Wednesday, March 21, 2012
Coleman and the Perils of New Federalism
The Supreme Court announced its decision today in Coleman v. Court of Appeals of Maryland . For reasons I will explain below, I disagree with the plurality decision and think it is one of a growing trend of harmful and indefensible “new federalism” decisions. Spoiler alert: I think Justice Scalia makes a fine point about this jurisprudence in his concurring opinion. And apology/disclaimer: this will probably be the longest blog post I have ever drafted. Hopefully the good folks at Prawfs won’t revoke my visiting privileges (but if they do, you can still visit our faculty blog , where colleagues more interesting than me routinely weigh in on legal developments).
First, the facts: Plaintiff had sued his state employer for damages, alleging that it violated the “self-care” part of the Family Medical Leave Act (FMLA), which entitles an employee to take up to 12 weeks unpaid leave per year for the employee’s own serious health condition. In Nevada v. Hibbs, the Court had upheld the constitutionality of suits for damages against states for FMLA’s “family care” provisions, which guarantee unpaid leave for the care of a newborn child, adoption or foster care placement of a child, or care of a spouse, son, daughter, or parent with a serious medical condition. But in Coleman, the Court held that Congress had exceeded its constitutional authority with the “self-care” provision. Accordingly, the state is entitled to Eleventh Amendment immunity and the plaintiff’s suit for damages is dismissed on sovereign immunity grounds.
In Coleman, the Court held that unlike the family care provision, the self-care provision failed the apparently now sacrosanct City of Boerne congruence and proportionality standard. Under this standard, the Court will assess the evil or wrong Congress attempted to remedy and the means Congress adopted to address that evil. Legislation enacted under Section 5 of the Fourteenth Amendment must be targeted at conduct transgressing the Fourteenth Amendment’s substantive provisions and the Court must find that there is congruence and proportionality between the injury to be prevented or remedied and the means adopted to achieve that end.
Justice Kennedy, writing for the plurality, and Justice Ginsburg, writing in dissent, disagree on how the self-care provision fares under the Boerne test. Simply stated, the plurality held that Congress did not amass sufficient evidence of unconstitutional discrimination by states in self-care leave policies. When FMLA was passed, the plurality reasoned, the vast majority of states provided paid sick leave and short term disability protection, and there was “scant evidence in the legislative history of a purported stereotype harbored by employers that women take self-care leave more than men.” The dissent viewed the FMLA more broadly as an attempt by Congress to protect against gender-based discrimination in the workplace, and linked the self-care provision to pervasive state discrimination against pregnant women. Congress extended self-care protection to men and women as a means to ward off unconstitutional discrimination it believed would attend to a pregnancy-only leave requirement.
Both applied the same standard (Boerne), but came to very different views of the legislative record and the appropriateness of the remedy. I am no fan of congruence and proportionality – I have explained here why I think that even in Tennessee v. Lane (a case in which I agreed with the outcome) the Court’s insistence that it was being consistent with earlier precedent was just wrong. Boerne’s emphasis on combing the Congressional record and gauging how prophylactic the remedy really is just opens the door for the Justices to decide which rights – and under what context – are worthy of protection. It turns out Justice Scalia and I agree on this: he opens his concurrence by stating: “The plurality’s opinion seems to me a faithful application of our ‘congruence and proportionality’ jurisprudence. So does the opinion of the dissent. That is because the varying outcomes we have arrived at under the congruence and proportionality test make no sense.”
But to Justice Scalia, this means that (except for race discrimination, which he views as different for stare decisis reasons), he would limit Congress’s Section 5 power to conduct that itself violates the Fourteenth Amendment. I find this flat out wrong. As a textual matter, Section 5 gives Congress the power to enforce the Fourteenth Amendment by appropriate legislation. If all Congress can do is outlaw that which is already unconstitutional, what is the point? And, as a co-equal branch of government, it is just misguided, and seems like a power grab, for the Court to treat Congress like an administrative agency. These are neither novel nor unique points regarding the problems with judicial supremacy, but Coleman puts in sharp focus just how much the Court is “dissing Congress." Congress needs more deference to be able to do its constitutional job, whether that means allowing Congress latitude when the Court applies the Boerne standard, or, preferably, abandoning congruence and proportionality altogether. Coleman indicates we will be litigating not just right by right (as in the Americans with Disabilities Act context), but statutory subsection by statutory subsection, whether Congress amassed enough evidence to satisfy its jurisprudential superiors. At least to me, sovereign immunity should not and does not compel this result.
