Pledging a new allegiance: An essay on sovereignty and the new federalism

Notre Dame Law Review

Volumn 75, Issue 3, 2000, Pages 1133-1145

  Farber, Daniel A ^a  

^a UNIVERSITY OF MINNESOTA LAW SCHOOL   (United States)

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EID: 23044519907     PISSN: 07453515     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (75)

1. My focus will be on cases involving sovereign immunity from suit, but I will also discuss sovereign immunity from "commandeering." For background on both issues, see LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 519-66, 879-94 (3d ed. 1999). A particularly good introduction to the 11th Amendment and its tangled jurisprudence can be found in Daniel J. Meltzer, The Seminole Decision and State Sovereign Immunity, 1996 SUP. Cr. REV. 1. For historical background on the concept of sovereignty in American constitutionalism, see Akhil Reed Amar, Of Sovereignty and Federalism, 96 YALE L.J. 1425 (1987), and H.Jefferson Powell, The Political Grammar of Early Constitutional Law, 71 N.C. L. REV. 848 (1993).
2. My focus will be on cases involving sovereign immunity from suit, but I will also discuss sovereign immunity from "commandeering." For background on both issues, see LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 519-66, 879-94 (3d ed. 1999). A particularly good introduction to the 11th Amendment and its tangled jurisprudence can be found in Daniel J. Meltzer, The Seminole Decision and State Sovereign Immunity, 1996 SUP. Cr. REV. 1. For historical background on the concept of sovereignty in American constitutionalism, see Akhil Reed Amar, Of Sovereignty and Federalism, 96 YALE L.J. 1425 (1987), and H.Jefferson Powell, The Political Grammar of Early Constitutional Law, 71 N.C. L. REV. 848 (1993).
3. My focus will be on cases involving sovereign immunity from suit, but I will also discuss sovereign immunity from "commandeering." For background on both issues, see LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 519-66, 879-94 (3d ed. 1999). A particularly good introduction to the 11th Amendment and its tangled jurisprudence can be found in Daniel J. Meltzer, The Seminole Decision and State Sovereign Immunity, 1996 SUP. Cr. REV. 1. For historical background on the concept of sovereignty in American constitutionalism, see Akhil Reed Amar, Of Sovereignty and Federalism, 96 YALE L.J. 1425 (1987), and H.Jefferson Powell, The Political Grammar of Early Constitutional Law, 71 N.C. L. REV. 848 (1993).
4. My focus will be on cases involving sovereign immunity from suit, but I will also discuss sovereign immunity from "commandeering." For background on both issues, see LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 519-66, 879-94 (3d ed. 1999). A particularly good introduction to the 11th Amendment and its tangled jurisprudence can be found in Daniel J. Meltzer, The Seminole Decision and State Sovereign Immunity, 1996 SUP. Cr. REV. 1. For historical background on the concept of sovereignty in American constitutionalism, see Akhil Reed Amar, Of Sovereignty and Federalism, 96 YALE L.J. 1425 (1987), and H.Jefferson Powell, The Political Grammar of Early Constitutional Law, 71 N.C. L. REV. 848 (1993).
5. See 36 U.S.C. § 172 (1994). The phrase "under God" is a Cold War era addition. See Steven B. Epstein, Rethinking the Constitutionality of Ceremonial Deism, 96 COLUM. L. REV. 2083, 2118-22 (1996).
6. For purposes of this Essay, I am putting to the side the question of whether the Court will successfully be able to apply the New Federalism as a principled limit on national power. See Frank B. Cross, Realism About Federalism, 74 N.Y.U. L. REV. 1304 (1999).
7. See Vicki C. Jackson, Coeur D'Alene, Federal Courts and the Supremacy of Federal Law: The Competing Paradigms of Chief Justices Marshall and Rehnquist, 15 CONST. COMMENTARY 301 (1998) [hereinafter Jackson, Federal Courts]; Vicki C. Jackson, Federalism and the Uses and Limits of Law: Printz and Principle?, 111 HARV. L. REV. 2180, 2195 (1998) ("[Justice Scalia's] theory of dual sovereignty . . . is fundamentally at variance with principles of constitutionalism that date at least to McCulloch v. Maryland . . . .") [hereinafter Jackson, Federalism]; H. Jefferson Powell, The Oldest Question of Constitutional Law, 79 VA. L. REV. 634, 678-79 (1993) (contrasting Justice O'Connor's views with those of the Marshall Court); see also Daniel A. Farber, The Constitution's Forgotten Cover Letter: An Essay on the New Federalism and the Original Understanding, 94 MICH. L. REV. 615, 636-37 (1995) (discussing Justice Thomas's theory of state sovereignty).
