AND THE SUPREME COURT'S OCTOBER 2000 TERM
MICHAEL GREVE: Good
afternoon. We're here to
discuss judicial federalism, and, in particular, the decisions of the
Supreme Court's Term that just ended.
discuss this issue are three terrific experts, all among the small crowd
of committed attorneys who litigate federalism cases.
The danger with experts, and, in particular, with legal experts,
is always that they might get carried away. So, an hour from now, you
might find yourself exposed to a profound discussion about the extent to
which Chisholm v. Romer
can be squared with Gregory
v. Ashcroft, or the preclusive effects of state remedies
under Suter v. Artist M. At
that point, you may want to fall asleep. If you don't know what
decisions I'm talking about, you might feel tempted to leave now. I'll
give you two reasons to sit still for this.
is we'll be serving wine and crackers afterwards. People who bolt
prematurely will be excluded. The
other, more important, reason is that this debate actually matters.
At events five or six years ago, the debate was this: Do these
federalism decisions really matter, or is this just symbolic and a blip
on the radar screen? I think that debate is pretty much over. This stuff
matters, especially as Congress is considering the President's nominees
for the various federal circuits. There’s
a lot of hollering about activism and about ideology, and federalism
decisions are, first and foremost, on the senators' minds.
Federalism has joined the usual suspects--abortion, religion.
When that happens, you know there's something real going on. This
is not just symbolic.
won't get a serious debate about the Supreme Court's federalism in the
United States Senate. The reason why I say that is that federalism
actually has to do with the Constitution, which is the last thing the
Senate cares about. There's
an article in today's Wall Street Journal about Jeff Sutton,
nominee for the 6th Circuit Court of Appeals, who has litigated many,
many federalism cases and won all of them.
The rap on Jeff Sutton is not that he somehow has a perverse
constitutional ideology. The rap is that he's out to kill widows and
orphans, or at least the Supreme Court is doing it on his behalf.
The real debate ought to be about the following question: Are
these decisions bringing us closer to something resembling
constitutional government, or are they not?
they are some approximation of constitutional government, then it seems
to me all the hollering about activism and ideology is beside the point.
The Supreme Court is just doing its job. If, on the other hand, these decisions are something else,
then they're really an example of breathtaking arrogance.
question posed by the Court’s federalism decisions is reasonably
straightforward, but the answer is more nuanced. There's a whole range
of issues that are now implicated in federalism: the Tenth Amendment,
the Eleventh Amendment, the Fourteenth Amendment, the Commerce Clause,
statutory interpretation, §1983, etc.
is possible that all of these decisions are correct, or, as Larry Tribe
would have it, that all of them are plainly wrong; either way they form
sort of a seamless web. But I think one ought to contemplate the
possibility that some of these decisions are right but maybe for the
wrong reasons. Some of them may be simply wrong.
Federalism is not a coherent, seamless web, but more or less a
collection of ad hoc interventions, which occur whenever the Court is in
not saying this is so. All I'm calling for is a somewhat more nuanced
assessment of the Supreme Court's federalism than we've received to
date. Here to provide that
assessment are three terrific experts on the subject.
William Pryor, who will go first, became Attorney General of the State of Alabama in January 1997, as the youngest attorney general in the United States. He's handled many federalism cases in the Supreme Court, including two major federalism cases this past Term, Alexander v. Sandoval and University of Alabama v. Garrett. He served as deputy attorney general under now-Senator Jeff Sessions. He obtained his law degree from Tulane Law School and began his legal career as a law clerk for John Minor Wisdom on the U.S. Court of Appeals for the Fifth Circuit. I should add that Bill Pryor is a man of uncommon courage and integrity. He filed the lone attorney general brief on behalf of the constitutional position in Morrison v. United States when thirty-six of his colleagues filed on the other side. He wrote a long string of articles, both in The Wall Street Journal and in scholarly journals, against the tobacco settlement agreement that was engineered by many of his colleagues. That kind of courage and integrity make him a very rare creature--so rare, in fact, he may never have to buy a house. He can just occupy whatever he needs and then file for habitat preservation under the Endangered Species Act. That might work--if that statute were actually constitutional, which it probably isn't."The Demand for Clarity: Federalism, Statutory Construction, and the 2000 Term."
Odom joins us from Oklahoma City University Law School. I'm particularly
grateful to him because he agreed to substitute for Professor Charles
Fried, who could not join us at the very last minute. Tom has written
widely on federalism, administrative law, and civil procedure, and his
most recent publication is the foreword to an Oklahoma City
University Law Review symposium that's available on the table
outside. Previously, Tom Odom was a partner with the Washington, D.C.
office of Arter & Hadden where he was involved in several federalism
cases, including challenges to the federal Drivers Privacy Protection
Elwood is a partner with the firm of Baker & Botts. He has
represented clients in a variety of civil and criminal matters before
state and federal courts. He clerked for Judge Dan Mahoney on the Second
Circuit and for Supreme Court Justice Anthony Kennedy.
While in private practice, he brought a federalism-based
challenge to the constitutionality of the federal bribery and
embezzlement statute in the Eighth Circuit.
I should mention that John is also the author of "The
Supreme Court Today," which is an extremely insightful and
entertaining running commentary on the Supreme Court and its decisions
as they come out. Among other things, we owe to John Elwood the
definition of the distinction between a case syllabus and a Rehnquist
opinion, which is that the syllabus sometimes contains reasoning. We'll
start with Bill Pryor.
GENERAL WILLIAM PRYOR: Thank
you, Michael; it's a pleasure to be here with all of you to discuss a
subject that is near and dear to my heart.
Federalism is the rage, in more ways than one. Over the last
decade, the federalism decisions have been the most important legacy of
the Rehnquist court. The blockbuster decisions regularly are by the
narrowest margin, with the Federalism Five trumping the Nationalist
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.
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.
The federalism decisions of the Rehnquist court are James
Madison's double security principle 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
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 for
federalism, Garcia v. San
Antonio Metro Transit Authority. Then
I will address statutory construction in relation to the constitutional
law of federalism under the Commerce Clause, the Eleventh Amendment, §5
of the Fourteenth Amendment, and the Spending Clause.
Finally, I will address this issue in relation to the three
federalism decisions of this Term (two of which my state was a party and
the other an amicus curiae)
with special attention to Alexander
v. Sandoval and current issues in Spending Clause litigation.
battle over federalism was supposed to have ended in 1985, in Garcia. Fast-forward six years. Contrast Garcia with the decision in Gregory v. Ashcroft, a case of statutory construction in which
the Court held that the mandatory retirement age for state judges in
Missouri did not violate the Age Discrimination and Employment Act.
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, the Court
would not infer that intent in construing the ADEA. In contrast with the presumption in Garcia that the sovereign interests of the states are protected
solely in the halls of Congress, the Rehnquist court has promoted those
sovereign interests by requiring accountability from Congress.
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 receive the benefit of the doubt created by the sloppiness of
Congress in enacting ambiguous federal laws.
the use of the commerce power. Certainly, the most important federalism
decisions of the Rehnquist Court are U.S. v. Lopez and U.S. v. Morrison, in which the Court
held, respectively, that Congress lacked the authority, under the
Commerce Clause, to enact the Gun-Free School Zones Act and to provide a
federal 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.
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, in which the Court held, as a matter of statutory
construction, that a federal criminal law could not be used to prosecute
a defendant for arson of a personal residence because the residence was
not property used in interstate commerce. The Jones court construed the statute based on its clear terms to
avoid the constitutional question of the limits of the commerce power
under Lopez and
did not disrupt the balance of federal-state power.
Notably, the opinion in Jones
was written by Justice Ginsburg, and the vote was unanimous.
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, 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, overruling Pennsylvania v. Union Gas Company.
came the decisions in Alden v. Maine and College
Savings Bank v. Florida Prepaid Postsecondary Education Expense Board.
