constitutionalism was that sovereignty was effectively divided - parceled out - from the origin of the Republic (s). It did not leap the Atlantic in one fell swoop, to be partitioned among thirteen sovereign states, or to be vested intact in the national government of the Continental Congress. Rather, Congress and the states emerged simultaneously as effective institutions of government, each exercising powers that could be described as traditional marks of sovereignty, each collaborating in supporting the other's authority, and each compelled to place the imperatives of revolution above any concern about preserving sovereignty in its virginal, unitary purity. . . . As the American colonies metamorphosed into states, they alone possessed the sovereign power to enact statutes, collect taxes, and maintain the judicial systems that best defined the rights and duties of citizens. Yet in matters of war and diplomacy - the traditional badges of sovereignty in its international usage - the Continental Congress enjoyed an undisputed monopoly from its own inception in 1774. Significantly, too, when the time came to replace the defunct colonial regimes and the extralegal apparatus of revolutionary conventions with new legal governments, local authorities always solicited the approval of Congress before proceeding to draft the written charters that set American constitutionalism on its distinctive course. Yet when Congress in turn began drafting articles of confederation to define its own authority, its members recognized that whatever document they drafted would require approval by the states. Rakove, supra note 125, at 39 (emphasis in original).
147. See id. at 840-41 (quoting McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 403 (1819)). I refer to transformative nationalism as the view that while the Articles of Confederation were a traditional federation that preserved state sovereignty, the Constitution represented a novel re-ordering of affairs, in which the sovereign people designed a new national government that was supreme over the states but whose powers were limited in important respects. That view can be seen as standing between two others. A more purely nationalist view would stress that the separate colonies acted collectively through the Declaration of Independence and the Continental Congress and suggest that neither before nor after Independence were the states fully sovereign in the classic sense - most notably in their lack of traditional authority over foreign affairs. See, e.g., SAMUEL H. BEER, To MAKE A NATION: THE REDISCOVERY OF AMERICAN FEDERALISM 192-94, 235-36 (1993). A more state-oriented conception would contend that the states not only became sovereign entities during Independence and remained so during the Confederation period, but also that they preserved their political sovereignty even when the Constitution was ratified, except insofar as they delegated limited powers to the national government. See, e.g., U.S. Term Limits, 514 U.S. at 845-49 (Thomas, J., dissenting). History rarely falls into neat models. As Jack Rakove suggests, The deeper political reality underlying American constitutionalism was that sovereignty was effectively divided - parceled out - from the origin of the Republic (s). It did not leap the Atlantic in one fell swoop, to be partitioned among thirteen sovereign states, or to be vested intact in the national government of the Continental Congress. Rather, Congress and the states emerged simultaneously as effective institutions of government, each exercising powers that could be described as traditional marks of sovereignty, each collaborating in supporting the other's authority, and each compelled to place the imperatives of revolution above any concern about preserving sovereignty in its virginal, unitary purity. . . . As the American colonies metamorphosed into states, they alone possessed the sovereign power to enact statutes, collect taxes, and maintain the judicial systems that best defined the rights and duties of citizens. Yet in matters of war and diplomacy - the traditional badges of sovereignty in its international usage - the Continental Congress enjoyed an undisputed monopoly from its own inception in 1774. Significantly, too, when the time came to replace the defunct colonial regimes and the extralegal apparatus of revolutionary conventions with new legal governments, local authorities always solicited the approval of Congress before proceeding to draft the written charters that set American constitutionalism on its distinctive course. Yet when Congress in turn began drafting articles of confederation to define its own authority, its members recognized that whatever document they drafted would require approval by the states. Rakove, supra note 125, at 39 (emphasis in original).
148. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 403 (1819).
149. See U.S. Term Limits, 514 U.S. at 846-47 (Kennedy, J., concurring).
150. Id. at 838-39. Even commentators not unsympathetic to limits on national authority have been skeptical of Justice Thomas's constitutional account. See, e.g., Charles Fried, Foreword: Revolutions?, 109 HARV. L. REV. 13, 14-15 (1995).
151. Alden, 119 S. Ct. at 2247.
152. U.S. Term Limits, 514 U.S. at 841 (Kennedy, J., concurring).
153. Alden, 119 S. Ct. at 2264. In Printz, too, the Court put forward this notion of parity. See Printz, 521 U.S. at 928.
154. States, after all, lack broad authority to regulate the federal government or sometimes even its officials, see, e.g., Barr v. Matteo, 360 U.S. 564 (1959), or to preempt national legislative authority. In considering the aptness of a notion of reciprocity with regard more specifically to state and federal judiciaries, contrast the following well-established doctrines: (a) Congress may limit the exercise of state court jurisdiction over federal causes of action by vesting exclusive jurisdiction in the federal courts, see generally HART & WECHSLER'S THE FEDERAL COURTS, supra note 66, at 444-45, but (b) the states may not limit the exercise of federal jurisdiction (e.g., jurisdiction based on diversity of citizenship) over state causes of action, see Railway Co. v. Whitton's Adm'r, 80 U.S. 270 (1871).
155. Mondou v. New York, N.H. & H. R.R., 223 U.S. 1, 57 (1912). To be sure, other language in Mondou indicates that the case did not involve any attempt by Congress to enlarge state court jurisdiction, but rather that federal law presupposed that state courts already possessed such jurisdiction. See id. at 56.
156. Indeed, it is interesting how far the Alden majority succeeded - not completely, but considerably - in inducing Justice Souter to debate the case on originalist premises.
157. 65 U.S. 66 (1860).
158. Id. at 107-08 (emphasis added).
159. 483 U.S. 219 (1987).
160. Id. at 227, 228, 230. Notably, Justices O'Connor and Powell dissociated themselves from these broad statements. See id. at 231.
161. Id. at 225.
162. See generally JOHN V. ORTH, THE JUDICIAL POWER OF THE UNITED STATES: THE ELEVENTH AMENDMENT IN AMERICAN HISTORY (1987); John J. Gibbons, The Eleventh Amendment and State Sovereign Immunity: A Reinterpretation, 83 COLUM. L. REV. 1889 (1983).
163. See generally JOHN V. ORTH, THE JUDICIAL POWER OF THE UNITED STATES: THE ELEVENTH AMENDMENT IN AMERICAN HISTORY (1987); John J. Gibbons, The Eleventh Amendment and State Sovereign Immunity: A Reinterpretation, 83 COLUM. L. REV. 1889 (1983).
164. The majority opinion in Alden states that the first example of such legislation was the Federal Employer's Liability Act (FELA) in 1908. See Alden, 119 S. Ct. at 2261. In recent decades, as federal legislation has reached more widely and state activity has expanded so as to intersect with federal regulatory concerns, statutes subjecting states to suit have increased in number. They include (in addition to the FELA and the FLSA) the laws protecting copyrights, see 17 U.S.C. §§ 501 (a), 511 (1994) (enacted by Pub. L. No. 101-553, § 2(a)(1), 104 Stat. 2749, 2749-50 (1990)), trademarks, see 15 U.S.C. § 1122 (1994) (enacted by Pub. L. No. 102-542, § 3(b), 106 Stat. 3567, 3567-68 (1992)), and patents, see 35 U.S.C. § 296 (1994) (enacted by Pub. L. No. 102-560, § 2(a)(2), 106 Stat. 4230, 4230-31 (1992)); the Individuals with Disabilities Education Act, 20 U.S.C. § 1403 (Supp. III 1997) (enacted by Pub. L. No. 105-17, tit. I, § 101, 111 Stat. 37, 47 (1997)); the bankruptcy laws, see 11 U.S.C. § 106 (1996) (enacted by the Bankruptcy Reform Act of 1994, Pub. L. No. 103-394, § 113, 108 Stat. 4106, 4117 (1994)); the Veterans' Reemployment Rights Act, 38 U.S.C. § 4303(4)(a)(iii) (1994) (enacted by Pub. L. No. 103-353, §2(a), 108 Stat. 3149, 3150 (1994)); the Family and Medical Leave Act of 1993, 29 U.S.C. § 2617(a)(2) (1994) (enacted by Pub. L. No. 103-3, tit. I, § 104, 107 Stat. 6, 15 (1993)); laws preventing discrimination on various bases by recipients of federal funds, see The Rehabilitation Act Amendments of 1986, Pub. L. No. 99-506, tit. X, 100 Stat. 1807, 1845 (1986) (codified at 42 U.S.C. § 2000d-7 (1994)); laws providing for equal opportunity for individuals with disabilities, see 42 U.S.C. § 12202 (1994) (enacted by Pub. L. No. 101-336, tit. V, § 502, 104 Stat. 327, 340 (1990)); and the age discrimination in employment laws, see The Fair Labor Standards Amendments of 1974, Pub. L. No. 93-259, § 28 (a) (2), 88 Stat. 55, 74 (codified as amended at 29 U.S.C. § 630(b) (1994)).
