Federalism, State Sovereignty, and the Constitution: Basis and Limits of Congressional Power

Congressional research reportSep 23, 2013

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Federalism, State Sovereignty, and the

Constitution: Basis and Limits

of Congressional Power

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September 23, 2013

Congressional Research Service

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RL30315

Federalism, State Sovereignty, and the Constitution: Basis and Limits of Congressional Power

Summary

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, in conjunction

with the Necessary and Proper Clause, 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.

Further, if the condition relates to the creation of a “new and independent” program, and if the

amount to be withheld represents a significant portion of a state’s overall budget, then such

condition will be found to violate federalism principles.

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Federalism, State Sovereignty, and the Constitution: Basis and Limits of Congressional Power

Contents

Powers of the States ......................................................................................................................... 1

Powers of the Federal Government ................................................................................................. 1

The Commerce Clause ..................................................................................................................... 3

The Necessary and Proper Clause ................................................................................................... 8

The Fourteenth Amendment .......................................................................................................... 10

The Tenth Amendment ................................................................................................................... 16

Eleventh Amendment and State Sovereign Immunity ................................................................... 18

The Spending Clause ..................................................................................................................... 21

Conclusion ..................................................................................................................................... 23

Contacts

Author Contact Information........................................................................................................... 24

Congressional Research Service

Federalism, State Sovereignty, and the Constitution: Basis and Limits of Congressional Power

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

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

power generally, and focuses on a number of these “federalism” cases.1 Issues addressed include

congressional power under the Commerce Clause and the Fourteenth Amendment; limits on

congressional powers, such as the Tenth Amendment; state sovereign immunity under the

Eleventh Amendment; and grant condition imposed under the Spending Clause. 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 exercised.

Powers of the States

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

imports and exports2 or the conduct of foreign affairs.3 Further, states must respect the decisions

of courts of other states,4 and are limited in their ability to vary their territory without

congressional permission.5 In addition, the Supreme Court has found that states are limited in

their ability to burden interstate commerce.6

Powers of the Federal Government

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, Section 8, cl. 18 provides that “[t]he Congress shall have power ... To make all

laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and

Portions of this report were prepared by Kristin Thornblad, legal intern.

See, e.g., U.S. Const. Art. I, §10, cl. 2 (“No State shall ... lay any Imposts or Duties on Imports or Exports.”)

“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.

“Full Faith and Credit shall be given in each State to the public Acts, Records, and Judicial Proceedings of every other

State. And the 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.

“... [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 of the Congress.” U.S. Const., Art. IV, §3, cl. 1.

Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824).

Article I, Section 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, Section 1, does not grant to

Congress “all legislative power,” but rather grants to Congress only those specific powers enumerated in Section 8 and

elsewhere in the Constitution.

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all other Powers vested by this Constitution in the Government of the United States, or in any

Department or Officer thereof.” Early in the history of the Constitution, the Supreme Court found

that this clause enlarges rather than narrows the powers of Congress.8

Congress has broad financial powers, including the power to tax and spend in order to pay debts

and provide for the common defense and general welfare of the United States.9 Congress also has

the power to borrow money and to appropriate money from the United States Treasury.10 The

purposes for which Congress may tax and spend are very broad and are not limited by the scope

of other enumerated powers under which Congress may regulate.11 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

power to regulate commerce,12 to establish bankruptcy laws,13 to coin money,14 to punish

counterfeiters,15 to establish post offices and post roads,16 and to grant patents and copyrights.17

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

under which immigrants may become citizens,18 and to protect the rights of those persons who

have citizenship. The Fourteenth Amendment gives Congress the power to enforce the guarantees

of the Fourteenth Amendment, including the right to due process and equal protection.19 This

power extends specifically to the power of Congress to protect the rights of citizens who are at

least 1820 to vote regardless of race, color, previous condition of servitude,21 or sex.22 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.”

“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.

“No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” U.S. Const.,

Art. I, §9, cl. 7.

United States v. Butler, 297 U.S. 1 (1936).