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 Florida v. College Savings
Bank, the Court overruled its 1964 decision from Alabama, the
Parden case, and held that the Eleventh Amendment immunity of a
state cannot be constructively waived. Each of these three cases was by
a five to four vote.
backdrop for all of these decisions is a well-established rule of
statutory construction that requires a clear statement by Congress of
intent to abrogate the sovereign immunity of the states. This rule was established in 1985 in Atascadero State Hospital v. Scanlon, in which the Court held
that Congress did not abrogate the Eleventh Amendment immunity of the
states from suits under the Rehabilitation Act.
held that Congress can abrogate that immunity only by making its
intention unmistakably clear in the language of the statute. Four years
later, the Court invoked this clear statement rule and held, in Will
v. Michigan Department of State Police, that a state was not
a person within the meaning of §1983, subject to suit in its own
courts. On the same day as its decision in Will, the Court held, in Dellmuth v. Muth,
that Congress failed in the Education of the Handicapped Act to abrogate
the immunity of the states under the Eleventh Amendment.
of these cases was controversial in that each was decided by a five to
four vote. Last Term, though, proved that the controversy about the
propriety of the clear statement rule in the context of sovereign
immunity is largely over.
Vermont Agency of Natural
Resources v. U.S. ex rel. Stevens, 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. The Court then
explained that the statute should be construed so as to avoid difficult
constitutional questions involving the Eleventh Amendment. The vote was
seven to two. 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.
third area of federalism decision-making involves the remedial power of
Congress under §5 of the Fourteenth Amendment. In 1997, the Court held
in City of Boerne v. Flores,
that Congress lacked the authority under §5 to impose the Religious
Freedom Restoration Act on the states.
RFRA prohibited the states from imposing a substantial burden on
an individual's free exercise of religion except when the burden
satisfied a strict scrutiny. The
act imposed a tougher standard than required by the Fourteenth Amendment
as interpreted by the Court. 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 §5 to enact RFRA.
Boerne, the Court held, in four cases, that Congress failed to
exercise its power to enforce the Fourteenth Amendment validly.
In three of the cases, therefore, it failed to abrogate the
Eleventh Amendment immunity of the states. The Court held in College
Savings Bank that Congress lacked the authority to abrogate
immunity in cases under the Lanham Act, and in a companion case the
Court reached the same conclusion about the Patent Remedy Act.
Then, last year, in Kimel
v. Florida Board of Regents (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 ADEA. Finally,
in Morrison, the Court held that the civil remedy under the
Violence Against Woman Act was directed at criminal behavior of
individuals, not state actors, which is outside the scope of the
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 or 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. 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.
demand for clarity in enforcing the Fourteenth Amendment can be traced
to a 20-year-old case of statutory construction. In Pennhurst
State Hospital v. Halderman, 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.
According to the Court, 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. Justice Stevens
joined in that opinion, delivered by then-Justice Rehnquist.
is the 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 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. In South
Dakota v. Dole, 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 in South
Dakota v. Dole. Justice
O'Connor wrote that Congress may not impose or change regulations in
other areas of the state's social and economic life because an
attenuated or tangential relationship to the federal funding program.
The principal limitation on the spending power has been imposed by the
Court through statutory construction.
Court had held that if Congress intends to impose a condition on the
grant of federal monies, it must do so unambiguously. 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's
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. Applying
that rule of statutory construction, the Pennhurst
Court held that Congress did not impose obligations on the states to
fund certain levels of treatment. The adoption of that clear statement
rule was by a six to three vote with Justice Stevens joining Justice
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., the Court held by a seven to two vote that the
Adoption Assistance and Child Welfare Act did not create a private right
of action, nor allow the use of §1983 to enforce its obligations. In Blessing
v. Freestone, a unanimous decision, the Court held that the
child support provisions of the Social Security Act did not create a
private right, enforceable under §1983.
In an important concurring opinion, Justices Scalia and Kennedy
suggested that it was an open question whether §1983 ever grants a
private right to enforce spending contracts between the Federal
Government and the states.
the history of the clear statement rule in mind, let us turn to the
three federalism decisions from this Term: Solid Waste Agency of
Northern Cook County v. U.S. Army Corps of Engineers (SWANCC),
in which my office filed a brief as amicus curiae, and the cases
where my office represented the prevailing defendants, University of Alabama v. Garrett and Alexander
v. Sandoval. Two of these decisions were based on statutory
construction, and all three illustrate the judicial demand for clarity
and respect of federalism. The
Alexander case also left several questions unanswered that are
the subject of important pending cases.
Court--using the same method used in Jones--employed a clear
statement rule to avoid a difficult constitutional issue under the
Commerce Clause. SWANCC
involved the authority of the Corps of Engineers to promulgate the
so-called migratory bird rule, which the Corps had invoked to deny a
permit to develop an abandoned sand and gravel mine as a disposal site
for solid, nonhazardous waste. The abandoned mine had evolved into a
series of ponds. 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. The Court
read the Clean Water Act, as written, to avoid significant
constitutional and federalism questions. This invocation of the clear
statement rule in the environmental area was by a familiar five to four
vote (unlike Jones, which was unanimous).
one decision of constitutional law about federalism in this Term came in
the case Board of Trustees of the University of Alabama v. 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 of
money damages under the Americans With Disabilities Act.
This case received the most popular scrutiny and the loudest
outcry from leftist interest groups, but the decision was unsurprising. Garrett
was the logical result of Kimel,
which barred claims from money damages in cases of age discrimination.
Once again, clarity was the issue.
Congress had not complied, 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
brings me to my favorite victory in this Term, Alexander
v. Sandoval, the Spending Clause case. At issue was the
policy of my great state to administer driver's license tests only in
the English language. (Try to get an airline pilot's license, speaking
another language, from the Federal Government.)
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 our Department of Public Safety
receives federal funds for programs like marijuana eradication and state
trooper overtime, though not for driver's license test administration,
the department is subject to the Spending Clause restrictions of Title
presented two arguments, the first of which was successful, and the
second, therefore, was not addressed. The first argument was that by
enacting Title VI, which prohibits intentional discrimination, 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 five to
four 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 for enforcement.
clear theme of the Sandoval
decision, which runs throughout the 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.”
the aftermath of Sandoval,
there are two cases to watch closely, where district courts recently
have reached diametrically 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 in Action v. New Jersey Department of Environmental
sublime ruling came one month before Sandoval
in Westside Mothers v.
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 §1983, and the district court
again entered the same preliminary injunction.
The court based its second decision on--what? The dissenting
opinion of Justice Stevens in Sandoval.
South Camden Citizens
decision is wrong on many levels. The Supreme Court has never held that
Spending Clause regulations are enforceable under §1983. The disparate
impact regulations at issue are expressly subject to negotiation with
the agency, and are too vague to satisfy Blessing v. Freestone. The
agency enforcement scheme also renders a private suit under §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 because they go well beyond the
scope of the prohibition of intentional discrimination under Title VI.
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, §1983 is never available for private enforcement of spending
contracts between the Federal Government and the states.
the plaintiffs sought 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 failure to state a cognizable claim.
The brilliant opinion of the district judge concludes that Spending
Clause contracts are not proper subjects of Ex Parte Young
actions and §1983 does not create a private right to enforce spending
contracts. This scholarly opinion is must reading for 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 §1983
the area of federalism jurisprudence that has produced the fewest and
most deferential constitutional standards may offer the best hope for
the next landmark decision. The groundwork for significant decisions has
been laid in cases of statutory construction starting with Pennhurst
and leading, most recently, to Alexander
v. Sandoval. I only hope I can participate in the next phase
of the operation of James Madison's double security. Thank you.
GREVE: Thank you, General Pryor. Next, Tom Odom.
THOMAS ODOM: I want to
start by saying what an honor it is to be on this panel and to be
invited to be here. I know
that just in the last week or so when Michael was faced with the
situation where a former Solicitor General and Harvard law professor,
Charles Fried, said he couldn't attend that he and the rest of the great
minds at AEI got together and thought, “Who can possibly fill those
shoes?” Obviously, I came
first to their mind, and I am just thrilled that my stature has reached
also like to say that it's quite a thrill to be following Bill Pryor's
remarks. Bill and I have worked together on some federalism cases in the
past, where he's been the client. So this may be my first chance to
actually respond and have the final word on what I think about some of
those points. So let me
start by making a couple observations about his remarks. First, one
thing he had mentioned was the Garcia
decision and the view that that was the death knell of federalism.
I certainly acknowledge that that is the conventional reading of the Garcia
decision, I would invite you to take a fresh look at the decision and
its language. I think it can be read very differently, although, again,
I recognize that's not the way most scholars have read the decision.