165. See generally GEORGE C. CHRISTIE ET AL., CASES AND MATERIALS ON THE LAW OF TORTS 1330-31 (3d ed. 1997); HART & WECHSLER'S THE FEDERAL COURTS, supra note 66, at 1027-39; James E. Pfander, An Intermediate Solution to State Sovereign Immunity: Federal Appellate Court Reveiew of State Court Judgments After Seminole Tribe, 46 UCLA L. REV. 161, 205-07 & nn.166-69 (1998).
166. See generally GEORGE C. CHRISTIE ET AL., CASES AND MATERIALS ON THE LAW OF TORTS 1330-31 (3d ed. 1997); HART & WECHSLER'S THE FEDERAL COURTS, supra note 66, at 1027-39; James E. Pfander, An Intermediate Solution to State Sovereign Immunity: Federal Appellate Court Reveiew of State Court Judgments After Seminole Tribe, 46 UCLA L. REV. 161, 205-07 & nn.166-69 (1998).
167. See generally GEORGE C. CHRISTIE ET AL., CASES AND MATERIALS ON THE LAW OF TORTS 1330-31 (3d ed. 1997); HART & WECHSLER'S THE FEDERAL COURTS, supra note 66, at 1027-39; James E. Pfander, An Intermediate Solution to State Sovereign Immunity: Federal Appellate Court Reveiew of State Court Judgments After Seminole Tribe, 46 UCLA L. REV. 161, 205-07 & nn.166-69 (1998).
168. Kennecott Copper Corp. v. State Tax Comm'n, 327 U.S. 573, 580 (1946) (Frankfurter, J., dissenting).
169. See generally Alden, 119 S. Ct. at 2269-87 (Souter, J., dissenting).
170. See City of Boerne v. Flores, 521 U.S. 507, 535-36 (1997).
171. See Seminole Tribe, 517 U.S. at 64 ("If Hans means only that federal-question suits for money damages against the States cannot be brought in federal court unless Congress clearly says so, it means nothing at all." (quoting Pennsylvania v. Union Gas Co., 491 U.S. 1, 36 (1989) (Scalia, J., dissenting))).
172. Of course, the Alden ruling created considerable tension with statements in earlier opinions that the 11th Amendment does not apply in state court - statements whose fair implication was that the point disposed of any sovereign immunity issue. See, e.g., Hilton v. South Carolina Pub. Ry. Comm'n, 502 U.S. 197, 205 (1991); Maine v. Thiboutot, 448 U.S. 1, 9 n.7 (1980); cf. Nevada v. Hall, 440 U.S. 410, 420-21 (1979) ("[A]ll of these cases [concerning the scope of state sovereign immunity] concerned questions of federal-court jurisdiction . . . . These decisions do not answer the question whether the Constitution places any limit on the exercise of one's State's power to authorize its courts to assert jurisdiction over another State."). For some of the difficulties found in Alden's treatment of precedent, see HART & WECHSLER'S 1999 SUPPLEMENT, supra note *, at 135-36.
173. Michael W. McConnell, Institutions and Interpretation: A Critique of City of Boerne v. Flores, 111 HARV. L. REV. 153, 174 (1997).
174. For a similar suggestion, see Caminker, supra note 1, at 1001, 1007.
175. Herbert Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 COLUM. L. REV. 543, 544 (1954).
176. See PHILIP BOBBITT, CONSTITUTIONAL FATE 190-95 (1982); Jenna Bednar & William N. Eskridge, Jr., Steadying the Court's "Unsteady Path": A Theory of Judicial Enforcement of Federalism, 68 S. CAL. L. REV. 1447-50 (1995); Jackson, supra note 1, at 2227; Meltzer, supra note 9, at 63; Richard B. Stewart, Pyramids of Sacrifice? Problems of Federalism in Mandating State Implementation of National Environmental Policy, 86 YALE L.J. 1196, 1270 (1976); Mark Tushnet, Why the Supreme Court Overruled National League of Cities, 47 VAND. L. REV. 1623, 1652 (1994).
177. See PHILIP BOBBITT, CONSTITUTIONAL FATE 190-95 (1982); Jenna Bednar & William N. Eskridge, Jr., Steadying the Court's "Unsteady Path": A Theory of Judicial Enforcement of Federalism, 68 S. CAL. L. REV. 1447-50 (1995); Jackson, supra note 1, at 2227; Meltzer, supra note 9, at 63; Richard B. Stewart, Pyramids of Sacrifice? Problems of Federalism in Mandating State Implementation of National Environmental Policy, 86 YALE L.J. 1196, 1270 (1976); Mark Tushnet, Why the Supreme Court Overruled National League of Cities, 47 VAND. L. REV. 1623, 1652 (1994).
178. See PHILIP BOBBITT, CONSTITUTIONAL FATE 190-95 (1982); Jenna Bednar & William N. Eskridge, Jr., Steadying the Court's "Unsteady Path": A Theory of Judicial Enforcement of Federalism, 68 S. CAL. L. REV. 1447-50 (1995); Jackson, supra note 1, at 2227; Meltzer, supra note 9, at 63; Richard B. Stewart, Pyramids of Sacrifice? Problems of Federalism in Mandating State Implementation of National Environmental Policy, 86 YALE L.J. 1196, 1270 (1976); Mark Tushnet, Why the Supreme Court Overruled National League of Cities, 47 VAND. L. REV. 1623, 1652 (1994).
179. See PHILIP BOBBITT, CONSTITUTIONAL FATE 190-95 (1982); Jenna Bednar & William N. Eskridge, Jr., Steadying the Court's "Unsteady Path": A Theory of Judicial Enforcement of Federalism, 68 S. CAL. L. REV. 1447-50 (1995); Jackson, supra note 1, at 2227; Meltzer, supra note 9, at 63; Richard B. Stewart, Pyramids of Sacrifice? Problems of Federalism in Mandating State Implementation of National Environmental Policy, 86 YALE L.J. 1196, 1270 (1976); Mark Tushnet, Why the Supreme Court Overruled National League of Cities, 47 VAND. L. REV. 1623, 1652 (1994).
180. See Jesse H. Choper, Did the Last Term Reveal "A Revolutionary States' Rights Movement Within the Supreme Court"?, 46 CASE W. RES. L. REV. 663-64 (1996); Deborah Jones Merritt, Commerce!, 94 MICH. L. REV. 674, 692 (1995); Robert F. Nagel, The Future of Federalism, 46 CASE W. RES. L. REV. 643, 648 (1996); Louis H. Pollak, Foreword, 94 MICH. L. REV. 533, 551-52 (1995); H. Jefferson Powell, Enumerated Means and Unlimited Ends, 94 MICH. L. REV. 651, 652 (1995).
