Federalism: Selected Opinions of Judge Samuel Alito
Released: 2005-12-30T00:00:00

Sovereign Immunity and the 14th Amendment

Background

When an individual attempts to sue a state under federal law, an argument can be raised bythe state that it is immune to such a suit under the doctrine of sovereign immunity. The starting pointfor such a discussion is usually the Eleventh Amendment, which provides that "The Judicial powerof the United States shall not be construed to extend to any suit in law or equity, commenced orprosecuted against one of the United States by Citizens of another State." The actual text of theAmendment appears to be limited to preventing citizens from bringing diversity cases against statesin federal courts. However, the Supreme Court has expanded the concept of state sovereignimmunity to reach much further than the text of the Amendment.

The Eleventh Amendment was passed as a response to the case of Chisholm v. Georgia , (5) which allowed a private citizenof one state to sue another state in federal court without that state's consent. (6) Almost immediately after thedecision in Chisholm , resolutions were introduced in Congress to overturn it, the end result beingthe Eleventh Amendment. (7) The Amendment assured that a citizen of one state could not sueanother state in federal court -- in other words, a citizen could not sue under federal diversityjurisdiction without a state's permission.

In Hans v. Louisiana , the Court provided for an even more expansive interpretation of theEleventh Amendment (8) which banned suits by citizens against states regardless of whether or not the citizen was a residentof another state. (9) Latercases established that Congress could not generally abrogate this immunity under its Article Ilegislative powers. (10) The Supreme Court has held, however, that Congress can abrogate state sovereignty under the Â§5of the Fourteenth Amendment, which authorized Congress to pass laws to enforce the protectionsof that Amendment. (11) While the logic behind this distinction is unclear, (12) it means that in many cases litigants suing states will have to finda Fourteenth Amendment basis for federal legislation in order to defeat an Eleventh Amendmentdefense.

Recent Supreme Court cases, however, make it more difficult for a court to find that theFourteenth Amendment is the constitutional basis for legislation. In the case of Flores v. City ofBoerne, (13) the Courtstruck down the Religious Freedom Restoration Act (RFRA) as beyond the authority of Congressunder Â§5 of the Fourteenth Amendment. The case arose when the City of Boerne denied a churcha building permit to expand, because the church was in a designated historical district. The churchchallenged the zoning decision under RFRA. The Supreme Court reiterated that Â§5 of theFourteenth Amendment gave the Congress the power to enforce existing constitutional protections,but found that this did not automatically include the power to pass any legislation to protect theserights. Instead, the Court held that there must be a "congruence and proportionality" between theinjury to be remedied and the law adopted to that end. (14)

Based on the City of Boerne test, the Court has struck down a variety of laws which weredesigned to deal with the issue of discrimination. For instance, in Kimel v. Florida Board ofRegents , (15) the Courtevaluated whether the Age Discrimination in Employment Act of 1967 was a valid exercise ofCongress's commerce power and Â§5 power, and thus could be applied against the states. The Kimel Court held, however, that age is not a suspect class, and that the provisions of the ADEA farsurpassed the kind of protections that would be afforded such a class under the FourteenthAmendment.

Further, the Court found, based on City of Boerne , that an analysis of the Congress's abilityto legislate prophylactically under section Â§5 required an examination of the legislative record todetermine whether the remedies provided were proportional and congruent to the problem. A reviewby the Court of the ADEA legislative record found no evidence of a pattern of state governmentsunconstitutionally discriminating against employees on the basis of age. Consequently, the Courtheld that a state could not be liable for damages under the ADEA.

The application of the Americans with Disabilities Act (ADA) to states was also consideredin the case of the Board of Trustees v. Garrett , (16) with similar result. In Garrett , the Court evaluated whether twoplaintiffs could bring claims for money damages against a state university for failing to makereasonable accommodations for their disabilities; one plaintiff was under treatment for cancer, theother for asthma and sleep apnea. Although disability is not a suspect class and thus discriminationis evaluated under a rational basis test, the Court had previously shown a heightened sensitivity toarbitrary discrimination against the disabled. (17) Further, Congress had made substantial findings regarding thepervasiveness of such discrimination.

However, the Supreme Court declined to consider evidence of discrimination by either theprivate sector or local government, and dismissed the examples that did relate to the states asunlikely to rise to the level of constitutionally "irrational" discrimination. Ultimately, the Court foundthat no pattern of unconstitutional state discrimination against the disabled had been established, andthat the application of the ADA was not a proportionate response to any pattern of discriminationthat might exist.