8. See Vicki C. Jackson, Coeur D'Alene, Federal Courts and the Supremacy of Federal Law: The Competing Paradigms of Chief Justices Marshall and Rehnquist, 15 CONST. COMMENTARY 301 (1998) [hereinafter Jackson, Federal Courts]; Vicki C. Jackson, Federalism and the Uses and Limits of Law: Printz and Principle?, 111 HARV. L. REV. 2180, 2195 (1998) ("[Justice Scalia's] theory of dual sovereignty . . . is fundamentally at variance with principles of constitutionalism that date at least to McCulloch v. Maryland . . . .") [hereinafter Jackson, Federalism]; H. Jefferson Powell, The Oldest Question of Constitutional Law, 79 VA. L. REV. 634, 678-79 (1993) (contrasting Justice O'Connor's views with those of the Marshall Court); see also Daniel A. Farber, The Constitution's Forgotten Cover Letter: An Essay on the New Federalism and the Original Understanding, 94 MICH. L. REV. 615, 636-37 (1995) (discussing Justice Thomas's theory of state sovereignty).
9. See Vicki C. Jackson, Coeur D'Alene, Federal Courts and the Supremacy of Federal Law: The Competing Paradigms of Chief Justices Marshall and Rehnquist, 15 CONST. COMMENTARY 301 (1998) [hereinafter Jackson, Federal Courts]; Vicki C. Jackson, Federalism and the Uses and Limits of Law: Printz and Principle?, 111 HARV. L. REV. 2180, 2195 (1998) ("[Justice Scalia's] theory of dual sovereignty . . . is fundamentally at variance with principles of constitutionalism that date at least to McCulloch v. Maryland . . . .") [hereinafter Jackson, Federalism]; H. Jefferson Powell, The Oldest Question of Constitutional Law, 79 VA. L. REV. 634, 678-79 (1993) (contrasting Justice O'Connor's views with those of the Marshall Court); see also Daniel A. Farber, The Constitution's Forgotten Cover Letter: An Essay on the New Federalism and the Original Understanding, 94 MICH. L. REV. 615, 636-37 (1995) (discussing Justice Thomas's theory of state sovereignty).
10. See Vicki C. Jackson, Coeur D'Alene, Federal Courts and the Supremacy of Federal Law: The Competing Paradigms of Chief Justices Marshall and Rehnquist, 15 CONST. COMMENTARY 301 (1998) [hereinafter Jackson, Federal Courts]; Vicki C. Jackson, Federalism and the Uses and Limits of Law: Printz and Principle?, 111 HARV. L. REV. 2180, 2195 (1998) ("[Justice Scalia's] theory of dual sovereignty . . . is fundamentally at variance with principles of constitutionalism that date at least to McCulloch v. Maryland . . . .") [hereinafter Jackson, Federalism]; H. Jefferson Powell, The Oldest Question of Constitutional Law, 79 VA. L. REV. 634, 678-79 (1993) (contrasting Justice O'Connor's views with those of the Marshall Court); see also Daniel A. Farber, The Constitution's Forgotten Cover Letter: An Essay on the New Federalism and the Original Understanding, 94 MICH. L. REV. 615, 636-37 (1995) (discussing Justice Thomas's theory of state sovereignty).
11. 119 S. Ct. 2240 (1999).
12. Id. at 2247.
13. Id. (quoting THE FEDERALIST No. 39, at 245 (James Madison) (Clinton Rossiter ed., 1961)).
14. Id.
15. Id. at 2252.
16. U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 846-47 (1995) (Thomas, J., dissenting).
17. Id. at 849.
18. Id. at 857-58.
19. See Deborah Jones Merritt, Republican Governments and Autonomous States: A New Role for the Guarantee Clause, 65 U. COLO. L. REV. 815 (1994) (explaining the relationship between recent federalism decisions and republicanism).
20. See Printz v. United States, 521 U.S. 898 (1997) (holding that Congress cannot impose even a modest ministerial duty on low-level state officials); New York v. United States, 505 U.S. 144 (1992) (holding that even a compelling national interest could not justify commandeering of state legislature).
