Since the late 1960s, the Federal government has used the "interstate commerce clause" to justify regulating State and local governments in the same way that it regulates private enterprise. Recent Supreme Court decisions regarding the meaning and scope of the Tenth1 and Eleventh2amendments have made clear that this type of regulation is no longer tenable.
In the last few years, the Court has made it abundantly clear that State sovereign immunity overrides any and every attempt to regulate State actions under the "interstate commerce clause"--or indeed under any other power granted to Congress by Article 1 of the U.S. Constitution.
The Court has not decisively ruled on what level of interference Congress can enact under the Fourteenth Amendment. Yet recent decisions in Coeur d'Alene v. Idaho and City of Beorne v. U.S. suggest that the Court is unwilling to grant Congress much power to regulate State and local governments, even under the enforcement powers of the Fourteenth Amendment.
The purpose of this paper is to focus on how recent Supreme Court decisions affect regulations enacted by Congress pursuant to those "enumerated powers" found in Article 1. In particular, the author wishes to focus on a variety of Federal labor laws.
Federal Regulation Under the Interstate Commerce Clause
For more than a century Federal regulation of "Commerce with foreign nations, and among the several States, and with the Indian tribes" (Article 1, Section 8, Clause 3--generally referred to, though inaccurately, as the "interstate commerce clause") was very limited. Although there were significant disputes about tariffs and such, Federal laws made in pursuance of this clause had little or no direct impact on ordinary citizens. It was not until the 1870's that the Federal government asserted any jurisdiction to create criminal statutes under the interstate commerce clause; and that was limited to the transportation of dangerous goods, such as tainted meat, across State lines. In the 1930's, the Federal government began to enact child labor laws, minimum wage laws, and a host of other labor laws.
The 1938 Fair Labor Standards Act prohibited the interstate shipment of goods which were not produced in conformity with various Federal standards of minimum wage, overtime pay and so forth. This provision was challenged as an unconstitutional regulation of the intrastate manufacture of items. The Supreme Court, following President Franklin D. Roosevelt's famous attempt to "pack" it, sided with the Administration. The Court ruled that "the regulation of intrastate transactions, which are so commingled with or related to interstate transactions that all must be regulated if the interstate commerce is to be effectively controlled," was permitted (U.S. v. Darby, 1941).
Over the next 25 years, the definition of what is "commingled with or related to interstate transactions" continued to expand to the extent of being ridiculous. In Lopez v. U.S. (1996), the U.S. Solicitor General3argued that Congress had power to regulate anything in the least bit "affecting interstate commerce." When Justice Thomas asked the Solicitor General to provide one example of something that would not come under this definition, he was unable to provide a single example where Congress could not regulate. Even the Civil Rights Acts of the 1960's were passed under interstate commerce. Because the Fourteenth Amendment applies only to "States," all Federal anti-discrimination laws are based upon the interstate commerce clause.
The important point is this: it is indisputable and undeniable that every Federal labor law was passed under Congress's Article I, Section 8 power to regulate commerce "among the States." The Court in recent years has backed off from such a broad interpretation of interstate commerce. In Lopez, the Court said that an area at least had to "substantially affect" interstate commerce.
Leaving that aside, let us consider how Congressional regulation of "interstate commerce" can affect State and local governments in light of the Court's recent pronouncements on the Tenth and Eleventh Amendments.
Federal Labor Laws Did Not Apply to States
In its original form, the 1938 Fair Labor Standards Act could not affect State or local governments. For the next three decades, every Congressional labor regulation explicitly or implicitly exempted State and local governments. This was based upon the longstanding position that the Federal power extended to individuals, not to the sovereign States.
This understanding was clearly articulated by James Madison in Federalist 39 in which he describes why the American government is a federal one rather than a national one, and what the difference is between a federal government and a national one:
The idea of a national government involves in it, not only an authority over the individual citizens, but an indefinite supremacy over all persons and things . . . all local authorities are subordinate to the supreme; and may be controlled, directed, or abolished by it at pleasure. In [a federal system], the local or municipal authorities form distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the general authority, than the general authority is subject to them, within its own sphere. In this relation, then, the proposed government cannot be deemed a NATIONAL one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects.
Local governments are "no more subject, within their respective sphere" to the power of the Federal government than the Federal government is to them. In other words, the Federal government has no more business telling local governments how much they will pay their employees than a State has to tell the U.S. Army how much it will pay soldiers quartered in the State.
This understanding of the supremacy of each level of government within its own sphere was never seriously challenged for almost two centuries.
Congress Applies Federal Labor Laws to States
In 1966, Congress extended the Fair Labor Standards Act to cover schools, hospitals and such--again under the guise of regulating interstate commerce. For the first time, however, Congress removed the traditional exemption for State and local governments. The distinction was made at that time that for essentially commercial enterprises like operating a school or hospital--as opposed to sovereign functions such as running a court system or a police department--that local governments were acting more like a private business than a sovereign entity.
This distinction between sovereign and commercial functions was not based on anything in the Constitution--as even supporters of Federal regulation admit. Indeed, this fictitious distinction may have been no more than a way to get the camel's nose under the tent. Later the distinction could be waived away, and the Federal government could attempt to bring States entirely under their regulation.
The Eleventh Amendment provides complete protection from suits by individuals in Federal court, as we shall see in a moment. The language of that Amendment admits of no such distinction: "The Judicial power of the United States shall not be construed to extend to any suit in law or in equity, commenced or prosecuted against one of the United States . . . ." The distinction between sovereign and commercial functions is completely arbitrary and based on nothing in the Constitution.
The State of Maryland, soon joined by 28 other States, filed suit demanding that the Supreme Court block the enforcement of these provisions on hospitals and schools operated by State and local governments. The resulting case was Maryland v. Wertz. Among other arguments, the States asserted that such a provision was blatantly unconstitutional because it called for employees to file suit in Federal court for violation of Federal labor standards, but this was clearly prohibited by the Eleventh Amendment. Indeed, since there could be no mechanism for enforcing the claims of employees against a State in Federal court, the entire attempt to regulate State employees must fail.