“To regulate commerce with foreign Nations, and among the several States, and with the Indian Tribes.” U.S. Const.,

Article I, §8, cl. 3.

U.S. Const., Art. I, §8, cl. 4.

U.S. Const., Art. I, §8 cl. 5.

U.S. Const., Art. I, §8, cl. 6.

U.S. Const., Art. I, §8, cl. 7.

U.S. Const., Art. I, §8, cl. 8.

“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.

“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. The Congress shall have

power to enforce, by appropriate legislation, the provisions of this article. Id. at §5.

U.S. Const., Amend. XXVI.

U.S. Const., Amend. XV.

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Federalism, State Sovereignty, and the Constitution: Basis and Limits of Congressional Power

may also regulate the time, place, and manner of federal elections,23 and judge the result of such

elections.24 Congress also has a number of other powers relating to elections and appointments.25

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

territories.26 Congress is limited by the Fifth Amendment, however, in the taking of private

property without compensation.27 Congress has numerous powers related to war and the

protection of the United States and its sovereign interests.28

The Commerce Clause

As noted above, the U.S. Constitution provides that Congress shall have the power to regulate

commerce with foreign nations and among the various states.29 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,30 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

cause to believe, is a school zone.”31 In Lopez, the Court held that, because the act neither

regulated a commercial activity nor contained a requirement that the possession was connected to

(...continued)

U.S. Const., Amend. XIX.

“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).

“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.

See, e.g., U.S. Const., Amend. XIV, §2 (apportionment).

“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.

“[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.

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.... ”).

U.S. Const., Art. I, §8, cl. 3.

514 U.S. 549 (1995).

18 U.S.C. §922(q)(1)A).

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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

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

to the framers of the Constitution.32 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

means of facilitating trade and of raising revenue.33 While the Anti-Federalists argued that the

new Constitution gave too much power to the federal government, they apparently did not raise

significant objections to the granting of power to regulate interstate commerce.34

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

sole restraints” on this power.35 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

limitation of the Commerce Clause on a state’s ability to regulate commerce.36

It has been suggested that the Commerce Clause should be restricted to the regulation of “selling,

buying, bartering and transporting.”37 In fact, much of the federal legislation approved of by the

Supreme Court early in the 20th century did relate to issues such as the regulation of lottery

tickets,38 the transporting of adulterated food,39 and the interstate transportation of prostitutes.40

Moreover, during the early 1900s, the Supreme Court struck down a series of federal statutes that

attempted to extend commerce regulation to activities such as “production,” “manufacturing,”41

and “mining.”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

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 477-528

(1987).

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.”)

Greenspan, supra note 32 at 1023.

Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 197-98 (1824).

See, e.g., Brown v. Maryland, 25 U.S. (12 Wheat.) 419 (1827).

United States v. Lopez, 514 U.S. at 593 (Thomas, J., dissenting).

Champion v. Ames (The Lottery Case), 188 U.S. 321 (1903).

Hipolite Egg Co. v. United States, 220 U.S. 45 (1911).

Hoke v. United States, 227 U.S. 308 (1913).

United States v. E.C. Knight Co., 156 U.S. 1, 12 (1895).

Carter v. Carter Coal Co., 298 U.S. 238, 304 (1936).

301 U.S. 1 (1937).

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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

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

to achieving its goals of regulating interstate commerce.45 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

susceptible to regulation.46 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

interstate commerce.47 Under the reasoning of these cases, the Court has upheld many diverse

laws, including laws regulating production of wheat on farms,48 racial discrimination by

businesses,49 and loan-sharking.50

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 its powers under the

Commerce Clause.51 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)

regulation of economic activities that “affect” commerce.52

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

commerce.53 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

301 U.S. at 41.

United States v. Darby, 312 U.S. 100 (1941)(approving legislation relating to working conditions).

312 U.S. at 121.

Wickard v. Filburn, 317 U.S. 111 (1942).

Id.

See Heart of Atlanta Motel v. United States, 370 U.S. 241 (1964); Katzenbach v. McClung, 379 U.S. 241 (1964).

