Hibbs case: Introduction

In the Hibbs case, the Supreme Court upheld a provision of the federal Family and Medical Leave Act which allowed State employees to sue State governments for money damages for violations of the Act. Nevada Dept. of Human Resources v. Hibbs 538 U.S. __ (2003) (Slip Op. filed May 27, 2003).

Mr. Hibbs took time off to care for his sick wife, as the law allows, but lost his job as a result. When he complained that this was illegal, his supervisor told him to go ahead and sue: it would not do him any good because the State of Nevada had sovereign immunity.

This case has implications well beyond Mr. Hibbs' job. It goes against a trend in the United States Supreme Court to exempt States from federal law. While it is not surprising that the Supreme Court finally decided a case in favor of a State employee, it is surprising is that they decided to draw the line with the Family and Medical Leave Act. The Family And Medical Leave Act can be characterized as an "entitlement" progam or social welfare legislation, rather than a law which protects basic civil rights. While I am a liberal, and thus approve the result, I think the conservative minority had the better argument. To understand what's at stake, you need to first become acquainted with the United States' law of sovereign immunity as applied in recent cases.

The law I discuss in this writeup is peculiar to the United States of America, but it may be of interest to students of political science elsewhere. Some tout the federal form of government as a panacea for countries like Iraq, with oppressed minority populations demanding more autonomy. Clearly, however, building a federal government is one of those things more easily said than done: there is more to it than simply dividing up territory into local sub-units. I would not assert that the United States' way is the "right" way to maintain a federal government, but the United States has at least confronted the problems over a considerable period of time.

Sovereign Immunity: The Eleventh Amendment.

In the spirit of the Enlightenment, under the ideals of the American Revolution, and in the text of the Preamble to the Constitution, "the People" are the sovereign. "The People" ordained and established the Constitution. An early Supreme Court decision, Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 1 L.Ed 440 (1793) held that Article III of the United States Constitution (which established the judicial branch of the government), coupled with the Supremacy Clause of Article VI (which provides that federal laws are "supreme law of the land" and overrule state laws), abrogated state sovereign immunity in federal court. Chisholm v. Georgia confirmed that the common-law doctrine of sovereign immunity was inconsistent with revolutionary ideals, and would not be carried forward in the new republic.

As wonderful as that sounds, it's not very practical. Moreover, it may be more consistent with "revolutionary ideals" -- such as "No taxation without representation!" -- to recognize some form of sovereign immunity. The theory supporting immunity is not the divine right of kings but rather a democratic observation that questions of government finance should be resolved by the duly-elected legislative branch, not the unelected judicial branch of government. When a money judgment is entered against a State, it amounts to a tax on the people. In Chisholm v. Georgia, for example, the issue was government debt to private individuals. State governments simply did not have the money to pay off the debts that they incurred during the revolutionary war, and taxes would have to increase to pay any such money judgments to private lenders. This would have been disastrous for the recovering post-war economy of the new nation.

The State legislatures quickly responded to the Chisholm case by passing and ratifying an amendment to the Constitution --the first after the Bill of Rights-- prohibiting citizens of one state to sue another state in federal courts. Since then, the Eleventh Amendment has been expanded by case law into a full-blown denial of government accountability worthy of a any despotic European monarch who had never been forced to sign Magna Carta. Current doctrine is so far removed from the text of the original Amendment that Justice Stevens, in his concurring opinion, can refer jokingly to a "second" Eleventh Amendment. The "second" Eleventh Amendment is a common-law rule: a rule created by judges in case law. It now applies to all kinds of cases and at all levels: both state and federal court systems.

On the other hand, historical developments have given the federal Congress powers over the States which were never anticipated by the Founders (and probably would have horrified the anti-Federalists like Thomas Jefferson). These developments came in response to two great crises: the Civil War in the 19th Century and the Great Depression in the 20th Century

Equal Protection and "Appropriate" Legislation under the Fourteenth Amendment

State governments will never again be entirely free of federal interference, thanks to the American Civil War and the Fourteenth Amendment. The 14th was one of three post-Civil War amendments, sandwiched between the 13th (abolishing slavery) and the 15th (guaranteeing voting rights to black people). Section One of the 14th Amendment prohibits the States from denying any citizen due process and equal protection under the law. Section Five explicitly gave the federal Congress power to enact "appropriate legislation" to enforce the amendment.

Thanks in part to the cowardice of the Supreme Court in the case of Plessy v. Ferguson (but perhaps due more to the need for the support in the Southern States in national politics) most of the promise of the 13th, 14th and 15th Amendments was not realized until the civil rights movement, one hundred years after the Civil War.