The logic of this argument seems infallible, but the Court simply refused to address the Eleventh Amendment question at all, even though it was central to the objections of Maryland and the other States. The Court's majority opinion on the sovereign immunity question stated:
The constitutionality of applying the substantive requirements of the Act to the States is not, in our view, affected by the possibility that one or more of the remedies the Act provides might not be available when a State is the employer-defendant. Particularly in light of the Act's "separability" provision, 29 U.S.C. 219, we see no reason to strike down otherwise valid portions of the Act simply because other portions might not be constitutional as applied to hypothetical future cases. At the same time, we decline to be drawn into an abstract discussion of the numerous complex issues that might arise in connection with the Act's various remedial provisions. They are almost impossible and most unnecessary to resolve in advance of particular facts, stated claims, and identified plaintiffs and defendants. Questions of State immunity are therefore reserved for appropriate future cases.
By claiming that they could not rule on the sovereign immunity question in advance they simply refused to rule on it at all!
Take note of this too: schools and hospitals are almost always operated by local governments, not State governments. Here, as in other cases, there is no question that the privileges of sovereignty extend to all of the political subdivisions of a State, and not simply to the State government alone. We shall see why that is important later.
Emboldened by the Maryland v. Wertz decision, Congress in 1974 moved to subject virtually all State and local government employees to all of the Federal wage laws applicable to private entities. This, however, went far beyond where the Court had been willing to go. The Court ruled that Congress could not regulate State and local governments beyond the exception carved out in Wertz for commercial-type enterprises. The Court's majority opinion in National League of Cities v. Usury, written by Justice Rehnquist, stated that:
Insofar as the 1974 amendments operate directly to displace the States' abilities to structure employer-employee relationships in areas of traditional governmental functions, such as fire prevention, police protection, sanitation, public health, and parks and recreation, they are not within the authority granted Congress by the Commerce Clause. In attempting to exercise its Commerce Clause power to prescribe minimum wages and maximum hours to be paid by the States in their sovereign capacities, Congress has sought to wield its power in a fashion that would impair the States' "ability to function effectively in a federal system," Fry v. United States, and this exercise of congressional authority does not comport with the federal system of government embodied in the Constitution.
There are a number of important points about this case. First, it is again local governments, or the political subdivisions of States, which were in the forefront of the fight to preserve sovereignty. Second, although it does not repudiate the distinction between "traditional government functions" and more "commercial" ones set forth in Wertz, the decision is in no way based upon this distinction, as some later argued. Because such activities as sanitation and public health are reserved to the States, the Federal government has no business regulating them. Yet this same logic applies equally well to things such as operating schools and hospitals, which are also constitutionally "reserved to the States, respectively, or to the People" (Tenth Amendment).
Third, once again the purported Congressional authority to regulate State and local governments is based entirely on the "interstate commerce" clause and nothing else. Finally, note that the decision was based upon Tenth Amendment, or "reserved powers," considerations, and again the Court simply did not address the sovereign immunity issue.
Despite the Usury ruling, the Labor Department continued to attempt to subject State and local governments to Federal labor laws. This resulted in another Supreme Court challenge, the 1984 case of Garcia v. San Antonio, in which a sharply divided Court completely reversed itself and overturned Usury. The majority argued that Usury and Wertz were based on the fictitious distinction "found nowhere in the Constitution" between "commercial" and traditional functions. This, the majority opinion said, could not be maintained, and therefore Usury had to be overturned.
The Court was right to attack the bogus and fictitious distinction. But the Court should have overturned any Federal regulation of local government based on interstate commerce. In fact, it was not Usury that relied on this distinction, but Wertz--which depended on this distinction to carve out an exception to State sovereignty.
In a strongly worded dissent in Garcia, Justice Powell, joined by Justices Burger, Rehnquist and O'Connor, wrote that,
The Court today, in its 5-4 decision, overrules National League of Cities v. Usury, a case in which we held that Congress lacked authority to impose the requirements of the Fair Labor Standards Act on State and local governments. . . . There are, of course, numerous examples over the history of this Court in which prior decisions have been reconsidered and overruled. There have been few cases, however, in which the principle of stare decisis and the rationale of recent decisions were ignored as abruptly as we now witness.
The dissenting opinion went on to complain that,
(I)t does not seem to have occurred to the Court that it--an unelected majority of five Justices--today rejects almost 200 years of the understanding of the constitutional status of federalism. In doing so, there is only a single passing reference to the Tenth Amendment. Nor is so much as a dictum of any court cited in support of the view that the role of the States in the federal system may depend upon the grace of elected Federal officials, rather than on the Constitution as interpreted by this Court.
This Garcia case is particularly important since it is still the basic precedent by which Federal labor regulations are applied to State and local governments. We must emphasize again that all such regulations in this case (and in all others) attribute Federal regulation to the "interstate commerce clause" in Article 1, Section 8. Note also in this case that the city of San Antonio did not invoke sovereign immunity, and the Court did not address this issue.
The dissenting opinion is also of great significance for predicting the future direction of the Court. The strongly worded dissent joined in by Justices Rehnquist and O'Connor--who now form a majority with Justices Thomas, Scalia and Kennedy--indicates that these justices are at best unfriendly towards such Federal regulation of States and most likely are looking for a way to overturn it--either directly or indirectly.
This was made plain at recent oral arguments before the Court on April 21 of this year, 1999, in College Savings Bank v. Florida Prepaid. Justices Scalia and O'Connor (and to a lesser degree Rehnquist and Kennedy) were openly critical of attempts by Congress to regulate States' actions in any way, particularly any based upon a distinction of different types of government activities. That case, however, dealt with the sovereign immunity issue. We must turn to that next to understand why any attempt by Congress to regulate States under Article 1 jurisdiction is now impossible.
Eleventh Amendment Sovereign Immunity
The Eleventh Amendment states:
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 (emphasis added).
For several decades it was routinely ignored. Every year the Federal courts hear hundreds of cases prosecuted against a State or its political subdivisions by non-citizens.
