Constitutional Law
Mar. 24, 2001
See No Evil
On Feb. 21, the U.S. Supreme Court held that state governments may not be sued for employment discrimination against the disabled in violation of Section 1 of the Americans With Disabilities Act. University of Ala. v. Garrett, 99-1240 (U.S. 2001).
Erwin Chemerinsky
Dean and Jesse H. Choper Distinguished Professor of Law, UC Berkeley School of Law
Erwin's most recent book is "Worse Than Nothing: The Dangerous Fallacy of Originalism." He is also the author of "Closing the Courthouse," (Yale University Press 2017).
On Feb. 21, the U.S. Supreme Court held that state governments may not be sued for employment discrimination against the disabled in violation of Section 1 of the Americans With Disabilities Act. University of Ala. v. Garrett, 99-1240 (U.S. 2001).
This is the latest in a series of decisions that have accorded state governments broad immunity from suit in federal and state courts. In 1999, the court ruled that state governments may not be sued for patent infringement (Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 U.S. 627 (1999)) or for violations of the federal Fair Labor Standards Act (Alden v. Maine, 527 U.S. 706 (1999)). In 2000, the court held that state governments may not be sued for violating the Age Discrimination in Employment Act. Kimel v. Florida Bd. of Regents, 528 U.S. 62 (2000).
Together, these rulings have established a principle that state governments cannot be sued in federal or state court without their consent. Each of these cases was a 5-4 decision, with the majority comprised of Chief Justice William Rehnquist and Justices Sandra Day O'Connor, Antonin Scalia, Anthony Kennedy and Clarence Thomas.
The dissenters in each case were Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer.
The conservative majority of the court has held that Congress may authorize suits against states only pursuant to laws enacted under Section 5 of the 14th Amendment, which empowers Congress to adopt statutes to enforce that amendment. Seminole Tribe v. Florida, 527 U.S. 44 (1996).
The problem is that in the last few years, the court has dramatically narrowed the scope of Congress' Section 5 power. The court has held that Congress, under Section 5, may not create new rights or expand the scope of rights. Congress may enact laws only to prevent or remedy violations of rights recognized by the court. Such laws must be narrowly tailored to preventing or remedying constitutional violations; in the court's words, the laws must be "proportionate" and "congruent" to the problems. See, e.g., City of Boerne v. Flores, 521 U.S. 507 (1997).
Thus, in its recent decision holding that states cannot be sued for violating the Americans With Disabilities Act, Chief Justice Rehnquist's majority opinion began by stating that disability discrimination receives only rational-basis review under the Equal Protection Clause. The court then explained that Section 1 of the Americans With Disabilities Act prohibits much that would not violate the Constitution.
The court concluded that Congress had not made sufficient findings of unconstitutional employment discrimination by state governments against the disabled to make the law "proportionate" or "congruent" to the problem.
This is identical to the method of analysis used in other recent cases. For example, two years ago, in Florida Prepaid, the court invalidated a federal law authorizing suits against states for patent infringements because there were not legislative findings of frequent infractions by the states.
Last year in Kimel, the court held that Congress could not permit suits against the states for age discrimination because there was inadequate evidence before Congress that state governments often discriminated on this basis.
After these decisions, there still was hope that Congress could hold states liable by making detailed findings of wrongful conduct by state governments. The Americans With Disabilities Act appeared to meet this requirement, because there was an elaborate record before Congress of state discrimination against the disabled.
In his dissenting opinion, Justice Breyer attached a 39-page appendix listing references from the legislative history documenting state-government discrimination against the disabled. The majority, however, rejected this as inadequate, saying that some of the evidence before Congress was anecdotal, some dealt with local governments and some involved types of discrimination in areas other than employment.
After Garrett, there is serious question as to whether states can be sued under other important federal civil rights laws, such as the Rehabilitation Act, Section 2 of the Americans With Disabilities Act (which prohibits discrimination against the disabled in the provision of government services) and the Voting Rights Act Amendments of 1982.