Perez v. United States, 402 U.S. 146 (1971).

Herman Schwartz, Court Tries to Patrol a Political Line, Legal Times 25 (May 8, 1995).

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.

514 U.S. at 559.

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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

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

consumption.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

school, neither by itself nor in the aggregate affected commercial transactions.55 Further, the

statute contained no requirement that interstate commerce be affected, such as that the gun had

been previously transported in interstate commerce.56 Nor was the criminalization of possession

of a gun near a school part of a larger regulatory scheme that did regulate commerce.57 Finally,

the Court indicated that criminal law enforcement is an area of law traditionally reserved to the

states.58 Consequently, the Court found that Congress did not have the authority to pass the GunFree 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

existing federal laws, which have traditionally been drafted to be consistent with this case law,59

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

down in United States v. Morrison.60

In Morrison, the Court evaluated whether 42 U.S.C. Section 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 activities that substantially affect interstate commerce.61 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

Wickard v. Filburn, 317 U.S. 111 (1942).

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.

514 U.S. at 561.

514 U.S. at 560.

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”).

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.”)

529 U.S. 598 (2000).

Id. at 609.

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Federalism, State Sovereignty, and the Constitution: Basis and Limits of Congressional Power

economic or 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

compliance with the California Compassionate Use Act of 1996.64 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

commerce, and thus could not be regulated under the Commerce Clause.65

In upholding the application of the Controlled Substances Act in the Raich case, the Court relied

on its decision in Wickard v. Filburn,66 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

Congress if it exerts a substantial economic effect on interstate commerce.”67 The Wickard case

upheld the application of the Agricultural Adjustment Act of 1938,68 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

retained for consumption on a farm.69 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

combined with wheat from other farmers similarly situated.70

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. Section 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

Section 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 Section 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).

545 U.S. 1 (2005).

Cal. Health & Safety Code Ann §11362.5 (West Supp. 2005) (providing for the legal possession of medical

marijuana by a patient or primary caregiver, upon the written or oral recommendation of a physician).

545 U.S. at 28.

317 U.S. 111 (1942).

Id. at 125.

52 Stat. 31.

Id. at 128-29.

Id. at 127.

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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

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

transactions in the interstate market.72 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

necessary and proper” to effectuate its powers.

The Necessary and Proper Clause

The Constitution provides Congress not only enumerated powers, but also the ability to pass laws

to make such powers effective. While such a power might have been implied of necessity even

without an explicit textual basis in the Constitution, the Founding Fathers specifically included

congressional authority to “make all Laws which shall be necessary and proper”73 to effectuate its

powers. Although the extension of congressional power under this clause is not an independent

basis for legislation, the provision has been integral to a broad interpretation of other

congressional powers. For instance, as discussed below, the expansive nature of modern

Commerce Clause doctrine may actually be a reflection of Necessary and Proper Clause

jurisprudence.

Sometimes, the Court’s reliance on the Necessary and Proper Clause in a particular case is only

briefly noted, or may even exist sub silentio. For instance, the majority opinion in the case of

Gonzales v. Raich (discussed above) emphasized that, in evaluating the scope of Congress’s

authority under the Commerce Clause to regulate medicinal marijuana, the Court need only find

that Congress had a “rational basis” to find a link between the legislation and the Commerce

Clause. The Court then went on to note that in such cases “Congress was acting well within its

authority to ‘make all Laws which shall be necessary and proper’ to ‘regulate Commerce ...

among the several States.’”74 This language then served to allow the Court to approve the

restriction of medical marijuana as one component of a larger economic regulatory scheme.

This passing reference to the Necessary and Proper Clause may obscure its historical significance

to Commerce Clause litigation. Writing in concurrence in Raich, Justice Scalia argued that it is

more accurate to characterize the expansive “substantial effects” prong of Commerce Clause

analysis as predominantly based on the Necessary and Proper Clause. He noted that the current

description of the “substantial effects” prong is misleading because, unlike the channels,

instrumentalities, and agents of interstate commerce, activities that substantially affect interstate

commerce are not themselves part of interstate commerce, and thus the power to regulate them

cannot come from the Commerce Clause alone. Rather, “as this Court has acknowledged ...