Recently, however, the Supreme Court returned to the principle of sovereign immunity in two cases: Seminole Tribe of Florida v. Florida and Coeur d'Alene v. Idaho. A vigorous defense of this principle by State and local governments could well be an important weapon in the struggle to devolve power back to States and local communities--a movement the public has said they support.
To understand the Seminole and Coeur d'Alene decisions, and the important potential of the Eleventh Amendment and how it applies to Federal regulation of local governments, it is necessary to briefly examine the convoluted history of what would seem to be a straightforward amendment.
Article 3, Section 2 states that the judicial power of the Federal government shall extend to cases arising under U.S. law in the following eight areas:
--to all Cases affecting Ambassadors, other public Ministers and Consuls; --to all Cases of admiralty and maritime Jurisdiction; --to Controversies to which the United States shall be a Party; --to Controversies between two or more States; --between a State and Citizens of another State; --between Citizens of different States, --between Citizens of the same State claiming Lands under Grants of different States, --and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.4 (emphasis added)
In other words, to preserve the sovereignty of each of the States, the Federal courts would only have jurisdiction in cases which involved interstate or international issues. Cases such as those between two citizens of a State, or a citizen against his own State, were to be adjudicated in State court and were not subject to Federal jurisdiction.
During the process of ratifying the U.S. Constitution, many anti-Federalists were concerned that the clause in the Constitution, stating that Federal courts would have jurisdiction in "suits between a State . . . and foreign States, Citizens or Subjects," would allow suits against States by individuals in Federal court.
Alexander Hamilton and the Federalists argued that this jurisdiction was only one way. States could sue individuals in Federal court, but individuals could not sue States. Hamilton explains this in Federalist 81:
It is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent. This is the general sense and the practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every State in the Union. . . . there is no color to pretend that the State governments would, by the adoption of this [constitution], be divested of paying their own debts in their own way, free from every constraint but that which flows from the obligations of good faith. . . . To what purpose would it be to authorize suits against States for the debts they owe? How could recoveries be enforced? It is evident that it could not be done without waging war against the contracting State; and to ascribe to the Federal courts, by mere implication, and in destruction of preexisting right of the State governments, a power which would involve such a consequence, would be altogether forced and unwarranted.
Despite Hamilton's assurances, there was an opening for judicial attack upon State sovereignty. Almost immediately, a case arose (Chisholm v. Georgia ) in which a citizen of another State brought suit against Georgia and the suit was heard in Federal court.
The majority opinion of the court adopted the anti-Federalist reading, however, and said that the text of the Constitution made no such distinction as Hamilton had suggested.
The minority opinion written by Justice Irendell, however, closely followed the analysis of Hamilton arguing that,
A State is altogether exempt from the jurisdiction of the Courts of the United States, or from any other exterior authority, unless in the special instances where the general Government has power derived from the Constitution itself.
A State retains all of its sovereignty unless there is specific and explicit cession of that sovereignty in the Constitution. A suit by individuals against States is not a power that was explicitly ceded by the States. (It should be noted that suits by individuals against their own States were never imagined to be allowable.)
In summarizing the constitutional issue under discussion in the dispute, Irendell noted:
The Constitution, therefore, provides for the jurisdiction wherein a State is a party, in the following instances: 1st. Controversies between two or more States. 2nd. Controversies between a State and citizens of another State. 3rd. Controversies between a State, and foreign States, citizens, or subjects. And it also provides, that in all cases in which a State shall be a party, the Supreme Court shall have original jurisdiction.5
This list of areas of jurisdiction was obviously meant to be inclusive. The question under dispute was whether or not the second category ("Controversies between a State and citizens of another State") gave jurisdiction to Federal courts in all such suits or only to States suing individuals.
After the decision of the Court in Chisholm (which upheld the expansive anti-Federalist reading of the Constitution), some recognized that if this jurisdiction of the Federal courts were allowed it would result in a loss of State sovereignty--and would be a contradiction of the Federalist principle enunciated by Hamilton.
To preserve sovereignty it was necessary that all suits against a State be heard in the State court. As a result Congress quickly passed, and the States ratified, the Eleventh Amendment specifying that nothing in the U.S. Constitution could be construed to allow Federal jurisdiction in suits against a State by citizens of any other State or country.
This effectively closed the loophole in the Constitution, which the Court had interpreted as allowing Federal jurisdiction over States through the suit of a non-citizen.6 It should be obvious that the language of this amendment seems to be extremely clear and not open to much interpretation: if a non-State-citizen files suit against the State such a case is not subject to Federal jurisdiction--not at all.
The Eleventh Amendment embodied the general principle that the power to fine was the power to destroy, and hence the Federal judiciary could not proscribe a financial liability on any State, regardless of whether the plaintive was a citizen of the State or not. Since it closed a loophole allowing suits by individuals, "Eleventh Amendment protection" generally refers to a State's sovereign immunity from prosecution by any individual, citizen or non-citizen.
As the Court correctly stated in Coeur d'Alene v. Idaho:
(T)he dignity and respect afforded a State, which the immunity is designed to protect, are placed in jeopardy whether or not the suit is based on diversity jurisdiction. As a consequence, suits invoking the Federal question of jurisdiction of Article III courts may also be barred by the Amendment.
How the Eleventh Amendment Was Disregarded
The history of how this clear Amendment came to be disregarded is a long and peculiar one that I shall attempt to summarize briefly.
Opponents of sovereign immunity claim that the Eleventh Amendment addresses a very narrow question of whether Federal courts have jurisdiction simply because two or more States are involved (i.e., diversity of States reason). For example, if a citizen of one State wants to sue a citizen of another State over a debt, the Federal courts might have jurisdiction due to diversity of parties. But the Federal courts would not have jurisdiction if both parties were citizens of the same State. In other instances, such as an alleged violation of civil rights, Federal courts would claim jurisdiction regardless of where the parties were located. So if a person in one State sued a person in another for "violation of civil rights," Federal courts might claim jurisdiction on two different grounds.
Opponents of sovereign immunity would have us believe that if we passed an amendment saying,
"The Judicial power of the United States shall not extend to ANY suit commenced or prosecuted by a citizen of one State against a citizen of another State,"
that such an amendment would only remove "diversity of jurisdiction" as a reason for the Federal courts to hear the suit. They would maintain that despite the plain wording of the Amendment that Federal courts could still hear a suit between citizens of different States if there were additional reasons (other than diversity) which could justify Federal court involvement.