181. See Jesse H. Choper, Did the Last Term Reveal "A Revolutionary States' Rights Movement Within the Supreme Court"?, 46 CASE W. RES. L. REV. 663-64 (1996); Deborah Jones Merritt, Commerce!, 94 MICH. L. REV. 674, 692 (1995); Robert F. Nagel, The Future of Federalism, 46 CASE W. RES. L. REV. 643, 648 (1996); Louis H. Pollak, Foreword, 94 MICH. L. REV. 533, 551-52 (1995); H. Jefferson Powell, Enumerated Means and Unlimited Ends, 94 MICH. L. REV. 651, 652 (1995).
182. See Jesse H. Choper, Did the Last Term Reveal "A Revolutionary States' Rights Movement Within the Supreme Court"?, 46 CASE W. RES. L. REV. 663-64 (1996); Deborah Jones Merritt, Commerce!, 94 MICH. L. REV. 674, 692 (1995); Robert F. Nagel, The Future of Federalism, 46 CASE W. RES. L. REV. 643, 648 (1996); Louis H. Pollak, Foreword, 94 MICH. L. REV. 533, 551-52 (1995); H. Jefferson Powell, Enumerated Means and Unlimited Ends, 94 MICH. L. REV. 651, 652 (1995).
183. See Jesse H. Choper, Did the Last Term Reveal "A Revolutionary States' Rights Movement Within the Supreme Court"?, 46 CASE W. RES. L. REV. 663-64 (1996); Deborah Jones Merritt, Commerce!, 94 MICH. L. REV. 674, 692 (1995); Robert F. Nagel, The Future of Federalism, 46 CASE W. RES. L. REV. 643, 648 (1996); Louis H. Pollak, Foreword, 94 MICH. L. REV. 533, 551-52 (1995); H. Jefferson Powell, Enumerated Means and Unlimited Ends, 94 MICH. L. REV. 651, 652 (1995).
184. See Jesse H. Choper, Did the Last Term Reveal "A Revolutionary States' Rights Movement Within the Supreme Court"?, 46 CASE W. RES. L. REV. 663-64 (1996); Deborah Jones Merritt, Commerce!, 94 MICH. L. REV. 674, 692 (1995); Robert F. Nagel, The Future of Federalism, 46 CASE W. RES. L. REV. 643, 648 (1996); Louis H. Pollak, Foreword, 94 MICH. L. REV. 533, 551-52 (1995); H. Jefferson Powell, Enumerated Means and Unlimited Ends, 94 MICH. L. REV. 651, 652 (1995).
185. The current version of 18 U.S.C. § 922 (1994), as amended by Pub. L. No. 104-208, tit. I, § 101 (f) (1996), forbids possession in a school zone of a firearm "that has moved in or that otherwise affects interstate or foreign commerce." Most commentators have assumed that the amended statute falls comfortably within the Commerce Clause even after Lopez, see, e.g., Steven D. Clymer, Unequal Justice: The Federalization of Criminal Law, 70 S. CAL. L. REV. 643, 662-64 (1997); Kit Kinports, Implied Waiver After Seminole Tribe, 82 MINN. L. REV. 793, 822 n.119 (1998); Harry Litman & Mark D. Greenberg, Federal Power and Federalism: A Theory of Commerce-Clause Based Regulation of Traditionally State Crimes, 47 CASE W. RES. L. REV. 921, 930-31 (1997), and the statute's constitutionality was upheld in a routine opinion in United States v. Danks, 187 F.3d 643 (8th Cir. 1999) (unpublished table decision).
186. The current version of 18 U.S.C. § 922 (1994), as amended by Pub. L. No. 104-208, tit. I, § 101 (f) (1996), forbids possession in a school zone of a firearm "that has moved in or that otherwise affects interstate or foreign commerce." Most commentators have assumed that the amended statute falls comfortably within the Commerce Clause even after Lopez, see, e.g., Steven D. Clymer, Unequal Justice: The Federalization of Criminal Law, 70 S. CAL. L. REV. 643, 662-64 (1997); Kit Kinports, Implied Waiver After Seminole Tribe, 82 MINN. L. REV. 793, 822 n.119 (1998); Harry Litman & Mark D. Greenberg, Federal Power and Federalism: A Theory of Commerce-Clause Based Regulation of Traditionally State Crimes, 47 CASE W. RES. L. REV. 921, 930-31 (1997), and the statute's constitutionality was upheld in a routine opinion in United States v. Danks, 187 F.3d 643 (8th Cir. 1999) (unpublished table decision).
187. The current version of 18 U.S.C. § 922 (1994), as amended by Pub. L. No. 104-208, tit. I, § 101 (f) (1996), forbids possession in a school zone of a firearm "that has moved in or that otherwise affects interstate or foreign commerce." Most commentators have assumed that the amended statute falls comfortably within the Commerce Clause even after Lopez, see, e.g., Steven D. Clymer, Unequal Justice: The Federalization of Criminal Law, 70 S. CAL. L. REV. 643, 662-64 (1997); Kit Kinports, Implied Waiver After Seminole Tribe, 82 MINN. L. REV. 793, 822 n.119 (1998); Harry Litman & Mark D. Greenberg, Federal Power and Federalism: A Theory of Commerce-Clause Based Regulation of Traditionally State Crimes, 47 CASE W. RES. L. REV. 921, 930-31 (1997), and the statute's constitutionality was upheld in a routine opinion in United States v. Danks, 187 F.3d 643 (8th Cir. 1999) (unpublished table decision).
188. See, e.g., Caminker, supra note 14, at 199-200; Jesse H. Choper, On the Difference in Importance Between Supreme Court Doctrine and Actual Consequences: A Review of the Supreme Court's 1996-1997 Term, 19 CARDOZO L. REV. 2259, 2269 (1998).
189. 120 S. Ct. 666 (2000). There, the Court unanimously reversed the Fourth Circuit, which had declared the Federal Driver's Privacy Protection Act unconstitutional under both Printz and New York. In so ruling, the Supreme Court stressed that the Act, while it regulates the states, does not require a state to either enact any laws regulating private individuals or to assist in enforcing federal statutes regulating private individuals. See id. at 672. The Court did say that it did not need to address (and thus could be viewed as having left open) the question whether a law lacking either of these defects might nonetheless be void because it regulates the states exclusively; the Act regulates private entities as well. See id. at 669-70.
190. Alden, 119 S. Ct. at 2266-68.
191. See Garcia v. San Antonio Metro Transit Auth., 469 U.S. 528, 580 (1980) (Rehnquist, J., dissenting); id. at 589 (O'Connor, J., dissenting).
192. See supra note 28.
193. On the other hand, perhaps Alden could contribute to the Court's arguing, some years from now, that Garcia has been sufficiently undercut by subsequent decisions that it can no longer be viewed as good law. Cf. Yoo, supra note 28, at 1334-35 (declaring, before Alden, that Garcia is not and should not be viewed as good law).
194. See generally Richard H. Fallon, Jr., Foreword: Implementing the Constitution, 111 HARV. L. REV. 54 (1997).
195. 426 U.S. 833 (1976).
196. See Garcia, 469 U.S. at 533-39, 546-47. Mark Tushnet notes from his examination of the Court's internal records in the Brennan and Marshall papers that Justice Blackmun initially voted to invalidate the application of the FLSA to the governmental activity involved in Garcia, but after being assigned the opinion, he prepared a draft reaching the opposite result - presumably because the opinion he expected to draft would not write. See Tushnet, supra note 157, at 1627-28.