In the meantime, the federal government had arrogated to itself greatly expanded powers to meet the crisis of the Great Depression. While the Supreme Court initially resisted the expansion of federal laws, noting that Congress' powers under the Constitution were limited, it was eventually forced to face the reality that economic problems were national problems.

Congress' (formerly) "Plenary" Powers under the Commerce Clause

In the midst of national recovery and mobilization in World War II even the extremely conservative Supreme Court was eventually forced to acknowledge that national economic problems pervade all aspects of life in a modern industrial nation. If Congress had "plenary" (meaning "full") power under the Commerce Clause, as the Constitution seemed to indicate, then the subjects of possible federal legislation were theoretically unlimited. This led to the following exchange in my Constitutional Law class:

LAW PROFESSOR: Are there any limits to Congress' power under the Commerce Clause? Mr. H?
ME: No, sir. Congress has plenary power.
LAW PROFESSOR: And just how plenary is plenary, Mr. H?
ME: Pretty fucking plenary, sir.

Some of my friends from law school still giggle about that, but when we took the bar exam, none of them forgot that Congress had plenary power to regulate anything, anywhere. Alas, this story now dates me, because Congress' powers under the Commerce Clause are no longer "pretty fucking plenary", following a series of cases reinterpreting of the Commerce Clause in the 1990's.

The first of these new Commerce Clause cases was the "Gun Free School Zone" case. United States v. Lopez, 514 U.S. 549 (1995). In Lopez, the Court held that Congress, while it could regulate interstate commerce in guns, and could regulate education when it had an effect on interstate commerce, these powers did not combine to form a power to enact "Gun Free School Zones", which everyone agreed should be a matter for local governments. After Lopez, the Commerce Clause does not extend to non-economic activities that lack a direct and substantial effect on interstate commerce.

In a subsequent Commerce Clause case, the Court held that Congress didn't have the authority --under either the Commerce Clause or the Fourteenth Amendment-- to authorize private civil lawsuits against perpetrators of gender-related crimes. United States v. Morrison, 529 U.S. 598 (2000). Section 13981 of the Violence Against Women Act gave women a civil remedy for gender-related crimes of violence (such as rape). A rape victim could sue the perpetrator for money damages. Damages are not awarded to victims in criminal cases. (Restitution normally applies only to property crimes, and would not include things like punitive damages. In criminal cases, punishment is meted out in jail time, not dollars.) Despite a "mountain of data" compiled by Congress, detailing the history and seriousness of the problem of gender-related violence, and how traditional criminal laws and law enforcement had failed to address the problem, the Court's majority held that private lawsuits for damages were neither necessary nor appropriate to ensure that women receive equal protection of the law. The part of the Morrison case worth recalling here is the Fourteenth Amendment analysis: it was not "appropriate" for Congress to enforce equality for women by giving them lawsuits against rapists.

The States as Employers: the Garrett and Kimel cases

As long as Congress had "pretty fucking plenary" power under the Commerce Clause to justify any sort of federal intrusion into local affairs, the federal Congress was in the driver's seat for decisions regarding sovereign immunity. If Congress decided that State governments were going to be subject to lawsuits, that pretty much ended the inquiry.

Then in Seminole Tribe of Fla. v. Florida, 517 U. S. 44 (1996), the Court held that the Commerce Clause did not give Congress the power to abrogate State sovereign immunity. After Seminole, the only ground for abrogating State sovereign immunity was Section 5 of the Fourteenth Amendment, and that was limited to enforcing the Equal Protection Clause. Despite its apparent breadth, the Equal Protection clause does not really mandate perfect equality among all citizens, but rather only prohibits unequal treatment based on race or things like race. The stage was therefore set for wholesale slaughter of State employee's rights.

First to go were federal fair wage and overtime laws. Alden v. Maine, 527 U.S. 706 (1999) State employees now have to rely on State law (or more realistically, their union contract) for fair wages and overtime pay. The Court then removed the ability to sue States for age discrimination under the Age Discrimination in Employment Act ("ADEA"). See, Kimel v. Florida Board of Regents, 528 U.S. 62 (2000). Age discrimination just isn't a Fourteenth Amendment issue: it doesn't fall into the same category as race discrimination: it isn't all pervasive and is mostly limited to certain pernicious employment practices (which are outlawed by the ADEA). Thus, while Congress may have had Commerce Clause power to regulate the employment practices of private employers, that power does not extend to allowing state employees to sue the States. Next, the Court came to similar conclusions with respect to disability discrimination and the Americans with Disabilities Act ("ADA"). Board of Trustees of the University of Alabama v. Garrett 531 U.S. 356 (2001). In each of these cases, the Court left the underlying law intact. You can still sue private employers for age discrimination or disability discrimination. It is still illegal for States to engage in any practices prohibited by the ADEA or the ADA. Enforcement against State governments is limited, however, to public lawsuits brought by the federal government. No private lawsuits for money damages are allowed.