The writers of the Eleventh Amendment believed that they were closing out every possibility that a State (or its political subdivisions) could ever be held as a defendant against a private party in Federal court. To understand the Eleventh Amendment in this way, they had to interpret Article 3, Section 2 as not giving Federal courts any possible jurisdiction over an intrastate dispute between a State and its own citizens.
In other words, the founders did not design Article 3, Section 2 to create a court of general jurisdiction, but to create a Federal court system with limited jurisdiction--with powers limited to the types of interstate disputes specifically enumerated.
The obvious meaning of the Constitution, I would argue, is that Federal jurisdiction is limited in this way. The powers of the Federal government, in each of its branches, are delegated; and the Federal government may not assume other powers not so delegated. Just as Article 1, Section 8 specifies and limits the powers of Congress, the same is true of the powers of the judicial branch.
This is precisely what Hamilton said in Federalist 80 where he wrote:
The plan of the convention declares that the power of Congress, or, in other words, of the NATIONAL LEGISLATURE, shall extend to certain enumerated cases. This specification of particulars evidently excludes all pretension to a general legislative authority, because an affirmative grant of special powers would be absurd, as well as useless, if a general authority was intended. In like manner the judicial authority of the Federal judicatures is declared by the Constitution to comprehend certain cases particularly specified. The expression of those cases marks the precise limits, beyond which the Federal courts cannot extend their jurisdiction, because the objects of their cognizance being enumerated, the specification would be nugatory if it did not exclude all ideas of more extensive authority.
Very clearly then, the Federal courts were not courts of general jurisdiction but of limited delegated jurisdiction.
To what were Federal courts limited? Hamilton seems to say quite clearly that Federal courts are limited to interstate disputes. Again from Federalist 80:
It may be esteemed the basis of the Union, that "the citizens of each State shall be entitled to all the privileges and immunities of citizens of the several States." And if it be a just principle that every government OUGHT TO POSSESS THE MEANS OF EXECUTING ITS OWN PROVISIONS BY ITS OWN AUTHORITY, it will follow, that in order to [ensure] the inviolable maintenance of that equality of privileges and immunities to which the citizens of the Union will be entitled, the national judiciary ought to preside in all cases in which one State or its citizens are opposed to another State or its citizens.
Hamilton, at least, seems to indicate quite clearly that the courts will NOThave jurisdiction in every case involving privileges and immunities of "citizens of the Union" but only in those of an interstate dispute. How does the Eleventh Amendment comport with this, since explicitly a non-State-citizen cannot sue a State? I think that it was the intention of the founders that in such a case of violation of the privileges of a "citizen of the Union" that the individual's own State would intervene and file on his behalf. In this way there is no contradiction between sovereign immunity and upholding the "privileges and immunities to which citizens of the Union are entitled." Thus there is no contradiction between the Eleventh Amendment and Article 4, Section 2--both can be given full force.
The U.S. Supreme Court took up the issue of the extent of Federal court jurisdiction in 1813 when the Court agreed to hear an appeal regarding property ownership in the Commonwealth of Virginia, and issued a writ of error to the Virginia Court of Appeals. Virginia, however, refused to obey this writ of error. The Virginia Court of Appeals declared:
The court is unanimously of opinion that the appellate power of the Supreme Court of the United States does not extend to this court under a sound construction of the Constitution of the United States.
Nevertheless, in Martin v. Hunter's Lessee (1816), Justice Story wrote the majority opinion claiming that the U.S. Supreme Court had general appellate jurisdiction to rule on any "constitutional" question. In essence, Story argued that if internal matters which were thought to touch on matters of Federal law or treaties were allowed to be interpreted differently in different States, then "the public mischiefs which would attend such a state of things would be truly deplorable." Story did not elaborate on what these deplorable mischiefs might be.
It has long been the case that a law or a constitutional issue is interpreted differently in one Federal district than it is in another. Many of these differences are never resolved by the U.S. Supreme Court, whose docket is limited to a few of the most important cases. I see nothing truly deplorable in this, nor if there were fifty different interpretations. Indeed, one could well see it as admirable that each Federal district in some way reflects the traditions and desires of the citizens of the particular area.
According to the majority opinion written by Justice Story, however, when the constitution says that the judicial power shall extend to "all cases arising under Federal law," to "cases involving ambassadors," and so forth, the list of eight specific interstate or international issues expands, rather than limits, Federal power. Federal jurisdiction, if this interpretation be true, is to all cases arising under the Constitution, U.S. law, treaties, plus any suit arising involving one of the eight interstate or international cases. According to this interpretation, the Constitution places no restrictions whatsoever upon the jurisdiction of Federal courts.
So long as a question is generally something "arising under the Constitution" then the courts can claim jurisdiction. Just as when Justice Thomas asked the Solicitor General in Lopez what sort of thing would not fall under "interstate commerce," and he was unable to provide a single example, in the same way, what sort of case would not fall under "the constitution" as a whole? Just as an expansive reading of the "interstate commerce clause" changes the legislative branch to a legislature of general and unlimited jurisdiction, the idea that Federal courts can hear any case "arising under the Constitution" would change the judiciary into a court of general and unlimited jurisdiction.
I believe that the Supreme Court's interpretation that it possesses both general and diversity jurisdiction is implausible because the applicable language of the Constitution has never changed. Yet it is the Eleventh Amendment which makes the reasoning in the Martin decision a lie. The Eleventh Amendment is plainly about limiting the jurisdiction of Federal courts--even Story accepted this and no one challenged that for over a century.
