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EXPANDING STATES' RIGHTS AT THE COST OF FEDERAL LAW GUARANTEES:
A Review of Judge John T. Noonan's Narrowing the Nation's Power: The Supreme Court Sides with the States


By ELAINE CASSEL


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Friday, Nov. 22, 2002

John T. Noonan, Jr., Narrowing the Nation's Power: The Supreme Court Sides with the States (U. California Press 2002)

John T. Noonan, Jr. is Professor Emeritus at University of California at Berkeley's Boalt Hall School of Law and senior judge of the United States Court of Appeals for the Ninth Circuit. His latest book, Narrowing the Nation's Power, charges the current Supreme Court with stretching the doctrine of sovereign immunity beyond its breaking point.

Due to the Court's interpretation of this ancient rule of law, Noonan argues, many individuals are now effectively foreclosed from seeking redress against states that violate federal laws.

When Justice William H. Rehnquist became Chief Justice in 1986, he made no secret of his agenda for the Supreme Court: to return power to the states. During a thirty-year tenure on the high court (from 1972-2002), he has realized his goals in more ways than one.

Judge Noonan criticizes the case law by which the Rehnquist Court's states' rights goals have been achieved. In his view, the Court - in recent, revisionist opinions - has misinterpreted sovereign immunity, the ancient doctrine that protects the states from suits for violations of federal law. In so doing, he contends, the Court has upset the balance of powers, and usurped power that the Constitution reserves for Congress.

The Governing Law Regarding Sovereign Immunity and Congressional Power

Before examining Noonan's critique of the Court, it is important to review the relevant sources of the doctrine.

The U.S. Constitution's Eleventh Amendment expressly recognizes a partial version of sovereign immunity, for the states. It prohibits citizens from suing a state in federal court - unless the state is their own. (Thus, a citizen of Maryland, for instance, can sue the state of Maryland in federal court, but cannot the state of Virginia there.) Most states have also adopted their own versions of sovereign immunity - limiting, to various extents, the rights of their citizens to sue the state in state court for certain types of torts.

The Fourteenth Amendment declares that born or naturalized Americans have, in effect, dual citizenship--they are citizens of the state of their residence and also of the United States. Accordingly, it proscribes states from making laws that violate the rights of citizens of the United States, and requires that they afford each citizen "equal protection of the laws." (Courts have also interpreted the Amendment to incorporate the Fifth Amendment's "due process" guarantees.) Finally, Section 5 of the Fourteenth Amendment empowers Congress to make laws to enforce all these guarantees.

The Rehnquist Agenda: Reinterpreting Constitutional Guarantees

Noonan devotes a chapter to each of three crucial Rehnquist Court states' rights cases: Flores v. City of Boerne, which struck down the Religious Freedom Restoration Act; Board of Trustees of the University of Alabama v. Garrett, which found the Age Discrimination in Employment Act (ADEA) inapplicable to state employers; and United States v. Morrison, which struck down the 1994 Violence Against Women Act.

Noonan also touches on a number of significant 1990's sovereign immunity cases: Seminole Tribe v. Florida, which refused to make the state of Florida comply with federal gaming laws enacted for the benefit of Native American tribes; College Savings Bank v. Florida Prepaid Postsecondary Education Board, which exempted states from the laws protecting intellectual property of private citizens; and Kimel v. Florida Board of Regents, which held that the ADEA did not apply to Florida International University.

Noonan points out that the Court, in broadening sovereign immunity beyond what the Constitution requires, has, in effect, also rewritten the Eleventh Amendment. The Eleventh Amendment pertains to suits against state governments. But the court has also applied it to state-sponsored activities such as university plans and presses, and college savings accounts.

When States Are Immune and When They Are Not: Proportionality and Congruence

Meanwhile, Noonan notes, the Court has interpreted the Fourteenth Amendment - and in particularly, Congress's enforcement power - as narrowly as it has interpreted the Eleventh Amendment broadly.

Section 5 provides that Congress may enforce the Fourteenth Amendment "by appropriate legislation.'' Before the Rehnquist Court, the court had left Congress to decide for itself what legislation was ''appropriate.'' That is no longer true - now the Court decides what legislation is appropriate for Congress to pass. And this creates an obvious separation-of-powers problem, as Noonan explains.

