Congress’ Power To Authorize Suits Against States - Constitutional

Chisholm v. Georgia (1793): merchant sells supplies to Georgia and Georgia fails to pay

1. Held: a citizen of South Carolina can sue the State of Georgia. The Court held that supreme or sovereign power was retained by citizens themselves, not by the "artificial person" of the State of Georgia.

2. Reaction = adoption and ratification of the 11th amendment

Hans v. Louisiana (1890): Hans filed suit to insure that his bonds were valid

1. Held: 11th amendment invalidated citizens right to sue their own state.

Debate about meaning of 11th amendment

1. flatly prohibits federal court jurisdiction over all suits against states (the current view of the Court)

2. prevents only diversity jurisdiction, not federal questions jurisdiction

Three ways around state sovereign immunity

1. Pursuant to Ex Parte Young (1908) (railroad share holders sue attorney general of Minnesota to prevent his enforcing a law that regulatd railroad prices), state officers can still be sued for injunctive relief

2. States can waive their Eleventh Amendment sovereign immunity

3. Pursuant to Section 5 of the Fourteenth Amendment, Congress can abrogate state sovereign immunity and authorize private suits against the State

Fitzpatrick v. Bitzer (1975) – Whether the CRA of 1972, which authorized suits against state governments for employment discrimination is a valid exercise of congressional authority under Section 5 of the 14th amendment.

1. Held: Civil Rights Act of 1972 (authorized suits against state govt. for employment discrimination) is a valid exercise of congressional authority under Section 5 of 14th Amendment.

   1. Section 5 essentially amended the 11th amendment

   2. Congress can authorize suits against states via its Section 5 authority

Pennsylvania v. Union Gas (1988)

1. Plurality Held: Congress may abrogate sovereign immunity using its Commerce Clause Power

Seminole Tribe of Florida v. Florida (1995) – Seminole Tribe brought suit against Florida for violating good faith negotations requirement of the Indian Gaming Regulatory Act.

1. Held: Congress cannot abrogate state sovereign immunity pursuant to its power under the Indian Commerce Clause

   1. Such a violation of state sovereignty has to be pursuant to a valid exercise of congressional power

   2. Section 5 of 14th amendment is valid basis

   3. Commerce Clause is not a valid basis (overrules Union Gas)

      1. the opinion in Union Gas was fractured and was irreconcilable with Hans v. Louisiana

2. Held: Ex Parte Young’s ruling does not justify Tribe’s suit aginst Floriday’s governor in because certain IGRA provisions specifically prohibit it.

3. Dissent

   1. Souter

      1. Chisholm held that there was no immunity in diversity cases

      2. Eleventh Amendment gave states immunity in diversity cases only

      3. Hans v. Louisiana was wrongly decided because it assumed that states had immunity under federal questions jurisdiction

      4. Inappropriate to transform a common law rule into a constitutional rule

How far does Section 5 extend?

1. This determination will impact how much jursidction congress can give to courts to adjudicate suits against states for violations of federal statutes

   1. Congress has increased authority to do so when aggrieved party, interest, or group is one that receives “heightened scrutiny” under the Amendment

2. Congress’s burden in justifying prophylactic laws enabling citizens to sue states under Section 5 is inversely related to the burden that states must carry in passing the discriminatory laws in the first place

   1. If States are only required to show a rational basis for the law, Congress’s burden to justify a law under Section 5 is high

   2. If States are required to show that the law is supported by a compelling interest and narrowly tailored (strict scrutiny), Congress’s burden to justify a law under Section 5 is low

Nevada Dep’t of Human Resources v. Hibbs (2002) – employee seeks leave to care for hiw wife under FMLA, which entitltes elgibile employees to take up to 12 workweeks of unpaid leave annually for the onset of ‘serious health condition’ in employee’s spousde. FMLA approved the leave, then gave notice after 12 weeks that he must return. He did not and was fired.

1. Held: State employees can bring suit against state for money damages for violation of federal Family Medical Leave Act

   1. Valid exercise because 1) gender classifications receive heightened scrutiny; 2) burden on congress to justify prophylactic legislation under Section 5 is less

      1. Congress met burden by cataloguing evidence of discriminatory family leave programs (more leave given to women)

      2. Different treatment is “not attributable to any differential physical need of men and women, but rather the pervasive sex-role stereotype that caring for family members is women’s work

   2. Distinguishing Garrett (disability-based classifications) and Kimel (age-based classification)

      1. Burden on states to enact these laws is low – only have to show a rational basis for disability and age classifications

      2. Burden on Congress to enact prophylactic laws under Section 5 is therefore much higher – must show a broad pattern of irrational discrimination

2. Dissent: Scalia – we should have evidence that this violates the right of population of each state that this holding applies to

Tennessee v. Lane (2003) –...