It seems extremely clear that when the Amendment says that Federal jurisdiction shall not extend to any suit prosecuted against a State by citizens of another State, the framers understood themselves to be closing a loophole which allowed for excessive Federal control of State interests.7If Article 3, Section 2 had not been understood to already prohibit Federal jurisdiction in internal matters, as Hamilton clearly believed, then there would have been no loophole to close. And those who amended the Constitution would be seen as having prohibited interference by the Federal government in suits brought by foreign citizens, while allowing a gaping loophole for the Federal government to interfere everywhere else. This should be all the more obvious since legal actions of foreigners against a State, being of international consequence, are more plausibly Federal matters. But when a citizen of a State files suit against his own State government, or there is a dispute between citizens of the same State, these are not interstate or interstate, and so much less plausibly Federal matters.
There is another consideration to be made from the exact wording of the Eleventh Amendment. It is commonly stated that the Eleventh Amendment actually amended Article 3, Section 2. It did not.
What the Eleventh Amendment did was require that Article 3, Section 2 be interpreted in a certain way. The Eleventh Amendment states,
The Judicial power of the United States shall not be construed to extend to any suit . . . commenced or prosecuted against one of the United States . . . .
The Eleventh Amendment is about interpretation. It requires that Article 3, Section 2 be interpreted in such a way that suits by citizens of another State against a State not be permitted in Federal court. The only way to properly interpret Article 3, Section 2, as required by the Eleventh Amendment, is to interpret the list of eight interstate issues as limiting the jurisdiction of the Federal courts, not expanding it; and that Federal jurisdiction of suits "between States and citizens of another State" applies only when States are plaintiffs.
Suppose for a moment that the first clause of Article 3, Section 2 in the unamended Constitution provided that "the judicial power of the United States shall extend to ALL Cases arising under the Constitution" without any further limitation in Article 3, Section 2, as Justice Story argued. However, the Eleventh Amendment requires us to interpret Article 3 as not allowing suits against States by foreign citizens. Thus, after the Eleventh Amendment, it is no longer possible to interpret the first clause as giving Federal courts jurisdiction over "all suits" arising under the Constitution or U.S. law. Further, one cannot honestly argue that the Eleventh Amendment creates an exception. It does not create anything, but requires that Article 3, Section 2 be interpreted as not permitting suits by individuals against States. This interpretation is possible only if we understand that Article 3, Section 2 stipulates that Federal jurisdiction extends to all cases arising under the Constitution which fall under one of the specifically enumerated categories.
This interpretation is also required by Hamilton's comments in Federalist 80 about the circumstances under which a State could be sued in Federal court, which we site again:
It may be esteemed the basis of the Union, that "the citizens of each State shall be entitled to all the privileges and immunities of citizens of the several States" . . . in order to [ensure] the inviolable maintenance of that equality of privileges and immunities to which the citizens of the Union will be entitled, the national judiciary ought to preside in all cases in which one State or its citizens are opposed to another State or its citizens.
If the Federal courts had general jurisdiction over any case which could arise under the U.S. Constitution this statement would make no sense. Hamilton attributes Federal jurisdiction not to supervision of all cases affecting "privileges and immunities," but only to constitutional cases arising under diversity of jurisdictions. In other words, if the Federal courts had jurisdiction over all "suits arising under the Constitution" then there is no reason for Hamilton to appeal to diversity as a justification for Federal involvement.
This is an important point because in the Seminole case Justice Souter, in his dissenting opinion, advances the same argument made by Justice Story in Martin. Souter takes it a step further, arguing that the Eleventh Amendment places no restrictions whatsoever upon the jurisdiction of the Federal courts.
Souter accepts Story's argument that Federal jurisdiction extends to all cases arising under U.S. law or which involve the eight interstate issues. Souter then argues that the Eleventh Amendment only served to remove diversity as an additional reason for Federal jurisdiction; but Federal courts would still retain jurisdiction in all cases where a court thought the matter touched on the Constitution or U.S. law. So even suits against a State by an alien could be adjudicated in Federal court, according to Souter's reasoning.
Again this reading seems outlandishly implausible, since its effect is that the Eleventh Amendment does not remove from Federal jurisdiction one single suit. On this reading, had the Eleventh Amendment been in effect in 1790, it would not have withdrawn jurisdiction of the court in Chisholm v. Georgia--the case that the Eleventh Amendment was explicitly written to overturn. The court could have ruled that property ownership was one of the privileges of a citizen of the Union and heard the case anyway.
Martin v. Hunter's Lessee greatly expanded the reach of the Federal courts to cover appeals from State courts that involved a constitutional issue.8 While it was possible to twist Article 3, Section 2 of the Constitution to extend judicial power over internal affairs of States and by such means invalidate State laws, the Eleventh Amendment was so clear there was no way of immediately contradicting it. For some time, at least in theory, the courts honored the immunity of States from direct prosecution in Federal court. The immunity of States from suit in Federal court, either by citizens or non-citizens, was upheld in such cases as Clark v. Barnard (1883) Hans v. Louisiana (1890), and Smith v. Reeves (1900).
In 1908, however, the Supreme Court found a way around this clear prohibition, in the case of Ex parte Young. This case alleged that a Minnesota statute violated the due process clause of the Fourteenth Amendment. The court had been using the due process clause to erode State sovereignty, but this case was to destroy States' sovereign immunity from prosecution. The way to get around the clear prohibition against suits brought against a State government by citizens or non-citizens was to issue a court order to the Attorney General of the State of Minnesota, ordering him not to enforce the law which the Supreme Court wished to strike down. The Court reasoned that such an order only restricted the Attorney General to act as an individual citizen and did not recognize a claim against the State:
If the act which the State Attorney General seeks to enforce be a violation of the Federal constitution, the officer in proceeding under such an enactment, comes into conflict with the superior authority of that constitution, and he is in that case stripped of his official or representative character and is subjected in his person to the consequences of his individual conduct.
This brought the suit into Federal court because it was now a suit against a specific individual and not against the State government--at least that is the argument. Of course, this not only attacked State sovereignty but threatened to undermine all State and local governments since it implied that individuals could be held personally responsible when acting as agents of the State. The question of who could be held liable financially was laid at the larger coffers of the State government.