197. See generally Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW (Amy Gutmann ed., 1997); Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. CHI. L. REV. 1175, 1185 (1989). Of course, Justices Scalia and Kennedy did join Gregory v. Ashcroft, 501 U.S. 452 (1991), which endorses a doctrinal test, as a matter of statutory interpretation, that may also be difficult to apply predictably. See supra text accompanying notes 15-17.
198. See generally Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW (Amy Gutmann ed., 1997); Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. CHI. L. REV. 1175, 1185 (1989). Of course, Justices Scalia and Kennedy did join Gregory v. Ashcroft, 501 U.S. 452 (1991), which endorses a doctrinal test, as a matter of statutory interpretation, that may also be difficult to apply predictably. See supra text accompanying notes 15-17.
199. See, e.g., Currie, supra note 15, at 149; Vázquez, supra note 15, at 2-3.
200. Moreover, though I doubt that the historical materials go very far in supporting the Court's ultimate conclusion, without a doubt there were elements in the historical record - both from the Founding era and from the evolution of remedies in the nineteenth and early twentieth centuries - that resonate with the view that state governments are immune from retrospective liability. See generally Woolhandler, supra note 76.
201. Meltzer, supra note 9, at 63.
202. Charles Fried, Supreme Court Folly, N.Y. TIMES, July 6, 1999, at A1 7.
203. See supra Part I.
204. Kathleen M. Sullivan, Federal Power, Undimmed, N.Y. TIMES, June 27, 1999, § 4, at 17.
205. Id.; see also Rapaczynski, supra note 82, at 346 n.21 (dismissing sovereign immunity as largely irrelevant to federalism because states are not immune from suit by other states or the United States - with little attention to the effectiveness of such suits in enforcing legal regimes). Mark Tushnet echoes this perspective and offers the related argument that "lessthan-maximally effective remedies are not strangers even to constitutional law," pointing to cases limiting the reach of Bivens remedies or extending qualified immunity from damages in constitutional tort actions against officials. Tushnet, supra note 52, at 73 n.212. The point is surely correct, but overlooks the difference between remedies ordered by courts on their own (or when enforcing broadly worded enactments like 42 U.S.C. § 1983 (1994)) and remedies whose provision is specifically directed by federal legislation; constitutional foreclosure of the latter is a far more serious matter.
206. A sociologist of the legal academy might wonder whether differing perspectives on the significance of a decision like Alden may be partially explained by the conventional division of constitutional law topics in law school curricula. In general, the bulk of federalism-related matters - for example, the reach of the commerce power (as well as its dormant preemptive effect); the existence vel non of constitutionally protected areas of state autonomy from federal regulation; and the scope of legislative power under the Reconstruction amendments - are discussed in the basic constitutional law course. Other topics that bear importantly on the enforcement of constitutional rights - sovereign immunity, constitutional remedies, congressional control of federal court jurisdiction, and remedial authority - are typically considered in federal courts or civil rights courses. Dean Sullivan is a teacher of constitutional law but not of federal courts. By contrast, as a federal courts teacher who does not teach the standard constitutional law course, perhaps I am predisposed "to doubt that 'the central problems for constitutional law . . . are issues of the definition of rights rather than the creation of a machinery of jurisdiction and remedies that can transform rights proclaimed on paper into practical protections.'" Daniel J. Meltzer, Deterring Constitutional Violations by Law Enforcement Officials: Plaintiffs and Defendants as Private Attorneys General, 88 COLUM. L. REV. 247, 282 (1988) (quoting Benno C. Schmidt, Jr., Juries, Jurisdiction, and Race Discrimination: The Lost Promise of Strauder v. West Virginia, 61 TEX. L. REV. 1401, 1413 (1983)). Attention to the available machinery in statutory cases like Alden, it should go without saving, is of equal importance. As put, the point is plainly too crude: some constitutional law teachers lament Alden, while some federal courts teachers think it correct; and quite a few law professors confound any simple distinction by teaching both subjects. But nonetheless it seems possible that the differing perspectives of the different courses may account for some of the variation in reactions to Alden.
207. A sociologist of the legal academy might wonder whether differing perspectives on the significance of a decision like Alden may be partially explained by the conventional division of constitutional law topics in law school curricula. In general, the bulk of federalism-related matters - for example, the reach of the commerce power (as well as its dormant preemptive effect); the existence vel non of constitutionally protected areas of state autonomy from federal regulation; and the scope of legislative power under the Reconstruction amendments - are discussed in the basic constitutional law course. Other topics that bear importantly on the enforcement of constitutional rights - sovereign immunity, constitutional remedies, congressional control of federal court jurisdiction, and remedial authority - are typically considered in federal courts or civil rights courses. Dean Sullivan is a teacher of constitutional law but not of federal courts. By contrast, as a federal courts teacher who does not teach the standard constitutional law course, perhaps I am predisposed "to doubt that 'the central problems for constitutional law . . . are issues of the definition of rights rather than the creation of a machinery of jurisdiction and remedies that can transform rights proclaimed on paper into practical protections.'" Daniel J. Meltzer, Deterring Constitutional Violations by Law Enforcement Officials: Plaintiffs and Defendants as Private Attorneys General, 88 COLUM. L. REV. 247, 282 (1988) (quoting Benno C. Schmidt, Jr., Juries, Jurisdiction, and Race Discrimination: The Lost Promise of Strauder v. West Virginia, 61 TEX. L. REV. 1401, 1413 (1983)). Attention to the available machinery in statutory cases like Alden, it should go without saving, is of equal importance. As put, the point is plainly too crude: some constitutional law teachers lament Alden, while some federal courts teachers think it correct; and quite a few law professors confound any simple distinction by teaching both subjects. But nonetheless it seems possible that the differing perspectives of the different courses may account for some of the variation in reactions to Alden.
208. See Meltzer, supra note 9, at 47.
209. See id. (discussing Seminole Tribe, 517 U.S. at 71-72).
210. See supra note 147.
211. 119 S. Ct. 2199 (1999).
212. Pub. L. No. 102-560, § 2(a), 106 Stat. 4230, 4230 (1992) (codified at 35 U.S.C. §§ 271(h), 296 (1994)).
213. 427 U.S. 445 (1976).
214. Concern to that effect had been expressed directly by lower courts. See, e.g., Chavez v. Arte Publico Press, 139 F.3d 504, 510-11 (5th Cir. 1998) (holding that to permit an action against a state for copyright infringement under Section 5 would be "a direct end-run around Seminole's holding that Article I powers may not be employed to avoid the Eleventh Amendment's limit on the federal judicial power"), vacated and remanded, 180 F.3d 674 (5th Cir. 1999) (en banc) (per curiam).
215. For varying defenses of this decision, see, for example, Christopher L. Eisgruber & Lawrence G. Sager, Congressional Power and Religious Liberty After City of Boerne v. Flores, 1997 SUP. CT. REV. 79, Vicki C. Jackson, Ambivalent Resistance and Comparative Constitutionalism: Opening Up the Conversation on "Proportionality," Rights and Federalism, 1 U. PA. J. CONST. L. 583 (1999), and William W. Van Alstyne, The Failure of the Religious Freedom Restoration Act Under Section 5 of the Fourteenth Amendment, 46 DUKE L.J. 291 (1996). For criticism, see, for example, Akhil Reed Amar, Intratextualism, 112 HARV. L. REV. 747, 818-27 (1999), David Cole, The Value of Seeing Things Differently: Boerne v. Flores and Congressional Enforcement of the Bill of Rights, 1997 SUP. CT. REV. 31, and McConnell, supra note 154.
