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Alito, Hibbs and Federalism


“If you were a writer whose short stories were published by an ethnic press affiliated with the University of New Mexico, you would be justifiably surprised to learn that, when your publisher disregarded your copyright, you could not sue for damages because the press was a sovereign entitled to a sovereign’s immunity from suit. If you were a professor of business at the University of Montevallo in Shelby County, Alabama, and were passed over for a raise because of your age, you would be understandably indignant to learn that your university, classified as a sovereign, could not be brought to court for violating federal law against discrimination based on age. If you were a woman attending a state college and you were raped by several members of the football team, you would be more than outraged to discover that, when state authorities did nothing to punish the rapists, federal law was helpless to make up for their deficiency. Yet these and similar results have been reached in the last five years because of judgments of the Supreme Court of the United States.”

–John Noonan, Narrowing the Nation’s Power

In in a somewhat surprising 6-3 decision, in 2003 the Supreme Court held (in an opinion written by Chief Justice Rehnquist) held that the Family Medical Leave Act applied to state government employers as well as private companies. Hibbs effectively overruled an opinion written by one Samuel Alito. In his Chittister opinion, Alito had argued that FMLA had violated the “sovereign immunity” of the state of Pennsylvania, which could not be sued for damages under the act. This jurisprudence is a very important line of cases and very instructive, and since Alito has a stricter interpretation of the court’s precedents than Rehnquist, it’s worth examining this line of jurisprudence in more detail.

The 11th Amendment prohibits “any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State.” In a 1890 case, however, the Supreme Court argued (in what, as Noonan shows in detail, was an exceptionally weak opinion) that the 11th Amendment also implicitly prohibits a citizen from suing her own state. While this decision has never been overturned, it was effectively rendered a dead letter, as the court 1)permitted suits against state officials, and 2)allowed Congress to abrogate this court-created “sovereign immunity.” Starting with Seminole Tribe v. Florida, however, the Rehnquist Court argued that the first exemption didn’t apply to cases involving monetary damages to enforced federal law, and made it extremely difficult for Congress to abrogate the sovereign immunity. (More information on this doctrine here and here.) This doctrine has had far-reaching consequences; in addition to the first two cases mentioned above, the Court has held that the citizens whose rights under the American With Disabilities Act are violated by state employers cannot sue them directly, depriving large numbers of Americans of a crucial form of protection. This case is particularly important, because it makes clear that state institutions–including any branch of the state–will be exempt from Congressional protection of their rights unless Congress is enforcing racial or gender discrimination. (The Court, and not Congress, will determine which people get enforceable rights, even if Congress wants to provide greater protection for minorities.) In addition, it’s a classic demonstration of the conservative catch-22: when the equal protection clause is interpreted more broadly, it’s judicial activism; when Congress wants to increase protections for minority rights, it’s a violation of “states’ rights.”

In addition to the bad substantive outcomes, the “sovereign immunity” cases are also clear evidence that the claims of conservatives that the judges they support (including Alito) are “strict constructionists” are utter nonsense. While perhaps you can defend this line of cases using Thomas’ more natural-law tinged originalism, these cases are a particular embarrassment to Scalia’s purported “textualism” (which may explain why his writing is nowhere to be seen in most of these cases.) With respect to the other big federalism issue–the commerce clause–the language of the Constitution is broad, and can clearly accommodate a number of readings, must certainly including Scalia’s. Conversely, the 11th Amendment–as the Columbia law professor John Manning argued in a superb 2004 Yale Law Journal article– is framed in narrow and specific terms; since it would have been just as easy for the framers of the 11th Amendment to apply it to suits against one’s own state, there is a very strong presumption that they did not intend to do so. And in Seminole Tribe, Rehnquist was quite explicit about this: “although the text of the Amendment would appear to restrict only the Article III diversity jurisdiction of the federal courts, ‘we have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition . . . which it confirms.'” For Scalia or any other “textualist,” then, endorsing this line of cases is completely unprincipled. Myself, I don’t have a problem with the penumbras-and-emanations analysis Rehnquist is using, as a method. T he problem, however, is that while the structure of the Bill of Rights is overwhelmingly concerned with establishing zones of individual privacy, and a ban on contraception can plausibly be argued to cut against these prohibitions (what meaning would the 4th Amendment have if such a law were enforced? What would the application for a warrant look like?), it is much more difficult to argue that states should be exempt from remedies derived from rights enforcement enjoyed by authoritarian monarchs. The Constitution, in fact, abrogates the “sovereign dignity” of the states in numerous ways: Article I Section 10, the Supremacy Clause, and the 14th Amendment for starters. (And, in my view, the whole concept of “sovereign immunity” is incompatible with a system whose legitimacy is derived from the consent of the governed.) As Souter argued in his brilliant Seminole Tribe dissent, the opinion is actually worse than Lochner:

The majority today, indeed, seems to be going Lochner one better. When the Court has previously constrained the express Article I powers by resort to common law or background principles, it has done so at least in an ostensible effort to give content to some other written provision of the Constitution, like the Due Process Clause, the very object of which is to limit the exercise of governmental power. Some textual argument at least, could be made that the Court was doing no more than defining one provision that happened to be at odds with another. Today, however, the Court is not struggling to fulfill a responsibility to reconcile two arguably conflicting and Delphic constitutional provisions, nor is it struggling with any Delphic text at all. For even the Court concedes that the Constitution’s grant to Congress of plenary power over relations with Indian tribes at the expense of any state claim to the contrary is unmistakably clear, and this case does not even arguably implicate a textual trump to the grant of federal question jurisdiction.

The “sovereign immunity” cases, in addition to be important in and of themselves, are also at the very farthest reaches of the “New Federalism’s” basis in the text of the Constitution. A justice who embraces this line of cases is also likely to be aggressive in Commerce Clause cases, where the textual backing is much more plausible. And these cases, while not widely discussed, affect the lives of large numbers of citizens. Alito’s nomination to the Court is unacceptable, and he should not receive a single Democratic vote.

UPDATE: More about Alito and Hibbs here.

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