I see Garcia
not so much as the death knell of federalism, and, as such, in tension
with the Gregory
decision of years later, but, rather, I see Gregory
as the natural outgrowth of Garcia.
Garcia said that
we need to rely primarily, not exclusively, on the processes of Congress
to protect the interest of state autonomy.
Well, for that to work, it seems perfectly logical that Congress
needs to clearly state when it intends to invade the area of state
autonomy. It seems to be a natural corollary to me, not something that's
really in tension.
Pryor also talked about the clear statement requirements, citing Atascadero.
Some version of the clear statement requirement has been with us for
over a century. I think
what we’re really talking about are two different versions of the
clear statement requirement. What we saw in Pennhurst,
and actually even so in Atascadero,
that was a significant development was that the Court said the clear
statement must be on the face of the statute.
The Court was not going to try to divine congressional intent by
looking at the legislative history and looking to other sources.
being the case, I think it's very important to look at some of the
decisions in more recent Terms where the clear statement has been
applied, and ask whether in fact the Court is applying it in that way,
looking for the clear statement on the face of the statute.
It seems to me that the justices may in fact have backtracked
from that. So I have a
caveat to add to General Pryor's statement that the clear-statement rule
is well-settled. I think
there are fine nuances that we should all be concerned about.
final point is about limits on the spending power, and he says the
principal limit is the clear statement requirement. Well, certainly,
that's true doctrinally, but if you think about it, the major limit on
the spending power is the federal government’s need to come up with
money, and so that certainly limits what things can be done under the
don't think we face a situation where Congress could simply take every
program that's being struck down under other constitutional provisions
and reenact it under the spending power without substantially raising
taxes. I don't see how they could possibly do that.
said that in response to General Pryor, there are three major points I
want to make. The first point: I think that, contrary to what's being
said in a lot of the popular press and the academic journals, the
Supreme Court has not taken an extremist view in recent years in
favoring state autonomy. If we look at the Court's decisions as whole we
see that it's taken a much more moderate course. Usually, in discussions
of this kind, nobody bothers to mention the preemption cases.
Preemption doctrine is still strong. Laws of state and local
governments are set aside under a very strong preemption doctrine. The
same thing goes for dormant Commerce Clause cases, which, again, get
left out. We've seen a
number of those decisions just in the last few Terms.
you add them to your analysis, that’s got to change your view about
how far the Court is going to protect the interest of the states. Add to
that cases like Reno v.
Condon. Here's a decision where, certainly, the states were
pushing on one side, and there's a 9-0 decision written by the Chief
Justice rejecting the argument in favor of state autonomy.
factor that into the analysis, and then also take a look at the language
that appears in decisions that states and local governments might view
as wins. Perhaps the result
in the particular case resolves the controversy in a way state and local
governments find favorable, but again, I think if you read the language
carefully, you might see that they're giving something back. I'll just
cite two examples of this.
is Auer v. Robbins,
another one of these decisions that generally doesn't get cited when we
talk about what the Court's doing on the federalism front. Auer
is a Fair Labor Standards Act case, and the issue in dispute was
whether police sergeants and lieutenants were eligible to get more
compensation as overtime than they otherwise would be entitled to under
an interpretation of a Department of Labor regulation. In a 9-0
decision, the Court adopted an interpretation of the regulation that was
more favorable to the state and local governments, but the Court went
far beyond that. What looks
like a win might in fact be a loss if you consider some of the other
things the Court did in that decision.
party had raised the question--it was not briefed by the parties and it
was not something that had ever been adjucated below—whether, in fact,
the particular regulations at issue were valid. There was no reason for
the Court to reach that issue, especially because if you found they were
invalid the Court would simply end up ruling the same way as was
required by its resolution of the question of regulatory interpretation.
It was not a necessary part of the decision.
the Court went on and addressed that, and rejected challenges to the
validity of the regulations, despite the fact that there were other
cases being brought by state and local governments coming up through the
system, where that issue had been fully briefed. So here's an example of what looks like a win but in fact
might very well undermine a much larger victory that could have come
example of this is the Kimel decision. I think states certainly look at this and say
on its face, this was a victory. But, again, I'd invite you to pay
attention to how the Court handled the clear statement inquiry there. If
you look at the difference between the lead opinion and the concurrence
by Justices Thomas and Kennedy, what you see is an application in the
lead opinion that seems to leave out the requirement that the clear
statement be on the face of the statute.
lead opinion didn't clearly indicate that's what it's doing, but follow
its analysis. It looks to legislative history, it looks to prior court
decisions, it looks to a number of things. It looks to cross-references
and statutes that were enacted at different times, a number of different
things that weaken what you might have thought would be the clear
statement requirement from prior cases, and certainly limited its
ability to expand doctrine in a way that would be more protective of
that's my first point. I think the notion that the Court is being
extremist in its protection of state autonomy is strongly overstated.
Related to that, my second point is about the Court's activism in this
area. I would say the Court
is not being activist in these federalism decisions. There I think it
helps to talk about what we mean by an activist Court and I'll address
that in two different ways.
I'd say an activist Court might be one that reaches out to address
issues that are not presented by the case or controversy before the
Court—issues that are not necessary to deciding the case.
Under that definition, I would think, we would say the Court is
not being more activist in federalism decisions than it is in any number
of other areas. The Auer
case is a situation where the Court did reach out and perhaps could be
called activist in a sense. It did so in a way that didn't favor states
or local governments, but just the opposite.
that with Sandoval,
where the Court leaves open questions about §1983 as a source for a
private remedy and it leaves open the question of the validity of
disparate impact regulation. An
activist Court might very well have taken those issues on and decided
them. The Court didn't.
also suggest that the very fact that the Court is not being activist, in
a sense, explains why we have a series of cases in these areas. If Seminole
Tribe had laid out a rule that everybody understood was the
rule--that you cannot use any Article I power to abrogate Eleventh
Amendment immunity, period--there would have been no reason to litigate Florida
Prepaid, Kimel, Garrett and other cases to flesh out that
principle. But it's because
the Court is adhering to a traditional analysis of the scope of the
holding of a case, that we realize Seminole
Tribe, while it might have language as broad as the doctrine
we now recognize, doesn't stand for that proposition, and we need to see
some further case development there.
So, again, I suggest that's an indication the Court is not being
another sense, perhaps, in which we might think of a Court as being
activist, and that's the extent to which it overturns the holding of
firmly established precedent. Again,
I'd like to suggest we're not seeing much of that in this area.
What we are seeing is the Court ruling in a way that is perhaps
inconsistent with dicta from prior decisions or dicta
compiled from individual decisions of different justices, which even
when added together doesn't add up to a majority of the Court. Or we
might see something like the Court taking a different approach than in a
prior case that was decided with a 4-1-4 split, where the one justice
concurred in the judgment but not the rationale of the Court.
It seems to me these are the types of so-called precedents that
we see the Court departing from, and I think it's very hard to explain
how the Court is ‘activist’ when the cases from which it is
departing are something that's short of what we would consider a firmly
third point I'd like to make is that it seems to me the Court, in a
number of areas concerning federalism, has set up what I will call
process-based protections, or process-based limits. This is a theory that I've laid out in my writing. If you
pick up copies of the symposium issue of the law review that's in the
lobby, you'll get some description of this in my foreword, as well as
citations to my earlier writing, where I have discussed this theory.
But the basic concept is this: the Supreme Court is not ruling
out certain matters for Congress to address through legislation.
Instead, what it largely is doing is saying if you're going to do it,
you need to follow certain process-based limits. You need to make sure
that you jump through certain hoops, or go over certain hurdles.
at the cases from this Term, we can see that, for instance, Garrett
suggests the importance of congressional findings. Well, that's not a situation where the Court is saying
Congress could not enact provisions like those in the ADA. What the Court is saying is you'd have to go and make
congressional findings, leaving that open, somewhat. The Court could have erected a substantive limited
alternative. It could have said something like the power under §5 to
enforce the Fourteenth Amendment is limited to the scope of §1 which
defines the rights. That is
not what the Kimel Court did.
Instead, it set up a process-based limitation, which left it open
to Congress, in the future, to enact the same sort of statute having
built a different record.
is another example. Here we see use of the clear statement requirement.
