Federalism, State Sovereignty and the Constitution: Basis and Limits of Congressional Power
Prepared for Members and Committees of Congress
The lines of authority between states and the federal government are, to a significant extent,
defined by the United States Constitution and relevant case law. In recent years, however, the
Supreme Court has decided a number of cases that would seem to reevaluate this historical
relationship. This report discusses state and federal legislative power generally, focusing on a
number of these “federalism” cases. The report does not, however, address the larger policy issue
of when it is appropriate—as opposed to constitutionally permissible—to exercise federal powers.
The U.S. Constitution provides that Congress shall have the power to regulate commerce with
foreign nations and among the various states. This power has been cited as the constitutional basis
for a significant portion of the laws passed by Congress over the last 50 years, and it currently
represents one of the broadest bases for the exercise of congressional powers. In United States v.
Lopez and subsequent cases, however, the Supreme Court did bring into question the extent to
which Congress can rely on the Commerce Clause as a basis for federal jurisdiction.
Another significant source of congressional power is the Fourteenth Amendment, specifically the
Equal Protection and Due Process Clauses. Section 5 of that amendment provides that Congress
has the power to enforce its provisions. In the case of Flores v. City of Boerne, however, the Court
imposed limits on this power, requiring that there must be a “congruence and proportionality”
between the injury to be remedied and the law adopted to that end.
The Tenth Amendment provides that “powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the
people.” While this language would appear to represent one of the most clear examples of a
federalist principle in the Constitution, it has not had a significant impact in limiting federal
powers. However, in New York v. United States and Printz v. United States, the Court did find that,
under the Tenth Amendment, Congress cannot “commandeer” either the legislative process of a
state or the services of state executive branch officials.
The Eleventh Amendment provides that “[t]he Judicial power of the United States shall not be
construed to extend to any suit in law or equity, commenced or prosecuted against one of the
United States by Citizens of another State.” Although this text is limited to preventing citizens
from bringing diversity cases against states in federal courts, the Supreme Court has expanded the
concept of state sovereign immunity further to prohibit citizens generally from bringing suits
against states under federal law generally. There are exceptions to this limitation, however, and
Congress also has a limited ability to abrogate such state immunity.
Finally, Congress has the power under the Spending Clause to require states to undertake certain
activities as a condition of receiving federal monies. Such conditions, however, must be related to
the underlying grant, and the financial consequences of non-compliance cannot be coercive.
Powers of the States..................................................................................................................1
Powers of the Federal Government...........................................................................................1
The Commerce Clause..............................................................................................................3
The Fourteenth Amendment......................................................................................................8
The Tenth Amendment............................................................................................................14
Eleventh Amendment and State Sovereign Immunity............................................................15
The Spending Clause...............................................................................................................19
Conclusion .............................................................................................................................. 21
Author Contact Information..........................................................................................................22
he lines of authority between states and the federal government are, to a significant extent,
defined by the United States Constitution and relevant case law. In recent years, however,
the Supreme Court has decided a number of cases that would seem to be a reevaluation of T
this historical relationship. This report discusses state and federal legislative power generally and
focuses on a number of these “federalism” cases. The report discusses state and federal legislative 1
power generally, and focuses on a number of these “federalism” cases. Issues addressed include
congressional power under the Commerce Clause and the Fourteenth Amendment; limits on
congressional powers, such as the Tenth Amendment; and state sovereign immunity under the
Eleventh Amendment. The report does not, however, address the much larger federalism issue of
when it is appropriate—as opposed to constitutionally permissible—for federal powers to be
States may generally legislate on all matters within their territorial jurisdiction. This “police
power” does not arise from the Constitution, but is an inherent attribute of the states’ territorial
sovereignty. The Constitution does, however, provide certain specific limitations on that power.
For instance, a state is relatively limited in its authority regarding the regulation of foreign 23
imports and exports or the conduct of foreign affairs. Further, states must respect the decisions 4
of courts of other states, and are limited in their ability to vary their territory without 5
congressional permission. In addition, the Supreme Court has found that states are limited in 6
their ability to burden interstate commerce.
The powers of the federal government, while limited to those enumerated in the Constitution,7
have been interpreted broadly, so as to create a large potential overlap with state authority. For
instance, Article I, § 8, cl. 18 provides that “[t]he Congress will have power ... To make all laws
which will be necessary and proper for carrying into Execution the foregoing Powers and all
other Powers vested by this Constitution in the Government of the United States, or in any
Portions of this report were prepared by Kristin Thornblad, legal intern.
2 See, e.g., U.S. Const. Art. I, §10, cl. 2 (“No State shall ... lay any Impost or Duties on Imports or Exports.”)
3 “No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of
Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War unless
actually invaded, or in such imminent Danger as will not admit of delay.” U.S. Const., Art. I,§ 10, cl. 3.
4 “Full Faith and Credit shall be given in each State to the public Acts, Records, and Judicial Proceedings of every other
State. And Congress may by general Laws prescribe the Manner in which such Acts, Records, and Proceedings shall be
proved, and the Effect thereof.” U.S. Const. Art. IV, §1. This “Full Faith and Credit Clause” gives Congress what
amounts to enforcement authority over the required recognition by each state of the judgments, records, and legislation
of other states.
5 “... [N]o new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by
the Junction of two or more States, or parts of States, without the Consent of the Legislatures of the States concerned as
well as Congress.” U.S. Const., Art. IV, §3, cl. 1.
6 Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824).
7 Article I, §1, of the Constitution provides that “All legislative powers herein granted shall be vested in a Congress of
the United States.” Unlike a typical grant of power to states Article I, §1, does not grant to Congress “all legislative
power,” but rather grants to Congress only those specific powers enumerated in §8 and elsewhere in the Constitution.
Department or Officer thereof.” Early in the history of the Constitution, the Supreme Court found 8
that this clause enlarges rather than narrows the powers of Congress.
Congress has broad financial powers, including the power to tax and spend in order to pay debts 9
and provide for the common defense and general welfare of the United States. Congress also has 10
the power to borrow money and to appropriate money from the United States Treasury. The
purposes for which Congress may tax and spend are very broad and are not limited by the scope 11
of other enumerated powers under which Congress may regulate. On the other hand, Congress
has no power to regulate “for the general welfare,” but may only tax and spend for that purpose.
Congress also has broad authority over the commercial interests of the nation, including the 121314
power to regulate commerce, to establish bankruptcy laws, to coin money, to punish 151617
counterfeiters, to establish post offices and post roads, and to grant patents and copyrights.
The Commerce Clause, discussed in more detail below, is one of the most far-reaching grants of
power to Congress. Regulation of interstate commerce covers all movement of people and things
across state lines, including communication and transportation.
Congress has broad powers over citizenship, including the power to define the circumstances 18
under which immigrants may become citizens, and to protect the rights of those persons who
have citizenship. The Fourteenth Amendment gives Congress the power to enforce the guarantees 19
of the Fourteenth Amendment, including the right to due process and equal protection. This
power extends specifically to the power of Congress to protect the rights of citizens who are at 202122
least 18 to vote regardless of race, color, previous condition of servitude, or sex. Congress
As stated by Chief Justice Marshall in McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819): “Let the end be
legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted
to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional.”
9 “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide
for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform
throughout the United States.” U.S. Const., Art. I, §8, cl. 1.
10 “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” U.S. Const.,
Art. I, §9, cl. 7.
11 United States v. Butler, 297 U.S. 1 (1936).
12 “To regulate commerce with foreign Nations, and among the several States, and with the Indian Tribes.” U.S. Const.,
Article I,§ 8, cl. 3.
13 U.S. Const., Art. I, §8, cl. 4.
14 U.S. Const., Art. I, §8 cl. 5.
15 U.S. Const., Art. I, §8, cl. 6.
16 U.S. Const., Art. I, §8, cl. 7.
17 U.S. Const., Art. I, §8, cl. 8.
18 “The Congress shall have power ... To establish an uniform Rule of Naturalization.” U.S. Const., Art I, § 8, cl. 4.
“All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United
States and of the State wherein they reside.” U.S. Const., Amend. XIV, §1.
19 “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United
States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any
person within its jurisdiction the equal protection of the laws.” U.S. Const., Amend. XIV, §1. Congress shall have
power to enforce, by appropriate legislation, the provisions of this article. Id. at §5.
20 U.S. Const., Amend. XXVI.
21 U.S. Const., Amend. XV.
22 U.S. Const., Amend. XIX.
may also regulate the time, place, and manner of federal elections,23 and judge the result of such 2425
elections. Congress also has a number of other powers relating to elections and appointments.