Posted by Michael Waterstone on March 21, 2012 at 12:45 AM | Permalink
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Great post and dead on.
Posted by: Paul M. Secunda | Mar 21, 2012 1:08:04 AM
I think you're absolutely right, Michael. To pile on just a little, the Court is applying a standard that it adopted in 1997 (Boerne's congruent and proportional requirement) to a law that Congress enacted in 1993. It may very well be that Congress could have mustered the necessary legislative history to support abrogating state sovereign immunity had it known that a more rigorous standard would apply to a constitutional challenge to law. To impose the new federalism jurisprudence (clear statement rules, etc.) to laws enacted before the Court had articulated such requirements is problematic.
Posted by: Michael Teter | Mar 21, 2012 7:41:23 AM
I agree as a whole but as to this: "As a textual matter, Section 5 gives Congress the power to enforce the Fourteenth Amendment by appropriate legislation. If all Congress can do is outlaw that which is already unconstitutional, what is the point?"
There would still be a "point" if Congress could enforce in various ways the rights found w/i the 14A. Something might be unconstitutional but enforcement is left to the states or court action. Section 5 gives more power to Congress here.
Posted by: Joe | Mar 21, 2012 10:38:44 AM
Great post. And Michael T., I think you are right on the money with your comment. This issue was covered in 53 Drake L. Rev. 421, 440-55 (just after Hibbs was handed down). Much like in Hibbs, the Court in Coleman fails to articulate the amount of findings sufficient to abrogate state sovereign immunity or offer a clear reason why a prior Congress should have predicted the Boerne test and/or new legislative record requirement (first formulated by the USSC in 1999 in Fla. Prepaid v. College Sav. Bank) when it passed the self-care provision of the FMLA in 1993.
Posted by: Bryan | Mar 21, 2012 12:14:20 PM
You state that "Congress needs more deference to be able to do its constitutional job." But you neglect to say how much more deference you would grant. I assume that you agree that there must be some limits on congressional authority under Section 5. For example, would you agree that Oregon v. Mitchell (in which the Court ruled that Section 5 does not authorize Congress to require States to permit 18-to-20-year-olds to vote in state elections, as a means of correcting supposed discrimination against young people) was correctly decided? If not, then your argument is simply a general aversion to federalism principles. If so, then why is the result in Coleman different from the result in Oregon v. Mtchell?
Posted by: Richard | Mar 21, 2012 1:10:02 PM
I would add that I respect in a fashion what the USSC is trying to do. As the Congress legislates more and more, the courts balance things out, including in respect to SOME stopping point in respect to its powers here. I think U.S. v. Lopez, e.g., is a good ruling on that front. The line there will not be crystal clear & the USSC often sets lines that the legislature might not know existed.
But, yesterday's opinion was not. Five justices (adding Scalia) thought the Congress was reasonable to act as it did to advance gender equality, which as Ginsburg notes warrants heightened scrutiny. Trying to cabin off a subsection of a law that should be looked at as a whole in this fashion is misguided. One recalls Kennedy (unlike Rehnquist) was in the minority in the Hibbs case.
This Court is a result of the people electing certain people who was more suspicious of federal power in various respects. The target was badly chosen here.
Posted by: Joe | Mar 21, 2012 2:18:37 PM
Thanks all for the comments. Joe, Section 1983 does a lot of the work here. And Richard, I agree there have to be limits - I'm not advocating getting rid of judicial review. I wouldn't want to see Congress legislating to protect cheese as a protected class. But instead of treating Congress like an administrative agency (Justice Breyer's analogy, not mine), I believe we should defer to Congress if it could have reasonably concluded that its chosen remedy was an appropriate way to enforce the Equal Protection Clause. Here, Justice Scalia views both interpretations are reasonable. I just say if it is reasonable (something akin to rational basis scrutiny), we should defer to Congress.
Posted by: Michael | Mar 21, 2012 3:35:44 PM
"As a textual matter, Section 5 gives Congress the power to enforce the Fourteenth Amendment by appropriate legislation. If all Congress can do is outlaw that which is already unconstitutional, what is the point?"
The point would be enforcement. Take the Fifteenth Amendment and the Voting Rights Act. You could imagine a world in which the Court held that the VRA could only proscribe violations of the Fifteenth Amendment, but the preclearance rules the VRA puts in place would still get you much more enforcement.
Posted by: Asher | Mar 22, 2012 7:13:43 PM