The Court marks the limits of federalism.

When historians look back at the Rehnquist Court, undoubtedly they will say that its most significant changes to the law have been with regard to federalism. In the last decade, the U.S. Supreme Court has limited the .scope of Congress's power under the Commerce Clause and [section] 5 of the Fourteenth Amendment; revived the Tenth Amendment as a constraint on federal power; and greatly expanded the scope of state sovereign immunity.

Last term, however, the Court rejected the "states' rights" argument and ruled in favor of federal power in each of the three federalism cases that it heard. It would be a mistake to read these decisions as a sign that the five conservative justices--who have been the majority in all of the recent federalism cases--are now abandoning their position.

Nothing in any of these cases suggests a retreat from any of the states' rights decisions from the last decade. Rather, the cases are important because they show that the Court's receptiveness to federalism arguments has limits and that there are many instances in which even the five pro-federalism justices will rule in favor of federal power.

Reining in Congress

In recent years the Supreme Court has dramatically narrowed Congress's ability to authorize suits against state governments. For example, in 1996, in Seminole Tribe v. Florida, the Court held that Congress may authorize suits against states using only laws enacted under [section] 5 of the Fourteenth Amendment--not using any other congressional power. (1)

In 1997, in City of Boerne v. Flores, the Court limited Congress's [section] 5 powers to prevent or remedy violations of rights recognized by the Court, stating that Congress cannot expand the scope of rights or create new rights. (2)

The combination of Seminole Tribe and City of Boerne already has had a devastating effect on many types of claims. In a 1999 decision, Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, the Court held that state governments cannot be sued for patent infringement. (3) It decided in Kimel v. Florida Board of Regents that state governments may not be sued for violating the Age Discrimination in Employment Act. (4) And in Board of Trustees of University of Alabama v. Garrett, the Court ruled that state governments may not be sued for employment discrimination in violation of Title I of the Americans with Disabilities Act. (5)

In sharp contrast, last term the Court ruled, in Nevada Department of Human Resources v. Hibbs, that state governments may be sued for violating the Family and Medical Leave Act (FMLA). (6) Even though the act is written in gender-neutral language---and even though the plaintiff in Hibbs was male--the Court said that the law clearly had the goal of advancing equality for women in the workplace. Chief Justice William Rehnquist wrote for the Court, in a 6-3 decision:

   The FMLA aims to protect the right to be
   free from gender-based discrimination in
   the workplace.... The long and extensive
   history of sex discrimination prompted us
   to hold that measures that differentiate on
   the basis of gender warrant heightened
   scrutiny; here, the persistence of such
   unconstitutional discrimination by the
   states justifies Congress's passage of prophylactic
   [section] 5 legislation. (7)

Most important, the Supreme Court held that Congress has greater authority to act under [section] 5 of the Fourteenth Amendment when it deals with lace mad gender discrimination, which receive heightened scrutiny under equal protection. Thus, the Court distinguished its carrier rulings in Kimel and Garrett because those dealt with age and disability discrimination, respectively, which receive only rational-basis review.

Hibbs will be crucial as lower courts consider whether states can be sued under statutes that provide more protection against race and gender discrimination than the Constitution does.

For example, Tire VII of the 1964 Civil Rights Act prohibits employment discrimination where there is a disparate impact according to race, gender, or religion. The Constitution, however, requires proof of discriminatory purpose. (8)

Similarly, [section] 2 of the Voting Rights Act, as amended in 1982,creates a cause of action for racially disparate impact in voting systems, while the Constitution requires proof of discriminatory intent. (9) After Hibbs, there is a strong argument that plaintiffs can sue state governments under these statutes because they concern types of discrimination that receive heightened scrutiny.

Reaffirming the Commerce Clause

From 1937 until 1995, no federal law was invalidated as exceeding the scope of Congress's Commerce Clause authority. Countless criminal and civil laws were enacted under this constitutional power, but in the last several years, the Supreme Court has made it clear that the judiciary will enforce strict limits on Congress's power under this provision.

In United States v. Lopez, the Court declared unconstitutional the Gun-Free School Zones Act, a federal law that made it a crime to possess a firearm within 1,000 feet of a school. (10) In a 5-4 decision, Rehnquist emphasized that Congress's powers under the Commerce Clause must be interpreted in a limited manner. The Court held that Congress may regulate only the channels of interstate commerce, the instrumentalities of interstate commerce, persons or things in interstate commerce, and activities that have a substantial effect on interstate commerce. The Court found that because the federal law prohibiting guns near schools met none of these requirements, it was unconstitutional.

In another decision, United States v. Morrison, the Court followed Lopez and declared unconstitutional the civil damages provision of the Violence Against Women Act. (11) The provision created a federal cause of action for victims of gender-motivated violence. In Mormon, former college student Christy Brzonkala claimed that she was raped by football players at Virginia Tech University. The football players were not criminally prosecuted and ultimately avoided even university discipline.

