The U.S. Supreme Court's federalism jurisprudence: Alden v. Maine and the enhancement of state sovereignty

Publius: The Journal of Federalism

Volumn 30, Issue 1, 2000, Pages 21-38

  Mezey, Susan Gluck ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0039257852     PISSN: 00485950     EISSN: None     Source Type: Journal    
DOI: 10.1093/oxfordjournals.pubjof.a030062     Document Type: Article

References (94)

1. Michael Rappaport, "Reconciling Textualism and Federalism: The Proper Textual Basis of the Supreme Court's Tenth and Eleventh Amendment Decisions," Northwestern University Law Review 93 (Spring 1999): 819.
2. Linda Greenhouse, "States Are Given New Legal Shield By Supreme Court," New York Times, 24 June 1999, p. A1.
3. David G. Savage, "A Watershed Term for Federalism," State Legislatures 25 (September 1999): 18.
4. See Michelle Lawner, "Why Federal Courts Should Be Required to Consider State Sovereign Immunity Sua Sponte," University of Chicago Law Review 66 (Fall 1999): 1261-1288.
5. Richard A. Brisbin, Jr., "The Reconstitution of American Federalism? The Rehnquist Court and Federal-State Relations. 1991-1997," Publius: The Journal of Federalism 28 (Winter 1998): 190.
6. The Eleventh Amendment was ratified in 1798 to overturn the U.S. Supreme Court's decision in Chisholm v. Georgia, 5 U.S. (2 Dall.) 419 (1793), in which the Court held that a citizen of South Carolina could bring an action against the State of Georgia, overriding the state's defense of sovereign immunity. Although the language of the amendment is limited to barring the federal courts from hearing suits against nonconsenting states by noncitizens, the Court has long interpreted it to preclude suits against nonconsenting states by its citizens as well-even in cases arising under federal question, rather than diversity, jurisdiction (Hans v. Louisiana, 134 U.S. 1 (1890)); see Laura M. Herpers, "State Sovereign Immunity; Myth or Reality After Seminole Tribe of Florida v. Florida," Catholic University Law Review 46 (Spring 1997): 1005-1007, and notes therein.
7. 119 S. Ct. 2240 (1999).
8. Frank Cross, "Realism About Federalism," New York University Law Review 74 (November 1999): 1323.
9. Although all three areas of law have been implicated, the Court has largely refrained from effecting wholesale changes in its Tenth Amendment and commerce clause doctrines. The shift in the federal-state balance of power has primarily been accomplished though the expansion of sovereign immunity under the Eleventh Amendment. The Court has also restricted Congress's authority to act underSection 5 of the Fourteenth Amendment.
10. 514 U.S. 549 (1995).
11. See Kenneth T. Palmer and Edward B. Laverty, "The Impact of United States v. Lopez on Intergovernmental Relations: A Preliminary Assessment," Publius: The Journal of Federalism 26 (Summer 1996): 109-126.
12. United States v. Lopez, 2 F. 3d 1342 (5th Cir. 1993).
13. Lopez, 514 U.S. at 561.
14. 317 U.S. 111 (1942).
15. 517 U.S. 441 (1996).
16. In Parden v. Terminal Railway, 377 U.S. 184 (1964), the Court formulated the "constructed waiver" doctrine, which, as clarified by later cases, allowed individuals to sue states when Congress specified in the statute that states waived their sovereign immunity by engaging in a particular conduct. However, in Atascadero State Hospital v. Scanlon, 473 U.S. 234, 242-243 (1985), involving a suit against California under the Rehabilitation Act of 1973, the Court announced the so-called "clear statement rule," requiring Congress to make "its intention [to abrogate state immunity] unmistakably clear in the language of the statute."
17. The Court also considered the related question of whether the doctrine of Ex Parte Young, 209 U.S. 123 (1908), permitted a suit against the governor of the state for injunctive relief to enforce the good-faith bargaining clause of the IRGA. Under Young, the federal courts have jurisdiction over suits for prospective injunctive relief against state officers; the suit is brought under the legal fiction that it is actually against the officer and not the state. The Court again explained the relationship between a state's Eleventh Amendment immunity and its liability for suit under the Young doctrine in Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261 (1997).
18. 491 U.S. 1 (1989).
19. Seminole Tribe, 517 U.S. at 64.
20. Seminole Tribe, 517 U.S. at 72-73.
21. In Fitzpatrick v. Bitzer, 427 U.S. 445 (1976), a case involving the state's liability for sex discrimination in employment under Title VII, the Court held that because the Fourteenth Amendment was intended to alter the federal-state balance of power, Congress may abrogate a state's Eleventh Amendment immunity when enforcing the provisions of the Fourteenth Amendment under Section 5.
22. Seminole Tribe, 517 U.S. at 77.
23. 521 U.S. 507 (1997).
24. 494 U.S. 872 (1990).
25. Boerne, 521 U.S. at 520.
