More On The Supreme Court's Most Recent Term:
Four Important Federalism Rulings, and What They Mean

By VIKRAM DAVID AMAR

Thursday, Jul. 22, 2004

Note: This column is Part Two of a series looking at the recently concluded Supreme Court Term. - Ed.

In my last column, I talked about a lot of cases from the recently concluded Supreme Court Term in which the Court really didn't do much of anything, and one case - Blakely v. Washington - where the Justices unexpectedly did a lot.

In today's column, I will address a group of decisions from the high Court that were somewhere in between - not pathbreaking, but nonetheless intriguing. They all fall into an area of continued interest to watchers of the Rehnquist Court: federalism.

There were at least four (and perhaps more) noteworthy federalism rulings this year. I will review each.

Federal Courts Can Enforce Consent Decrees Against States

Most Court watchers know that the Supreme Court has construed the Eleventh Amendment to the U.S. Constitution to embody a principle of sovereign immunity enjoyed by each State. The notion is that a state governmental unit or entity may not be sued in federal court except in certain circumstances.

Suit is permitted if the State consents to be sued. Or, suits can go forward if Congress passes a statute removing state immunity, and Congress has Constitutional authorization to do so.

One case this Term, Frew v. Hawkins, concerned primarily the former of the two circumstances. There, a lawsuit was brought against state officials in federal court, alleging that the State and its agents were not complying with federal statutes. The state officials agreed to settle the case by entering into a judicially-blessed consent decree.

Under the consent decree, the plaintiffs discontinued the lawsuit in exchange for a promise by the State to take certain actions. (A "consent decree" is so called because it is based on the parties' consent to a settlement and because the court issues a decree formalizing the settlement and giving the agreement the status of a court order.)

After the state officials failed to live up to the terms of the consent decree, the federal court was called upon to enforce the terms of the promise. The state officials then complained that enforcement would violate the Eleventh Amendment. In other words, they went back on their (or their predecessors') bargain.

The Court, unsurprisingly, held the State to its agreement. This result is eminently wise. By agreeing to the terms of the settlement that were embodied in the consent decree, the state officials effectively waived any Eleventh Amendment immunity the State enjoyed. And it should make no difference that the terms of the consent decree entitled the plaintiffs to obtain more in the way of relief than they might have obtained had they won at trial and gotten a judge-imposed remedy after establishing liability.

After all, parties (including state officials) who settle cases by entering into consent decrees often give up significant concessions, for fear that the consequences of going to trial could be worse. If plaintiffs who sue States or state officials can't rely on settlement deals the state officials make, then none of these cases could ever settle, and everything would always go to trial - a result nobody wants.

This ruling, which signaled the triumph of practical common sense, was unanimous.

When a State Is a Creditor in a Bankruptcy Proceeding, There's No Eleventh Amendment Issue

Practical common sense also explains another Eleventh Amendment ruling this year - the Court's decision Tennessee Student Assistance Corp. v. Hood.

There, an individual had declared personal bankruptcy. Among the individual's creditors was the State of Tennessee, which had been involved in the provision of student loans. The question was whether the federal bankruptcy action was a federal action against a State for purposes of state sovereign immunity. In other words, did the Eleventh Amendment apply?

The Court sensibly said no. The State - a creditor in the action, seeking assets from the bankruptcy estate - was not really a civil defendant over whom the federal court was exercising power. It was true that when assets were disbursed to other creditors, the assets wouldn't be going to the State. But the case was really about the assets of the bankrupt person, and not a suit against the State for purposes of the Eleventh Amendment.

Congress Had Power to Enact Title II of the ADA

A more intellectually interesting and complicated federalism case this past Term was Tennessee v. Lane - part of which I addressed in a prior column.

There, the Court upheld Congress' enactment of Title II of the Americans with Disabilities Act (ADA) -- at least as that law applies to disabled persons who seek access to courts - and permitted plaintiffs to sue States in federal courts to enforce this part of the ADA.

As I wrote earlier, Lane - along with last year's decision in Nevada Human Resources Dept. v. Hibbs - widens Congress' power to pass laws under the most important of its Reconstruction enforcement provisions, Section Five of the Fourteenth Amendment.

In particular, Lane and Hibbs together give license to Congress to consider much more evidence than previous cases had suggested - evidence of State misbehavior -- as a basis for national action.

Today, however, I will focus on the sharp disagreement in Lane between the majority opinion and Chief Justice Rehnquist's dissent (joined by Justices Kennedy and Thomas.)

The Importance of the "Facial" Versus "As Applied" Distinction

In his dissent, the Chief Justice chided the majority for focusing on courtroom access in particular -- rather than focusing on the entirety of the "public programs" covered by the text of Title II of the ADA.

