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Viva la Revolution? Federalism
and the Supreme
Court's October 2000 Term
At our July 11 event, four panelists (Alabama Attorney General William Pryor, Oklahoma City Law
Professor Tom Odom, John Elwood of the DOJ, and Michael Greve)
considered last term's major
federalism decisions along with general trends in spending clause, commerce clause, eleventh
amendment, and fourteenth amendment jurisprudence.
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- Click here to
read General Pryor's panel paper on federalism and statutory
construction ("The Demand for Clarity: Federalism, Statutory
Construction, and the 2000 Term, published in he Cumberland
Law Review {32 Cumb. L. Rev
361}).
Commerce Clause
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Justices Scrutinize Agency Rules that Threaten Federalist Arrangements
Solid Waste Agency of Northern
Cook County v. US Army Corps of Engineers
No.
99-1178 Decided January, 2001
The opinion in SWANCC has an explicit and implicit message,
both potentially far reaching. Explicitly, the Court rejected
the Environmental Protection Agency's interpretation of the Clean
Water Act. The EPA's Migratory Bird Rule--developed by in 1986
to "clarify" the meaning of the CWA--was deemed inconsistent with the statute.
Why didn't the EPA receive customary agency deference? According
to Court, when an administrative interpretation of a statute raises serious constitutional problems, the
justices will construe the statute to avoid such problems in the
absence of clear congressional intent.
What's notable, here, is
the Court's understanding of a "serious constitutional
problem," namely, a rule that threatens traditional federalist
arrangements. The Bird Rule, the Court argues, deserves a high
degree of scrutiny because it threatens states’ "traditional and primary power" over land and water
use. Agencies are hereby warned: excessive
nationalism prompts judicial scrutiny.
Since the Bird Rule was deemed incompatible with
the CWA, the justices did not need to consider whether congress could regulate inland ponds and
pits if it jolly well felt like it. But the underlying message
of SWANCC is clear: there would be something deeply suspicious
if Congress used its commerce power to regulate non-navigatable
waters. The current Court-- as evidenced by Lopez and Morrison--is
not terribly fond of the logic of aggregate effects, and SWANCC
is in this tradition. "Twice in the past six years we have reaffirmed the proposition that the grant of authority to Congress under the Commerce Clause, though broad, is not
unlimited," the Chief Justice explains; environmental law
may well be the next area that feels the judicial pinch.
Click here
for the decision
Click here
for commentary by CEI's Sam Kazman, who hopes that SWANCC
ushers in a new era of state-based environmental
protection (from the Endangered Species and Wetlands Report).
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The Federal
Arbitration Act Does not Apply Broadly to State Employment Contracts
Circuit City v. Adams
No. 99-1379 Decided
March, 2001
This case involves two issues: (1) Should an exemption contained in
the FAA be read broadly to cover most state workers and (2) Are arbitration agreements
binding in civil rights disputes? Kennedy, writing for the Court,
rules that a narrow interpretation should be given to the Section 1
exemption, since an "expansive construction" would go
"beyond the meaning of the words Congress used" (and
statutory language, he maintains, takes precedence over statutory
intention.) Since the FAA applies broadly, employers may take all workplace-related disputes to
arbitration as long as employer/employee contracts to this effect were
fairly agreed upon. Workers, then, waive their right to go to
court when they sign arbitration agreements, even in civil rights
disputes.
What about the Equal Employment Opportunity Commission? The
agency argues that it should be able to sue for relief on behalf of workers who are covered by arbitration agreements,
even if the workers cannot bring suit themselves. The Court agreed to
take up the issue next term in EEOC vs. Waffle
House.
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Statutory Construction
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Private Citizens
may not Sue States that do not Intentionally Discriminate Under Title
VI
Alexander v. Sandoval
No.
99-1908 Decided: April,
2001
According to the 1964 Civil Rights Act and its enforcement provisions,
states, cities, and colleges that receive money from the federal
government must comply with federal anti-discrimination rules or risk
losing their funding. The question in Sandoval: can a private individual
sue a state
agency for unintentional discrimination--ie, laws that have a
disparate impact on the state's population) At issue here is the Alabama Department of
Public Safety's state driver's license test. The
test, since the passage of an English-only constitutional amendment in
1990, has been offered in English only. This rule, petitioners argued,
had a disparate impact on Alabama citizens.
Writing for a 5-4 Court, Justice Scalia explains that Congress did not
intend this sort of private lawsuit when it enacted Title VI. Suits
may be brought only for intentional discrimination on the basis of race and national origin
under its provisions; it may not be used to challenge policies that are discriminatory
in effect. "Statutory
intent," he writes, is "determinative."
"Without it, a cause of action does not
exist and courts may not create one, no matter how desirable
that might be as a policy matter, or how compatible with
the statute."
Click here for the decision
Click
here to see how a District
Court has recently attempted to skirt this ruling; resistance may be
futile but Judge Stephen Orlofsky is trying under 42 U.S.C. 1983.
Click
here
for Michael Greve's take on federalism and statutory construction; here
for a recent paper on the topic by General Bill Pryor
Congress
did not Abrogate State Sovereign Immunity under
the ADA
University of Alabama Board of
Trustees v. Garrett
No. 99-1240
Decided: February,
2001
Can
a state be sued, by one of its citizens, without its consent for money
damages?