216. For varying defenses of this decision, see, for example, Christopher L. Eisgruber & Lawrence G. Sager, Congressional Power and Religious Liberty After City of Boerne v. Flores, 1997 SUP. CT. REV. 79, Vicki C. Jackson, Ambivalent Resistance and Comparative Constitutionalism: Opening Up the Conversation on "Proportionality," Rights and Federalism, 1 U. PA. J. CONST. L. 583 (1999), and William W. Van Alstyne, The Failure of the Religious Freedom Restoration Act Under Section 5 of the Fourteenth Amendment, 46 DUKE L.J. 291 (1996). For criticism, see, for example, Akhil Reed Amar, Intratextualism, 112 HARV. L. REV. 747, 818-27 (1999), David Cole, The Value of Seeing Things Differently: Boerne v. Flores and Congressional Enforcement of the Bill of Rights, 1997 SUP. CT. REV. 31, and McConnell, supra note 154.
217. For varying defenses of this decision, see, for example, Christopher L. Eisgruber & Lawrence G. Sager, Congressional Power and Religious Liberty After City of Boerne v. Flores, 1997 SUP. CT. REV. 79, Vicki C. Jackson, Ambivalent Resistance and Comparative Constitutionalism: Opening Up the Conversation on "Proportionality," Rights and Federalism, 1 U. PA. J. CONST. L. 583 (1999), and William W. Van Alstyne, The Failure of the Religious Freedom Restoration Act Under Section 5 of the Fourteenth Amendment, 46 DUKE L.J. 291 (1996). For criticism, see, for example, Akhil Reed Amar, Intratextualism, 112 HARV. L. REV. 747, 818-27 (1999), David Cole, The Value of Seeing Things Differently: Boerne v. Flores and Congressional Enforcement of the Bill of Rights, 1997 SUP. CT. REV. 31, and McConnell, supra note 154.
218. For varying defenses of this decision, see, for example, Christopher L. Eisgruber & Lawrence G. Sager, Congressional Power and Religious Liberty After City of Boerne v. Flores, 1997 SUP. CT. REV. 79, Vicki C. Jackson, Ambivalent Resistance and Comparative Constitutionalism: Opening Up the Conversation on "Proportionality," Rights and Federalism, 1 U. PA. J. CONST. L. 583 (1999), and William W. Van Alstyne, The Failure of the Religious Freedom Restoration Act Under Section 5 of the Fourteenth Amendment, 46 DUKE L.J. 291 (1996). For criticism, see, for example, Akhil Reed Amar, Intratextualism, 112 HARV. L. REV. 747, 818-27 (1999), David Cole, The Value of Seeing Things Differently: Boerne v. Flores and Congressional Enforcement of the Bill of Rights, 1997 SUP. CT. REV. 31, and McConnell, supra note 154.
219. For varying defenses of this decision, see, for example, Christopher L. Eisgruber & Lawrence G. Sager, Congressional Power and Religious Liberty After City of Boerne v. Flores, 1997 SUP. CT. REV. 79, Vicki C. Jackson, Ambivalent Resistance and Comparative Constitutionalism: Opening Up the Conversation on "Proportionality," Rights and Federalism, 1 U. PA. J. CONST. L. 583 (1999), and William W. Van Alstyne, The Failure of the Religious Freedom Restoration Act Under Section 5 of the Fourteenth Amendment, 46 DUKE L.J. 291 (1996). For criticism, see, for example, Akhil Reed Amar, Intratextualism, 112 HARV. L. REV. 747, 818-27 (1999), David Cole, The Value of Seeing Things Differently: Boerne v. Flores and Congressional Enforcement of the Bill of Rights, 1997 SUP. CT. REV. 31, and McConnell, supra note 154.
220. See Florida Prepaid, 119 S. Ct. at 2209 (quoting 5 DONALD S. CHISUM, PATENTS § 16.02(2), at 16-31 (rev. ed. 1998) ("It is, of course, elementary that an infringement may be entirely inadvertent and unintentional and without knowledge of the patent.")).
221. See id. at 2213 (Stevens, J., dissenting).
222. On the preference for as-applied adjudication, see, for example, United States v. Salerno, 481 U.S. 739, 751-52 (1987), Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 504 (1985), and Yazoo & Mississippi Valley Railroad v. Jackson Vinegar Co., 226 U.S. 217, 219-20 (1912).
223. Moreover, the precise meaning of the requirement of intentional conduct in the patent context is difficult to discern because of the Court's failure to apply it to the facts of the case. The requirement originated in Daniels v. Williams, 474 U.S. 327 (1986), where a prisoner claimed that he injured himself after tripping over a pillow negligently left on a staircase by a prison official. Quite different from that situation was the one alleged in Florida Prepaid - that a state agency was engaged in systematic marketing of a product that infringed the plaintiff's patent. Surely the conduct of the responsible state officials in developing and marketing the product in question was intentional, as was any resulting harm to (diversion of business from) the plaintiff. It would hardly seem necessary, in order to be faithful to Daniels's evident concern with avoiding the constitutionalization of isolated instances of official negligence, to require a further showing that the responsible state officials knew (a) that the plaintiff held the patent in question, (b) that the patent was valid, or (c) that the state's use was an infringing one.
224. See City of Chicago v. Morales, 119 S. Ct. 1849, 1867-70 (1999) (Scalia, J., dissenting); id. at 1886 (Thomas, J., joined by Rehnquist, C.J. & Scalia, J.); Janklow v. Planned Parenthood, 517 U.S. 1174, 1175-76 (Scalia, J., joined by Rehnquist, C.J. & Thomas, J., dissenting) (denying certiorari to Planned Parenthood v. Miller, 63 F.3d 1452 (8th Cir. 1995)); Ohio v. Akron Ctr. for Reprod. Health, 497 U.S. 502, 514 (1990) (Kennedy, J., joined, inter alia, by Rehnquist, C.J. & O'Connor & Scalia, JJ.) (stating that "[t]he Court of Appeals should not have invalidated the Ohio statute on a facial challenge based upon a worst-case analysis that may never occur"); United States v. Salerno, 481 U.S. 739 (1987) (Rehnquist, C.J., joined, inter alia, by O'Connor & Scalia, JJ.).