In essence, Chief Justice Rehnquist argued as follows: Let us assume States have been violating the Constitution in a way that Congress can remedy when they have refused to accommodate disabled persons who seek to be in court (which the Chief Justice said was not necessarily true.) Certainly States are not violating the Constitution in a way Congress can redress when they fail to accommodate disabled persons in other public programs, like public hockey arenas. And what the Court should be looking at, the Chief suggested, is not this single application - courtroom access - but the whole range of possible applications of the statute.

In more formal legal terms, Chief Justice Rehnquist was suggesting this case be treated not as an "as applied" challenge but as a "facial" challenge - meaning a challenge to what all the applications of the statute, on its face, could have been.

Why, readers may ask, does the label matter? The answer is that based on the label, different standards apply.

Suppose Chief Justice Rehnquist is right, and the case should be viewed as a facial challenge. Then the Court should look to whether the Congressional statute, as a whole, is a "congruent and proportional" remedy to state lawlessness across the entire range of "public programs" states offer and that are covered by Title II, as written.

What's the answer? The Chief Justice suggested that this inquiry would result in the conclusion that the statute is too broad. A look at the entire range of public programs would reveal a large number of "innocent" public programs (such as the public hockey rink) -- in which failure to accommodate disabled persons did not violate the Constitution. With so many "innocent" programs, and so few "guilty" ones - such as courthouses - Chief Justice Rehnquist suggested the statute went too far.

But suppose, instead, that the majority was right, and that we should focus only on the public program at issue in this case (involving the right to courtroom access) and other public programs that implicate similar "fundamental constitutional rights" (like the right to vote, serve on juries and marry). This approach says: Forget about the hockey rinks, and look at whether Congress can ensure that States provide disabled persons access when crucial rights are at issue. Now it doesn't look like Congress went too far, after all.

In sum, both approaches ask whether Congress' exercise of power is proportional and congruent to state lawlessness with regard to the disabled. But each defines differently both what counts as "Congress' exercise of power" and what counts as "lawlessness with regard to the disabled." And obviously, when one compares two sets to see if they are proportional to each other, it matters greatly what, exactly, is in those two sets.

A Bribe to A Local Official Can Be A Federal Crime

The final noteworthy federalism case from last Term, Sabri v. United States, did not relate to the Eleventh Amendment. It related instead to the limits of federal criminal power - which in this case came from Congress's Article I power to legislate.

In Sabri, the defendant there was charged with a federal crime: Bribing a state or local governmental official (here, a Minneapolis councilman) who worked for an entity that received more than $10,000 in federal funding.

But could such actions even be a federal crime at all? There was no clear interstate activity. And the federal statute didn't require that the bribe have anything to do with the federal funding. Was there a sufficient federal "nexus"?

The Court - almost unanimously - said yes. It held that Congress acted permissibly and reasonably in wanting all recipients of federal funding to be honest stewards and thus bribe-free, whether or not the bribes related to the federal funds. As the Court explained, Congress does not need to wait until federal funds are actually misused to act prophylactically in order to prevent any reasonable likelihood of their misuse.

Another "Facial"/"As Applied" Issue Divides the Court

The Court also added, in a parting shot, that Mr. Sabri was wrong on the facts: The indictment against him did in fact allege that his bribery involved federally-funded programs. So, the Court suggested, the statute was plainly constitutional "as applied" to him.

Nor was the Court receptive to a "facial" challenge from Sabri - what the Court termed here an "overbreadth" challenge. Such a challenge asks the Court to strike down a statute because it has lot of unconstitutional applications - even if the application to the particular challenger was perfectly constitutional.

Such challenges, the Court noted, "are especially to be discouraged," and have been allowed in "relatively few settings." The Court said that "outside of these limited settings, and absent a good reason, we do not extend an invitation to bring overbreadth claims."

In a concurrence, however, Justice Kennedy - joined by Justice Scalia - disagreed with this, and argued that "facial" challenges should still be welcome in the federalism context. There, he noted, "the Court [has in other federalism cases properly] resolve[d] the basic question whether Congress, in enacting the statutes challenged there, had exceeded its legislative power under the Constitution."

The Facial/ "As Applied" Contrast in the Justices' Positions

In the federalism cases of Lane and Sabri, liberal justices preferred an "as applied" inquiry focusing only on the facts of the particular cases. But conservative justices urged the alternative of a broader "facial" inquiry as to all possible applications of the statute. This seems like an inversion of what we would ordinarily expect.

Who is right in this debate? The answer to that depends in large part on one's theory of federalism. In later columns, I will explain some of the arguments on both sides, and also preview a pending Supreme Court case in which the issue may arise yet again.


Vikram David Amar is a professor of law at the University of California, Hastings College of Law in San Francisco. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author of the Cohen and Varat constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.

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