section 7: federalism
TRANSCRIPT
College of William & Mary Law SchoolWilliam & Mary Law School Scholarship Repository
Supreme Court Preview Conferences, Events, and Lectures
2000
Section 7: FederalismInstitute of Bill of Rights Law at the William & Mary Law School
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Repository CitationInstitute of Bill of Rights Law at the William & Mary Law School, "Section 7: Federalism" (2000). Supreme Court Preview. 89.https://scholarship.law.wm.edu/preview/89
FEDERALISM
In This Section:
+ LAST TERM: Kimel v. Florida Board of Regents et al, Nos. 98-791, 98-796
Court Shields States in Suits on Age BiasDavid G. Savage ......................................................... 345
Court Curbs Suit by State Workers,; Continuing a Pattern,5-4 Ruling Bars Claims ofAge Bias Under Federal LawJoan Biskupic ........................................................... 348
+ LAST TERM: Reno et al v. Condon et al, No. 98-1464
Justices Uphold Ban on States' Sales of Drivers' License InformationLinda Greenhouse ....................................................... 350
Court Backs Privag for Data on Drivers
Joan B iskupic ....................................................................................... 352
* LAST TERM: United States v. Morrison et al and Brzonkala v. Mornison et al,Nos. 99-5 and 99-29
Women Can't Sue Rapists, Court Says; Justices Strike DownKey Part of Violence Against Women ActLyle Denniston ......................................................... 354
High Court Rejects U.S. Law Allowing Civil Suits in Rapes;Ruling: Justices Decide, 5 to 4, That Congress OversteppedIts Authority in Allowing Victims to Sue. Action Appears toDoom Other Federal Hate-Crime Statutes.David G. Savage ......................................................... 357
* NEW CASE: University ofAlabama at Birmingham Board of Trustees v. Garret,No. 99-1240
NARRATIVE SUMMARY, Is the Writing on the Wall?The ADA Could be Next in the Supreme Court's MarchAgainst CongressM eredith L ugo ....................................................................................... 360
Synopsis and Question Presented ............................................ 362
343
Garrett v. University ofAlabama at BirminghamBoard of Trustees, 193 F.3d 1214 (11' Cir)........................................ 363
Court to Clarij Disabilities ActRichard Carelli ........................................................... 366
Justices to Act in Dispute over States RightsP atti W aldm eir ...................................................................................... 368
Supreme Court to Decide whether Public CollegesMay be Sued Under Disabilities LawPeter Schmidt ........................................................... 370
NEW CASE: Solid Waste Agency of Northern Cook County v.U.S. Army Corps of Engineers, No. 99-1178
NARRATIVE SUMMARY, Is it a Waste of Time to Messuith the Government?David P. Primack ........................................................ 372
Synopsis and Question Presented ............................................ 374
Solid Waste Agency of Northern Cook Countyv. U.S. Army Corps of Engineers, 191 F.3d 845 (7 Cir.) .............................. 375
The Court's Next ChapterTHE WASHINGTON POST ..................................................................... 381
Court Studies Corps' ReviewSusann a D u ff .... ................................................................................... 383
High Court to Hear Case on Landfill in BartlettM att A rad o ........................................................................................... 385
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Last Term:
J. Daniel KIMEL, Jr., et al., PetitionersV.
FLORIDA BOARD OF REGENTS et al
United States, petitionerV.
Florida Board of Regents et al.
Nos. 98-791, 98-796
Supreme Court of the United States
Decided January 11, 2000
COURT SHIELDS STATES IN SUITS ON AGE BIAS
Los Angeles Times
Wednesday, January 12, 2000
David G. Savage
The Supreme Court on Tuesday strippedthe nation's 5 million state workers--as well asCalifornia's teachers and public schoolemployees--of federal protection against agediscrimination.
On a 5-4 vote, the court ruled that stateagencies, including public colleges, are shieldedfrom lawsuits filed by their workers under theAge Discrimination in Employment Act.
The decision throws out claims of age biasin three lawsuits: one from professors andlibrarians at Florida State University, a secondfrom a Florida prison guard and a third fromtwo instructors at an Alabama state college.
Once again, the court's conservativemajority showed itself determined to limit thepower of the national government and tochampion the states as independent sovereigns.
"Congress exceeded its authority," JusticeSandra Day O'Connor said, when in 1974 itgave state workers the same rights as privatesector employees to sue for damages if they arevictims of age discrimination. States, she said,have a "sovereign immunity" that shields themfrom such private lawsuits.
In California, public school districts aretreated as state agencies and, therefore, willhave the same legal immunity from age biassuits.
"This is a terrible decision," said MichaelSimpson, assistant general counsel for theNational Education Assn., which representedthe Florida professors. "It turns the clock backon civil rights and makes state workers intosecond-class citizens."
Still, because California and other stateshave strong laws against job discrimination,
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some experts predicted that the effect on theirteachers and others workers may be minimal.
"California is out ahead of the states andthe federal government on the protection ofemployees' rights," said Los Angeles lawyerArthur F. Silbergeld.
But not all states extend such protections,said Laurie McCann, an AARP lawyer. "If youare in California, you are probably in goodshape. If you are a state trooper in Alabama,you are not."
Unquestionably, the driving theme of thecourt under Chief Justice William H. Rehnquisthas become states' rights. In three rulings last
June, the court shielded states from having topay overtime to their workers and blockedclaims against state agencies for infringingpatents and trademarks.
Tuesday's opinion marked the first time theRehnquist majority has directly limitedCongress' power to remedy discrimination.
Also vulnerable now are the federal lawsthat protect state workers with disabilities andmandate a period of leave for workers with amedical or family crisis. Even Title IX, thelandmark federal law that requires equalfunding for women's sports, could bechallenged as exceeding Congress' power, someexperts said.
From the nation's beginning, the balance ofpower between the states and the nationalgovernment has been a recurring dispute.
Until the 1930s, Washington's power wasseen as under strict limits. For example, areassuch as crime, education and private businesswere thought to be off-limits to federalauthorities. Even when notorious criminalswere on the loose, the FBI shied away until thesuspects had crossed state lines.
But the New Deal era greatly expanded thereach of federal control over the economy. Inrecent decades, federal authority has spread toall aspects of American life, such as regulating
the workplace, the schools and theenvironment.
Rehnquist, joined by the four otherconservative justices, has consciously tried tomove the law back to an earlier era.
Legal scholars differ on whether the recentrulings of the Rehnquist court are a necessarycorrective or a reactionary retrenchment.
Pepperdine University law professorDouglas W. Kmiec defends the court for tryingto preserve the balance set in the originalConstitution.
"These decisions are healthy for thedemocratic process. They reflect a trust in localgovernments and states to resolve their ownproblems in their own ways," said Kmiec, aformer Reagan administration attorney. "Whereis it written that these questions have to beelevated to the federal level?"
USC law professor Erwin Chemerinsky, asharp critic of the trend, responded by sayingthat civil rights is a national issue, not a localone.
"I thought it had been accepted over thelast 40 years that the federal government has aspecial role in stopping discrimination," he said."This decision marks the first time they havelimited the ability to sue states fordiscrimination."
Lawyers for the Florida and Alabamaprofessors argued that the 14th Amendment
gives Congress the power to enforce the age-discrimination law against the states. Addedafter the Civil War, the amendment says thatstates may not deny persons the "equalprotection of the laws." Its last section says thatCongress "shall have the power to enforce byappropriate legislation" this mandate ofequality.
But the Supreme Court concluded Tuesdaythat an attack on age discrimination is notappropriate. "States may discriminate on the
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basis of age," O'Connor said, unlike race andgender discrimination, which are forbidden.
Her opinion (Kimel vs. Florida, 98-791)was joined by Rehnquist and Justices AntoninScalia, Anthony M. Kennedy and ClarenceThomas. The four dissenters lambasted themajority for "judicial activism" of the right.
In a remarkable rebuke to the majority,Justices John Paul Stevens, David H. Souter,Ruth Bader Ginsburg and Stephen G. Breyervowed that they would never go along with theconservatives' doctrine announcing that stateshave a "sovereign immunity" from federal laws.
"This kind of judicial activism ...represents such a radical departure of theproper role of this court that it should beopposed whenever the opportunity arises,"wrote Stevens for the dissenters.
The Rehnquist majority says that thedoctrine of "state sovereign immunity" comesfrom the 11th Amendment, which says that thepower of federal courts "shall not be construedto extend to any law suit commenced againstone of the United States by a citizen of anotherstate."
But Stevens said the plain words of the11th Amendment show that it has nothing todo with this case. Professor J. Daniel Kimel, thelead plaintiff, is suing his own state of Florida,not another state.
The victory for the states was announced inthe courtroom moments before oral argumentsbegan in a major case that pits women's rightsagainst states' rights.
Congress passed the Violence AgainstWomen Act in 1994 in response to complaintsthat cases of date rape and spousal abuse oftenwent unprosecuted by the states. The new lawsaid that women have a right to be free of"gender-motivated violence" and it gave victimsof sexual assaults a right to sue their assailantsin federal court.
A test case soon arose when a VirginiaTech freshman, Christy Brzonkala, said that shewas raped in a dormitory room by AntonioMorrison, a star linebacker. When the universityreinstated Morrison to play football, despite hercomplaint, she sued him.
But before her claim could be heard, aconservative U.S. appeals court struck downthe law as unconstitutional.
All eyes were on Justice O'Connor duringthe oral argument, since she is assumed to holdthe deciding vote. A former Arizona statelegislator and appointee of President Reagan,she has joined the five-member majority thatchampions states' rights.
In cases involving women's rights, however,she has often switched sides and helped form aliberal majority. In June, for example, she castthe deciding fifth vote to rule that schools andcolleges can be sued if their officials ignorereports of a student being sexually harassed byanother student.
In her only comments Tuesday, O'Connorsounded troubled by the reach of the ViolenceAgainst Women Act.
If federal lawmakers are free to intervenewhenever they detect gender bias, "presumablyCongress could intervene with a federal law onalimony and child custody," she commented.But a lawyer for the NOW Legal DefenseFund, representing Brzonkala, pointed out thatmost state officials welcomed the women'sright law, not seeing it as a threat or intrusion.
Attorneys general from 36 states, includingCalifornia's Bill Lockyer, filed a brief urging thecourt to uphold the law.
Only the state of Alabama asked the justicesto strike down the law on states' rights grounds.
A ruling in the case (Brzonkala vs.Morrison, 99-29) can be expected in severalmonths.
Copyright C 2000 Times Mirror Company
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COURT CURBS SUIT BY STATE WORKERSContinuing A Pattern, 5-4 Ruling Bars Clains ofAge Bias Under
Federal Law
The Washington Post
Wednesday, January 12,2000
Joan Biskupic
The Supreme Court ruled yesterday thatstate workers who were discriminated againstbecause of their age cannot sue under federallaw, in a sharply divided opinion that continuesthe court's effort to curtail congressional powerand could have repercussions for thousands ofstate employees nationwide.
By a 5 to 4 vote along familiar lines, thejustices said Congress lacked the authority tomake states liable for the age discriminationcomplaints of their workers. The ruling was adefeat for the nation's 5 million state employeesand a variety of advocates for older anddisadvantaged workers who had been part ofthe case. While those workers can still seekredress in state courts, the laws andenforcement vary widely around the country.
"The decision sends a message that if agediscrimination is a civil right at all, it's a second-class right," declared AARP lawyer LaurieMcCann.
But a spokesman for the Florida Board ofRegents, which had been sued by a group ofolder professors, noted that the ruling stillpermits state workers who face discriminationto sue under the various state anti-bias laws."The right place for this is with the states,"Keith Goldschmidt said.
