Author: Lynn G. Franklin, Esq./ Franklin & Johansen, P.A./
Add yet another to the recent series of rebuffs the Supreme
Court has dealt Congress in matters where congressional legislation
has overextended its constitutional foundation. In a decision handed
down this January, the Court ruled, by another all-to-familiar 5-4
split, that the Age Discrimination in Employment Act, 29 U.S.C.
§621, et seq., was not proper legislation under Congress’
Fourteenth Amendment authority, and accordingly, the States’ Eleventh
Amendment immunity was not abrogated by the Act. Although the decision
was not wholly anticipated by proponents of the view espoused, the
ruling was a natural extension of the Court’s 1996 decision in Seminole
Tribe v. Florida, 116 S. Ct. 1114 (1996), which limited Congress’
ability to abrogate the States’ Eleventh Amendment immunity to suit
in federal court, and its 1997 decision in City of Boerne v.
Flores, 117 S. Ct. 2157 (1997), which struck down the Religious
Freedom Restoration Act as an invalid exercise of congressional
authority under the Fourteenth Amendment.
The recent ruling in Kimel v. Bd. of Regents, ___ S.
Ct. ____, 2000 WL 14165 (January 11, 2000) differs from its predecessors
in several respects, however. It was perhaps the first time the
Court has extended its recent efforts to reinforce the mandate of
federalism to employment related civil rights legislation. It is
also, by far, the most expansive effort. As such, it carries profound
implications for similar legislation, such as the Americans with
Disabilities Act (ADA), the Family Medical Leave Act (FMLA), and
even the Individuals with Disabilities Education Act (IDEA), to
name a few. It was also a more stringent, if not hardened, statement
from both the majority and the dissent, of the grounds which have
polarized the Court in recent years. All told, the Kimel
decision, coupled with other recent decisions of the Court which
follow similar lines with regard to limitations to congressional
legislative authority, could spell trouble for the future enforceability
of such legislation not only with regard to the States, but potentially
to private employers as well.
THE AGE DISCRIMINATION IN EMPLOYMENT ACT
The Age Discrimination in Employment Act of 1967 (ADEA), as
amended in 1974, makes it unlawful for any employer, including a
State or local government, "to fail or refuse to hire or to discharge
any individual or otherwise discriminate against any individual
. . . because of such individual’s age." 29 U.S.C. § 623(a)(1).
There are several exceptions to the Act’s broad proscriptions. An
employer may rely on age in making employment determinations where
it can be shown to be a "bona fide occupational qualification reasonably
necessary to the normal operation of the particular business." 29
U.S.C. § 623(f)(1). An employer may also engage in conduct otherwise
prohibited by the Act if the employer’s conduct is premised upon
facts other than age. 29 U.S.C. § 623(f)(1). An employer may also
discharge or discipline an employee under the Act, despite the employee’s
age, where such action is based on "good cause." 29 U.S.C. § 623(f)(3).
Further, recent amendments to the Act permit mandatory age limits
for law enforcement officers and firefighters, at the federal, state
and local levels. 29 U.S.C. § 623(j) (1994 ed., Supp. III).
When originally passed, the ADEA applied only to private employers,
29 U.S.C. § 630(b) (1964 ed., Supp. III), however, in 1974, Congress
passed amendments to the FLSA which included a provision purportedly
extending the ADEA’s substantive requirements to the States. Fair
Labor Standards Amendments of 1974 (1974 Act), § 28, 88 Stat. 74.
To expand the Act through the 1974 amendments to the Fair Labor
Standards Act, Congress merely amended the definition of "employer"
under the Act to include "a State or political subdivision of a
State and any agency or instrumentality of a State or a political
subdivision of a State. . . . " 29 U.S.C. § 630(b). Congress also
amended the Act’s definition of "employee" by redefining the term
as "an individual employed by an employer," with specific exceptions
regarding elected officials and appointed policy makers. 29 U.S.C.
§ 630(f). Through the same legislation, Congress amended the enforcement
provisions of the Fair Labor Standards Act (and incorporated such
amendments by reference in the ADEA) to permit an individual to
bring a civil action "against any employer (including a public agency)
in any Federal or State court of competent jurisdiction." Another
section of the FLSA defines "public agency" to include "the Government
of a State or political subdivision thereof," and "any agency of
. . . a State, or a political subdivision of a State." 29 U.S.C.