21. See Suzanna Sherry, States Are People Too, 75 NOTRE DAME L. REV. 1121 (2000).
22. Alden v. Maine, 119 S. Ct. 2240, 2265 (1999).
23. See Printz, 521 U.S. at 933 (striking down federal statute imposing affirmative duties on local law enforcement officials).
24. Notably, the seminal case establishing the absence of municipal 11th Amendment immunity, Lincoln County v. Luning, 133 U.S. 529, 530 (1890), held that a county "is a part of the state only in that remote sense in which any city, town, or other municipal corporation may be said to be a part of the state," citing in support of this proposition only Metropolitan Railroad Co. v. District of Columbia, 132 U.S. 1 (1889). Once other municipalities were compared with the District of Columbia, the game was up: the District is more like a colony than a sovereign.
25. See Alden, 119 S. Ct. at 2266. In contrast to the organs of state government such as state legislators and governors, local officials are unmentioned in the constitutional text.
26. Id. at 2267.
27. Id. at 2269.
28. Id. at 2261.
29. See New York v. United States, 505 U.S. at 161-69; Printz v. United States, 521 U.S. 898, 905-11 (1997).
30. See Lawrence Lessig, Translating Federalism: United States v. Lopez, 1995 SUP. Or. REV. 125, 135-43.
31. 514 U.S. 549 (1995).
32. See Lessig, supra note 24, at 128.
33. Lopez, 514 U.S. at 558-59.
34. Id. at 576-80, 583 (Kennedy, J., concurring).
35. Id. at 584-90 (Thomas, J., concurring).
36. Alden, 119 S. Ct. at 2268.
37. Id.
38. See, e.g., Camps Newfound v. Town of Harrison, 520 U.S. 564 (1997) (holding that charitable exemption statute violated dormant Commerce Clause); C & A Carbone, Inc. v. Town of Clarkstown, 511 U.S. 383 (1994) (holding ordinance requiring solid waste from town to be processed at town's transfer station unconstitutional in violation of the Commerce Clause).
39. Alden, 119 S. Ct. at 2267.
40. Id. at 2268.
41. Id. at 2269.
42. See, e.g., R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) (holding city hate speech ordinance violated the First Amendment); Texas v. Johnson, 491 U.S. 397 (1989) (holding state prohibition of flag burning violated the freedom of speech).
43. See, e.g., Nollan v. California Coastal Comm'n, 483 U.S. 825 (1987) (holding that permission to rebuild house could not be conditioned on transfer of easement absent compensation); First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304 (1987) (holding that landowner may recover for taking by land use regulation).
44. See, e.g., Miller v. Johnson, 515 U.S. 900 (1995) (holding that state redistricting plan violated equal protection); Karcher v. Daggett, 462 U.S. 725 (1983) (holding state reapportionment statute unconstitutional under U.S. CONST, art. 1, § 2).
45. See, e.g., City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989) (holding that city affirmative action plan violated equal protection); Wygant v. Jackson Bd. of Educ., 476 U.S. 267 (1986) (holding city schoolteacher layoff plan protecting racial minorities unconstitutional as violation of equal protection).
46. The word "precisely" is important here. As City of Boerne shows, the Court believes that congressional power to protect individual rights means the power to protect those rights as defined by the Court itself, not Congress's conception of "liberty and justice for all." See City of Bourne v. Flores, 521 U.S. 507 (1997).
47. See Matthew D. Adler & Seth F. Kreimer, The New Etiquette of Federalism: New York, Printz, and Yeskey, 1998 SUP. CT. REV. 71, 119-33.
48. See Alden v. Maine, 119 S. Ct. 2240, 2259 (1999).
49. See Florida Prepaid Postsecondaiy Educ. Expense Bd. v. College Sav. Bank, 119 S. Ct. 2199, 2208 (1999) ("Only where the State provides no remedy, or only inadequate remedies, to injured patent owners for its infringement of their patent could a deprivation of property without due process result.") In the case before it, however, the Court found "scant support for the predicate unconstitutional conduct that Congress intended to remedy." Id. at 2210.
50. See First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304 (1987).
51. Such suits may be heard in state as well as federal court. Cf. Howlett v. Rose, 496 U.S. 356 (1990) (preventing use by state court of nonconstitutionally based immunity to bar 42 U.S.C. § 1983 (1994) suit brought against school board in state court).