The Court does not say that Congress could not create a private
cause of action under Spending Clause legislation. Congress could add to
the particular legislation creating the Spending Clause program and
expressly provide for a private cause of action.
Or when it passed the pertinent appropriations bill, Congress
could add, expressly, the private cause of action.
Or Congress could do something like enact the equivalent of §1983
for Spending Clause programs or simply amend §1983 to expressly permit
such private causes of action. The
Court is taking a much more limited, moderate approach by simply saying
we're going to require Congress to follow certain processes. We're not
ruling out that you could never do these things.
think if we look back to some of the cases from the 2000 Term and the
2001 Term, and from the prior Term as well, we see the same sorts of
things happening. I mentioned Kimel
as one of the cases where I have particular concern for the way the
clear statement requirement was used. But, again, we start by looking at
the clear statement requirement. We have a number of situations where,
if we think of process-based limitations broadly, we see that the
Court's decisions over the past decade or so can be described as the
Court's applying some sort of clear statement requirement or limiting
certain remedies for enforcement.
the Court may do something like have an anti-discrimination principle
which would permit a limit on states as long as Congress imposed this
limit more broadly. It
seems to me these are the sorts of things that you look at. In putting them together you see what we have is a
requirement for process without substantively ruling out what Congress
can do, and I think that it's a gross overstatement to look at that and
say the Court is taking some extremist position. In fact, for
individuals who are concerned about substantive limits to protect
federalism, I suggest looking at the cases.
In terms of substantive protection of federalism, what you have
is a series of very weak decisions, if that's the sort of protection you
want to erect. Thank you.
GREVE: John Elwood.
JOHN ELWOOD: I agree with
General Pryor, and I suspect a great number of the people in this room,
that federalism--or depending on your point of view, conservative
judicial activism--is likely to be the central legacy of the Rehnquist
Court. The fifteen years since the current Chief was elevated, and
especially the last five or six years, have changed the terms of debate
regarding the proper structure of our Government and the rule of the
courts in policing it.
have one anecdote and one set of statistics to illustrate the point.
People who write public speaking books always say you should begin a
speech with a humorous antidote, but I’ll tell this one instead. In
February of 1995, I was in the Criminal Appeals Section of the Justice
Department. Now, as the
name would imply, it's a section that oversees the federal government's
efforts in appellate courts nationwide.
Our deputy chief had gone out West to give a speech about recent
legal developments to a conference of assistant U.S. attorneys. Recall
that in a case called United
States v. Lopez, the Fifth Circuit had unexpectedly struck
down an obscure gun regulation on the grounds it exceeded Congress's
Commerce Clause authority. The government had sought to correct this
aberration and we, the government’s sophisticated appellate lawyers,
were confident that the Court would uphold the statute.
After all, Wickard v. Filburn was the last word about the scope of the
Commerce Clause, and the Court hadn't struck down a law on that basis in
the time of the deputy chief's speech, the Court had heard argument on
the case, but had not yet decided it. So as a joke, just before his speech, we faxed my boss a fake
syllabus marked “FYI, Full Opinion To Follow,” for an opinion which
the Supreme Court struck down the Gun Free School Zones Act on Commerce
Clause grounds. Our
doubtlessly very surprised deputy chief dutifully reported this legal
development to a roomful of absolutely stunned AUSAs.
back at Main Justice, we congratulated ourselves on our excellent sense
of humor for this very droll practical joke.
As it happens, of course, the joke was on us. Just two months
later, the Court delivered a real syllabus that was remarkably like the
fake one we had prepared as a joke. For all of our trouble, all we had
managed to accomplish was to tick off the man who assigned us our cases,
and to earn him a reputation for being clairvoyant.
the statistics. In the year following Lopez
came Seminole Tribe,
involving the Eleventh Amendment. During
the sixteen Terms of the Warren Court, the Eleventh Amendment was only
mentioned ten times. In the
five Terms since Seminole
Tribe, the Eleventh Amendment has been mentioned in 34
decisions, which is over ten times as frequently (even accounting for
the much-reduced docket).
the Eleventh Amendment took up only ten pages in the 1953 to 1973
editions of the Hart & Wechsler Federal Jurisdiction Casebook, but
more than 60 pages in the 1988 and 1996 editions. Based on events of the
last five years, it's obviously going to take up a lot more room in the
next edition. Since Lopez and Seminole
Tribe, the Court has been releasing fairly significant
federalism opinions at a fairly steady pace of one to three cases per
Term, and of course it is no longer a joke to say that the Court would
strike down a law on federalism grounds.
reaction when the Court granted certiorari this Term in the Solid
Waste case, or SWANCC,
and when the Court granted certiorari in the Browner v. American Trucking Case (now Whitman v. American Trucking Association), involving
the non-delegation doctrine, shows that people are taking these issues
very seriously. It's only a
mild exaggeration to say that these are cases that launched a thousand amicus
my brief here today is to talk about the cases that are actually coming
down the pike, rather than the cases that have been decided this Term,
because I feel like a pretty good job has been done with that already.
I want to just talk about a couple cases that no one has talked
about yet involving the clear statement rule and the Tenth Amendment.
I'd like to briefly address one very small case involving the clear
statement rule. Normally,
this rule makes its appearance as a makeshift argument in statutory
interpretation cases after the "heavy lifting" of statutory
construction has already been done.
But I think that it has, nonetheless, done a lot to advance the
cause of federalism, because justices seem much more ready to employ
this principle and its kissing cousin--the rule of constitutional doubt,
which says that if a statute is ambiguous and raises grave
constitutional concerns, you employ a reading that doesn't raise those
justices seem much more ready to employ these sort of shadow principles
than they do to employ the underlying constitutional principles,
because, after all, it's just statutory construction. You only have to come up with enough doubt to create
constitutional concerns, not an outright constitutional violation.
But because of the closeness with which people read Supreme Court
opinions, and I suppose because dicta has a way of entering the
mix with holdings, use of these principles really do shape the terms of
first signed opinion released this Term fell into this category. It's an
unimportant case called Cleveland v. United States, and it's little to most academic
folks--but to the criminal defense bar it's a very big deal indeed.
It held unanimously that video poker licenses issued by the State
of Louisiana are not property for purposes of the federal mail fraud
statutes. The opinion is written broadly enough so it is clear the
holding applies to most types of state and municipal licenses.
The case was decided on statutory grounds—really straight
statutory construction--but the reasoning and outcome are significant.
the reasoning. The Court employed the clear statement rule to support
its interpretation of the statute.
Again, that's sort of a makeweight argument. It wrote, "Equating issuance of licenses or permits with
deprivation of property would subject to federal mail fraud prosecution
a wide range of conduct traditionally regulated by state and local
authorities," which the Court refused to do in the absence of clear
instruction from Congress.
this opinion was written by Justice Ginsburg, who, for lack of a better
term, is one of the biggest nationalists on the Court.
As General Pryor mentioned, she also invoked the clear statement
rule in last Term’s unanimous Jones
case, which held that the federal arson statute does not apply to the
burning of a private owner-occupied residence.
this principle invoked twice in two years by a relatively liberal
Justice, for a unanimous Court, is very noteworthy. So far as I can
tell--and keep in mind that I don't have any research assistants--the
clear statement principle was used only once during the entire Warren
Court Era, just months after Earl Warren took the bench.
was used, as far as I can tell, only a handful of times by the Burger
Court, and when you take out the clear statement rule as sort of a
subset of the Spending Clause doctrine, it's even fewer cases.
In fact I was only able to find one or two references covering
the entire span of the Burger Court.
appears to really have taken off only with Gregory
v. Ashcroft in 1991, and I think one thing that's significant
is that most of these cases in the past were five-four cases.
In recent Terms it's definitely picked up more currency, along
with the rule of constitutional doubt. You see it three or four times a
term nowadays. (Significantly,
the rule of constitutional doubt got more use this Term by the Court's
more liberal wing--in INS v. St. Cyr and Calcano-Martinez
v. INS--where it was used as sort of a background principle,
not really for the flip side of federalism, but just for a pro-immigrant
reading of those statutes.)
is also significant because of its outcome. It places significant types
of cases beyond the reach of federal prosecution and rendered infirm a
number of convictions, including, most notably, several convictions of
former Louisiana Governor Edwin Edwards in the recent gaming case.