All of these laws prohibit more discrimination than the Constitution forbids; in each, the legislative record may not meet the court's requirements because the laws were adopted before the new tests were adopted by the Supreme Court in the last few years.
The underlying question in all of these cases is whether sovereign immunity is justified. I believe that sovereign immunity is an anachronistic relic that is inconsistent with basic precepts of constitutional law. Simply put, the Supreme Court's sovereign-immunity decisions put protecting state governments ahead of safeguarding people's rights.
The recent decision in Garrett can be understood only as declaring that preventing suits against state governments is more important than enforcing the federal law protecting the disabled from employment discrimination. This value choice, favoring government immunity over government accountability, is wrong.
The Constitution does not mention sovereign immunity. The only relevant provision is the 11th Amendment, but it only bars suits against states by citizens of other states and citizens of foreign countries. The 11th Amendment was adopted early in American history to repeal a specific clause of Article III of the Constitution, which authorized such suits.
The amendment was adopted after the Supreme Court in Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793), held that Article III authorized a suit by a resident of South Carolina against the state of Georgia. Many scholars, such as former 3rd Circuit Judge John Gibbons and 9th Circuit Judge William Fletcher, have persuasively demonstrated that the 11th Amendment was intended to prevent suits against states based solely on diversity jurisdiction. The amendment does not prohibit suits against states by their own citizens, based on federal questions or in state court.
The Rehnquist Court has acknowledged the limited scope of the 11th Amendment but has concluded that there is an expansive principle of sovereign immunity, of which the 11th Amendment is only part. In Alden, for example, the court held that sovereign immunity bars suits against states in state court, even though there is no constitutional provision concerning this and the framers never discussed it.
Sovereign immunity is a doctrine based on a common-law principle borrowed from English law, which assumed that "the King can do no wrong." However, Article VI of the Constitution states that the Constitution and laws made pursuant to it are the supreme law and, as such, should prevail over claims of sovereign immunity.
Yet, sovereign immunity, a common-law doctrine, trumps even the U.S. Constitution and bars suits against government entities for relief when they violate the Constitution and federal laws.
Sovereign immunity is inconsistent with a central maxim of American government: that no one, not even the government, is above the law. The effect of sovereign immunity is to place the government above the law and ensure that some individuals who have suffered egregious harm will be unable to receive redress for their injuries.
The judicial role of enforcing and upholding the Constitution is rendered illusory when the government has complete immunity to suit. Moreover, sovereign immunity undermines the basic principle, announced in Marbury v. Madison, 5 U.S. (1 Cranch.) 103 (1803), that "[t]he very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury."
Sovereign immunity means that people can be deprived of their property, such as a patent, or their liberty, such as the statutory right to be free from age or disability discrimination, without any remedy. This is inconsistent with the most basic notions of due process of law.
The Supreme Court's sovereign immunity decisions, such as its most recent ruling in Garrett, are aggressive, conservative judicial activism. The court's conservative majority is using a principle nowhere expressed in the Constitution to invalidate laws adopted almost unanimously by Congress.
Ironically, these are the same justices who repeatedly reject claims of individual rights because of a professed need to defer to popularly elected legislatures and to strictly construe the Constitution's text.
Someday, I believe that the court will banish the doctrine of sovereign immunity. It is inconsistent with too many basic principles of American law. But for now, sovereign immunity is growing rapidly and undermining the ability to remedy illegal acts by state governments.
Erwin Chemerinsky is Sydney M. Irmas Professor of Public Interest Law, Legal Ethics and Political Science at the University of Southern California.
Submit your own column for publication to Diana Bosetti
For reprint rights or to order a copy of your photo:
Email
jeremy@reprintpros.com
for prices.
Direct dial: 949-702-5390
Send a letter to the editor:
Email: letters@dailyjournal.com