545 U.S. at 19.

Id.

U.S. Const., Art. I, §8, cl. 18.

545 U.S. at 22.

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Congress’s regulatory authority over intrastate activities that are not themselves part of interstate

commerce (including activities that have a substantial effect on interstate commerce) derives from

the Necessary and Proper Clause.”75 In fact, Justice Scalia argues that, in some cases, the

Necessary and Proper Clause can go beyond existing doctrines of the Commerce Clause to

regulate even those intrastate activities that do not themselves substantially affect interstate

commerce.

Another area where the Court has provided a similarly broad interpretation of an Article I

congressional power based on the Necessary and Proper Clause is the Spending Clause.76 In Sabri

v. United States,77 the Court considered whether the federal government could punish the bribery

of state, local, and tribal officials if the governmental entities that employed them received at

least $10,000 in federal funds. The defendant, who was convicted of attempting to bribe a city

councilman to facilitate the building of a hotel and retail structure in Minneapolis, argued that the

statute in question had no federal nexus. The Court rejected this argument, holding that

Congress’s authority under the Spending Clause, when supplemented by the Necessary and

Proper Clause, allowed Congress to ensure that federal dollars not be diverted or undermined by

corruption. The Court held that it was not important if the federal funds received by the

governmental entity in question were not directly involved in a particular scheme, because

“money is fungible, bribed officials are untrustworthy stewards of federal funds, and corrupt

contractors do not deliver dollar-for-dollar value.”78

An even more expansive interpretation of the Necessary and Proper Clause, in this case as applied

to the entire federal criminal penal system (which derives from a variety of congressional

powers), is found in the Court’s opinion in United States v. Comstock.79 In Comstock, the Court

evaluated a federal statute which allowed for the civil commitment of a federal prisoner past the

term of his or her imprisonment, if that prisoner would have serious difficultly in refraining from

sexually violent conduct or child molestation. The statute contained no requirement that the

threatened future conduct would fall under federal jurisdiction, raising the question of what

constitutional basis could be cited for the enforcement of the statute.

The majority opinion in Comstock upheld the statute after considering five factors: (1) the historic

breadth of the Necessary and Proper Clause; (2) the history of federal involvement in this area;

(3) the reason for the statute’s enactment; (4) the statute’s accommodation of state interests; and

(5) whether the scope of the statute was too attenuated from Article I powers.80 The Court noted

that the breadth of the power was established by Justice Marshall in the case of McCulloch v.

Maryland,81 where the Chief Justice wrote: “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.”

(Scalia, J., concurring) (citations omitted).

Art. I, Section 8, cl. 1 provides that “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.”

541 U.S. 600 (2004).

541 U.S. at 606.

No. 08–1224 slip. op. (May 17, 2010).

Id. at 22.

4 Wheat. 316, 421 (1819).

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Previous federal involvement in the area included not only the civil commitment of defendants

who were incompetent to stand trial or who became insane during the course of their

imprisonment, but, starting in 1949, the continued confinement of those adjudged incompetent or

insane past the end of their prison term.

In upholding the sex offender statute, the Court found that protection of the public and the

probability that such prisoners would not be committed by the state represented a rational basis

for the passage of such legislation. The Court further found that the state interests were protected

by the legislation, as the statute provided for transfer of the committed individuals to state

authorities willing to accept them. Finally, the Court found that the statute was not too attenuated

from the Article I powers underlying the criminal laws which had been the basis for incarceration,

as it related to the responsible administration of the United States prison system.

The Fourteenth Amendment

Another significant source of congressional power is Section 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 of 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

passed immediately after the Civil War (the Thirteenth,82 Fourteenth, and Fifteenth83

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 Section 5 of the Fourteenth Amendment, however, has been

in flux over the years. In Katzenbach v. Morgan,84 the Court held that Section 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

persons who had reached 6th 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

U.S. Const., Amend. XIII (prohibiting slavery).