The foregoing language, utilized by Congress to extend the
mandates of the ADEA to State and local governmental employers,
is the starting point for the challenges to the Act in the consolidated
Kimel appeal. It bears emphasis at this point that, in the
ADEA, unlike similar legislative acts which establish national standards
with regard to societal classifications, Congress did not expressly
invoke its remedial authority to legislate under Section 5 of the
Fourteenth Amendment. In fact, neither the legislative record nor
the Act itself contain any mention of Section 5.
THE CASES BELOW
The Court’s decision in Kimel flows from the joining
of three separate cases, two originating in Florida, and one originating
in Alabama, which were consolidated on appeal before the Eleventh
Circuit. The first of the three matters was brought before the United
States District Court for the Northern District of Alabama in 1994,
upon allegations by two associate professors against their State
employer, the University of Montevallo. The professors claimed the
University had denied them certain benefits of employment due to
their age, and that the University maintained a salary and evaluation
system that has had a disparate impact on older faculty members.
The plaintiffs sought both monetary and injunctive relief. The State
of Alabama filed, and the District Court granted, a motion to dismiss
on Eleventh Amendment grounds. Notably, the District Court’s decision
was premised on the notion that the ADEA was not a proper exercise
of Congress’ authority under Section 5 of the Fourteenth Amendment.
MacPherson v. University of Montevallo, 938 F. Supp. 785
(N.D. Ala. 1996).
In April, 1995, 36 professors and librarians employed by Florida
State University (FSU) and Florida International University (FIU),
brought disparate impact claims against the Florida Board of Regents
under the ADEA and the Florida Civil Rights Act. The plaintiffs’
claims emanated from a 1991 collective bargaining agreement which
purportedly required the State to make specified market adjustments
to faculty salaries to reflect the value of the employee’s experience
as compared to more recently hired employees. The decision as to
whether or not certain moneys allocated by the legislature for the
purpose of the agreement was left to the discretion of each State
university. Both FSU and FIU chose not to allocate the funds for
faculty raises. The plaintiff’s sued, alleging, inter alia,
the action had a disproportionate impact on them. The Board of Regents
moved to dismiss on Eleventh Amendment immunity grounds. In denying
the Board’s motion, the United States District Court for the Northern
District of Florida, Tallahassee Division, held that the ADEA contained
a clear abrogation of State immunity and was an appropriate exercise
of Congress’ power under Section 5. Kimel v. Florida Bd. of Regents,
et al., Case No. TCA 95-40194-MMP (N.D. Fla. May 17, 1996).
In May of 1996, Wellington Dickson, a correctional officer
employed by Florida’s Department of Corrections (DOC) at Jackson
Correctional Institution brought an action against the DOC, and
other individuals and entities, alleging, among other things, that
the State and its officials violated the ADEA by failing to promote
him to the position of sergeant. Dickson also asserted violations
of the Americans with Disabilities Act. Dickson sought both monetary
and injunctive relief. The DOC filed a motion to dismiss asserting
Eleventh Amendment immunity grounds as to Dickson’s claims under
both the ADEA and ADA. The United States District Court for the
Northern District of Florida, Pensacola Division, denied the motion,
stating that Congress had expressed its intent to abrogate the State’s
Eleventh Amendment immunity in the ADEA, and that both the ADEA
and the ADA were appropriate legislation under Section 5. Dickson
v. Florida Dept. of Corrections, Case No. 5:96cv207RH (N.D.
Fla. November 5, 1996).
The plaintiffs in the MacPherson case, and both State defendants
in the Kimel and Dickson cases, appealed to the Eleventh Circuit,
and the three cases were consolidated on appeal. In 1998, a divided
panel of the Eleventh Circuit held that the ADEA does not abrogate
the State’s Eleventh Amendment immunity. See Kimel v. Bd. of
Regents, 139 F. 3d 1426 (11th Cir. 1998). Judge Edmondson
rested his opinion on the absence in the language of the ADEA of
an unmistakably clear statement of congressional intent to abrogate
the States’ sovereign immunity. Judge Edmondson also noted, however,
his belief that good reason exists to doubt that the ADEA was, or
could have been enacted, under the Fourteenth Amendment. Id.