Congress has the power and authority to purchase and administer property, and has power over
those jurisdictions that are not controlled by states, such as the District of Columbia and the 26
territories. Congress is limited by the Fifth Amendment, however, in the taking of private 27
property without compensation. Congress has numerous powers related to war and the 28
protection of the United States and its sovereign interests.
As noted above, the U.S. Constitution provides that Congress shall have the power to regulate 29
commerce with foreign nations and among the various states. This power has been cited as the
constitutional basis for a significant portion of the laws passed by Congress over the last 50 years,
and it currently represents one of the broadest bases for the exercise of congressional powers. In 30
United States v. Lopez, however, the Supreme Court brought into question the extent to which
Congress can rely on the Commerce Clause as a basis for federal jurisdiction.
Under the Gun-Free School Zones Act of 1990, Congress made it a federal offense for “any
individual knowingly to possess a firearm at a place that the individual knows, or has reasonable 31
cause to believe, is a school zone.” In Lopez, the Court held that, because the act neither
regulated a commercial activity nor contained a requirement that the possession was connected to
interstate commerce, the act exceeded the authority of Congress under the Commerce Clause.
Although the Court did not explicitly overrule any previous rulings upholding federal statutes
“The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each
State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to
the Places of chusing Senators.” U.S. Const., Article I, §4, cl. 1. While the Fifteenth Amendment and the other voting
rights guarantees noted above protect only against state action, congressional authority under this clause includes
protection of the electoral process against private interference. A variety of enactments can be traced to this authority,
including campaign finance laws and the Hatch Act (insofar as it applies to federal elections).
24 “Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members.” Article I, §5, cl. 1.
The House and the Senate act as judicial tribunals in resolving contested election cases.
25 See, e.g., U.S. Const., Amend. XIV, §2 (apportionment).
26 “The Congress shall have power ... To exercise exclusive Legislation in all Cases whatsoever, over such District ... as
may, by Cession of Particular States, and the Acceptance of Congress, become the Seat of the Government of the
United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in
which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards and other needful Buildings.”
Article I, §8, cl. 17. “The Congress shall have power to dispose of and make all needful Rules and Regulations
respecting the Territory or other Property belonging to the United States....” Article IV, § 3, cl. 2.
27 “[N]or shall private property be taken for public use, without just compensation.” U.S. Const., Amend. V. Implicit in
the Fifth Amendment’s requirement that just compensation be paid for private property that is taken for a public use is
the existence of the government’s power to take private property for public use.
28 See, e.g., U.S. Const. Art. I, § 8, cl. 10 (“The Congress shall have power ... To define and punish Piracies and
Felonies committed on the high Seas, and Offences against the Law of Nations”); U.S. Const., Art. I, § 8, cl. 11 (“... To
declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.”); U.S.
Const., Art. I, §8, cl. 12 (“To raise and support Armies....”).
29 U.S. Const., Art. I, §8, cl. 3.
30 514 U.S. 549 (1995).
31 18 U.S.C. §922(q)(1)A).
passed under the authority of the Commerce Clause, the decision would appear to suggest new
limits to Congress’s legislative authority.
The scope and extent of the Commerce Clause does not appear to have been of particular concern 32
to the framers of the Constitution. There are indications that the founding fathers considered the
federal regulation of commerce to be an important power of the new Constitution primarily as a 33
means of facilitating trade and of raising revenue. While the Anti-Federalists argued that the
new Constitution gave too much power to the federal government, they apparently did not raise 34
significant objections to the granting of power to regulate interstate commerce.
The Supreme Court, however, developed an expansive view of the Commerce Clause relatively
early in the history of judicial review. For instance, Chief Justice Marshall wrote in 1824 that “the
power over commerce ... is vested in Congress as absolutely as it would be in a single
government ...” and that “the influence which their constituents possess at elections, are ... the 35
sole restraints” on this power. However, the issue in most of the early Supreme Court
Commerce Clause cases dealt not with the limits of Congressional authority, but on the implied 36
limitation of the Commerce Clause on a state’s ability to regulate commerce.
It has been suggested that the Commerce Clause should be restricted to the regulation of “selling, 37
buying, bartering and transporting.” In fact, much of the federal legislation approved of by the th
Supreme Court early in the 20 century did relate to issues such as the regulation of lottery 383940
tickets, the transporting of adulterated food, and the interstate transportation of prostitutes.
Moreover, during the early 1900s, the Supreme Court struck down a series of federal statutes that 41
attempted to extend commerce regulation to activities such as “production,” “manufacturing,” 42
Starting in 1937, however, with the decision in NLRB v. Jones & Laughlin Steel Corporation,43
the Supreme Court held that Congress has the ability to protect interstate commerce from burdens
and obstructions that “affect” commerce transactions. In the NLRB case, the court upheld the
National Labor Relations Act, finding that by controlling industrial labor strife, Congress was
Abel, The Commerce Clause in the Constitutional Convention and in Contemporary Comment, 25 Minn. L. Rev.
432, 443-44 (1941); Greenspan, The Constitutional Exercise of the Federal Police Power: A Functional Approach to
Federalism, 41 Vanderbilt Law Review 1019, 1022-24 (1988). Those materials which do address Congressional
control over commerce focus on the necessity of uniformity in matters of foreign commerce, although the drafters
clearly intended domestic commerce to be regulated as well. P. Kurland & R. Lerner, THE FOUNDER’S CONSTITUTION
33 Alexander Hamilton, CONTINENTALIST, No. 5, 18 April 1782 (Paper 3:75-82) as reprinted in P. Kurland & R. Lerner,
supra note 32 (“The vesting of the power of regulating trade ought to have been a principal object of the confederation
for a variety of reasons. It is as necessary for the purposes of commerce as of revenue.”)
34 Greenspan, supra note 32 at 1023.
35 Gibbons v. Odgen, 22 U.S. (9 Wheat.) 1, 197-98 (1824).
36 See, e.g., Brown v. Maryland, 25 U.S. (12 Wheat.) 419 (1827).
37 United States v. Lopez, 514 U.S. at 593 (Thomas, J., dissenting).
38 Champion v. Ames (The Lottery Case), 188 U.S. 321 (1903).
39 Hippolite Egg Co. v. United States, 220 U.S. 45 (1911).
40 Hoke v. United States, 227 U.S. 308 (1913).
41 United States v. E.C. Knight Co., 156 U.S. 1, 12 (1895).
42 Carter v. Carter Coal Co., 298 U.S. 238, 304 (1936).
43 301 U.S. 1 (1937).
preventing burdens from being placed on interstate commerce.44 Thus, the Court rejected previous
distinctions between the economic activities (such as manufacturing) that led up to interstate
economic transactions, and the interstate transactions themselves. By allowing Congress to
regulate activities that were in the “stream” of commerce, the Court also set the stage for the
regulation of a variety of other activities that “affect” commerce.
Subsequent Court decisions found that Congress had considerable discretion in determining
which activities “affect” interstate commerce, as long as the legislation was “reasonably” related 45
to achieving its goals of regulating interstate commerce. Thus the Court found that in some
cases, events of purely local commerce (such as local working conditions) might, because of
market forces, negatively affect the regulation of interstate commerce, and thus would be 46
susceptible to regulation. The Court has also held that an activity which in itself does not affect
interstate commerce could be regulated if all such activities taken in the aggregate did affect 47
interstate commerce. Under the reasoning of these cases, the Court has upheld many diverse 48
laws, including laws regulating production of wheat on farms, racial discrimination by 4950
businesses, and loan-sharking.
The Lopez case was significant in that it is the first time since 1937 that the Supreme Court struck
down a federal statute purely based on a finding that Congress had exceeded it powers under the 51
Commerce Clause. In doing so, the Court revisited its prior cases, sorted the commerce power
into three categories, and asserted that Congress could not go beyond these three categories: (1)
regulation of channels of commerce, (2) regulation of instrumentalities of commerce, and (3) 52
regulation of economic activities that “affect” commerce.
Within the third category of activities that “affect commerce,” the Court determined that the
power to regulate commerce applies to intrastate activities only when they “substantially” affect 53
commerce. Still, the Court in Lopez spoke approvingly of earlier cases upholding laws that
regulated intrastate credit transactions, restaurants utilizing interstate supplies, and hotels catering
to interstate guests. The Court also recognized that while some intrastate activities may by
themselves have a trivial effect on commerce, regulation of these activities may be constitutional
if their regulation is an essential part of a larger economic regulatory scheme. Thus, the Court
301 U.S. at 41.
45 United States v. Darby, 312 U.S. 100 (1941)(approving legislation relating to working conditions).
46 312 U.S. at 121.