Writing for the majority, Justice Sandra DayO'Connor said that because an individual's agehas not been granted the constitutionalprotection that race and sex have, Congress hadinsufficient grounds to override states' usualimmunity from federal lawsuits. "Older persons
... unlike those who suffer discrimination onthe basis of race or gender, have not beensubjected to a history of purposeful unequaltreatment," O'Connor wrote.
Overall, the decision marked another stridein the court's quest to diminish the reach ofCongress. It was announced, coincidentally, justminutes before the court heard arguments inanother, more closely watched dispute overfederal authority--concerning the 1994 ViolenceAgainst Women Act that allows women whohave been sexually assaulted to sue theirattackers in federal court.
Joining O'Connor in Kimel v. FloridaBoard of Regents were Chief Justice William H.Rehnquist and Justices Antonin Scalia, AnthonyM. Kennedy and Clarence Thomas. Dissentingwere Justices John Paul Stevens, David H.Souter, Ruth Bader Ginsburg and Steven G.Breyer. That is the same 5 to 4 split thatemerged in a series of recent decisions limitingindividuals' ability to sue for violations offederal law and on which yesterday's ruling wasbased.
Writing for the dissenters, Stevens attackedthe majority's larger effort and asserted that, inthe age discrimination dispute, Congress wasvalidly overriding the normal protections givenstates in allowing workers to sue under the AgeDiscrimination in Employment Act, whichprotects workers 40 and older.
"It is ... clear to me that if Congress hasthe power to create the federal rights that these[older workers] are asserting, it must also have
348
the power to give the federal courts jurisdictionto remedy violations of those rights," Stevenswrote.
The case arose from a trio of lawsuits: threedozen professors and librarians at Florida stateuniversities who claimed they were unfairlydenied raises because they were over 40; aguard at a Florida prison who said he lost outon a promotion because of his age; and twoprofessors, age 57 and 58, at an Alabama stateschool who said they were denied promotionsand pay. The U.S. Court of Appeals for the11th Circuit had ruled that the states could notbe sued.
The Justice Department sided with theworkers, arguing that the 14th Amendmentgives Congress the power to enforce equalprotection of the laws.
But the high court rejected those grounds,effectively saying that age cases are differentfrom the traditional civil rights relating to race,national origin and sex. The court said thatbecause state employers may differentiateamong workers based on age in manysituations, it is too extreme to hold themfinancially responsible in federal court for suchdecisions. The justices noted that states mayfavor younger workers if there is a legitimatereason to do so.
"Old age," O'Connor wrote, "does notdefine a discrete and insular minority becauseall persons, if they live out their normal lifespans, will experience it." She also emphasizedthat lawmakers never made any findings thatage discrimination among state employers was aproblem: "Congress failed to identify awidespread pattern of age discrimination by thestates."
O'Connor added in the end that stateworkers who face discrimination have otheravenues of seeking retribution. "Stateemployees are protected by states' agediscrimination statutes, and may recover moneydamages from their state employers, in almostevery state of the union."
Some employment lawyers said the court'srationale could have ramifications in other anti-discrimination cases because, in determiningwhether Congress could override states' 11thAmendment immunity, the court drew a linebetween characteristics that have robustconstitutional protection and all others.
The Americans With Disabilities Actincludes a similar provision for federal lawsuitsagainst state employers who discriminate on thejob and in state services. But the justices haveaccorded age and disability a lesser degree ofconstitutional protection than race and sex biasclaims.
"This should be of grave concern," saidGeorgetown University law professor ChaiFeldblum, who helped draft the ADA. "Thequestion is whether there is enough evidence ofstate discrimination in the record [for example]of state police departments not handling deafpeople, the mentally retarded, very well. It is aclose question."
Copyright 0 2000 The Washington Post
349
Last Term:
Janet RENO, Attorney General, et al., PetitionersV.
Charlie CONDON, Attorney General of South Carolina, et al.
No. 98-1464
Supreme Court of the United States
Decided January 12, 2000
JUSTICES UPHOLD BAN ON STATES' SALES OF DRIVERS' LICENSEINFORMATION
The New York Times
Thursday, Jan uary 13, 2000
The Supreme Court today upheld a federallaw that bars states from selling their databasesof personal information on licensed drivers andautomobile owners.
States had challenged the law in courtsaround the country, and the unanimousdecision was a rare federal victory in theongoing battle at the court over federal versusstate authority. Recent decisions, including oneyesterday that states are immune from suitsunder the federal law against age discrimination,have curbed Congressional authority andupheld state prerogatives in a variety ofcontexts.
States were earning millions of dollars ayear by selling drivers' personal information todirect marketers, charities, political campaignsand various commercial interests until Congressintervened in 1994 by passing the DriversPrivacy Protection Act.
Sometimes the information also fell into thehands of stalkers or, in the case of abortionclinics, of people who wanted to track downthe identity of doctors and patients. The
Greenhousemurder of an actress, Rebecca Schaeffer, by aman who obtained her unlisted address fromCalifornia motor vehicle records helped spurpassage of the law, which generally requiresstates to safeguard the privacy of personalinformation contained in the records of driverswho have not consented to disclosure. Thereare exceptions in the law for records needed forlaw enforcement, safety and certain otherpurposes.
While there were substantial privacyinterests at stake in the fate of the statute,which a federal appeals court had declaredunconstitutional in a suit brought by SouthCarolina, the court today did not address eitherthe policy behind the law or the privacy issue ingeneral.
Chief Justice William H. Rehnquist'sunusually brief nine-page opinion was framedentirely in terms of federalism: whetherCongress had the constitutional authority topass the law, and whether the law infringed onstate prerogatives.
As to Congressional authority, the chiefjustice said the law fit comfortably within the
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power of Congress to regulate interstatecommerce because the information was "anarticle of commerce" in the context of thestatute and "its sale or release into the interstatestream of business is sufficient to supportCongressional regulation."
As to state prerogatives, Chief JusticeRehnquist said the concerns that had led thecourt recently to invalidate a provision of theBrady gun control law and of a nuclear wastedisposal law were simply inapplicable. He saidthat unlike those statutes, which required stateofficials to assist in federal law enforcement,and state legislatures to deal with radioactivewaste in particular ways, the Drivers PrivacyProtection Act was a straightforward federalregulation of state activity that raised nofederalism issues.
In effect, the court said the United StatesCourt of Appeals for the Fourth Circuit hadmade a category error in treating the driverprivacy law as one that raised states' rightsconcerns.
The law "does not require the states in theirsovereign capacity to regulate their owncitizens," the chief justice said, adding, "It doesnot require the South Carolina Legislature toenact any laws or regulations, and it does notrequire state officials to assist in theenforcement of federal statutes regulatingprivate individuals."
Chief Justice Rehnquist said the law simply"regulates the states as the owners ofdatabases," a permissible federal role.
When the case was argued in November,several justices expressed their concern toAttorney General Charlie Condon of SouthCarolina that under the state's theory, statescould not be required to adhere to federal foodand drug laws or other garden-variety federalregulations. Even in its tilt toward the states in
its recent series of federalism decisions, thecourt has not gone that far.
The court's view of the case, Reno v.Condon, No. 98-1464, permitted it to avoidconfronting the most provocative aspect of theFourth Circuit's 1998 ruling, that the federalgovernment could regulate the states only bymeans of "generally applicable" laws. Becauseonly states issue drivers' licenses, the lawimpermissibly singled out the states forregulation, the appeals court ruled.
Chief Justice Rehnquist said that becausethe law also regulated use of the information by"private resellers or redisclosers," it was in facta generally applicable law, and there was noreason to rule on the validity of the appealscourt's approach. To this degree, the decisiontoday did not so much resolve an importantfederalism issue as defer the debate.
States were not the only ones to object tothe Drivers Privacy Protection Act. A brief filedon South Carolina's behalf by the ReportersCommittee for Freedom of the Press and theAmerican Society of Newspaper Editors toldthe court that the law ignored the broad publicinterest in access to information that is a "basictool for reporting." For example, the brief said,The Miami Herald used drivers' records in 1991to disclose that 70,000 people in South Floridahad been caught driving with suspendedlicenses.
On the other side, the Feminist MajorityFoundation, which filed a brief in support ofthe law on behalf of abortion clinics andvictims of domestic violence, said the decisionwas an important victory. Eleanor Smeal, thegroup's president, said the decision "will savethe lives of both abortion providers and womentargeted by stalkers."
Copyright D 2000 The New York TimesCompany
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COURT BACKS PRIVACY FOR DATA ON DRIVERS
The Washington Post
Thursday, January 13, 2000
Joan Biskupic
The Supreme Court ruled unanimouslyyesterday that states can be barred fromdisclosing the personal information driversprovide to obtain a license, in a surprisingdecision immediately extolled by privacyactivists and civil libertarians.
Deciding a closely watched dispute thatparticularly evoked privacy fears in today'sworld of instant electronic data, the justicesupheld a federal law that forbids states fromselling addresses, telephone numbers and otherinformation that drivers put on licenseapplications.
The ruling was an unexpected departurefrom the court's recent string of rejections offederal laws that touch on state activities. ButChief Justice William H. Rehnquist emphasizedhow this law was different and encroached farless on state authority.
Women's groups and civil libertarianspraised the decision for preserving a 1994 lawthat they say keeps intimate information fromstalkers and harassers. Privacy advocates andmembers of the direct-marketing industryagreed the ruling opens the way for Congress topass similar laws restricting the interstate sale ofrecords on land ownership, housing sales,occupational and recreational licenses and anarray of other information.
That could mean that even as the details ofpeople's lives become more avidly collected bymarketers and more readily available throughthe Internet, widespread access will not gounchecked. "It's clearly a message to the statesthey're going to have to be much more careful,"
said Marc Rotenberg, director of the ElectronicPrivacy Information Center.
Yesterday was a full and dramatic day at thenation's highest court, as the justices ruled infour other cases--from criminal law toenvironmental protections--and heardarguments on grandparents' visitation rights.
Congress passed the Driver's PrivacyProtection Act (DPPA) six years ago, motivatedin part by the death of actress RebeccaSchaeffer, who was killed at her Californiahome by a stalker who had traced her addressthrough the motor vehicles division.
More broadly, lawmakers were addressingpublic concerns about telemarketers, the mediaand others with access to the vast array ofpersonal information in the records of statemotor vehicle departments. Congress foundthat many states were making millions ofdollars a year selling the information, which caninclude Social Security numbers, medicalinformation and photographs.
The DPPA bars states from disclosing suchpersonal information without drivers' consent.There are exceptions in the law for matters ofmotor vehicle and driver safety, theft, andmanufacturers' product recalls--and one of thestates' complaints was that the statute wasdifficult to administer.
In yesterday's case, South Carolina, backedby a dozen other states, challenged the law asan unconstitutional encroachment on itsbusiness; the state had a policy making DMVrecords available to anyone who filled out aform and paid the requisite fees. The U.S.Court of Appeals for the 4th Circuit agreed,
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saying the law wrongly forced states toadminister a federal regulation and violatedfederalism principles.
But in reversing the Richmond-based 4thCircuit yesterday, the high court emphasizedthat, unlike past laws ruled unconstitutional, the
privacy statute wasn't telling states to passspecific legislation or to regulate their citizens inparticular ways.
In a relatively brief 10-page opinion inReno v. Condon that drew no dissent orconcurring statements, Rehnquist wrote thatthe law flowed from Congress's authority toregulate interstate commerce.
Addressing the larger question about thefederal-state boundary, Rehnquist explainedhow the act differs from two statutes--concerning handgun purchase waiting periodsand environmental rules--struck down in the1990s. "The DPPA regulates the states asowners of databases. It does not require theSouth Carolina legislature to enact any laws orregulations, and it does not require stateofficials to assist in the enforcement of federalstatutes regulating private individuals."
