Constitutional LawSpring 2008Prof. Fischer

Class 16: Limits on Congressional Power to Regulate – Sovereign

ImmunityFeb 13, 2008

Florida Prepaid Postsecondary Educ. Expense Bd. v. College Savings Bank

(1999) [C p. 231]• Patent infringement

action• Involved constitutionality

of abrogation provisions in Patent Remedy Act

• 5-4• Majority opinion written

by Rehnquist joined by O’Connor, Scalia, Kennedy, Thomas

Florida Prepaid Postsecondary Educ. Expense Bd. v. College Savings Bank

(1999) [C p. 231]• Dissenting opinion of

Stevens, joined by Souter, Ginsburg, Breyer

• Unfair decision “even if full respect is giving to the Court’s recent cases.”

• Criticizes Court’s “aggressive sovereign immunity jurisprudence.”

Kimel v. Florida Board of Regents (2000) [C p. 235]

• Consolidated lawsuit vs. state entities brought under Age Discrimination in Employment Act of 1967 by, inter alia, various professors (like the one on the left, Prof. Narz) (“ADEA”)

• State successfully challenged abrogation provisions in ADEA as exceeding congressional power under § 5 of Amendment XIV

• Majority opinion written by O’Connor (joined by Rehnquist and Scalia and, in part, by Kennedy and Thomas)

• Thomas (joined by Kennedy) dissents on the issue of whether Congress has shown a clear intent to abrogate

Kimel v. Florida Board of Regents (2000)[C p. 235]

• Dissent (in part) of Justice Stevens, joined by Souter, Breyer, and Ginsburg (they all concurred as to whether Congress had shown a clear intent to abrogate)

• Eleventh Amendment is only a diversity limit

• Union Gas correctly decided; Seminole wrong

• Criticical of judicial activism• Does not think the judicial

branch should be the guardian of federalism

Board of Trustees, University of Alabama v. Garrett (2001) [C p. 239]

• Lawsuit for money damages for employment discrimination brought by employees of U. of Alabama under Americans with Disabilities Act

• Issue: did congress validly abrogate state sovereign immunity in Title I of the ADA?

• Majority opinion by Rehnquist (joined by O’Connor, Scalia, Kennedy, Thomas)

• No pattern of unconstitutional violation

• Even if there were, ADA fails Boerne congruence and proportionality requirement

Board of Trustees, University of Alabama v. Garrett (2001) [C p. 239]

• Dissent by Breyer, joined by Stevens, Souter, Ginsburg

• Argues for judicial deference to the rational conclusion by congress that the remedy was an appropriate way to enforce equal protection

• Ample evidence of discriminatory treatment of disabled by state and local government

Nevada Dep’t of Human Resources v. Hibbs (2003) [C p. 246]

• State employees sued for money damages, injunctive, and declaratory relief for State’s failure to comply with FMLA

• Issue: could congress abrogate state sovereign immunity under § 5 of Amendment XIV?

• Majority opinion by Rehnquist, joined by O’Connor, Ginsburg, Souter, Breyer

• Stevens and Souter (joined by Ginsburg and Breyer) concurred

Nevada Dep’t of Human Resources v. Hibbs (2003) [C p. 246]

• Dissent of Kennedy, joined by Scalia and Thomas

• No pattern of unlawful conduct shown in evidence that would be enough to justify abrogation of sovereign immunity

• Even if gender is subject to heightened scrutiny, that doesn’t take away need to identify history and pattern of discrimination

Nevada Dep’t of Human Resources v. Hibbs (2003) [C p. 246]

• Dissent of Scalia

Tennessee v. Lane (2004) [C p. 251]

• Case brought by disabled Tennessee residents alleging that TN violated Title II of ADA by failing to make courthouses accessible to those who use wheelchairs

• Did Congress validly abrogate state sovereign immunity?

• Majority opinion by Stevens, joined by O’Connor, Souter, Ginsburg, Breyer

Tennessee v. Lane (2004) [C p. 251]

• Concurrence of Ginsburg, joined by Souter and Breyer

Tennessee v. Lane (2004) [C p. 251]

• Dissent of Rehnquist, joined by Kennedy and Thomas

Tennessee v. Lane (2004) [C p. 251]

• Dissent of Scalia• Proposes new test to

replace “congruence and proportionality” test except in cases of race discrimination (McCulloch standard)

United States v. Georgia (2006) [Supp. 44]

• Unanimous• Scalia wrote majority

opinion

Alden v. Maine (1999) [C p. 258]

• Majority opinion by Justice Kennedy (joined by Rehnquist, Scalia, Thomas, O’Connor]

• Could Congress abrogate state sovereign immunity pursuant to Art. I powers in state courts?

Alden v. Maine (1999) [C p. 258]

• Dissent by Souter (joined by Ginsburg, Breyer, Stevens)

Federal Maritime Commission v. South Carolina State Port Authority (2002) [C

p. 268]• Could nonconsenting

states be sued in federal agency proceedings?

• Majority opinion written by Thomas (joined by Rehnquist, O’Connor, Kennedy, Scalia)

Federal Maritime Commission v. South Carolina State Port Authority (2002) [C

p. 268]• Dissenting opinion

written by Breyer, joined by Stevens, Souter, Ginsburg