The State therefore is still liable for the actions of its agent when he is said to violate Federal law. Yet Federal courts have jurisdiction only because the officer is not acting as an agent of the State. At the same time, Congress supposedly has jurisdiction to prohibit the action, only because it is the action of a State for purposes of enforcing the Fourteenth Amendment. So the same local official is and is not an agent of the State--at the very same time and in the very same action. He is an agent of the State for terms of the Fourteenth Amendment but he is not for terms of the Eleventh Amendment. This is a clear contradiction. As Justice Harlan noted in his dissenting opinion:
The suit was, as to the defendant Young, one against him as, and only because he was, Attorney General of Minnesota. No relief was sought against him individually but only in his capacity as Attorney General. And the manifest--indeed, the avowed and admitted--object of seeking such relief was to tie the hands of the [State]. It would therefore seem clear that within the true meaning of the Eleventh Amendment, the suit brought in Federal court was one, in legal effect, against the State.
The majority opinion was so obviously false, and inherently contradictory, that it caused a public outcry. In 1910, Congress restricted, but did not overturn, the reach of the court in such cases. Congress required that no injunction be issued against a State official except by a court of three judges.9 This made it more difficult for Federal judges to violate the constitution, but the violation still stood in principle. In fact, the Eleventh Amendment was nullified so completely that today few people have even heard of the Eleventh Amendment.
The Young fiction has been a handy exception used by the court to simply waive aside sovereign immunity whenever it wished. This has been used more during certain periods than at other periods. In recent years the Supreme Court has refused to invoke the Young case, which seems to be viewed with increasing disfavor.
For the next 60 years, the Court continued this pretence that the Eleventh Amendment was still in effect, although it disregarded it whenever it pleased. Another angle of attack was added in the 1964 case of Parden v. Terminal Railway. The Warren Court, by a 5-to-4 vote, found that a suit directly against a State could be allowed if the State had implicitly consented to the suit by some action. In Parden, the Court found that railroads were interstate businesses, subject to Federal regulation. Alabama, simply by allowing railroads to operate in the State, had implicitly given up its immunity from prosecution in Federal court. The implication was that the courts or Congress could overrule the Eleventh Amendment whenever it was seen as interfering with the Federal regulation of interstate commerce.
In the 1970's, a series of Eleventh Amendment cases arose which presented a confusing array of judicial opinions. Graham v. Richardson(1971) remains an important precedent because the Court, for the first time, found that public benefits could not be denied to non-citizens. Thus the Court created a right of non-citizens to economic benefits and social services previously considered to have been reserved for American citizens. This assumed that non-citizens could bring suit against a State for failure to provide these "constitutionally guaranteed" benefits--an explicit contradiction of the Eleventh Amendment.
The issue was still not resolved. In 1974 in the case of Edelman v. Jordan, the Court, by a 5-to-4 decision, rejected Parden and seemed to repudiate the Young decision. Justice Rehnquist, writing for the majority, said: "[A] suit by private parties seeking to impose liability which must be paid from public funds in the State treasury is barred by the Eleventh Amendment." Opposing the reasoning of the Young decision, Rehnquist noted that the monetary relief "will to a virtual certainty be paid from, State funds, and not from the pocket of the individual official who was the defendant in the action."
While Edelman did not explicitly overturn Parden, it is hard to see how that reasoning could any longer be invoked. Also, the Court has looked on the "implicit consent" argument with increased disfavor. In oral arguments in College Savings Bank, the Solicitor General urged the Court to use the Parden reasoning to dismiss sovereign immunity. The Court was openly critical of this approach, and even Justice Ginsburg called "implicit consent" a "fiction" which seemed hard to justify.
Only two years after Edelman, the Court reversed itself again. Given that the pretense of the Young decision had been exposed and rejected, the Court seems to have been unwilling to appeal to the same sort of reasoning. Instead the Court simply ruled that Congress, under authority of the Fourteenth Amendment to "enforce by appropriate legislation," could overrule the Eleventh Amendment, and hold State governments liable in Federal court (Fitzpatrick v. Bitzer, 1976). Returning to the path suggested by Parden, but shifting from interstate commerce to civil rights, the majority decision concluded,
We think that Congress may, in determining what is 'appropriate legislation' for the purposes of enforcing the provisions of the Fourteenth Amendment, provide for private suits against a State or State officials which are constitutionally impermissible in other contexts.
It is vitally important to recognize that the Court in Fitzpatrick admitted that such suits against States are in opposition to the Eleventh Amendment. Rather than invalidating the Federal laws in conflict with the Amendment, the Court invalidated a part of the Constitution. As David Currie wrote in a critique of Fitzpatrick, this reasoning could just as well be applied to any part of the Constitution. Currie notes:
This reasoning is less than overwhelming. One might have thought that subsec. 5 [of the Fourteenth Amendment], like other plenary grants of power, was subject to explicit and implicit constitutional limitations; one would hardly read it to empower Congress to authorize cruel and unusual punishment [for violators of the Fourteenth Amendment].10
If Congress now has power to overrule other parts of the Constitution in order to protect constitutional rights (which they claim to be protected by the Fourteenth Amendment), then they are able to proscribe cruel and unusual punishment--or anything else they deem "appropriate" for such protection--even though explicitly prohibited by the Constitution.
Whether the Court will completely repudiate this decision remains to be seen, but in the current context what we are interested in is the relation between the Eleventh Amendment and interstate commerce. The Court again addressed this in 1989 in the case of Pennsylvania v. Union Gas. The Court reinstated and extended Pardon, again proclaiming that Congress could overrule the Eleventh Amendment on its power to regulate interstate commerce. This time, notably, the Court made no pretence of "implicit consent."
The Court revisited this issue just a few years later, and in 1996 overturned the Union Gas decision, and said that Congress could not override Eleventh Amendment sovereign immunity under any Article 1 power (Seminole Tribe v. Florida).
Like the labor decisions, the Court has reversed itself so many times that it is difficult to keep track. So let us recap: Seminole Tribe of Florida v. Florida (1996), overturned Pennsylvania (1989), which overturned Edelman (1974), which overturned Pardon (1964) which overturned Hans(1890).
