Coleman and the Perils of New Federalism

By Associate Dean Michael Waterstone

Waterstone is guest blogging this month at PrawfsBlawg, on which this piece first appeared.

The Supreme Court announced its decision today in Coleman v. Court of Appeals of Maryland. For reasons I will explain below, I disagree with the plurality decision and think it is one of a growing trend of harmful and indefensible "new federalism" decisions. Spoiler alert: I think Justice Scalia makes a fine point about this jurisprudence in his concurring opinion.

First, the facts: Plaintiff had sued his state employer for damages, alleging that it violated the "self-care" part of the Family Medical Leave Act (FMLA), which entitles an employee to take up to 12 weeks unpaid leave per year for the employee's own serious health condition. In Nevada v. Hibbs, the Court had upheld the constitutionality of suits for damages against states for FMLA's "family care" provisions, which guarantee unpaid leave for the care of a newborn child, adoption or foster care placement of a child, or care of a spouse, son, daughter, or parent with a serious medical condition. But in Coleman, the Court held that Congress had exceeded its constitutional authority with the "self-care" provision. Accordingly, the state is entitled to Eleventh Amendment immunity and the plaintiff's suit for damages is dismissed on sovereign immunity grounds.

In Coleman, the Court held that unlike the family care provision, the self-care provision failed the apparently now sacrosanct City of Boerne congruence and proportionality standard. Under this standard, the Court will assess the evil or wrong Congress attempted to remedy and the means Congress adopted to address that evil. Legislation enacted under Section 5 of the Fourteenth Amendment must be targeted at conduct transgressing the Fourteenth Amendment's substantive provisions and the Court must find that there is congruence and proportionality between the injury to be prevented or remedied and the means adopted to achieve that end.

Justice Kennedy, writing for the plurality, and Justice Ginsburg, writing in dissent, disagree on how the self-care provision fares under the Boerne test. Simply stated, the plurality held that Congress did not amass sufficient evidence of unconstitutional discrimination by states in self-care leave policies. When FMLA was passed, the plurality reasoned, the vast majority of states provided paid sick leave and short term disability protection, and there was "scant evidence in the legislative history of a purported stereotype harbored by employers that women take self-care leave more than men." The dissent viewed the FMLA more broadly as an attempt by Congress to protect against gender-based discrimination in the workplace, and linked the self-care provision to pervasive state discrimination against pregnant women. Congress extended self-care protection to men and women as a means to ward off unconstitutional discrimination it believed would attend to a pregnancy-only leave requirement.

Both applied the same standard (Boerne), but came to very different views of the legislative record and the appropriateness of the remedy. I am no fan of congruence and proportionality - I have explained here why I think that even in Tennessee v. Lane (a case in which I agreed with the outcome) the Court's insistence that it was being consistent with earlier precedent was just wrong. Boerne's emphasis on combing the Congressional record and gauging how prophylactic the remedy really is just opens the door for the Justices to decide which rights - and under what context - are worthy of protection. It turns out Justice Scalia and I agree on this: he opens his concurrence by stating: "The plurality's opinion seems to me a faithful application of our 'congruence and proportionality' jurisprudence. So does the opinion of the dissent. That is because the varying outcomes we have arrived at under the congruence and proportionality test make no sense."

But to Justice Scalia, this means that (except for race discrimination, which he views as different for stare decisis reasons), he would limit Congress's Section 5 power to conduct that itself violates the Fourteenth Amendment. I find this flat out wrong. As a textual matter, Section 5 gives Congress the power to enforce the Fourteenth Amendment by appropriate legislation. If all Congress can do is outlaw that which is already unconstitutional, what is the point? And, as a co-equal branch of government, it is just misguided, and seems like a power grab, for the Court to treat Congress like an administrative agency. These are neither novel nor unique points regarding the problems with judicial supremacy, but Coleman puts in sharp focus just how much the Court is "dissing Congress." Congress needs more deference to be able to do its constitutional job, whether that means allowing Congress latitude when the Court applies the Boerne standard, or, preferably, abandoning congruence and proportionality altogether. Coleman indicates we will be litigating not just right by right (as in the Americans with Disabilities Act context), but statutory subsection by statutory subsection, whether Congress amassed enough evidence to satisfy its jurisprudential superiors. At least to me, sovereign immunity should not and does not compel this result.