The court's ruling turned on an analysis ofCongress's interstate commerce powers, butmost of the reaction yesterday addressed largerprivacy questions. Sen. Barbara Boxer (D-Calif.), a sponsor of the law, said the decisionpermits Congress to protect "information thatcould be used to harm our citizens."
Eleanor Smeal, president of the FeministMajority Foundation, noted that someantiabortion protesters have tracked physiciansand their patients through motor vehicleinformation. "This Supreme Court decision willsave the lives of both abortion providers andwomen targeted by stalkers," she said.
But South Carolina Attorney GeneralCharles Condon declared, "A one-size-fits-noneattempt by the federal government to protectprivacy will not work."
And H. Robert Wientzen, president of theDirect Marketing Association, expressedconcerns that important business informationon which his group's members rely will dry up.He said the association will ask Congress tohold hearings on the matter.
In a separate ruling yesterday, the court,voting 7 to 2, upheld citizen groups' right to suealleged polluters under the Clean Water Acteven though any financial damages awardedwould be paid to the federal government.
"This is a rare victory for the environmentfrom the Supreme Court and a dramaticreversal of the trend of Supreme Courtdecisions on citizens' rights to sue underenvironmental laws," John Echeveria, directorof the Environmental Policy Project atGeorgetown Law Center, said of the ruling inFriends of the Earth vs. Laidlaw EnvironmentalServices.
Copyright C 2000 The Washington Post
353
Last Term:
United StatesV.
Antonio J. MORRISON, et al.
Christy BRZONKALAV.
Antonio J. MORRISON, eta.
Nos. 99-5 and 99-29
Supreme Court of the United States
Decided, May 15, 2000
WOMEN CAN'T SUE RAPISTS, COURT SAYS; JUSTICES STRIKEDOWN KEY PART OF VIOLENCE AGAINST WOMEN ACT
The Baltimore Sun
Tuesday, May 16,2000,
Lyle Denniston
WASHINGTON - Putting strict new limitson Congress' power to protect civil rights andcrime victims, the Supreme Court struck downyesterday a key provision of a federal law thatgave women who have been raped the right tosue their attackers.
The court ruled, by a 5-4 vote, that the1994 law intruded too deeply into the state andlocal domain. "The Constitution," Chief JusticeWilliam H. Rehnquist wrote, "requires adistinction between what is truly national andwhat is truly local."
The court rejected the theory of the law'ssupporters that sexual violence against womencosts the economy billions of dollars, making ita national issue for Congress to address. If thattheory were valid, Rehnquist said, it "wouldallow Congress to regulate any crime."
As if to warn Congress against exceedingits powers in an effort to solve social problems,the chief justice reminded lawmakers that thecourt "is supreme in the exposition of the lawof the Constitution" as it governs nationallegislative power.
The decision came as a modem echo ofthe fight, more than six decades ago, over aseries of Supreme Court decisions that struckdown wide-ranging New Deal laws passed byCongress to deal with the Depression.
That fight led President Franklin D.Roosevelt to propose to "pack" the court withsympathetic justices. His court-packing plandied after the court switched positions andbegan upholding New Deal laws.
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Yesterday, in nullifying a key portion of theViolence Against Women Act, the courtoffered two explanations.
First, it said, because sexual violenceagainst women is a problem caused by privateindividuals and is ordinarily handled by stateand local police, Congress may not create newfederal penalties for assailants.
Second, the majority said, Congress cannotadopt remedies for such assaults on the theorythat it is regulating the economic effects ofsexual violence on women across the nation.Such violence, it said, is not an economicactivity.
To the young woman who used the 1994law to sue for damages in an alleged rape bytwo college football players, Rehnquist said:"No civilized system of justice could fail toprovide her a remedy" if her charge was true.
But, Rehnquist added, "Under our federalsystem, that remedy must be provided by theCommonwealth of Virginia, and not by theUnited States."
The ruling marked the third time in threeyears that the court has found a federal civilrights law unconstitutional. The decision wasthe latest in a string of 5-4 decisions that havesought to revitalize states' rights at the expenseof Congress.
Sen. Joseph R. Biden Jr., a DelawareDemocrat who was the principal author of thelegislation that was struck down yesterday, said:"This is a big-deal decision; it is pretty sweepingin my view." He said the ruling embraced aview of the court's authority that "I thought wedid away with in the New Deal."
Part of his concern, Biden said, is thatbecause the ruling is based on "constitutionalprinciple," there is no way Congress canovercome it by passing laws. "This can only betaken care of by changing the makeup of thecourt," and that makes it an issue for this year'spresidential election, the senator said.
Michael E. Rosman, general counsel of theconservative Center for Individual Rights, wholed the fight against allowing female victims ofsex-based violence to sue in federal court, said:"This is a good day for the Constitution,"showing that "even popular and well-intentioned laws" can go astray constitutionally.
Christy Brzonkala, the Fairfax, Va., womanwho sought to sue under the law for the sexualassault she said occurred during her first weeksas a freshman at Virginia Polytechnic Institute,commonly called Virginia Tech, was notavailable for comment on the ruling, herattorneys said. She quit the university and, now23, is working in Washington as a waitress.
Neither of the men she accused wasprosecuted in Virginia. A suspension orderedby university officials for one of them wasoverturned in an appeal to a more seniorVirginia Tech official.
Brzonkala received $75,000 under asettlement in a separate lawsuit against VirginiaTech. She settled that case under a differentfederal law, which was not available for herclaims against the football players.
Kathryn J. Rodgers, general counsel of theNOW Legal Defense Fund, a women's rightsgroup that represented Brzonkala, called theruling "a step backward for all civil rights law."
With the ruling, Rodgers added, "The courtis in effect writing women out of the federalConstitution, wishing us luck and sending us tothe states for justice."
A conservative advocacy group, theInstitute for Justice, countered that the case"was never about women's rights. It was aboutwhether there are limits to Congress' powerunder the Constitution."
The civil rights lawsuit provision that the
justices overturned yesterday was only one partof the Violence Against Women Act, and it wasthe only part at issue before the court. Thecourt had refused earlier to hear a constitutionalchallenge to a separate part of the law that
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makes it a crime to travel across state bordersto connit violence against women.
Congress, in passing the law, said that "allpersons within the U.S. shall have the right tobe free from crimes of violence motivated bygender." It allowed the victims of such violenceto sue their assailants for damages in federalcourt.
It is unclear how many such lawsuits havebeen filed since the law was passed in 1994. Butwomen's rights groups who sued on behalf ofBrzonkala said they have had scores of inquiriesfrom lawyers considering such lawsuits.
The law provided the civil rights remedyafter a four-year congressional investigationconcluded that state and local prosecutors andpolice were not doing enough to stop domesticviolence and other forms of gender-basedcrimes. The inquiry also found that such
violence was costing the economy billions inlost work time and in medical expenses.
Yesterday's ruling was supported by thebloc of five justices who have joined in earlierdecisions that have bolstered states' rights: thechief justice and Justices Anthony M. Kennedy,Sandra Day O'Connor, Antonin Scalia andClarence Thomas.
The dissenters, as before, were JusticesStephen G. Breyer, Ruth Bader Ginsburg,David H. Souter and John Paul Stevens.
Souter, in one of two opinions bydissenters, said the ruling was "a revival ofsimilar efforts that led to near-tragedy for theCourt" in the 1930s. He said the decisionrejected the view of the Constitution's authorsthat Congress, not the courts, "should mediatebetween state and national interests.
Copyright C 2000 The Baltimore SunCompany
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HIGH COURT REJECTS U.S. LAW ALLOWING CIVIL SUITS IN RAPESRuling:Justices Decide, 5 to 4, that Congress Overstepped Its Authority in Allowing Victims to
Sue. Action Appears to Doom Other Federal Hate-Crime Statutes.
Los Angeles Times
Tuesday, May 16,2000
David G. Savage
The Supreme Court, rejecting the notion ofnational laws against "hate crimes," struckdown a federal measure Monday that gavebattered spouses and victims of rape and othersexual violence a right to sue their attackers.
The 5-4 ruling is the latest in which thecourt's conservative majority has narrowed thefederal government's power--including overcivil rights.
The Violence Against Women Act of 1994is unconstitutional, the court declared, becausethe federal government has no right to regulatea private act, such as rape, that is neither part ofinterstate commerce nor caused by stateofficials.
Congress has no power over"noneconomic, violent criminal conduct" thatdoes not cross state lines, said Chief JusticeWilliam H. Rehnquist. "The Constitutionrequires a distinction between what is trulynational and what is truly local."
The decision throws out a lawsuit broughtby a former Virginia Tech student who saysthat as a university freshman she was raped in adormitory room by a football star.
After Christy Brzonkala reported theincident to school officials, a hearing was held,and the player, Tony Morrison, was suspended.Prior to the fall football season, however,school officials reversed the suspension, andlocal prosecutors brought no charges in thecase. Her lawsuit against the player became atest case of the new law.
States can enact hate crime laws, butRehnquist's reasoning appears to doom nationallaws targeted at crimes against blacks, gays,Jews, Muslims or ethnic nuinorities, legalexperts agreed.
A pending hate crime bill on Capitol Hillwould give federal prosecutors the option ofintervening in crimes that were allegedlymotivated by the victim's sexual orientation,gender or disability. Despite its popularity, thelegislation has stalled in the House.
USC law professor Erwin Chemerinskysaid, "A hate crimes law for gays would be verydifficult to justify under the Brzonkaladecision." Although anti-discrimination laws inthe workplace are secure because they are seenas regulations of commercial activity, he said,"beyond the workplace, it's too hard to find theconstitutional basis for federal regulation."
In the past, federal authorities have avoidedprosecuting even sensational hate crimes unlessthey could find some link to interstate activity.
Reaction to Ruling Along Party Lines
The court's strict limit on federal authorityalso calls into question some environmentallaws such as the Endangered Species Act. Somecritics have suggested Congress has no powerto protect a threatened animal or plant thatlives in only one state and has no effect oninterstate commerce.
Reaction to Monday's ruling split alongparty lines.
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Democratic leaders and women's rightsactivists decried the decision as a step backwardfor the nation. Republicans and conservativeactivists praised the court for restraining federalauthority.
President Clinton said he was "deeplydisappointed" by the court's decision strikingdown a rape victim's right to bring a federalcivil damages suit. He signed the bill into law aspart of the 1994 crime control act. He noted,however, that federal prosecutors still can bringcriminal charges against stalkers who cross statelines.
Sen. Joseph R. Biden Jr. (D-Del.), the law'ssponsor, called the decision "extremelytroublesome." In a phone interview, he said theconservative court is returning to the thinkingof the "pre-New Deal era." Prior to 1937, theaggressively conservative court struck downfederal measures such as minimum wage andchild labor laws on the theory that theyexceeded Congress' power.
"These folks are judicial activists," Bidensaid of Rehnquist's majority. "They are sayingthe federal courts are going to make thesejudgments, not Congress."
Senate Judiciary Committee ChairmanOrrin G. Hatch (R-Utah) said, "The restorationof federalism scrutiny in our federal courts is awelcome development in the law. TheConstitution reserves to the states the 'ordinaryadministration of criminal and civil justice,' " hesaid, quoting Alexander Hamilton.
"This is a good day for the Constitution,"added Michael Rosman, general counsel for theCenter for Individual Rights. He representedTony Morrison, the Virginia Tech footballplayer who was sued. "The outcome indicatesthat even popular and well-intentioned lawscannot be sustained by political pressure alone,"Rosman said.
In a sense, Monday's outcome comes as nosurprise. The court has split into two factionson these issues.