As noted, Kimel and Garrett involved the evaluation of congressional statutes addressingdiscrimination against non-suspect classes. When the class which is the focus of legislation has ahigher level of constitutional protection, however, the Court has seemed to use a more lenientstandard. In the case of Nevada Department of Human Resources v. Hibbs , (18) an employee of the NevadaDepartment of Human Resources had a dispute with the Department regarding how much leave timehe had available under the FMLA. The FMLA requires, among other things, that employers provideemployees up to twelve weeks of unpaid leave to care for a close relative with a "serious healthcondition." (19)

In Hibbs , the Court held that Congress had the power to abrogate a state's EleventhAmendment immunity under the FMLA, so that a state employee could recover money damages. The Court found that Congress had established significant evidence of a long and extensive historyof sex discrimination with respect to the administration of leave benefits by the states, and thathistory was sufficient to justify the enactment of the legislation under Â§5. The standard fordemonstrating the constitutionality of a gender-based classification is more difficult to meet than therational-basis test, which was at issue in Kimel and Garrett , so it was easier for Congress to showa pattern of state constitutional violations.

Chittister v. Dept. of Community and Economic Development

Judge Alito wrote the opinion for a unanimous court in the case of Chittister v. Departmentof Community and Economic Development , (20) which also considered if Congress had validly abrogated states'Eleventh Amendment immunity when it enacted the Family and Medical Leave Act of 1993. (21) However, unlike thelater-decided Hibbs case, which considered the provision of leave to care for family members, Chittister concerned the provision of personal sick leave "because of a serious health condition thatmakes the employee unable to perform the functions of the position of such employee." (22) In a relatively briefopinion, Judge Alito found that Congress had not abrogated the state's sovereign immunity for causesof action cited by the plaintiff.

Although the Chittister case preceded the Court's opinion in Hibbs , some have suggested thatthe opinion should have anticipated the result in that case. (23) As noted, however, theopinion in Chittister dealt with a different provision of the Family Medical Leave Act. The Courtin Hibbs did not decide the constitutionality of the personal sick leave provision considered in Chittister , and there are arguments to be made that distinguish these cases.

The Court's decision in Hibbs was based to a large extent on the congressional finding that"denial or curtailment of women's employment opportunities has been traceable directly to thepervasive presumption that women are mothers first, and workers second. This prevailing ideologyabout women's roles has in turn justified discrimination against women when they are mothers ormothers-to-be." (24) Further, because employers assumed that women were primary caretakers, they would deny menleave for such purposes. Thus, both of these stereotypes tended to discourage the hiring ofwomen, (25) and therequirement that employers provide family care leave would alleviate this disparity.

This reasoning, however, does not seem applicable to the case of personal sick leave. In Chittister , the Judge Alito noted that Congress's findings that the "the primary responsibility forfamily caretaking often falls on women" would be relevant for evaluation of the family care leaveprovisions. Judge Alito found, however, that there did not appear to be similar findings concerningthe existence of intentional discrimination by employers against women in the provision of personalsick leave practices. (26) Nor did the court think that such practices would be likely to have a disparate impact on men andwomen. Even if such evidence existed, Judge Alito questioned whether the FMLA would be acongruent and proportional response, since it did not require nondiscriminatory sick leave practices,but merely created a minimum level of leave entitlement.

Chittister seems to be consistent with the decisions of other federal courts which consideredthis issue before Hibbs was decided. (27) For instance, in the case of Kazmier v. Widmann , (28) the FifthCircuit consideredwhether the personal leave provision of the FMLA could be applied against the states. The courtfirst noted that Congress's express intent in enacting this provision was to prevent employers fromdiscriminating on the basis of temporary disability, (29) not gender. The court did note suggestions in the legislativerecord that Congress also meant for this provision to prevent discrimination against women on thebasis of pregnancy-related disability. (30) The Fifth Circuit, however, rejected an argument that thepersonal sick leave provision was intended to target sex discrimination.

First, the court noted that the FMLA contained a separate provision regarding maternityleave, which was arguably more closely related to concerns about pregnancy discrimination. (31) Second, the court notedthat the Supreme Court has held that discrimination on the basis of pregnancy does not violate theEqual Protection Clause, (32) which would make it difficult to show that the provision wasintended to remedy a pattern and history of unconstitutional gender discrimination. Finally, the courtfound that the effect of expressly mandating leave for pregnancy (among other serious healthconditions) would not make employers more likely to hire women, but would actually make womenless attractive employees.