at 1430-31. Judge Cox, concurring in Judge Edmondson’s ultimate
conclusion of State sovereign immunity under the ADEA, premised
his conclusion on the absence of congressional power under Section
5 of the Fourteenth Amendment to abrogate the State’s Eleventh Amendment
immunity under the ADEA. Judge Cox concluded that the ADEA confers
far more extensive rights than the Fourteenth Amendment provides,
and was not enacted as a proportional response to any widespread
violation of the elderly’s constitutional rights. Id. at
1447. Chief Judge Hatchett dissented on both grounds. Id.
In January of 1999, the Supreme Court granted certiorari, 119
S. Ct. 901 (1999), to resolve the conflict among the Federal Courts
of Appeals on the question of whether the ADEA validly abrogates
the State’s Eleventh Amendment immunity.
THE ELEVENTH AMENDMENT
Under the Eleventh Amendment,
"[t]he 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."
While the text of the Eleventh Amendment does not so indicate,
the Supreme Court has interpreted the Amendment "‘to stand not so
much for what it says, but for the presupposition . . . which it
confirms.’" Seminole Tribe of Fla. v. Florida, 116 S. Ct.
1114 (1996)(quoting Blatchford v. native Village of Naotak,
111 S. Ct. 2578 (1991)). Accordingly, since 1890, the Eleventh Amendment
has also been upheld as a jurisdictional bar to suits brought in
federal courts against non-consenting States by the State’s own
citizens. See Hans v. Louisiana, 10 S. Ct. 504 (1890).
The immunity to suit afforded by the Eleventh Amendment is
not without limitation. Such immunity may be waived by the States,
through legislative enactments consenting to suit, or by Congress,
under certain circumstances. In order for Congress to abrogate the
Eleventh Amendment’s bar to suit in federal court, it must first
unequivocally express its intent to abrogate that immunity; and
secondly, it must have acted pursuant to a valid grant of constitutional
authority. Seminole Tribe, 116 S. Ct. at 1123-1124.
THE KIMEL RULING
After an in-depth analysis of both the language and the legislative
history of the ADEA, a majority of the Justices concluded that the
Act did, in fact, include an "unmistakably clear" indication of
Congress’ intent to abrogate the States’ Eleventh Amendment immunity.
Interestingly, those Justices reached this conclusion in the absence
of any language within the Act specifically referring to or regarding
the Fourteenth Amendment, or specifically regarding abrogation of
sovereign immunity. Rather, the decision is premised on various
references, included in the 1974 Amendments, which expand the definitions
of an employer and public agency to include the States and subdivisions
thereof, and permits suits in any court of competent jurisdiction.
The decision also contravenes established precedent with regard
to the analysis of legislation for the purpose of determining congressional
abrogation of sovereign immunity. However, the decision of the majority
as to this issue, did not resolve the matter. Rather, the Court
was left facing the delicate issue of the constitutional authority
supporting the congressional abrogation of immunity.
To fully understand the analysis undertaken for the ultimate
holding, a certain amount of basic constitutional law is required.
It is axiomatic, that Congress can only legislate under the authority
provided to the federal legislative branch by the Constitution.
Our Constitution creates a federal government with specific enumerated
powers from the 13 original States. See U.S. Const. art.
I, § 8. See also United States v. Lopez, 115 S. Ct. 1624,
1626 (1995). Certain powers held by the State governments were delegated
to the federal government through the Constitution. Id. Those
powers, however, were limited and defined. Id. All remaining
powers of governance remained with the States. Id.
Two of the relevant sources of congressional authority,
are the Commerce Clause, found in Article I, § 8 of the Constitution,
and the Enforcement Clause, set forth in Section 5 of the Fourteenth
Amendment. The Commerce Clause specifically delegates to Congress
the power "[t]o regulate Commerce with foreign Nations, and among
the several States, and with the Indian Tribes." U.S. Const. art.
I, § 8, cl. 3 Under Section 5 of the Fourteenth Amendment, Congress
is granted the power ". . .to enforce, by appropriate legislation,
the provisions of this article." Section 5, in other words, grants
Congress the authority to enforce the provisions of the Fourteenth
Amendment, including the mandate of Section 1, that "[n]o State
shall . . . deny to any person with its jurisdiction the equal protection
of the laws." U.S. Const. amend. XIV, § 1.
