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Gregory G. Katsas *
On June 23, 1999, the last day of the most recent Supreme Court
Term, the Court handed down three major decisions addressing the
extent to which Congress can abrogate the sovereign immunity of
the states from lawsuits brought by private parties in state or
federal court. By the same five-to-four majority in each case, the
Court imposed significant restrictions on Congress's power to abrogate
state sovereign immunity. Although these decisions do not substantially
change the overall balance of power between the federal government
and the states, they do continue a recent trend of state victories
in federalism cases.
The recent decisions arose in the wake of significant state victories
in Seminole Tribe v. Florida, 517 U.S. 44 (1996), and City of Boerne
v. Flores, 521 U.S. 507 (1997). In Seminole Tribe, the Court held
that Congress cannot, when acting pursuant to its legislative powers
under Article I of the Constitution, abrogate the states' Eleventh
Amendment immunity from lawsuits in federal court. After Seminole
Tribe, the principal abrogation questions now involve Section 5
of the Fourteenth Amendment, which gives Congress the power to "enforce"
the Due Process, Takings, and other substantive clauses contained
in or incorporated by the Fourteenth Amendment. Although the Court
previously had held that Congress can abrogate the Eleventh Amendment
when acting pursuant to Section 5, Fitzpatrick v. Bitzer, 427 U.S.
445 (1976), City of Boerne stressed that any exercise of Section
5 enforcement power must be reasonably proportionate to the substantive
Fourteenth Amendment violations that Congress seeks to remedy or
prevent. Against this backdrop, the Court confronted the question
whether Congress can authorize private-party suits against the states
in federal court for violations of the Lanham Act or for patent
infringement.
In College Savings Bank v. Florida Prepaid Postsecondary Education
Expense Board (No. 98-149), the Court held that Congress cannot
authorize such suits for violations of the false-advertising provisions
of the Lanham Act. The Court reasoned that the statutory prohibition
against false advertising creates no right to exclude others, and
thus no "property" right protected by the Fourteenth Amendment.
Accordingly, the Court concluded, the provision purporting to abrogate
the states' Eleventh Amendment immunity from Lanham Act false-advertising
claims was not a valid exercise of Congress's Section 5 enforcement
power. More significantly, the Court rejected any "constructive
waiver" theory for overriding the states' Eleventh Amendment
immunity. In Parden v. Terminal Railroad Co., 377 U.S. 184 (1964),
the Court had held that Congress may condition a state's right to
engage in specified commercial activity upon its submission to federal-court
jurisdiction for claims arising out of that activity, and that the
state's decision to engage in the activity would be deemed a constructive
"waiver" of its Eleventh Amendment immunity. The Court
overruled Parden in College Savings, concluding that such "Parden-style
conditions" are not sufficiently voluntary (on the part of
the states) to constitute an effective waiver of constitutional
rights, but are sufficiently compelled (on the part of Congress)
to constitute an impermissible abrogation. In the course of its
analysis, the Court broadly held that states do not lose any of
their sovereign immunities when acting as market participants in
commercial activities.
In a companion case, Florida Prepaid Postsecondary Education Expense
Board v. College Savings Bank (No. 98-531), the Court held that
Congress cannot authorize private-party suits against the states
in federal court for patent infringement. The Court acknowledged
that patents constitute "property" protected by the Due
Process Clause of the Fourteenth Amendment. Applying the proportionality
analysis required by City of Boerne, however, the Court found scant
evidence that states had frequently infringed patents in the past,
and even less evidence that states had failed to provide state-law
remedies for victims of such infringement. With few relevant deprivations
of property, and even fewer deprivations "without due process,"
the Court concluded that an across-the-board abrogation of the Eleventh
Amendment in patent infringement cases constituted a disproportionate,
and thus impermissible, exercise of Congress's Section 5 power to
"enforce" the Fourteenth Amendment.
The third recent sovereign immunity case, Alden v. Maine (No. 98-436),
addressed the question whether Congress can abrogate the states'
sovereign immunity from private-party suits in state courts. The
Eleventh Amendment by its terms applies only in federal court, and
recent decisions had assumed that Congress could therefore abrogate
the states' sovereign immunity in state courts. In Alden, however,
the Court rejected that view. Relying heavily on historical materials
from the founding era, it concluded that the Eleventh Amendment
is merely one particular codification of more general principles
of state sovereign immunity that are implicit in the structure of
the original Constitution itself. Accordingly, the Court held that
Congress cannot authorize private-party suits against the states
in state courts.