52. Alden, 119 S. Ct. at 2267.
53. See College Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 119 S. Ct. 2219 (1999); Florida Prepaid Postsecondary Educ. Expense Bd. v. College Sav. Bank, 119 S. Ct. 2199 (1999).
54. See, e.g., Vicki C. Jackson, The Supreme Court, the Eleventh Amendment, and State Immunity, 98 YALE L.J. 1 (1988); John E. Nowak, The Scope of the Congressional Power to Create Causes of Action Against State Governments and the History of the Eleventh and Fourteenth Amendments, 75 COLUM. L. REV. 1413 (1975); Carlos Manuel Vázquez, What Is Eleventh Amendment Immunity?, 106 YALE L.J. 1983, 1684 (1997).
55. See, e.g., Vicki C. Jackson, The Supreme Court, the Eleventh Amendment, and State Immunity, 98 YALE L.J. 1 (1988); John E. Nowak, The Scope of the Congressional Power to Create Causes of Action Against State Governments and the History of the Eleventh and Fourteenth Amendments, 75 COLUM. L. REV. 1413 (1975); Carlos Manuel Vázquez, What Is Eleventh Amendment Immunity?, 106 YALE L.J. 1983, 1684 (1997).
56. See, e.g., Vicki C. Jackson, The Supreme Court, the Eleventh Amendment, and State Immunity, 98 YALE L.J. 1 (1988); John E. Nowak, The Scope of the Congressional Power to Create Causes of Action Against State Governments and the History of the Eleventh and Fourteenth Amendments, 75 COLUM. L. REV. 1413 (1975); Carlos Manuel Vázquez, What Is Eleventh Amendment Immunity?, 106 YALE L.J. 1983, 1684 (1997).
57. "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or subjects of any Foreign State." U.S. CONST, amend. XI.
58. See Alden, 119 S. Ct. at 2269-85 (Souter, J., dissenting); Seminole Tribe v. Florida, 517 U.S. 44, 100-16 (1996) (Souter, J., dissenting).
59. For this reason, the New Federalism decisions resemble the much maligned privacy decisions of an earlier time. See Brannon P. Denning & Glenn Harlan Reynolds, Comfortably Penumbral, 77 B.U. L. REV. 1089, 1090-91 (1997) (comparing Printz. with privacy cases such as Griswold v. Connecticut, 381 U.S. 479 (1965)). A particularly trenchant critique can be found in Evan H. Caminker, Printz, State Sovereignty, and the Limits of Formalism, 1997 SUP. CT. REV. 199.
60. For this reason, the New Federalism decisions resemble the much maligned privacy decisions of an earlier time. See Brannon P. Denning & Glenn Harlan Reynolds, Comfortably Penumbral, 77 B.U. L. REV. 1089, 1090-91 (1997) (comparing Printz. with privacy cases such as Griswold v. Connecticut, 381 U.S. 479 (1965)). A particularly trenchant critique can be found in Evan H. Caminker, Printz, State Sovereignty, and the Limits of Formalism, 1997 SUP. CT. REV. 199.
61. As Vicki Jackson explains, the historical scholarship is divided on the question of whether the federal government could commandeer state legislatures, but more united on the view that commandeering of state executives was actually contemplated by the Framers. See Jackson, Federalism, supra note 4, at 2199; see also Erick M. Jensen & Jonathan L. Entin, Commandeering, the Tenth Amendment, and the Federal Requisition Power: New York v. United States Revisited, 15 CONST. COMMENTARY 355 (1998) (discussing Framers' contemplation that federal government would retain power to raise funds through requisitions); Gene R. Nichol, Justice Scalia and the Printz Case: The Trials of an Occasional Originalist, 70 U. COLO. L. REV. 953 (1999) (arguing that Printz Court distorted historical record). Even before Printz was decided, substantial historical work had been done on this issue, which the majority ignored. See Saikrishna Bangalore Prakash, Field Office Federalism, 79 VA. L. REV. 1957 (1993).
62. As Vicki Jackson explains, the historical scholarship is divided on the question of whether the federal government could commandeer state legislatures, but more united on the view that commandeering of state executives was actually contemplated by the Framers. See Jackson, Federalism, supra note 4, at 2199; see also Erick M. Jensen & Jonathan L. Entin, Commandeering, the Tenth Amendment, and the Federal Requisition Power: New York v. United States Revisited, 15 CONST. COMMENTARY 355 (1998) (discussing Framers' contemplation that federal government would retain power to raise funds through requisitions); Gene R. Nichol, Justice Scalia and the Printz Case: The Trials of an Occasional Originalist, 70 U. COLO. L. REV. 953 (1999) (arguing that Printz Court distorted historical record). Even before Printz was decided, substantial historical work had been done on this issue, which the majority ignored. See Saikrishna Bangalore Prakash, Field Office Federalism, 79 VA. L. REV. 1957 (1993).
