The Federalism Project

American Enterprise Institute

In the Courts

Selected issues are highlighted in selected cases; neither the list nor the summaries are intended to be comprehensive.  

Private Right of Action

Title 42, Section 1983: Civil Action for Deprivation of Rights

"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper
proceeding for redress..." 

Private Actions and Medicaid

Westside Mothers v. Haveman
US District Court for the Eastern District of Michigan, Southern Division

In a March, 2001 decision that has induced apoplexy among nanny state advocates, U.S. District Judge Robert Cleland ruled that current law provides no private right to enforce Medicaid requirements against the states. If this is what Congress wants, Congress better make itself clear: state sovereign immunity is assumed in the absence of a clear legislative statement.

Click here to read the decision

Private Actions and Environmental Justice 

South Camden Citizens in Action v. New Jersey Department of Environmental Protection
Third Circuit, Nos 01-2224, 01-2296

On April 19 2001, U.S. District Judge Stephen M. Orlofsky held that private plaintiffs may sue to enforce the “disparate impact provision of Title VI and regulations issued thereunder—specifically, the EPA’s “environmental justice” regulations. The Title VI provision prohibits federally funded agencies from taking actions that, while not intentionally discriminatory, have a disparate (and adverse) impact on racial and ethnic minorities. 

Judge Orlofsky’s ruling was good for exactly five days: On April 24, the U.S. Supreme Court ruled that the disparate impact provisions may not be enforced by private litigants in Alexander v. Sandoval (2001). Undeterred, Judge Orlofsky ruled that the South Camden Citizens could remain in action by maintaining their lawsuit under 42 U.S.C. 1983. South Camden Citizens in Action v. New Jersey Department of Environmental Protection II, (D.N.J. May 10, 2001).

That ruling was good for exactly seven months.  In December, 2001, the Third Circuit held that there is no freestanding right of action to enforce the EPA's disparate-impact regulations. EPA regulations do not create a private right to sue--this right does not appear, explicitly, in any authorizing statute.  If Congress wants to create a federal right to favor plaintiffs, it must be explicit about its intention (see, supra, Westside Mothers).

Click here to read the decision 

For an explanation of why this arcane stuff matters, see Federalism Outlook #7.



State Deference to FDA Standards is an Improper Delegation (February, 2002)

Taylor v. Gate Pharmaceuticals 

Court of Appeals of Michigan, Docket Nos. 217269, 217279, 217290, 217328, 227700

Just when you thought nothing could surprise you about the legal torsions surrounding tort reform, here comes a new twist--a Michigan court has ruled that state deference to federal standards, when determining product liability rules, violates the (state) constitution's prohibition of legislative delegation. 

At issue: a 1996 Michigan statute limiting the liability of drug manufacturers. Under this rule, if a drug was approved for safety by the FDA and labeled in compliance with FDA standards, a a plaintiff can't bring a product liability suit against the manufacturer.  

Judge Murphy, writing for the court, finds this limitation on lawsuits "unacceptable."  "Michigan retains no oversight of this federal agency," he explains, and "it cannot check the exercise of its delegated power with standards of any precision..."

While we certainly appreciate this feisty, self-reliant ethos, it is unfortunate that state independence only appeals to many judges when it can be used to club unpopular defendants. But the unintended effects of this case may prove to be quite fun. Does Michigan legally give up its sovereign authority, say, when it accepts federal rules that go along with federal funds? 

Click here to read the decision  

Compacts Clause

Master Settlement Agreement Passes Constitutional Challenges (January, 2002)

What happens when a little cigarette company, Star Scientific, objects to the great big 1998 multi-state Master Settlement Agreement?  Not much--at least for now.  In Janauary, in Star Scientific v. Beales, the Fourth Circuit rejected Star's charge that the MSA violates the Compacts Clause and the Commerce Clause of the Constitution. Further, according to the court, Virginia's "qualifying statute" does not violate the Constitution--a state may jolly well require that some cigarette makers deposit their profits into an escrow account (in case the state AG decides to sue them).  According to Judge Niemeyer, this is not discrimination against cigarette companies who want no part of the MSA; it is, instead, an example of a caring state looking after the health of its citizens.

State officials, currently on a spending binge from the proceeds of the MSA, have good reason to cheer this result, but they might want to hold off on the champagne.  Along with its generous reading of the state police power, the case recognizes that (1) troublemaking cigarette manufacturers like Star have standing to challenge the MSA, even though they are not a party to the agreement and (2) the MSA is an interstate compact, subject, at least in theory, to congressional approval--which of course, it hasn't obtained.  Star has filed a petition for a rehearing before the full Fourth Circuit and, in the meantime, is working on its recipe for nicotine infused candy.    

Show me the money: Campaign for Tobacco Free Kids explains what states have actually done with their tobacco settlement profits.