Five members of the court--Rehnquist and
Justices Sandra Day O'Connor, Antonin Scalia,Anthony M. Kennedy and Clarence Thomas--strongly support states' rights and limits onfederal power.
The four dissenters take a nationalist viewand say Congress has broad power to regulatein the national interest. They are Justices JohnPaul Stevens, David H. Souter, Ruth BaderGinsburg and Stephen G. Breyer.
On Jan. 11, the same 5-4 split was ondisplay when the court stripped the nation's fivemillion state workers and public collegeprofessors of the right to sue their employersfor age discrimination. Although the federalAge Discrimination Act allowed such suits,states have a "sovereign immunity" that shieldsthem, the conservative majority said.
On the same day that ruling wasannounced, the court heard arguments in thecombined cases of U.S. vs. Morrison, 99-5, andBrzonkala vs. Morrison. Monday's decision sawthe same line-up.
Since the 1960s, many Americans may haveassumed federal government has special powerover matters of discrimination and civil rights.This is not so clear anymore. Under Rehnquist,the court has revived an older view of theConstitution and its separation of powers.
The original Constitution says Congress"shall have the power to regulate commerce ...among the several states." Meanwhile, the 14thAmendment, added after the Civil War, saysCongress can enforce the guarantee of "equalprotection of laws" in the states.
Interstate Commerce an Issue in Ruling
Clinton administration lawyers cited bothprovisions as defenses of the Violence AgainstWomen Act, but both were rejected.
The 14th Amendment prohibitsdiscrimination by state officials only, Rehnquistsaid. The alleged rape in this case was a private
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act, and therefore is outside the territorycovered by the 14th Amendment, he said.
The real debate focused on the reach ofCongress' power under the Commerce Clause.For most of the 20th century, the court gave aliberal interpretation to this provision thatallowed federal regulation of the workplace, theenvironment and civil rights.
The landmark Civil Rights Act of 1964,which barred discrimination against blacks injobs, hotels and other public businesses, wasupheld by the Supreme Court as a regulation ofinterstate commerce. But more recently, theRehnquist majority has said it will not allowCongress to regulate virtually anything on thetheory that it might affect commerce.
In 1995, the 5-4 majority struck down a lawthat made it a federal crime to have a gun near aschool. Mere gun possession is not part ofinterstate commerce, Rehnquist said then in thecase of U.S. vs. Lopez.
When considering the Violence AgainstWomen Act, Congress tried too mightily tobuild a record to show that gender crimes affectinterstate commerce. It held hearings andissued reports that estimated, for example, thatgender-motivated violence costs the economy $5 billion to $ 10 billion per year. This includeseverything from medical costs for injuries tobattered women to jobs not taken by womenfor fear of crime.
But Rehnquist dismissed all this as far-fetched.
"Gender-motivated crimes of violence arenot, in any sense of the phrase, economicactivity," he wrote. "Indeed, if Congress mayregulate this , it would be able to regulatemurder or any other type of violence."
This expansion would not be faithful to theoriginal Constitution, he said. There, "theFounders denied the National government andreposed in the States .. . the suppression ofviolent crime and vindication of its victims," hesaid.
Copyright C 2000 Times Mirror Company
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UNIVERSITY OF ALABAMA AT BIRMINGHAM BOARD OF TRUSTEESv. GARRETT
Is the Writing on the Wall?: The ADA Could Be Next in the Supreme Court's MarchAgainst Congress
Meredith Lugo*
Do state employees have the same rights as other workers? Or when it comes toemployment discrimination are they effectively secondclass citizens? They are surelybeginning to feel that way as recent Supreme Court decisions have systematically strippedaway their rights to sue their employer for redress for federal statutory violations. Thedecisions have come in the wake of a states' rights revolution that has been sweeping thehigh Court in recent years. In a trend for which the conservative majority of the Court hasbeen criticized for being judicial activists, five justices have consistently voted to curtail thepower of Congress to adopt laws governing the states. Gartt represents the most recentbattlefield in this revolution, as the Supreme Court will decide whether state employees maysue their state for monetary damages based on claims of discrimination under the Americanswith Disabilities Act (ADA).
The Court will hear a consolidation of two cases filed by employees of the state ofAlabama. Patricia Garrett, director of nursing for women at the University of AlabamaHospital, had been employed by the state for seventeen years when she was diagnosed withbreast cancer. In her suit filed in 1997 she alleges that her supervisor made negativecomments regarding her disease and threatened her with the loss of her job if she took aleave of absence. She was demoted to a position with a lower salary when she was forced totake four months of unpaid leave to undergo cancer treatment. Milton Ash, a security officerwith the state Department of Youth Services since 1993 and a sufferer of severe asthma,alleges the Department failed to enforce its no-smoking policy where he worked and illegallydiscriminated against him after he complained to a federal agency about their failure.
Gamtt reaches the Supreme Court from the Eleventh Circuit. At issue is whetherstates retain their immunity, granted by the Eleventh Amendment, from suit by privatecitizens despite Congress' attempt to abrogate such immunity with the ADA. The EleventhCircuit, in a decision controlled by its earlier holding in 1imel, a case which involved both theADA and the Age Discrimination in Employment Act (ADEA), held that Congress hadsuccessfully authorized suits by private citizens.
In a series of cases spanning the last few terms, the Supreme Court has becomeincreasingly explicit in the requirements that must be satisfied before Congress may removestate sovereign immunity. Congress must provide a clear legislative statement of its intent toso abrogate, and be acting under the enforcement power granted it by Section 5 of theFourteenth Amendment (Seminole Tribe ofFlorida v. Florida, 1996). The use of Section 5 poweris limited to those actions which are remedial, not substantive, and the Court insists upon a
* College of William and Mary School of Law, Class of 2002.
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proportionality between the injury Congress is seeking to prevent and the scope of thelegislation it has passed in response (City ofBoerne v. Flores, 1997). The Court has strictlyconstrued this requirement, demanding that Congress identify a pattern of widespread,persistent discrimination to justify its use of Section 5 power (Florida Prepaid Postseconday Ed.Expense Bd. v. College Savings Bank, 1999; KImel v. Florida Bd. of Regents, 2000). The central issuein Gamt will thus be whether the Congressional record regarding the ADA illustrates such ahistory of discrimination by the states against the disabled.
In its holding in Kimel the Eleventh Circuit found that Congress had expresslyreferred to the disabled as a "discrete and insular minority" "subject to a history ofpurposeful unequal treatment," classic equal protection language. It obviously remains to beseen whether the Supreme Court will agree with this assessment. However, the Court'sdecision this past term reversing the Eleventh Circuit's holding regarding the AgeDiscrimination in Employment Act in Kimel does not bode well for Garrett and Ash. TheSupreme Court held that state workers have no federal protection against age discriminationbecause Congress lacked the authority to impose liability on the states without their consent.
Opposing the federalism revolution stands a now-familiar quartet of dissent JusticesStevens, Souter, Breyer, and Ginsburg) committed to halting what they contend is themajority's misguided dismantling of fundamental principles of American government. Theoutcome of Gartt may represent their long-awaited triumph, but it seems more likely that itwill shed further doubt upon the future of Congressional regulation of state governmentactivity.
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99-1240 University of Alabama at Birmingham Board of Trustees v. Garrett
Ruling below (11'h Cir., 193 F.3d 1214, 9 A.D. Cas. 1635):
States are not immune from suits brought by state employees under either Americans withDisabilities Act or Section 504 of 1973 Rehabilitation Act.
Question presented: Does 11 th Amendment bar suits by private citizens in federal courtunder Americans with Disabilities Act against nonconsenting states?
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Patricia GARRETT, Plaintiff-AppellantV.
The UNIVERSITY OF ALABAMA AT BIRMINGHAM BOARD OF TRUSTEES,Defendant-Appellee,
The United States of America, Intervenor
Milton Ash, Plaintiff-AppellantV.
Alabama Department of Youth Services, Defendant-AppelleeThe United States of America, Intervenor
United States Court of Appealsfor the Eleventh Circuit.
Decided October 26, 1999
RONEY, Senior Circuit Judge:
These two consolidated cases appeal thegrant of summary judgments to twodefendant Alabama state agencies on theground of sovereign immunity. They raisethe question that is being litigated invarious jurisdictions of whether a state isimmune from suits by state employeesasserting rights under certain federal laws.The three statutes here are: the Americanswith Disabilities Act (ADA), 42 U.S.C. §§12101-12213; Section 504 of theRehabilitation Act of 1973 (RehabilitationAct), 29 U.S.C. § 794; and the FamilyMedical Leave Act of 1993 (FMLA), 29U.S.C. §§ 2601-2654. Following recentprecedent in this Circuit, we hold that thestate is not immune from suit under theADA and Rehabilitation Act and reversethe judgments of the district court againstplaintiffs Patricia Garrett and Milton Ashas to those two statutes and remand thetwo cases for further proceedings. ***
Although generally called EleventhAmendment immunity, which amendmentsimply bars a federal court from hearingclaims against a state by a citizen of
another state,2 it has long been recognizedthat each state is a sovereign entity in ourfederal system and is not amenable to suitby an individual without its consent. SeeSeminole Tribe of Florda v. Florida*** andHans v. Louisiana***.
Under certain circumstances, however, theUnited States Congress can pass lawswhich give individual citizens a right ofaction in federal court against anunconsenting state. Those circumstancesrequire first, that "Congress has'unequivocally expresse[d] its intent toabrogate the immunity,"' which "must beobvious from 'a clear legislativestatement,"' and second, that Congresshas acted "pursuant to a valid exercise ofpower." Seminole Tribe of Florida v.Florida.***
2The Judicial power of the United Statesshall not be construed to extend to anysuit in law or equity commenced orprosecuted against one of the UnitedStates by Citizens of another State, or byCitizens or Subjects of any Foreign State.U.S. Const. amend. XI.
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So far, the Supreme Court has held thatCongress can abrogate state immunityonly when it acts pursuant to section 5,the enforcement provision of theFourteenth Amendment to theConstitution, which provides that "[t]heCongress shall have power to enforce, byappropriate legislation, the provisions ofthis article." U.S. Const. amend. XIV, 5 5.The Court has held that Congress doesnot have authority to abrogate statesovereign immunity when it acted onlypursuant to the Commerce Clause. SeeSeminole Tribe of Florida v. Florida ***.
This frames the issue in this field ofdeveloping law: were these three statutespassed with the unequivocal and clearintent to give individuals a right of actionagainst a state, and do these statutesreflect a valid exercise of congressionalpower under the Fourteenth Amendment.
The Supreme Court has laid out a fewguidelines in recent cases. In City ofBoernev. Flores, *** the Court struck down theReligious Freedom Restoration Act of1993 (RFRA) ***, an act that Congresspurportedly passed pursuant to itsFourteenth Amendment enforcementpowers, and in direct response to theSupreme Court's decision in EmplqymentDiv., Dept. of Human Resources of Oregon v.Smith ***. In Smith, the Court had heldthat the Free Exercise Clause of the FirstAmendment does not require states tojustify by a compelling interest generallyapplicable, neutral laws that coincidentallyburden religious practices. *** In directresponse to Smith, Congress passedRFRA, which required all laws thatburden a group's religion, even neutrallaws of general applicability, to benarrowly tailored and justified by acompelling interest. *** In striking down
RFRA, the Supreme Court warned thatsection 5 of the Fourteenth Amendmentgrants Congress power to enforce theFourteenth Amendment, not to define thesubstance of the amendment, so thatCongress' power is remedial in nature.To qualify as remedial, "[t]here must be acongruence and proportionality betweenthe injury to be prevented or remediedand the means adopted to that end."***
In Florida Prepaid Postseconday Educ.Expense Bd. v. College Savings Bank ***, apatentee brought an action against a stateagency alleging infringement of a patentedapparatus and method for administeringcollege investment programs. The Courtheld that the Patent and Plant VarietyProtection Remedy Clarification Act couldnot be sustained under the City ofBoerneanalysis as legislation enacted to enforceany guarantee of the FourteenthAmendment. *** In looking at whetherthe Patent Remedy Act was remedial orpreventive legislation, the Court stated,"we must first identify the FourteenthAmendment 'evil' or 'wrong' thatCongress intended to remedy, guided bythe principle that the propriety of § 5legislation 'must be judged with referenceto the historical experience ... it reflects."'*** The Court then looked to thelegislative history to see if there wasevidence of a pattern of constitutionalviolations perpetrated by the states, suchas there were in the voting rights cases,and found none. The Court noted thatCongress barely considered the availabilityand constitutional adequacy of state lawremedies. The Court noted that while the"lack of support in the legislative record isnot determinative ... identifying thetargeted constitutional wrong or evil is stilla critical part of our 5 5 calculus " **
The Court said that the record offeredonly "scant support for Congress'conclusion that states were depriving
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patent owners of property without dueprocess of law by pleading sovereignimmunity in federal court patent actions."