47 Wickard v. Filburn, 317 U.S. 111 (1942).
49 See Heart of Atlanta Motel v. United States, 370 U.S. 241 (1964); Katzenbach v. McClung, 379 U.S. 241 (1964).
50 Perez v. United States, 402 U.S. 146 (1971).
51 Herman Schwartz, Court Tries to Patrol a Political Line, Legal Times 25 (May 8, 1995).
52 The Court failed to note that to some extent, the three categories are intertwined. For instance, the first category, the
regulation of “streams” or “channels” of commerce, allows regulation of the creation, movement, sale and consumption
of merchandise or services. But the initial extension of the “streams” of commerce analysis by the Court to intrastate
trade was justified by the “effect” of these other activities on commerce. See NLRB v. Jones & Laughlin, 301 U.S. 1,
31 (1936). Similarly, the second category, which allows the regulation of such instrumentalities of commerce as planes,
trains or trucks, is also based on the theory that a threat to these instrumentalities “affects” commerce, even if the effect
is local in nature. Southern Railway Company v. United States, 222 U.S. 21, 26-27 (1911)(regulation of intrastate rail
traffic has a substantial effect on interstate rail traffic). Thus, the final category identified by the Court appears to be a
catch-all for all other activities which “substantially affect” commerce.
53 514 U.S. at 559.
even approved what has been perceived as one of its most expansive rulings, Wickard v. Filburn,
which allowed the regulation of the production and consumption of wheat for home 54
The Court in Lopez found, however, that the Gun-Free School Zones Act fell into none of the
three categories set out above. It held that it is not a regulation of channels of commerce, nor does
it protect an instrumentality of commerce. Finally, its effect on interstate commerce was found to
be too removed to be “substantial.” The Court noted that the regulated activity, possessing guns in 55
school, neither by itself nor in the aggregate affected commercial transactions. Further, the
statute contained no requirement that interstate commerce be affected, such as that the gun had 56
been previously transported in interstate commerce. Nor was the criminalization of possession 57
of a gun near a school part of a larger regulatory scheme that did regulate commerce. Finally,
the Court indicated that criminal law enforcement is an area of law traditionally reserved to the 58
states. Consequently, the Court found that Congress did not have the authority to pass the Gun-
Free School Zone Act.
It should be noted that the Lopez Court purported to be limiting, but not overruling, prior case law
that had supported an expansive interpretation of the commerce clause. Consequently, most 59
existing federal laws, which have traditionally been drafted to be consistent with this case law,
would survive constitutional scrutiny even under Lopez. However, in at least one significant case,
Congress passed a law, the Violence Against Women Act, that seemed to invoke the same
concerns that the Court found in Lopez. Consequently, the relevant portion of that act was struck 60
down in United States v. Morrison.
In Morrison, the Court evaluated whether 42 U.S.C. § 13981, which provides a federal private
right of action for victims of gender-motivated violence, was within the power of Congress to
enact under the Commerce Clause. In Morrison, the victim of an alleged rape brought suit against
the alleged rapist, arguing that this portion of the act was sustainable because it addressed 61
activities that substantially affect interstate commerce. The Court, however, noted that unlike
traditional statutes based on the commerce clause, the activity in question had nothing to do with
commerce or an economic enterprise. This point had been made previously in Lopez, and here the
Court reaffirmed the holding that in order to fall under the acceptable category of laws that
“substantially affect commerce,” the underlying activity itself must generally be economic or
Wickard v. Filburn, 317 U.S. 111 (1942).
55 514 U.S. at 564. The Court rejected arguments that possession of guns in school affected the national economy by its
negative impact on education. Id.
56 514 U.S. at 561.
57 514 U.S. at 560.
58 514 U.S. at 580 (Kennedy, J., concurring). The Court has reiterated its concern over extending Commerce Clause
powers to Congress in areas of the law traditionally reserved to the states. See, e.g., Solid Waste Agency of Northern
Cook County (SWANCC) v. U.S. Army Corps of Engineers, 531 U.S. 159, 174 (2001) (rejecting an interpretation of
the Clean Water Act which allowed regulation of nonnavigable, isolated wetlands as infringing upon the “traditional
and primary state power over land and water use”).
59 See, e.g., 18 U.S.C. §247 (2000)(forbidding obstruction of persons in the free exercise of religious beliefs where the
offense “is in or affects interstate or foreign commerce.”)
60 529 U.S. 598 (2000).
61 Id. at 609.
commercial.62 As gender-motivated violence does not inherently relate to an economic activity,
the Court held that it was beyond the authority of Congress to regulate.
In the case of Gonzales v. Raich,63 the Court evaluated an “as applied” challenge to the Controlled
Substances Act as regards obtaining, manufacturing, or possessing marijuana for medical
purposes. The case was brought by two seriously ill residents of California who used marijuana in 64
compliance with the California Compassionate Use Act of 1996. The challenge was based on
the argument that the narrow class of activity being engaged in—the intrastate, noncommercial
cultivation and possession of cannabis for personal medical purposes as recommended by a
patient’s physician pursuant to valid California state law—did not have a substantial impact on 65
commerce, and thus could not be regulated under the Commerce Clause.
In upholding the application of the Controlled Substances Act in the Raich case, the Court relied 66
on its decision in Wickard v. Filburn, which held that “even if appellee’s activity be local and
though it may not be regarded as commerce, it may still, whatever its nature, be reached by 67
Congress if it exerts a substantial economic effect on interstate commerce.” The Wickard case 68
upheld the application of the Agricultural Adjustment Act of 1938, which was designed to
control prices by regulating the volume of wheat moving in interstate commerce. The Court in
Wickard held that Congress could regulate not only the wheat sold into commerce, but also wheat 69
retained for consumption on a farm. The Court did so on the theory that the while the impact of
wheat consumed on the farm on interstate commerce might be trivial, it was significant when 70
combined with wheat from other farmers similarly situated.
Based on Wickard, the Court in Raich held that Congress could consider the aggregate effect that
allowing the production and consumption of marijuana for medical purposes would have on the
The requirement that a commerce clause regulation be economic or commercial has been influential in a number of
subsequent statutory interpretation cases. In Jones v. United States, 529 U.S. 848 (2000), a criminal defendant
challenged his conviction under 18 U.S.C. § 844(i), which, in part, makes it a crime to destroy by fire or explosive a
building “used” in interstate commerce. Applying the statutory canon that one should interpret a statute to avoid
constitutional doubt, Jones v. United States, 526 U.S. 227, 239 (1999), the Court held that the statute did not apply to a
private residence that was “used” as collateral to obtain and secure a loan, “used” to obtain insurance, and “used” to
receive natural gas from other sources. The Court construed the statute to require that a building protected by § 844(i)
be “actively employed” for commercial purposes, id. at 855, arguing that a broader interpretation would extend the
statute to virtually every arson in the country.
A similar result occurred in the case of Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps
of Engineers, 531 U.S. 159 (2001). In SWANCC, the Court considered a challenge to the Migratory Bird Rule, 51 Fed.
Reg. 41217, which extended § 404(a) of the Clean Water Act (CWA), 33 U.S.C. § 1344(a) to nonnavigable, isolated
wetlands. The Court held that this interpretation of the statute would raise serious constitutional questions, requiring,
for instance, a close examination of precisely what activity was being regulated. Absent a clear statement from
Congress that it intended the Clean Water Act to have such a broad reach, the Court found the rule was not supported
by the statute. Id. at 173. See also Rapanos v. United States Army Corps of Engineers, 165 L. Ed. 2d 159, 201 (2006).
63 125 S. Ct. 2195 (2005).
64 Cal. Health & Safety Code Ann §11362.5 (West Supp. 2005) (providing for the legal possession of medical
marijuana by a patient or primary care-giver, upon the written or oral recommendation of a physician).
65 125 S. Ct. at 2211.
66 317 U.S. 111 (1942).
67 Id. at 125.
68 52 Stat. 31.
69 Id. at 128-29.
70 Id. at 127.
illegal market for marijuana.71 Of even greater concern was that diversion of marijuana grown for
medicinal purposes for other uses would frustrate the federal interest in eliminating commercial 72
transactions in the interstate market. In both cases, the Court found that the regulation was
within Congress’s commerce power because Congress had a rational basis to determine that
production of a commodity meant for home consumption, be it wheat or marijuana, could have a
substantial effect on supply and demand. In addition, because exempting the use of medical
marijuana could undercut enforcement of the Controlled Substances Act, the Court found that the
application in this case was within Congress’s authority to “make all Laws which shall be 73
necessary and proper” to effectuate its powers.
