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Thursday, March 22, 2012

Supreme Court's Ruling in Coleman v. Maryland Court of Appeals Illustrates Ideological Divide over Congress’ Power to Enforce the Fourteenth Amendment

David Gans

On Tuesday, a sharply fractured Supreme Court issued its ruling in Coleman v. Maryland Court of Appeals, holding that individuals may not sue a state government employer for money damages for violating the self-care provision of the Family and Medical Leave Act. In a 5-4 ruling – the first opinion on the scope of Congress’ power to enforce the Fourteenth Amendment since John Roberts became Chief Justice – the conservatives on the Roberts Court joined in holding that the FMLA’s self-care provision was not a valid exercise of Congress’ power to enforce the Fourteenth Amendment, distinguishing the Court’s 2003 decision in Nevada Dep’t of Human Resources v. Hibbs, which had permitted suits against the states under the family-care provision of the FMLA. In an opinion striking in its willingness to second-guess Congress’ exercise of its power to enforce the Fourteenth Amendment’s command of equality for all persons, Chief Justice Roberts and Justice Alito joined the Hibbs dissenters in holding that Congress lacked the power to subject states to suits for money damages for violating the FMLA’s provision giving individuals the right to take medical leave to care for a pregnancy, illness, or other medical condition.

The Fourteenth Amendment gives Congress the power to “enforce” the Amendment’s guarantees of liberty and equality by “appropriate legislation.” Acting in the aftermath of the Supreme Court‘s decision in Dred Scott v. Sandford, the Framers of the Fourteenth Amendment chose broad, sweeping language giving Congress the power to enforce the Amendment’s commands because they were understandably reluctant to leave the judiciary with the sole responsibility for protecting constitutional rights. As we explain in the amicus brief we filed in Coleman and in CAC’s report, The Shield of National Protection, in giving Congress the power to enforce the Fourteenth Amendment’s guarantees, the Framers stressed the importance of a broad legislative power to protect constitutional rights – with corresponding deference from the courts to respect this new authority.

Coleman reflects a deep and persistent ideological divide on the Court about whether to follow this text and history or invent new limitations to curb the power of Congress to protect civil rights. As we explain in Chapter 3 of our new report, The Constitution at a Crossroads: The Ideological Battle Over the Meaning of the Constitution, the Supreme Court has been sharply divided between Justices on the left, who have argued that the power of Congress under the Fourteenth Amendment is wide in scope, consistent with understanding of the Framers that Congress would have broad power to enact legislation to make the Amendment’s guarantees a reality, and Justices on the right, who would sharply restrict the power of Congress, permitting Congress to legislate only after creating an exhaustive record showing that the legislation is a tailored response to a pattern of proven constitutional violations by the states. Coleman indicates that, with the confirmations of Chief Justice John Roberts and Justice Samuel Alito, there are now five Justices who will look to second-guess efforts by Congress to enforce the Fourteenth Amendment’s guarantees of liberty and equality.

Coleman does not break much new ground; the opinions of the four-Justice plurality and of the concurring and dissenting Justices reflect the same, persistent divide on the Court seen in its past cases. What is new – and undeniably significant – is that Chief Justice Roberts and Justice Alito agree with Justice Kennedy that Congress’ power to enforce the Fourteenth Amendment must be strictly limited. Writing for the plurality, Justice Kennedy argued that Congress failed to show that the self-care provision was properly tailored to remedy a pattern of proven constitutional violations by the states. Reading the congressional record in a distinctly uncharitable manner, Justice Kennedy’s plurality opinion dismissed the claim that the self-care provision aimed at sex discrimination, emphasizing that “Congress made no findings” and did not “cite specific or detailed evidence” to show that the self-care provision was part of the FMLA’s comprehensive effort to address gender discrimination in employment. Justice Kennedy gave a stingy reading to the Court’s 2003 decision in Hibbs, effectively limiting it to its facts, while ignoring its holding that Congress is entitled to due deference when it enforces established constitutional protections, such as the right to be free from gender-based discrimination.

Providing the fifth vote to prevent suits against the states for damages for violating the FMLA’s self-care provision, Justice Antonin Scalia went even further, arguing that Congress was limited to regulating conduct that itself violates the Fourteenth Amendment, a radical revision that would invalidate most exercises of the enforcement power. According to Justice Scalia, Congress has no power to enact prophylactic legislation to ensure that the Fourteenth Amendment’s guarantees are actually enjoyed by all persons, a view that would have been unthinkable to the Framers of the Fourteenth Amendment, who did not want to leave the judiciary with the sole responsibility for protecting constitutional rights.