It gives ammunition to a spate of federalism-based challenges to
criminal prosecutions that are ongoing across the country.
when Lopez first
came down, the rap on it was that it was a one-time thing. But when
these precedents are out there, litigants cite them, and courts have to
contend with the logic of the decisions.
To quote the Suzanne Vega song, which is probably 15 years old
now, "It's a one-time thing; it just happens a lot."
I caution that federalism challenges are, for the most part, most
likely to succeed, if at all, in the Supreme Court. Lower courts seem to
be more reserved about extending the Supreme Court's federalism
precedents. For example, in the three years following Lopez, the Eighth Circuit rejected sixteen consecutive
federalism challenges to criminal statutes.
I want to talk about a Tenth Amendment case that got very little
attention this Term, Cook v.
Gralike. It got little attention, I think, for two reasons.
First of all, the subject matter is kind of passé. It concerned a
Missouri state constitutional amendment involving term limits for
members of Congress. This was all the rage in the early 1990's, but
enthusiasm for term limits has waned.
Secondly, I think that it was overlooked by most people because
the important principles were already settled in 1995 just a few weeks
after Lopez, in U.S.
Term Limits v. Thornton. Even
though I think that this case wasn't all that legally significant, that
won't stop me from talking about it for a little bit.
couldn’t directly require that an incumbent's name be taken off the
ballot if it had appeared there more than a certain number of times. So,
instead, it instructed its congressional delegation to work for term
limits as a constitutional amendment, and held that candidates who
didn't support term limits would have a label put next to their names on
ballots: "disregarded voter's instruction on term limits" in
all capital letters.
no one's great surprise, the Court held the law unconstitutional. It
seemed like a foregone conclusion after U.S.
Term Limits. Missouri based its right to enact the law on its
retained rights under the Tenth Amendment. Relying on Thornton,
the Court held that if a power arose only because of the Constitution,
then states can exercise it only if the Constitution delegates that
power to them, because state authority to regulate elections to federal
officers couldn't exist without the Constitution. After all, without it,
there wouldn't be any federal officers.
Court held that states had no such power in the absence of a delegation.
Now there is actually a delegation in the Constitution to the states.
It's the Elections Clause and it gives the states the power to regulate
the times, places, and manner of holding elections for Congress, subject
to Congress's power to override that.
the Court wrote that the Framers understood this only as a grant of
authority to issue procedural regulations. The Court held that the
Missouri provision was more than just a procedural regulation.
It was an impermissible mechanism for favoring, or disfavoring,
particular classes of candidates. So the state lost.
I think that we have to keep this case in mind because people
always talk about the federalism cases as though the states always win
and that's just not the case.
wanted to give a brief preview of federalism-based cases that are on the
docket for next Term, and other cases which are out there on the
horizon. First of all, Mathias
v. WorldCom Technologies Inc. This case, which is on for
argument next fall, involves the state and federal government's joint
regulation of the telecommunications industry under the 1996 Telecom
Act. The federal government
now regulates intrastate long distance, but states have the choice of
helping out in that regulation by having their state public service
commissions hear certain claims. Or,
if they want to, they can just opt out altogether.
If the states agree to assist, then federal law provides that
state public service commission orders are reviewable in federal court.
Courts of Appeals are divided on whether this constitutes a waiver of
Eleventh Amendment immunity for these Public Service Commissions.
The Fourth Circuit, unsurprisingly, held that the Telecom Act
falls short of a clear statement. The
participation in the regulatory scheme is predicated on a waiver of
sovereign immunity. It also held that Ex Parte Young did not apply.
The Fifth, Seventh, and Tenth Circuits came out the other way.
The case that the Court actually took on this issue is from the Seventh
Supreme Court is thus presented with a question of whether the state
commissions' participation in the federal regulatory scheme constitutes
a waiver of Eleventh Amendment immunity.
One added wrinkle is that this case is on what I like to call the
"OOPS" docket, meaning O'Connor Owns Party Stock.
Thus one of the Court's swing justices is recused from the case.
Given the issues at stake, I think that there is a non-trival chance
that the Court will be divided four-four, and so it will be affirmed by
an equally divided Court in a judgment lacking precedential value.
second is Raygor v. Regents
of the University of Minnesota. I take this case as a good indication that all of the good
Eleventh Amendment immunity cases have already been decided.
There's a provision of the Federal Supplemental Jurisdiction
Statute that tolls the statute of limitation on state law claims while
they are pending in federal court. That way, if a case is dismissed from
federal court, for any reason, pending state law claims are still fresh
when the plaintiff re-files in state court.
sued the University of Minnesota in federal court for age discrimination
under both federal and state statutes. The case was dismissed because a recent (OT '99's) Eleventh
Amendment case--Kimel v.
Florida Board of Regents--held that the Federal Age
Discrimination and Employment Act had validly abrogated state sovereign
immunity. Raygor filed suit in state court and said that the Federal
Supplemental Jurisdiction statute had kept his case from being
time-barred. The Minnesota
Supreme Court held that the tolling provision violated the Eleventh
find this reasoning a little unsatisfying.
The court held that, "because Congress cannot extend federal
judicial power against unconsenting states, it follows that Congress
cannot impose a penalty on a state defendant in the form of having its
claims tolled against it, for being named without its consent as a
defendant in federal court." We may have finally found an Eleventh
Amendment claim that won't get the votes of O'Connor or Kennedy.
think, if anything, it's more likely they might be able to find some
sort of Tenth Amendment argument in there, but I have to say that I
don't see the Eleventh Amendment claim.
New York v. FERC
and Enron Power Marketing v.
FERC. These two cases present a number of questions, but for
federalism purposes, the only relevant one is this: Under the Federal
Power Act, can FERC validly preempt state jurisdiction over intrastate
retail transmission of electric energy?
are a few issues that are still percolating in the courts of appeal and
may find their way up to the Court.
First of all, my ears perked up when I heard General Pryor talk
about the Spending Clause because the Spending Clause is an issue that's
near and dear to my heart. I agree with him that it's the next big
thing, in no small part because, in Alden
v. Maine, the Supreme Court basically waved a big red flag
and said that the Spending Clause was a way to get around all these
other limits on congressional power.
Pryor approaches the Spending Clause issue from a slightly different
perspective than I do, since he represents states, or, more
particularly, one state. He
focuses on implied rights of action, things like §1983 claims. Because I represent individuals, I focus on Congress's
ability to create individual liability under the Spending Clause. For
example, the federal bribery and embezzlement statute (18 USC §666) was
passed under the Spending Clause. If the Spending Clause restrictions
are generally annualized under contractual principles, laws like §666
are very odd, indeed, since they place restrictions on third parties
rather than the signatories to the so-called contract.
number of lower federal courts have suggested there are federalism
limitations on punishing local conduct under §666, if it doesn't
threaten federal funds. Significantly, this is usually achieved through
the principle of constitutional doubt. The Third Circuit, Fifth Circuit,
Second Circuit, and a district court in Massachusetts have weighed in on
this one. A judge in the
Eighth Circuit has written that the law is facially unconstitutional,
but that was in a concurring opinion.
there are a few other cases that are out there on the horizon.
One case that the Court has to decide whether or not it's going
to grant on next September is the Cleveland school voucher program. The
new Solicitor General, Ted Olson, has weighed in and asked the Court to
grant certiorari on this case as an amicus. Recall that
the Court, back in November of 1999, stayed a preliminary injunction of
the program, suggesting the Court is very interested in the case and has
a likelihood of ruling on the merits.
what does this have to do with federalism?