225. My colleague Dick Fallon, while in the end critical of the Court's facial invalidation of the Patent Remedy Act, has suggested a possible explanation therefor. In his view, (a) the appropriateness of facial challenges depends upon the nature of the constitutional infirmity in the statute, as some infirmities (e.g., unconstitutional purpose) may infect a statute in its entirety, and (b) the defect in Florida Prepaid might plausibly be viewed as a failure by Congress adequately to deliberate about, and to articulate legislative findings concerning, the need for the legislation as a means of enforcing the Constitution - a failure that infected the entire statute. See Richard H. Fallon, Jr., As-Applied and Facial Challenges and Third-Party Standing, 113 HARV. L. REV. (forthcoming Apr. 2000). Of course, as Fallon recognizes, the observation that some constitutional defects may infect any conceivable statutory application does not necessarily require facial invalidation - that is, a judicial order enjoining every application of the statute. Rather, it ordinarily would suffice for the court to invalidate the statute as applied to particular litigants, albeit on a theory whose implication is that no other application of the statute would be constitutional. In practice the two approaches are unlikely to vary significantly unless a second court not bound by the prior ruling were to disagree with it. The key question, then, is whether the applicable test under City of Boerne concerns a defect in congressional process. The recent decision in Kimel v. Florida Board of Regents, 120 S. Ct. 631 (2000), suggests that the initial inquiry under City of Boerne is one of proportionality, which considers whether a substantial percentage of cases to which a statute applies involve conduct that also would violate the 14th Amendment. See id. at 644-45. The Court added, however, that the fact [t]hat [a statute] prohibits very little conduct likely to be held unconstitutional, while significant, does not alone provide the answer to our Section 5 inquiry. Difficult and intractable problems often require powerful remedies, and we have never held that Section 5 precludes Congress from enacting reasonably prophylactic legislation. . . . One means by which we have made such a determination in the past is by examining the legislative record containing the reasons for Congress''quot;quot;quot;quot;quot;quot;quot;quot;quot;quot;quot;quot;quot;quot; action. Id, at 648. It thus appears that any process concern under City of Boerne is secondary, arising only after a finding that an insufficient proportion of conduct reached by a statute is also unconstitutional. There remains, however, a question about how this primary standard of proportionality is capable of as applied adjudication. In individual rights litigation, a litigant whose conduct is constitutionally protected may, without more, have a statute declared invalid as applied to his conduct. By contrast, a state, when contending that a measure falls outside of Section 5, does not prevail simply by showing that the particular conduct at issue is not independently unconstitutional; the constitutional question in the particular case depends upon consideration of the general reach of the statute as compared to the reach of the self-executing Constitution. Still, merely because the proportionality test by its nature compares two classes of conduct does not preclude as applied adjudication. For example, even were the Patent Remedy Act to be deemed unconstitutional, because disproportionate, if applied to all state patent infringement whether or not intentional, the Court could have ruled that at least as applied to a narrower set of conduct (for example, intentional state infringements) the Patent Remedy Act was not disproportionate and thus could be constitutionally be applied on this narrower basis. And had the Court followed that approach, it appears that there would have been no occasion to consider any possible "process" defect in the Act. Other arguments for permitting facial attacks in some cases might be based upon (a) the unavailability of a determinate rule to delineate the narrowed scope for valid statutory application, see Henry Paul Monaghan, Overbreadth, 1981 SUP. CT. REV. 1; cf. Note, The First Amendment Overbreadth Doctrine, 83 HARV. L. REV. 844 (1970); or (b) relatedly, whether such excision can easily be imposed or instead would burden the courts by requiring a very large number of as-applied attacks in order clearly and fully to remove constitutional defects, cf. Baggett v. Bullitt, 377 U.S. 360, 376-78 (1964) (refusing to abstain in a vagueness challenge where it was "fictional to believe that anything less than extensive adjudications, under the impact of a variety of factual situations, would bring the oath within the bounds of permissible constitutional certainty").
226. See Fallon, supra note 191.
227. 451 U.S. 527 (1981).
228. 494 U.S. 113 (1990).
229. On that point, the facts in Florida Prepaid were very different from those of Parratt and its progeny, which were one-shot instances of unlawful conduct by individual state officers. In Florida Prepaid the state was continuously involved in the marketing of a product that it knew the plaintiff claimed to be an infringement of the plaintiff's patent. On those facts, the plaintiff patent holder might well have been able to establish that, in the words of the Zinermon decision, it "seeks to hold state officials accountable for their abuse of their broadly delegated, uncircumscribed power to effect the deprivation at issue." Zinermon, 494 U.S. at 136.
230. Moreover, the idea that patent infringement issues should be determined in state courts under state post-deprivation remedies is itself troubling for a different reason. As Justice Stevens noted in his dissent, see Alden, 119 S. Ct. at 2212-13, Congress has long determined that claims arising under the patent laws should be within the exclusive jurisdiction of the federal courts, which are more expert than state courts and better able to promote much-needed uniformity, see 28 U.S.C. § 1338 (1994). For much the same reasons, but far more exceptionally, Congress has consolidated appeals in patent cases in a single circuit - the Court of Appeals for the Federal Circuit. See id. § 1295. Yet the Florida Prepaid opinion wreaks havoc with this system in those cases in which the alleged patent infringer is a state government: for even when an alleged infringement might violate constitutionally protected property rights, on the Court's theory the only remedy (at least in states that do provide post-deprivation remedies) is for patent holders to file suit in state trial courts and to proceed though the state court system, with virtually no chance of obtaining federal review.
231. Zinernon, 494 U.S. at 124-27.
232. 227 U.S. 278 (1913).
233. A second exception to the general rule of Home Telephone is found in the rule, long pre-dating Parratt and Zinermon, that under the Just Compensation Clause a taking of property by a state official without authorization does not give the property holder a right to compensation from the state, but instead only to remedies against the official. See infra note 205. It is a question worthy of further study how that doctrine and the rule of Home Telephone came to co-exist.
234. For some discussion of this question from quite different frameworks, see Christina Bohannan & Thomas F. Cotter, When the State Steals Ideas: Is the Abrogation of State Sovereign Immunity from Federal Infringement Claims Constitutional in Light of Seminote Tribe?, 67 FORDHAM L. REV. 1435, 1503-08 (1999), Richard H. Fallon,Jr., Some Confusions About Due Process, Judicial Review, and Constitutional Remedies, 93 COLUM. L. REV. 309 (1993), and Paul J. Heald & Michael L. Wells, Remedies for the Misappropriation of Intellectual Property by State and Municipal Governments Before and After Seminole Tribe: The Eleventh Amendment and Other Immunity Doctrines, 55 WASH. & LEE L. REV. 849, 900-01 (1998). My own view is that the entire set of cases has mischaracterized in procedural due process terms what should be viewed as substantive harms, and that the critical question should be whether the substantive harm is the kind of injury against which the Constitution provides protection. For an elaboration of a similar view, see, for example, Michael Wells & Thomas A. Eaton, Substantive Due Process and the Scope of Constitutional Torts, 18 GA. L. REV. 201 (1984).
235. For some discussion of this question from quite different frameworks, see Christina Bohannan & Thomas F. Cotter, When the State Steals Ideas: Is the Abrogation of State Sovereign Immunity from Federal Infringement Claims Constitutional in Light of Seminote Tribe?, 67 FORDHAM L. REV. 1435, 1503-08 (1999), Richard H. Fallon,Jr., Some Confusions About Due Process, Judicial Review, and Constitutional Remedies, 93 COLUM. L. REV. 309 (1993), and Paul J. Heald & Michael L. Wells, Remedies for the Misappropriation of Intellectual Property by State and Municipal Governments Before and After Seminole Tribe: The Eleventh Amendment and Other Immunity Doctrines, 55 WASH. & LEE L. REV. 849, 900-01 (1998). My own view is that the entire set of cases has mischaracterized in procedural due process terms what should be viewed as substantive harms, and that the critical question should be whether the substantive harm is the kind of injury against which the Constitution provides protection. For an elaboration of a similar view, see, for example, Michael Wells & Thomas A. Eaton, Substantive Due Process and the Scope of Constitutional Torts, 18 GA. L. REV. 201 (1984).
236. For some discussion of this question from quite different frameworks, see Christina Bohannan & Thomas F. Cotter, When the State Steals Ideas: Is the Abrogation of State Sovereign Immunity from Federal Infringement Claims Constitutional in Light of Seminote Tribe?, 67 FORDHAM L. REV. 1435, 1503-08 (1999), Richard H. Fallon,Jr., Some Confusions About Due Process, Judicial Review, and Constitutional Remedies, 93 COLUM. L. REV. 309 (1993), and Paul J. Heald & Michael L. Wells, Remedies for the Misappropriation of Intellectual Property by State and Municipal Governments Before and After Seminole Tribe: The Eleventh Amendment and Other Immunity Doctrines, 55 WASH. & LEE L. REV. 849, 900-01 (1998). My own view is that the entire set of cases has mischaracterized in procedural due process terms what should be viewed as substantive harms, and that the critical question should be whether the substantive harm is the kind of injury against which the Constitution provides protection. For an elaboration of a similar view, see, for example, Michael Wells & Thomas A. Eaton, Substantive Due Process and the Scope of Constitutional Torts, 18 GA. L. REV. 201 (1984).