Ultimately, the Fifth Circuit decided that the provision at issue was in fact directed solely atdiscrimination based on temporary disability. Unlike discrimination on the basis of sex, however,discrimination on the basis of disability is subject to minimal scrutiny under the Equal ProtectionClause. (33) As such, themost relevant case decided at the time would appear to be the Kimel case, which evaluated anattempt by Congress to remedy discrimination based on age, which is another category with fewerconstitutional protections. Relying on Kimel , the Kazmier court found that the FMLA "prohibitssubstantially more state employment decisions and practices than would likely be heldunconstitutional under the applicable equal protection, rational basis standard." (34)

Even after the decision of the Supreme Court in Hibbs , federal courts seemed to followreasoning similar to Chittister and Kazmier . The Sixth Circuit, in Touvell v. Ohio Department ofMental Retardation & Developmental Disability , (35) relied on the Hibbs case to reach essentially the sameconclusion. (36) In fact,the Sixth Circuit specifically suggested that Hibbs did not undermine the reasoning of the variouscases from other circuits that had reached this conclusion previously.

In Touvell , the Sixth Circuit made many of the same points as were made in Kazmier and Chittister regarding the legislative record for the FMLA. As in Kazmier , the gender discriminationof concern to the Congress related to the care of family members, and not to personal sickleave. (37) The Court in Touvell found no evidence of gender discrimination with regard to personal medical leave, (38) nor were the requirementsfor providing such leave seen as having any remedial or prophylactic effect on such discrimination. As with the previous cases, the Court found little evidence that gender discrimination was even atissue in the FMLA personal sick leave provisions.

Like Kazmier , the Sixth Circuit found that the sick leave provision was more likely intendedto affect disability discrimination, and as such, it would be more difficult to establish a pattern andhistory of constitutional violation. (39) After considering the legislative record regarding disabilitydiscrimination and the nature of the legislation, the Touvell Court concluded that the FMLA personalsick leave provisions were not congruent and proportional responses to any alleged violations. Asdid Chittister and Kazmier , the Sixth Circuit concluded that the personal sick leave provisions couldnot be applied against the state under the Eleventh Amendment.

The Commerce Clause

Background

The Commerce Clause provides that "The Congress shall have Power ... To regulateCommerce with foreign Nations, and among the several States, and with the Indian Tribes." (40) Generally speaking,Congress's power under the Commerce Clause can be divided into three categories: (1) regulationof channels of commerce; (2) regulation of instrumentalities of commerce; and (3) regulation ofeconomic activities which "affect" commerce. (41)

In the 1995 case, United States v. Lopez , (42) the Supreme Court brought into question the extent to which theCongress can rely on the Commerce Clause as a basis for federal jurisdiction. Under the Gun-FreeSchool Zones Act of 1990, Congress made it a federal offense for "any individual knowingly topossess a firearm at a place that the individual knows, or has reasonable cause to believe, is a schoolzone." (43) In Lopez , theCourt held that, because the act neither regulated a commercial activity nor contained a requirementthat the possession be connected to interstate commerce, the act exceeded the authority of Congressunder the Commerce Clause. Although the Court did not explicitly overrule any previous rulingsupholding federal statutes passed under the authority of the Commerce Clause, the decision appearedto suggest new limits to Congress's legislative authority. Subsequently, the lower federal courts wereleft to determine the precise scope of the limits imposed by the Court in Lopez as applied to otherfederal statutes.

United States v. Rybar

One statute that has received a significant amount of post- Lopez attention is 18 U.S.C. Â§922(o), which states that "it shall be unlawful for any person to transfer or possess a machine gun"unless one of two exceptions applied. (44) By 1996, when the Third Circuit decided United States v. Rybar ,several other circuits had already determined that section 922(o) was not a violation the CommerceClause. There was, however, little consensus with respect to the reasoning employed. (45)

According to the majority in Rybar , several circuits had held that section 922(o) was aregulation of the channels of interstate commerce, therefore, bringing the statute under the firstcategory of commerce power. (46) Moreover, the Seventh Circuit had held section 922(o)constitutional as "an essential part of a larger regulation of economic activity, in which the regulatoryscheme could be undercut unless the intrastate activity were regulated." (47) Finally, the majority notedthat the Tenth Circuit had upheld section 922(o) as a constitutional regulation of the instrumentalitiesof interstate commerce, thus utilizing the second category for permissible regulation of interstatecommerce. (48)

The majority opinion in Rybar adds little original analysis to this discussion and did notattempt to resolve the reasoning dispute between the other circuits. Rather, the majority traced thelegislative history of federal firearms statutes and concluded that by the time Congress enactedsection 922(o), "it had already passed three firearm statutes under its commerce power based on itsexplicit connection of the interstate flow of firearms to the increasing serious violent crime in thiscountry, which Congress saw as creating a problem of 'national concern.'" (49) Specifically, with respectto section 922(o), the majority relied on supporting language in committee reports as well as floorstatements during consideration of the legislation. (50) With respect to the constitutional analysis, the majority simplyrecounted the various methods employed by their sister circuits and concluded that section 922(o)was constitutional as a valid exercise of Congress's power under the Commerce Clause. (51)