Another significant source of congressional power is § 5 of the Fourteenth Amendment. The
Fourteenth Amendment provides that states shall not deprive citizens of “life, liberty or property”
without due process of law nor deprive them or equal protection of the laws. Section 5 provides
that Congress has the power to legislate to enforce the amendment.
The Fourteenth Amendment represented a significant shift of power in the nation’s federal
system. Until the passage of the Fourteenth Amendment, the Constitution was limited to
establishing the powers and limitations of the federal government. However, the amendments 7475
passed immediately after the Civil War (the Thirteenth, Fourteenth, and Fifteenth
Amendments), dramatically altered this regime. Passage of these amendments subjected a state’s
control over its own citizens to oversight by either the federal judiciary or Congress. The most
significant impact of the Fourteenth Amendment has been its implementation by the federal
courts, as state legislation came under scrutiny for having violated due process or equal
protection. However, Congress has also seen fit to exercise its power under the Fourteenth
Amendment to address issues such as voting rights and police brutality.
The scope of Congress’s power under §5 of the Fourteenth Amendment, however, has been in 76
flux over the years. In Katzenbach v. Morgan, the Court held that §5 of the Fourteenth
Amendment authorized Congress not just to enforce the provisions of the Fourteenth Amendment
as defined by the courts, but to help define its scope. In Katzenbach, the Court upheld a portion of
the Voting Rights Act of 1965 that barred the application of English literacy requirements to th
persons who had reached 6 grade in a Puerto Rican school taught in Spanish. In upholding the
statute, the Court rejected the argument that Congress’s power to legislate under the Fourteenth
Amendment was limited to enforcing that which the Supreme Court found to be a violation of
that amendment. Rather, the Court held that Congress could enforce the Fourteenth Amendment
by “appropriate” legislation consistent with the “letter and spirit of the constitution.”
The rationale for this holding appears to be that Congress has the ability to evaluate and address
factual situations that it determines may lead to degradation of rights protected under the
125 U.S. at 2207.
73 U.S. Const., Art. I, § 8.
74 U.S. Const., Amend. XIII (prohibiting slavery).
75 U.S. Const., Amend. XV (voting rights).
76 384 U.S. 641 (1966).
Fourteenth Amendment. This is true even if a court would not find a constitutional violation to
have occurred. In fact, what the Court appeared to have done was to require only that Congress
establish a rational basis for why the legislation was necessary to protect a Fourteenth
Subsequent Supreme Court cases, however, have limited the reach of Katzenbach. In Oregon v. 77
Mitchell, the Court struck down a requirement that the voting age be lowered to 18 for state
elections. In prohibiting Congress from dictating the voting age for state elections, a splintered
Court appears to have supported Congress’s power to pass laws that protect Fourteenth
Amendment rights against state intrusions, but rejected the ability of Congress to extend the
substantive content of those rights. As 18-year-olds are not a protected class under the Fourteenth
Amendment, the Court found that Congress was attempting to create, rather than protect,
Fourteenth Amendment rights.
More recently, in the case of Flores v. City of Boerne,78 the Court struck down the Religious
Freedom Restoration Act (RFRA) as beyond the authority of Congress under §5 of the Fourteenth
Amendment. For many years prior to the passage of RFRA, a law of general applicability
restricting the free exercise of religion, to be consistent with the Freedom of Exercise Clause of
the First Amendment, had to be justified by a compelling governmental interest. However, in the 79
1990 case of Oregon v. Smith, the Court had lowered this standard. The Smith case involved
members of the Native American Church who were denied unemployment benefits when they
lost their jobs for having used peyote during a religious ceremony. The Smith case held that
neutral generally applicable laws may be applied to religious practices even if the law is not
supported by a compelling governmental interest. RFRA, in response, was an attempt by
Congress to overturn the Smith case, and to require a compelling governmental interest when a
state applied a generally applied law to religion.
The City of Boerne case arose when the City of Boerne denied a church a building permit to
expand, because the church was in a designated historical district. The church challenged the
zoning decision under RFRA. The Supreme Court reiterated that §5 of the Fourteenth
Amendment gave Congress the power to enforce existing constitutional protections, but found
that this did not automatically include the power to pass any legislation to protect these rights.
Instead, the Court held that there must be a “congruence and proportionality” between the injury
to be remedied and the law adopted to that end. For instance, the Court’s decision in Katzenbach
v. Morgan of allowing the banning of literacy tests was justified based on an extensive history of
minorities being denied suffrage in this country. In contrast, the Court found no similar pattern of
the use of neutral laws of general applicability disguising religious bigotry and animus against
religion. Rather than an attempt to remedy a problem, RFRA was seen by the Court as an attempt
by Congress to overturn an unpopular Supreme Court decision. The law focused on no one area
of alleged harm to religion, but rather just broadly inhibited state and local regulations of all
types. Consequently, the Court found RFRA to be an overbroad response to a relatively
The scope of the enforcement power under § 5 of the Fourteenth Amendment also has become
important in cases where the Court has found that Congress has overreached its power under
400 U.S. 112 (1970).
78 521 U.S. 507 (1997).
79 494 U.S. 872 (1990).
other provision of the Constitution, or is limited by some provision thereof. For instance, as
discussed in detail below, the Supreme Court has held that the Eleventh Amendment and state
sovereign immunity generally prohibit individuals from suing states for damages under federal 80
law. However, the Supreme Court has also held that Congress can abrogate state sovereign 81
immunity under the Fourteenth Amendment. This means that in many cases, litigants suing
states will have to find a Fourteenth Amendment basis for federal legislation in order to defeat an
Eleventh Amendment defense. For instance, a significant amount of federal legislation is clearly
supported by the commerce clause, but it might not be supported under §5. Recently, the Court
decided two cases that illustrate the difficulties of establishing Fourteenth Amendment authority
for such legislation.
In College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board,82 the
Supreme Court considered an unfair competition suit brought by a New Jersey savings bank
against the state of Florida. The New Jersey savings bank had developed a patented program
where individuals could use a certificate of deposit contract to save for college. The state of
Florida set up a similar program, and the College Savings Bank sued Florida for false and 83
misleading advertising under a provision of the Trademark Act of 1946 (Lanham Act), alleging
that Florida had made misleading representations about its own product.
The Court first noted that under Seminole Tribe of Florida v. Florida, Article I, powers such as
the power to regulate commerce were insufficient to abrogate Eleventh Amendment immunity.
Thus, the Court next considered whether the Lanham Act could be characterized as an exercise of
Congress’s power under §5 of the Fourteenth Amendment. Although the Fourteenth Amendment
provides that no state shall “deprive a person of ... property ... without due process of law,” the
Court found that the unfair trade in question, which consisted of allegedly inaccurate statements
made by the state of Florida about its own saving program, did not infringe on any exclusive
property right held by the College Savings Bank. As the Court found that Congress had not
established an authority under the Fourteenth Amendment to abrogate the state’s immunity, the
College Savings Bank could not proceed against the state of Florida for unfair trade practices.
Even if a property interest is established, it would still need to be determined that Congress had
the authority to protect that property interest under the Fourteenth Amendment. In Florida 84
Prepaid Postsecondary Education Expense Board v. College Savings Bank, the Court, in a
decision concerning the same parties as the case discussed above, considered whether the College
Savings Bank could sue the state of Florida for patent infringement. Congress had passed a law 85
specifically providing that states could be sued for patent violations, citing three sources of 8687
constitutional authority: the Article I Patent Clause, the Article I Interstate Commerce Clause,
and §5 of the Fourteenth Amendment. As the Court had previously precluded abrogation of
See notes 90-104 and accompanying text, infra.
81 Seminole Tribe of Florida v. Florida, 517 U.S. 44, 65-66 (1996); See discussion infra notes 95-98 and accompanying
82 527 U.S. 666 (1999).
83 15 U.S.C. § 1125(a).
84 527 U.S. 627 (1999).
85 Patent and Plant Variety Protection Remedy Clarification Act (Patent Remedy Act), 35 U.S.C. §§ 271(a).
86 U.S. Const. Art. I, § 8, cl. 8.
87 U.S. Const. Art. I, § 8, cl. 3.
sovereign immunity through the exercise of Article I powers, the question became whether
Congress had the authority to pass patent legislation under §5 of the Fourteenth Amendment.
