News 2004

June 28 : June 15 : April 19 : February 2 : January 14

June 28, 2004

  • The Supreme Court's Federalism Cases This Term:
    A String of Decisions Upholding Federal Power Show the Portrayal of the Court as Extreme Is A Caricature

    Professor Marci A. Hamilton, Paul R. Verkuil Chair in Public Law at the Benjamin N. Cardozo School of Law has written a paper discussing the U.S. Supreme Courts' Federalism cases this term. She writes,

    "In the 1990s, when the current Supreme Court first launched its federalism jurisprudence, there was great consternation that it would roll back thirty years of civil rights jurisprudence. A corollary concern was that state and local government, presumed to be hostile to civil rights, would gain power to crush such rights.

    The Supreme Court, however, is not an institution that is naturally inclined to extreme results. This Term, more than any other, reveals that the Court is actually quite moderate on federalism issues. Indeed, in three of four of this Term's federalism cases, the Court ruled against the states' rights argument.

    It's high time for those who claimed that "the sky is falling" with respect to the Supreme Court and federalism to recant. In this area, as in many others, the Court has taken a moderate perspective that balances state and federal rights and interests. In this column, I will review the four federalism cases decided so far this Term, and explain why each result is a moderate solution."

    Please click HERE to read the full paper. (PDF)

June 15, 2004

    Issued May 3, 2004
    The Eighth Circuit Court of Appeals held 2-1 that applying Title II of the ADA to prohibit the Director of the Missouri Department of Revenue from collecting a $2 annual fee from persons obtaining handicapped parking placards is an unconstitutional exercise of Congress's commerce clause power. The court found that all four of the factors set forth in the Morrison case favor a finding that applying Title II of the ADA in this case would be unconstitutional.

    The complete opinion can be accessed by clicking HERE. (PDF)

    Issued May 6, 2004
    The Eighth Circuit Court of Appeals held that the commerce power reaches wholly intrastate telephone calls, so long as the calls are made with telephones connected to an interstate telephone system. The court reiterated its prior holding that a telephone, regardless of whether it is used to make an interstate or intrastate call, is an instrument of interstate commerce. The court also stressed that defendant's call made both telephones unavailable to outside, interstate contact, and thus that the telephone defendant used to communicate the threat was an instrument of interstate commerce. The court affirmed the conviction for use of a telephone to communicate a false threat.

    The complete opinion can be accessed by clicking HERE. (PDF)

    Issued May 17, 2004
    The United States Supreme Court held (in a 5-4 decision) that suits for both monetary damages and injunctive relief under Title II of the ADA constitute a valid exercise of Congress' authority to enforce the Fourteenth Amendment. The Court limited its holding to only those cases dealing with the "fundamental" right of access to the courts. The Court found that the Title II requirements for access by disabled persons to public programs and public buildings was a congruent and proportional response to identified discrimination against the disabled. The principle dissent, authored by Justice Rehnquist, questioned whether sufficient evidence of discrimination by the states had been shown, and also questioned whether the legislative response to such discrimination embodied in Title II was proportional. Justice Scalia also wrote an well-reasoned dissent in which he questioned the long-accepted premise that "prophylactic" legislation could be passed by Congress under the guise of "enforcing" the guarantees of the 14th Amendment, and questioned the application of such legislation against any state in which Congress had not relied on particular evidence of an identified history of relevant constitutional violations by that state.

    The complete opinion can be accessed by clicking HERE.

    SABRI v. US
    Issued May 17, 2004
    The United States Supreme Court held that 18 U.S.C. section 666(a)(2), which proscribes bribery of officials of entities that receive at least $10,000 in federal funds, does not require proof of connection with federal money and is a valid exercise of Congress's Article I authority.

    The Court stated that it does not presume the unconstitutionality of all federal criminal statutes from the absence of an explicit jurisdictional hook, and there is no occasion even to consider the need for such a requirement where there is no reason to suspect that enforcing a criminal statute would extend beyond a legitimate interest cognizable under Article I, §8. The Court noted that Congress has Spending Clause authority to appropriate federal moneys to promote the general welfare, Art. I, §8, cl. 1, and corresponding Necessary and Proper Clause authority, Art. I, §8, cl. 18, to assure that taxpayer dollars appropriated under that power are in fact spent for the general welfare, rather than frittered away in graft or upon projects undermined by graft.

    The Court stated that Congress does not have to accept the risk of getting poor performance for its money, owing to local and state administrators' improbity. According to the Court, Section 666(a)(2) addresses the problem at the sources of bribes, by rational means, to safeguard the integrity of federal dollar recipients, and although not every bribe offered or paid to covered government agents will be traceably skimmed from specific federal payments, or be found in the guise of a quid pro quo for some dereliction in spending a federal grant, these facts do not portend enforcement beyond the scope of federal interest, for the simple reason that corruption need not be so limited in order to affect that interest. Money is fungible, bribed officials are untrustworthy stewards of federal funds, and corrupt contractors do not deliver dollar-for-dollar value. The court held that it is enough that the statute condition the offense on a threshold amount of federal dollars to the government such as that provided here and a bribe that goes well beyond liquor and cigars.

    The court rejected the claims that the statute was unconstitutional because it exceeded Congress' power under the Commerce Clause. The claim that §666 is of a piece with the legislation ruled unconstitutional in United States v. Lopez, 514 U. S. 549, and United States v. Morrison, 529 U. S. 598, is unavailing because these precedents did not control. In those cases, the Court struck down federal statutes regulating gun possession near schools and gender-motivated violence, respectively, because it found the effects of those activities on interstate commerce insufficiently robust. Here, in contrast, Congress was within its prerogative to ensure that the objects of spending are not menaced by local administrators on the take.

    The court also held that§666(a)(2) is not an unduly coercive, and impermissibly sweeping, condition on the grant of federal funds, but is authority to bring federal power to bear directly on individuals who convert public spending into unearned private gain. Justice Thomas drafted a dissent in which he took issue with the majority's treatment of the Necessary and Proper Clause.

    The complete opinion can be accessed by clicking HERE.

April 19, 2004

  • 2004 First Quarter Federalism & Separation of Powers Update
    Practice Group Publications Chair Tara Ross has provided a comprehensive update of developments that are of interest to the practice group from the first quarter of 2004. Click HERE to read this update. (PDF)

February 2, 2004

  • United States Supreme Court Upholds Consent Decree Against 11th Amendment Challenge
    A unanimous United States Supreme Court reversed the Fifth Circuit Court of Appeals, holding that consent decrees in federal courts may be enforced without a separate inquiry as to whether enforcing the decrees would violate the 11th Amendment. The consent decree required Texas officials to implement a detailed plan to provide certain services for children participating in the Medicaid program. The Court noted that the decree arose from a federal dispute and furthered the objectives of federal law, and specifically cited the "vindication" of an "agreement that the state officials reached to comply with federal law."

    The Court recognized that consent decrees might improperly deprive future state officials of their designated legislative and executive powers, but held that the remedy for such deprivations was the trial court's ability to modify a consent decree in light of changed circumstances.

    Click to read the full decision in Frew, et al., v. Hawkins. (PDF)

January 14, 2004

  • Federalism & Separation of Powers Practice Group Update
    Practice Group Publications Chair Tara Ross has provided a comprehensive update of developments that are of interest to the practice group from the fourth quarter of 2003. Click HERE to read this update. (PDF)



2004 The Federalist Society