Judge Alito's dissent, however, started by asking whether Lopez was a "constitutional freak,"or whether it represented recognition that the Constitution still provides meaningful limits oncongressional power. (52) In short, Judge Alito concluded that the statute could be saved in one of two ways. If Congress hadprovided the necessary jurisdictional element, thereby limiting the statute to purely interstate activity,or if "Congress made findings that the purely intrastate possession of machine guns has a substantialeffect on interstate commerce...." (53) Since, in Judge Alito's opinion, neither of these tworequirements was satisfied, the statute, as written, should have been held unconstitutional.

Given that the majority opted not to assert a unique rationale for its conclusion, Judge Alito'sdissent refuted all three established grounds for holding Section 922(o) constitutional. First, hechallenged the position of the Fifth, Sixth, and Ninth Circuits that the statute is a regulation of thechannels of interstate commerce. According to Judge Alito, those circuits reasoned that underSection 922(o) there could be no unlawful possession without an unlawful transfer, because thestatute exempted lawful possessions prior to its enactment. Further, the circuits argued that therestriction was a necessary and proper way to assist law enforcement in tracking and detecting illegalmachine gun transfers. (54) In Judge Alito's opinion, this reasoning was flawed for threereasons: First, it relied on faulty facts, namely, that every unlawful possession is the result of anunlawful transfer. In fact, as Judge Alito posited, an unlawful possession could result from theconversion of a lawful weapon, or from the expiration of the requisite government authority thatmade possession lawful; (55) second, the rationale "seems to confuse an unlawful transfer withan interstate transfer" (56) ;and finally, the circuits' reliance on the ability of Congress to suppress an interstate market byregulating intrastate behavior is an argument in support of the substantial effects test, not thechannels of interstate commerce. (57)

Next, Judge Alito's dissent challenged the assertion by the Sixth and Tenth Circuits thatSection 922(o) can be justified as a regulation of activities that threaten the instrumentalities ofinterstate commerce. Judge Alito argued that this would be true, if, say, Congress enacted the statuteto prevent machine guns from being used to "damage vehicles traveling interstate, to carry outrobberies of goods moving in interstate commerce, or to threaten or harm interstate travelers." (58) Congress, however, madeno such findings, and the reasoning of the Sixth and Tenth Circuits was described by Judge Alito as"elusive" and, in his opinion, better suited to arguing for constitutionality under the substantialeffects prong of the Commerce Clause. (59)

Finally, Judge Alito undertook an analysis of the statute under the "substantial effects" prongof the Court's Commerce Clause jurisprudence. Judge Alito's theory was that

to bring this case within the third Lopez category, it isnot enough to observe that violent criminals, racketeers, and drug traffickers occasionally usemachine guns in committing their crimes and that these crimes have interstate effects. Rather, theremust be a reasonable basis for concluding that the regulated activity (the purely intrastate possessionof machine guns) facilitates the commission of these crimes to such a degree as to have a substantialeffect on interstate commerce. (60)

While not dismissing this theory as irrational, Judge Alito rejected the majority's reasoning for lackof empirical proof of its validity. In other words, according to Judge Alito, there was no substantialevidence that Congress rationally concluded that which was necessary to sustain the statute underthe substantial effects prong. For Judge Alito it appeared that neither the combing of the legislativehistory of federal firearms law, nor the majority's reliance on the committee reports and floorstatements was sufficient to establish that Congress believed that "the purely intrastate possessionof machine guns, by facilitating the commission of certain crimes, has a substantial effect oninterstate commerce." (61) In sum, Judge Alito concluded by stating that out of respect for the principles of federalism, "weshould require at least some empirical support before we sustain a novel law that effects 'a significantchange in the sensitive relation between federal and state criminal jurisdiction.'" (62)

Gonzales v. Raich

A recent opinion by the Supreme Court subsequent to Judge Alito's dissent in Rybar putsmuch of his reasoning in doubt. In Gonzales v. Raich , the United States Supreme Court granted certiorari specifically on the question of whether the power vested in Congress by both the"Necessary and Proper Clause," and the "Commerce Clause" of Article I includes the power toprohibit the local growth, possession, and use of marijuana permissible as a result of California'slaw. (63) Justice Stevens,writing for the majority, reversed the Ninth Circuit's decision and held that Congress's power toregulate commerce extends to purely local activities that are "part of an economic class of activitiesthat have a substantial effect on interstate commerce." (64)