Unlike the previous case, the Court found that, under a long line of precedents, patents were
considered property rights. However, the Court had to further consider whether the protection of
such a property right under §5 of the Fourteenth Amendment was “appropriate” under its ruling in
City of Boerne. Consequently, the Court evaluated whether a federal right to enforce patents
against states was appropriate remedial or preventive legislation aimed at securing the protections
of the Fourteenth Amendment for patent owners. Specifically, the Court sought to evaluate
whether unremedied patent infringement by states rose to the level of a Fourteenth Amendment
violation that Congress could redress.
The Court noted that Congress had failed to identify a pattern of patent infringement by the states,
and that only a handful of patent infringement cases had been brought against states in the last
100 years. The Court also noted that Congress had failed to establish that state remedies for
patent infringement were inadequate for citizens to seek compensation for injury. In fact, the state
of Florida argued that no constitutionally based violation had occurred, as it had procedures in
place that would provide the necessary due process for patent infringement by the state to be
challenged. Consequently, the Court found that the exercise of §5 of the Fourteenth Amendment
in this context would be out of proportion to the remedial objective.
The Court engaged in a similar analysis, with like results, in evaluating the application of age 88
discrimination laws to the states. In Kimel v. Florida Board of Regents, the Court noted that the
Age Discrimination in Employment Act of 1967, while a valid exercise of Congress’s commerce
power, could not be applied to the states unless Congress also had the power to enact it under §5
of the Fourteenth Amendment. The Kimel Court held, however, that age is not a suspect class, and
that the provisions of the ADEA far surpassed the kind of protections that would be afforded such
a class under the Fourteenth Amendment. Further, the Court found that an analysis of Congress’s
ability to legislate prophylactically under section §5 required an examination of the legislative
record to determine whether the remedies provided were proportional and congruent to the
problem. A review by the Court of the ADEA legislative record found no evidence of a pattern of
state governments discriminating against employees on the basis of age. Consequently, the Court
held that a state could not be liable for damages under the ADEA.
Similarly, the application of Title I of the Americans with Disabilities Act (ADA) to states was 89
considered in the case of the Board of Trustees v. Garrett, again with similar result. In Garrett,
the Court evaluated whether two plaintiffs could bring claims for money damages against a state
university for failing to make reasonable employment accommodations for their disabilities; one
plaintiff was under treatment for cancer, the other for asthma and sleep apnea. Although disability
is not a suspect class and thus discrimination is evaluated under a rational basis test, the Court had 90
previously shown a heightened sensitivity to arbitrary discrimination against the disabled.
Further, Congress had made substantial findings regarding the pervasiveness of such
discrimination. However, the Supreme Court declined to consider evidence of discrimination by
either the private sector or local government, and dismissed the examples that did relate to the
states as unlikely to rise to the level of constitutionally “irrational” discrimination. Ultimately, the
528 U.S. 62 (2000).
89 531 U.S. 356 (2001).
90 Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985).
Court found that no pattern of unconstitutional state discrimination against the disabled had been
established, and that the application of the ADA was not a proportionate response to any pattern
that might exist.
However, the Court reached a different conclusion in the case of Nevada Department of Human 91
Resources v. Hibbs. In the Hibbs case, an employee of the Nevada Department of Human
Resources had a dispute with the Department regarding how much leave time he had available
under the Family and Medical Leave Act of 1993 (FMLA). The FMLA requires employers to
provide employees up to 12 weeks of unpaid leave to care for a close relative with a “serious 92
health condition.” In Hibbs, the Court held that Congress had the power to abrogate a state’s
Eleventh Amendment immunity under the FMLA, so that a state employee could recover money
damages. The Court found that Congress had established significant evidence of a long and
extensive history of sex discrimination with respect to the administration of leave benefits by the
states, and that history was sufficient to justify the enactment of the legislation under § 5. The
standard for demonstrating the constitutionality of a gender-based classification is more difficult
to meet than the rational-basis test, such was at issue in Kimel and Garrett, so it was easier for
Congress to show a pattern of state constitutional violations.
Even where the Eleventh Amendment and state sovereign immunity are not at issue, the Court
may be asked to consider whether the Fourteenth Amendment establishes a sufficient basis for a
federal law that does not appear to have a constitutional basis elsewhere in the Constitution. For 9394
instance, in United States v. Morrison, discussed previously, the Court found that Congress, in
creating a federal private right of action for victims of gender-motivated violence, had exceeded
its authority under the Commerce Clause. Consequently, the plaintiff in that case made the
alternate argument that the federal private right of action could be sustained under § 5 of the
This argument, however, suffered from two major defects. First, the Court has long held that the
Fourteenth Amendment provides Congress with the authority to regulate states but not 95
individuals. In Morrison, however, the civil case had been brought against the individuals
alleged to have engaged in the offense. The plaintiff attempted to avoid this problem by arguing
that there is pervasive bias in various state justice systems against victims of gender-motivated
violence, and that providing a federal private right of action was an appropriate means to remedy
this “state action.”
However, the Court rejected this argument, finding that the remedy did not meet the City of
Boerne test of “congruence and proportionality to the injury to be prevented or remedied and the 96
means adopted to that end.” Because the federal private right of action was not aimed at the
allegedly discriminatory actions by state officials, but was instead directed against the individual
538 U.S. 721 (2003).
92 29 U.S.C. § 2612(a)(1)(C).
93 529 U.S. 598 (2000).
94 See supra notes 60-61 and accompanying text.
95 See Shelley v. Kraemer, 334 U.S. 1, 13 (1948).
96 521 U.S. at 526.
engaging in the violence itself, the Court found that the action could not be supported by 97
reference to the Fourteenth Amendment.
The Court again considered the issue of Congress’s power under § 5 of the Fourteenth 98
Amendment in Tennessee v. Lane. In the Lane case, two paraplegic plaintiffs alleged that the
state of Tennessee and several of its counties violated Title II of the ADA, which requires that the
disabled be provided access to public services, programs, and activities, by failing to provide 99
physical access to state courts. The Court held that Title II, as applied to this right of access to
the courts, was a proper exercise of Congress’s authority under § 5 of the Fourteenth Amendment
to abrogate states’ Eleventh Amendment immunity. Similar to its holdings in the Garrett and
Hibbs cases, the Court found that Congress had established sufficient evidence of the sustained 100
denial of persons with disabilities of access to the courts.
In applying the Boerne congruence and proportionality test, the Court in Lane distinguished the
rights Congress intended to protect in Title II (access to public services, programs, and activities)
from the Title I employment rights that had been struck down in Garrett. While both Titles I and
II were intended to address unequal treatment of the disabled (which is only a constitutional
violation when it is irrational), the Court held that Title II was also intended to reach the more
rigorously protected rights of the Due Process Clause of the Fourteenth Amendment, such as the 101
right of access to the courts. The Court stated that the due process rights Congress sought to
protect under Title II required a standard of judicial review at least as searching as the sex-based 102
classifications the Court considered in Hibbs. The limited nature of Title II as a remedy for the
denial of the right of access to courts also informed the Court’s holding that the measure is a valid 103
Congress’s authority under § 5 of the Fourteenth Amendment to abrogate states’ Eleventh
Amendment immunity appears strongest when the focus of the prophylactic measure at issue is 104
conduct that actually violates a constitutional right. In United States v. Georgia, a disabled state
529 U.S. at 626.
98 541 U.S. 509 (2004).
99 One plaintiff in Lane claimed he was unable to appear to answer criminal charges on the second floor of a courthouse
that had no elevator. The second plaintiff, a certified court reporter, claimed she was denied the opportunity both to
work and to participate in the judicial process because she was unable to access numerous county courthouses.
100 The Court cited congressional evidence that legislative attempts preceding Title II inadequately addressed the
problem of patterned unconstitutional treatment in access to the courts. 541 U.S. at 526.
101 The Court held that it need not examine Title II as a whole when evaluating the remedy’s congruence and
proportionality to the injury of disability discrimination in access to the courts. The relevant inquiry solely concerned
Title II’s scope as applied to the rights associated with access to judicial services. The Court cited as precedent for this
limited application approach the Garrett case, in which it considered only Title I of the ADA for purposes of
Fourteenth Amendment analysis. Based on this narrow scope of inquiry, the Court determined that both the pattern of
past discrimination in access to the courts and the failure of previous legislative attempts to remedy the injury were
sufficient to hold that Title II is a valid exercise of Congress’ power under § 5 of the Fourteenth Amendment.
102 541 U.S. at 529. As noted by Chief Justice Rehnquist in dissent, 541 U.S. at 541-42 (Rehnquist, C.J., dissenting),
the congruence and proportionality analysis in the majority opinion in Lane did not limit itself to historical examples of
the disabled being denied due process, but also cited a history of disparate treatment in other less protected areas. See
id. at 524-25.
