The Demand for Clarity: 

Federalism, Statutory Construction,

and the 2000 Term

By 

William H. Pryor Jr.*

Viva la Revolution? 
Federalism and the Supreme Court’s October 2000 Term
The Federalism Project of the American Enterprise Institute

July 11, 2001

Washington, D.C.

Federalism is the rage, in more ways than one.  Over the last decade, federalism decisions have been the most important legacy of the Rehnquist Court.  When liberal members of the Judiciary Committee of the U.S. Senate complain about alleged conservative judicial activism and suggest the need for tough scrutiny in confirmation hearings, they invariably mention federalism decisions.[1]  The constitutional law of federalism has produced politically incorrect results as the Court has prohibited Congress from curtailing firearms near elementary and high schools,[2] providing remedies for victims of violence against women,[3] and lifting burdens of religious freedom.[4]  The blockbuster decisions regularly are by the narrowest margin with the federalism five (Rehnquist, O’Connor, Scalia, Kennedy, and Thomas) trumping the nationalist four (Stevens, Souter, Ginsburg, and Breyer). 

Although on one level — constitutional law — the   federalism decisions are certainly controversial, a less controversial, but no less important, aspect of federalism decision-making involves statutory construction.  Respect for federalism now permeates the rules of statutory construction.  The respect for federalism in statutory construction has a long history, sometimes uniting members of both wings of the Court as they avoid difficult issues of constitutional interpretation.  Moreover, the foundation for the constitutional law of federalism in the decisions of the Rehnquist Court was laid in cases of statutory construction.  Not surprisingly, statutory construction played a central role in the federalism decisions of this term. 

The respect for federalism in statutory construction shows how far the pendulum has swung in support of the limited government objective of the Framers to “split the atom of sovereignty.”[5]  As James Madison described this purpose in Federalist number 51, 

In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments.  Hence a double security arises to the right of the people.  The different governments will control each other, at the same time that each will be controlled by itself. [6] 

The federalism decisions of the Rehnquist Court are Madison’s “double security” in operation:  the States and the people, through litigation, control the unauthorized use of federal power, and the Court performs its role in the control of the federal government itself. 

To illustrate that double security in statutory construction, I will place this subject in context.  First, I will address statutory construction  in relation to the decision that was supposed to be the death knell of federalism, Garcia v. San Antonio Metropolitan Transit Authority.[7]  Then I will address statutory construction in relation to the constitutional law of federalism under the commerce clause, the eleventh amendment, section five of the fourteenth amendment, and the spending clause.  Finally, I will address this issue in relation to three federalism decisions of this term, in two of which my state was a party and the other an amicus curiae, with special attention to Alexander v. Sandoval[8] and current issues in spending clause litigation.  

The battle over federalism was supposed to have ended in 1985, when the Court decided Garcia.  That decision overruled National League of Cities v. Usery,[9] in which the Court had held, nine years earlier, that Congress does not have the authority under the commerce clause to enforce the minimum-wage and overtime provisions of the Fair Labor Standards Act against the States “in areas of traditional governmental functions.”[10]  The Garcia Court reasoned, by a 5 to 4 vote, “State sovereign interests, then, are more properly protected by procedural safeguards inherent in the structure of the federal system than by judicially created limitations on federal power.”[11]  In short, the Court said, “The political process ensures that laws that unduly burden the States will not be promulgated.”[12]  Justices Rehnquist, Powell, and O’Connor predicted, however, that the imperative for judicial protection of federalism would “in time again command the support of a majority of this Court.”[13]

Fast forward six years. Contrast Garcia with the decision in Gregory v. Ashcroft,[14] a case of statutory construction in which the Court held that the mandatory retirement age for state judges in Missouri did not violate the federal Age Discrimination in Employment Act.  With Justice O’Connor writing, the Court extolled the virtues of our “federalist structure of joint sovereigns,”[15] in which “the tension between federal and state power lies the promise of liberty.”[16]  The Gregory Court  held that, in the absence of a “plain statement” of intent by Congress to “upset the usual constitutional balance of federal and state powers,”[17] the Court would not infer that intent in construing the Age Discrimination in Employment Act. 

