A. Creation of National Gov’t and Separation of Power 7

The 11^th Amendment and Congress’s Power to Authorize Suits Against the State Gov’ts

1. Overview

   1. Legal Text

      1. “The Judicial Power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any foreign state.”

   2. History of suits

      1. Limitations on suits

         1. Congress could authorize suits against state gov’ts pursuant to Sec. 5 of 14^th amendment

            1. Fitzpatrick v. Bitzer: State gov’ts may be sued under Title VII of 1964 Civil Rights Act, which prevents employment discrimination on basis of race, gender, or religion.

               1. 
                  “When Congress acts pursuant to Sec. 5, not only is it exercising legislative authority that is plenary w/in the terms of the constitutional grant, it is exercising that authority under one section of a constitutional Amendment whose other sections by their own terms embody limitations on state authirty. We think that Congress may, in determining what is ‘appropriate legislation’ for the purpose of enforcing the provisions of the 14^th Amendment, provide for private suits against States or state officials which are constitutionally impermissible in other contexts.”
                  

         2. Congress cannot subject states to suit under Commerce Power

            1. Seminole Tribe v. Florida (1996): Morrison, Lopez, and Printz held that congress cannot subject the states to lawsuits under its Commerce Power.

         3. If suits were barred from federal courts by 11^th amendment, Congress couldn’t require suits for money damages in state courts either (Alden v. Maine 1999)

         4.  Congress can subject states to suits only through legislation passed under its Reconstruction power.

         5. Congress cannot subject states to suits for violations of the 14^th amendment due process clause (Florida Prepaid v. College Savings Bank 1999)

            1. Patent Remedy Act failed test of congruence and proportionality b/c “Congress identified no pattern of patent infringement by the States, let alone a pattern of constitutional violations.”

            2. B/c many patent infringements affected by statute weren’t unconstitutional, scope of Act was out of proportion to its supposed remedial or preventive objects – to place states on same footing as private parties under that regime.

            3. This was not a permissible goal under Section 5.

         6. Congress could not abrogate sovereign immunity of states in suits under Age Discrimination in Employment Act (Kimel v. Florida Board of Regents 2000)

            1. ADEA was proper legislation under Commerce clause, and Congress made clear statement that it wished to abrogate 11^th amendment immunity. But ADEA not proper since age is only subject to rational basis test.

            2. Under 14^th amendment, state can use age as proxy for other qualities and abilities relevant to State’s legitimate interests w/o being unconstitutional.

            3. So against backdrop of equal protection jurisprudence, ADEA is so out of proportion to supposed remedial or preventive object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior.” (City of Boerne).

            4. The broad restriction in the act prohibits substantially more state employment decisions and practices as would be unconstitutional under applicable equal protection rational basis standard.

            5. Could also not be a prophylactic measure b/c Congress shows no significant pattern of unconstitutional discrimination.

            6. Finds that level of scrutiny under Equal Protection is substantive element of 14^th amendment.  Congress may thus not subject states to money damages for conduct that the Court thinks would not violate equal protection.

            7. So no money damages possible for any acts based on anything other than strict scrutiny.

   3. Requirements for abrogating immunity

      1. Clear statement that the are abrogating state immunity

      2. Congruence - Statute touches on Section 5 violations that are normally subject to strict scrutiny (race, alienage, ethnicity)

      3. Proportionality – some pattern of unconstitutional behavior of states is demonstrated such that preventive action is necessary.

      4.  11^th amendment immunity is determined by scope of Sec. 5 power

      5. 11^th amendment immunity does not extend to local and municipal gov’ts (Garrett)

2. Cases

   1. Board of Trustees of U of AL v. Garrett (2001); Converts strict scrutiny rules into substantive limitations on Congressional power; B/c disc based on disability would always pass rat’l basis, legis. targeting disc will always flunk congruence & proportionality test; Must limit Sec. 5 power to broaden immunity and enforce federalism; If state’s activity is rat’l basis, prophylactic legis. improper; Dissent – scrutiny rule that judges apply isn’t constitutional guarantee itself, just reps limits of judicial auth to enforce constit. guarantee

      1. Facts

         1. Employers cannot discrimination against disabled persons.

         2. Garrett was diagnosed with breast cancer (was nurse at hospital) and then forced to give up Director position when she returned to work after chemo.