In reaching its conclusions, the Court relied heavily on its 1942 decision in Wickard v.Filburn , which held that the Agricultural Adjustment Act's federal quota system applied to bushelsof wheat that were homegrown and personally consumed. Wickard stands for the proposition thatCongress can rationally combine the effects that individual producers have on a commercial marketto find substantial impacts on interstate commerce. (65) The Court pointed to numerous similarities between the factspresented in Raich and those in Wickard . Initially, the Court noted that because the commoditiesbeing cultivated in both cases are fungible and that well-established interstate markets exist, bothmarkets are susceptible to fluctuations in supply and demand based on production intended forhome-consumption being introduced into the national market. (66)

According to the Court, just as there was no difference between the wheat Mr. Wickardproduced for personal consumption and the wheat cultivated for sale on the open market, there is nodiscernable difference between personal home-grown medicinal marijuana and marijuana grown forthe express purpose of being sold in the interstate market. (67) Thus, the Court concluded that Congress had a rational basis forconcluding that "leaving home-consumed marijuana outside federal control would similarly affectprice and market conditions." (68)

Despite having concluded that under the "rational basis test" Congress had acted within itsconstitutional authority when it enacted the Controlled Substances Act and applied it to intrastatepossession of marijuana, the Court nevertheless had to distinguish Lopez and Morrison , the Court'smore recent Commerce Clause decisions. The Court concluded that the Controlled Substances Act,unlike the statutes in either Lopez (Gun Free School Zones Act) or Morrison (Violence AgainstWomen Act), regulated activity that is "quintessentially economic"; therefore, neither Lopez or Morrison cast any doubts on the constitutionality of the statute. (69) The Court specificallyrejected the reasoning used by the Ninth Circuit, concluding that "Congress acted rationally indetermining that none of the characteristics making up the purported class, whether viewedindividually or in the aggregate, compelled an exemption from the CSA; rather, the subdivided classof activities defined by the Court of Appeals was an essential part of the larger regulatoryscheme." (70)

In supporting its conclusions, the Court noted that, by characterizing marijuana as a"Schedule I" narcotic, Congress was implicitly finding that it had no medicinal value at all. Inaddition, the Court returned to the fact that medicinal marijuana was a fungible good, thus makingit indistinguishable from the recreational versions that Congress had clearly intended to regulate. According to the Court, to carve out medicinal use as a distinct class of activity, as the Ninth Circuithad done, would effectively make " any federal regulation (including quality, prescription, or quantitycontrols) of any locally cultivated and possessed controlled substance for any purpose beyond the'outer limits' of Congress'[s] Commerce Clause authority." (71) Moreover, the Court heldthat California's state law permitting the use of marijuana for medicinal purposes cannot be the basisfor placing the respondent's class of activity beyond the reach of the federal government, due to theSupremacy Clause, which requires that, in the event of a conflict between state and federal law, thefederal law shall prevail. (72)

Finally, the Court responded to the respondent's argument that its activities are not an"essential part of a larger regulatory scheme" because they are both isolated and policed by the Stateof California and they are completely separate and distinct from the interstate market. (73) The Court held that notonly could Congress have rationally rejected this argument, but also that it "seem[ed] obvious" thatdoctors, patients, and caregivers will increase the supply and demand for the substance on the openmarket. (74) In sum, theCourt concluded that the case for exemption can be distilled down to an argument that a locallygrown product used domestically is immune from federal regulation, which has already beenprecluded by the Court's decision in Wickard v. Filburn . (75)

Conclusion

It is difficult to conclude from Judge Alito's opinion in the Chittister case whether or not theJudge has a more restrictive view of the 11th and 14th Amendment than a majority of Justices on theSupreme Court. In general, it appears that Judge Alito's opinion in the Chittister case was consistentwith Supreme Court precedent at the time. Although Judge Alito has been criticized because hisopinion did not anticipate the result in the subsequent case of Nevada Department of HumanResources v Hibbs , the Hibbs case actually addressed a separate provision of the FMLA. The Chittister case is arguably distinguishable from the Hibbs case, a conclusion which has been reachedby other federal circuits.

Judge Alito's dissent in the Rybar case, however, seems to have anticipated a more expansiveapplication of the Lopez and Morrison decisions than was adopted by most other circuits at the time. Further, his reasoning in Rybar may have been largely repudiated in the subsequent Supreme Courtcase of Gonzales v. Raich . Consequently, it would appear that Judge Alito's dissent was an argumentfor a more limited interpretation of the Commerce Clause than is consistent with current case law.