Brzonkala filed suit under the Violence Against Women Act, and the federal government intervened, defending the law on the ground that Congress had found that gender-motivated violence costs the U.S. economy billions of dollars a year.

The Supreme Court rejected these findings as insufficient to sustain the law. Rehnquist stated that Congress was regulating noneconomic activity that has traditionally been dealt with by state laws. Moreover, the Court stressed that the statute contains no jurisdictional provision necessitating proof of an effect on interstate commerce. Rehnquist wrote that Congress cannot justify regulation in this area by finding that die cumulative impact of an activity has a substantial effect on interstate commerce. (12)

Against this backdrop, the Court's decision last term upholding a federal law under the Commerce Clause, in Pierce County, Washington v. Guillen, is significant. (13) Congress sought to encourage local governments to gather information about traffic safety and feared that there would be a disincentive to do so if the information would be discoverable and could be used against them in court. Therefore, it enacted a federal statute that protects information "compiled or collected" by local governments for federal highway "safety programs from being discovered or admitted in certain federal or state trials. (14)

The Supreme Court of Washington declared the federal law unconstitutional as exceeding the scope of Congress's powers and infringing on states' rights. But the U.S. Supreme Court, in an opinion written by Justice Clarence Thomas, unanimously reversed that decision and upheld the law:.

   It is well established that the
   Commerce Clause gives Congress
   authority to "regulate the
   use of the channels of interstate
   commerce." ... Congress could
   reasonably believe that adopting
   a measure eliminating an unforeseen
   side effect of the information-gathering
   requirement
   of [section] 152 would result in more diligent
   efforts to collect the relevant
   information, more candid
   discussions of hazardous locations,
   better informed decision-making,
   and, ultimately, greater safety on
   our nation's roads.... [T]he [law] can be
   viewed as legislation aimed at improving
   safety in the channels of commerce and
   increasing protection for the instrumentalities
   of interstate commerce. As such, they
   fall within Congress's Commerce Clause
   power. (15)

The Court thus emphatically "affirmed Congress's power under the Commerce Clause to regulate the channels of interstate commerce.

Last term, in Jinks v. Richland County, South Carolina, the Court rejected a federalism argument against a provision of the federal supplemental jurisdiction statute, 28 U.S.C. [section] 1367(d), which provides that the statute of limitations is tolled on supplemental state law claims that are properly filed in federal court. (16) The South Carolina Supreme Court had ruled that [section] 1367(d) is unconstitutional when it forces state courts to toll the statute of limitations on state law claims against local governments.

The Supreme Court unanimously reversed and rejected the federalism argument, stressing Congress's power to enact the law under the "necessary and proper clause" to preserve the attractiveness of the federal forum for potential litigants. Writing for the Court, Justice Antonin Scalia explained that without supplemental jurisdiction and the tolling provision, plaintiffs desiring to present both federal and state claims would be forced to litigate in state courts. The Court rejected the claim that the law unduly intruded on state sovereignty, emphasizing Congress's power to protect the federal courts that it is empowered to create.

One term and three decisions do not make a trend. It would be a mistake to read too much into these cases and see them as a retreat on federalism. But the cases are significant because for the first time in the last decade, the Court's decisions held that a state government can be sued under a federal law and that a statute is within the scope of Congress's commerce power.

The cases offer hope to plaintiff lawyers arguing federalism issues before the Supreme Court and lower federal courts: Even a Court deeply committed to protecting states' rights sees the need--at least in some areas--for broad federal powers.

Notes

(1.) 517 U.S. 44 (1996).

(2.) 521 U.S. 507, 519-24 (1997).

(3.) 527 U.S. 627 (1999).

(4.) 528 U.S. 62 (2000).

(5.) 531 U.S. 356 (200l).

(6.) 123 S. Ct. 1972 (2003).

(7.) Id at 1978-79.

(8.) See Okrahlik v. Univ. of Ark., 255 F.3d 615 (8th Cir. 2001 ); In re Employment Discrimination Litig. Against Ala., 198 F.3d 1305 (11th Cir. 1999) (allowing suits against states under Title VII).

(9.) Dillard v. Baldwin County Comm'rs, 225 F.3d 1271 (11th Cir. 2000); Mixon v. Ohio, 193F.3d 389 (6th Cir. 1999) ([section] 2 of the Voting Rights Act abrogrates sovereign immunity).

(10.) 514 U.S.549 (1995).

(11.) 529 U.S.598 (2000).

(12.) Id. at 614-18.

(13.) 123 S. Ct. 720 (2003).

(14.) 23 U.S.C. [section] 409 (2003).

(15.) Guillen, 123 S. Ct. 720, 731-32.

(16.) 123 S. Ct. 1667 (2003).

Erwin Chemerinsky is the Sydney M. Irmas Professor of Public Interest Law, Legal Ethics, and Political Science at the University of Southern California.