US Supreme Court: State Sovereignty Reigns

The US Supreme Court recently handed down another one of their 5-4 decisions upholding state sovereignty. The case involved a couple state employees suing their own state for alleged violations of the American With Disability Act. The Supreme Court held that under (spirit of) the Eleventh Amendment, a state can not be sued by its own citizens in the name of equal protection in the case of discrimination for a disability (earlier a similar ruling involved age discrimination). This would be a violation of state sovereignty, that is, the power of each state to have power over its own affairs. A state only can be sued if they consent to it, or in various exceptional cases, including discrimination by race or sex. This ruling got very little notice, since we like to be shocked by the actuality of money corrupting public officials, especially if they are named Clinton.

The concept involved here has a long if fought over history, as shown by another* 5-4 case decided over fifteen years ago. This case involved federal oversight of mismanagement (and breach of state and federal laws) in a state institute for the mental retarded. The case at issue here involved a person suffering asthma and a woman coming back to work after treatment from breast cancer, serious matters, but not quite as serious and institutionalized as that case. Nonetheless, the overall theory was the same: we can not sue our state without its consent, though we can sue local entities like cities. Yes, ultimately cities are bodies of the state, but it has been recognized that the idea that government entities can do wrong and not have to pay for it has to have some limit. My philosophy, and one of various legal experts and judges/justices, is that the whole overall idea is misguided and illogical.

The basic idea in my eyes is that in a government of the people, the state can do wrong, and should be stopped and penalized for doing so. Various limits can and should be placed to stop frivolous lawsuits as well as ones that might overwhelm the states (who are after all made up by the people, including you and me), but the basic idea stands. Furthermore, the US Constitution does not say anything that really blocks this path, as I discuss in more detail below. This state immunity concept might very well be an unwritten constitutional ideal, but it has less backing in the actual text than that much maligned (by conservatives) "right of privacy." It surely is weak (dissenting opinion of Justice Breyer) when it is used to block the protection of federal protected rights, including equal protection.

It is quite true that an overreliance on the courts (as well as the federal goverment) to uphold our rights and liberties is misguided and prone to problems. This applies to equal protection, including the protection of people from discrimination because of their disabilities. Nonetheless, it is going a tad far to suggest that equal protection in this area is of so little importance that Congress can not pass laws to help stop it, even when states (who have more resources and/or less workers in many cases than quite a few private employers) are involved. Is "equal protection of the laws" on its own terms so weak of a concept that the courts can overturn legislative and popular will in such a way? It is even more troubling when the Supreme Court suggests that it knows more than the Congress when there is enough evidence out there to show an equal protection problem in the country at large. It is surely is not any easier to take when people who complain about the anti-democratic tendencies of the courts are behind it. The same five justices who stopped a recount in Florida via a creative use of equal protection now decide it does not offer those with disabilities that much protection.

How about if the states uphold our rights (including equality), have a general right to do this themselves and with their own courts, but when they fail to do so, federal laws and national power can come into play? A much better compromise than "the state can do no wrong" or "well it can, but tough luck to you." As Justice Breyer suggested in the opinion cited above, there are many ways to protect local control in our ever more complicated and regulated world. A world that is also more connected nationally and internationally, so requiring some federally set standards, including some that will effect state governments. We can increase the federal bureaucracy (since the theory goes we can not force states to enforce certain federal laws), ignore the need of some unified federally instituted laws (as some desire), or figure out a compromise. I'm for this third option, and do not feel the clear overreaching of some federal laws should stop its development nor the fiction that citizens suing their own states violate some supreme constitutional command. Finally, if laws we as state citizens will have to deal with are seen as too obtrusive or overbearing, all the better, since private citizens and corporations should not suffer from bad laws that the states themselves can ignore.

State immunity arises from the principle of federalism, namely that the federal government and states each have a separate sphere of influence, each with control over matters best left to each particular sphere. This principle is stated in the Tenth Amendment, which says:

The principle of federalism and states rights is expressed in more detail than these few words (e.g a Senate with two representatives from each state, the Electoral College with votes by state, and the very existence of states as the assumed political division of choice), words that basically state the obvious and to little real good for those who support a strong view of states' rights. Congress is given broad powers over such matters as taxation and interstate commerce, which have been read to include the ability to regulate matters once seen as clearly local, including minimum wage laws and employment safety regulations. This broad power, surely too broad in many respects, is legitimate given how interconnected the country and world has become, a world to big and complex to be left to local governments. Furthermore, the political process protects local interests in many ways, since politicians (even federal ones) look to their state consistuents for votes. Finally, note the Tenth Amendment also leaves some power in the hands of "the people," including perhaps suing states when their votes are violated?

