Constitutional Law Class Notes 4/21/04


We will talk about the Padilla briefs tomorrow and Monday.


United States v. Morrison – Fourteenth Amendment issues


This is one of the first cases we read, but we didn’t talk about § 5 back then.  Why is the civil remedy that Congress adopted in VAWA beyond their § 5 powers?  In other words, why is the statute not “congruent and proportional”?  First off, we have the state action doctrine.  The civil remedy authorized by Congress was against the rapist, not against any state actor.  So Brzonkala sued Morrison, a private citizen.  Even though it was a case of gender violence and thus arguably gender discrimination, which is surely a concern of the Fourteenth Amendment (see VMI), Congress doesn’t have the power under that Amendment to let Brzonkala sue Morrison.


Is Brzonkala trying to assert that Morrison violated the Fourteenth Amendment, or is she alleging that it was a state actor that actually unconstitutionally?  It’s not the rape that’s considered to be a § 1 violation, but rather it’s what the state courts are doing or not doing in response to the rape.  The petitioners contend that to combat a § 1 violation, Congress can apply § 5 more broadly than just against those parties who are § 1 violators.


The constitutional violation that Congress is supposedly addressing is the failure of state court systems to give adequate remedies for crimes of gender violence.  It’s not that there was no state law on the books about gender discrimination: Virginia probably made rape a crime and had assault as a tort.  But the allegation was that in many states, perhaps including Virginia, the judicial systems were insensitive (or worse) to litigants in gender-biased ways.  Thus, it was difficult for litigants to get relief in state court.  Congress attempted to document these violations when they passed the statute.


Why is there a state action doctrine problem here?  There’s a state actor that’s doing something unconstitutional.  So why doesn’t Congress have the power to punish somebody?  The argument is that it’s not just anybody that they can have punished.  You would have to punish the state court systems.  But then you would run right into the Eleventh Amendment.  The remedy that Congress adopts is not a new federal law that orders state judiciaries to stop being gender biased.  Instead, it’s a new federal cause of action in federal court against a private litigant that, in the Court’s view, supplants what’s going on in state court.  Well, if the state judiciary is biased, maybe we should bypass it, according to Breyer and the dissent.  But the majority says that if you have a problem with the conduct of state officials, you need to address their conduct directly rather than replace them with federal officials.  That’s why the Court said that this law was not congruent or proportional: they basically said that Congress overreacted to the problem.  The Court said that the fact that there is gender bias in some judicial systems does not necessarily give Congress the right to give a remedy applicable to all judicial systems.  If there are 25 states with biased judicial systems, it is argued that Congress may only pass a law that affects just those 25 states but not the ones that have not been found to be biased.  The Court says that Congress can’t adopt the same remedy in response to all state judicial systems just because some of them, even most of them, show bias.  The key question is whether Congress has overreacted to a problem.  In Morrison, the Court thought that they did.


Nevada Department of Human Resources v. Hibbs


What are the facts of the case?  What’s the § 5 question?  The plaintiff wanted to take time off under the FMLA to take care of his sick spouse.  He got the full 12 weeks, and then he was told if he didn’t return at the end of that 12 weeks, he would be terminated.  He sued the Department in federal court in Nevada.  FMLA grants all employees 12 weeks of unpaid leave if a family member gets sick.  There was no Commerce Clause authority in Morrison.  Why not invoke the Commerce Clause to find congressional power here?  The important issue is that the employer is a state employer.  The FMLA applies not just to state employers, but also private employers.  Recall the relationship between the Commerce Clause and § 5.  There was no Commerce Clause power for VAWA in Morrison because Congress can’t just make rape a federal crime because it’s not commercial activity.  But we have commercial activity here.  So why can’t Congress say that whatever leave is being imposed is being given under the Commerce Clause?  It’s the Eleventh Amendment!