Despite the dissenters' strong rhetoric, these decisions do not
effect a substantial shift in power from the federal government
to the states. To begin with, they do nothing to restrict the three
traditional avenues for enforcing federal law against the states
in federal court. First, because the Eleventh Amendment does not
apply to suits by the United States, see, e.g., Principality of
Monaco v. Mississippi, 292 U.S. 313, 328-29 (1934), the federal
government still may sue the states in federal court, for money
damages or injunctions. Second, under Ex Parte Young, 209 U.S. 123
(1908), a private party still may sue state officials in federal
court for injunctive relief, even though, as a practical matter,
the injunction binds the state itself. Third, a private party still
may sue state officials in federal court for money damages in their
individual capacities (subject, in many cases, to a qualified immunity
where the conduct at issue did not violate clearly established federal
law). See, e.g., Scheuer v. Rhodes, 416 U.S. 232, 237-48 (1974).
These available federal-court remedies are significant. Indeed,
they have proven sufficient to secure widespread state compliance
with the Constitution itself, even though 42 U.S.C. § 1983,
the catchall federal-court damages remedy for state constitutional
violations, does not apply to the states themselves, see Will v.
Michigan Dep't of State Police, 491 U.S. 58 (1989). College Savings
and Florida Prepaid simply place Lanham Act and patent infringement
plaintiffs in the same position, vis-a-vis the federal courts, that
plaintiffs with constitutional claims have occupied at least for
the decade since Will was decided.
With regard to redress in state courts, Florida Prepaid makes clear
that Alden is far less categorical than appears at first glance.
Florida Prepaid confirms that, where "life, liberty, or property"
are at stake, the states still have an obligation to provide adequate
redress for any deprivations that they have inflicted on private
parties, not because Congress can legislatively override their immunities,
but because the Fourteenth Amendment of its own force prohibits
such deprivations "without due process of law." That is
a significant obligation, given the range of interests protected
against state infringement by the Due Process Clause itself, and
by the numerous bill-of-rights provisions held to have been incorporated
into the Due Process Clause. Florida Prepaid leaves open the question
what constitutes adequate redress in state courts. Presumably, the
available theories of liability need not be identical to those available
in federal court. Indeed, such complete overlap appeared impossible
in Florida Prepaid itself, where the patent infringement claim at
issue was subject to the exclusive jurisdiction of the federal courts,
and where the Court seemed to assume that state-court redress would
be accomplished through distinct state-law theories such as conversion
or unfair competition. Moreover, the states presumably need not
provide remedies as generous as the treble damages and attorneys'
fees that are available under the federal patent statutes, but surely
not constitutionally compelled as a matter of due process. At some
point, however, the failure to provide adequate redress in state
court would itself constitute a due process violation possibly remediable
either by the Supreme Court, see 28 U.S.C. § 1257, or by the
district courts through § 1983, see, e.g., Parratt v. Taylor,
451 U.S. 527 (1981).
Finally, the recent sovereign immunity decisions do nothing to
restrict the broad substantive powers of Congress to regulate either
private parties or the states. Under the modern Court's decisions,
Congress's power under the Commerce Clause is subject only to modest
restrictions, see United States v. Lopez, 514 U.S. 549 (1995), and
although Congress may not specifically target either state legislatures,
see New York v. United States, 505 U.S. 144 (1992), or state executive
agencies, see Prinz v. United States, 521 U.S. 898 (1997), for the
imposition of federal obligations, it may nonetheless extend generally
applicable laws to the states even in areas affecting core concerns
of state sovereignty, see Garcia v. San Antonio Metropolitan Transit
Authority, 469 U.S. 528 (1985). It is perhaps fitting that Alden,
like Garcia itself, involved application to the states of the Fair
Labor Standards Act ("FLSA"). That parallel highlights
the fact that, although states are no longer subject to private
enforcement of the FLSA through damages remedies (absent their consent),
they do remain subject to the FLSA, and to enforcement by the federal
government and by private parties through Ex Parte Young. Thus,
although the recent decisions mitigate what the Court described
as the "indignity" of subjecting the states to coercive
private enforcement, they do not address far more basic questions
about the appropriate extent of Congress's substantive powers vis-a-vis
either the states or private parties.
* Greg Katsas is a partner in the Washington, D.C. office of Jones,
Day, Reavis & Pogue. The views expressed in this article are
his own personal views and do not necessarily reflect those of Jones
Day.
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