26. The "proportionality" requirement was not novel, although it was argued that Congress had not been required to strictly adhere to it in earlier civil rights cases. See Marci Hamilton and David Schoenbrod, "The Reaffirmation of Proportionality Analysis under Section 5 of the Fourteenth Amendment," Cardozo Law Review 21 (December 1999): 469-492.
27. Sanford F. Schram and Carol S. Weissert "The State of American Federalism, 1996-1997," Publius: The Journal of Federalism 27 (Spring 1997): 27.
28. 521 U.S. 898 (1997).
29. 426 U.S. 833 (1976).
30. 469 U.S. 528 (1985).
31. 485 U.S. 505 (1988).
32. 505 U.S. 144 (1992).
33. Michael C. Tolley and Bruce Wallin, "Coercive Federalism and Constitutional Limits," Publius: The Journal of Federalism 25 (Fall 1995): 74-75 (emphasis added); see also Brisbin, "The Reconstitution of American Federalism."
34. Michael C. Tolley and Bruce Wallin, "Coercive Federalism and Constitutional Limits," Publius: The Journal of Federalism 25 (Fall 1995): 74-75 (emphasis added); see also Brisbin, "The Reconstitution of American Federalism."
35. The act required the "chief law enforcement officer" of the buyer's residence to "make a reasonable effort to ascertain within five business days" background information about the prospective buyer.
36. Although it has been suggested that the Constitution's guarantee of a "republican form of government" to each state may be used to justify immunities, the language and intent of the clause were primarily aimed at preventing "anti-republican actions taken on the state level"; Rappaport, "ReconcilingTextualism and Federalism," 830 n. 41.
37. Printz, 521 U.S. at 898.
38. See the discussion in Baker on the relationship between the Tenth Amendment and the state's protection through the political process.
39. For further discussion of the debate over states' reliance on the political process, see H. Geoffrey Moulton, "The Quixotic Search for a Judicially Enforceable Federalism," Minnesota Law Review 83 (April 1999): 851-852. See also Schram and Weissert, "The State of American Federalism," 28. They suggest that the majority opinion attempts to revitalize the discarded theory of "dual federalism," a theory that emphasizes separate spheres of authority between the states and the federal government.
40. For further discussion of the debate over states' reliance on the political process, see H. Geoffrey Moulton, "The Quixotic Search for a Judicially Enforceable Federalism," Minnesota Law Review 83 (April 1999): 851-852. See also Schram and Weissert, "The State of American Federalism," 28. They suggest that the majority opinion attempts to revitalize the discarded theory of "dual federalism," a theory that emphasizes separate spheres of authority between the states and the federal government.
41. Mark Tushnet, "Leading Cases: I. Constitutional Law," Harvard Law Review 113 (November 1999): 200.
42. Tushnet, "Leading Cases," 214.
43. Prior to passage of the PRA, the lower courts had dismissed such suits against states, ruling that they were barred by the Eleventh Amendment.
44. After the Court's ruling in Seminole Tribe, the state agency moved to dismiss the complaint, arguing that the PRA was an unconstitutional attempt by Congress to abrogate the state's immunity under Article I. The bank asserted that the 1992 law was constitutional under Congress's authority to enforce the due process clause of the Fourteenth Amendment.
45. College Savings Bank v. Florida Prepaid Postecondary Education Expense Board, 948 F.Supp. 400 (D.N.J. 1996), affirmed by 148 F. 3d 1343 (Fed. Cir. 1998).
46. 119 S.Ct. 2199 (1999).
47. Florida Prepaid, 119 S.Ct. at 2210.
48. College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board, 948 F. Supp. 400 (D.N.J. 1996), affirmed by 131 F. 3d 353 (3d Cir. 1997).
49. 119 S. Ct. 2219 (1999).
50. The Court overruled Parden, holding that Congress could no longer subject states to "Parden-like constructive waivers"; Tushnet, "Leading Cases," 214.
51. The Court overruled Parden, holding that Congress could no longer subject states to "Parden-like constructive waivers"; Tushnet, "Leading Cases," 214.
52. College Savings Bank, 119 S. Ct. at 2229.
53. The FLSA, originally exempting federal, state, and local government units, was amended in 1966 to include certain state agencies within the definition of employer.
54. Mills v. State, 1996 U.S. Dist. LEXIS 9985 (D. Me. July 1996), affirmed by 118 F. 3d 37 (1st Cir. 1997).
55. Alden v. Maine, 715 A. 2d 172, 174 (Me. 1998).
56. Alden, Brief for Petitioners at 22-23.
57. Alden, Brief for United States at 42.
58. Alden, Brief for Amici States at 3.
59. The brief for the amici states conceded that Congress may override a state's immunity from suit when acting under the authority of Section 5 of the Fourteenth Amendment, but insisted that the FLSA was clearly not enacted to enforce the Fourteenth Amendment.
60. Alden, 119 S. Ct. at 2246-2247.
61. Alden, 119 S. Ct. at 2254.
62. According to Tushnet, "Leading Cases" 206, the Court was using Alden as an opportunity to revisit Garcia, in which it had held that the Tenth Amendment did not exempt states from the reach of the FLSA. In ruling that sovereign immunity nullified the most effective enforcement mechanism of the FLSA-the private cause of action-the Court created an inconsistency between the two holdings.