U.S. Const., Amend. XV (voting rights).

384 U.S. 641 (1966).

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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

Amendment right.

Subsequent Supreme Court cases, however, have limited the reach of Katzenbach. In Oregon v.

Mitchell,85 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,86 the Court struck down the Religious

Freedom Restoration Act (RFRA) as beyond the authority of Congress under Section 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 1990 case of Oregon v. Smith,87 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 Section 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

nonexistent problem.

The scope of the enforcement power under Section 5 of the Fourteenth Amendment also has

become important in cases where the Court has found that Congress has overreached its power

400 U.S. 112 (1970).

521 U.S. 507 (1997).

494 U.S. 872 (1990).

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under 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

law.88 However, the Supreme Court has also held that Congress can abrogate state sovereign

immunity under the Fourteenth Amendment.89 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 Section 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,90 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

misleading advertising under a provision of the Trademark Act of 1946 (Lanham Act),91 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 Section 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

Prepaid Postsecondary Education Expense Board v. College Savings Bank,92 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

specifically providing that states could be sued for patent violations,93 citing three sources of

constitutional authority: the Article I Patent Clause,94 the Article I Interstate Commerce Clause,95

and Section 5 of the Fourteenth Amendment. As the Court had previously precluded abrogation of

sovereign immunity through the exercise of Article I powers, the question became whether

See notes 90-104 and accompanying text, infra.

Seminole Tribe of Florida v. Florida, 517 U.S. 44, 65-66 (1996); See discussion infra notes 95-98 and accompanying

text.

527 U.S. 666 (1999).

15 U.S.C. §1125(a).

527 U.S. 627 (1999).

Patent and Plant Variety Protection Remedy Clarification Act (Patent Remedy Act), 35 U.S.C. §§271(a).

U.S. Const. Art. I, §8, cl. 8.

U.S. Const. Art. I, §8, cl. 3.

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Congress had the authority to pass patent legislation under Section 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 Section 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 Section 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

discrimination laws to the states. In Kimel v. Florida Board of Regents,96 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

Section 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

considered in the case of the Board of Trustees v. Garrett,97 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

previously shown a heightened sensitivity to arbitrary discrimination against the disabled.98

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).

531 U.S. 356 (2001).

Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985).

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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

Resources v. Hibbs.99 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

health condition.”100 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 Section 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

instance, in United States v. Morrison,101 discussed previously,102 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 Section 5

of the Fourteenth Amendment.

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

individuals.103 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

means adopted to that end.”104 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).

29 U.S.C. §2612(a)(1)(C).

101

529 U.S. 598 (2000).

102

See supra notes 60-61 and accompanying text.

103

See Shelley v. Kraemer, 334 U.S. 1, 13 (1948).

104

521 U.S. at 526.

100

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engaging in the violence itself, the Court found that the action could not be supported by

reference to the Fourteenth Amendment.105

The Court again considered the issue of Congress’s power under Section 5 of the Fourteenth

Amendment in Tennessee v. Lane.106 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

physical access to state courts.107 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 Section 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 denial of persons with disabilities of access to the courts.108

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

right of access to the courts.109 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

classifications the Court considered in Hibbs.110 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

prophylactic remedy.111

105

529 U.S. at 626.

541 U.S. 509 (2004).

107

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.

108

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.

109

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’s power under Section 5 of the Fourteenth Amendment.

110

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.

111

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

regulations. Id.

106

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Congress’s authority under Section 5 of the Fourteenth Amendment to abrogate states’ Eleventh

Amendment immunity appears strongest when the focus of the prophylactic measure at issue is

conduct that actually violates a constitutional right. In United States v. Georgia,112 a disabled state

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 Section 1 of the Fourteenth Amendment concerning his

prison treatment.113

The Tenth Amendment

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

government to regulate. Thus, in National League of Cities v. Usery,114 the Court struck down

federal wage and price controls on state employees as involving the regulation of core state

functions.115 The Court, however, overruled National League of Cities in Garcia v. San Antonio

Metropolitan Transit Authority.116 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

through the political process.117 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

which the federal government regulates the states. In New York v. United States,118 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

112

546 U.S. 151 (2006).

Id. at 157.