With these guidelines in mind, weconsider each of the acts at issue in thiscase.
I. The ADA
Congress having unequivocally expressedits intent for the ADA to abrogatesovereign immunity, *** (A State shall notbe immune under the eleventhamendment to the Constitution of theUnited States from an action in Federal orState court of competent jurisdiction for aviolation of [the ADA]."), this Court inKimel v. State Bd. of Regents *** has alreadyheld that the ADA is a valid exercise ofthe Enforcement Clause of theFourteenth Amendment and that thestates do not have sovereign immunityfrom claims brought under the ADA. We
note that Kimel reversed a district courtdecision, and was decided by our Courtafter the district court had made itsdetermination in this case. We, of course,are bound by the decision of the Court inKimel. *** We note also that certiorari hasbeen granted in Kimel and any resultingdecision of the Supreme Court willprobably catch up with this case before afinal determination of the merits of theplaintiffs' claims.
We, therefore, reverse the summaryjudgment entered for the University ofAlabama at Birmingham Board ofTrustees and against Patricia Garrett onher ADA claim ***, and the summary
judgment for the Alabama Department ofYouth Services and against Milton Ash onhis ADA claim ***, and remand forfurther proceedings.
AFFIRMED IN PART, REVERSED INPART AND REMANDED.
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COURT TO CLARIFY DISABILITIES ACT
AP Online
Monday, April 17,2000
Richard Careb, Associated Press
WASHINGTON (AP) -Stepping back into a states' right battle over
a key federal anti-bias law, the Supreme Courttoday agreed to decide whether state employeesare protected by the Americans with DisabilitiesAct.
The justices said they will use the case oftwo Alabama state employees to decidewhether Congress exceeded its power by givingstate employees the right to sue in federal courtunder the ADA.
The court's decision, expected sometime in2001, could sweep broadly enough to affect allADA lawsuits against state governments, not
just those filed by public employees.Building on a series of decisions legal
scholars say comprise a states' rights revolution,the Supreme Court in January barred stateemployees from going into federal court to sueover age bias.
That 5-4 ruling said Congress had exceededits authority when allowing state employees tosue their bosses under the Age Discriminationin Employment Act because the law cannottrump states' 11th Amendment immunityagainst being sued in federal courts.
The justices then agreed to tackle casesfrom Arkansas and Florida asking them todecide whether Congress likewise exceeded itsauthority when allowing lawsuits against statesunder the disabilities law. Both of those caseswere settled thereafter, forcing the court todrop them from its decision docket.
In the Alabama case, Patricia Garrett suedthe state after allegedly encountering on-the-jobbias at the University of Alabama after beingtreated for breast cancer. And Milton Ash suedover alleged bias in his Department of YouthServices job because of his severe asthma.
A federal judge, after combining the two
cases, dismissed them on 11th Amendmentgrounds. But the 11th U.S. Circuit Court ofAppeals reinstated them, ruling that states havelost their constitutional immunity from lawsuitsthat invoke the ADA.
Federal appeals courts have split on thatissue, however.
Alabama's appeal relied heavily on theSupreme Court's ruling in the age-bias case andcontended that Congress similarly had failed toestablish a "pattern or practice ofunconstitutional conduct by the states" thatneeded some remedy when it enacted the ADAin 1990.
Clinton administration lawyers urged thejustices to grant Alabama's appeal and upholdCongress' power to strip states of theirimmunity against claims of bias based ondisabilities.
Garrett had been a University of Alabamaemployee for 17 years when in 1994 she wasdiagnosed with breast cancer and underwent alumpectomy, radiation and chemotherapytreatment.
Her lawsuit said her supervisor madenegative comments about her illness and saidshe would be permanently replaced if she took
leave. After Garrett took four months ofunpaid leave, she was demoted to a job with alower salary.
Ash's lawsuit said he was the target ofon-the-job discrimination after complaining toa federal agency about his state employer'sfailure to accommodate his respiratorydisability. Ash has worked for the Departmentof Youth services since 1993.
Two provisions of the ADA are at stake in
the case. The law's Title I bars discriminationby employers, both private and public. AndTitle II outlaws disabilities-based discrimination
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against anyone by governmentalentities.
The case is University of Alabama vs.
Garrett, 99-1240.
Copyright C 2000 The Associated Press
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JUSTICES TO ACT IN DISPUTE OVER STATES' RIGHTS
Financial Times (London)
Tuesday, April 18, 2000
Patti Waldrneir
The U.S. Supreme Court yesterday agreedto step in to referee an important states' rightsdispute, in the wake of several controversialdecisions from the highest court which havesignificantly extended the immunity of stategovernments from lawsuits.
The court yesterday said it would decidewhether state employers were shielded fromlawsuits under federal disabilities law. Thejustices have already barred claims of age bias,patent infringement, unfair trade practices andwage violations against the states, basing theirrulings on the doctrine of state sovereigntywhich largely guarantees states immunity fromsuits brought under federal law.
The issue of state sovereign immunity hasprovoked fierce criticism, especially fromintellectual property owners who stand to losemillions of dollars if state universities and otherstate entities infringe their patent and otherintellectual property rights, and cannot bestopped from doing so by federal courts whichenforce such rights.
Legislation has been introduced inCongress to ensure states cannot escapelawsuits in the area of intellectual propertyrights.
Disability groups, which are far less wellfunded than the intellectual property lobby, arefighting the extension of states' immunity todisability law, with lower courts split over theissue.
The supreme court has agreed to step intothe controversy by hearing a pair of cases inwhich Alabama workers are claiming protection
under the federal Americans with DisabilitiesAct (ADA), which compels employers toaccommodate disabled people so that they canhold down jobs.
The question for the court is whetherCongress has the constitutional authority tosubject states to lawsuits if they do not abide bythat standard.
In one of the cases the high court willconsider, Patricia Garrett says she was demotedfrom her position as a nursing director at theUniversity of Alabama at Birmingham after shetook a leave of absence to get treatment forbreast cancer.
In the second case, Milton Ash, a securityofficer, says his state employer failed toaccommodate his asthma by neglecting toenforce its no-smoking policy in the gatehousewhere he worked.
The 14th amendment gives Congress thepower to protect people from racialdiscrimination or bias based on sex or religiousbeliefs. Lawmakers invoked the constitutionalprovision to shield disabled Americans fromunfair treatment when it crafted the ADA andspecifically said states could be sued under thestatute.
But Bill Pryor, Alabama attorney-general,said Congress exceeded its authority when itsubjected states to disability bias suits. He saidlawmakers were looking to cure a problem thatdid not exist.
The Justice Department said in a brief filedin a related case that Congress was on solidfooting when it enacted the statute, stating thatdiscrimination against disabled people "is
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sufficiently entrenched and widespread torequire a national response".
Rebuff over tobacco adverts
The US supreme court yesterday rejectedchallenges, mainly by advertising groups, to theimposition of bans in New York City andChicago on most outdoor and some indoortobacco advertising, agencies report fromWashington.
The court, without comment or dissent,turned away advertisers' arguments that afederal law pre-empted cities from imposingtheir own restrictions.
Advertisers had sued New York City andChicago, and in each case a federal judgedecided restrictions were pre-empted by a 1969
federal law that requires health warning labelson cigarette packages and bars broadcast
cigarette advertising.
The appeals courts ordered the trial judgesto consider the advertisers' argument that theordinances violated their constitutional free-speech rights.
In the appeals acted on yesterday, theadvertisers' lawyers said the 1969 law waswritten broadly enough to pre-empt local ruleson outdoor cigarette advertising. The cities'lawyers said the appeals were prematurebecause trial judges had not yet considered thefree-speech question.
Copyright D 2000 The Financial Times Limited
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SUPREME COURT TO DECIDE WHETHER PUBLIC COLLEGESMAY BE SUED UNDER DISABILITIES LAW
Chronicle ofHigher Education
Friday, April 28,2000
Peter Schnidt
THE U. S. Supreme Court announced lastweek that it will decide whether public collegesand other state agencies can be sued in federalcourt under the Americans With DisabilitiesAct.
If the Supreme Court accepts arguments thatthe 1990 federal disabilities law infringes onstates' rights, public-college employees andstudents with physical or mental impairmentscould be precluded from suing their institutionsfor damages under the A.D.A.
The case before the justices involves twolawsuits, filed by Alabama state employees,which a lower federal court had consolidated.One of the complaints was brought by aUniversity of Alabama employee who chargedthat her supervisors had discriminated againsther after she developed cancer. The plaintiff inthe other lawsuit is a state correctional officer.
The Supreme Court agreed to take up thequestion of whether the 11th Amendment tothe U. S. Constitution, which grants statesbroad protections against being sued in federalcourt, shields states from lawsuits filed underthe federal disabilities act.
EQUAL-PROTECTION GUARANTEES
The lawyers for the state employees argue thatsuch states rights' concerns are trumped by the14th Amendment's equal-protection guarantees.The Supreme Court historically has cited the14' Amendment in allowing the U. S.government to enforce state compliance withfederal laws banning racial discrimination. The
two sides in the case disagree on whether thegovernment's interest in prohibitingdiscrimination against people with disabilities iscompelling enough to justify similar intrusionsinto states' affairs.
Similar questions have arisen over federal lawsbarring discrimination based on age. On thatfront, the Supreme Court has come downsquarely on the side of the states.
In January, in a case involving several Floridapublic-university employees, the SupremeCourt held that Congress had exceeded itsauthority in passing the federal AgeDiscrimination in Employment Act of 1967,and that state agencies therefore cannot be suedfor alleged age-related bias in federal Court.
DIVIDED APPEALS COURTS
The Supreme Court has tried twice before todecide the constitutionality of applying theAmericans With Disabilities Act to stateinstitutions, by agreeing in January to take upseparate lawsuits involving enforcement of theact in Arkansas and Florida. Both cases weresubsequently settled, however, before theSupreme Court could render a decision.
In the Alabama case, the university employeeand the corrections officer accused the stateand its university system of violating both theA.D.A. and the Rehabilitation Act of 1973,which bars recipients of federal funds-includingcolleges-from discriminating on the basis ofdisability. A U. S. District Court ruled in
January 1998 that the 11th Amendment
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precluded the lawsuits. The U. S. Court ofAppeals for the Ilth Circuit overturned thatdecision in October 1999, however.
The State of Alabama and the University ofAlabama System were joined by the plaintiffsand the U. S. Justice Department in submittingbriefs asking the Supreme Court to resolve theconflict between the 11th Amendment and theAmericans With Disabilities Act. The SupremeC6urt needed to intervene, they said, becausethe federal circuit courts were deeply dividedover whether states must comply with the act,with judges in six circuits saying yes, and thosein two circuits ruling no.