In contrast with the presumption of Garcia that the sovereign interests of the States are protected solely in the halls of Congress, the Rehnquist Court has protected those sovereign interests by requiring accountability from Congress.  The Court first demands from Congress clarity in legislation.  Sometimes the presence of legislative clarity leads the Court to find that Congress exceeded its enumerated powers under the Constitution.  More often, the States, however,  receive the benefit of the doubt created by the sloppiness of Congress in enacting ambiguous federal laws. 

Consider the use of the commerce power.  Certainly, the most important federalism decisions of the Rehnquist Court are United States v. Lopez[18] and United States v. Morrison[19] in which the Court held respectively that Congress lacked the authority, under the commerce clause, to enact the Gun-Free School Zones Act and provide the civil remedy for sexual assault in the Violence Against Women Act.  In each instance, the Court respected the traditional role of the States to exercise their police power through their criminal and civil laws.  In Morrison, I was the only state attorney general to file an amicus curiae brief in support of this traditional state responsibility while 36 of my colleagues took the opposite view.  As important as those decisions of constitutional law were, recall that they were foreshadowed by Gregory -- also a case involving the commerce clause in which the Court employed statutory construction to respect the traditional authority of the State to define its sovereignty by setting the retirement age of its judges.  

Then consider the decision in the 1999 term in Jones v. United States[20] in which the Court held, as a matter of statutory construction,  that a federal criminal law[21] could not be used to prosecute a defendant for the arson of a personal residence because the residence was not property used in interstate commerce.  The Jones Court construed that statute based on its clear terms to avoid the constitutional question of the limits of the commerce power, under Lopez,[22] and not disrupt the balance of federal-state power.[23]  The opinion in Jones was written notably by Justice Ginsburg, and the vote was unanimous. 

Another illustration involves the sovereign immunity of States from suits in federal and state courts.  There have been three major decisions of constitutional law regarding sovereign immunity in the last several years.  The first, in 1995, was Seminole Tribe v. Florida,[24]  in which the Court held that Congress lacked the authority, under the commerce clause, to abrogate the immunity of the States, under the eleventh amendment, from Indian gaming suits in federal court.  In Seminole Tribe, the Court overruled its decision of 1989 in Pennsylvania v. Union Gas Co.[25] Then came the decisions in 1999 in Alden v. Maine[26] and College Savings Bank v. Florida Prepaid Secondary Education Expense Board.[27]  In Alden, the Court held that Congress lacked the authority, under the commerce clause, to abrogate the immunity of the States from suits in their own courts.  In College Savings Bank, the Court overruled its 1964 decision in Parden v. Terminal R. of Alabama Docks Dept.[28] and held that the eleventh immunity of a State cannot be constructively waived.  Each of these three cases was decided by a 5 to 4 vote, and two of the decisions again involved overruling precedents. 

The backdrop for all these decisions is a well-established rule of statutory construction that requires a clear statement by Congress of an intent to abrogate the sovereign immunity of the States.  This rule was established in 1985 in Atascadero State Hospital v. Scanlan[29] in which the Court held that Congress did not abrogate the eleventh amendment immunity of the States from suits under the Rehabilitation Act.  The Atascadero Court held that Congress may abrogate that immunity “only by making its intention unmistakably clear in the language of the statute.”[30]  Four years later, the Court invoked this clear statement rule and held, in Will v. Michigan Department of State Police[31] that a State was not a “person,” within the meaning of section 1983, subject to suit in its own courts.   On the same day as its decision in Will, the Court  held, in Dellmuth v. Muth,[32] that Congress failed, in the Education of the Handicapped Act, to abrogate the immunity of the States, under the eleventh amendment.  Each of these cases was controversial in that each was decided by a 5 to 4 vote. 

