Amicus Curiae Brief — Frederick L. Allen, et al., Petitioners v. Roy A. Cooper, III, Governor of North Carolina, et al.

Supreme Court briefAug 13, 2019

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No. 18-877

IN THE

Supreme Court of the United States

___________

FREDERICK L. ALLEN and

NAUTILUS PRODUCTIONS, LLC,

Petitioners,

ROY A. COOPER, III,

as Governor of North Carolina, et al.,

Respondents.

___________

On Writ of Certiorari to the United States

Court of Appeals for the Fourth Circuit

___________

BRIEF OF CONSTITUTIONAL ACCOUNTABILITY

CENTER AS AMICUS CURIAE IN SUPPORT OF

PETITIONERS

___________

ELIZABETH B. WYDRA

BRIANNE J. GOROD*

DAVID H. GANS

DAYNA J. ZOLLE**

CONSTITUTIONAL

ACCOUNTABILITY CENTER

1200 18th Street NW

Suite 501

Washington, D.C. 20036

(202) 296-6889

brianne@theusconstitution.org

Counsel for Amicus Curiae

August 13, 2019

* Counsel of Record

** Not admitted in D.C.; supervised

by principals of the firm

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................................

INTEREST OF AMICUS CURIAE ......................

INTRODUCTION AND SUMMARY OF

ARGUMENT ......................................................

ARGUMENT .........................................................

I. CONGRESS HAS BROAD ENFORCEMENT AUTHORITY UNDER SECTION 5

OF THE FOURTEENTH AMENDMENT....

II. THE CRCA IS VALID LEGISLATION

UNDER SECTION 5 OF THE

FOURTEENTH AMENDMENT AT

LEAST INSOFAR AS IT CREATES A

PRIVATE RIGHT OF ACTION FOR

DAMAGES AGAINST STATES FOR

ACTUAL CONSTITUTIONAL

VIOLATIONS, LIKE THOSE ALLEGED

IN THIS CASE .............................................

III. THE CRCA IS CONSTITUTIONAL

UNDER SECTION 5 OF THE

FOURTEENTH AMENDMENT BECAUSE

IT REMEDIES AND PREVENTS

CONSTITUTIONAL VIOLATIONS BY

THE STATES ...............................................

IV. CONGRESS DID NOT NEED TO

IDENTIFY THE SOURCE OF ITS

CONSTITUTIONAL AUTHORITY TO

EFFECTIVELY ABROGATE STATE

SOVEREIGN IMMUNITY ...........................

CONCLUSION .....................................................

(i)

TABLE OF AUTHORITIES

Cases

Page(s)

Atascadero State Hosp. v. Scanlon,

473 U.S. 234 (1985) ...................................

Bd. of Trs. of Univ. of Ala. v. Garrett,

531 U.S. 356 (2001) ................................... 16, 25

Blatchford v. Native Vill. of Noatak &

Circle Vill.,

501 U.S. 775 (1991) ...................................

City of Boerne v. Flores,

521 U.S. 507 (1997) ................................ passim

Coleman v. Ct. of Appeals of Md.,

566 U.S. 30 (2012) .............................. 18, 19, 24

Dellmuth v. Muth,

491 U.S. 223 (1989) ...................................

Dred Scott v. Sanford,

60 U.S. (19 How.) 393 (1857) ....................

EEOC v. Wyoming,

460 U.S. 226 (1983) ...................................

Ex parte Virginia,

100 U.S. 339 (1879) ................................... 6, 10

Feist Publ’ns, Inc. v. Rural Tel. Serv. Co.,

Inc.,

499 U.S. 340 (1991) ...................................

Fitzpatrick v. Bitzer,

427 U.S. 445 (1976) ...................................

iii

TABLE OF AUTHORITIES – cont’d

Page(s)

Fla. Prepaid Postsecondary Ed. Expense

Bd. v. Coll. Sav. Bank,

527 U.S. 627 (1999) ................................ passim

Fox Film Corp. v. Doyal,

286 U.S. 123 (1932) ...................................

Hepburn v. Griswold,

75 U.S. (8 Wall.) 603 (1869) ......................

Kimel v. Fla. Bd. of Regents,

528 U.S. 62 (2000) .................................. passim

Knick v. Twp. of Scott,

139 S. Ct. 2162 (2019) ...............................

McCulloch v. Maryland,

17 U.S. (4 Wheat.) 316 (1819) ................... 4, 5, 6

Nat’l Fed’n of Indep. Bus. v. Sebelius,

567 U.S. 519 (2012) ................................... 27, 28

Nev. Dep’t of Human Res. v. Hibbs,

538 U.S. 721 (2003) ................................ passim

Palazzolo v. Rhode Island,

533 U.S. 606 (2001) ............................... 2, 13, 14

Pruneyard Shopping Ctr. v. Robins,

447 U.S. 74 (1980) .....................................

Seminole Tribe of Fla. v. Florida,

517 U.S. 44 (1996) .....................................

Strauder v. West Virginia,

100 U.S. 303 (1879) ...................................

TABLE OF AUTHORITIES – cont’d

Page(s)

Tennessee v. Lane,

541 U.S. 509 (2004) ................................ passim

United States v. Gen. Motors Corp.,

323 U.S. 373 (1945) ...................................

United States v. Georgia,

546 U.S. 151 (2006) ............................... passim

United States v. Raines,

362 U.S. 17 (1960) .....................................

United States v. Salerno,

481 U.S. 739 (1987) ...................................

Wash. State Grange v. Wash. State

Republican Party,

552 U.S. 442 (2008) ...................................

Woods v. Cloyd W. Miller Co.,

333 U.S. 138 (1948) ...................................

Constitutional Provisions and Legislative Materials

2 Cong. Rec. (1874) ....................................

9, 10

4 The Confederate Records of the State of

Georgia (Allen D. Candler ed., 1910) .......

17 U.S.C. § 101 et seq. ...............................

17 U.S.C. § 504 ..........................................

17 U.S.C. § 507(b) ......................................

17 U.S.C. § 510 ..........................................

TABLE OF AUTHORITIES – cont’d

Page(s)

17 U.S.C. § 511(a) ......................................

17 U.S.C. § 511(b) ......................................

29 U.S.C. § 626(b) ......................................

29 U.S.C. § 2601(b)(4) ...............................

29 U.S.C. § 2601(b)(5) ...............................

42 U.S.C. § 12101(b)(4) .............................

42 U.S.C. § 12202 ......................................

Cong. Globe, 39th Cong., 1st Sess.

(1865) ......................................................

Cong. Globe, 39th Cong., 1st Sess.

(1866) ...................................................... 6, 7, 8

Cong. Globe, 41st Cong., 2d Sess. (1870) .

Cong. Globe, 42d Cong., 2d Sess. (1872) ..

6, 9

No. 101-553, 104 Stat. 2749 (1990) .......

