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October 01, 2002

Federalism and the U.S. Supreme Court

by David O'Neil

As federalism has taken center stage in recent U.S. Supreme Court battles, the justices have emphasized with increasing frequency the familiar justifications for the constitutionally mandated division of power between national and state government. In case after case, the Court has extolled our system of dual sovereigns for the "numerous advantages" that system "preserves to the people." At the top of this list of advantages, the Court has consistently emphasized one interest above all others, one overriding goal toward which secondary justifications must converge in support: "The Constitution divides authority between federal and state governments for the protection of individuals," not to benefit "the State or state governments as abstract political entities." In the theory of what some commentators now dub the "federalism revolution," then, judicial policing of the boundary between federal and state power is justified as an effort to protect "the rights of the people."

Considered against this theoretical backdrop, the most striking aspect of the Court’s recent federalism decisions is how poorly "the rights of the people" have fared in comparison to the abstract interests of the states. This imbalance has been particularly conspicuous at the vanguard of the Court’s federalism agenda: limits on individual lawsuits seeking to remedy a state’s violation of federal law.

Over the last decade, the Court has steadily reduced the ability of individual citizens to force a state into court to answer for its conduct. This initiative began with the Court’s expansive interpretation of the Eleventh Amendment, which provides that "the Judicial power of the United States shall not be construed to extend" to certain specified types of individual lawsuits. Discarding the text of that amendment and drawing instead from its general spirit, the Court created the broad constitutional principle of "state sovereign immunity"—a principle "exemplified" by the Eleventh Amendment and "confirmed" by the Tenth but otherwise unconstrained by anything beyond the Court’s conception of constitutional structure.

With each new Term, the Court has imposed additional limits on individual lawsuits in the name of this principle. The trend began in earnest with Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996), in which the Court established that Congress, acting under its power to regulate interstate commerce, cannot override the states’ constitutional immunity from suit. As a result of the holding, individuals have no right to call states into federal court under any law enacted pursuant to Congress’s Article I authority.

Following Seminole Tribe, the Court expanded the principle of state sovereign immunity along two distinct axes. In one line of doctrine, the Court applied the immunity principle to new forums, prohibiting individual grievances against states not just in federal court but also in state court and before federal administrative tribunals. These decisions starkly displayed how far sovereign immunity had strayed from its textual roots in the Eleventh Amendment, for in no rational sense could that amendment’s language encompass state courts, which do not exercise the "judicial power of the United States," much less federal agencies, which do not exercise "judicial power" at all.

In the second axis of expansion, the Court further impinged on congressional power to create private remedies. Twenty years before Seminole Tribe, in Fitzpatrick v. Bitzer, 427 U.S. 455 (1976), the Court held that Congress could use the powers granted to it under the Fourteenth Amendment to create individual remedies against states. Defenders of federal private-suit provisions therefore reacted to Seminole Tribe by turning to the Fourteenth Amendment as a valid source of congressional authority to enact such measures. The Court responded not by overruling Fitzpatrick, but rather by sharply limiting the circumstances in which Congress could invoke the Fourteenth Amendment as a basis for law making. Under the framework that has evolved in recent years, Congress must first demonstrate to the Court’s satisfaction that Fourteenth Amendment legislation is necessary to remedy "a history of widespread and persisting deprivation of constitutional rights" by states or their officers. And even when Congress has proved the existence of a problem warranting corrective measures, it must further convince the Court that the selected remedy bears a "congruence and proportionality" to the targeted evil.

This aggressive jurisprudence has thus far swallowed three federal laws, with more likely to follow. The Court began at the margins of the Fourteenth Amendment’s focus, invalidating a provision allowing individuals to sue states for patent infringement. Increasingly, however, the casualties of the Court’s novel doctrine have touched on interests closer to the amendment’s core concern. In 2000 and 2001, the Court struck down laws authorizing state employees to collect damages for state-sponsored age and disability discrimination. The justices now stand poised in the 2002 Term to invalidate analogous provisions of the Family and Medical Leave Act.

