(The Return of) Ignatz, by Sam Heldman

Monday, January 13, 2003

Supreme Court

The last case for this week is Wednesday's argument in Nevada Dep't of Human Resources v. Hibbs. The question is whether states are immune from suits filed by individuals in federal court under the Family and Medical Leave Act. Why would they be immune, you ask? Aren't States required to obey federal law, under the Supremacy Clause of the Constitution? Yes, but.

You might say, "ah ha! I know the answer: it's the Eleventh Amendment, which says that States can't be sued by their own citizens in federal court!" The problem is (a) that the Eleventh Amendment doesn't say that. In fact it says something quite different: that States can't be sued by citizens of other states in federal court. Nonetheless, for over a century now the Supreme Court has ignored the words of the Eleventh Amendment, and has held that it means that States can't be sued by their own citizens in federal court. Then a few years ago, the current Supreme Court overruled prior caselaw and held that the Congress cannot take away this immunity in legislation passed under the "Commerce Clause" of the Constitution, which is the clause that gives the Congress the power to enact most of the laws that it enacts. And what's more, the Supreme Court has recently held (5-4 with the familiar Bush v. Gore lineup) that States can't be sued in state court either, for violating federal laws enacted under the Commerce Clause, if they don't want to be. (What's that you said about refraining from activism and sticking to the plain text of the Constitution?)

So, in the last few years, we've had battles over whether the Congress can provide for suits against the States by passing legislation not under the Commerce Clause but under the authority provided in Section 5 of the Fourteenth Amendment. This has been the battleground, because the Congress can abrogate the States' Eleventh Amendment immunity by properly enacting a law under the authority conferred by the Fourteenth Amendment. (Why? Because the 14th came after the 11th, and so trumps it. See, for instance, this case.) The question in these cases has been whether, in the Court's view, the legislation was a proper exercise of the Congress's 14th Amendment authority. The Court has ruled for the States, and against individuals, in these cases, holding that States can't be sued for violating a part of the Americans with Disabilities Act, or the Age Discrimination in Employment Act. In both of those cases, the Court said (in a nutshell) that the Congress was not actually remedying a pattern of unconstitutional actions by the States, so it could not use the 14th Amendment/Section 5 power to trump the Eleventh Amendment immunity.

Ok. So now we get to the present case, which is about a part of the Family and Medical Leave Act: specifically, the part (2612(a)(1)(C)) that says that an employer has to give you time off to take care of a sick family member. Was this, and more precisely the authorization to sue States when they violate this provision, a proper exercise of the authority conferred on the Congress to enforce the 14th Amendment? The theory of those who support the law, here, is that the law was an effort to address institutionalized sexism: in short, it was much more often women, rather than men, who had the difficult choice of whether to risk their jobs in order to take the time to take care of a sick relative. And because the law remedied, and attempted to prevent further manifestations of, this sex disparity, the argument goes, it was properly enacted under the 14th Amendment, and so the States have no Eleventh Amendment immunity from suit. That's the argument that persuaded the Ninth Circuit (pdf), which ruled against the State of Nevada here.

Will this argument prevail in the Supreme Court? I seriously doubt it. I think that the five more conservative Justices are quite likely to say something like "first of all, when this legislation was enacted in the 1990s, States weren't doing anything to enforce gender roles within families; if women were doing more than 50% of the caretaking, that was the result of choices by families rather than government compulsion. And the Fourteenth Amendment -- including the Section 5 grant of congressional authority -- is only about remedying governmental discrimination, not about giving the government the authority to redress private acts of discrimination. And second, even if there was some lingering state-sponsored sexism, this legislation was disproportionate and not appropriately tailored to redress that sexism: we already have federal laws prohibiting states from giving more leave to men than to women or vice versa, and there was no constitutional basis for the federal imposition of a substantive rule about how much leave should be granted."

So, I say "REVERSE".

posted by sam 10:54 AM 0 comments


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