In order for the Rehnquist Court to "validate" a law enacted under Section 5, "[t]here must be congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end." In addition, there must also be a history of "widespread and persisting" deprivation of rights before states can lose immunity against suit.

Noonan is not alone in his criticism: Justices dissenting in these cases have noted the serious separation of powers issue. For instance, in Garrett, Justice Breyer's dissented because the majority's decision "improperly invades a power that the Constitution assigns to Congress" under Section 5. And in Kimel, Justice Stevens pointed out in dissent, that while the application of sovereign immunity "is supposedly justified as a freestanding limit on congressional authority, a limit necessary to protect States' 'dignity and respect' from impairment by the National Government," it remains the case that "[t]he Framers did not, however, select the Judicial Branch as the constitutional guardian of those state interests."

Is There Any Antidote to the Court's Usurpation of Legislative Power?

So what, if anything can be done - given that these minority justices are unlikely to enjoy a majority on these issues anytime soon (if ever)? Noonan has two suggestions.

First, Congress needs to carefully craft legislation with an eye to satisfying the congruence and proportionality tests. The never-enacted Intellectual Property Act would have been a good example: It would have denied patents (over which Congress has express Constitutional power, pursuant to Article I) to any state that has not waived immunity from infringement suits.

Second, Congress can exert its will by controlling the purse strings. For instance, it can deny federal money (such as highway and education funds) to states that won't comply with its laws.

The Darker Side of the Court's Rulings: Indifference to Individuals' Plights

Noonan suggests that the court's sovereign immunity agenda hides a darker truth: The Court simply does not care about those individuals who have suffered real harm at the hands of their state governments. A similar argument is made by Martin Garbus in his new book, Courting Disaster: The Supreme Court and the Unmaking of American Law, recently reviewed in this space by Kevin Doyle. It's not about sovereignty, Garbus argues; it is about race, class, money, and power.

This agenda - a long time in the making - is also likely to last a long time. President Bush is sure to fill any open Supreme Court seats with youthful and highly conservative justices who will sit on the bench for 40 years or more. (Compare his father's appointment of the youthful Clarence Thomas.) His federal trial and appellate nominees, as well, have tended so far to be both relatively youthful, and conservative - often extremely conservative - in their views. (Miguel Estrada is one case in point.)

In the final analysis, shielding states from suit through the doctrine of sovereign immunity is gravely unjust to citizens who are wronged by their state governments.

To whittle down Congress's power, under Section 5, to enforce these guarantees makes a mockery of them, and of this great and historic Amendment. For while the Amendment guarantees national rights to citizens of all states, under the Rehnquist Court precedent, a state employee in Alabama is not "equal" to a state employee in California, in terms of protection against certain types of discrimination.

Similarly, a patent holder is not on equal footing in all states; some states may comply with intellectual property laws, but some may not, meaning that copyright holders and trademark owners may have their property appropriated (one might say, stolen) by a state with impunity.

The Rehnquist Court, Noonan persuasively argues, has wrongly offered what amounts to an invitation for states to violate federal laws designed to protect its citizens. His work makes clear that this is not only wrong because it leaves victims of violations with no remedy, but also because it severely limits power that properly belongs to Congress, not the Court.

A New Case May Prove Noonan Prescient

Noonan's critique will soon become all the more timely. On November 18, the Supreme Court agreed to take a case that will be the broadest test yet of the rights of the states to ignore federal law. It will hear Medical Board of California v. Hason, in which the state of California is appealing a decision by the U.S. Court of Appeals for the Ninth Circuit.

In the decision, the Ninth Circuit refused to grant California immunity from a suit arising under the Americans with Disabilities Act (ADA). The Court's ultimate decision will have far-reaching ramifications for the many disabled Americans who work for state governments. When it comes down, Noonan's comments may prove prescient.


Elaine Cassel practices in Virginia and teaches law and psychology. She writes and delivers continuing legal education courses in Internet law, privacy, genetics, and health law and is the author of Criminal Behavior (Allyn & Bacon, 2001). She is Chair of the Behavioral Sciences Committee of the ABA Science and Technology Law Section.

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