One amicus--the Claremont Institute, represented by former
Attorney General Edwin Meese and Professor John Eastman--has argued that
the incorporation of the establishment clause against the states
infringes the states' core police power to regulate health, safety, and
morals, and is inconsistent with the Court's recent federalism
jurisprudence. They suggest
that the establishment clause shouldn't be incorporated against the
states, given the First Amendment's unique textual limitation to
Congress. Even if it is
incorporated against the states, they argue, states should at least be
given additional leeway in the area. You know, this may seem laughable,
but, then again, Lopez
seemed pretty laughable to me in February of 1995.
last fall, a panel of the Sixth Circuit struck down the Federal Child
Support Recovery Act, or the “deadbeat dad” law, and held that the
Commerce Clause did not empower Congress to criminalize the failure to
obey a state court order to pay child support when the state itself had
failed to make that criminal. Most notably, the panel held that,
although the child support payments involved transactions in money, they
did not involve “commerce” as that term is used in the Commerce
Clause because the payments lacked the sort of voluntary reciprocity
that “commerce” suggested. The
Sixth Circuit promptly en banc'ed the case and the decision has
yet to be released. The Sixth Circuit is a fairly liberal court, so I
suspect that it will uphold the law, like the other courts of appeals
that have addressed the matter. But
if not, there's a circuit split. If so, I suspect the SG will feel
constrained to bring cert and the Court will feel constrained to
take it. Thus, we may soon be treated to the incongruity of watching Ted
Olson defend the constitutionality of the consummate piece of Clinton
era "feel good" legislation, the deadbeat dad law.
as General Pryor mentioned, there's this question of whether the
reasoning of Garrett
applies to the Family And Medical Leave Act. The Fourth Circuit, in an
opinion just released on June 20th, held that Congress had not validly
abrogated state sovereign immunity and that a state agency--which is,
believe it or not, the Washington Metro--was not liable for damages for
there is the question of whether the reasoning of Garrett
applies to sex discrimination under Title VII. Again, on June 20th, the
Eighth Circuit held that it does not--that is, the law is
constitutional--and that it can be enforced against the states, in part
relying on the argument that Congress is assumed to be aware of findings
it made with respect to other statutes. Thus Congress doesn't have to be
expected to make the same kind of record with Title VII because various
findings had already been well-established.
I very much doubt that the Court will grant on that because I
don't believe there's a circuit split.
final point. Michael Greve made the point that Alabama was the only
state to file a brief in United
States v. Morrison, arguing that the Violence Against Women
Act exceeded the power of Congress.
I think that this is emblematic of the error of leaving
enforcement of federalism to Congress and to the political process, as
suggested in Garcia v. San
Antonio Transit Authority.
states don't always have the incentives to resist federal encroachments
on their power. States have limited practical ability to raise their own
taxes further, given the already large burden of federal taxes.
Therefore, the states are always looking for a handout from the
federal government and for assistance in meeting their own obligations
realizing this, the Supreme Court held in New
York v. United States that, "State officials cannot
consent to the enlargement of the powers of Congress beyond those
enumerated in the Constitution."
People sometimes lose sight of the fact that the Founding Fathers
adopted the federal form not for the benefit of the states but for the
benefit of the people. I
think this misunderstanding accounts for why, whenever the states lose a
case in the Court, Walter Dellinger quips, "The justices don't love
the states so much as they hate Congress."
is premised on the idea that the diffusion of power allows for greater
liberty. If the states lose a case in the Supreme Court sometimes, it's
not because the justices don't actually believe in federalism. It's
because federalism doesn't mean that the states always win.
GREVE: As Tom Odom likes to
say, federalism is much too important to leave to the states.
We'll open it up for discussion.
MEMBER: I want to address
this mostly to Tom Odom, but anyone else who wants to agree or disagree
with him, please do so. I
certainly find fascinating all of the sovereign immunity and clear
statement rules, and definitely have to agree with General Pryor that
those are encouraging and important. But there was a very distinguished
scholar who wrote a book on Real Federalism recently that convinced me,
in part, that that's the icing on the cake, that that won't give us very
much protection without real substantive development.
I wanted to accuse Tom of understating his thesis.
It's misleading to say that these aren't extreme decisions,
particularly in the substantive areas. These are good developments, but "baby steps" in
size. After all, Wickard
v. Filburn is still cited with authority in Lopez
and in Morrison.
Yes, it is nice to win those two cases; I was at oral argument
for both of them and realized then that they were important.
Morrison was a slight improvement over Lopez
because we got Kennedy and O'Connor to shut up and join the majority
opinion, without sending false signals.
But at this rate, we will all be dead, and that's my comment for
ODOM: I would react to that by saying, first off, what I set out to do
is to be descriptive, to try to articulate a theory that explains the
number of developments in federalism doctrine under different clauses of
the Constitution, and to try to suggest that there is some coherence to
what's going on in these different areas.
the extent that I'm being descriptive, I am not suggesting an approach
that is more thoroughly
based on greater enforcement of the notion of enumerated rights, and so
forth. It is not something that would give much greater protection. I'm
not saying that at all. But
I also recognize that that also requires some more dramatic changes.
think that a lot of us in the room would agree with a lot of those
changes, and I certainly don't want to discourage anyone from pursuing
that path. I'm suggesting
something that I think is perhaps a more moderate vision, that I think
is more realistic, and perhaps might serve as being longer lasting.
of the examples I give--National League of Cities v. Usery--purported to provide us
with substantive protection of state and local governments. The standard
looked good. In applying it, the Supreme Court has never ruled in favor
of state or local government. While
the standard seems small, at least you're winning those cases. It perhaps permits the Court to accomplish more because it
generally proceeds on an incremental basis. It doesn't generally throw
out fifty years of jurisprudence and say we're starting on a clean
slate. But I don't want to discourage people from presenting those
arguments. I think that it's important to continue to do so.
just suggesting something that I think is more descriptive and perhaps
has the promise of giving us a longer lasting jurisprudence, so that we
don't see a National League
of Cities reversed by a Garcia,
and so forth. Perhaps we can get something that we can agree to because
it doesn't take us so far to an extreme on either side.
MEMBER: I'm wondering what
the panel thinks about the cases that are now coming up to the federal
courts on the new RFRA law (Religious Freedom and Restoration Act). It
seems conservatives are in a bind. On the one hand, we're generally
favorable to religion for access claimants. On the other hand, zoning
and prison regulations seem to be two areas that we also think should be
left to the states. I'm
wondering how you think that law will fare, once it gets all the way up
to the Supreme Court.
PRYOR: It’s a Spending
Clause case, which is noteworthy. I
don't know yet how it's going to be resolved. There are important
federalism implications when you get into issues like prisons.
But the solution to this is to do what we did. After Boerne,
I led a campaign to amend the Alabama Constitution to adopt a version of
RFRA by constitutional amendment in our state. So, we've imposed it on
ourselves. That ought to be the solution. The states are quite capable
of doing that. It would provide more protection for religious liberty
than the Court has given us under the First Amendment.
ODOM: I would just say one
word on that. I think that the bind that it produces is one we've seen
in a lot of the cases, in recent Terms, where there's a difference
between the position that state attorneys general might care to take
based on federalism doctrine, apart from the position they take on the
underlying policy. In Printz and Kimel
you can see why it is that politically-elected attorneys general feel
that they can’t be in a position where it's said that they’re
against privacy or this and that.
PRYOR: I can.
ODOM: But that's the
thought that underlies the statement that Michael attributed to me,
which I asked never to be repeated in public, that there are times when
it seems the states, through their state attorneys general, are not as
vigorous in enforcing limitations of federalism doctrine as people who
believe in those limitations would like them to be.
GREVE: In the case that
General Pryor mentioned earlier, Westside Mothers v. Haverman (against the Michigan Department
of Community Health), the complaint was under Medicaid and §1983
against the state of Michigan. It promised to be extremely expensive for
Michigan if those petitioners succeeded in their claims.
Nonetheless, the Michigan AG's Office twice refused to defend the
statute, and the judge himself then went out and said, "Find me an amicus
attorney who can actually argue the jurisdictional questions in this
one instructive example. There are lots and lots of those cases,
especially in statutory cases and spending cases. There are always very
potent constituencies that back these statutes. That's why they're on
the books in the first place. That
constrains not only federal officials, but also local and state
officials from taking positions that will be generally favorable to
their state as a political entity, as distinct from their political
fortunes, especially since all of the AG’s are, of course, running for
MEMBER: You mentioned that
federalism is not just about states rights but, rather, about dual
sovereignty, about checks and balances--the feds checking the states,
the states checking the feds--and the states don't always win. In
particular, they may not win when the states invoke the Fourteenth
Amendment to stop the states from denying due process or equal
there was, after all, a third part of the Fourteenth Amendment, the
Privileges or Immunities Clause. In a case in 1999, Saenz
v. Roe, the
states lost on that. California
had some durational residence requirements for welfare and the Court
held that the right to travel was implicit in the Privileges or
Immunities Clause, and that the state’s durational residency
requirement violated that.
