States' Rights vs. States' Immunity

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The recent U.S. Supreme Court ruling on state immunity from ADA suits is being characterized as a victory for states’ rights.

As one of my law school professors once noted, most journalists who cover the Supreme Court are not lawyers. It shows.

Special interest groups and the media have grossly mischaracterized the court’s ruling in Board of Trustees of the University of Alabama v. Garrett. Whether such mischaracterization is intentional or merely ignorant is a separate topic. (Click here for the FindLaw version in HTML or here for the official Supreme Court version in PDF).

At the trial level, the state of Alabama asked the court to rule in its favor on the ground that

the federal statutes invoked…cannot apply to a state…and that, despite Congressional intent to abrogate the state’s Eleventh Amendment immunity, Congressional intent in that regard exceeds its constitutional authority. Garrett v. Board of Trustees of University of Alabama, 989 F. Supp. 1409, 1410 (N.D. Ala. 1998).

The trial judge ruled in favor of Alabama, writing that

Congress cannot stretch Section 5 and the Equal Protection Clause of the Fourteenth Amendment to force a state to provide allegedly equal treatment by guaranteeing special treatment or "accommodation" for disabled persons, as is purportedly required of states in the two statutes in question. 989 F. Supp. 1409, 1410 (N.D. Ala. 1998).

The 11th Circuit Court of Appeals, however, overturned the trial court ruling, and Alabama appealed to the Supreme Court.

According to the Supreme Court, the issue in the case is "whether Congress acted within its constitutional authority by subjecting the states to suits in federal court for money damages under the ADA." (The 11th Circuit framed the issue as "whether a state is immune from suits by state employees asserting rights under certain federal laws"). 193 F.3d 1214, 1216 (11th Cir. 1999).

There are four reasons why the case made it to the U.S. Supreme Court.

First, the federal Congress has only those powers which are spelled out in the Constitution. If the power is not given to Congress in the Constitution, then Congress does not have that power. It does not matter if the desired power is a good thing or a bad thing. The Congress can only do what the Constitution allows it to do. The court, then, had to examine whether the questioned provision of the ADA was within the delegated powers of Congress.

Second, the 11th Amendment states that "The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." Thus, even if Congress had the power to promulgate the relevant section of the ADA, it might turn out that the 11th Amendment prevents the ADA from applying to the states. Congress, it turns out, explicitly stripped the states of sovereign immunity for suits under the ADA.

Third, according to the legal doctrine known as "sovereign immunity," a government may not be sued unless the government consents to be sued. The rationale for this doctrine is that the government would be unable to perform its governmental functions if it could be sued like a private person. (The defects of this philosophical justification of sovereign immunity is a separate topic).

Sovereign immunity, by the way, is not some new invention of the Supreme Court or the drafters of the 11th Amendment. Like the bulk of American legal concepts, sovereign immunity was developed by English courts. After the American colonies seceded from Mother England, they did not recreate the law from scratch.

(The 11th Circuit explains the immunity issue as follows: "Although generally called Eleventh Amendment immunity, which amendment simply bars a federal court from hearing claims against a state by a citizen of another state, it has long been recognized that each state is a sovereign entity in our federal system and is not amenable to suit by an individual without its consent.") 193 F.3d 1214, 1216 (11th Cir. 1999).

Fourth, the case was heard by the high court because the federal circuit courts of appeals were split on the issue of whether the ADA applied, in its entirety, to the states. To remove confusion, the court handed down one rule for all federal jurisdictions.

Ultimately, the U.S. Supreme Court ruled that states were immune to suits under certain portions of the ADA.

In particular, the court found that "in order to authorize private individuals to recover money damages against the states, there must be a pattern of discrimination by the states which violates the Fourteenth Amendment." As the court continues,

The ADA…forbids "utilizing standards, criteria, or methods of administration" that disparately impact the disabled, without regard to whether such conduct has a rational basis. 12112(b)(3)(A). Although disparate impact may be relevant evidence of racial discrimination, see Washington v. Davis, 426 U.S. 229, 239 (1976), such evidence alone is insufficient even where the Fourteenth Amendment subjects state action to strict scrutiny.

In other words, the mere fact that a given law has a greater effect on one group of the population than on another group is insufficient, on constitutional grounds, for striking down that law.

Following the same reasoning, the court found the ADA to be inapplicable to the states because the ADA would require the states to avoid disparate impacts which had not been shown to result from animosity; states would have to perform accommodation measures which would hinder the states’ abilities to fulfill their public functions.

The case is a victory for states’ rights in only a superficial sense: the case reduces the ways in which a state can be sued.

The case is not a victory for states’ rights in a meaningful sense: the Supreme Court does not address the right of states to opt out of the Americans With Disabilities Act by nullifying the federal statute in question.

Instead, the decision merely follows established 11th and 14th Amendment jurisprudence in holding that states are immune from suit under certain provisions of the ADA. (Note: the "established 14th Amendment jurisprudence" mentioned above means the 14th Amendment jurisprudence established after the perversion of the amendment, which has been well-documented by Raoul Berger, into a tool of federal and judicial social engineering. Of course, as Gene Healy points out, the amendment was never properly ratified).