These cases are just the tip of the iceberg. In the lower courts, State governments now take the position that they are immune from all lawsuits brought under federal law. Given this scorched earth approach, it was inevitable that the Family and Medical Leave Act would come under review by the Supreme Court.

The Family and Medical Leave Act

In most civilized countries, the Family and Medical Leave Act ("FMLA") would be unnecessary. In quasi-socialist Europe, it must seem absurd and barbaric to need a law which guarantees a mere 12 weeks of unpaid leave from work for the birth of a child. The part of the world controlled by large American corporations, however --and the FMLA only applies to large employers, with 50 or more employees-- is far from civilized.

Most important, FMLA requires the employer to give your job back when the leave is over. Otherise, large American employers have a hard time understanding family leave as anyting other than quitting your job (they're always happy to recognize your "right" to "quit" your job). Finally, FMLA was intended to "level the field" between female employees (who were more likely to take time off for childbirth or family emergencies) and male employees, by granting all employees the right to time off. It was no longer more "risky" to train female employees, nor could discrimination be based on a prospect that female employees were more likely to be "disloyal" to the company by taking time off. (Ironically, FMLA does nothing about the "glass ceiling" which makes it hard for women to advance into management, since FMLA does not apply to management-level employees).

How is Hibbs distinguishable from Garrett and Kimel?

It isn't, really. It seemed inevitable that the right to sue States under the FMLA would get shot down just like it did under the ADEA and ADA. The Fourteenth Amendment does not require employers to grant leave from work. There is no provision of the Constitution which guarantees gender equality (the Nineteenth Amendment only gives women voting rights, and a proposed Equal Rights Amendment was not ratified). The Court however, ruled that the FMLA was "appropriate legislation" under the Fourteenth Amendment. Why?

Gender discrimination is given special treatment under Equal Protection doctrine. "Sex" has an "intermediate" position between laws based on race and other categories (age, disability). This seems like a reasonable basis to distinguish precedent until you recall that in the Morrison case, the Court struck down a gender equality law which allowed rape victims to sue. Did the Court just forget, when it decided Morrison, that gender equality has this special status?

The very features of the FMLA which limit its effectiveness are precisely the features which the Supreme Court likes about FMLA and which, in the Court's opinion, make FMLA an "appropriate" exercise of Fourteenth Amendment powers. Rather than a clear principle of law, what emerges from this case is an arbitrary, "I know it when I see it" rule for determining when Congress goes "too far" against the States. Mandating maternity leave is "OK", as long as it is done in a cheap and extremely limited fashion, but allowing women to sue rapists "goes too far". If Congress offends five (5) out of nine (9) Justices, it went "too far". History is generally unkind to the Court when it crafts arbitrary rules like this.

Update: analysis worth quoting

Edward Lazarus, a California lawyer, professor and commentator for Findlaw's web opinion page "Writ", offers this "strategic explanation" for Chief Justice Rehnquist's decision to buck the trend and vote to uphold the FMLA against a sovereign immunity challenge:

It was obvious that Stevens, Souter, Breyer, and Ginsburg were going to uphold the FMLA, based on their prior opinions. During deliberations, it may have become clear to Rehnquist that O'Connor agreed with them - creating a 5-4 majority in favor of that result.

Unless Rehnquist joined that majority, Justice Stevens - based on seniority - would have the power to assign - and thus, if he so chose, to write - the opinion. It would likely have been a broad opinion cutting back on the states' rights approach Rehnquist has spent his entire career championing.

No wonder, then, that Rehnquist switched sides. Once he had done so, based on seniority, he was able to assign the opinion to himself, and write it narrowly.

This kind of strategy is effective, but ultimately damaging to the Court. In this instance, it added instability and incoherence to an already profoundly troubled area of the law. And within the Court itself, this kind of strategic voting surely must further fray the bonds of mutual trust and respect that are essential to the culture of a collegial Court - especially one so ideologically divided.

• http://writ.news.findlaw.com/lazarus/20030612.html