In dissent, the Court’s liberal Justices called the majority to task for diluting a critical part of Congress’ effort to enforce the Fourteenth Amendment’s command of equality by denying state employees a right to their day in court to seek redress for violation of the Act’s self-care provision. In an opinion written by Justice Ruth Bader Ginsburg, the four liberal Justices argued that Justice Kennedy had perverted the congressional record, ignoring the judgment of Congress that the FMLA was necessary “to guarantee – without singling out women or pregnancy – that pregnant women would not lose their jobs when they gave birth. The self-care provision achieves that aim.” She chided the plurality and Justice Scalia for failing to take seriously “the main theme of our decision in Hibbs” – that the FMLA enforces the right to be free from gender-based discrimination in the workplace. Read in light of the FMLA’s overriding purpose to “reduce sex-based inequalities in leave programs,” the dissenters argued that the FMLA’s self-care provision fell squarely within Congress’ broad power to enforce the Fourteenth Amendment’s guarantee of the equal protection of the laws to all persons.

Since the beginning of the American republic, it has been our tradition that Congress is entitled to due deference when exercising its express constitutional powers. But in cases like Coleman, the Court’s five conservative Justices have departed from that tradition, picking over the congressional record looking for ways to second-guess Congress’ considered judgment, and turning their back on the text and history that give Congress broad power to ensure that the guarantees of the Fourteenth Amendment are fully enjoyed by all Americans.

David Gans is the Director of the Human Rights, Civil Rights & Citizenship Program at the Constitutional Accountability Center, and a co-author of CAC's amicus brief in Coleman. This post is cross-posted at Text & History.

Comments:

"who did not want to leave the judiciary with the sole responsibility for protecting constitutional rights"

The approach of the majority doesn't require that; it narrows the reach of let's say criminal law or civil remedies passed by Congress and enforced by the executive, it doesn't take them all away.
 

Given recent posts, I wonder if a 14A argument can be made for the PPACA -- equality in health care etc. or some national privilege or immunity of health care. It wouldn't necessarily be a right enforced in court w/o congressional legislation, but with it, it could be tied to that. I think Judge (Prof.) Liu argued for something of the sort for education.
 

Regarding Joe's second comment, Rebecca E. Zietlow's "Democratic Constitutionalism and the Affordable Care Act" aims in that direction. A link to her article is provided at Prof. Zietlow's earlier post on this Blog; it is available at SSRN:

http://ssrn.com/abstract=2000924

At page 36 of this 40 page article:

"No litigant has raised the issue of whether the Act protects any rights, including a right to health care, though Judge Jeff Sutton noted the right in passing in his important concurrence to the Sixth Circuit opinion upholding the Act. Because of the political salience of the issue, and because of the conflicting rulings in the lower courts, commentators predict that the United States Supreme Court will eventually determine the constitutionality of the ACA. Unless the government changes its tactics, however, it is unlikely that the Court will consider whether the ACA can be justified as a statute protecting a right to health care. This is an unfortunate oversight."

At page 38, there is an interesting discussion of an amicus brief of the National Women's Law Center asserting a right to health care argument making " ... the intriguing claim that the ACA is analogous to the Civil Rights Act of 1964, which was unanimously upheld by the Supreme Court, because the 1964 Act also regulated non-participation in the market--the refusal of businesses to serve African Americans. While the NWLC brief does not claim that the ACA protects a fundamental right to health care, it does frame the ACA as a civil rights measure, taking the debate beyond the dry legalese of the Commerce Clause and revitalizing the rights-based claims of the popular and democratic constitutionalism that led to the passage of the Act."
 

“A New Birth of Freedom” by Charles L. Black, Jr. is an excellent little volume and part of its argument for 9A/DOI/P&I rights is an affirmative right to certain things necessary for the "pursuit of happiness."

Such affirmative benefits would by necessity be legislative in nature, but the fact something is in part a "political question" does not take away certain obligations from political actors.

Given the nature of the matter, including a national health industry and federal funding of Medicare etc., health care would be a national right, more so than education, though even there, people like George Bush Jr. accept a role for the national government, including by tax and spending, in that area.
 

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