The issue of state sovereign immunity--and Congress' ability to
abrogate it--has been a favorite federalism question of the Court's
for the last several terms; Garrett takes up this issue in the
context of the 1990 American With Disabilities Act. In
Garrett, the Court overruled Congress's explicit abrogation of States' immunity from suit under Title I of the ADA. Congress's abrogation
power stems solely from its enforcement power under § 5 of the 14th
Amendment, and the Court ruled that the alleged state discrimination against the
disabled was too random to qualify as a
pattern of abuse. Further, the case clarifies the legal status of
disability under the 14th Amendment. Disability is not a suspect
classification, like race, that requires a compelling government
interest when laws have a disparate impact; states are only obligated
to show a rational purpose when their laws inconvenience disabled
citizens. As the Chief explains: "States are not required by the Fourteenth Amendment to make special accommodations for the disabled, so long as their
actions towards such individuals are rational. They could quite hard headedly–and perhaps
hardheartedly–hold to job-qualification requirements which do not make
allowance for the disabled. If special accommodations for the disabled are to be required, they have to come from positive law and not through the Equal
Protection Clause."
Click
here for the decision
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Preemption
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Fraud-on-the-FDA Claims
may not be Raised in State Court
Buckman v. Plaintiffs' Legal Committee
No. 98–1768
Decided: February, 2001
Can companies be sued, in state courts, for defrauding
the Food and Drug Administration? A unanimous Supreme Court says
no: state tort law in this area conflicts, and thus is preempted, by the federal regulatory plan for medical devices
(part of the Food Drug and Cosmetic Act and its later amendments).
Buckman,
like last term's major preemption cases (Crosby v. Trade Council
and Geier v. Honda) demonstrates
that the same justices who are committed to federalism are, in the right
circumstances, also committed to federal supremacy. As
Justice Rehnquist explains, policing fraud against federal agencies is
not a traditional state function, and thus there is no presumption
against a federal agency occupying the field. "The
relationship between a federal agency and the
entity it regulates is inherently federal in character because the
relationship originates from, is governed by,
and terminates according to federal law.”
Further, state tort law interferes with a
"delicate balance" of Agency objectives: "Complying
with the FDA’ s detailed regulatory regime in the shadow of 50 states’ tort regimes will dramatically
increase the burdens
facing potential applicants, who might be deterred from seeking approval of
devices with potentially beneficial off-label uses..."
Click here for the decision
Click here for
Michael Greve's Legal Times article on the "collision
course" between preemption law and federalism
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14th Amendment/Civil Rights
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A Private Association
may be Sued like a Public Agency, Sometimes
Brentwood Academy v.
Tennessee Secondary School Athletic Association
No. 99-901 Decided: February, 2001
In a case with
interesting federalism implications, the Court ruled that a private
association regulating sports competitions in public and private schools
(the TSSAA) can be sued as a state agency by one of its angry
members. (Here, the Brentwood Academy was allowed to sue the TSSAA for
violating its free speech rights through a recruiting regulation.)
When does the activity of a private group, such as the TSSAA,
constitute state action? According
to Justice Souter, the “criteria lack rigid simplicity,” but
“entwinement” is key: "the nominally private character of the
association is overborne by the pervasive entwinement of public
institutions and public officials in its composition and workings.”
The ruling exposes the association, and others like it, to novel
14th Amendment and §1983 legal claims.
Justice Thomas, in dissent, objects to an entwinement
rule that has no basis in text or precedent.
The majority’s holding, he writes, “not only
extends state-action doctrine beyond its permissible limits but also
encroaches upon the realm of individual freedom that the doctrine was
meant to protect.” Private
action, like that if the TSSAA, may be wrongful, but it is not to be
treated as state action.
Click here
for the decision
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Schools may not Exclude
Bible Clubs from Meeting After Hours
Good News Club v. Milford Central School
No.
99-2036 Decided: June, 2001
As part of a national network, the Evangelical Good News Club meets after-hours in elementary schools across the
country. A public school in Milford, New York revoked the Club's
permission to meet, citing concerns about religious instruction as an after-school activity. The question presented to the Court:
must public schools open their doors to religious organizations on an equal basis with all
others? Does the 1st Amendment allow school-by-school discretion on
which groups can and can not meet? The
case pits the free expression claims of the Good News Club against the
Establishment Clause concerns of Milford Central. Complicating the case is the fact that the Club is
designed for children enrolled in grades K-6, an age group particularly susceptible
to suggestion.
On a vote of 6-3, the Justices
decided that neither proselytizing nor the young age of the participants
were enough to trump the Good News Club's First Amendment right to
meet. The Milford ban amounted to impermissible viewpoint
discrimination against private speakers in a public forum. While,
from one perspective, this decision seems hostile to state concerns (why
can't a local school board decide which groups can meet?) it is, in
fact, a decision that encourages state discretion. A "wall of
separation"-type ruling would have prevented schools and local
communities, in the future, from accommodating any activity tinged with
a religious message. Good News Club, like Lamb’s Chapel
and Rosenberger, suggests that religious speech discussing otherwise permissible subjects
should not be summarily banned from the public square.
Click here
for Rick Garnett's Wall Street Journal article, where he argues
that Good News is good news for supporters of vouchers and
charitable choice.
Selected
issues are highlighted in selected cases; neither the list nor
the summaries are intended to be comprehensive
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