114

426 U.S. 833 (1976).

115

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.

116

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.”

117

See also South Carolina v. Baker, 485 U.S. 505 (1988).

118

505 U.S. 144 (1992).

113

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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

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

state’s executive branch officers. This case, Printz v. United States,119 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

that state courts must follow federal law, even if it overrides state laws or constitutions.120 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.

Thus, for instance, the Court recently held in Reno v. Condon121 that the Driver’s Privacy

Protection Act of 1994, which regulates the sale of personal information gathered from persons

seeking driver’s 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

suspect.

119

521 U.S. 898 (1997).

“The Constitution and the Laws of the United States ... shall be the Supreme Law of the Land; and the Judges in

every State shall be bound thereby.... ” U.S. Const., Art. VI, cl. 2.

121

528 U.S. 141 (2000).

120

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Eleventh Amendment and

State Sovereign Immunity

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

issue to be addressed here is the extent to which individuals can sue a state under federal law.122

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, in part, 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 U.S. or foreign 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

of Rights, was passed as a response to the case of Chisholm v. Georgia.123 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

“between a State and citizens of another State.”124 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

permission.

122

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.

123

2 U.S. (Dall.) 419 (1793).

124

U.S. Const., Art. III, §2.

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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

line of cases was ended by the case of Hans v. Louisiana.125

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.

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

seemed to support the concept.126 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

Seminole Tribe of Florida v. Florida,127 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

exercised was the Indian Commerce Clause,128 which is found in Article I. The Court had found

previously in Pennsylvania v. Union Gas,129 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

125

134 U.S. 1 (1890).

See Alden v. Maine, 527 U.S. 706, 2248 (1999).

127

517 U.S. 44 (1996).

128

U.S. Const., Art. I, §8, cl. 3.

129

491 U.S. 1 (1989).

126

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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

the logic behind this distinction is unclear,130 it means that in many cases, litigants suing states

will try to find a Fourteenth Amendment basis for federal legislation to defeat an Eleventh

Amendment defense.

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

state’s own courts. In Alden v. Maine,131 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

issue of whether state sovereign immunity extended to proceedings before federal agencies.132 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

profits.133 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

entities.”134 Consequently, the Court agreed that state sovereign immunity bars the FMC from

130

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 preexisting 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.

131

527 U.S. 706 (1999).

132

535 U.S. 743 (2002).

133

46 U.S.C. App. §1701 (1994 & Supp. V).

134

535 U.S. 760.

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adjudicating damage claims made by a private party against a nonconsenting state.135 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

process to determine whether to do so, but must rely on its investigatory powers.136 According to

Justice Breyer, “[t]he natural result is less agency flexibility, a larger federal bureaucracy, less fair

procedure, and potentially less effective law enforcement.”137

The Spending Clause

It should be noted that in many instances, the federal government still has the ability to influence

state behavior despite the constitutional limits discussed above.138 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 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

addressed in the Supreme Court case of South Dakota v. Dole.139 In Dole, Congress enacted the

National Minimum Drinking Age Amendment of 1984,140 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 power

under the Spending Clause to provide for the “general welfare.”141 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.

135

The Court noted that “[there are] numerous common features shared by administrative adjudications and judicial

proceedings.” 535 U.S. at 756. “[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.

136

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 adjudicative process to decide if the complaint is well

founded, and (2) if so, proceed to court to enforce the law.” Id. at 772.

137

Id.

138

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).

139

483 U.S. 203 (1987).

140

23 U.S.C. §158.

141

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”).

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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

prevents Congress from “commandeering” state legislatures142 and executive branch officials143 to

implement federal programs.144 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.