         3. Act requires employers to make reasonable accommodations to known physical or mental limitations of employees unless employer can demonstrate that accommodation would impose undue hardship on operation of business.

      2. Issue

         1. Whether employees of State of AL may recover $ by reason of state’s failure to comply with Title I of ADA (Disabilities Act).

      3. Holding

         1. State’s immunity cannot be abrogated for suits under ADA.

         2. For $ damages against states, there must be a pattern of disc by the States which violates 14^th amendment, and the remedy imposed by Congress must be congruent and proportional to targeted violation.

      4. Reasoning

         1. Congress may abrogate immunity when

            1. Unequivocally intends to do so

            2. Acts pursuant to valid grant of constitutional authority

         2. Power under Section 5

            1. To remedy and deter violations of rights which includes broader swath of conduct which may not all be unconstit. by 14^th

            2. City of Boerne – responsibility of court to determine substance of constit. guarantees

            3. Legislation reaching beyond scope of Sec. 1’s guarantees must exhibit “congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.”

         3. Requirements

            1. Suspect classifications

               1. 
                  Cleburne v. Cleburne Living Centers: mental retardation not suspect classification  where group possesses distinguishing characteristics relevant to interests of State is not unconstit.
                  
               2. 
                  If Congress wants to enact special accommodations for the disabled, it has to come from positive law and not through equal protection.
                  

            2. Congruence

               1. 
                  Whether Congress identified history and pattern of employment discrimination – Congress Sec. 5 authority is only properly exercised in response to state transgressions.
                  
               2. 
                  Local gov’ts still subject to private claims under ADA since no 11^th amendment immunity  so evidence of disc on part of local gov’ts doesn’t count
                  
                  1. 
                      But shouldn’t real question be if local and municipal auths are engaging in “state action”?
                     
               3. 
                  Adverse disparate treatment isn’t constitutional violation where rational basis scrutiny employed – no legislative findings in record, only anecdotal findings. No pattern of disc found in state gov’t.
                  

            3. Proportionality

               1. 
                  It might be entirely rational and constit. for state employer to conserve scarce financial resources by hiring employees who can use existing facilities, but ADA requires employers to make facilities accessible.  Accommodation burden far exceeds what is constitutionally required in that it makes unlawful a range of alternate responses that would be reasonable but would fall short of imposing an “undue burden” upon employer.
                  
               2. 
                  ADA forbids utilizing standards or method of administration that disparately impact disabled, w/o regard as to whether conduct has rational basis. Disparate impact is not enough even for strict scrutiny...
                  

      5. Dissent

         1. Law should be a leader in moral teacher – ADA can be milestone on path to more tolerant future.

         2. Intentional or purposeful discrimination on the part of states should not be a requirement for action

            1. States should not have to be held in violation of constitutional duties or pattern of disc to be held liable.

            2. Failure of states to revise policies fore behavior now seen as incorrect doesn’t always constitute a purposeful and intentional act which is violation of equal protection clause.

         3. If discrimination is pervasive in society, then likely state gov’ts are participants

            1. Extensive documentation by Congress of problem – 300 examples of state disc on record.

            2. State-imposed barriers also obstructed voting and operation of gov’t services, finding housing

         4. Court is holding Congress to strict scrutiny standard in evidence

            1. Evidence presented in Congress may not have passed strict judicial scrutiny for evidence, but for Sec. 5 legislation Court has never required Congress to perform same sort of judicial review of every piece of evidence that court evidence standards require.

