The Federalism Project

American Enterprise Institute



July 11, 2001  


Michael S. Greve

Director, Federalism Project  
John G. Searle Scholar, AEI  

The Honorable William H. Pryor, Jr.

Attorney General, Alabama  

Thomas H. Odom

Assistant Professor, Oklahoma City Law School

John P. Elwood

Partner, Baker Botts, LLP  



MR. 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.  

To 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.  

One 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. 

You 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?  

If 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.  

The 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. 

It 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 the mood. 

I'm 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. His comments today derive from his recent article about the Supreme Court's federalism jurisprudence, "The Demand for Clarity: Federalism, Statutory Construction, and the 2000 Term."

Tom 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 Act.  

John 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.  

ATTORNEY 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 Four. 

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

The respect for federalism in statutory construction shows how far the pendulum has swung in support of the limited government objective of the Framers to split the atom of sovereignty.  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 government itself.  

To illustrate that double security in statutory construction, I will place this subject in context. First, I will address statutory construction in relation to the decision that was supposed to be the death knell 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.  

The 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.  

The Gregory Court held that in the absence of a plain statement of intent by Congress to upset the usual constitutional balance of federal and state powers, 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.  

The Court first demands from Congress clarity in legislation. Sometimes the presence of legislative clarity leads the Court to find that Congress exceeded its enumerated powers under the Constitution. More often, the states receive the benefit of the doubt created by the sloppiness of Congress in enacting ambiguous federal laws.  

Consider the use of the commerce power. Certainly, the most important federalism decisions of the Rehnquist Court are 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.  

As important as those decisions of constitutional law were, recall that they were foreshadowed by Gregory, also a case involving the Commerce Clause, in which the Court employed statutory construction to respect the traditional authority of the state to define its sovereignty by setting the retirement age of its judges.  Then consider the decision in the 1999 Term, in Jones v. United States, 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.  

Another illustration involves the sovereign immunity of states from suits in federal and state courts. There have been three major decisions of constitutional law regarding sovereign immunity in the last several years. The first, in 1995, was Seminole Tribe v. Florida, 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.  

Then 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.  

The 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.

The Atascadero court 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.  

Each 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.  

In 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.  

The 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.  

Following 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 Fourteenth Amendment.  

Although these decisions involve the constitutional law of federalism, the Court has not foreclosed the potential use of congressional power to remedy state discrimination on the basis of age or religion 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.   

The 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.   

Pennhurst 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.  

In Pennhurst, the 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 Rehnquist's opinion.  

In the last decade, the Court has invoked the clear statement rule as settled statutory construction to deny judicial remedies to private beneficiaries of federal spending programs.  Thus, in Suter v. Artist M., 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.  

With 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.   

In SWANCC, the 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).  

The 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 Act.  

That 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 VI.   

We 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.  

One 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.”  

In 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 Protection.  The sublime ruling came one month before Sandoval in Westside Mothers v. Haveman.  

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

The 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.  

In Westside Mothers, 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 suits.  

Ironically, the area of federalism jurisprudence that has produced the fewest and most deferential constitutional standards may offer the best hope for the next landmark 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.  

MR. GREVE: Thank you, General Pryor. Next, Tom Odom.  

PROFESSOR 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 that level.  

I'd 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.  

While 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.  

General 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.   

That 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. 

My 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 spending power.  

I 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.  

Having 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.  

If 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.  

Again, 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.  

One 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.  

No 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.  

But 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 about.  

Another 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.  

The 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 state autonomy. 

So 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.   

First, 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.  

Contrast 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.  

I'd 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 as active.  

There's 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 established precedent.  

The 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.  

Looking 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.  

Sandoval 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.  

I 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.  

Or 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.  

MR. GREVE:  John Elwood.  

MR. 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.  

I 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 anyone's memory.  

By 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.  

Meanwhile, 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.  

Now 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).  

Similarly, 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. 

The 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 briefs.  

Mostly, 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.   

First, 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 concerns.  

But 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 debate.  

The 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.  

First, 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.  

Significantly, 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.  

Having 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.  

It 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.  

It 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.)  

Cleveland 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.  

Now, 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. 

Secondly, 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.  

Under Thornton, Missouri 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.  

To 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.  

The 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.  

But 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.  

I 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.  

The 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 Circuit.  

The 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.  

The 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.  

Raygor 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 Amendment.  

I 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.  

I 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.  

Third, 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? 

There 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.  

General 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. 

A 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. 

Now 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.  

So 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.  

Secondly, 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.  

Third, 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 its violation.  

Finally, 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.  

One 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.  

The 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 to citizens.  

Perhaps 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."  

Federalism 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.  Thanks.  

MR. GREVE:  As Tom Odom likes to say, federalism is much too important to leave to the states.  We'll open it up for discussion.  

AUDIENCE 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.   

So, 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 your reaction.  

PROFESSOR 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.  

To 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.  

I 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.  

One 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.  

I'm 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.  

AUDIENCE 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.  

GENERAL 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.  

PROFESSOR 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.  


PROFESSOR 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. 

MR. 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 case."

It's 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 higher office.  

AUDIENCE 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 protection.  

But 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.  

Now 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 case?  

GENERAL 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 they think.  

PROFESSOR 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.  

AUDIENCE 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?

GENERAL 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.  

There 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.  

In 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.  

MR. 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.  

GENERAL 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.  

PROFESSOR 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 forward.  

AUDIENCE 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.  


AUDIENCE MEMBER:  So we ought to be very clear about this being put in perspective.  

GENERAL PRYOR:  Absolutely. 

AUDIENCE 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 other way.  

MR. GREVE:  We’ll take a few more questions.  

AUDIENCE 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 devices.  

Now 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.  

GENERAL 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.  

PROFESSOR 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.  

GENERAL PRYOR:  There's no doubt.  

PROFESSOR 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 view.   

GENERAL PRYOR:  There's no question.  

PROFESSOR 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.  

MR. ELWOOD:  Right.  The case hanging by a thread is Seminole Tribe.  For 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.  

MR. 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 Brennan's creation.  

Now, 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.  

GENERAL 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.  

AUDIENCE 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 federalism?  

GENERAL 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.  

PROFESSOR 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.  

MR. 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 cases?  

AUDIENCE 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? 

GENERAL 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.  

PROFESSOR 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.  

AUDIENCE 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.  

PROFESSOR 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 direction.  Professor 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 constitutional right.  

GENERAL 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.   

PROFESSOR 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 troubling.  

MR. GREVE:  Ladies and gentlemen, please join me in thanking our panelists for a terrific discussion.