63. The Court acknowledged some limitations on sovereign immunity, including suits brought by other states or the federal government, suits brought under statutes enacted to enforce Congress's Fourteenth Amendment authority, suits against municipalities or other government entities not arms of the state, and suits for injunctive relief or against state officials in their individual capacities.
64. Alden, 119 S. Ct. at 2264.
65. Alden, 119 S. Ct. at 2293. (emphasis added).
66. Condon v. Reno, 155 F. 3D 453 (4th Cir. 1998).
67. 120 S. Ct. 666 (2000).
68. See Palmer and Laverty, "The Impact of United State v. Lopez," 113-114, and cases cited therein; see also Lisanne Newell Leasure, "Commerce Clause Challenges Spawned by United States v. Lopez Are Doing Violence to the Violence Against Women Act (VAWA): A Survey of Cases and the Ongoing Debate Over How the VAWA Will Fare in the Wake of Lopez," Maine Law Review 50 (No. 2, 1998): 409-443.
69. See Palmer and Laverty, "The Impact of United State v. Lopez," 113-114, and cases cited therein; see also Lisanne Newell Leasure, "Commerce Clause Challenges Spawned by United States v. Lopez Are Doing Violence to the Violence Against Women Act (VAWA): A Survey of Cases and the Ongoing Debate Over How the VAWA Will Fare in the Wake of Lopez," Maine Law Review 50 (No. 2, 1998): 409-443.
70. 2000 U.S. LEXIS 3422 (2000).
71. The Court had also granted certiorari to a seventh circuit case involving a Lopez challenge to a federal law regulating criminal behavior, United States v. Jones, 178 F. 3d 479 (7th Cir. 1999). In Jones, the appellate court rejected the defendant's argument that Lopez deprived Congress of the authority to criminalize arson against private residences, as opposed to commercial buildings.
72. In this first suit for damages under the civil rights provision of VAWA, Christy Brzonkala filed a suit for damages in federal court against the men whom she claimed raped her in her college dormitory room. See Danielle M. Houck. "VAWA After Lopez; Reconsidering Congressional Power Under the Fourteenth Amendment in Light of Brzonkala v. Virginia Polytechnic and State University," U.C. Davis Law Review 31 (Winter 1998): 625-653.
73. Brzonkala v. Virginia Polytechnic and State University, 935 F. Supp. 779 (W.D. Va. 1996).
74. Brzonkala, 132 F. 3d 949 (4th Cir. 1997).
75. The divided panel also reinstated the plaintiff's Title IX claim of a hostile environment.
76. Brzonkala, 169 F. 3d 820 (4th Cir. 1999).
77. Morrison, 2000 U.S. LEXIS at 27.
78. Morrison, 2000 U.S. LEXIS at 33.
79. 109 U.S. 3 (1883).
80. Also on the Court's docket was another Eleventh Amendment case, Vermont Agency of Natural Resources v. United States, 162 F. 3d 195 (2d Cir. 1998). This case involved the question whether states were "persons" under the False Claims Act and thus were subject to suit. Both lower courts rejected the state's argument that it was entitled to immunity under the Eleventh Amendment.
81. Charles Brown, "Congressional Abrogation of Eleventh Amendment Immunity by Passing the ADEA and the ADA," Baylor Law Review 51 (Spring 1999): 340.
82. 120 S. Ct. 631 (2000).
83. The two Florida cases were Kimel and Dickson v. Florida Department of Corrections; the Alabama case was MacPherson v. University of Montevallo. The plaintiffs alleged they were denied various pay increases and promotions by their respective employers, the two state universities and the state corrections department.
84. 139 F. 3d 1426 (11th Cir. 1998). Dickson had also alleged discrimination on the basis of a disability under the ADA. The Supreme Court did not consider the ADA claim in Kimel.
85. The two other judges on the panel each concurred and dissented, one arguing that both statutes abrogated state immunity, the other maintaining that states were immune under both statutes.
86. The ADEA originally excluded government employees; however, in 1974, in amending the FLSA, Congress extended the Act's coverage to state and federal employers and specified that individuals may bring civil actions against their employers in state or federal court.
87. 460 U.S. 226 (1983).
88. Kimel, 120 S. Ct. at 645.
89. Kimel, 120 S. Ct. at 648-649.
90. Kimel, 120 S. Ct. at 653.
91. After granting the petition for certiorari in Varner v. Illinois State University, 150 F. 3d 706 (7th Cir. 1998), the Court vacated the appellate court's judgment and remanded the case for further consideration in light of Kimel. In Varner, the appellate court denied the state's claim of immunity, concluding that Congress had expressed its intention to abrogate immunity in the Equal Pay Act and that it had properly exercised its Section 5 authority in doing so.
92. Florida Prepaid, 119 S. Ct. at 2219.
93. Tushnet, "Leading Cases," 207.
94. Kimel, 120 S. Ct. at 653. Stevens indicated that despite his regard for stare decisis, he was "unwilling to accept Seminole Tribe as controlling precedent."