Acting in the name of federalism, the Court has thus abstracted sovereign immunity into a free-floating constitutional principle, elevated that principle above the reach of Congress’s Commerce Clause power, and extended the principle to prohibit individual suit before tribunals nowhere mentioned in any relevant constitutional text. To foreclose an end run around these efforts, moreover, the Court has severely constricted Congress’s Fourteenth Amendment power to address activity that the national legislature deems a threat to constitutional rights. The upshot of this jurisprudence is clear: private citizens have lost the ability to enforce a wide range of federal rights by collecting damages from an infringing state government or officer. And the disconnect between the theory and reality of the Rehnquist Court’s "federalism revolution" is thus equally clear: a principle justified by its potential to maximize individual liberty has been deployed primarily as a tool to block the most effective means by which individuals can vindicate their federal rights. By all appearances, federalism has helped the states but harmed the citizens who populate them.

Appearances, of course, can be deceiving. "Individual federal rights" is not synonymous with "individual liberty," and one might argue that limiting enforcement of the former actually enhances the latter, albeit in counterintuitive ways. The Court itself ventured such a justification in Alden v. Maine, 527 U.S. 706 (1999), a recent decision that clothed states with constitutional immunity in their own courts. "If the principle of representative government is to be preserved to the States," the Court explained, the balance between competing demands on the public fisc "must be reached after deliberation by the political process established by the citizens of the State, not by judicial decree mandated by the Federal Government and invoked by the private citizen." In other words, preserving self-government (and thereby maximizing individual liberty) requires a state to deny compensation legally due a wronged citizen if the majority wants the public’s money spent elsewhere.

Most scholars and commentators agree that this rationale is seriously flawed. As the Alden dissenters noted, the Court’s reasoning "comes perilously close to legitimizing political defiance of valid federal law." And as others have observed, denying Congress its choice of remedies will likely frustrate the Court’s ultimate goal of reducing federal interference with state governance. Stripped of its ability to rely on private suits to further federal directives, Congress may ultimately resort to more draconian remedies, including, perhaps, the installation of large new federal agencies charged with oversight of state conduct. "In the name of State’s rights," as Justice Stevens aptly put it, "the [Court] would have the Federal Government create vast national bureaucracies to implement its policies."

Perhaps because of these conceptual flaws, the Court has hung its ultimate defense of immunity on a different hook. Pressed on the point last Term, the Court explained,"the preeminent purpose of state sovereign immunity is to accord States the dignity that is consistent with their status as sovereign entities." According to this rationale, forcing states to answer private complaints and to defend against allegations of wrongdoing in court "demeans" the states and relegates them "to the status of mere provinces or political corporations." Derived from the Court’s reconstruction of the constitutional compact, this interest in "sovereign dignity" has become the lodestar of immunity doctrine, each case in the line turning largely on the justices’ intuitive answer to whether the suit under review "offends" the defendant state or inflicts on it an indignity "unbecoming" a sovereign entity.

With the triumph of this "dignity" rationale, the Court has traded one justification weakly linked to federalism’s theoretical basis for another wholly disconnected from it. If exalting a state’s dignity above a citizen’s right of redress enhances individual liberty in some way other than preserving local control over the state’s purse, the Court has yet to explain how. In the words of Justice Stevens, sensitivity to a political entity’s sensibilities is an "embarrassingly weak" foundation for state sovereign immunity, for it fails even superficially to connect the implementation of the doctrine to the principles from which it purportedly emerges.

The current Court is not the first to depart from constitutional text to protect interests deeply ingrained within the nation’s basic design. In form and tone, the "federalism revolution" of the Rehnquist Court bears a surface resemblance to the "rights revolution" traditionally associated with the Warren Court. Both initiatives emerged from the justices’ deeply held views of constitutional structure and purpose, and both looked for justification in the document’s basic goal of maximizing individual liberty. But the two movements sought to further that goal in strikingly dissimilar, even diametrically opposite, ways. The Warren Court, driven by a concern for the constitutional dignity of the individual, protected federal rights at the expense of legislative flexibility. In contrast, the Rehnquist Court, driven by a concern for the constitutional dignity of the states, has sought to enhance the local majority’s ability to order legislative priorities at the expense of federal rights.

History suggests that efforts like those undertaken by the Warren and Rehnquist Courts, in which constitutional text plays a supporting role to notions of constitutional purpose, will ultimately be judged by their success in effectuating the animating principles of the founding charter. If we are to take at face value the current Court’s protestations that federalism serves the ultimate goal of individual liberty, the recent decisions shaping the federal/state balance will not be judged kindly.

David O'Neil

David O’Neil is an associate with Wilmer, Cutler & Pickering. He recently completed clerkships for Second Circuit Judge Robert D. Sack and Supreme Court Justice Ruth Bader Ginsburg.