            2. Congressional findings have never had to be broken down, category by category

            3. “Limitations stemming from the nature of the judicial process...have no application to Congress” (Oregon v. Mitchell 1970)

            4. When economic or social legislation is challenged in court as irrational, hence unconstit., “burden is upon the challenging party to negative any reasonably conceivable state of facts that could provide rational basis for the classification.”

            5. Ration basis review is “a paradigm of judicial restraint.” FCC v. Beach Communications (1993)

            6. Courts are generally very reluctant, as they should be in federal system, to closely scrutinize legis. choices. (Cleburne)

         5. Congress in the past has influenced what level of scrutiny should apply  Court’s reliance on Cleburne is misplaced since Cleburne itself allowed Congress to determine 14^th amendment application to the states

            1.  Absence of a contrary congressional finding was critical to our decision to apply mere rationa-basis review to disability discrimination claims – a “congressional directive” to apply more stringent standard would have been controlling. (Cleburne)

         6. The nature of Congress’ institutional competency allows it to have more flexible evidence standards

            1. There is no reason to hold Congress to strict evidence rules or presumptions that reflect court’s institutional limits.

            2. Congress can readily gather facts from across the nation, assess the magnitude of the problem, and find remedy.

            3. Congress directly reflects public attitudes and belief so they know better where to impose remedies – can get evidence directly from constituents.

         7.  Court is thwarting democratic process by conservative judicial activism

            1. Congress is elected public body and is responsible to people

            2. Courts should not sit as a “superlegislature to judge the wisdom or desirability of legislative policy determinations.”

         8. Section 5 power can enforce beyond what is directly unconstit.

         9. Inconsistent: Court applies rational basis review to legislation burdening disabled, but strict scrutiny to legislation benefiting disabled.

            1. Congress will only have to resort to more intrusive legis. like court injunctions and federal standards

      6. Evaluation

         1. Rhenquist’s rhetorical techniques to narrow relevant Congressional evidence

            1. Cleburne is rat’l basis test (even though it’s rat’l basis w/ bite)

            2. Only examples of discrimination by state actors should county, not local or county

               1. 
                  But don’t they engage in state action? If there is evidence of disc at local level, d/n’t that point to existence at state level?
                  

            3. Only examples of employment discrimination should count

               1. 
                  Excludes a lot of cases...
                  

         2. Why should Congress be stopped form legislating against “new discrimination”?

            1. If popular consciousness changes about what liberty and equality require, shouldn’t Congress be able to respond?

            2. If courts don’t want to be judicial activists pushing forth change (like Warren court), then shouldn’t they let Congress?

         3. Impact of ruling

            1. Garret is not really striking down ADA – is not saying that states and their instrumentalities are exempt – they are just dealing with suits brought by private parties against the states. Certain actions for injunctions brought by private parties are not an issue – prospective injunctive relief.

            2. Private rights of action are created by Congress precisely to get them involved in enforcement. Incentive depends on monetary remedies available – practically have a significant effect on enforcement of statutes against the states.

         4. How broad and specific is sovereign immunity – does it change over time?

            1. Fed Ct – diversity (different and same state)

            2. Fed Ct – Fed Q, express abrogation pursuant to reconstruction amendments. If it was enacted pursuant to when Congress expressly wanted to abrogate state immunity. If Congress expressly abrogates it and is acting under Sec. 5 of 14^th amendment, then it is ok. 14^th amendment can be understood for that reason to implicitly move beyond federalism block of the 14^th amendment.

            3. Fed Ct – Fed Q – (different state or same state)

            4. State Ct – fed Q – own citizens: Alden v. Maine – applies to suits that are brought in state courts by citizens of that state.

         5. Reaction of the federal judiciary to ADA

            1. Federal judiciary hates the ADA b/c it has sweeping purpose language, complex interlocking provisions which create a statute that has considerably narrower scope that the broad sweeping language of the purpose.