Rehnquist and Thomas disagreed with the second conclusion, namely, that
the durational residency requirement impeded the right to travel.
However, they did agree with the first, and they did suggest that
they'd be willing to revisit the Privileges or Immunities Clause, which
has been a dead letter since the Slaughterhouse Cases in 1873.
I'm wondering if our panelists think that there is any life left
in the Privileges or Immunities Clause.
Are we likely to see this Court revisit it in an appropriate
PRYOR: I think that the
case that you cite is a perfect indication, and it would sure make the
constitutional laws that relate to the Fourteenth Amendment a lot more
sensible and truer to the original understanding.
In fact, it might be a more effective limitation on the states
than the Due Process Clause and the Equal Protection Clause have proved
to be. Of course I've got to defend a state, but one of the privileges
of being a state attorney general, too, is that I took an oath of office
to uphold the Constitution of the United States, and, sometimes, when
state officials have done wrong things I get to say so, no matter what
ODOM: I would just say, if
there is any relationship at all, and I'm not sure there is, between
theories that are being produced in scholarship that academics put out,
and what's going on in the real world, there have been a number of
important articles on the Privileges and Immunities Clause, and reviving
it. John Harrison at
University of Virginia School of Law, for one, has written on this, and
there have been a number of other very good pieces in recent years
providing the analytical framework, if somebody cares to look at that
literature and then to litigate it.
MEMBER: I just realized I
could be one of the few people in this room who happen to think that the
Court got it right in Chisholm
v. Georgia. You're
quite tutored in the Eleventh Amendment, so maybe I could just ask the
kind of simple question that would induce you to illuminate the
landscape. If we had a kind
of Clintonesque governor of a state, one who thought that we could make
prescription drugs more readily available, and he encourages an
off-label version of Viagra, don't you think that Pfizer could go into a
court to defend its patent?
PRYOR: Yes. Let's not lose
sight of the fact of the significant power that still exists to enforce
federal laws against states in all of these areas. As I had mentioned,
in Kimel and Garrett,
the Court held that the state's sovereign immunity had not been
abrogated as it related to money damages under the age discrimination
law and the disabilities law. That does not mean that there's no avenue
for enforcement of those federal statutes against the states.
are still Ex Parte Young actions that are available. You can get
an injunction. It's interesting, of course, that in many of these areas
Congress exempts the federal government from claims for money damages.
But, there's something perverse when we states want the same kind
of immunity, and want to prevent burdens placed on our taxpayers.
The United States can, of course, sue to enforce these kinds of
laws, if Congress so provides that right.
It in no way raises any Eleventh Amendment concerns, because the
Eleventh Amendment only applies to suits brought by citizens.
fact there could be criminal actions brought by the United States to
enforce laws in either the Commerce Clause area or the Fourteenth
Amendment. So it would be a
gross overstatement to say that there are no longer very powerful
remedies available for the enforcement of these laws.
GREVE: Can I just pursue
this for just one minute? I'll
make the catastrophic mistake of asking a question to which I actually
don't know the answer. Could
you win these patent cases on an inverse condemnation theory? The reason
why I'm asking that: if it's true that you could get the money, then
what the Court did in the patent cases was to follow a procedural theory
of federalism. Whereas, if
it's true that in those cases, where money is frequently the only
effective remedy that you can get, and there's no alternative way to get
a money judgment, then there's something more at stake, it seems to me.
Again, I don't know the answer.
PRYOR: Well, obviously, if
it's property within the meaning of the Fourteenth Amendment and there's
a constitutional violation, then, yes, there can be a remedy under §1983.
Of course, some of these laws go further than that, and the problem was,
in going further than the Constitution required, Congress had not
demonstrated a pattern of unconstitutional activity by the states, or,
importantly in this area, a deprivation of remedies by the states.
All the states in this area allow property owners administrative
and judicial processes to enforce claims, or to bring claims of takings.
ODOM: And there are
additional remedies as well. Consistent with Eleventh Amendment
doctrine, states can, and in cases do, waive their immunity and consent
to sue. The state is not
some separate group that's independent of the citizens of the state.
You would expect that, as a result, they're going to be
irresponsible, and people are concerned about having intellectual
property, like any other type of property, taken, and states do, in a
number of areas, waive that immunity so that the litigation can go
MEMBER: The point is,
though, that as we fill this out, the notion of autonomy of the state to
fend off attempts to vindicate wrongs is really quite diminished.
MEMBER: So we ought to be
very clear about this being put in perspective.
MEMBER: Because I think Mr.
Odom's right. I think this is very incremental stuff, and it seems to me
to be hanging by a thread. That it could be very easily switched the
GREVE: We’ll take a few
MEMBER: I'll make this quick because it has, to some extent, been
addressed already. Bill
Pryor emphasized the extent to which the nationalists on the Court have
come along with the statutory construction of principles.
We very clearly have not seen that happen in the substantive
cases. There's every indication in the opinions that if they get the
votes they'll be very happy to overturn them all. In addition, the
federalist five is really only four and a half, as we saw in the Term
Limits case from 1995, where the Court, in an opinion that made some
of the Warren Court precedents look like models of legal reasoning,
simply asserted on the basis of a political slogan having nothing to do
with the Constitution at all, that Arkansas couldn’t use their ballot
that opinion was joined by one of the so-called federalist five. So I
wonder if the thread isn't even thinner, that these things are hanging
by even thinner threads than has been suggested so far.
PRYOR: I think you have to look at the long view, and that's the point I
was trying to make. If you look at this in incremental terms, I think
there's a lot more progress than has been made, than if you just
concentrate on the cases you're focusing on.
If you just view the cases of constitutional law, of federalism,
as the only ones that matter, then you're going to lose some sleep.
But I'm trying to give you a little more comfort.
I don't think that the extent to which the nationalists--if we
call them that--have sided in the clear statement cases with the
federalists is a trivial development. I think it's an important
development. I think even the eternal pessimist, Michael Greve, is
becoming more optimistic.
ODOM: Let me respond to
that comment with a question. Is it possible that the so-called
nationalists are going along as a strategic point? If the Court can resolve a case on statutory grounds, the
Court won't reach the constitutional issues.
PRYOR: There's no doubt.
ODOM: The so-called
nationalists may recognize that on the constitutional issue they don't
have the votes and don't want to make more precedents adverse to their
PRYOR: There's no question.
ODOM: It could be strategic
behavior as opposed to the so-called nationalists sincerely indicating
in the statutory construction cases that they accept as settled law the
underlying constitutional precedent.
The case hanging by a thread is Seminole
example, Justice Stevens doesn't even pretend that he recognizes that
case as precedent. He's been very explicit, that he's more or less
pledged a campaign of massive resistance against it, and he's never
going to agree with it. I
think that's really a field where, if you get one vote to change, then
the Court will disavow all of that. Whereas I feel like most other
cases, the justices would try to just distinguish precedents they
disagreed with. I think Lopez
and Morrison would
simply be distinguished. I
think Seminole Tribe,
if they got the votes, would be eradicated, root and branch.
GREVE: One very quick thing
in response to an earlier question.
The theory that I would like to believe, and have almost brought
myself to believe, is that the Supreme Court, in the substantive areas,
as we’ve been now collectively calling them, has decided it can't
unmake the New Deal. That
project would be ridiculous. But what it can unmake is the
statutory underbelly of federalism.
That was the Brennan revolution.
There were no implied private rights of action before Justice
Brennan. There was no §1983
jurisprudence before Justice Brennan, and on and on.
All of these things that are now being unmade were Justice
why does that matter? Well,
I'll give you one real-life example of why it matters.
What's the actual hard core of the 1996 welfare reform?
It says in bold letters, "No more private entitlements to
welfare, period." End of debate. That was very important to
Congress because it thought it could not reform the statute so long as
every clown with a lawyer could run into court and unmake what they put
on the books. And that just
must mean we cannot have entitlements.