The Copyright Remedy Clarification Act:

Hearing on S. 497 Before the Subcomm. on

Patents, Copyrights & Trademarks of the

S. Comm. on the Judiciary, 101st Cong.,

1st Sess. (1989).......................................

H.R. Rep. No. 101-887 (1989) (Conf.

Rep.) .......................................................

TABLE OF AUTHORITIES – cont’d

Page(s)

Charles J. Jenkins, Annual Message to

the Georgia General Assembly (Nov. 1,

1866) ..........................................................

Journal of the Senate of the State of Texas,

11th Legis. (Oct. 22, 1866) .....................

N.C. Gen. Stat. § 121-25(b) (2016) ............

2, 13

U.S. Const. amend. V ................................

U.S. Const. amend. XIV, § 1 .....................

U.S. Const. amend. XIV, § 5 .....................

2, 4

Books, Articles, and Other Authorities

Akhil Reed Amar, Intratextualism, 112

Harv. L. Rev. 747 (1999) ...........................

Jack M. Balkin, The Reconstruction Power,

85 N.Y.U. L. Rev. 1801 (2010) ..................

Steven A. Engel, The McCulloch Theory of

the Fourteenth Amendment: City of

Boerne v. Flores and the Original

Understanding of Section 5, 109 Yale L.J.

115 (1999) ..................................................

Douglas Laycock, Conceptual Gulfs in City

of Boerne v. Flores, 39 Wm. & Mary L.

Rev. 743 (1998) ..........................................

vii

TABLE OF AUTHORITIES – cont’d

Page(s)

Library of Congress, Copyright Liability of

States and the Eleventh Amendment: A

Report of the Register of Copyrights

(1988) ............................................. 16, 17, 18, 19

Michael W. McConnell, Institutions and

Interpretation: A Critique of City of

Boerne v. Flores, 111 Harv. L. Rev. 153

(1997) .........................................................

5, 6

INTEREST OF AMICUS CURIAE1

Amicus Constitutional Accountability Center

(CAC) is a think tank, public interest law firm, and action center dedicated to fulfilling the progressive

promise of our Constitution’s text, history, and values.

CAC works in our courts, through our government,

and with legal scholars to improve understanding of

the Constitution and to preserve the rights and freedoms it guarantees. CAC therefore has a strong interest in this Court’s interpretation of Congress’s enforcement powers under the Fourteenth Amendment, including Congress’s power to abrogate state sovereign

immunity.

INTRODUCTION AND

SUMMARY OF ARGUMENT

When Congress passed the Copyright Remedy

Clarification Act of 1990 (CRCA or the Act), Pub. L.

No. 101-553, 104 Stat. 2749 (codified at 17 U.S.C.

§ 511(a)), it expressly abrogated state sovereign immunity from private suit under the Copyright Act, 17

U.S.C. § 101 et seq. Petitioners in this case have sued

North Carolina under the Copyright Act, as amended

by the CRCA, alleging that the State infringed their

copyrighted works documenting a historic shipwreck.

Pet. App. 42a-45a. According to Petitioners, North

Carolina posted their works online without compensating them, even though the State had entered into a

1 The parties have consented to the filing of this brief, and

their letters of consent have been filed with the Clerk. Under

Rule 37.6 of the Rules of this Court, amicus states that no counsel

for a party authored this brief in whole or in part, and no counsel

or party made a monetary contribution intended to fund the

preparation or submission of this brief. No person other than

amicus or its counsel made a monetary contribution to its preparation or submission.

settlement agreement with them in which it agreed,

after previous infringements, not to infringe those

copyrights. Id. at 43a-44a. Petitioners also allege that

North Carolina subsequently passed a law purporting

to give it free rein to use Petitioners’ copyrighted

works, N.C. Gen. Stat. § 121-25(b) (2016). Pet. App.

44a-45a. The question in this case is whether Congress’s decision to abrogate state sovereign immunity

in the CRCA—thus allowing Petitioners to sue North

Carolina in federal court for money damages for intentional copyright infringement—is constitutional. This

Court should hold that it is.

As the text and history of the Fourteenth Amendment make clear, Section 5 of that Amendment grants

Congress broad enforcement authority. Congress’s abrogation of state sovereign immunity in the CRCA falls

well within its power under Section 5 “to enforce” the

Fourteenth Amendment’s substantive guarantees

through “appropriate legislation.” U.S. Const. amend.

XIV, § 5.

First, the CRCA validly abrogates state sovereign

immunity insofar as it prohibits conduct that actually

violates the Fourteenth Amendment, like the conduct

alleged in this case. In United States v. Georgia, 546

U.S. 151 (2006), this Court unanimously held that a

statute is constitutional under Section 5 at least insofar as it “creates a private cause of action for damages

against the States for conduct that actually violates

the Fourteenth Amendment.” Id. at 159. Here, Petitioners have alleged conduct by North Carolina that

actually violates not only the Copyright Act, but also

the Due Process Clause of the Fourteenth Amendment

and the Takings Clause of the Fifth Amendment,

which the Fourteenth Amendment incorporates,

Palazzolo v. Rhode Island, 533 U.S. 606, 617 (2001).

Accordingly, this Court should uphold the CRCA at

least as applied to this case, which involves conduct

that actually violates the Constitution.

Second, and more broadly, the CRCA is constitutional across the board, and its validity is particularly

clear in the class of cases involving States’ intentional

recognized that Congress’s power under Section 5 of

the Fourteenth Amendment includes both the authority to pass laws to enforce the Amendment’s substantive guarantees and the authority to enact legislation

“to remedy and to deter violation of rights guaranteed

[by the Amendment] by prohibiting a somewhat

broader swath of conduct, including that which is not

itself forbidden by the Amendment’s text.” Kimel v.

Fla. Bd. of Regents, 528 U.S. 62, 81 (2000). The CRCA

satisfies the three-part test this Court established in

City of Boerne v. Flores, 521 U.S. 507 (1997), to determine whether enforcement legislation falls within that

broad congressional authority. That is, the CRCA is a

congruent and proportional response to a history of unconstitutional conduct by States that Congress sought

to remedy and deter.

Finally, this Court should reject the suggestion

that the CRCA is not valid legislation under Section 5

simply because Congress, in unequivocally stating its

intent to abrogate state sovereign immunity under the

CRCA, did not also specify the basis for its abrogating

authority. This Court has never held that Congress

must affirmatively identify the source of its authority

to validly abrogate immunity, and such a requirement

would be contrary to this Court’s longstanding practice

and constitutional principles.

ARGUMENT

I. CONGRESS HAS BROAD ENFORCEMENT

AUTHORITY UNDER SECTION 5 OF THE

FOURTEENTH AMENDMENT.

The text and history of Section 5 make clear that,

by design, Congress has substantial power to enact

legislation enforcing the Fourteenth Amendment.