In Seminole the Court concluded:
Congress under the Indian Commerce Clause . . . authorizes a tribe to bring suit in Federal court against a State in order to compel performance of that duty, 2710(d)(7). We hold that notwithstanding Congress' clear intent to abrogate the States' sovereign immunity, the Indian Commerce Clause does not grant Congress that power, and therefore 2710(d)(7) cannot grant jurisdiction over a State that does not consent to be sued. We further hold that the doctrine of Ex parte Young, 209 U.S. 123 (1908), may not be used to enforce 2710(d)(3) against a State official.
Chief Justice Rehnquist, for the majority, affirmed the traditional view of State sovereignty that "the states, although in a union, maintain certain attributes of sovereignty, including sovereign immunity." In other words, they are immune from prosecution in Federal court--either by citizens or non-citizens. In Seminole, the Court threw out the ability of Congress to nullify the Eleventh Amendment on commerce grounds, but did not address its nullification on civil rights grounds.
A year later, in Coeur d'Alene Tribe v. Idaho, the Court did address the Fourteenth Amendment question. Petitioners argued that the State's sovereign immunity could not be invoked because the State had violated their due process rights guaranteed by the Fourteenth Amendment. The Court did uphold the sovereign immunity of Idaho, but the ruling was a plurality decision that did not definitively settle the Fourteenth Amendment question.
Justice Kennedy, writing for the plurality, argued that a Fourteenth Amendment claim does not cancel a State's Eleventh Amendment immunity:
It would be error coupled with irony were we to bypass the Eleventh Amendment, which enacts a scheme solicitous of the States, on the sole rationale that state courts are inadequate to enforce and interpret Federal rights in every case.
Whether or not a true majority on the Court would uphold sovereign immunity in "civil rights" cases, the Court in Coeur d'Alene seemed to accept as an established fact that Congress could not abrogate sovereign immunity under any grant of power found in Article 1. Nor apparently would the Court permit the Young exception to be invoked in support of any Article 1 power.
This fact was brought home even more forcefully in oral arguments for College Savings Bank, argued in April 1999 (a decision is expected during the summer of 1999). That case involved an attempt to sue the State of Florida for patent and copyright infringements (which are covered in Article 1 of the Constitution). Both Chief Justice Rehnquist and Justice Scalia (and Scalia more than once) warned counsels that "Congress cannot abridge sovereign immunity based on any Article 1 power."
Even the U.S. Solicitor General seemed to accept this admonition. The core of his argument was that patent and copyrights, although found in Article 1, should be considered as among the privileges and immunities of the Fourteenth Amendment. The significant fact in this case is that the Court now seems to accept as a basic principle that Congress cannot abrogate sovereign immunity under the interstate commerce clause, or any other clause of Article 1, be it Indian commerce, or copyrights, or something else.
Alden v. Maine
Given these recent decisions, we now come back to the issue which the Court refused to address in Maryland v. Wertz. If State employees are precluded from filing suit in Federal court for violation of Federal labor laws, then they are unenforceable and ipso facto null and void. Indeed, this is precisely the issue which is now before the Court in Alden v. Maine.
On March 31, 1999, the Court heard oral arguments in Alden, which involved an attempt by State employees to force the State of Maine to pay them overtime according to the Fair Labor Standards Act (FLSA). The case had initially been brought in Federal district court, but after the Seminole decision, the case was dropped. The plaintiffs refiled in State court--the only forum open to them. The Supreme Court of Maine ruled that the State did not have to comply with FLSA and dismissed the case. The U.S. Supreme Court, however, agreed to hear the case on appeal from the Maine court.
State immunity from suit in Federal court was not challenged in Alden. All parties, including the Solicitor General and dissenting justices from Seminole, acknowledged that the State could not be sued in Federal court for an alleged violation of FLSA. The issue pertained to the Tenth Amendment, as to whether or not a State court could be required to enforce the FLSA.
In Alden, because a State could NOT be sued for violations of FLSA in Federal court, the plaintiffs wanted the U.S. Supreme Court to compel State courts to enforce the FLSA. Solicitor General Waxman said that Congressional legislation might as well be "written in disappearing ink" if there were not some court to enforce them. That much is true. If Congress attempts to pass a law for which there is no possibility of enforcement, it must be ipso facto null and void. Before we turn to the reasons why a State court cannot be compelled to hear such cases, it is worth emphasizing again that all parties in Alden acknowledge as a legal fact that States could not be sued in Federal court for alleged violations of FLSA.
To briefly address the Tenth Amendment issue and the role of State courts with respect to Federal law, let us look at the Alden case. As a general rule, Federal courts enforce Federal law and State courts enforce State law. State courts are required to follow the U.S. Constitution, but they do not as a rule enforce Federal laws passed by Congress. There have been times that States have voluntarily enforced Federal laws, but long-standing precedents have decreed that such action by States was purely voluntary.
In 1883, in the case of U.S. v. Jones, the issue before the Court was whether it was a violation of Federal sovereignty to have a State enforce Federal laws. The Court in this case said it was not; but the Court clearly stated that such action on the part of the State was purely voluntary. The Court declared:
Yet from the time of its establishment [the Federal] government has been in the habit of using, with the consent of the states, their officers, tribunals, and institutions as its agents. Their use has not been deemed violative of any principle or as in any manner derogating from the sovereign authority of the Federal government; [109 U.S. 513, 520] but as a matter of convenience and as tending to a great saving of expense. . . . And though the jurisdiction thus conferred could not be enforced against the consent of the states, yet, when its exercise was not incompatible with state duties, and the states made no objection to it, the decisions rendered by the state tribunals were upheld.
"The jurisdiction thus conferred could not be enforced against the consent of the states," the Court wrote. It could not have been clearer.
This issue was addressed again most recently in Mack/Printz v. U.S. The issue in this case was whether Congress could require local officials to enforce Federal gun control laws. Again the language of the Court is quite clear, and there exists a long line of precedents. Quoting FERC v. Mississippi (1982), the Court noted that, "This Court has never sanctioned explicitly a Federal command to the States to promulgate and enforce laws and regulations." And quoting New York v. U.S. (1992), the Court noted that, "the commerce clause, for example, authorizes Congress to regulate interstate commerce directly, it does not authorize Congress to regulate state governments' regulation of interstate commerce."