It’s the interposition of the sovereign immunity idea that creates the need to address § 5.  That’s one way that Morrison and Hibbs are different.  In Morrison, there is no Commerce Clause authority at all.  Here, there is Commerce Clause authority, which makes the Act valid with respect to all private sector employers, but Congress cannot rely on the Commerce Clause with respect to state employers when you want to allow suits for money damages.  But the plaintiff here is suing the state of Nevada for money.  Because he’s claiming money, the state is claiming that they can’t be sued for money in federal court because of sovereign immunity.  So Hibbs’s retort is that Congress is acting pursuant to not just the Commerce Clause but also § 5 of the Fourteenth Amendment.  That sets up the need to address § 5 in this case.


Is the FMLA valid § 5 legislation?  The majority finds that it is because the statute is “congruent and proportionate”.  This is a major statement from the Rehnquist Court about the scope of congressional power.  This statement came as a surprise to many people and signals a difference from where they had been going.  There had been a lot of cases where Congress was not allowed to legislate under § 5.  But this case says: “Yes, Congress, you can do this!”  Now we have to figure out what made the Court say “yes” in Hibbs when it said no in so many other cases.  Notice the unusual split in the Court!  Rehnquist sides with the liberals, and O’Connor and Kennedy are split.  Rehnquist may be not as consistently conservative than Scalia and Thomas are.  Rehnquist probably falls somewhere between Scalia and Thomas on the one hand, and O’Connor and Kennedy on the other.  Recall VMI: Rehnquist was part of the majority that found that VMI violated the Equal Protection Clause.  It’s surprising to see Rehnquist as more liberal than Kennedy.  They’re all individuals, and they all think on their own.


What does the Court say in Hibbs as to why this is a congruent and proportional remedy?  They say that it’s narrowly tailored and has limitations that prevent it from being overly broad and all-encompassing.  Rehnquist sees this law as narrowly tailored to the problem Congress was addressing.  What’s the problem that Congress was addressing?  Congress found that women were being discriminated against.  How do we tie that to § 1 of the Fourteenth Amendment?  In order for this to be narrowly tailored in relationship to the Fourteenth Amendment, it must be connected to a § 1 violation.  How is the 12 week leave policy connected to an unconstitutional conduct by state governments that violates § 1?  We have governmental discrimination and state action here, even though leave policies occur in the private sector as well as the public sector.  The Court says that they have evidence of state governments being discriminatory on the basis of gender.  They say there is also specific evidence of state governments engaging in discrimination with respect to the particular issue at hand: states grant more leave time to women than men.  They find that this is evidence of an unlawful stereotype about women.  It’s not just discriminatory impact or discriminatory effects, but discrimination on the face of the law.  They say that they also saw evidence that facially neutral policies were being administered in a discriminatory way.  The Court was able to identify a problem of constitutional magnitude with respect to § 1.  There were things state governments were doing that would violate § 1.


If the state judiciary is being administered in a way that reflects gender bias, that would be just as unconstitutional as if state employers were reflecting gender bias.  And in Morrison, there was evidence of bias in state judiciaries.  However, Congress loses in Morrison because they “overreacted” and wins in this case because the remedy is narrow tailored.  What makes this statute narrowly tailored?  It is “narrowly targeted at the fault line between work and family” (opinion at 1983).  We have a “leave problem” and we have a “leave remedy”.  In Morrison, we had a problem with the state judiciary.  But the statute didn’t fix the state judiciary; it replaced it with the federal judiciary.  Also, in the present case, Congress had tried to use Title VII to prevent gender discrimination, but this was a failure.  This makes it more likely that the FMLA is constitutional in light of the states’ recalcitrance.  The mere fact that employers are not giving 12 weeks is not a constitutional violation; it’s only gender discrimination that is a constitutional violation.  This is a case where the remedy Congress adopts is broader than § 1.  But the Court says that this is okay because it is targeted, responsive, and is based on an evidentiary record.  Thus, it doesn’t go too far.


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