A. The plain language of the Fourteenth Amendment gives Congress significant discretion to choose

the means by which it enforces constitutional rights.

The Framers of the Amendment deliberately chose

language calculated to give Congress wide latitude in

selecting the legislative measures it deemed necessary

to uphold the Fourteenth Amendment’s guarantees.

This plain language vests Congress with the “power to

enforce” the substantive protections “by appropriate

legislation.” U.S. Const. amend. XIV, § 5.

The use of the phrase “by appropriate legislation”

was no accident. By echoing Chief Justice Marshall’s

classic statement in McCulloch v. Maryland, 17 U.S.

(4 Wheat.) 316 (1819), that established the fundamental principle for determining the scope of Congress’s

powers under the Necessary and Proper Clause, id. at

421 (“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[ent] with the letter and

spirit of the constitution, are constitutional.” (emphasis added)), Section 5 gave effect to the wishes of the

Amendment’s supporters who wanted Congress to

have a powerful role in protecting against unconstitutional action by the States. See Hepburn v. Griswold,

75 U.S. (8 Wall.) 603, 615 (1869) (“[I]t must be taken

then as finally settled . . . that the words” of the Necessary and Proper Clause are “equivalent” to the word

“appropriate.”); Jack M. Balkin, The Reconstruction

Power, 85 N.Y.U. L. Rev. 1801, 1810-15 (2010); Akhil

Reed Amar, Intratextualism, 112 Harv. L. Rev. 747,

822-27 (1999); Steven A. Engel, The McCulloch Theory

of the Fourteenth Amendment: City of Boerne v. Flores

and the Original Understanding of Section 5, 109 Yale

L.J. 115, 131-34 (1999); see also Michael W.

McConnell, Institutions and Interpretation: A Critique

of City of Boerne v. Flores, 111 Harv. L. Rev. 153, 178

n.153 (1997) (“In McCulloch v. Maryland, the terms

‘appropriate’ and ‘necessary and proper’ were used interchangeably.” (citation omitted)). Indeed, in McCulloch, Chief Justice Marshall had used the word “appropriate” to describe the scope of congressional power no

fewer than nine times. E.g., 17 U.S. at 354, 356, 357,

408, 410, 415, 421, 422, 423.

Because Section 5 embraced the Supreme Court’s

classic elucidation of congressional power under Article I—well known at the time of the Amendment’s ratification—it was understood that Congress would have

wide discretion to choose whatever legislative

measures it deemed “appropriate” for achieving the

Amendment’s purposes. See id. at 421 (indicating that

“the sound construction of the constitution must allow

to the national legislature that discretion, which respect to the means by which the powers it confers are

to be carried into execution”). Thus, by giving Congress the power to enforce the Fourteenth Amendment’s commands by “appropriate legislation,” the

Framers “actually embedded in the text” of Section 5

the language of McCulloch. Balkin, supra, at 1815.

With Southern States acting to strip African Americans of their fundamental rights, the Framers of the

Amendment chose this broad, sweeping language to

grant Congress a leading role in enforcing the Constitution’s new guarantees of liberty and equality. “[T]he

remedy for the violation” of the Fourteenth Amendment “was expressly not left to the courts. The remedy

was legislative, because . . . the amendment itself provided that it shall be enforced by legislation on the part

of Congress.” Cong. Globe, 42d Cong., 2d Sess. 525

(1872) (Sen. Morton); see Ex parte Virginia, 100 U.S.

339, 345 (1879) (explaining that the Reconstruction

Amendments “were intended to be” and “really are[]

limitations of the power of the States and enlargements of the power of Congres[s]”). Indeed, in the aftermath of Dred Scott v. Sanford, 60 U.S. (19 How.)

393 (1857), the Framers were reluctant to leave the judiciary with the sole responsibility for protecting constitutional rights. See McConnell, supra, at 182 (explaining that the Enforcement Clause was “born of the

fear that the judiciary would frustrate Reconstruction

by a narrow interpretation of congressional power”);

Douglas Laycock, Conceptual Gulfs in City of Boerne

v. Flores, 39 Wm. & Mary L. Rev. 743, 765 (1998) (observing that the Framers “did not entrust the fruits of

the Civil War to the unchecked discretion of the Court

that decided Dred Scott”).

The Framers thus expected that Congress would be

the primary arbiter of the necessity of any measure

that was directed at a legitimate end, Cong. Globe,

39th Cong., 1st Sess. 1118 (1866) (Rep. Wilson), and

that the courts would review acts of Congress pursuant to Section 5 with the deferential posture taken by

Chief Justice Marshall in McCulloch, 17 U.S. at 423

(refusing “to pass the line which circumscribes the judicial department, and to tread on legislative ground”).

Under this standard of review, a court would strike

down an act of Congress only when Congress “adopt[s]

measures which are prohibited by the constitution.”

Id.

B. The debates over the Fourteenth Amendment

confirm that the Framers sought to confer broad discretion on Congress to enforce the Amendment.

From early on, the leading proponents of the Fourteenth Amendment—Senator Jacob Howard and Representative John Bingham—made clear that the

Amendment would shift the balance of power between

the States and the federal government by giving Congress wide latitude to enact “appropriate” measures.

Introducing the Amendment to the Senate in May

1866, Senator Howard emphasized that the antebellum Constitution had not granted Congress adequate

authority to protect constitutional rights against state

infringement. See Cong. Globe, 39th Cong., 1st Sess.

2764-66 (1866). According to Senator Howard, the Enforcement Clause in Section 5 would remedy this deficiency by providing a “direct affirmative delegation of

power to Congress to carry out all the principles of all

these guarantees, a power not found in the Constitution.” Id. at 2766.

Senator Howard rejected any narrow reading of

Congress’s enforcement power. Section 5, he declared,

conferred authority to pass any “laws which are appropriate to the attainment of the great object of the

amendment.” Id. Further, Section 5 cast “upon Congress the responsibility of seeing to it, for the future,

that . . . no State infringes the rights of persons or

property.” Id. at 2768.

Members of the House of Representatives echoed

these sentiments, confirming the breadth of congressional enforcement power. Representative Bingham

emphasized that Section 5 would bring a fundamental

and essential change in the balance of power between

the federal and state governments. Id. at 2542 (noting

that Section 5 would correct the constitutional defect

that had led to “many instances of State injustice and

oppression”). Other supporters concurred, praising

the proposal to give Congress broad enforcement

power and the protection this power would provide citizens from state encroachments. See id. at 2498 (Rep.

Broomall) (“We propose . . . to give power to the Government of the United States to protect its own citizens within the States, within its own jurisdiction.

Who will deny the necessity of this? No one.”); id. at

2510 (Rep. Miller) (“And as to the States it is necessary

. . . .”). These supporters understood, moreover, that

the Amendment would grant Congress the authority

to decide what is “appropriate” for an enforcement

mechanism. See id. at 43 (1865) (Sen. Trumbull)

(“What that ‘appropriate legislation’ is, is for Congress

to determine, and nobody else.”); id. at 1124 (1866)

(Rep. Cook) (“Congress should be the judge of what is

necessary . . . .”).