The Court did suggest, however, that there were limits to Congress’s power under the Spending

Clause. First, a grant condition must be related to the particular national projects or programs to

which the money was being directed.145 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 turns into compulsion,”146 which would suggest a violation of

the Tenth Amendment. 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

otherwise choose.

The case of National Federation of Independent Business (NFIB) v. Sebelius,147 however, seemed

to suggest that an alternative line of analysis might apply in some grant condition cases. In 2010,

Congress passed the Patient Protection and Affordable Care Act (ACA).148 The ACA, among

other things, required states to expand Medicaid eligibility or lose Medicaid funding. Following

the enactment of the ACA, state attorneys general and others brought several lawsuits challenging

various provisions of the act on constitutional grounds. The Supreme Court, in a controlling

opinion by Chief Justice Roberts,149 found that the enforcement mechanism for the ACA

142

New York v. United States, 505 U.S. 144 (1992).

Printz v. United States, 521 U.S. 898 (1997).

144

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).

145

483 U.S. at 207.

146

Id. at 211.

147

132 S. Ct. 2566 (2012).

148

P.L. 111-148.

149

In NFIB, seven Justices held that the requirement that states either comply with the requirements of the Medicaid

expansion under the ACA or lose all Medicaid funds violated the Tenth Amendment. However, these seven Justices

either wrote or joined one of two separate opinions on this issue, and did not join in either the reasoning or judgment of

the other opinion. The opinion of Chief Justice Roberts, which was joined by Justices Breyer and Kagan, appears to be

significantly narrower than the dissenting opinion authored by Justices Scalia, Kennedy, Thomas, and Alito, and is thus

controlling. Marks v. United States, 430 U.S. 188, 193 (1977)(“[w]hen a fragmented Court decides a case and no single

rationale explaining the result enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that

position taken by those Members who concurred in the judgments on the narrowest grounds’”) (citation omitted).

143

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Medicaid expansion, withdrawal of all Medicaid funds, was a violation of the Tenth

Amendment.150

As noted in Dole, the loss of federal funds associated with a grant condition cannot be so large

that the withholding of such funds is coercive. Justice Roberts’s opinion in NFIB, however,

addressed the slightly different question of whether a grant condition attached to a “new and

independent” program (here, the Medicaid expansion) that threatened the funding of an existing

program (here, Medicaid) violated the Tenth Amendment. It is unclear, therefore, whether the

NFIB decision was an application of the Dole analysis, or whether the combination of factors

presented in NFIB suggests an alternate line of reasoning.151

Justice Roberts’s opinion in NFIB held that, in the case of existing program funding being

conditioned on the adoption of a “new and independent” program, the amount of federal funds at

issue cannot represent a significant portion of a state’s budget or its withdrawal will be found to

be unconstitutionally coercive under the Tenth Amendment. Justice Roberts did not identify a

standard to determine what level of withholding funds would be coercive, or specify what kind of

distinguishing factors were necessary to such analysis. He did conclude, however, that withdrawal

of federal program funds which made up 10% of an average state’s budget represented a “gun to

the head” and was a form of “economic dragooning.”152

It is not clear, however, whether the confluence of factors at issue in the NFIB case is likely to be

present in future cases. Few federal programs, for instance, even approach the level of state

funding as does Medicaid; nor do there appear to be significant examples of grant conditions

requiring creation of “new and independent” programs in order to retain funding for a separate

program. Consequently, the NFIB case may have minimal effect on the validity of existing or

future federal grant conditions.

Conclusion

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 Section 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.

150

The Court went on to hold, however, that the remedy was to sever that enforcement mechanism, effectively making

state participation in the Medicaid expansion voluntary. 132 S. Ct. at 2607.

151

For an analysis of the relationship between the Dole and NFIB case, see CRS Report R42367, Medicaid and Federal

Grant Conditions After NFIB v. Sebelius: Constitutional Issues and Analysis, by (name redacted).

152

132 S. Ct. at 2604-05.

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Author Contact Information

(name redacted)

Legislative Attorney

[redacted]@crs.loc.gov, 7-....

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