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INSIGHT: Supreme Court Upturns Constitutional Federalism, Yet Again

April 6, 2020, 8:01 AM

The U.S. Supreme Court’s March 23 ruling in Allen v. Cooper is its latest in empowering states at the expense of the federal government—in variance with all that our Constitution has to say about the matter.

The court found states enjoy sweeping sovereign immunity from suits to enforce federal law, and that the federal government can do precious little about it.

The ruling is surprising, because our federal Constitution unequivocally makes the federal government supreme over the states. Yet the Supreme Court, time and time again, has read the Constitution to empower the states.

From its early rulings after the Civil War that limited and struck federal laws that were designed to protect civil rights against the states, through its more recent rulings that protect states from federal “encroachment,” the court has restricted federal power in relation to the states. And it’s done this all in the name of “state sovereignty” and “states’ rights”—ideas that are only faintly perceptible in our Constitution, at least as compared to the Constitution’s bold and commanding federal supremacy.

In Allen, the Supreme Court used the Eleventh Amendment. The court dismissed a case by a North Carolina videographer against that state for using his copyright-protected videos and pictures in violation of the federal Copyright Remedy Clarification Act of 1990. The court ruled the Eleventh Amendment protected North Carolina against this suit, and that Congress could not “abrogate” North Carolina’s immunity.

The ruling not only empowered the state at the expense of the federal government; it also left one of the state’s citizens without a federal judicial remedy for a violation of federal copyright law.

This result would surprise even a casual reader of the Constitution. That’s because the Eleventh Amendment only says that “[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State . . . .” (Emphasis added.)

Court Expands Plain Text to Empower the State

The Amendment says nothing about state sovereign immunity; instead, it’s only a restriction on the federal courts’ jurisdiction under Article III. And to the extent that it recognizes any state sovereign immunity, it only extends immunity to suits “by citizens of another state.”

So when the court ruled in Allen that the Eleventh Amendment protected North Carolina, it yet again dramatically expanded the plain text in order to empower the state, and to leave one its citizens without a federal remedy.

But there’s more. The court also ruled that Congress did not abrogate North Carolina’s immunity by authorizing the lawsuit under the CRCA. The court said that Congress can abrogate state sovereign immunity by enacting legislation under its powers in the Fourteenth Amendment, but not, as here, under its powers in Article I.

This, too, would surprise even a casual reader of the Constitution. The court has, indeed, held that Congress can abrogate state sovereign immunity by enacting enforcement legislation under the Fourteenth Amendment. That’s because the Fourteenth Amendment “contained prohibitions expressly directed at the States.” In other words, the Fourteenth Amendment expanded federal power at the expense of the states, and therefore Congress could abrogate.

But this is true, too, under Congress’s Article I authorities. The 1787 Constitution granted Congress vast and new powers, including broad powers over the states. It also granted the courts the power to hear cases against the states, including cases under federal law.

Putting these powers together, the Constitution empowered Congress to enact federal law, and to enforce that law against the states by authorizing federal lawsuits. Yes, the Eleventh Amendment restricts those powers, but only as to lawsuits against a state by a citizen of another state.

Yet the court in Allen went in the exact opposite direction. In doing so, it pointed to a 1999 ruling, Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, where the court held that Congress could not abrogate state sovereign immunity under the Patent Remedy Act, which Congress enacted under its Article I powers.

Florida Prepaid, in turn, was based on a 1996 ruling, Seminole Tribe of Florida v. Florida, where the court held for the first time—without citing meaningful authority, and in direct conflict with the text and structure of the Constitution—that Congress did not have the power to abrogate state sovereign immunity under the Indian Commerce Clause, another Article I power.

Seminole Tribe, a 5-4 ruling, was based only on the raw political power of a five-justice majority to read into the Constitution a robust state sovereign immunity. Florida Prepaid, another 5-4 ruling, was based on Seminole Tribe. In other words, Allen stands on a house of cards.

But even with its weak and shaky foundation, Allen nevertheless solidifies the false ideas that states enjoy categorical sovereign immunity under the Eleventh Amendment and that Congress can only abrogate that immunity by enacting legislation under its Fourteenth Amendment power.

Those false ideas, along with the court’s other extra-textual moves to empower the states at the expense of the federal government, artificially constrict the enforcement of federal law against the states. That’s bad news for anyone who wants to hold states’ feet to the fire of federal law.

And, more generally, it’s bad news for our constitutional system of federal supremacy.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

Author Information

Steven D. Schwinn teaches constitutional law, comparative constitutional law, and human rights at the University of Illinois Chicago John Marshall Law School. He also co-edits the Constitutional Law Prof Blog.