The Fourteenth Amendment’s opponents did not

disagree with this understanding. To the contrary, in

State after State throughout the South, opponents of

the Amendment feared that the authority to pass “appropriate legislation” would give Congress excessive

power to define the obligations of States with respect

to their citizens. As one Texas state senator put it,

“What is ‘appropriate legislation?’ The Constitution is

silent; therefore, it is left for the Congress to determine.” Journal of the Senate of the State of Texas, 11th

Legis., at 422 (Oct. 22, 1866). In a similar vein, Governor Jenkins of Georgia lamented that Congress

would have too much power over the States and that it

would “be contended that [members of Congress] are

the proper judges of what constitutes appropriate legislation. If therefore, the amendment be adopted, and

. . . Congress . . . be empowered ‘to enforce it by appropriate legislation,’ what vestige of hope remains to the

people of those States?” Charles J. Jenkins, Annual

Message to the Georgia General Assembly (Nov. 1,

1866), in 4 The Confederate Records of the State of

Georgia 547 (Allen D. Candler ed., 1910). While supporters and opponents parted ways on the merit of the

Amendment, both sides agreed that it would provide

Congress broad enforcement authority.

C. Post-ratification interpretations of Section 5

confirm that the provision was understood to give Congress wide latitude in selecting the legislative

measures it deemed appropriate.

First, shortly after the Fourteenth Amendment’s

ratification, Congress understood the power conferred

by Section 5 to be broad. Senator Sumner, for instance, reasoned that “the Supreme Court will not undertake to sit in judgment on the means employed by

Congress in carrying out a power which exists in the

Constitution.” Cong. Globe, 42d Cong., 2d Sess. 728

(1872). Likewise, Representative Lawrence stated

that Congress is the “exclusive judge of the proper

means to employ” its power under Section 5. 2 Cong.

Rec. 414 (1874). Congress’s authority in this respect,

Representative Lawrence insisted, was “settled in

McCulloch vs. Maryland.” Id. In fact, it was widely

accepted that Congress has broad discretion in deciding what is “appropriate” enforcement legislation. See,

e.g., Cong. Globe, 41st Cong., 2d Sess. 3882 (1870)

(Rep. Davis) (“No broader language could be adopted

than this with which to clothe Congress with power

. . . . Congress, then, is clothed with so much power as

is necessary and proper to enforce the [Fourteenth

Amendment], and is to judge from the exigencies of the

case what is necessary and what is proper.”); id. at

App. 548 (Rep. Prosser) (“The amendments to the Constitution were not adopted for theoretical, but for practical purposes.”). Even opponents of enforcement legislation recognized the wide discretion Congress

possesses. See 2 Cong. Rec. 4084-85 (1874) (Sen. Thurman) (“[W]hence come these words ‘appropriate legislation?’ They come from the language of Marshall in

deciding the case McCulloch vs. The State of Maryland.”).

Second, this Court, in its foundational construction

of Section 5 in Ex parte Virginia, 100 U.S. 339, concurred with this expansive view of Congress’s powers.

Employing language that tracked McCulloch, this

Court stated, “Whatever legislation is appropriate,

that is, adapted to carry out the objects the amendments have in view, whatever tends to enforce submission to the prohibitions they contain . . . if not prohibited, is brought within the domain of congressional

power.” Id. at 345-46; see Strauder v. West Virginia,

100 U.S. 303, 311 (1879) (“The form and manner of the

protection may be such as Congress in the legitimate

exercise of its legislative discretion shall provide.”).

In short, Congress has broad enforcement authority under Section 5 of the Fourteenth Amendment. As

explained below, the CRCA is a valid exercise of that

authority.

II. THE CRCA IS VALID LEGISLATION UNDER

SECTION

THE

FOURTEENTH

AMENDMENT AT LEAST INSOFAR AS IT

CREATES A PRIVATE RIGHT OF ACTION

FOR DAMAGES AGAINST STATES FOR

ACTUAL CONSTITUTIONAL VIOLATIONS,

LIKE THOSE ALLEGED IN THIS CASE.

This Court should uphold the CRCA as valid Section 5 legislation. The Court has repeatedly recognized that Congress’s power under Section 5 includes

both the authority to pass laws to enforce directly the

Fourteenth Amendment’s substantive guarantees,

e.g., Georgia, 546 U.S. at 158, and the authority “to

remedy and to deter violation of rights guaranteed [by

the Amendment] by prohibiting a somewhat broader

swath of conduct, including that which is not itself forbidden by the Amendment’s text,” Kimel, 528 U.S. at

81. While the CRCA is valid even if its coverage extends beyond actual enforcement of the Fourteenth

Amendment’s substantive guarantees in some instances, see infra at 15-23, this Court need not reach

that issue in this case. Rather, the Court can resolve

this case by holding that the CRCA is valid Section 5

legislation insofar as it creates a private right of action

for damages against States for conduct that itself violates the Fourteenth Amendment because Petitioners

here have plausibly alleged such conduct. Accordingly,

this Court should reject Respondents’ broad facial

challenge to the CRCA and hold that the Act is constitutional, at least as applied to this case. See United

States v. Salerno, 481 U.S. 739, 745 (1987) (“A facial

challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.”).

In United States v. Georgia, 546 U.S. 151, this

Court unanimously held that a statute validly abrogates state sovereign immunity under Section 5 at

least insofar as it “creates a private cause of action for

damages against States for conduct that actually violates the Fourteenth Amendment.” Id. at 159. The

Court explained that “no one doubts that § 5 grants

Congress the power to ‘enforce . . . the provisions’ of

the Amendment by creating private remedies against

the States for actual violations of those provisions.” Id.

at 158 (citations omitted); see City of Boerne, 521 U.S.

at 522 (“Congress was granted the power to make the

substantive constitutional prohibitions against the

States effective.”); Fitzpatrick v. Bitzer, 427 U.S. 445,

456 (1976) (recognizing that under Section 5, “Congress is expressly granted authority to enforce . . . the

substantive provisions of the Fourteenth Amendment”

by abrogating state sovereign immunity from private

suits for damages).

Applying this rule in Georgia, this Court held that

Title II of the Americans with Disabilities Act (ADA)

is valid Section 5 legislation at least insofar as it allows for money damages against States for actual constitutional violations. 546 U.S. at 159. The petitioner

in that case had alleged conduct that not only “quite

plausibl[y]” violated Title II but also “independently

violated the provisions of § 1 of the Fourteenth Amendment” because the alleged conduct violated the Eighth

Amendment’s guarantee against cruel and unusual

punishment, which the Due Process Clause of the

Fourteenth Amendment incorporates. Id. at 157.