63. As Vicki Jackson explains, the historical scholarship is divided on the question of whether the federal government could commandeer state legislatures, but more united on the view that commandeering of state executives was actually contemplated by the Framers. See Jackson, Federalism, supra note 4, at 2199; see also Erick M. Jensen & Jonathan L. Entin, Commandeering, the Tenth Amendment, and the Federal Requisition Power: New York v. United States Revisited, 15 CONST. COMMENTARY 355 (1998) (discussing Framers' contemplation that federal government would retain power to raise funds through requisitions); Gene R. Nichol, Justice Scalia and the Printz Case: The Trials of an Occasional Originalist, 70 U. COLO. L. REV. 953 (1999) (arguing that Printz Court distorted historical record). Even before Printz was decided, substantial historical work had been done on this issue, which the majority ignored. See Saikrishna Bangalore Prakash, Field Office Federalism, 79 VA. L. REV. 1957 (1993).
64. As Vicki Jackson explains, the historical scholarship is divided on the question of whether the federal government could commandeer state legislatures, but more united on the view that commandeering of state executives was actually contemplated by the Framers. See Jackson, Federalism, supra note 4, at 2199; see also Erick M. Jensen & Jonathan L. Entin, Commandeering, the Tenth Amendment, and the Federal Requisition Power: New York v. United States Revisited, 15 CONST. COMMENTARY 355 (1998) (discussing Framers' contemplation that federal government would retain power to raise funds through requisitions); Gene R. Nichol, Justice Scalia and the Printz Case: The Trials of an Occasional Originalist, 70 U. COLO. L. REV. 953 (1999) (arguing that Printz Court distorted historical record). Even before Printz was decided, substantial historical work had been done on this issue, which the majority ignored. See Saikrishna Bangalore Prakash, Field Office Federalism, 79 VA. L. REV. 1957 (1993).
65. See Federal Energy Regulatory Comm'n v. Mississippi, 456 U.S. 742 (1982) (upholding a requirement that state utility agencies consider energy conservation issues); Testa v. Katt, 330 U.S. 386 (1947) (upholding a requirement that state courts hear federal causes of action).
66. Alden, 119 S. Ct. at 2262-65.
67. See Vázquez, supra note 48, at 1727-28.
68. Alden, 119 S. Ct. at 2248.
69. On the connection between the 11th Amendment and state debt repudiation, see James E. Pfander, History and State Suability: An "Explanatory" Account of the Eleventh Amendment, 83 CORNELL L. REV. 1269 (1998).
70. See Richard Cantor & Frank Packer, Determents and Impacts of Sovereign Credit Ratings, F.R.B.N.Y. ECON. POL'Y REV., Oct. 1996, at 37, 40 (stating that defaulting sovereigns "suffer a severe decline in their standing with creditors"). Presumably, states that fail to waive their immunity or provide other adequate assurances against default pay a penalty in terms of interest rates.
71. The Court's policy analysis also seems lacking in other respects. For instance, in Alden, the Court finds it significant that enforcement actions by the federal government on behalf of individual employees are politically accountable. See Alden, 119 S. Ct. at 2267 (holding that suits by federal government "require the exercise of political responsibility for each suit prosecuted against a State"). The upshot is that whether a state employee receives overtime pay to which he or she is legally entitled will depend on political considerations - which will no doubt include the state's allotment of electoral votes, its political alignment, the significance of the public employee union in the electoral calculus, etc. This is not a savory picture, nor is it one redolent of the rule of law.
72. Living as I do in a state where the current governor is best known nationally for his earlier career as a boa-wearing professional wrestler, perhaps it is not surprising that the idea of inherent state dignity does not strongly resonate for me.
73. See College Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 119 S. Ct. 2219 (1999); Florida Prepaid Postsecondary Educ. Expense Bd. v. College Sav. Bank, 119 S. Ct. 2199 (1999).
74. Printz v. United States, 521 U.S. 898 (1997).
75. On the "and so forth" list, religious organizations dismayed by the demise of RFRA in City of Boerne, 521 U.S. 507, would rank high.