Despite the "states’ rights" headlines, then, the Supreme Court is not sanctioning secession. (Why the media must trot out its caricature of the Confederate States of America whenever federal power is reduced, even by a hair, is another topic).

At most, the stakes in Garrett were those treated by John Marshall in Marbury v. Madison, namely, whether the court or the Congress is the ultimate interpreter of the Constitution. As Rehnquist writes,

to uphold the Act’s application to the States would allow Congress to rewrite the Fourteenth Amendment law laid down by this Court in Cleburne. Section 5 [of the 14th Amendment] does not so broadly enlarge congressional authority.

The majority opinion rightly points out that the limitation of the ADA to its constitutional bounds does not mean that disabled persons have no legal recourse in the event of discrimination. As the court writes in footnote nine on page 16 of the slip opinion,

Title I of the ADA still prescribes standards applicable to the States. Those standards can be enforced by the United States in actions for injunctive relief under Ex Parte Young, 209 U.S. 123 (1908). In addition, state laws protecting the rights of persons with disabilities in employment and other aspects of life provide independent avenues of redress.

In this regard, the court earlier notes in footnote five, on page 10 of the PDF version, that

It is worth noting that by the time that Congress enacted the ADA in 1990, every State in the Union had enacted such measures. At least one Member of Congress remarked that "this is probably one of the few times where the States are so far out in front of the Federal Government, it’s not funny."

In other words, although the states had already taken the initiative in requiring that disabled persons be accommodated, the federal government simply had to get into the act. Although state laws already created the desired substantive rights for disabled persons, the federal government could not pass up a photo op.

Not funny, indeed.

Despite these facts, those who cannot imagine a world which operates in any fashion other than dictates from Washington, DC, are predictably outraged.

"We haven’t seen any judicial state of mind like this" since the court tossed New Deal laws, said University of Virginia law professor A.E. Dick Howard to the Washington Times. (My God! Next stop — the Stone Age!).

Professor Erwin Chemerinsky of Southern Cal law school stated that "Five justices on the court are deeply committed to protecting states’ rights and limiting federal power."

Chemerinsky and Howard are of course utterly wrong. "States’ rights" as understood by Thomas Jefferson, the founder of the university which employs Professor Howard, are nearly non-existent.

Although the eminent professors misunderstand what the case was about, People for the American Way (who oppose the decision) get it right. As the Washington Times reports,

People for the American Way called the decision an "unconscionable" rollback of individual rights and another argument to replace the majority justices. "By once again resurrecting the long-discredited theory of states’ rights, the Supreme Court has denied state employees with disabilities the full protection of our equal employment opportunity laws," said PFAW President Ralph Neas.

An argument to replace the majority justices? If anything, the case is an argument to replace the four dissenters, whose opinion is thoroughly critiqued by Justice Rehnquist’s majority opinion. PFAW, however, at least gets the essence of the dispute right in seeing the case as a "rollback of individual rights" rather than as a "rollback of federal power." Again, as a result of this decision, individuals have less statutory grounds on which to sue state governments.

All that having been said, there is criticism for classical liberals to heap around.

First, the majority opinion is not without its moments of foolishness. The majority writes at one point that "Congress is the final authority as to desirable public policy." This is a bizarre statement to make in a republic. One would think that the voters, who elect the Congress, are the final authority as to what is "desirable public policy." Either this is a slip, or it reveals that the imperial mindset has seeped into the Supreme Court from the other two branches of the government.

Second, for those out there who still like Bush the First, it cannot be overlooked that, as the Washington Times reports,

Former President George Bush, who signed the ADA in 1990, filed a brief for the state workers that said the law let disabled people "pass through once-closed doors."

Bush has had eleven years to repent for the massive federalization of the American workplace ushered in with the ADA. Clearly, Bush still doesn’t get it.

Finally, if there is anything for classical liberals and libertarians to take issue with in this case, it is the ADA itself. As Lew Rockwell has previously written, the ADA has been costly to private businesses.

Justice Rehnquist, however, frets over the possible costs the ADA would impose on state governments:

whereas it would be entirely rational (and therefore constitutional) for a state employer to conserve scarce financial resources by hiring employees who are able to use existing facilities, the ADA requires employers to "mak[e] existing facilities used by employees readily accessible to and usable by individuals with disabilities." The ADA does except employers from the "reasonable accommodatio[n]" requirement where the employer "can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity." However, even with this exception, the accommodation duty far exceeds what is constitutionally required in that it makes unlawful a range of alternate responses that would be reasonable but would fall short of imposing an "undue burden" upon the employer. The Act also makes it the employer’s duty to prove that it would suffer such a burden, instead of requiring (as the Constitution does) that the complaining party negate reasonable bases for the employer’s decision. (Slip opinion, pages 14-15)(citations omitted).

In other words, applying the ADA to the states would require state governments to spend money, thereby cutting into "scarce financial resources."

If only Bush the First and the Congress which passed the ADA had been more concerned about the financial burden on those who ultimately pay the costs of compliance (whether by the states or by private employers), namely, everyday people.

Mr. Dieteman is an attorney in Erie, Pennsylvania, and a PhD candidate in philosophy at The Catholic University of America.

© 2001 David Dieteman

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