Last year proved that the controversy about the propriety of the clear statement rule in the context of sovereign immunity is over.  In Vermont Agency of Natural Resources v. United States ex rel Stevens,[33] the Court held that a State is not subject to a qui tam action brought by a private person under the False Claims Act.  The Court based its decision, in part, on the absence of a clear statement regarding the abrogation of sovereign immunity.[34]  The Court then explained that the statute “should be construed so as to avoid difficult constitutional questions” involving the eleventh amendment.[35]  The vote was 7 to 2.  Justice Breyer joined, in full, the majority opinion delivered by Justice Scalia and in a concurring opinion by Justice Ginsburg who also endorsed the clear statement rule in this context.[36] 

The third area of federalism decision-making involves the remedial power of Congress under section five of the fourteenth amendment.  In 1997, the Court held, in City of Boerne v. Flores,[37] that Congress lacked the authority, under section five, to impose the Religious Freedom Restoration Act (RFRA) on the States.  That Act prohibited the States from imposing a substantial burden on an individual’s free exercise of religion except when the burden satisfied strict scrutiny.  The Act imposed a tougher standard than required by the fourteenth amendment itself, as interpreted by the Court.[38]  In that light, the Boerne Court held that, in the absence of an established pattern of unconstitutional discrimination on the basis of religion by the States, Congress could not exercise its remedial authority, under section five, to enact RFRA.[39] 

Following Boerne, the Court held, in four cases, that Congress failed to exercise validly its power to enforce the fourteenth amendment and, in three of the cases,  therefore, failed to abrogate the eleventh amendment immunity of the States.  The Court held in College Savings Bank[40] that Congress lacked the authority to abrogate state immunity in cases brought under the Lanham Act, and in a companion case, the Court reached the same conclusion about the Patent Remedy Act.[41]  Then last year, in Kimel v. Florida Bd. of Regents[42] in consolidated appeals from Alabama and Florida, the Court agreed with our argument that Congress failed to abrogate the immunity of the States from claims for money damages under the Age Discrimination in Employment Act.  Finally, in Morrison, the Court held that the civil remedy, in the Violence Against Women Act, was directed at criminal behavior of individuals, not state actors, which is outside the scope of the fourteenth amendment. 

Although these decisions involve the constitutional law of federalism, the Court has not foreclosed the potential use of congressional power to remedy state discrimination on the basis of age or religion and state takings of property.  In this area of constitutional law, as in statutory construction, the Court demands clarity from Congress.  That means clarity of need:  a recorded pattern of unconstitutional activities by the States and a failure by the States to provide remedies for those violations of constitutional rights.[43]  The Court also demands from Congress clarity in the standard for enforcement against the States:  that is, the remedy employed by Congress must be congruent and proportional “between the injury to be prevented or remedied and the means adopted to that end.”[44] 

The demand for clarity, in enforcing the fourteenth amendment, can be traced to a twenty-year old case of statutory construction.  In Pennhurst State School and Hospital v. Halderman,[45] the Court held that Congress had not intended to enforce the fourteenth amendment when it enacted the Developmentally Disabled Assistance and Bill of Rights Act.  The Court unanimously based that finding on the absence of a clear statement of intent to enforce the amendment.  The Court wrote, “Because such legislation imposes congressional policy on a State involuntarily, and because it often intrudes on traditional state authority, we should not quickly attribute to Congress an unstated intent to act under its authority to enforce the Fourteenth Amendment.”[46]   Justice Stevens joined in that opinion delivered by then-Justice Rehnquist. 

Pennhurst is the fitting bridge to the final area for comparison between the constitutional law of federalism and statutory construction, that is, spending clause cases.  The power of Congress to regulate the conduct of the States, under the spending clause, by attaching restrictions to the grants of federal funds, has few recognized constitutional limits.  The Constitution allows Congress to “lay and collect Taxes, Duties, Imposts, and Excises, to pay the Debts and provide for the Common Defense and general Welfare of the United States.”[47]  In United States v. Butler,[48] the Court held that the spending power “is not limited by the direct grants of legislative power” enumerated in article I.  The power must be exercised in pursuit of the general welfare, with deference to the judgment of Congress; the conditions on federal grants must be reasonably related to the federal interest in the funding program; and the power may not be used to induce the states to engage in unconstitutional conduct.[49]  In South Dakota v. Dole,[50] the Court, with Chief Justice Rehnquist writing, held that a federal condition of adopting a minimum drinking age was a valid restriction on the receipt of federal highway funds.  Interestingly, Justices O’Connor and Brennan dissented.  Justice O’Connor wrote that Congress may not “impose or change regulations in other areas of the State’s social and economic life because of an attenuated or tangential relationship”[51] to the federal funding program. 