            2. Congress did such a bad job of making the statute broader, so in a sense federal courts are trying to remand the statute back to Congress – the federal courts are taking very restrictive readings of the statute. What if there were enough evidence from every state in the union...

            3. There are plenty of circumstances in which employers are allowed to fire employees with disabilities. It is not enough to prove that it happened, but you have to prove that there was no rational relationship whatsoever to a legitimate gov’t purpose.

      7. Criticisms

         1. Radical move away from textualism

            1. 11^th amendment bars federal court juris over suits against a state brought by Citizens of a another state

            2. Isn’t Garrett from same state? Isn’t she suing in state court?

   2. Nevada Dept. of Human Resources v. Hibbs (2003); heightened scrutiny given wider latitude for prophylactic legis.; Congress has narrowly tailored remedy; proven disc; Dissent – when has Congress recognized family & med leave as substantive 14^th right? D/nt Garrett say that Ct. alone determines meaning of constit. equality?

      1. Background

         1. Employers would give some sort of physical disability leave for giving birth. The Hibbs case involves care-giving leave.

         2. Only by creating possibility for men to take leave will men start to step up and take more family responsibilities. But the main problem is that the leave is unpaid. So since women are still making less money, in a rational household it will be the woman who takes the leave.

         3. Hibbs comes down after the academic community has jumped all over the court for Garrett. The court knows that Congress needs to be taught a lesson, but is less sure about precisely what that lesson should be. Few people would have predicted that intermediate scrutiny would have had such a big effect on the case.

         4. Powers relied on in FMLA

            1. Article I commerce power

            2. Sec 5 enforcement power under 14^th amendment

         5. FMLA

            1. Protect right to be free from gender-based discrimination in workplace

            2. Congress has evidence that states continue to disc in leave-context in gender disc

            3. Wide differences exist in state leave policies – up to one year for women, but nothing for men. Only based on stereotype that women have primary role in caring for families.

      2. Ruling

         1. Gender disc is subject to heightened scrutiny

         2. Congressional evidence shows Widespread pattern of state disc based on gender

         3. Stereo types that women are mothers first and workers second is fueling discrimination

         4. Congress’ policy is congruent and proportional to targeted violation

            1. Has already unsuccessfully tried to address problem through Title VII

            2. Confronted difficult and intractable problem where previous legis. attempts failed

            3. Justified in promoting prophylactic legis.  Created an across-the –board leave regardless of gender, so it directly attacks states’ unconstit stereotype that women are responsible for family care-giving.

            4. Statute that simply mandated fairness in leave programs might have resulted in states giving no leave at all

            5. FMLA is narrowly targeted at fault line between work and family, and Congress placed many limitations on measure – only unpaid leave, applies only to employees who have been employed for at least 1 year full-time, high-ranking or sensitive employees not subject to policy (state officials or staff), employers may require health cert by doctor for leave.  Congress chose a middle-ground, a period long enough to serve needs of families but balanace with interests of employers.

      3. Evaluation

         1. Isn’t this Congress enforcing/imposing and interpreting a new substantive right under Sec. 5?

         2. What is the difference between Garrett and Hibbs?

            1. Heightened scrutiny

               1. 
                  Where Congress is addressing prophylactic legis. against heightened or strict scrutiny class. Given more flexibility
                  
               2. 
                   But where has the court before recognized family and medical leave as sex equality issue? D/nt the court say in Garrett and Boerne that it alone determines meaning of constitutional equality?
                  

            2. Distinguishing between old rights and new rights

               1. 
                  Congress is given freer hand where long histories of race or sex inequality concerned
                  
               2. 
                  Kimel and Garrett are about new rights
                  

            3. Don’t take a good thing too far

               1. 
                  Court is extending federalism precedents to trench on highly visible and consequential civil rights statutes like FMLA b/c otherwise people would get hostile and wouldn’t believe in Ct.