103 Title II does not require states to compromise the integrity of public programs or make unduly burdensome changes
to public facilities. 541 U.S. at 532. Rather, states need only take reasonable measures to comply with Title II
104 125 S. Ct. 877 (2006).
prison inmate who used a wheelchair for mobility alleged that the state of Georgia violated Title
II of the ADA in relation to his conditions of confinement. The Court reiterated its holding in
Lane that Title II is a constitutional exercise of Congress’s Fourteenth Amendment powers. It
went on to state that Title II was valid as applied to the plaintiff’s cause of action, because he
alleged independent violations under § 1 of the Fourteenth Amendment concerning his prison 105
The Tenth Amendment provides that “powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the
people.” While this language would appear to represent one of the most clear examples of a
federalist principle in the Constitution, it has not had a significant impact in limiting federal
powers. Initially, the Supreme Court interpreted the Tenth Amendment to have substantive
content, so that certain “core” state functions would be beyond the authority of the federal 106
government to regulate. Thus, in National League of Cities v. Usery, the Court struck down
federal wage and price controls on state employees as involving the regulation of core state 107
functions. The Court, however, overruled National League of Cities in Garcia v. San Antonio 108
Metropolitan Transit Authority. In sum, the Court in Garcia seems to have said that most
disputes over the effects on state sovereignty of federal commerce power legislation are to be
considered political questions, and that the states should look for relief from federal regulation 109
through the political process. This appeared to have ended the Court’s attempt to substantively
limit federal government regulation of the states.
The Court soon turned, however, to the question of how the Constitution limits the process by 110
which the federal government regulates the states. In New York v. United States, Congress had
attempted to regulate in the area of low-level radioactive waste. In a 1985 statute, Congress
provided that states must either develop legislation on how to dispose of all low-level radioactive
waste generated within the state, or the state would be forced to take title to such waste, which
would mean that it became the state’s responsibility. The Court found that although Congress had
the authority under the Commerce Clause to regulate low-level radioactive waste, it only had the
power to regulate the waste directly. Here, Congress had attempted to require the states to
perform the regulation, and decreed that the failure to do so would require the state to deal with
the financial consequences of owning large quantities of radioactive waste. In effect, Congress
sought to “commandeer” the legislative process of the states. In the New York case, the Court
Id. at 881.
106 426 U.S. 833 (1976).
107 In National League of Cities v. Usery, the Court conceded that the legislation under attack, which regulated the
wages and hours of certain state and local governmental employees, was undoubtedly within the scope of the
Commerce Clause, but it cautioned that there are attributes of sovereignty attaching to every state government which
may not be impaired by Congress, not because Congress may lack an affirmative grant of legislative authority to reach
the matter, but because the Constitution prohibits it from exercising the authority in that manner.
108 469 U.S. 528 (1985). Justice Blackmun’s opinion for the Court in Garcia concluded that the National League of
Cities test for “integral operations” in areas of traditional governmental functions had proven impractical, and that the
Court in 1976 had “tried to repair what did not need repair.”
109 See also South Carolina v. Baker, 485 U.S. 505 (1988).
110 505 U.S. 144 (1992).
found that this power was not found in the text or structure of the Constitution, and it was thus a
violation of the Tenth Amendment.
A later case presented the question of the extent to which Congress could regulate through a 111
state’s executive branch officers. This case, Printz v. United States, involved the Brady
Handgun Act. The Brady Handgun Act required state and local law-enforcement officers to
conduct background checks on prospective handgun purchasers within five business days of an
attempted purchase. This portion of the act was challenged under the Tenth Amendment, under
the theory that Congress was without authority to “commandeer” state executive branch officials.
After a historical study of federal commandeering of state officials, the Court concluded that
commandeering of state executive branch officials was, like commandeering of the legislature,
outside of Congress’s power, and consequently a violation of the Tenth Amendment.
Although the federal government is prohibited from commandeering either the legislature or
executive branch of a state, this does not appear to be the case with state judicial branches. The
federal judicial system and the state judicial system were not intended to be as separate as the
other branches of government, and the Supremacy Clause of the Constitution explicitly provides 112
that state courts must follow federal law, even if it overrides state laws or constitutions. So,
there appears to be less of a concern regarding the “commandeering” of state courts.
A key distinction between constitutional “substantive regulation” and unconstitutional
“commandeering” appears to be whether or not the federal mandate in question is regulating state
activities or whether it is seeking to control the manner in which states regulate private parties. 113
Thus, for instance, the Court recently held in Reno v. Condon that the Driver’s Privacy
Protection Act of 1994, which regulates the sale of personal information gathered from persons
seeking drivers licenses, was substantive regulation, not commandeering. In that case, the Court
found that the state was not being directed on how to regulate its citizens, but rather on how to
treat information that had been elicited from those citizens. However, because the regulation
affected both state governments and private resellers of such information, the Court reserved the
question as to whether a law, which only regulated state activities, would be constitutionally
The Eleventh Amendment and state sovereign immunity provide an example of the complicated
interaction between the powers of the federal government, the state, and the individual. The basic 114
issue to be addressed here is the extent to which individuals can sue a state under federal law.
521 U.S. 898 (1997).
112 “The Constitution and the Law of the United States ... shall be the Supreme Law of the Land; and the Judges of
every State shall be bound thereby....” U.S. Const., Art. VI, cl. 2.
113 528 U.S. 141 (2000).
114 It should be noted that not all suits in which a state is involved is a “suit” against a state. In Tennessee Student
Assistance Corp. v. Hood, 541 U.S. 440 (2004), the Court addressed state sovereign immunity in the context of
bankruptcy proceedings. In that case, the Court addressed whether Eleventh Amendment immunity extended to an
adversary proceeding initiated by a debtor seeking an undue hardship discharge of her state-held student loan debt. The
Court held that the proceeding did not constitute a suit against the state for purposes of the Eleventh Amendment. The
Court noted that the bankruptcy petition in question was an in rem proceeding, so that the court’s jurisdiction was over
the petitioner’s debt, rather than over her person or the state. Id. at 448. Thus, the federal bankruptcy court’s exercise of
jurisdiction over the state-held debt did not infringe upon the state’s sovereignty immunity. Id. at 450.
The answer to this question may vary based on a number of factors, including what law the suit is
being brought under, whether the state has taken action to make itself amenable to such law, and
what relief is being sought.
The starting point for such a discussion is usually the Eleventh Amendment. The Eleventh
Amendment reads as follows: “The Judicial power of the United States shall not be construed to
extend to any suit in law or equity, commenced or prosecuted against one of the United States by
Citizens of another State.” The actual text of the Amendment appears to be limited to preventing
citizens from bringing diversity cases against states in federal courts. However, the Supreme
Court has expanded the concept of state sovereign immunity to reach much further than the text
of the amendment.
The Eleventh Amendment, the first amendment to the Constitution after the adoption of the Bill 115
of Rights, was passed as a response to the case of Chisholm v. Georgia. Immediately after the
adoption of the Constitution, a number of citizens filed cases in federal court against states. One
of these, Chisholm, was a diversity suit filed by two citizens of South Carolina against the State
of Georgia to recover a Revolutionary War debt. In Chisholm, the Supreme Court noted that
Article III of the Constitution specifically grants the federal courts diversity jurisdiction over suits 116
“between a State and citizens of another State.” Thus, the Court held that this grant of
jurisdiction authorized the private citizen of one state to sue another state in federal court without
that state’s consent.
The states were outraged that such a suit could be brought in federal court, protesting that the
drafters of the Constitution had promised the states they would not be sued by their debtors in
federal courts. Almost immediately after the decision of the Chisholm cases, resolutions were
introduced in Congress to overturn it, the end result being the Eleventh Amendment. The
amendment ensured that a citizen of one state could not sue another state in federal court—in
other words, a citizen could not sue under federal diversity jurisdiction without a state’s
However, even after the Eleventh Amendment was passed, a number of cases were filed against
states by private citizens, with jurisdiction based on federal question rather than diversity. Under
this reasoning, if a citizen of a state sued his or her own state in federal court, the prohibition of
the Eleventh Amendment would not apply. Consequently, for a number of years after the passage
of the Eleventh Amendment, this type of case was entertained by the federal courts. However, this 117
line of cases was ended by the case of Hans v. Louisiana.
In Hans v. Louisiana, the Court provided for an interpretation of the Eleventh Amendment that
allowed the Court to move beyond the literal text of that amendment. Under the reasoning of the
Court, the Eleventh Amendment was not so much an amendment to the original structure of the
Constitution as it was an attempt to overturn a specific court decision that had misinterpreted this
structure. According to this line of reasoning, the Eleventh Amendment was not an amendment,
but a restoration of the original constitutional design.