The lawyers for the state and the universitysystem also asked the Supreme Court to decidewhether the 11th Amendment provides stateswith immunity from the Rehabilitation Act of1973.
The lawyers for the plaintiffs and federalgovernment opposed such a review, however.
They are arguing that the circuit courts were inagreement that states can be sued under theRehabilitation Act, given that the act requiresstates to waive their 11th-Amendmentimmunity as a condition for receiving federalfunds. On this issue, the Supreme Court sidedwith the plaintiffs and federal government anddecided not to review the 11th Circuit'sdecision upholding the Rehabilitation Act.
The lawsuit against the University of Alabamawas brought in 1997 by Patricia Garrett, thedirector of nursing for women at the Universityof Alabama Hospital. She charged that, aftershe was diagnosed with breast cancer in 1994,her supervisor made negative comments abouther illness and demoted her when she took fourmonths of unpaid leave for treatment.
The university system has denieddiscriminating against Ms. Garrett.
Copyright ( 2000 The Chronicle of HigherEducation
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SOLID WASTE AGENCY OF NORTHERN COOK COUNTY v. U.S. ARMY CORPS OFENGINEERS
Is it a waste of time to mess with the government?
David P. Primack*
The Supreme Court will be getting its hands dirty again in its continuing analysis of thecongressional power to legislate under the Commerce Clause. This fall, the Court will determinewhether or not the U.S. Army Corps of Engineers exceeded its jurisdiction when it denied permits tothe Solid Waste Agency if Northern Cook County (SWANCC) to build a landfill because such a landfillwould upset the habitats of certain protected migratory birds. Given this Court's line of decisions fromUnited States v. Loper (1995) to Bronkala v. Morison (2000), the birds are going to have to show that theyare sufficiently connected with interstate commerce to keep their seasonal home away from home frombeing a dumpsite.
For fourteen years, a group of Illinois municipalities have been attempting to find a place wherethey can dump their accumulating trash. This consortium, SWANCC, bought a 533-acre parcel of landjust northwest of Chicago which was once a strip mine. SWANCC wanted to make approximately 410acres of the site a "balefill"-a place where trash is collected into bales before it is eventually dumped.In order to accomplish this, approximately 17 acres of this area had to be filled up with dirt becausethese acres, which were once depressions from the strip mining, had now become ponds and smalllakes unusable for balefilling. These small ponds and lakes are the cause of this whole controversy.
When SWANCC applied for permission to make a balefill, the U.S. Army Corps of Engineers("Corps"), after having learned that many endangered birds had been observed wading in these pools,denied SWANCC the permits citing jurisdiction under the migratory bird rule of the Clean Water Act.SWANCC argued that this rule did not apply to these isolated, intrastate ponds and thus the CleanWater Act empowered by the Commerce Clause of the U.S. Constitution was not controlling. Thedistrict court disagreed with SWANCC's argument and upheld instead the Corps jurisdiction over thematter.
Judge Wood, writing for the Seventh Circuit, upheld the lower court's decision. The SeventhCircuit first noted that the Clean Water Act prohibits the discharge of fill material into "the navigablewaters" without a permit issued by the Corps. Navigable waters are defined in the statute as the"waters of the United States, including the territorial seas." The Environmental Protection Agency(EPA) promulgated regulations defining these waters to include "intrastate lakes, rivers, streams ...theuse, degradation or destruction of which could affect interstate or foreign commerce." Finally, in theapex of this line of reasoning, the Seventh Court noted that the EPA and Corps have long held that thisprovision includes all waters otherwise unrelated to interstate commerce "which are or would be usedas habitat by birds protected by Migratory Bird Treaties or which are or would be used as habitat byother migratory birds which cross state lines."
In its brief, SWANCC argued that the migratory bird rule is unconstitutional in light of theSupreme Court's decision in United States v. Lopeg (1995). In that case, the Court determined that theGun-Free School Zones Act of 1990, which prohibits an individual's possession of a firearm in a schoolzone, exceeds the authority of Congress under the Commerce Clause because the possession of a gun
* College of William and Mary School of Law, Class of 2002.
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does not substantially affect interstate economic activity. Likewise, SWANCC argued that filling these17 acres would not substantially affect interstate economic activity. The Seventh Circuit disagreed.
Prior to Lope., it was established that the Congress' powers under the Commerce Clause werebroad enough to permit regulation of the waters based on the presence of migratory birds. Under oneof the three tests of Lope-, a federal statute based on the Commerce Clause must regulate activities thatsubstantially affect interstate commerce. SWANCC tried to assert that the migratory bird rule does notmeet this test, but the Seventh Court noted that Lopez in no way undermined the cumulative impactdoctrine-a single activity that itself has no discernable effect on interstate commerce may still beregulated if the aggregate effect of that class of activity has a substantial impact on interstate commerce.In this case, the destruction of migratory bird habitats and the corollary decrease in bird populationssubstantially affects the billion-dollar industry spent in hunting, trapping, or observing migratory birds.The effect of the destruction of one intrastate pond on birds may not be noticeable but the aggregateeffect is clear that if migratory birds' habitats were destroyed, this industry and those birds would besubstantially affected.
Finally, the Seventh Circuit addressed two obvious questions. Despite SWANCC's argument tothe contrary, not every puddle of water would be protected under the migratory bird rule; only thosewaters that serve as actual habitats for migratory birds could be considered as protected. This site is theseasonal home to the second largest breeding ground for the great blue heron, a protected bird.Secondly, although SWANCC points out that LopeZ stresses that legislation should not erode thedistinctions between what is truly national and truly local, migratory birds are indeed a national, nayeven, international concern as evidenced by the numerous national and international treaties andconventions that govern their activities.
Solid Waste Ageny will provide the Supreme Court with another opportunity to delineate theextent of Congress' power to legislate under the Commerce Clause. From Lope. to Bronkala it appearsthat the court has asked for a closer nexus between legislation and economic activity than it has in thepast. Given this, the Corps will probably have the burden to show that these isolated, seasonal pools ofwater part and parcel of the greater economic migratory bird activities. In any case, it is clear that theCorps will be wading into now muddied waters of the scope of the Commerce power.
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99-1178 Solid Waste Agency of Northern Cook County v. Army Corps of Engineers
Ruling below (7Th Cir., 191 F.3d 845, 68 U.S.L.W. 1216, 49 Envt. Rep. Cas. 1353):
Army Corps of Engineers' assertion of Clean Water Act jurisdiction over intrastate waters shown toprovide habitat for migratory birds is permissible exercise of Congress's authority under commerceclause to regulate activities that substantially affect interstate commerce.
Question presented: May U.S. Army Corps of Engineers, consistent with Clean Water Act andcommerce clause of U.S. Constitution, assert jurisdiction over isolated intrastate waters solely becausethose waters do or potentially could serve as habitat of migratory birds?
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SOLID WASTE AGENCY of Northern Cook County, Plaintiff-Appellant,V.
United States ARMY CORPS of Engineers, Defendants-Appellee.
United States Court of Appealsfor the Seventh Circuit
Decided October 7, 1999
WOOD, Circuit Judge
This case involves the efforts of aconsortium of Illinois municipalities to find aplace to dump their trash. The Solid WasteAgency of Northern Cook County ("SWANCC")thought that it had found such a spot in a 533-acre parcel of land straddling Cook and KaneCounties, Illinois. Before its "balefill" couldopen, however, approximately 17.6 acres ofponds and small lakes located on the parcel hadto be filled in. This case presents the questionwhether the U.S. Army Corps of Engineers ("theCorps"), acting under 5 404 of the Clean WaterAct ("the Act"), 33 U.S.C. f 1344, hadjurisdiction to require SWANCC to obtain apermit for its fill operations. SWANCC initiallyapplied for such a permit, but the Corps deniedit. SWANCC then sued, claiming both that theCorps had no business meddling in the matter atall and that it was wrong on the merits. For itspart, the Corps claimed jurisdiction under the so-called "migratory bird rule," which interprets theAct as extending to certain intrastate watersbased on their actual or potential use as habitatfor migratory birds. (The parties dispute whetherthis is a mere interpretation of statutory language,or something that should be regarded as afreestanding rule--a point that we discuss later inthis opinion. Our use of the common phrase"migratory bird rule" is not intended to suggest aposition on that issue.)
The district court granted summary judgmentin the Corps' favor on the jurisdictional point. Atthat point, SWANCC decided voluntarily todismiss the remainder of its claims, so that the
district court could enter a final judgment fromwhich it could appeal. *** We conclude that theCorps properly asserted jurisdiction in thismatter, and we therefore affirm.
I
SWANCC is a group of 23 municipalitiesthat banded together to form a municipalcorporation for the purpose of locating anddeveloping a disposal site for nonhazardouswaste. It found and purchased the 533-acre siteto which we have already referred, from which ithoped to carve out approximately 410 acres for a"balefill"-- that is, a landfill where the waste isbaled before it is dumped. Approximately 298acres of the proposed balefill site is what isknown as an early successional stage forest. Atone time, it was a strip mine, but when themining operation shut down approximately 50years ago, a labyrinth of trenches and otherdepressions remained behind. Over time, theland evolved into an attractive woodlandvegetated by approximately 170 different speciesof plants. What were once gravel pits are nowover 200 permanent and seasonal ponds. Theseponds range from less than one-tenth of an acreto several acres in size, and from several inchesto several feet in depth. The forest is also hometo a variety of small animals. Most important forour purposes are the 100-plus species of birdsthat have been observed there. These includemany endangered, water-dependent, andmigratory birds. Among the species that havebeen seen nesting, feeding, or breeding at the siteare mallard ducks, wood ducks, Canada geese,sandpipers, kingfishers, water thrushes, swamp
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swallows, red-winged blackbirds, tree swallows,and several varieties of herons. Most notably, thesite is a seasonal home to the second-largestbreeding colony of great blue herons innortheastern Illinois, with approximately 192nests in 1993.
This litigation arose because the proposedbalefill project would require the filling ofapproximately 17.6 acres of semi-aquaticproperty within the forested area. Section 404 ofthe Act prohibits the discharge of fill materialinto "the navigable waters" without a permitissued by the Secretary of the Army, actingthrough the Chief of Engineers. *** The term"navigable waters" is defined in the statute as"the waters of the United States, including theterritorial seas." *** Although the Act itselfprovides no further explanation of which watersare subject to § 404's requirements, regulationsissued by the Environmental Protection Agency("EPA") and the Corps define the phrase "watersof the United States" to include "intrastate lakes,rivers, streams (including intermittent streams),mudflats, sandflats, wetlands, sloughs, prairiepotholes, wet meadows, playa lakes, or naturalponds, the use, degradation or destruction ofwhich could affect interstate or foreigncommerce." ***
In March 1986, SWANCC contacted theCorps to find out if a particular 267-acre parcelwithin the proposed balefill site included"wetlands" within the meaning of the Act, suchthat SWANCC would have to obtain a §404permit in order to fill it in. After an on-siteinspection, the Corps initially decided that thesite did not include protected wetlands andtherefore did not fall within its regulatoryjurisdiction. One year later, in February 1987,SWANCC contacted the Corps to request adetermination as to whether a 414-acre parcel ofthe site included "wetlands." The Corps againresponded in the negative.