The principle of states rights therefore does not have much explicit protection in the original Constitution or the Bill of Rights. Yes, Congress and national government have limited powers, and the states have various means to protect their interests in national affairs, including originally having state legislatures appoint its US senators. Also, the spirit of federalism and limited government is violated when the national government needlessly interferes with local concerns (which they are usually less able to best ascertain and handle), even if technically it might have some justification from the powers given to them. Nonetheless, clearly Congress has the power to regulate those areas the Constitution clearly puts in their hands, even when said powers would affect the states. Also, when dealing with the balancing of political power like we are doing here, the ultimate choice is usually best left to the political branches, especially is close cases.

For instance, if Congress has the power to regulate the minimum wage because of its effect on national economy, why should a particular state be able to avoid it? Surely, a state has much more effect on the economy than many small businesses. Furthermore, just because such a regulation might be in some fashion a burden on a particular state (one apparently held to be worth it), congressional power suddenly does not disappear. Finally, since the Tenth Amendment also protects "the people," federal regulations that allegedly protect them would seem not to violate its terms. At the very least, it would seem best left to the political branches, namely the executive and Congress to work it out.

The ability of the states to block the national government from interfering with its own affairs therefore is limited by those matters of national importance, including national power and rights that we all hold. Our political system, including the division of the nation into states with their own government and representatives in Congress, helps to insure that this national power is not used with a heavy hand or in areas it is not meant to include. For instance, it is dubious for the US Congress to suggest it has the power to pass legislation regulation the possession of guns near schools. Not only do most states have comparable laws, but it is a stretch to call this "interstate" commerce law. Nonetheless, it is quite another thing to suggest that requiring state police to help in a small way to carry out background checks for gun sales (a clear interstate industry) somehow interferes with state power.** It is even more ridiculous to suggest states cannot be sued when it interferes with some clear matter of federal concern, nor does the Eleventh Amendment say otherwise:

This amendment was passed after an out of state litigant ("citizen of another state") in federal court sued Georgia for repayment of Revolutionary War debts. Georgia was quite upset at this violation of the commonly held principle that a state could not be sued without its consent, though the Supreme Court held the Constitution limited this principle when matters of national concern were involved. The Eleventh Amendment did not really overturn this principle, it only limited its application. Actually, the Supreme Court under Chief Justice John Marshall (present at the ratification of the Constitution) held in several cases that the amendment did not apply when a matter of federal concern was involved. For instance, Maryland was sued by the Bank of the United States, which was established to protect congressional right to tax and regulate the economy. After all, it is only logical that if Congress has a power, said power should be enforceable, even against the States. This makes is unclear why the states can be sued for Fourteenth Amendment violations (at least those the Supreme Court finds violations), but not for interfering with other matters of national concern as well.

An early source of trouble was a case involving litigants suing to uphold the value of state bonds under the Contract Clause of the Consititution, a politicially troubling use of the federal government to deal with state debt issues. This 1890 case started the new path of suggesting the Eleventh Amendment's spirit, if not its words, upholds the principle of state immunity from suit. This is a logical stance to take, perhaps, when dealing with using the Constitution or common law alone as justification to sue the states, which in general continued to be looked on disfavorably. Nonetheless, as the nation and world got more complicated, and the national government started to pass laws that involved the states among others in the mix of regulation, the doctrine starts to fall apart. A national consensus formed that some power would be taken from the states, including modifying the still mostly unwritten right of state immunity. A right not only undemocratic, but a burden on national regulation and upholding of rights for all.

* A stream of 5-4 opinions over the last few years dealing with the division of federal and state power (in which the states won out) included cases involving: a federal law concerning guns in school, requiring state officials to help carry out the Brady background check law, the ability to sue in federal court in violence against women cases, age and disability discrimination suits by state employees, trademark (a component of patent rights, a congressional power area) related litigation involving a state actor, suit involving Native Americans suing a state, and a national religious freedom law (First Amendment issues changed a few votes around, making it 6-3 for the state). A rare win by the national government was a state law geared to encouraging term limits for members of Congress, which again was 5-4.

** The overall principle of leaving state matters to the states is sound, even when the federal law might seem to be useful and good. For instance, the US Supreme Court last year overturned a federal law that allowed rape victims to go to federal court to sue their attackers (or those who did not offer proper protection, such as state colleges) in federal court. Unless it can be shown the state courts cannot handle such a crime, which is clearly local, the federal government really has no business selectively (as they must given the limited resources and large number of rape victims) being involved. Compare this to federal law enforcement being involved to protect an abortion clinic from protestors of a national organization in an area where state police are overwhelmed or not that excited at protecting such a controversial institution. Nonetheless, balancing out these interests generally is best left to the political process; and if the courts do come in, using hazy unwritten concepts to uphold state sovereignty to overturn popular litigation is generally a bad idea in my opinion.