2 U.S. (Dall.) 419 (1793).
116 U.S. Const., Art. III, §2.
117 134 U.S. 1 (1890).
Ultimately, the issue before the Court in Hans v. Louisiana and in subsequent cases was not the
Eleventh Amendment, but the issue of state sovereign immunity. State sovereign immunity means
that a state must consent to be sued in its own court system. This concept is based on early
English law, which provided that the Crown could not be sued in English courts without its
consent. The doctrine of sovereign immunity was in effect in the states that were in existence at
the time of the drafting of the Constitution. Further, various writings by the founding fathers 118
seemed to support the concept. Thus, the issue before the Court in Hans was whether the grant
of jurisdiction to federal courts under Article III of the Constitution had abrogated state sovereign
immunity. The Hans Court found that Article III did not have this effect.
Although the Hans Court answered the issue of whether adoption of Article III of the Constitution
had waived state sovereign immunity in federal courts, it left a number of questions unanswered.
For instance, the question as to whether there are any instances where Congress could, by statute,
abrogate a state’s sovereign immunity, so that a citizen could sue a state under federal law. In 119
Seminole Tribe of Florida v. Florida, the Court seemed to answer that in most cases, such suits
would not be accepted. The Seminole case involved the Indian Gaming Regulatory Act of 1988,
which provided Indian tribes with an opportunity to establish gambling operations. However, to
establish such gambling, the Indian tribes had to enter into a compact with the state in which they
were located. The states, in turn, were obligated to negotiate with the Indian tribes in good faith,
and this requirement was made enforceable in federal court. Thus, the question arose as to
whether the tribes could sue the states under the Eleventh Amendment.
The Court in Seminole found it important to establish what constitutional authority was being
exercised by the passage of the Indian Gaming Law. The Court determined that the power being 120
exercised was the Indian Commerce Clause, which is found in Article I. The Court had found 121
previously in Pennsylvania v. Union Gas, that the Commerce Power, as a plenary power, was
so broad that of necessity it required the ability to abrogate state sovereign immunity. In
Seminole, however, the Court overturned Union Gas, holding that as the Eleventh Amendment
was ratified after the passage of the Constitution and Article I, it was a limitation on Congress’s
authority to waive a state’s sovereign immunity under that Article. The Court did indicate,
however, that Congress can abrogate state sovereignty under the Fourteenth Amendment. While 122
the logic behind this distinction is unclear, it means that in many cases, litigants suing states
See Alden v. Maine, 527 U.S. 706, 2248 (1999).
119 517 U.S. 44 (1996).
120 U.S. Const., Art. I, § 8, cl. 3.
121 491 U.S. 1 (1989).
122 One apparent argument is that the Fourteenth Amendment was passed after the Eleventh Amendment and thus,
unlike legislative powers found in Article I of the Constitution, it can be seen as an alteration of the restrictions of the
Eleventh Amendment. Seminole Tribe of Florida v. Florida, 517 U.S. 44, 65-66 (1996). However, as is discussed in
detail below, the Supreme Court has held that state sovereign immunity preceded and predated the Constitution. Alden
v. Maine, 527 U.S. 706, 2248 (1999). Consequently, all the Articles of the Constitution could arguably be seen as
altering the restrictions of the state sovereign immunity.
Another argument made by the Court in Seminole is that the Fourteenth Amendment was designed to alter the pre-
existing balance between state and federal power at the time of its passage. This argument is more plausible, but is still
difficult to differentiate between Congress’s power under the Fourteenth Amendment and Congress’s power under the
Articles of the Constitution. Like the Fourteenth Amendment, the Articles of the Constitution were clearly intended to
alter the balance between state and federal power at the time of the passage of the Constitution, which included state
sovereign immunity. This is exemplified by the Supremacy Clause, U.S. Const., Art. VI, cl. 2 which provides that laws
passed under the Articles of the Constitution would be supreme over state law.
will try to find a Fourteenth Amendment basis for federal legislation to defeat an Eleventh
A question left unanswered by the Hans decision was whether the Eleventh Amendment, which
prohibited Congress from abrogating a state’s sovereign immunity in federal court, extended to a 123
state’s own courts. In Alden v. Maine, the Supreme Court found that the same principles of
sovereign immunity identified in Hans would prevent Congress from authorizing a state to be
sued in its own courts without permission. As in Hans, the Court acknowledged that the literal
text of the Eleventh Amendment does not prohibit such suits, as its language addresses only suits
brought in federal courts. Consequently, the Court relied instead on the proposition that sovereign
immunity is a “fundamental postulate” of the constitutional design, and is not amenable to
congressional abrogation. The same reasoning that prohibited these suits from being brought in
federal court, a deference to the “respect and dignity” of state sovereignty, led the Court to
conclude that it would be anomalous to allow such cases to be brought instead in state court.
In Federal Maritime Comm’n v. South Carolina State Ports Authority, the Court addressed the 124
issue of whether state sovereign immunity extended to proceedings before federal agencies. In
this case, the South Carolina State Ports Authority denied a cruise ship permission to berth at the
state’s port facilities in Charleston, South Carolina, contending that the primary purpose of the
cruise was for gambling. The cruise ship company, Maritime Services, filed a claim with the
Federal Maritime Commission (FMC) arguing that South Carolina had discriminated against it in
violation of the Shipping Act of 1984 and sought, among other things, damages for loss of 125
profits. The Port Authority, however, successfully moved to dismiss the complaint, arguing that
it was inconsistent with the concept of state sovereign immunity.
In reviewing the case, the Court analogized between the FMC’s quasi-judicial proceedings and
traditional judicial proceedings, while noting that “[t]he preeminent purpose of state sovereign
immunity is to accord States the dignity that is consistent with their status as sovereign 126
entities.” Consequently, the Court agreed that state sovereign immunity bars the FMC from 127
adjudicating damage claims made by a private party against a nonconsenting State. In dissent,
however, Justice Breyer noted that agency administrative proceedings are not judicial
proceedings and that the ultimate enforcement of such proceedings in a court is done by the
federal agency, to which state sovereign immunity does not apply. Thus, while an agency remains
capable of enforcement actions against states in federal court, it cannot use its own adjudicative 128
process to determine whether to do so, but must rely on its investigatory powers. According to
527 U.S. 706 (1999).
124 122 S. Ct. 186 (2002).
125 46 U.S.C. App. § 1701 (1994 & Supp. V).
126 122 S. Ct. at 1874.
127 The Court noted that “[there are] numerous common features shared by administrative adjudications and judicial
proceedings.” 122 S. Ct. at 1872. “[F]ederal administrative law requires that agency adjudication contain many of the
same safeguards as are available in the judicial process. The proceedings are adversary in nature. They are conducted
before a trier of fact insulated from political influence. A party is entitled to present his case by oral or documentary
evidence, and the transcript of testimony and exhibits together with the pleadings constitutes the exclusive record for
decision. The parties are entitled to know the findings and conclusions on all of the issues of fact, law, or discretion
presented on the record.” Id.
128 Justice Breyer noted that after this decision “a private person cannot bring a complaint against a State to a federal
administrative agency where the agency (1) will use an internal adjudication process to decide if the complaint is well
founded, and (2) if so, proceed to court to enforce the law.” Id. at 1881.
Justice Breyer, “[t]he natural result is less agency flexibility, a larger federal bureaucracy, less fair 129
procedure, and potentially less effective law enforcement.”
It should be noted that in many instances, the federal government still has the ability to influence 130
state behavior despite the constitutional limits discussed above. One of the more significant
ways that the federal government can encourage state behavior is to impose conditions on the
receipt of federal monies by the states. Considering the large amount of funds provided to states
by the federal government, this represents a significant power for Congress to exercise. Further,
as the concept of grant conditioning can involve waiver by the states of Tenth and Eleventh
Amendment rights, these grant conditions may allow Congress to indirectly achieve compliance
by a state in a way that could not be achieved directly.
The question of whether a state can be required to perform (or refrain from) certain actions was 131
addressed in the Supreme Court case of South Dakota v. Dole. In Dole, Congress enacted the 132
National Minimum Drinking Age Amendment of 1984, which directed the Secretary of
Transportation to withhold a percentage of federal highway funds from states in which the age for
purchase of alcohol was below 21 years. The State of South Dakota, which permitted 19-year-
olds to purchase beer, brought suit arguing that the law was an invalid exercise of Congress’s 133
power under the Spending Clause to provide for the “general welfare.” The Supreme Court
held that, as the indirect imposition of such a standard was directed toward the general welfare of
the country, it was a valid exercise of Congress’s spending power.