237. For some discussion of this question from quite different frameworks, see Christina Bohannan & Thomas F. Cotter, When the State Steals Ideas: Is the Abrogation of State Sovereign Immunity from Federal Infringement Claims Constitutional in Light of Seminote Tribe?, 67 FORDHAM L. REV. 1435, 1503-08 (1999), Richard H. Fallon,Jr., Some Confusions About Due Process, Judicial Review, and Constitutional Remedies, 93 COLUM. L. REV. 309 (1993), and Paul J. Heald & Michael L. Wells, Remedies for the Misappropriation of Intellectual Property by State and Municipal Governments Before and After Seminole Tribe: The Eleventh Amendment and Other Immunity Doctrines, 55 WASH. & LEE L. REV. 849, 900-01 (1998). My own view is that the entire set of cases has mischaracterized in procedural due process terms what should be viewed as substantive harms, and that the critical question should be whether the substantive harm is the kind of injury against which the Constitution provides protection. For an elaboration of a similar view, see, for example, Michael Wells & Thomas A. Eaton, Substantive Due Process and the Scope of Constitutional Torts, 18 GA. L. REV. 201 (1984).
238. Moreover, as Vicki Jackson has pointed out, the evident purpose of the Parratt-Zinermon doctrine was to avoid federalizing routine state law actions when the tortfeasor happens to be someone acting under color of state law - hardly a concern in the patent area, which long has been the exclusive domain of the national government. See Vicki C. Jackson, Seductions of Coherence, State Sovereign Immunity and the Denationalization of Federal Law, 30 RUTGERS L. REV. (forthcoming 2000).
239. City of Boerne, 521 U.S. at 519-520. Note in the companion decision in College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board, 119 S. Ct. 2219 (1999), an offhand comment by the Court described the scope of power under Section 5 in terms far narrower than those used in City of Boerne. After having found that the state conduct at issue did not constitute a deprivation of property, the Court said, [W] e need not pursue the follow-on question that City of Boerne would otherwise require us to resolve: whether the prophylactic measure taken under purported authority of Section 5 (viz., prohibition of States' sovereign-immunity claims, which are not in themselves a violation of the Fourteenth Amendment) was genuinely necessary to prevent violation of the Fourteenth Amendment. Id. at 2225 (emphasis added).
240. City of Boerne, 521 U.S. at 530-31.
241. See supra note 191.
242. See HART & WECHSLER 1999 SUPPLEMENT, supra note *, at 105. The Court did not consider a distinct argument for upholding the Patent Remedy Act - that it was a valid exercise of power under Section 5 to enforce the constitutional protection against takings of property without just compensation. Noting that neither the text nor the committee reports suggested that Congress had in mind the Just Compensation Clause, the Court took the view that Congress's explicit reliance on its (purported) authority under Article I and its authority under Section 5 to enforce the due process right "preclude [d] consideration of the Just Compensation Clause as a basis for the Patent Remedy Act." Florida Prepaid, 119 S. Ct. at 2208 n.7. That refusal was somewhat extraordinary, though not entirely unprecedented. For example, in the Civil Rights Cases, 109 U.S. 3 (1883), the Court invalidated sections 1-2 of the Civil Rights Act of 1875 as falling outside the scope of the congressional authority under the enforcement clauses of the 13th and 14th Amendments. In so ruling, the Court refused to consider whether those provisions, in at least certain applications, might be justified as a valid exercise of the commerce power, reasoning that the provisions "in question are not conceived in any such view." Id. at 19. The dissent objected in turn: "Has it ever been held that the judiciary should overturn a statute, because the legislative department did not accurately recite therein the particular provision of the Constitution authorizing its enactment?" Id. at 60 (Harlan, J., dissenting). More recent authority, however, suggests, that no such recitation is necessary. In EEOC v. Wyoming, 460 U.S. 226 (1983), the Court stated that the constitutionality of a federal statute does not depend on whether Congress recited the particular source of legislative authority under which the statute might be upheld. Id. at 243-44 n.18 (quoting Woods v. Cloyd W. Miller Co., 333 U.S. 138, 144 (1948)). The statement was strictly dictum, as the Court there upheld the ADEA under the commerce power, on which Congress had explicitly relied. However, both the majority opinion and the Chief Justice's dissent appeared to agree that Congress, in extending that act to state and local governmental employers, had not expressly relied upon any purported authority under Section 5 of the 14th Amendment. See id. at 243-44 n.18; id. at 251-52 (Burger, C.J., dissenting). And in its recent decision in Kimel v. Florida. Board of Regents, 120 S. Ct. 631 (2000), the Court did proceed to rule on whether that same act, as applied to state employers, could be upheld as an exercise of congressional power under Section 5 - without suggesting any disagreement with the view that Congress had not purported to rely on that source of legislative authority in enacting the ADEA. With regard to the Patent Remedy Act, given that Congress made clear its intention both to regulate the states and to rely on both Article I and Section 5 powers in doing so, it is difficult to see what purpose would be served by refusing to consider whether the Act might be justified as a measure enforcing the Just Compensation rather than the Due Process Clause. In the end, however, given the Court's approach to the due process argument in Florida Prepaid, it is doubtful that a Section 5 argument based on the Just Compensation Clause would have prevailed. First, it appears to be well accepted under the Just Compensation Clause that government action that is ultra vires is not a taking. See generally Matthew D. Zinn, Note, Ultra Vires Takings, 97 MICH. L. REV. 245 (1998). This understanding presents a particular problem if, as some have argued, federal intellectual property laws preempt authority states would otherwise have to condemn, and pay just compensation for, intellectual property rights. See Bohannan & Cotter, supra note 200, at 1459-69. On that view, because states by definition lack authority to take intellectual property rights, any infringement by officials is unauthorized. Whatever the correct view on the preemption issue, insofar as state officials who were infringing patents were doing so without state authorization, their conduct would not give rise to a right to just compensation and thus, under the approach of Florida Prepaid, the Patent Remedy Act would be constitutionally suspect as sweeping more broadly than does the Constitution. Relatedly, even where a taking is not ultra vires, a claim for just compensation ordinarily is not ripe until the claimant has sought compensation under state law. See Wlliamson County Reg'l Planning Comm'n v. Hamilton Bank, 473 U.S. 172 (1985). Insofar as states do offer compensation for takings of intellectual property rights, then under the analysis of Florida Prepaid the Patent Remedy Act would, for a second reason, reach far beyond the scope of the Just Compensation Clause.