The principal limitation on the spending power has been imposed, by the Court, through statutory construction.  In Pennhurst, the Court held that “if Congress intends to impose a condition on the grant of federal moneys, it must do so unambiguously.”[52] The Court reasoned that

legislation enacted pursuant to the spending power is much in the nature of a contract: in return for federal funds, the States agree to comply with federally imposed conditions.  The legitimacy of Congress’ power to legislate under the spending power thus rests on whether the State voluntarily and knowingly accepts the terms of the “contract.”  . . . There can, of course, be no knowing acceptance if a State is unaware of the conditions or is unable to ascertain what is expected of it.[53]  

Applying that rule of statutory construction, the Pennhurst Court held that Congress did not, in the Developmentally Disabled Assistance and Bill of Rights Act, “impose absolute obligations on the States to fund certain levels of treatment.”[54]  The adoption of that clear statement rule was by a 6 to 3 vote with Justice Stevens joining Justice Rehnquist’s opinion. 

In the last decade, the Court has invoked the clear statement rule, as settled statutory construction, to deny judicial remedies to private beneficiaries of federal spending programs.  Thus, in Suter v. Artist M.,[55] the Court held, by a 7 to 2 vote, that the Adoption Assistance and Child Welfare Act did not create a private right of action nor allow the use of section 1983 to enforce its obligations.  Then in Blessing v. Freestone,[56] in a unanimous decision, the Court held that the child support provisions of the Social Security Act did not create a private right enforceable under section 1983.  In an important concurring opinion, Justices Scalia and Kennedy suggested that it was an open question whether section 1983 ever grants a private right to enforce spending contracts between the federal government and the States.[57]

With the history of the clear-statement rule in mind, let us turn to three federalism decisions from this term:  Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Eng’rs,[58] in which my office filed a brief as an amicus curiae; and the cases where my office represented the prevailing defendants, University of Alabama v. Garrett[59] and Alexander v. Sandoval.[60]  Two of these decisions were based on statutory construction, and all three illustrate the judicial demand for clarity in respect of federalism.  The Alexander case also left several questions unanswered that are the subject of important pending cases. 

In SWANCC, the Court, using its method from Jones, employed a clear statement rule to avoid a difficult constitutional question under the commerce clause.  SWANCC involved the authority of the Corps of Engineers to promulgate the so-called “Migratory Bird Rule,”[61] which the Corps had invoked to deny a permit to develop an abandoned and gravel mine as a disposal site for solid nonhazardous waste.  The abandoned mine had evolved into a series of ponds.[62]  The Court declared the Migratory Bird Rule invalid, because Congress had given the Corps, under the Clean Water Act, jurisdiction over “navigable waters” and “waters of the United States,” as opposed to a scattering of intrastate ponds.[63]  The Court read the Clean Water Act “as written to avoid the significant constitutional and federalism questions.”[64]  This invocation of the clear statement rule, in the environmental arena, unlike Jones, was by a familiar 5 to 4 vote. 

The one decision of the constitutional law of federalism came in Garrett in which the Court held that Congress had not validly used its remedial power, under the fourteenth amendment, to subject the States to claims for money damages under the Americans With Disabilities Act.  This case received the most popular scrutiny and loudest outcry from leftist interest groups, but the decision was unsurprising.  Garrett was the logical result of Kimel, which barred claims for money damages in cases of age discrimination.  Once again, clarity was the issue:  Congress had not compiled (nor could it) a recorded pattern of state violations of the constitutional rights of the disabled.  After Garrett and Kimel, so too go the claims for money damages under the Family Medical Leave Act.   

That brings me to my favorite victory in this term, Alexander v. Sandoval, the spending clause case.  At issue was the policy of Alabama to administer drivers’ license tests only in the English language.  The plaintiff, Martha Sandoval, desired to take the test in Spanish and sued under the disparate impact regulations of Title VI of the Civil Rights Act of 1964.  Because the Alabama Department of Public Safety receives federal funds for marijuana eradication and state trooper overtime, though not for drivers’ tests, the Department is subject to the spending clause restrictions of Title VI. 