Thus, this Court held that the court of appeals had

erred in concluding that the petitioner’s Title II claims

“that were based on such unconstitutional conduct”

were barred by state sovereign immunity. Id. at 159.

Much like the petitioner in Georgia, Petitioners in

this case have plausibly alleged state conduct that actually violates both a statutory right and the substantive guarantees of the Fourteenth Amendment. In

particular, Petitioners allege that they secured copyrights for their works documenting a shipwreck and

that North Carolina intentionally infringed those

copyrights even after entering into a settlement agreement acknowledging Petitioners’ property interests in

those works. Pet. App. 43a-44a. Petitioners also allege that the State went so far as to enact a law that

purports to make those works available for public use.

Id. at 44a-45a.

This conduct, which formed the basis for Petitioners’ claims under the Copyright Act, as amended by

the CRCA, also provided the foundation for Petitioners’ claims that North Carolina violated the Due Process Clause of the Fourteenth Amendment and the

Takings Clause of the Fifth Amendment, which the

Fourteenth Amendment’s Due Process Clause incorporates, Palazzolo, 533 U.S. at 617. See Pet. App. 45a.

Indeed, upon rejecting the State’s bid for immunity,

the district court in this case concluded that Petitioners “sufficiently pled specific facts that allow the inference that each defendant . . . infringed [Petitioners’]

registered copyright works after the 2013 settlement

agreement,” id. at 75a, and that the property rights

the State violated are both “rooted in the United States

Constitution and protected by the federal Copyright

Act,” id. at 74a.

The Due Process Clause provides that no State

“shall . . . deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend.

XIV, § 1; see Fox Film Corp. v. Doyal, 286 U.S. 123, 128

(1932) (recognizing that “a copyright is property”).

Even if Respondents in this case are correct that “a

state must infringe a copyright intentionally” to violate

the Due Process Clause, Br. in Opp’n 18 (citing Fla.

Prepaid Postsecondary Ed. Expense Bd. v. Coll. Sav.

Bank, 527 U.S. 627, 645 (1999)), Petitioners have alleged ample facts to state a claim that North Carolina

intentionally infringed their copyrights without due

process by uploading Petitioners’ copyrighted works

online in contravention of a settlement agreement and

by subsequently enacting a state law rendering their

copyrighted works “public record,” see Pet. App. 43a45a (quoting N.C. Gen. Stat. § 121-25(b)). These detailed allegations plainly demonstrate that North Carolina knew of Petitioners’ copyrights and took actions

to permanently deprive Petitioners of these intellectual property rights without due process. See id.

Likewise, this same alleged conduct, if proven,

would violate the Fifth Amendment’s Takings Clause,

as incorporated against the States through the Due

Process Clause of the Fourteenth Amendment,

Palazzolo, 533 U.S. at 617. The Takings Clause provides that “private property” shall not “be taken for

public use, without just compensation.” U.S. Const.

amend. V; see Pruneyard Shopping Ctr. v. Robins, 447

U.S. 74, 82 n.6 (1980) (recognizing that the Takings

Clause protects “the entire ‘group of rights inhering in

the citizen’s [ownership]’” (alteration in original)

(quoting United States v. Gen. Motors Corp., 323 U.S.

373, 378 (1945))). Because Petitioners allege that

North Carolina took their property without providing

compensation by uploading their works online, notwithstanding the previous settlement agreement, and

by declaring the works a matter of “public record” under state law, Petitioners have alleged a viable claim

for violation of the Takings Clause.2 See Knick v. Twp.

of Scott, 139 S. Ct. 2162, 2167 (2019) (“A property

owner has an actionable Fifth Amendment takings

claim when the government takes his property without

paying for it.”). Thus, the same alleged conduct underlying Petitioners’ Copyright Act claim actually violates

the Due Process Clause and the Takings Clause. 3

2 Notably, these alleged takings occurred after North Carolina compensated Petitioners under the settlement agreement for

past copyright infringements. Thus, Petitioners allege that North

Carolina has provided no additional compensation for post-settlement takings. See Pet. App. 44a.

3 While the alleged conduct actually violates both

the Due

Process Clause and the Takings Clause, this Court need only recognize that it violates one or the other (“or some other constitutional provision,” Georgia, 546 U.S. at 159) to hold that the CRCA

is valid at least as applied to this “class of conduct,” id.

Because Petitioners have plausibly alleged conduct

that actually violates the Constitution, this Court

should uphold the constitutionality of the CRCA at

least as applied to this case. Cf. Georgia, 546 U.S. at

159; Tennessee v. Lane, 541 U.S. 509, 531 (2004) (upholding the ADA’s abrogation of state sovereign immunity as applied to a particular “class of cases” under

Title II). Accordingly, the Court can resolve this case

on this basis and need not go further. See Wash. State

Grange v. Wash. State Republican Party, 552 U.S. 442,

450 (2008) (“Exercising judicial restraint in a facial

challenge ‘frees the Court not only from unnecessary

pronouncement on constitutional issues, but also from

premature interpretations of statutes in areas where

their constitutional application might be cloudy.’”

(quoting United States v. Raines, 362 U.S. 17, 22

(1960))).

III. THE CRCA IS CONSTITUTIONAL UNDER

SECTION 5 OF THE FOURTEENTH

AMENDMENT BECAUSE IT REMEDIES

AND

PREVENTS

CONSTITUTIONAL

VIOLATIONS BY THE STATES.

To the extent this Court undertakes a broader review, it should hold that the CRCA is constitutional

under Section 5 of the Fourteenth Amendment because it is a congruent and proportional response to a

history of unconstitutional conduct by the States that

Congress sought to remedy and prevent. See City of

Boerne, 521 U.S. at 520; Nev. Dep’t of Human Res. v.

Hibbs, 538 U.S. 721, 727 (2003) (“Congress may, in the

exercise of its § 5 power, do more than simply proscribe

conduct that we have held unconstitutional.”). In City

of Boerne v. Flores, 521 U.S. 507, this Court established a three-step test to determine whether Section

5 legislation falls within Congress’s authority, and the

CRCA satisfies each step of this analysis. Ultimately,

“[v]alid § 5 legislation must exhibit ‘congruence and

proportionality between the injury to be prevented or

remedied and the means adopted to that end,’” Hibbs,

538 U.S. at 728 (quoting City of Boerne, 521 U.S. at

520), and the CRCA does precisely that.

At the first step of the Boerne inquiry, the Court

must “identify the constitutional right or rights that

Congress sought to enforce when it enacted [the statute]” in question. Lane, 541 U.S. at 522. Congress enacted the CRCA to enforce significant constitutional

rights—namely, the rights guaranteed by the Due Process Clause and the Takings Clause. The underlying

conduct at issue here is the States’ infringement on

copyrights and the use of state sovereign immunity to

deny copyright owners compensation for this invasion

of their property rights. Cf. Fla. Prepaid, 527 U.S. at

640 (regarding state infringement of patents). As illustrated above, this class of conduct implicates those

rights guaranteed by the Fourteenth Amendment.