The Corps changed its position with regardto its jurisdiction over the balefill site, however,after the Illinois Nature Preserves Commission (astate agency) informed it that a number of
migratory bird species had been observed there.This new information made all the difference tothe Corps, because of the so-called migratorybird rule. This rule, or interpretive convention,reflects the fact that the definition of "waters ofthe United States" found in 33 C.F.R. §328.3(a)(3) has long been understood by the EPAand the Corps to include all waters, includingthose otherwise unrelated to interstatecommerce, "which are or would be used ashabitat by birds protected by Migratory BirdTreaties" or "which are or would be used ashabitat by other migratory birds which cross statelines." *** ("1986 preamble"). In a letter toSWANCC dated November 16, 1987, the Corpsexplained that its two previous determinationsthat the site did not fall within its jurisdictionwere based on its finding that the site did notmeet the definition of "wetland." In contrast, thelatest determination-that the Corps did havejurisdiction over the site--was based on adifferent theory entirely. Regardless of wetlandstatus, it now appeared that the aquatic areas ofthe site "are or could be used as habitat bymigratory birds which cross state lines." Inresponse to the Corps' notification that itintended to exercise jurisdiction over the site,SWANCC submitted an application for a §404permit. The Corps denied that application,finding that all of the affected waters in the sitewere in fact used as habitat by migratory birds(and thus were not merely potential habitat).SWANCC then submitted a revised applicationthat was also denied.
At this stage in the litigation, SWANCC hasabandoned its challenge to the merits of theCorps' decisions and has instead focusedexclusively on its challenge to the migratory birdrule as a basis for the Corps' jurisdiction.Accordingly, we accept as true the Corps' factualfindings with regard to SWANCC's permitapplication, including the crucial finding that thewaters of this site were a habitat for migratorybirds.
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II
SWANCC offers three arguments to supportits position that the Corps had no authority torequire it to obtain a permit: (1) Congress lackedthe power to grant the Corps regulatoryjurisdiction over isolated, intrastate waters basedon the presence of migratory birds alone; (2) theCorps exceeded its statutory authority ininterpreting the Act to confer jurisdiction asprovided by the migratory bird rule; and (3) themigratory bird rule is invalid because it was notpromulgated in accordance with the notice andcomment requirements of the AdministrativeProcedure Act ("APA") ***
We begin with the most ambitious ofSWANCC's arguments, which is that themigratory bird rule is unconstitutional in light ofthe Supreme Court's decision in United States v.Lope7, *** Prior to Lopez, it had been establishedthat Congress' powers under the CommerceClause were broad enough to permit regulationof waters based on the presence of migratorybirds. *** We must decide whether Lopez nowcompels the opposite conclusion.
In Lope,-,, the Court reaffirmed the well-established principle that a federal statute basedon the Commerce Clause must serve one ofthree purposes: (1) regulation of the channels ofinterstate commerce; (2) regulation or protectionof the instrumentalities of interstate commerce,or persons or things in interstate commerce; or(3) regulation of activities that "substantiallyaffect" interstate commerce. Lope!, 514 U.S. at558-59; *** The gun control law at issue in Lope<,like the migratory bird rule challenged here,could only have been sustained as an exercise ofthe third variety of regulatory power. The LopezCourt concluded that the statute before it, whichmade it a crime "knowingly ... [to] possess afirearm at a place that the individual knows, orhas reasonable cause to believe, is a school zone"did not meet the "substantially affects" testbecause (1) it was a criminal statute which, by itsterms, had nothing to do with interstatecommerce or commercial transactions; (2) itcontained no jurisdictional element to ensure that
in each case the firearm in question had in factaffected interstate commerce; and (3) Congresshad offered no legislative findings to support theconclusion that possessing a gun in a school zoneaffected interstate commerce. Lope,-, 514 U.S. at559-62; ***
SWANCC urges us to conclude that themigratory bird rule suffers from the samedefects. But such a conclusion would overlookimportant differences between the statute beforethe Court in Lopez and the one we areconsidering. This court has noted previously thatLopeZ expressly recognized, and in no waydisapproved, the cumulative impact doctrine,under which a single activity that itself has nodiscernible effect on interstate commerce maystill be regulated if the aggregate effect of thatclass of activity has a substantial impact oninterstate commerce. ***
This approach, which is most closelyassociated with the Supreme Court's decision inWickard v. Filburn, *** indicates the relevant legalquestion for our case is whether the destructionof the natural habitat of migratory birds in theaggregate "substantially affects" interstatecommerce. We observed in Hoffman Homes, Inc. v.EPA, *** that "throughout North America,millions of people annually spend more than abillion dollars on hunting, trapping, andobserving migratory birds. Yet the cumulativeloss of wetlands has reduced the populations ofmany species and consequently the ability ofpeople to hunt, trap, and observe those birds."*** Statistics produced by the U.S. CensusBureau reveal that approximately 3.1 millionAmericans spent $ 1.3 billion to hunt migratorybirds in 1996, and that about 11 percent of themtraveled across state lines to do so. Fish &Wildlife Service, U.S. Dep't of the Interior &Bureau of the Census, U.S. Dep't of Commerce,1996 National Survey of Fishing, Hunting, andWildlife-Associated Recreation 25 (November1997). Another 17.7 million people spent timeobserving birds in states other than their states ofresidence; 14.3 million of these took tripsspecifically for this purpose; and approximately
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9.5 million traveled for the purpose of observingshorebirds, such as herons *** There is no needto dally on this point: we find (once again) thatthe destruction of migratory bird habitat and theattendant decrease in the populations of thesebirds "substantially affects" interstate commerce.The effect may not be observable as each isolatedpond used by the birds for feeding, nesting, andbreeding is filled, but the aggregate effect is clear,and that is all the Commerce Clause requires.
SWANCC objects that the migratory birdrule cannot serve to define the Corps'jurisdiction, because the rule excludes nothing.The United States is home to somewherebetween 2.5 and 6 billion birds, two-thirds ofwhich migrate. Virtually any body of water couldserve as a temporary habitat for at least some ofthese birds. However, any suggestion that nextthe Corps will be trying to regulate the filling ofevery puddle that forms after a rainstorm, at leastif a bird is seen splashing in it, misses the point.A "habitat" is not simply a place where a birdmight alight for a few minutes, as SWANCCsuggests, but rather "the place where a plant oranimal species naturally lives or grows."Webster's Third New International Dictionary1017 (1993). Before the Corps may assertjurisdiction under the migratory bird rule, it mustfirst make a factual determination that aparticular body of water provides a habitat formigratory birds, which it has done here.
Last, SWANCC offers a broad policy-basedargument for rejecting jurisdiction under themigratory bird rule. The rule is, it claims,inconsistent with the principles of federalism thatmotivated the Court in Lope , because it erodesthe "distinction between what is truly nationaland what is truly local." *** But this argumentworks only if, as SWANCC asserts, theprotection of migratory bird habitat is a matter oflocal concern only. Once again, that argument isrefuted by the numerous international treatiesand conventions designed to protect migratorybirds, *** as well as the case law recognizing the"national interest of very nearly the firstmagnitude" in protecting such birds ***. Even
less persuasive is SWANCC's suggestion thatgiving a federal agency (here, the Corps) thepower to override decisions by local land useand zoning boards to permit the filling of localwaters conflicts with notions of state sovereignty.To the contrary, because the regulation ofmigratory bird habitat is a permissible exercise ofCongress' authority, the Supremacy Clause, U.S.Const. art. VI, cl. 2., squarely supports thelegitimacy of giving precedence to federal law inthis area.
III
SWANCC next contends that, even ifCongress lawfully could have granted the Corpsjurisdiction over isolated bodies of water basedon the presence of migratory birds, it did not doso. As noted above, the Act expressly limits theCorps' jurisdiction to "the waters of the UnitedStates." The EPA and the Corps have definedthis term to include "all other waters ... the use,degradation or destruction of which could affectinterstate or foreign commerce." They furtherhave interpreted the phrase "could affectinterstate or foreign commerce" as permittingjurisdiction based on the presence of migratorybirds. It is this second level of agencyinterpretation that SWANCC deems excessive.
We review an agency's interpretation of astatute it is charged with administering under thestandard outlined in Chevrn U.SA. Inc. v. NaturalResources Defense Counil, Inc. *** The first questionis whether the plain meaning of the text of thestatute either supports or opposes the regulation.If so, the analysis ends with the court'sapplication of the plain meaning. *** But if thestatute is either ambiguous or silent on the issue,the court must defer to the agency interpretationso long as it is based on a reasonable reading ofthe statute. ***
It is well established that the geographicalscope of the Act reaches as many waters as theCommerce Clause allows. *** Thus, if Congresspossesses the power to regulate a body of waterunder the Act, generally this court will conclude
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that it has in fact done so. Accordingly, becauseCongress' power under the Commerce Clause isbroad enough to permit regulation of watersbased on the presence of migratory birds, it iscertainly reasonable for the EPA and the Corpsto interpret the Act in such a manner. ***
SWANCC believes that this conclusion is atodds with the Fourth Circuit's decision in UnitedStates v. Wilson, *** Wilson involved a challengeto 33 C.F.R. 5 328(a)(3), the regulation thatdefines "waters of the United States" to includeall waters "the use, degradation or destruction ofwhich could affect interstate or foreigncommerce." The court found the regulation to bean unreasonable interpretation of the Act basedon its suspicion that Congress lacks the powerto regulate waters that "could" affect interstate orforeign commerce. In our case, however, thequestion whether Congress may regulate watersbased on their potential to affect interstatecommerce is not presented, because theunchallenged facts show that the filling of the17.6 acres would have an immediate effect onmigratory birds that actually use the area as ahabitat. Thus, we need not, and do not, reach thequestion of the Corps' jurisdiction over areas thatare only potential habitats. Moreover, we notethat SWANCC has not attacked 33 C.F.R. §328(a)(3) here. Instead, it has limited itsobjections to the propriety of the migratory birdrule as an interpretation of 33 C.F.R. § 328(a)(3).
SWANCC's remaining statutoryinterpretation argument asks us to find themigratory bird rule unreasonable because it isdesigned to preserve wildlife rather than waterquality. This point overlooks the fact that theAct's stated purpose is "to restore and maintainthe chemical, physical, and biological integrity ofthe Nation's waters." *** SWANCC's suggestionthat the Corps' jurisdiction must be definedsolely by reference to water quality is itselfinconsistent with the Act and must be rejected.
IV
Last, SWANCC challenges the migratory birdrule on the ground that it was promulgated inviolation of the notice and commentrequirements of the APA. *** Our starting pointhere is with the fact that the APA does notrequire administrative agencies to follow noticeand comment procedures in all situations.Section 553(b)(3)(a) specifically exempts"interpretive rules, general statements of policy,or rules of agency organization, procedure, orpractice" from the requirement. In order tosucceed on its APA claim, then, SWANCC mustconvince us that the migratory bird rule is alegislative (also termed "substantive") rule, ratherthan an interpretive rule or policy statement. ***
That, in our view, it cannot do. We explainedthe difference between legislative and interpretiverules at some length in Hoctor v. U.S. Dept. ofAgriculture, *** where we found that a rulerequiring certain wild animal containment fencesto be eight feet tall was legislative. The reason forthis was straightforward: nothing in the idea of a"secure" containment could tell someonewhether 7 feet, 8 feet, or 8 feet, would be"secure" enough. The statute in question (theAnimal Welfare Act, 7 U.S.C J 2131 et seq.) didnot impose a duty to build a fence of a certainheight. Instead, it authorized the agency toimpose a specific obligation that wouldimplement the general statutory goals. Here, thestatute itself defines the jurisdictional reach ofthe Act, and regulations issued under the notice-and-comment procedures have elaboratedfurther upon that definition. There is, followingHoctor's common-sense approach, something tointerpret here: the use of the term "waters" and"navigable waters" in 33 U.S.C. f f 1344(a) and1362(7), and the specific examples of such waters
given in 33 C.F.R. § 328.3(a)(3).