Turning to the question of the constitutional validity of the
ADEA’s extension to state and local governments, the Court noted
that it had previously upheld the Act against a Tenth Amendment
challenge to its validity under the Commerce Clause. Kimel,
2000 WL 14165, at *11. Accepting, without addressing, the Court’s
previous finding in EEOC v. Wyoming, 103 S. Ct. 1054 (1983),
the Court turned to the question of whether the ADEA was also a
valid enactment through Congress’ Fourteenth Amendment Section 5
enforcement authority, given the intervening decision in Seminole
In Seminole Tribe, the Court established that Congress
may only abrogate the States’ Eleventh Amendment immunity pursuant
to its authority under Section 5 of the Fourteenth Amendment to
". . . enforce, by appropriate legislation, the provisions of this
article." 116 S. Ct. at 1125. Indeed, as the Court noted, Section
5 of the Fourteenth Amendment, has long been recognized as providing
such authority. See Fitzpatrick v. Bitzer, 96 S. Ct. 2666
(1976). If the ADEA is, in fact, a valid enactment within Congress’
Section 5 authority, then the States’ Eleventh Amendment immunity
would be thereby abrogated, and the State would be subject to suit
under the Act. If not, the federal courts would have no jurisdiction
over the States under the ADEA.
Recently, in City of Boerne v. Flores, 117 S. Ct. 2157
(1997), the Court again recognized Section 5 as an affirmative grant
of power to Congress. Specifically, the Court opined that "[i]t
is for Congress in the first instance to ‘determin[e] whether and
what legislation is needed to secure the guarantees of the Fourteenth
Amendment,’ and its conclusions are entitled to much deference."
City of Boerne, 117 S. Ct. at 2172. The Court also recognized,
through analysis of long standing precedent, that legislation passed
pursuant to Section 5 authority need not merely parrot the language
of the Fourteenth Amendment, but may include within its scope limitations
which are designed to prohibit a somewhat broader swath of conduct,
including conduct which is not itself forbidden by the Amendment’s
text. Id. at 2163.
Having so noted, however, the City of Boerne Court went
on to hold that the same language which provides such authority
to Congress, also serves to limit that authority. Specifically,
the Court in City of Boerne held that Congress cannot "decree
the substance of the Fourteenth Amendment’s restrictions on the
States," and further noted that Congress " . . . has been given
the power ‘to enforce,’ not the power to determine what constitutes
a constitutional violation." Id. at 2164. In City of Boerne,
the Court reiterated what its brethren held almost two centuries
ago in Marbury v. Madison, 5 U.S. 137, 177 (1803) -- that
the ultimate interpretation and determination of the Fourteenth
Amendment's substantive meaning remains the province of the Judicial
Branch. Id. at 2172. Accordingly, legislation which alters
the meaning of the Fourteenth Amendment, as interpreted by the Judicial
Branch, cannot be said to be enforcing it. See id. at 2164.
To ensure that Congress does not tread upon the Court’s role
in determining the substantive boundaries of the Fourteenth Amendment,
the Court required there to be a "congruence and proportionality
between the injury to be prevented or remedied and the means adopted
to that end." City of Boerne, 117 S. Ct. at 2164. In
determining whether there existed an appropriate "congruence and
proportionality" between the harm purportedly addressed through
the legislation in question in City of Boerne, the Religious
Freedom Restoration Act of 1993 (RFRA), and the means by which the
Act redressed that harm, the Court first conducted exhaustive review
of the text of the Act, with special emphasis on the stated purposes
of the Act, and the legislative history of the Act. This review
was designed to flesh out the precise "wrong" addressed by Congress,
and the actual unconstitutional conduct which supported legislation
redressing the purported "wrong." Id. at 2169-2171. Next,
the Court examined the means by which the legislation addresses
the wrong . The Court noted that only "anecdotal evidence" of the
identified "wrong," standing alone, would not support a sweeping
legislation proscription of conduct. Id.
In 1999, the Court had another occasion to apply the "congruence
and proportionality" test in Florida Prepaid Postsecondary Educ.
Expense Bd. v. College Savings Bank, 119 S. Ct. 2199 (1999).