The second step of the Boerne analysis concerns

whether Congress identified a sufficient historical

predicate to warrant passing Section 5 legislation, Bd.

of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 368

(2001), and the CRCA’s legislative record amply

demonstrates that Congress did so here. Before enacting the CRCA, Congress enlisted the help of the U.S.

suit. See Library of Congress, Copyright Liability of

States and the Eleventh Amendment: A Report of the

copyrights by States, but also a lack of legal remedies

for redress. In particular, the report detailed several

incidents in which States invoked sovereign immunity

to avoid suit for copyright infringement and several

additional incidents in which commenters experienced

difficulty enforcing their Copyright Act claims against

States. Id. at 7-9. The report also described multiple

incidents of state officials willfully infringing copyright holders’ property interests without due process.

Id. at 7-10; see Pet. App. 28a.

In addition to these descriptions, the report “contain[ed] comments from industry groups . . . and legal

analysis relating to copyright violations, actual and

potential, by States.” Fla. Prepaid, 527 U.S. at 658 n.9

(Stevens, J., dissenting) (citing hearing transcripts

and distinguishing the Patent Remedy Act at issue in

Florida Prepaid from the CRCA in suggesting that

“there is hope that the [CRCA] may be considered ‘appropriate’ § 5 legislation”). In response to these comments, the report observed that copyright “[o]wners

are concerned with widespread copying, particularly

in the important and increasingly lucrative area of

state educational publishing.” Oman Report 99. Indeed, through hearings, Congress also learned of

“many examples of copyright infringements by

States—especially state universities.” Fla. Prepaid,

527 U.S. at 658 n.9 (Stevens, J., dissenting) (citing

hearing transcripts).

Thus, according to the report, copyright proprietors

“caution[ed] that injunctive relief is inadequate—damages are needed.” Oman Report 99. The proprietors

explained that “if states are not responsible for remunerating copyright owners, . . . marketing to states will

be restricted or even terminated; prices to other users

will increase; and the economic incentive, even ability,

to create works will be diminished.” Id. “In short,” the

report concluded, “copyright proprietors clearly

demonstrate[d] the potential for immediate harm to

them” if States were not subject to damages for copyright infringement. Id. This record before Congress

was “weighty enough to justify the enactment” of Section 5 legislation, Hibbs, 538 U.S. at 735, because it

identified a “pattern of constitutional violations,” Coleman v. Ct. of Appeals of Md., 566 U.S. 30, 42 (2012),

while also demonstrating a real need for congressional

action to prevent further violations.

That Congress passed the CRCA not only to remedy

past constitutional violations but also to prevent future violations is all the more reason to conclude that

its abrogation of state sovereign immunity is valid.

This Court has recognized that “[p]reventive measures

prohibiting certain types of laws may be appropriate

when there is reason to believe that many of the laws

affected by the congressional enactment have a significant likelihood of being unconstitutional.” City of

Boerne, 521 U.S. at 532; see id. at 530 (noting that “preventive rules are sometimes appropriate remedial

measures”); Kimel, 528 U.S. at 91 (recognizing that

any “lack of support” in the legislative record demonstrating a history of constitutional violations in particular “is not determinative of the § 5 inquiry”). As Petitioners explain, a State’s copyright infringement by

its nature entails an element of intentionality and

thus—when committed without due process or just

compensation—is particularly likely to be unconstitutional. See Pet’r Br. 58-60. Accordingly, Congress had

good reason to conclude that copyright infringement

by the States was an appropriate subject for Section 5

legislation, as such infringement has a significant likelihood of being unconstitutional.

This case is therefore markedly different from Florida Prepaid, in which this Court held that Congress

had identified “no pattern of patent infringement by

the States” in enacting the Patent Remedy Act, 527

U.S. at 640, and where the Court noted that, “[a]t

most, Congress heard testimony that patent

infringement by States might increase in the future

. . . and acted to head off this speculative harm,” id. at

641 (citations omitted); see also Coleman, 566 U.S. at

41 (“The ‘few fleeting references’ to how self-care leave

is inseparable from family-care leave fall short of what

is required for a valid abrogation of States’ immunity

from suits for damages.” (quoting Fla. Prepaid, 527

U.S. at 644)). Here, Congress reviewed evidence both

of a pattern of constitutional violations and of a particularly strong likelihood of more constitutional violations in the future and permissibly determined that

enforcement legislation was appropriate to protect

constitutional property rights.

Moreover, unlike the legislative record in Florida

Prepaid, which indicated that Congress “barely considered the availability” of other remedies for patent infringement besides damages from suit in federal court,

527 U.S. at 643, the legislative record here established

that “[a]pplication of the [Eleventh Amendment]

leaves copyright owners with no effective remedy

against allegedly infringing States,” The Copyright

Remedy Clarification Act: Hearing on S. 497 Before the

Subcomm. on Patents, Copyrights & Trademarks of the

S. Comm. on the Judiciary, 101st Cong., 1st Sess. 7

(1989) (statement of Ralph Oman, Register of Copyrights). The report that Congress commissioned by the

U.S. Copyright Office also emphasized the inadequacy

of injunctive relief to remedy and deter copyright infringement by States. E.g., Oman Report iv. Accordingly, state infringement on private individuals’ copyrights was a sufficient basis for invoking Congress’s

power to enforce the Fourteenth Amendment. Cf.

Lane, 541 U.S. at 529 (holding that inadequate provision of public services for people with disabilities was

an appropriate subject for Section 5 legislation).

Finally, under the third step of the Boerne analysis,

the CRCA is a congruent and proportional response to

the history Congress identified of constitutional violations by States and the need to prevent future violations, particularly as applied to the class of cases, like

this one, involving the intentional infringement of

copyrights by States. See City of Boerne, 521 U.S. at

520.

This Court has previously taken a class-of-cases approach to determining whether Section 5 legislation is

appropriate in scope, and it should do the same here.

In Lane, for instance, because the Court concluded

that Title II of the ADA “unquestionably is valid § 5

legislation as it applies to the class of cases implicating

the accessibility of judicial services,” the Court concluded that it “need[ed] [to] go no further.” 541 U.S. at

531. The Court emphasized that “nothing in [its] case

law require[d] [it] to consider Title II, with its wide variety of applications, as an undifferentiated whole.”

Id. at 530. Similarly, in Georgia, the Court remanded

so that the pro se plaintiff could clarify whether he was

alleging any conduct that did not violate the Fourteenth Amendment (in addition to the conduct that

plainly did), and the Court instructed the district court

on remand to determine, “insofar as [the State’s alleged] misconduct violated Title II but did not violate

the Fourteenth Amendment, whether Congress’s purported abrogation of sovereign immunity as to that

class of conduct is nevertheless valid.” 546 U.S. at 159

(emphasis added). In other words, the Court instructed the district court to review the validity of any

prophylactic aspects of Title II only as applied to a particular class of conduct.

