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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. More details in a moment, but first the bigger picture. The Court’s wide-ranging doctrine of sovereign immunity has been a major component of a Rehnquist-led reinvigorated jurisprudence of federalism, celebrated by most right-of-center legal scholars. From the libertarian wing, however, comes considerable skepticism, even outright hostility. When sovereign immunity is used, supposedly to reinforce federalism, it constricts rather than enlarges personal liberty. GOOD INTENTIONS GONE BAD Essentially, the Rehnquist Court has invoked sovereign immunity to deny individuals a monetary remedy for harms suffered at the hands of government. In its defense, the Court proceeded with the best of intentions — to restrain a Congress that has flouted the doctrine of enumerated powers and established a pervasive regulatory and redistributive state that threatens individual liberty. The federal government can impose rules for virtually anything and everything. It can exact tribute from anyone, for almost any purpose, then dispense the proceeds to anyone else. No doubt, the Court’s steps to curtail Congress’ seemingly boundless powers were long overdue. In United States v. Lopez(1995), for example, the Court said that the federal government cannot criminalize gun possession near a school under the guise of regulating commerce. Five years later, in United States v. Morrison, the Court held that Congress cannot regulate noneconomic acts merely because, in the aggregate, they may affect interstate commerce. Those are positive measures. But Congress can be ingenious in finding presumed authorization for its whims and wishes. That is probably why the Court sought a more sustainable method of curbing federal power. The result: an expansive application of sovereign immunity to prohibit private enforcement of many federal statutes in damage suits against the states. Most of these statutes exceeded Congress’ constitutionally prescribed role. Thus, the cutback in federal power was certainly justified. Nonetheless, it was accomplished in the wrong manner. In pursuing the legitimate ends of limited federal government, the Court adopted the illegitimate means of using sovereign immunity to prevent individuals from recovering when a state caused them harm. 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, Hibbsis 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, Boernealso requires that there be “congruence and proportionality” between the injury and the statutory remedy. In Hibbs, the relevant legislation was the Family and Medical Leave Act of 1993, which grants unpaid leave when an employee’s parent, child or spouse is seriously ill. The FMLA was designed to address lingering gender discrimination in the workplace. Congress found that women were disproportionately burdened by having to take care of sick family members. Rehnquist concluded that Hibbssatisfied all three conditions. He was joined by three of the four liberals on the Court, and by Justice Sandra Day O’Connor who, like Rehnquist, had voted with the more conservative wing on key sovereign immunity cases. Justice John Paul Stevens filed a separate opinion concurring in the judgment. Justice Anthony Kennedy dissented, joined by Justices Antonin Scalia and Clarence Thomas. Scalia also wrote a separate dissent. HEART OF THE DEBATE Three constitutional amendments are at the heart of the debate. The 10th Amendment restrictsnational powers by limiting them to functions enumerated in the Constitution. The 14th Amendment increasesthose 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. In 1890 ( Hans v. Louisiana), the Court had held that sovereign immunity applied to suits against a state by its own citizens. The Rehnquist Court in 1996 ( Seminole Tribe of Florida v. Florida) immunized states against actions brought under federal question, not just diversity, jurisdiction. And in 1999 ( Alden v. Maine), the Court extended immunity to suits in state courts. Plainly, the text of the 11th Amendment covered only diversity of citizenship cases in federal court. 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. Two of those cases were near-replicas of Hibbs. In Kimel v. Florida Board of Regents(2000), the Court held that Congress’ attempted abrogation of state immunity in the Age Discrimination in Employment Act exceeded its authority to enforce the 14th Amendment. Age is not a “suspect class,” so states have more leeway to discriminate by age than by, say, race. Thirteen months later, the Court decided University of Alabama v. Garrett(2001), upholding state immunity from suit under the Americans With Disabilities Act. Disability, like age, is not a suspect class. In Hibbs, however, the alleged discrimination was based on gender, which the Court gives heightened review, not the minimal scrutiny applied to age- or disability-based discrimination. As Rehnquist wrote, “it was easier for Congress to show a pattern of state constitutional violations.” Moreover, the FMLA, unlike the ADEA or the ADA, “is narrowly targeted . . . and affects only one aspect of the employment relationship.” Maybe so, but Justice Kennedy for the dissenters questioned whether the states had “engaged in a pattern of unlawful conduct which warrants the remedy of opening state treasuries to private suits.” He remarked on the Court’s inability to adduce evidence of alleged discrimination and “the inescapable fact that the federal scheme is not a remedy but a benefit program.” Justice Scalia agreed, and warned against “guilt by association, enabling the sovereignty of one State to be abridged . . . because of violations by another State . . . or even by 49 other States.” Just a year earlier, the dissenters in Hibbshad attracted support from Rehnquist and O’Connor, widening sovereign immunity to bar suits by private parties against a state in a federal administrative agency. The conservatives in that case, Federal Maritime Commission v. South Carolina State Ports Authority(2002), asserted that the “central purpose” of sovereign immunity “is to accord the States the respect owed them as joint sovereigns.” In other words, the primary reason for immunity is to give the states the dignity that their sovereign status entails. 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 Hibbsconfirms that a state can be sued by private individuals in certain enforcement actions under the 14th Amendment. Sovereign immunity was derived from the English common law premise that “the King can do no wrong.” But the Constitution’s framers rejected monarchy, disavowed royal prerogatives and, in their place, established a system that recognized this fundamental reality: Governments can and will do wrong. They must be held accountable, and sovereign immunity is antithetical to that goal. Indeed, the Constitution would be a more liberating document if the 11th Amendment had never been ratified. Of course, it was ratified in 1795, and so the Court is stuck with it. WHAT ABOUT PEOPLE’S DIGNITY? Still, a proper understanding of the role of government dictates that the amendment be construed narrowly. Clearly, that is not what has unfolded during the Rehnquist years. By its extratextual reading of the 11th Amendment, the Court has taken the common law of sovereign immunity, dubious on its own terms, and constitutionalized it. Concern for state dignity now supersedes the rights of individuals, relegated by judicial edict to the bottom of the pecking order. 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 Hibbsconcurrence. 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 Lopezand 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. As to sovereign immunity itself, Stevens is undoubtedly correct: “The 11th Amendment poses no barrier to the adjudication of this case because the respondents are citizens of Nevada.” On that score, Hibbsyielded the right result. Regrettably, the Court missed its eighth opportunity in as many years to affirm that compensating injured parties and deterring state misbehavior takes precedence over safeguarding government bank accounts. A free society cannot subordinate the rights of individuals to the “dignity” of state governments — not even with the noble aim of inhibiting federal power. Robert A. Levy is senior fellow in constitutional studies at the Cato Institute in Washington, D.C. ( www.cato.org).

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