To the extent that you have that process now being played out in
the courts--or, more precisely, to the extent that the Court says we
won't be complicit in those kinds of schemes unless you, Congress,
clearly tell us to do so--you're reaching results that tend towards the
same results that you see in welfare reform. That is, an awful lot more
implementation authority on the part of the states, and the relations
between states and the federal government change to bargaining, instead
of bargaining in the shadow of the Children's Defense Fund and the
Environmental Defense Fund. That is a very significant development, I
think, at least potentially. I
hope that's right. I'm not sure.
PRYOR: One thing that I would hasten to add, that I should have
mentioned earlier when there was moaning about how motivated the states
sometimes are to get involved in this area, is that there's been a
taking of notice by the state attorneys general about this area of the
law. It was just last year
that the National Association of Attorneys General formed a federalism
working group. Michael Greve just came out to our summer meeting in
Vermont as part of a federalism panel discussion, and I happen to be the
chairman of this working group. I wonder how he picked me?
But there's now a formal structure for state attorney general
collaboration in this area, and I think a few years ago, that would have
just not been thinkable.
MEMBER: This is the same
question that everybody's been asking, but I want to put it more
broadly. There's no
question that these cases--and the affiliated political
developments--represent some policy victories of some sort, but my
question is this: are they really related to federalism?
That is, what I think we see here are a scattered set of
constraints that the Court has imposed upon federal government action,
but we haven't seen the Court--or for that matter anyone,
really--endorsing an affirmative vision of federalism.
We see references to traditional state powers but that recourse
to tradition is never going to carry the day.
As John Elwood points out, it's almost after-the-fact boilerplate
when the Court speaks of dual sovereignty. We haven't seen anyone
embrace a robust sense of dual sovereignty or a conception of dual
sovereignty that really could be played out in some affirmative way over
the years. So the question
is, are these developments, interesting as they are, really going to be
resilient without the development of a broader affirmative vision of
PRYOR: It's hard to do in this context, that is, with a conservative
Court. I just think you're
expecting too much. I think if you look at Justice O'Connor's writings
during her entire tenure, this is the one area where she's laid out more
of a robust vision than in any other area of the law.
She's famous for being fact-driven and case-specific driven in so
many areas of the law, but I think that's less true in the area of
federalism than in any area. I
think it's a lot to ask for a Court that views itself as case-driven, to
lay out that kind of broad vision.
ODOM: I would add two
points. First, to the
extent you get a broad vision, what you are seeing is a vision that says
federalism isn’t there to protect the states--federalism is a means to
protect individual rights. I
think we’ve seen a lot more language like that than we’ve seen in
decades past. The second
point (given my view that the Court is exercising restraint in how
it’s addressing these issues), is that the Court’s restraint,
itself, suggests why you don’t get a broad vision laid out in
opinions. A vision is not
necessary to decide a particular case or controversy, so we’re not
getting the broad language that says “in this opinion we’re going to
lay out a whole framework of federalism.”
We’re getting specific decisions, but I don’t think it means
a broader vision isn’t underlying it.
It’s just not coming out in the opinions.
GREVE: One additional quick
remark, just because those decisions haven’t been mentioned. I think the closest you can come to something on which a
coherent vision can be built is the accountability and responsibility
argument that we see in New York
and in Printz.
What’s the argument against commandeering? Why is commandeering
so bad? Because citizens
are then confronted with a bewildering array of decision-makers.
Who’s responsible, who’s doing what?
What’s really wrong with those kinds of arrangements are the
agency problems that we confront as citizens.
Again, it’s hanging by a thread, no doubt about it.
However, it’s hanging by a thread either way, because if that
kind of argument kicks over into the spending context--and I see no
reason why it couldn’t or shouldn’t--then that’s really a whole
new horizon. And it’s
already popped up in Eleventh Amendment cases, so why not spending
MEMBER: Several of the panelists have mentioned a potential split
between autonomy and rights, and the interests of federalism as they
protect individuals. I
wonder if that sort of split doesn’t actually exist in some of the
principles that the panelists have endorsed.
For instance, in the Spending Clause area, at least two of you,
and maybe all three, were pretty enthusiastic about these decisions
stemming from Pennhurst
(saying that there should be a very clear statement about what Spending
Clause statutes really require, and that we have many private rights of
action under these spending grants from the federal government to the
states). But both of those
principles, if carried forward, actually make federal money increasingly
attractive to state government. This
would undermine the conservative/libertarian goal of weaning the states
off of the federal dole and of encouraging competition between states
for taxpayers rather than allowing them to get money from a federal
sugar daddy. Could you
comment on that?
PRYOR: There’s another
side to that. Suppose
there’s less of a regime where--as Michael was describing it a moment
ago--the beneficiaries of the nanny state can go into court with a
lawyer and adopt an extreme view of these federal requirements.
It may be that the curtailing of that power in this area is
actually going to allow the laboratory of the states to work better--to
have better experimentation by the states, and not the uniformity that
comes from that kind of litigation regime.
ODOM: It seems to me that
where we see that change is in the attitude of Congress.
I don’t foresee a change in the doctrine and I think that
you’re right in the observation that the doctrine permits Congress to
say to the states, “here’s some money, take it, but now you must do
things our way, and in a way that we couldn’t tell you to do under the
Commerce Clause, §5 of the Fourteenth Amendment, and so forth.” If
you’re looking at substantive limitations, you could say that
circumvents them. I think
if you’re looking at more process-based limitations, you’d say we
don’t have that same problem there because it’s not coercive.
It’s a choice.
MEMBER: Building on the
comments until now, just a couple of observations.
First, on the patient’s bill of rights.
It occurs to me that part of the argument now is that forty
states have adopted similar provisions and one of the arguments that the
people in favor of an expansive patient’s bill of rights have made is
that it’s almost identical to the one in Texas.
It struck me as this debate developed that if this debate were
happening now over workers’ compensation or regulation of insurance
for automobiles, the political reality is that 40 states would adopt
some form of regulation and the federal government would step in and
adopt something else along a similar line.
We’ve been talking about how the Supreme Court cases are
process-oriented, and not on the substance, and this is going to require
some kind of cultural change, that Congress is going to need to have
some motivation to change the way it approaches some of these issues.
Are these kinds of cases going to provide the intellectual,
philosophical basis for developing that other political-cultural change
that seems to be necessary to further this federalist ideal?
And in particular what strikes me about this is that if we’d
been having this conversation three or four years ago, everybody on the
panel would pretty much agree that clear statement of the law cases were
not terribly significant because it was a fairly weak thing that had
only to do with process and not with substance.
ODOM: Let me respond to two
points. First you said that
we’re all talking about process.
I am, but I won’t put that label on my colleagues. I will say
that in the symposium issue that you have a copy of, I was the only
panelist who was talking about process.
The rest of them -- the people who wanted more state autonomy,
and the people who wanted more national control -- all were saying that
that wasn’t the way to go. In
my worldview, that tells me maybe I’m doing something right, if I’m
being attacked from both sides. We
need to question your premise there.
But I do want to take your question in a slightly different
Michael McConnell, if you don’t know him from his scholarship, is one
of the nominees for a position on the Tenth Circuit.
He has advocated in a number of cases before the Supreme Court
and in some of his writing what he calls the “traditionalist view”
of constitutional interpretation, and he limits it to the context of
identification of unenumerated rights under the Due Process Clause.
We’re not talking about a broad constitutional theory.
That’s the question he’s trying to address.
He tries to take a middle ground between textualists and those
who would take a stand that contemporary policy would endorse. One of
the things he looks to as the middle ground: have 48 states
independently come to recognize a given right?
If so, then we can say we have a tradition of recognizing a given
right, and that can serve as the basis for recognizing a federal
PRYOR: One of the things we
do in our litigation is we take the consensus of the states--in passing
laws, for example, that prohibit age discrimination or disability
discrimination--as evidence that Congress does not have the record upon
which to use its remedial power under the 14th Amendment.
That’s been a powerful part of our argument.
ODOM: I would add that
while understanding exactly what Professor McConnell is trying to do, if
you look at it from a federalism perspective, it’s very troubling.
It’s saying to individual states, if enough states adopted some
rule by a simple majority of the legislature, then it would require a
federal constitutional amendment to undo that rule. It’s very
GREVE: Ladies and
gentlemen, please join me in thanking our panelists for a terrific