Again quoting from New York, the Court reaffirmed in Printz that, "The Framers explicitly chose a Constitution that confers upon Congress power to regulate individuals, not States." Finally the conclusion from Printz could not be clearer:
The Federal government may neither issue directives requiring the States to address particular problems, nor command the State's officers, or those of their political subdivisions, to administer or enforce a Federal regulatory program . . . such commands are fundamentally incompatible with our constitutional system of dual sovereignty.
These statements make absolutely clear that Congress cannot force States, or any of their branches or subdivisions, to enforce Federal laws and regulations. Arguments that these prohibitions somehow do not apply to State judicial branches are simply preposterous.
After New York v. U.S., Congress tried to do an end run around the prohibition against requiring States to enforce Federal laws, attempting to require individual officers to enforce Federal laws. The Court derided such a distinction as "empty formalistic reasoning of the highest order." Similarly, the claim by the Administration that Congress can force individual State judges to enforce Federal laws (and then have the judges force State officers to enforce those judgements) has perhaps taken "empty formalist reasoning" to even new heights. The Supreme Court will, most likely, continue to view it as such.
Local Sovereign Immunity
The next line of defense for opponents of sovereign immunity will undoubtedly be to argue that sovereign immunity applies only to States, and not to their political subdivisions. Federal supremacists have already used this argument for a generation.
This position, however, as we have seen from our brief review of cases, is untenable. Sovereign immunity cases, and the applicability of labor laws to States, have always been seen as applying identically to State and local governments. The Court, in Printz v. U.S., also made clear that whatever protections are afforded a State under the Tenth Amendment apply with equal force to local governments. The U.S. Constitution never mentions local governments. But historically, whenever the Constitution mentions what a "State" may or may not do, it has also applied to all of a State?s political subdivisions.
Federal supremacists must argue that local governments qualify as a "State" for the purposes of the Fourteenth Amendment, but not for purposes of the Eleventh Amendment--a clear contradiction. Both State and local governments must systematically assert their sovereign immunity in every instance. The doctrine had fallen into disuse because State and local governments themselves stopped invoking it. But when 40 or more States, plus hundreds of local and tribal governments, began demanding respect for their spheres of sovereignty, even the Supreme Court had to take notice.
What is left of Federal labor laws as applied to State and local governments if our analysis is correct? If FLSA and similar measures cannot be enforced in Federal court, and will not be enforced in State court, then indeed they have been written "in disappearing ink" (as Solicitor General Waxman suggested). They are no more than suggestions; they are not laws.
This applies not just to Federal labor laws, but to all laws of general applicability passed by Congress.
It is not necessary for State or local governments to take any action (such as filing a restraining order in Federal court) to prevent Federal labor laws from affecting them. Maine simply refused to comply with these "suggestions" and refused to hear any suit against the State. Other States, of course, should do the same.
It is time to trust our citizens once again. The reduction of State and local sovereignty during the 1960s and 1970s was based upon the premise that the people and their locally elected representatives were not to be trusted. Therefore we supposedly needed a group of unelected elites on the Federal bench to oversee and second-guess every decision of State and local governments. This theory is still around. The American people as a whole, however, have long ago repudiated this theory and asked that more control be returned to local communities. This is the moral and political justification for local sovereignty.
The legal justification is equally compelling. As Madison wrote,
(T)he local or municipal authorities form distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the general authority, than the general authority is subject to them, within its own sphere.
It is as preposterous for the Federal government to determine the pay and qualifications for local police as it is for a local government to determine the pay and qualifications for Federal troops.
As Chief Justice Rehnquist and his fellow dissenting justices noted in their critique of Garcia:
Members of the immense Federal bureaucracy are not elected, know less about the services traditionally rendered by States and localities, and are inevitably less responsive to recipients of such services, than are State legislatures, city councils, boards of supervisors, and State and local commissions, boards, and agencies. It is at these State and local levels--not in Washington as the Court so mistakenly thinks?that "democratic self-government" is best exemplified.
* Paul Clark, the director of the Coalition for Local Sovereignty, an organization working with local governments to resist Federal intrusions, received his Ph.D. in Legal Theory from the Catholic University of America in 1995. He may be contacted at: Paul Clark firstname.lastname@example.org.
1Tenth Amendment to the Constitution of the United States of America: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
2 Eleventh Amendment to the U.S. Constitution: "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."
3The U.S. Solicitor General is the Justice Department official whose responsibility is to defend the constitutionality of U.S. laws challenged in Federal court.
4The italicized parts, clauses 5 and 8, are required by the Eleventh Amendment to be interpreted as permitting such suits only in cases when a State is a plaintiff and not a defendant. This is also suggested by use of the word "all" to apply to "all cases of maritime jurisdiction" but not to allcontroversies "between a State and citizens of another State."
5The Court has also violated the protection afforded States that "in all cases in which a State shall be a party the Supreme Court shall have original jurisdiction." States are totally immune from suits in lower courts, but that is too broad to be addressed here.
6Although a State could be a defendant in Federal court if one State filed suit against another, this is quite rare, and since only another State and not an individual could initiate such action, the danger of Federal intrusion is more remote.
7Indeed Theodore Sedgwick, acting upon instructions from the legislature of Massachusetts, proposed an even more sweeping version that read: "[N]o State shall be liable to be made a party defendant, in any of the judicial courts, established, or which shall be established, whether within or without the United States." This amendment would have granted States absolute immunity from prosecution in any court but its own, but clearly went too far in that it would not have allowed for the Federal court to mediate disputes between two States, which was still considered its proper role.
8The response of Virginia to this unconstitutional power grab was to refuse to enforce the decision. In fact, a similar case arose again in 1821 (Cohens v. Virginia) in which Virginia refused to recognize a writ of error issued by the U.S. Supreme Court. Virginia asserted that the case of Cohens?a resident of the District of Columbia--who was arrested for selling lottery tickets in Virginia, was not a Federal issue and refused to even argue the case on its merits before the Supreme Court.
9Even Congress eliminated this restriction in 1976.
10David Currie, The Constitution in the Supreme Court (Chicago: University of Chicago Press, 1990), 573.