Civil Rights vs. Police Powers: Free Exercise

 Sixth Circuit Recognizes Right to a Long Beard     (February, 2001)

Flagner v. Wilkinson
241 F.3d 475

What do you get when you mix a Hasidic Jew in prison, his beard and sidelocks, and the Sixth Circuit?  Among other things, a questionable ruling about the scope of religious freedom under the First Amendment.  According to the court, Hbrandon Lee Flagner has every right to bring a §1983 action against prison officials (for declaratory and injunctive relief) after they chopped off his facial hair at the jailhouse barber's. The state had no compelling reason to give him a shave, the court concluded, and religious preferences must be respected, even in the slammer, unless there is a mighty good reason to do otherwise.  Click here for the opinion  

One problem: this decision rejects, at least, the last decade of Supreme Court jurisprudence.  As Judge Nelson points out in his partial dissent, strict, case by case scrutiny is not at all called for in this context. "Even under the restrictive statutory standard rejected by the Supreme Court in Boerne v. Flores," he writes, "the constitutionality of regulations such as Ohio's was routinely upheld."  In Employment Division v. Smith's "penultimate paragraph," the Court "rejected the idea that a religious-practice exception to (a) general rule was mandated by the First Amendment.

For better or worse, things will evidently get sillier before they get better.  The Prisoner's Advocacy Network reports that six American Indian inmates are suing Ohio for denying them "tom-toms, rattles, beads, headbands, feathers, crystals, medicine shirts, 18-inch-long pipes, smudge bowls, leather pouches for herbs and small amounts of sage, sweet grass and cedar."  Oh yes, they'd also like a sweat lodge.

11th Amendment

Some Citizen Eco-Suits are Barred by the 11th Amendment
(April, 2001)

Bragg v. West Virginia Coal Association 

United States Appeals Court of Appeals for the Fourth Circuit
248 F.3d 275

Under the Surface Mining Control and Reclamation Act of 1977, regulatory authority over surface coal mining is shared in a cooperative arrangement between the Secretary of the Interior and state agencies. The feds set minimum standards and then, in a nod to federalism, leave it up to states to enforce them.  Like most power-sharing agreements, this one has led to much confusion about what to do when problems arise and who bears  responsibility for harmful action. The question presented in Bragg: can a private individual sue his state's Department of Environmental Protection in federal court when it fails to implement state SMCRA standards? Alternatively, should states be hauled into state courts when they neglect state laws enacting SMCRA standards?

According to the Fourth Circuit, no: sovereign immunity bars citizens from bringing suits in federal court against their own states unless this outcome was specifically provided for in the text of federal statute. West Virginia did not waive its immunity when it decided to participate in the SMCRA program; therefore suits, if they are to be filed, must be filed in state courts under state law.

As the Fourth Circuit noted, there is, at present, an even more interesting question: who assumes primacy--the states or the feds--when it comes to achieving SMCRA standards? The answer determines which level of government is the proper object of citizen suits under SMCRA.  According to Fourth Circuit, it's the states; the statute grants "exclusive jurisdiction" to them in reaching federal standards.  The Supreme Court should grant cert and reiterate this judgment.  The buck should stop with a state after the Interior Department has approves its program--anything else encourages blame shifting and ongoing confusion.

Cert Denied at the Supreme Court.

  Click here for the opinion

Title II of the ADA and § 504 of the Rehabilitation Act Do Not Abrogate State Immunity (December, 2001)

Reickenbacker v. Foster 

United States Appeals Court of Appeals for the Fifth Circuit
No. 00-31121

Several years ago, a group of Louisiana prisoners sued the state's Department of Public Safety and Corrections for failing to provide satisfactory mental heath services.  The plaintiffs, though mentally ill, were sane enough to know a good cause of action when they saw one: they accused the state of violating both Title II of the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act when they failed to accommodate their disabilities.       

In Reickenbacker, the Fifth Circuit considered the million dollar Eleventh Amendment question: Does federal statute abrogate the states' sovereign immunity, or can a private lawsuit proceed?  In the Title II, §504 context, this question is especially interesting, since Congress clearly intended to abrogate states' immunity when it enacted both the ADA and rehabilitation legislation.

Judge Higginbotham, writing for the Fifth Circuit, explains that Congress may only waive state immunity when it is an appropriate exercise of its 14th Amendment, Section 5 power.  The upshot: for Title II and §504 to abrogate,  there must be 1) a "history and pattern" of state unconstitutional discrimination against a particular group (here, the disabled) and 2) congressional response must be "congruent and proportional" to the state's constitutional violations.  Bad news for the prisoners--neither test was met.  According to the judge, there is no pattern of intentional discrimination against the disabled transpiring, country-wide (at least not by the states); furthermore, the accommodation obligation imposed by Title II and § 504 "far exceeds that imposed by the Constitution."  Looks like someone's been reading the Supreme Court's Garrett decision.


 7th Circuit: No End Runs, Please (June 2001)

Luder v. Endicott
No. 00-1663

In June, Circuit Judge Posner gave critics of sovereign immunity another reason to pause, rejecting, in Luder, a transparent "end run around the Eleventh Amendment." The question posed: can employees of a state prison bring a Fair Labor Standards Act claim against state employees (ie their supervisors) in their personal capacities? Judge Posner's answer: maybe, but it depends on the circumstances. This sort of suit might be tolerated if a state employee acts independently of state policy; however, a "suit nominally against (a) state employee... that demonstrably has the identical effect as a suit against the state is, we think, barred." Here, the amount of potential liability was so great that the state, if the plaintiffs had won, would have had to bear considerable responsibility. Case closed.