243. See HART & WECHSLER 1999 SUPPLEMENT, supra note *, at 105. The Court did not consider a distinct argument for upholding the Patent Remedy Act - that it was a valid exercise of power under Section 5 to enforce the constitutional protection against takings of property without just compensation. Noting that neither the text nor the committee reports suggested that Congress had in mind the Just Compensation Clause, the Court took the view that Congress's explicit reliance on its (purported) authority under Article I and its authority under Section 5 to enforce the due process right "preclude [d] consideration of the Just Compensation Clause as a basis for the Patent Remedy Act." Florida Prepaid, 119 S. Ct. at 2208 n.7. That refusal was somewhat extraordinary, though not entirely unprecedented. For example, in the Civil Rights Cases, 109 U.S. 3 (1883), the Court invalidated sections 1-2 of the Civil Rights Act of 1875 as falling outside the scope of the congressional authority under the enforcement clauses of the 13th and 14th Amendments. In so ruling, the Court refused to consider whether those provisions, in at least certain applications, might be justified as a valid exercise of the commerce power, reasoning that the provisions "in question are not conceived in any such view." Id. at 19. The dissent objected in turn: "Has it ever been held that the judiciary should overturn a statute, because the legislative department did not accurately recite therein the particular provision of the Constitution authorizing its enactment?" Id. at 60 (Harlan, J., dissenting). More recent authority, however, suggests, that no such recitation is necessary. In EEOC v. Wyoming, 460 U.S. 226 (1983), the Court stated that the constitutionality of a federal statute does not depend on whether Congress recited the particular source of legislative authority under which the statute might be upheld. Id. at 243-44 n.18 (quoting Woods v. Cloyd W. Miller Co., 333 U.S. 138, 144 (1948)). The statement was strictly dictum, as the Court there upheld the ADEA under the commerce power, on which Congress had explicitly relied. However, both the majority opinion and the Chief Justice's dissent appeared to agree that Congress, in extending that act to state and local governmental employers, had not expressly relied upon any purported authority under Section 5 of the 14th Amendment. See id. at 243-44 n.18; id. at 251-52 (Burger, C.J., dissenting). And in its recent decision in Kimel v. Florida. Board of Regents, 120 S. Ct. 631 (2000), the Court did proceed to rule on whether that same act, as applied to state employers, could be upheld as an exercise of congressional power under Section 5 - without suggesting any disagreement with the view that Congress had not purported to rely on that source of legislative authority in enacting the ADEA. With regard to the Patent Remedy Act, given that Congress made clear its intention both to regulate the states and to rely on both Article I and Section 5 powers in doing so, it is difficult to see what purpose would be served by refusing to consider whether the Act might be justified as a measure enforcing the Just Compensation rather than the Due Process Clause. In the end, however, given the Court's approach to the due process argument in Florida Prepaid, it is doubtful that a Section 5 argument based on the Just Compensation Clause would have prevailed. First, it appears to be well accepted under the Just Compensation Clause that government action that is ultra vires is not a taking. See generally Matthew D. Zinn, Note, Ultra Vires Takings, 97 MICH. L. REV. 245 (1998). This understanding presents a particular problem if, as some have argued, federal intellectual property laws preempt authority states would otherwise have to condemn, and pay just compensation for, intellectual property rights. See Bohannan & Cotter, supra note 200, at 1459-69. On that view, because states by definition lack authority to take intellectual property rights, any infringement by officials is unauthorized. Whatever the correct view on the preemption issue, insofar as state officials who were infringing patents were doing so without state authorization, their conduct would not give rise to a right to just compensation and thus, under the approach of Florida Prepaid, the Patent Remedy Act would be constitutionally suspect as sweeping more broadly than does the Constitution. Relatedly, even where a taking is not ultra vires, a claim for just compensation ordinarily is not ripe until the claimant has sought compensation under state law. See Wlliamson County Reg'l Planning Comm'n v. Hamilton Bank, 473 U.S. 172 (1985). Insofar as states do offer compensation for takings of intellectual property rights, then under the analysis of Florida Prepaid the Patent Remedy Act would, for a second reason, reach far beyond the scope of the Just Compensation Clause.
244. See Meltzer, supra note 9, at 20-24.
245. See id. at 47-50.
246. Kimel v. Florida Bd. of Regents, 120 S. Ct. 631 (2000), affirming Kimel v. State Bd. of Regents, 139 F.3d 1426 (11th Cir. 1998). This Term, the Supreme Court granted certiorari in two cases raising the question whether Congress has constitutional power to abrogate the states' 11th Amendment immunity from suit under the Americans with Disabilities Act, but certiorari was dismissed in both cases. See Alsbrook v. Arkansas, 120 S. Ct. 1003, cert. dismissed, No. 99-423, 2000 WL 230234 (U.S. Mar. 1, 2000); Florida Dep't of Corrections v. Dickson, 120 S. Ct. 976, cert. dismissed, No. 98-829, 2000 WL 215674 (U.S. Feb. 23, 2000).
247. The dissenters made no effort to argue that the ADEA was a valid exercise of legislative authority under Section 5; instead, they took issue with the holding of Seminole Tribe that Congress lacks power, when legislating under Article I, to abrogate state sovereign immunity. See 120 S. Ct. at 650-52 (Stevens, J., dissenting).
248. See Litman v. George Mason Univ., 186 F.3d 544 (4th Cir. 1999).
249. The Court's language in Alden concerning conditional spending is entirely unilluminating: "Nor, subject to constitutional limitations, does the Federal Government lack the authority or means to seek the States' voluntary consent to private suits." Alden, 119 S. Ct. at 2267. The discussion of suits by the United States could be viewed as ominous with regard to the qui tarn issue: [A] suit which is commenced and prosecuted against a State in the name of the United States by those who are entrusted with the constitutional duty to "take Care that the Laws be faithfully executed," U.S. CONST. art. II, § 3, differs in kind from the suit of an individual: While the Constitution contemplates suits among the members of the federal system as an alternative to extralegal measures, the fear of private suits against nonconsenting States was the central reason given by the founders who chose to preserve the States' sovereign immunity. Suits brought by the United States itself require the exercise of political responsibility for each suit prosecuted against a State, a control which is absent from a broad delegation to private persons to sue nonconsenting States. Id. (emphasis added). For a powerful argument that sovereign immunity does not shield states from qui tam actions, see Caminker, supra note 56. As for conditional preemption - that is, legislation providing that state activity in a particular area will be preempted unless the state waives sovereign immunity - the holding in the companion decision in College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board, 119 S. Ct. 2219 (1999), may cast some doubt upon the constitutionality of at least some uses of that legislative technique. The Court there ruled that Florida had not waived its sovereign immunity by engaging in federallyregulated for profit activity in the face of a federal statute clearly providing that such activity would subject the state to suit. In expressly rejecting any notion of constructive waiver of immunity, the Court distinguished holdings permitting Congress to require a state to waive its immunity as a condition of obtaining federal funds or federal approval of an interstate compact. Those holdings, the Court ruled in College Savings Bank, involved congressional grants of gratuities (spending or approval of compacts); by contrast, exclusion of a state from otherwise permissible activity, the Court stated, is not a gratuity but a sanction. See id. at 2231. Preemption, needless to say, is precisely exclusion of a state from otherwise permissible activity. Of course, there is a baseline problem here that the Court failed to acknowledge. Suppose that Congress had in an initial enactment unconditionally preempted states from operating railroads that engage in or affect interstate commerce. If Congress were thereafter, in a second enactment, to offer the states the opportunity to have that prohibition lifted, so as to permit them to operate railroads, on the condition that states waive immunity, that offer would expand the states' options as compared to the baseline of the prior unconditional preemption of state authority. Thus, it would be hard to view the second enactment as imposing a sanction. Yet it is difficult to believe that the constitutionality of a statutory scheme that preempts state authority unless the state waives immunity should depend on whether the congressional action was taken all at once (in which case the state could be viewed as excluded from otherwise permissible activity) or in two steps (in which case the state could be viewed as permitted, conditionally, to engage in what would otherwise be impermissible).
250. See Kimel, 120 S. Ct. at 643.
251. See Alsbrook, 120 S. Ct. at 1003; Dickson, 120 S. Ct. at 976.
252. United States ex rel. Stevens v. Vermont Agency of Natural Resources, 162 F.3d 195 (2d Cir. 1998), cert. granted, 119 S. Ct. 2391 (1999), order directing supplemental briefing, 120 S. Ct. 523 (1999).
253. See Brzonkala v. Virginia Polytechnic Inst. & State Univ., 169 F.3d 820 (4th Cir. 1999) (invalidating the Violence Against Women Act), cert. granted sub nom. United States v. Morrison, 120 S. Ct. 11 (1999).
254. Cf. Jackson, supra note 1, at 2226-28. See generally Adler & Kreimer, supra note 1, at 134-40; Monaghan, supra note 16, at 121-22 (stating that decisions like Seminole Tribe "work as a catalyst for political and social change").
255. See Kramer, supra note 56.
256. See supra note 159.
257. See Meltzer, supra note 9, at 64.
258. For a stronger statement, see JEREMY RABKIN, WHY SOVEREIGNTY MATTERS 8 (1998) (noting that by the early 1990s, "[t]he notion that some matters are properly reserved for the state and localities to determine for themselves . . . seemed almost to have disappeared from political culture as well as constitutional law").