It is also noteworthy that the migratory bird"rule" first made its appearance in the FederalRegister publication of the Corps' 1986recodification of the regulatory definition of"waters of the United States" in 33 C.F.R. §328(a)(3), when it moved these rules from Part
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323 to Part 328 of Title 33 of the Code. *** Thepreamble offered several examples of waters thatcame within the regulatory definition, includingthose used as habitat for migratory birds, as wellas examples of waters that normally would notfall within the definition. This, in our view, wasinterpretation. Moreover, it is hard to see whatwould have been different if formal notice-and-comment rulemaking had been used, exceptperhaps the page of the Federal Register onwhich this statement appeared. We do not wishto discourage agencies from offering concreteexamples of the ways in which their rules willapply, *** and we believe that is all that theCorps and the EPA did here.
The Corps has also argued that SWANCC'schallenge to the migratory bird rule comes toolate, because SWANCC did not file suit in thedistrict court until December 1994, more than sixyears after the migratory bird rule was firstpublished. There is a general six-year statute of
limitations for civil actions against the UnitedStates found in 28 U.S.C J 2401(a), whichapplies to lawsuits brought pursuant to the APA.*** Even if the fact that the Corps did not raisethis argument in the district court does not bar itnow from making the argument, we doubt that aparty must (or even may) bring an action underthe APA before it knows that a regulation mayinjure it or even be applied to it. *** Wetherefore do not reach the Corps' limitationsargument, since it would have no effect on theoutcome in light of our resolution of SWANCC'ssubstantive APA challenge.
We conclude that the decision to regulateisolated waters based on their actual use ashabitat by migratory birds is within Congress'power under the Commerce Clause, and that itwas reasonable for the Corps to interpret the Actas authorizing this regulation. Accordingly, weAffirm the judgment of the district court.
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THE COURT'S NEXT CHAPTER
The Washington Post
Wednesday, june 7,2000
THE SUPREME Court has wasted no timeteeing up another round in its exploration ofthe limits of federal power. Within a week ofstriking down portions of the Violence AgainstWomen Act, the justices agreed to hear achallenge to the government's authority toprotect small wetlands that are home tomigratory birds. The court's conservativemajority seeks to prevent federal intrusions intoareas of traditional state concern. That's auseful instinct up to a point. But if it were to gotoo far, the court would undercut Congress'sability to perform essential national functions.Environmental protection is one such. The caseof Solid Waste Agency v. U.S. Army Corps ofEngineers presents a good opportunity for thecourt to start drawing some difficult lines.
The technical issue in all these cases is thescope of Congress's power under theConstitution to regulate interstate commerce.The commerce clause has in recent decadesbeen broadly interpreted and has provided thebasis for a great deal of congressional action,including to safeguard civil rights. Starting withthe 1995 case of U.S. v. Lopez, however, thecourt began stressing that even the commerceclause power has limits. In the Lopez case,involving the use of guns near schools, andagain recently in the violence-against-womencase, the court struck down congressionalefforts to regulate non-economic activities thattake place within a single state. These decisionsseem reasonable, but they beg the question ofhow to define economic activity so as not topreclude federal action where it has come to beexpected.
In the current case, the Army Corps ofEngineers blocked some Illinois municipalitiesfrom filling in wetlands to create a garbagedump. The communities sued, claiming that
such regulation is not a valid exercise of thecommerce clause power. Their argument has acertain plausibility in the wake of the court'srecent decision. The wetlands in question are allwithin a single state, and protecting migratorybirds from extinction has only obliquely to dowith commerce.
But such federal environmental protectionought to be on safe ground. In striking downthe provision of the Violence Against WomenAct that allowed civil suits in federal court forrape victims, the court stressed that gender-motivated violence was in no sense economicactivity. That's not true of solid waste disposal.That alone should permit federal jurisdiction.And though environmental laws will sometimesrestrict non-economic conduct, they aregenerally aimed at preventing commercial orindustrial activities from adversely affecting theenvironment. The courts must give Congresslatitude to pass such general regulatory regimesaimed at economic behaviors that impinge onother national interests. The conservative 4thCircuit Court of Appeals yesterday used thislogic to uphold a federal regulation protectingthe red wolf, noting that blocking such federalenvironmental protection would "transform the[courts'] reviewing function from a shieldprotecting state activities into a sworddismembering a long recognized federal one."If the courts do not show deference toCongress here, they risk calling into questionnot just environmental laws but civil rights andother statutes as well.
Liberals have been quick to denounce theSupreme Court's interest in reexamining thecommerce clause. So far, the court majority hasthrown out relatively marginal laws that were
important principally as symbols. If Congresshas to think twice before passing such statutes
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in the future, the system will be the healthier.With this case, however, we will learn whetherthe justices will content themselves with
teaching this important civics lesson or whetherthey mean to prove the alarmists correct.
Copyright © 2000 The Washington Post
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COURT STUDIES CORPS' REVIEW
Waste News
Monday, June 5, 2000
Susanna Duff
The Supreme Court will decide whether theU.S. Army Corps of Engineers has jurisdictionto deny landfill development in a migratory birdarea.
Broadly, the court's decision woulddetermine the constitutional boundaries of theCommerce Clause, but it also would directlyimpact development of landfills in isolatedbodies of water.
The court agreed May 24 to consider a casebrought by the Solid Waste Agency ofNorthern Cook County, Ill., which claims theCorps for more than a decade has illegallyblocked the development of a landfill innorthern Illinois.
The Corps holds that under Section 404 ofthe Clean Water Act, it can require SWANCCto obtain a permit because the site, a formerstrip mine, is home to migratory birds. Section404 requires a landfill permit for disposal into"navigable waters," ambiguously defined as"waters of the United States." The U.S.Environmental Protection Agency furtherdefines that to include waters that could affectinterstate commerce.
SWANCC argues the Corps hasoverstepped its jurisdiction under theCommerce Clause. Last October, the U.S. 7thCircuit Court of Appeals upheld a 1994decision by an Illinois federal court siding withthe Corps.
The Supreme Court's decision, expectednext spring, would clarify its increasinglyrestrictive position on congressional authorityof the Commerce Clause, said KennethKaufman, a Washington environmental lawyer.
In a 1995 case involving guns and schools, theSupreme Court ruled Congress had to justify itslegislative action under the Commerce Clause.Last month, the court struck down a violenceagainst women law, stating Congress mustshow a substantial effect on interstatecommerce.
If the court restricts the Corps' authority,more landfill operators than the SWANCCwould win. Developers of landfills in isolatedbodies of water would not have to deal withpermits from the Corps or the EPA, whichsometimes oversteps Corps authority, Kaufmansaid.
"You've got less bureaucracy in that there isone less entity to deal with," said Kaufman, anattorney with Wright & Talisman.
A decision favoring SWANCC also wouldhelp landfill operators build on dry washes, or
gullies, which fall under the federal jurisdictionbecause of the migratory bird theory, saidWashington environmental lawyer VirginiaAlbrecht. "I think it would raise substantialquestions about authority of these dry gullies,which are sprinkled throughout the West," saidAlbrecht, with Hunton & Williams.
Cutting out the Corps would be a timesaver in the often long landfill permittingprocess. The 533-acres in question werepurchased 15 years ago for a 410-acre site.SWANCC planned to carve out 142 acres for abalefill, a landfill where the waste is baledbefore it is dumped.
The Corps twice denied SWANCC a permitfor the landfill, which is home to a 298-acreforest with 200 permanent and seasonal pondsvisited by more than 100 species of birds. The
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first time, the Corps said SWANCC's plan forforest birds was inefficient. The second time,the Corps said the stormwater plan designwould flood the area.
"We saw it as a way to throw multiple waysof denying a permit," said Brooke Beal,SWANCC's executive director.
The Corps said it would not comment onongoing litigation.
If built, the balefill would accept up to1,500 tons per day, Beal said. SWANCCoperates a transfer station in nearby Glenviewthat takes in more than 1,000 tons of municipalsolid waste from SWANCC's 23 membercommunities in northern Cook Countysuburbs. The waste is taken across state lines toa Waste Management landfill in Bristol, Wis.
That made interstate waste a SWANCCconcern, Beal said. Northern Illinois is notdeveloping any new sites, and Wisconsin hastwice tried to restrict waste from crossing itsborders.
Copyright C) 2000 Crain Communications, Inc.
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HIGH COURT TO HEAR CASE ON LANDFILL IN BARTLETT
Chicago Daily Herald
Tuesday, May 23, 2000
Matt Arado
The U.S. Supreme Court Monday set thestage for what should be the final legal battle ina 14-year war over a proposed landfill nearBartlett.
High-court justices announced they willconsider whether the U.S. Army Corps ofEngineers overstepped its bounds by stoppingconstruction of the so-called balefill, whichwould use 142 acres of a 410-acre site near theintersection of West Bartlett and Gifford roadsin Cook County.
The village of Bartlett and nearby residentshave opposed the project, saying it woulddevastate the environment and contaminate thelocal water supply.
The Solid Waste Agency of Northern CookCounty claims it is a much-needed solution tovanishing landfill space and the high cost oftransporting garbage out of state. Theconsortium has invested $ 20 million intaxpayer money on the facility so far.
"We're very excited the court has decided tohear our case," said agency Executive DirectorC. Brooke Beal, whose group disposes wastefrom 23 North and Northwest Cook Countycommunities. "The court hears so few cases,and we think this indicates that the court thinksour case has some merit."
The court's decision, Beal added, follows itsrecent pattern of tackling cases concerning thescope of federal authority.
"In recent weeks, (the high court) has ruledboth the Congress and federal agencies haveoverstepped their constitutional authority," hesaid. "This is part of the argument we have withthe Army Corps of Engineers."
Mary Byrne, a Hanover Park resident whoheads a grass-roots group called CitizensAgainst the Balefill, didn't share Beal'sexcitement. She and other balefill opponentsthought the project was dead last Octoberwhen the 7th U.S. Circuit Court of Appealsruled the Clean Water Act specifically gave theArmy Corps authority to regulate the site.
That site, a former gravel mine, containswaters that have become home to severalspecies of migrating birds. The Army Corpstwice refused to grant permits to the wasteagency to protect it.
The proposed project is called a balefillbecause workers bale the trash before buryingit.
"Just when you think it's over, you realizeyou aren't even out of the tunnel yet," Byrnesaid. "I can't understand why the court woulddecide to hear this case. We have all the factson our side."
Byrne said her group will do whatever it canto assist the government during the SupremeCourt case. Briefs will be filed as early as thissummer, Beal said, and arguments before thecourt eventually will be scheduled. A decision islikely by next spring.
The solid-waste agency, Beal said, has setaside about 2 percent of its $ 18 million budgetfor the case. Currently, residential wastehandled by the agency gets processed at atransfer station in Glenview before beingshipped about 40 miles north to a landfill inBristol, Wis.
Bartlett Village President CatherineMelchert said she was confident the high courtwould rule in the corps' favor.
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"We've been at this for a long time,"Melchert said. "Two courts have upheld thegovernment's position. I don't have any reasonto expect anything different from the SupremeCourt."
Melchert couldn't say what assistance, ifany, Bartlett would lend to the Army Corps inthe case.
"That's something our board has todiscuss," she said.
Leaders from communities disposing trashthrough the solid waste agency welcomed adecision on the landfill.
"I think the fact that the U.S. SupremeCourt is willing to hear the case will bring thisto fruition one way or another once and forall," said Hoffman Estates Mayor MichaelO'Malley.
"All along we've been interested in agarbage disposal technology that isenvironmentally safe and responsible andaddresses the needs of the local community,"added Mount Prospect Trustee Tim Corcoran."This gives us our day in court."
Copyright ( 2000 Paddock Publications, Inc.
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