The Florida Prepaid case involved review of the validity
of abrogation of Eleventh Amendment immunity in a provision of the
Patent and Plant Variety Protection Remedy Clarification Act (Patent
Remedy Act). The Court found the Patent Remedy Act failed to meet
the "congruence and proportionality" test, in light of the failure
of Congress to identify a pattern of patent infringement by the
States, let alone a pattern of constitutional violations. Id.
at 2207. The Court further noted that, as suggested in the legislative
record, the Patent Remedy Act was not designed to respond to a history
of widespread and persisting deprivation of constitutional rights,
but rather, appears to have been premised upon a handful on instances
of patent infringement by states, which did not rise to the level
of a constitutional violation. Id. at 2210.
The primary importance of the Florida Prepaid decision,
with regard to the subsequent decision in Kimel, is the explicit
requirement that the Act, and its legislative history, bear some
notation that the law is premised on a record of unconstitutional
conduct by the States. While there may be sufficient
justification to apply legislation to the private sector, through
Congress’ Commerce Clause authority, the Court required explicit
proof of unconstitutional conduct by the States in order
to support invocation of Congress’ authority under Section 5 of
the Fourteenth Amendment. It was the application of this requirement,
which doomed the ADEA to follow both RFRA and the Patent Remedy
In Kimel, the Court concluded that the ADEA failed application
of the "congruence and proportionality" test, as the substantive
requirements of the Act impose on state and local governments greater
restrictions than are necessary to redress any unconstitutional
conduct conceivably targeted by the Act. Kimel, 2000 WL 14165,
at *13. The stated purpose of the ADEA is to redress discrimination
in employment on the basis of age. As noted above, the ADEA prohibits
a broad range of conduct by employers, with few exceptions, and
creates a federal cause of action against employers who fall within
the purview of the Act.
In Kimel, the Court noted that, historically, they have
found age classifications do not violate the Equal Protection Clause
where there is a rational basis to support the differentiation.
Id. The lower level of scrutiny afforded age classifications
was justified, the Court opined, because, "[a]ge classifications,
unlike governmental conduct based on race or gender, cannot be characterized
as ‘so seldom relevant to the achievement of any legitimate state
interest that laws grounded in such considerations are deemed to
reflect prejudice and antipathy.’" Id.(citing Cleburne
v. Cleburne Living Center, Inc., 105 S. Ct. 3249 (1985)(holding
disability classifications to require only rational basis scrutiny)).
The Court further noted that, "[o]lder persons, again, unlike those
who suffer discrimination on the basis of race or gender, have not
been subjected to a ‘history of purposeful unequal treatment.’"
Id. (citing Massachusetts Bd. of Retirement v. Murgia,
96 S. Ct. 2562 (1976)).
Accordingly, under the Court’s existing precedent, States may
make classifications on the basis of age, without violating the
Equal Protection Clause if the classification is rationally related
to a legitimate state interest. Kimel, 2000 WL 14165, at
*14. The Court noted in Kimel that the States need not match
age classifications to the interests they serve with "razorlike
precision." Id. The Court further noted that, when challenging
age distinctions under the Equal Protection Clause, the burden is
on the individual, not the State, to prove that the classification
is not based on facts which could be reasonably conceived as true
by the governmental decisionmaker. Id. However, under the
ADEA, classifications based on the age, which would otherwise be
permissible for the States, are prohibited. Id. at *15.
Specifically, the Court noted that the ADEA’s exception for
age classifications premised on a bona fide occupational
qualification (BFOQ) requires such justification to be "reasonably
necessary" for the particular business. Id. The Court distinguished
this requirement from Equal Protection Clause’s requirement of rationality,
finding the former a "far cry" from the rational basis standard,
and an impermissible shift of the burden of proof. Id. Indeed,
the Court noted that it had previously held the BFOQ standard adopted
by the ADEA to be significantly different, and more stringent, than
the rational basis test. Id. (citing Western Air Lines,
Inc. v. Criswell, 105 S. Ct. 2743 (1985)). Consequently, the
Court noted that the proscriptions of the ADEA plainly impose on
the States substantially higher burdens than that imposed by the
Equal Protection Clause, and specifically, that the ADEA’s substantive
requirements are at a level more akin to the heightened scrutiny
afforded classifications of race and gender under the Equal Protection
The heightened protection to age classifications under the
ADEA, according to the Kimel Court, were not counterbalanced
by any evil on the part of the States. The Court noted that conspicuously
absent from the Act, as well as its legislative history, is any
finding or discussion of a pattern of age discrimination by the
States, much less evidence of age discrimination that rose to the
level of a constitutional violation. Id. at *16. Indeed,
the Court concluded, upon review of the ADEA’s legislative history,
that the Act, as applied to the States, was an "unwarranted response
to a perhaps inconsequential wrong." Id. The Court expressly
noted that review of the ADEA’s legislative history, as a whole,
revealed virtually no evidence that state and local governments
were unconstitutionally discriminating against their employees on
the basis of age. Id. at *17. Citing City of Boerne,
the Court held that "[a]lthough the lack of support is not determinative
of the Section 5 inquiry, . . . Congress’ failure to uncover any
significant pattern of unconstitutional discrimination here confirms
that Congress had no reason to believe that broad prophylactic legislation
was necessary in this field." Id. Absent such evidence to
support the Act, the Court found the ADEA as an invalid exercise
of Congress’ power under Section 5 of the Fourteenth Amendment,
and as a result, an invalid attempt to abrogate the States’ Eleventh
Amendment immunity. Id.