We presented two arguments, the first of which was successful and the second, therefore, was not addressed.  The first argument was that, in enacting Title VI, which prohibits intentional discrimination against members of suspect classes, Congress did not create a private right to enforce disparate impact regulations promulgated by federal agencies.  Congress created a separate scheme for the enforcement of agency regulations.  The Court agreed by a 5 to 4 vote.  The second argument was that, under the clear statement rule of Pennhurst, there can never be an implied private right of action to enforce a federal spending contract against the States.  When the State accepts federal funds, the State must have unambiguous notice of the methods of enforcement. 

One clear theme of the Sandoval decision, which runs throughout federalism  jurisprudence, is congressional accountability.  The plaintiffs and the United States, as amicus curiae, argued that a private right of action was contemplated by the agency in its regulations.  The entertaining rebuttal of the Court, with Justice Scalia writing, was that “it is most certainly incorrect to say that language in a regulation can conjure up a private cause of action that has not been authorized by Congress.  Agencies may play the sorcerer’s apprentice but not the sorcerer himself.”[65]

In the aftermath of Sandoval, there are two cases to watch closely where district courts recently have reached dramatically different conclusions about private enforcement under the spending clause.  One ruling is ridiculous, and the other is sublime.  The ridiculous ruling came two weeks after Sandoval in South Camden Citizens Action v. New Jersey Department of Environmental Protection.[66]  The sublime ruling came one month before Sandoval in Westside Mothers v. Haveman.[67] 

First, the ridiculous.  In South Camden Citizens, the plaintiffs sued, under the disparate impact regulations of Title VI, to enjoin the issuance of an air pollution permit for a cement processing facility.  The plaintiffs alleged that the siting of the facility, in a neighborhood where 91 percent of the residents were either black or Hispanic, would have a racially discriminatory impact.  One week before the Sandoval ruling, the district court agreed with the plaintiffs and preliminarily enjoined the issuance of the permit.  Two weeks after the Sandoval decision, the district court allowed the plaintiffs to amend their complaint to allege the same claim under section 1983, and the district court again entered a preliminary injunction.  The district court based its second decision on the dissenting opinion of Justice Stevens in Sandoval. 

The South Camden Citizens decision is wrong on many levels.  The Supreme Court has never held that spending clause regulations are enforceable under section 1983.  The ambiguity of the disparate impact regulations, which are expressly subject to negotiation with the agency, are too vague to satisfy Blessing.  The agency enforcement scheme also renders a private suit, under section 1983, suspect under Blessing and Suter.  The State also cannot be deemed to have waived its sovereign immunity from suits to enforce regulations under the clear statement rules of Atascadero and Pennhurst.  In Sandoval, the Court also provided a strong hint that the disparate impact regulations are invalid as well-beyond the scope of the prohibition of intentional discrimination under Title VI.[68] 

The most important reason South Camden Citizens is wrong is the basis of the sublime ruling in Westside Mothers and the point raised in the concurring opinion of Justices Scalia and Kennedy in Blessing: that is, section 1983 is never available for private enforcement of spending contracts between the federal government and the States.  In Westside Mothers, the plaintiffs seek injunctive relief and the appointment of a special master to reform the system of medical care for poor children in Michigan, under the Medicaid program.  The district court dismissed the case for lack of jurisdiction, under the eleventh amendment, and the failure to state a cognizable claim.  The brilliant opinion of the district court concludes that spending clause contracts are not proper subjects of Ex parte Young actions, and section 1983 does not create a private right to enforce spending contracts.  This scholarly opinion should be read by every serious Federalist. 

If history is any guide, the next frontier of federalism cases will, like Westside Mothers, involve spending clause legislation and the constitutional issues of sovereign immunity and enforceability in section 1983 suits.  Ironically, the area of federalism jurisprudence that has produced the fewest and most deferential constitutional standards may offer the best hope for the next landmark decisions.  The groundwork for significant decisions has been laid in cases of statutory construction starting with Pennhurst and leading to Alexander v. Sandoval.  I only hope I can participate in this next phase of the operation of James Madison’s “double security.”