The National Pulse

Finite Federalism

  • Print.

Has the federalism revolution of the Rehnquist court run its course?

That’s what constitutional law experts were asking after a series of recent rulings that upheld federal power against claims of states’ rights. Some decisions were narrow and some unanimous, but all defied earlier predictions that the high court was set to radically shift power away from Congress and in favor of the states.

“It’s clear now there is a limit to how far this court will go in the name of federalism,” says University of South­ern California law professor Erwin Chemerinsky. “When there is a fundamental right at issue, they are prepared to give Congress more latitude.”

He was referring to a pair of recent rulings that upheld the power of Congress to enforce anti-discrimination laws against the states. This spring in Tennessee v. Lane, No. 02-1667, the court in a 5-4 decision said states may be sued by disabled people who are denied their “constitutional right of access to the courts.” Lead plaintiff George Lane was using a wheelchair when he was summoned to appear at a courthouse to answer a misdemeanor driving charge. The building had no ramps or elevators, so Lane crawled two flights of steps to reach the courtroom. Lane sued the state under Title II of the Americans With Disabilities Act for its failure to make the courthouse accessible. The state claimed it was shielded from such suits by sovereign immunity.

Lane followed last term’s 6-3 ruling that held states may be sued for violating the federal Family Medical Leave Act. In Nevada Department of Human Resources v. Hibbs, 538 U.S. 721, Chief Justice William H. Rehnquist said the statute enforces “the right to be free of gender-based discrimination in the workplace.”


The scope of Congress’ power to enforce individual rights under Section 5 of the 14th Amendment had been under attack. Conservatives say the court cannot enforce new rights that go beyond the 14th Amendment: That would be amending the Constitution.

But Hibbs and Lane surprised some observers by holding that federal lawmakers have latitude to enforce rights that go beyond the Constitution. To win a constitutional claim of discrimination, for example, the plaintiff usually must show the state acted purposefully to discriminate. William Hibbs, the Nevada social worker who had asked for an extra 12 weeks of unpaid leave, would have a hard time proving his supervisors turned down his request because of his gender. Similarly, George Lane would have had difficulty proving Tennessee built its old courthouse intending to discriminate against disabled people.

In upholding Lane’s right to sue, Justice John Paul Ste­vens said section 5 “authorizes [Congress] to enact pro­phy­­lactic legislation proscribing practices that are discriminatory in effect, if not in intent, to carry out the basic objectives of the equal protection clause.” He weaved his way through the court’s seemingly contradictory rulings on anti-discrimination laws to conclude that Congress may act to “remedy [a] pattern of exclusion and discrimination” when a “fundamental right,” such as access to the courts, is at issue.

Stevens had to walk cautiously because he spoke for the narrowest of majorities. Justice Sandra Day O’Con­nor joined his opinion, as did his usual allies: Justices David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.

Just three years ago, however, O’Connor joined with Rehnquist in a 5-4 decision that said states were shielded from being sued by disabled workers. Board of Trustees of University of Alabama v. Garrett, 531 U.S. 356. The year be­fore that, the same 5-4 majority shielded states from employee age discrimination claims. Kimel v. Florida Board of Regents, 528 U.S. 62.

But when the issue became one of sex discrimination or a wheelchair user trying to enter a courthouse, O’Connor switched sides. “I think it shows we have reached the lim­its of what O’Connor is willing to tolerate. She’s the crucial vote, and she prefers a more nuanced approach,” says Yale law professor Robert C. Post. “She’s also the only politician on the court, and the image of the fellow crawl­ing up the court steps would be a salient fact for her.”

That salient fact was a stroke of good fortune—as well as a smart tactical move —for disability rights advocates. Last term, the court faced the same question of whether states could be sued under Title II of the ADA, but in a California case involving a doctor who had a history of severe depression.

Dr. Michael Hason had been turned down for a license to practice medicine and sued the California Medical Board, contending he was discriminated against because of his disability. After he prevailed in the 9th U.S. Circuit Court of Appeals at San Francisco, the state appealed, and the Supreme Court agreed to hear the state’s claim of sovereign immunity.

Shortly before the oral argument, however, disability rights advocates complained loudly and persuaded state officials, including then-Gov. Gray Davis and Attorney Gen­eral Bill Lockyer, to withdraw the appeal in Cali­for­nia Medical Board v. Hason, No. 02-479. Even Chemer­insky, who was representing the doctor, says the state’s change of heart proved crucial. His client likely would have lost because his case did not hinge on a fundamental right.

The victory for disability rights advocates in the Ten­nes­see ­case came on the same day the court easily rejected two other federalism claims. In the first, a former college student had filed for bankruptcy and sought to get out from under a student loan that had been guaranteed by the state. In response, the state contended it was shielded from such federal bankruptcy orders. “[A] bankruptcy court’s discharge of a student loan debt does not implicate a state’s 11th Amendment immunity” because it is not a suit against the state, Rehnquist said for a 7-2 majority in Tennessee Student Assistance Corp. v. Hood, No. 02-1606. Justices Clarence Thomas and Antonin Scalia dissented.


The court also unanimously upheld a federal brib­ery law that makes it a crime to give anything of $5,000 or more in value to influence a state or local official. Basim Sabri, a Minneapolis real estate developer, contended Congress had exceeded its authority, since there was no direct connection between the hotel he planned to build and federal money. However, the city received $29 million in federal funds, and Sabri was convicted of paying a kickback to a city council member.

Sabri v. United States, No. 03-44, had drawn the interest of some who saw it as the opening wedge in a long-antici­pated attack on Congress’ broad power to use federal mon­­ey as a means to regulate. However, the court brushed aside the challenge. Con­gress has ample power “to promote the general welfare … and see to it that taxpayer dollars [are] not frittered away in graft,” Souter said.

Some legal scholars foresaw the Rehnquist court reining in Congress’ power to impose federal criminal laws that overlap with state authority. In 1995, for example, the court struck down the federal Gun-Free School Zone Act. United States v. Lopez, 514 U.S. 549. But the recent rulings have squelched those predictions.

“The court is not going to second-guess the federalization of crime by Congress,” says Notre Dame law professor Richard Garnett. “Anybody who thought Lopez would be the undoing of federal law enforcement has been proven wrong.”

In January, the court also unanimously rejected a state’s sovereign immunity challenge to a federal court consent degree. Such a court order “furthers the objectives of fed­eral law [and] creates a mandatory, enforceable obligation,” the justices said in Frew v. Hawkins, No. 02-628.

“It’s clear now that this court is not planning to radically roll back congressional power. There are quite serious limits to the federalism revolution,” says Harvard law professor Samuel Bagentsos.

But Chemerinsky, who is moving to Duke University in the fall, offers a cautionary note.

“Since so many of these have been 5-4 decisions, whoever is the next president will determine where this goes,” he says. “I could imagine [the court] going much further [toward limiting federal power], or I could imagine the whole line of sovereign immunity cases being overruled. It depends on the new justices that join the court.”


In "Finite Federalism," July, 2004, Page 20, the name of Harvard law professor Samuel Bagenstos was misspelled. The Journal regrets the error.

David G. Savage covers the U.S. Supreme Court for the Los Angeles Times and writes regularly for the ABA Journal.

Give us feedback, share a story tip or update, or report an error.