Here, too, the Court need not consider whether the

CRCA is a congruent and proportional remedy or deterrent in all cases. Rather, if the Court addresses the

CRCA’s constitutionality in contexts not presented by

the facts of this case, it can and should hold that the

CRCA is constitutional at least as applied to the class

of cases involving States’ intentional copyright infringement. After all, Congress determined that the

CRCA was an appropriate response to state constitutional violations, and that conclusion is “entitled to

much deference,” City of Boerne, 521 U.S. at 536.

In any event, the CRCA is inherently limited in

scope and is therefore appropriate Section 5 legislation

as a whole. To obtain money damages against a State

under the CRCA, a private plaintiff must establish a

violation of the Copyright Act itself, which requires the

plaintiff to prove “(1) ownership of a valid copyright,

and (2) copying of constituent elements of the work

that are original.” Feist Publ’ns, Inc. v. Rural Tel.

Serv. Co., Inc., 499 U.S. 340, 361 (1991). Indeed, “originality is a constitutionally mandated prerequisite for

copyright protection.” Id. at 351. The CRCA is therefore limited in breadth by the requirements of the Copyright Act itself. Cf. Lane, 541 U.S. at 531-33 (holding

that the provision of the ADA abrogating state sovereign immunity is appropriately tailored Section 5 legislation as applied to a particular class of cases based

on the limiting substantive requirements of Title II itself); Hibbs, 538 U.S. at 738-40 (holding that the Family and Medical Leave Act (FMLA) validly abrogates

state sovereign immunity because of the “many other

limitations that Congress placed on the scope of” the

FMLA). Accordingly, the CRCA is appropriately tailored to remedy and prevent unconstitutional conduct.

See Fla. Prepaid, 527 U.S. at 639.

The CRCA also allows private litigants to obtain

only the same remedies against States as against

other entities, and nothing more. 17 U.S.C. § 511(b).

The money damages recoverable under the CRCA are

confined to actual monetary losses or limited statutory

damages. See id. §§ 504, 510 (enumerating remedies

available under the Copyright Act). And the Act maintains a three-year limitations period for civil actions,

further restricting the opportunity for private plaintiffs to obtain damages. Id. § 507(b). The Court in

Hibbs found analogous limitations on the scope of the

FMLA sufficient to hold that that statute was “congruent and proportional to its remedial object.” 538 U.S.

at 740; see id. (noting that damages under the FMLA

are “strictly defined and measured by actual monetary

losses, and the accrual period for backpay is limited by

the Act’s 2-year statute of limitations (extended to

three years only for willful violations)” (citations omitted)). There is no reason to conclude differently here.

Indeed, the CRCA is a particularly well-tailored response and deterrent to constitutional violations as applied to cases involving States’ intentional copyright

infringement. This Court has recognized that “[t]he

appropriateness of remedial measures must be considered in light of the evil presented.” City of Boerne, 521

U.S. at 530. When States have willfully infringed private individuals’ property rights by intentionally violating copyrights, Congress has especially broad authority to respond and to prevent this conduct—which

likely violates the Constitution—from continuing.

Again, as this Court has recognized, “[p]reventive

measures prohibiting certain types of laws may be appropriate where there is reason to believe that many

of the laws affected by the congressional enactment

have a significant likelihood of being unconstitutional.” Id. at 532. Thus, the CRCA is an appropriate

remedy, given the history of constitutional violations

as well as the significant likelihood of future constitutional violations, particularly as applied to cases involving States’ intentional copyright infringement.

See Br. in Opp’n 18 (recognizing that intentional copyright infringement may violate the Due Process

Clause).

IV. CONGRESS DID NOT NEED TO IDENTIFY

THE SOURCE OF ITS CONSTITUTIONAL

AUTHORITY TO EFFECTIVELY ABROGATE

STATE SOVEREIGN IMMUNITY.

The CRCA is valid legislation under Section 5 of the

Fourteenth Amendment, and this Court should reject

Respondents’ contention that it is not simply because

Congress, in unequivocally stating its intent to abrogate state sovereign immunity under the CRCA, did

not also specifically identify the basis for its abrogating authority. See Br. in Opp’n 17. This Court has

never held that Congress must identify the source of

its authority to abrogate immunity, and such a requirement would be contrary to longstanding constitutional principles.

To determine whether federal legislation validly

abrogates state sovereign immunity, this Court has

consistently reiterated that it “must resolve two predicate questions: first, whether Congress unequivocally

expressed its intent to abrogate that immunity; and

second, if it did, whether Congress acted pursuant to a

valid grant of constitutional authority.” Kimel, 528

U.S. at 73; accord Lane, 541 U.S. at 517. Nothing further is required.

As for the first step of this inquiry, this Court has

never held that, in addition to unequivocally expressing its intent to abrogate immunity, Congress must

also expressly identify the source of its authority to do

so. To the contrary, the Court has stated time and

again that to satisfy this first requirement, Congress

must simply “mak[e] its intention to abrogate unmistakably clear in the language of the statute.” Coleman,

566 U.S. at 35 (alteration in original) (emphasis

added) (quoting Hibbs, 538 U.S. at 726); see Lane, 541

U.S. at 517 (asking “whether Congress unequivocally

expressed its intent to abrogate that immunity” (emphasis added) (quoting Kimel, 528 U.S. at 73)); Kimel,

528 U.S. at 73 (“To determine whether a federal statute properly subjects States to suits by individuals, we

apply a simple but stringent test: Congress may abrogate the States’ constitutionally secured immunity

from suit in federal court only by making its intention

unmistakably clear in the language of the statute.”

(emphasis added) (internal quotation marks omitted)

(quoting Dellmuth v. Muth, 491 U.S. 223, 228 (1989)));

Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 55

(1996) (“Congress’ intent to abrogate the States’ immunity from suit must be obvious from ‘a clear legislative statement.’” (emphasis added) (quoting Blatchford

v. Native Vill. of Noatak & Circle Vill., 501 U.S. 775,

786 (1991))); Atascadero State Hosp. v. Scanlon, 473

U.S. 234, 243 (1985) (“Congress must express its intention to abrogate the Eleventh Amendment in unmistakable language in the statute itself.” (emphasis

added)). Congress need not also declare which provision of the Constitution supports that intention.

