SECTION: POINTS OF VIEW; Pg. 74
LENGTH: 1863 words
HEADLINE: People v. State
The law should protect citizens' dignity, not states' immunity. Even the Supreme Court's Hibbs decision doesn't do that.
BYLINE: By Robert A. Levy
BODY:
What a difference a year makes. In an unbroken string of seven cases from 1996 through 2002, the Supreme Court expanded the doctrine of sovereign immunity, which bars most private lawsuits against state governments for damages without their consent. In May, however, the Court reversed course in Nevada Department of Human Resources v. Hibbs. Writing for a five-member majority, Chief Justice William Rehnquist held that the 14th Amendment sometimes does permit Congress to abrogate a state's sovereign immunity. That's the right result, but the chief justice used the wrong reasoning to get there.
The Court must not forget that personal liberty is the indispensable ingredient of the American experience. Otherwise, in its zeal to constrain overarching federal power, the Court might frustrate the responsibility of the national government under the 14th Amendment to secure individual rights.
For that reason, Hibbs is an important case and a welcome turn in the Court's view of sovereign immunity. Congress may now abrogate state immunity in enforcing the 14th Amendment if three conditions are met. First, Congress' intent to abrogate immunity must be unmistakably clear. Second, as laid out in City of Boerne v. Flores [1997], Congress must identify an extensive history of discrimination, weighty enough to justify prophylactic legislation. Third, the Court said in Hibbs, Boerne also requires that there be "congruence and proportionality" between the injury and the statutory remedy.
Three constitutional amendments are at the heart of the debate. The 10th Amendment restricts national powers by limiting them to functions enumerated in the Constitution. The 14th Amendment increases those powers by authorizing congressional intervention when states violate individual rights. And the 11th Amendment states in relevant part that "The Judicial power of the United States shall not . . . extend to any suit . . . against [a] State by Citizens of another State." Despite that crystalline text, until Hibbs, the Rehnquist Court had distended the 11th Amendment, using it to constrict the reach of federal power under the 14th.
No matter. The Court acknowledged but one exemption from its ballooning immunity doctrine: States would be vulnerable to private suits pursuant to federal laws that enforce the 14th Amendment. But then, in four cases from 1999 through 2001, the Court steadily chipped away at that exemption.
But if state dignity is the justification for sovereign immunity, what can explain the numerous exceptions that have been carved out? Municipalities, which are creations of the state, can be sued under the 11th Amendment. So can state officials in their personal capacity. A state itself can be sued, by the federal government or another state. And Hibbs confirms that a state can be sued by private individuals in certain enforcement actions under the 14th Amendment.
Until we have the good sense to repeal the 11th Amendment, state sovereign immunity must reach no further than the amendment's unambiguous text. In that respect, Justice Stevens comes closest to the mark in his Hibbs concurrence. He first concedes uncertainty about whether the FMLA "was truly needed to secure the guarantees of the 14th Amendment." Stevens did not have to resolve that question. Even without a 14th Amendment pedigree, observed Stevens, the FMLA fits comfortably under a commerce clause rubric that has been decades in the making. Notwithstanding Lopez and Morrison, the Rehnquist Court is not prepared to restore the commerce clause to its original purpose -- preventing states from impeding the free flow of interstate trade.
http://80-web.lexis-nexis.com.hokhmah.stmarys-ca.edu:2048/universe/document?_m=54aac404bd63ef58c5aeec5ca6bb490a&_docnum=7&wchp=dGLbVzb-zSkVA&_md5=49770467a4a5d09fbeae293668e25de8