THE KIMEL FALLOUT
While the Kimel decision is undoubtedly far-reaching,
and a much heralded victory for the States, it does not leave state
employees formerly falling within the ambit of the ADEA without
recourse. Kimel does remove any basis for a cause of action
by State employees under the ADEA in federal court, and recently
decided Alden v. Maine, 119 S. Ct. 2240 (1999), will likely
prohibit bringing an ADEA claim in state court as well. However,
as noted by Justice O’Connor, most states have laws which prohibit
age discrimination, Kimel, 2000 WL 14165, at *18, and some
state legislation, such as the Florida Civil Rights Act, arguably
provide greater protection than that afforded under the ADEA. Aggrieved
state employees also have the remedies remaining under 42 U.S.C.
§ 1983 for injunctive relief, in appropriate circumstances. Further,
the Kimel decision does not impact the ability of a federal
agency, such as the EEOC, to bring an action against a state in
federal court, as that right is grounded in Article II, Section
3 of the Constitution.
Although few following the Court’s recent trend in the direction
of States’ rights might have anticipated the Court would make such
a strong statement in Kimel, the decision is not a complete
surprise when considered against the backdrop of Seminole Tribe,
City of Boerne, Florida Prepaid, and the similar argument
made by dissenting Justices Berger, Powell, Rehnquist and O’Connor
in EEOC v. Wyoming. Having taken this step, it now leaves
question as to the continuing validity of other similar federal
legislation as applied to the States, including the Americans with
Disabilities Act, the Equal Pay Act, the Family Medical Leave Act,
and the Individuals with Disabilities in Education Act (which is
similar legislation premised on Congress’ Fourteenth Amendment authority,
that sets employment and education standards with regard to disability).
Indeed, challenges to the ADA were presented in the Dickson v.
Department of Corrections, consolidated with Kimel on
appeal, and that issue will be resolved the Court this Term. Undoubtedly,
a strong argument that a similar ruling should follow with regard
to the ADA can be made, given the ADA’s prohibition of a wide range
of rational employment standards which do not otherwise violate
of the Equal Protection Clause. Similar arguments regarding the
Equal Pay Act were squarely before the Court this Term, but were
recently remanded to the Circuit Courts for re-evaluation after
Kimel. Additionally, given the Court’s recent limitations
on congressional authority to legislate under the Commerce Clause,
it is foreseeable that serious attacks on employment related legislation
may follow on behalf of private employers.
Finally, while the Court’s decision in Kimel is founded
in stare decisis, it does so at the expense of the same principle
it upholds. It is abundantly clear the Court can break from precedent
when it so desires, i.e. Seminole Tribe. Further,
as the Kimel dissenters argue, the Court had ample authority
to reach a different conclusion had it so chosen. As society changes,
such contradictions are likely to be seen more and more often, and
perhaps necessarily so. Congress has, in recent times, greatly expanded
the jurisdiction of the federal courts through legislation more
founded in the establishment of social standards than the prevention
of constitutional wrongs. At the same time, it has not matched its
lofty goals with adequate support for a beleaguered judiciary. It
leaves one to speculate as to whether the Court’s recent backlash,
in light of its past latitude for congressional intrusion into traditional
provinces of State sovereignty, may be as much a matter of finance
as a matter of federalism.