Thus, this Court has repeatedly concluded that the

clear-intention-to-abrogate step of the inquiry is satisfied without examining whether Congress expressly

named the source of its abrogating authority. Indeed,

the Court has determined that this step is satisfied

even where Congress has not named the source of its

authority. In Kimel, for instance, this Court concluded

that the Age Discrimination in Employment Act

(ADEA) satisfied the clear-intention-to-abrogate requirement even though the ADEA’s provision purporting to abrogate immunity nowhere stated the constitutional authority underlying that abrogation. See 528

U.S. at 73-74 (citing 29 U.S.C. § 626(b)). The Court

concluded that, “[r]ead as a whole, the plain language

of these provisions clearly demonstrates Congress’ intent to subject the States to suit for money damages,”

id. at 74, even though the provisions of the ADEA the

Court was discussing were silent on the source of Congress’s authority to take that action. Cf. EEOC v. Wyoming, 460 U.S. 226, 243 n.18 (1983) (rejecting the

view that the ADEA “could not be upheld on the basis

of § 5 unless Congress ‘expressly articulated its intent

to legislate under § 5’” because Congress need not

“anywhere recite the words ‘section 5’ or ‘Fourteenth

Amendment’ or ‘equal protection’” (citation omitted)).

Likewise, in Lane, this Court determined that the

first question—whether Congress clearly stated its intention to abrogate immunity—was “easily answered”

in the affirmative where the legislation in question

stated only that “[a] State shall not be immune under

the eleventh amendment . . . from an action in Federal

or State court of competent jurisdiction for a violation

of this chapter.” 541 U.S. at 518 (quoting 42 U.S.C.

§ 12202). The Court concluded that “that expression

of Congress’ intent to abrogate the States’ Eleventh

Amendment immunity” was adequate, and, in fact, no

party disputed that conclusion. Id.; cf. Garrett, 531

U.S. at 363-64 (same); Hibbs, 538 U.S. at 726 (concluding that “Congress satisfied the clear statement rule”

in the FMLA without considering whether Congress

stated the source of its authority to abrogate). 4

4 To be sure, the ADA and the FMLA elsewhere state that

Congress was acting, at least in part, under its Section 5 power,

see Lane, 541 U.S. at 516-18 (citing 42 U.S.C. § 12101(b)(4));

Hibbs, 538 U.S. at 726-27 & n.1 (citing 29 U.S.C. § 2601(b)(4)-(5)),

but this Court did not consider that fact in assessing whether

Congress had stated its intent to abrogate immunity with sufficient clarity.

This Court has also never required Congress to

have affirmatively identified the source of its abrogating authority at step two of the inquiry—that is, when

a court considers whether Congress had the authority

to abrogate immunity. In Kimel, for instance, this

Court did not consider whether Congress expressly

identified Section 5 as the basis for the ADEA’s abrogation of immunity when it explored “whether Congress effectuated that abrogation pursuant to a valid

exercise of constitutional authority.” 528 U.S. at 78.

Indeed, the Court considered the validity of the ADEA

under Section 5 even though the ADEA did not explicitly rely on that provision. See id. at 80-83.5 Accordingly, Congress need not specifically designate Section

5 as the source of its abrogating authority to effectively

exercise that authority.

The footnote in Florida Prepaid on which the court

below relied does not require otherwise. See Pet. App.

22a-23a (citing Fla. Prepaid, 527 U.S. at 642 n.7).

That footnote stated that “[s]ince Congress was so explicit about invoking its authority” under both Article

I and Section 5 of the Fourteenth Amendment without

also mentioning that it was acting under the Takings

Clause, “this omission precludes consideration of the

[Takings] Clause as a basis for the Patent Remedy

Act.” 527 U.S. at 642 n.7. For one thing, that footnote

did not indicate that Congress must identify the basis

of its authority to abrogate immunity; it stated merely

5 Although this Court ultimately concluded in Kimel that the

ADEA was not valid Section 5 legislation, that conclusion had

nothing to do with the ADEA’s failure to identify the source of its

abrogating authority; rather, the Court merely concluded, based

on “the ADEA’s legislative record,” that Congress’s decision to extend that “Act to the States was an unwarranted response to a

perhaps inconsequential problem.” 528 U.S. at 89. As explained

above, that is far from the case here.

that where Congress is “so explicit” about invoking a

particular source of its abrogating authority, that may

preclude the Court from exploring other possible bases

for such authority. But that is not the situation here.

Congress did not specify in the text of the CRCA that

it was enacting the law on some basis other than Section 5 of the Fourteenth Amendment, and there is

therefore no reason not to consider whether Congress

acted within its broad Section 5 power. Moreover, although the CRCA’s legislative history indicates that

Congress sought to rely in part on its Article I powers,

see Pet. App. 21a-22a, that same legislative history reflects that Congress was also concerned that copyright

infringement by States would “injur[e] the property

rights of citizens,” H.R. Rep. No. 101-887, at 5 (1989)

(Conf. Rep.)—rights guaranteed by the Fourteenth

Amendment. Thus, nothing precludes this Court from

holding that the CRCA is appropriate Section 5 legislation, and, indeed, the Court should do just that.

In fact, this Court has recently reaffirmed that the

“question of the constitutionality of action taken by

Congress does not depend on recitals of the power

which it undertakes to exercise.” Nat’l Fed’n of Indep.

Bus. v. Sebelius, 567 U.S. 519, 570 (2012) (NFIB)

(quoting Woods v. Cloyd W. Miller Co., 333 U.S. 138,

144 (1948)). In NFIB, this Court upheld a provision of

the Affordable Care Act under Congress’s taxing

power, even though the provision purported to impose

“a ‘penalty,’ not a ‘tax.’” Id. at 564. In doing so, the

Court gave “practical effect to the Legislature’s enactment,” id. at 570, and rejected an argument to strike

down the law merely “because Congress used the

wrong labels,” id. at 569. The Court explained that the

conclusion that a payment would be constitutional as

a tax if it were enacted without any labels “should not

change simply because Congress used the word ‘penalty’ to describe the payment.” Id.

The same reasoning applies here. An abrogation of

immunity that would be valid if Congress explicitly invoked the Fourteenth Amendment is not invalidated

where Congress fails to do so. The Florida Prepaid

footnote cannot be read to require Congress to recite

the source of its abrogating authority when this

Court’s precedents make clear that such a recital is

generally not required and when the Court has repeatedly demonstrated that an abrogation analysis does

not inquire into whether Congress made such a recital.

Thus, the CRCA constitutionally abrogates state sovereign immunity under Section 5 of the Fourteenth

Amendment. That the CRCA does not expressly identify Section 5 as the source of its abrogating authority

does not change this conclusion.

CONCLUSION

For the foregoing reasons, the judgment of the

court of appeals should be reversed.

Respectfully submitted,

ELIZABETH B. WYDRA

BRIANNE J. GOROD*

DAVID H. GANS

DAYNA J. ZOLLE**

CONSTITUTIONAL

ACCOUNTABILITY CENTER

1200 18th Street NW

Suite 501

Washington, D.C. 20036

(202) 296-6889

brianne@theusconstitution.org

Counsel for Amicus Curiae

August 13, 2019

* Counsel of Record

** Not admitted in

D.C.; supervised by

principals of the firm

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.