The Court noted that the grant condition did not implicate an independent constitutional bar, i.e.,
the grant condition did not require the state to engage in an unconstitutional activity. Further, the
court noted that the grant condition was not a violation of the Tenth Amendment, which generally 134135
prevents Congress from “commandeering” state legislatures and executive branch officials to 136
implement federal programs. The Tenth Amendment would not apply here, the Court held,
because the state officials were voluntarily cooperating in order to receive federal grants, and thus
were not being directed to comply with federal mandates.
130 For instance, the federal government has, in some cases, made the application of federal regulatory authority
contingent, so that if a state chooses to regulate in that field, the federal regulatory role is circumscribed. In many cases,
this will encourage states to regulate, so that the state has closer control of the application of such regulation within the
state. See, e.g., 42 U.S.C. § 7410 (national air control standards not applicable upon the adoption by states of adequate
air control standards).
131 483 U.S. 203 (1987).
132 23 U.S.C. §158.
133 U.S. Const., Art I, 8, cl 1 (Congress has the power to “lay and collect Taxes, Duties, Imposts, and Excises, to pay
the Debts and provide for the common Defence and general Welfare of the United States”).
134 New York v. United States, 505 U.S. 144 (1992).
135 Printz v. United States, 521 U.S. 898 (1997).
136 It would seem that sovereign immunity is a core state power, and that requiring its waiver would raise Tenth
Amendment concerns. See, e.g., National League of Cities v. Usery, 426 U.S. 833 (1976)(striking down federal wage
and price controls on state employees as involving the regulation of traditional state functions). As discussed
previously, however, the Court has, for the time being, abandoned this line of cases. Garcia v. San Antonio
Metropolitan Transit Authority, 469 U.S. 528 (1985)(concluding that the test to identify traditional governmental
functions had proven impractical, and that such disputes should be resolved through the political process).
The Court did suggest, however, that there were limits to Congress’s power under the Spending
Clause to require states to meet certain grant conditions. First, a grant condition must be related to 137
the particular national projects or programs to which the money was being directed. In Dole,
the congressional condition imposing a specific drinking age was found to be related to the
national concern of safe interstate travel, which was one of the main purposes for highway funds
being expended. Second, the Court suggested that, in some circumstances, the financial
inducements offered by Congress might be so coercive as to pass the point at which “pressure 138
turns into compulsion.” In Dole, however, the percentage of highway funds that were to be
withheld from a state with a drinking age below 21 was relatively small, so that Congress’s
program did not coerce the states to enact higher minimum drinking ages than they would
One of the more controversial potential applications of this doctrine arises when the government
requires that, in order to receive a grant, a state waive its sovereign immunity to suits brought by
private citizens. As discussed above, the Supreme Court has imposed significant limits on
Congress’s ability to abrogate state sovereign immunity. However, this does not appear to have
prevented the lower courts from finding that states can be required to waive their sovereign
immunity as a condition of receiving grants.
A state’s sovereign immunity, is “a personal privilege which it may waive at its pleasure.”139
Thus, it is clearly possible for a state, under some circumstances, to waive sovereign immunity as 140
a condition of receiving federal funds. The Supreme Court has held that “mere receipt of 141
federal funds” is insufficient to constitute a waiver of state sovereign immunity. However, the
Court has also held that where a federal statute contains an “unambiguous waiver” of a state’s
Eleventh Amendment immunity, then a state’s acceptance of such funds can be an effective 142
483 U.S. at 207.
138 Id. at 211.
139 College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board, 527 U.S. 666, 674 (1999) citing
Clark v. Barnard, 108 U.S. 436, 447 (1883).
140 Since such a waiver must be voluntary, the Court will consider carefully whether a state has actually waived its
immunity. Atascadero State Hospital v. Scanlon, 473 U.S. 234, 241 (1985). For instance, a court will generally only
find a waiver to federal suit based on a state statute if a state makes a “clear declaration” that it intends to submit itself
to federal jurisdiction. Great Northern Life Ins. Co. v. Read, 322 U.S. 47, 54 (1944). See also Pennhurst State School
and Hospital v. Halderman, 465 U.S. 89, 99 (1984) (State’s consent to suit must be “unequivocally expressed”).
141 Atascadero State Hospital v. Scanlon, 473 U.S. 234 (1985). In Atascadero State Hospital, the Court held that if a
statute “manifests a clear intent to condition participation in the programs funded under the Act on a State’s waiver of
its constitutional immunity,” federal courts would have jurisdiction over claims against states accepting federal funds.
Id. at 247.
142 Lane v. Pena, 518 U.S. 187, 200 (1996). For instance, Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. §
701, et seq. provides that “a state shall not be immune under the Eleventh Amendment of the Constitution of the United
States from suit in Federal court for a violation of section 504 of the Rehabilitation Act of 1973....” 42 U.S.C. § 2000d-
7(a)(1). Consequently, a number of United States Courts of Appeals have found that receipt of federal funding subject
to this condition was sufficient to waive a state’s sovereign immunity. Koslow v. Commonwealth of Pennsylvania rdth
Department of Corrections; 302 F.3d 161 (3 Cir. 2002); Nihiser v. Ohio EPA, 269 F.3d 626 (6 Cir. 2001); Jim C. v. thth
United States, 235 F.3d 1079 (8 Cir. 2000); Stanley v. Litscher, 213 F.3d 340, 344 (7 Cir. 2000); Pederson v. La. St. thth
Univ., 213 F.3d 858, 875-76 (5 Cir. 2000); Sandoval v. Hagan, 197 F.3d 484, 493-94 (11 Cir. 1999), rev’d on other th
grounds, 532 U.S. 275 (2001); Litman v. George Mason Univ., 186 F.3d 544, 554 (4 Cir. 1999); Clark v. California, th
123 F.3d 1267, 1271 (9 Cir. 1997).
Thus, it would appear that the waiver of sovereign immunity as a grant condition would pass
constitutional muster under Dole. Just as states may waive their Tenth Amendment rights not to
be commandeered when accepting grant conditions (as noted in Dole), it seems generally
accepted that there is no constitutional bar to a state voluntarily waiving its sovereign immunity 143
rights. As a general matter, conditioning a federal grant on the voluntary waiver of state
sovereign immunity does not seem to be of particular constitutional concern.
Under Dole, however, a court would, on a case-by-case basis, need to examine the level of
financial burden that would be imposed on the state by the withdrawal of a particular federal
grant to ensure that the condition was not coercive. Further, under Dole, a court would need to
examine how related the purpose of the proposed bill was to the waiver of sovereign immunity in 144
connection with a particular grant program. However, the Court in Dole indicated that it would
show significant deference to Congress in determining whether a grant condition relates to an
underlying federal program, and this requirement does not appear to have been of concern to 145
lower courts considering waiver of sovereign immunity as a grant condition.
It would appear that the status of the state in the federal system has been strengthened by recent
Supreme Court opinions. Although the Court has not scaled back the federal government’s
substantive jurisdiction significantly, it has to some extent prevented the expansion of Congress’s
power under the Commerce Clause and under §5 of the Fourteenth Amendment. Further it has
created a variety of obstacles as to how these powers can be executed, forbidding Congress under
the Tenth Amendment from commandeering the authority of state legislative and executive
branches, and limiting the authority of Congress to abrogate state sovereign immunity.
Ultimately, however, Congress retains significant powers to influence state behavior, such as
through the Spending Clause, and, under the Supremacy Clause, Congress may require the
enforcement of its laws in both state and federal court.
Susan M. Luken, Irreconcilable Differences: the Spending Clause and the Eleventh Amendment: Limiting
Congress’s Use of Conditional Spending to Circumvent Eleventh Amendment Immunity,70 U. Cin. L. Rev. 693 (2002);
Michael T. Gibson, Congressional Authority to Induce Waivers of State Sovereign Immunity: The Conditional
Spending Power (and Beyond), 29 Hastings Const. L.Q. 439 (2002); Litman v. George Mason University, 186 F.3d 544 thth
(4 Cir. 1999); Jim C. v. United States, 235 F.3d 1079 (8 Cir. 2000).
144 See id. at 1084 (Bowman, J, dissenting) (arguing that waiver of sovereign immunity was not related to purpose of
145 See generally Litman v. George Mason University, 186 F.3d 544 (4th Cir. 1999); Jim C. v. United States, 235 F.3d
1079 (8th Cir. 2000).
Kenneth R. Thomas