Janice A. Oser, Esq.

A previous Eldercountry Lawyer column (July/August 2009) concluded with a statement that twists and turns of the U.S. Supreme Court’s holdings on state sovereignty, as limiting Congress’ powers, were a tale for another day. That day has arrived. Twenty states have filed lawsuits challenging the recently enacted health care law.

The suit filed by Florida state officials minutes after President Obama signed the health care bill has been described as the one that “could carry the most weight, and may be on the fastest track in the most advantageous venue” (“Florida Suit Rated Best as Challenger to Care Law,” by Kevin Sack, the New York Times, May 11, 2010).

The suit focuses on Congress’ power under Article 1 of the Constitution to regulate interstate commerce. “State sovereignty” or “states’ rights,” under the Tenth and Eleventh Amendments to the Constitution have become rallying cries for those seeking to narrow Congress’ powers under this Constitutional provision.

In the Tenth Amendment to the Constitution, the Founding Fathers created a delicate constitutional balance reflecting the “federalist” and “anti-federalist” points of view. Many federalists supported a centralized national authority, while many anti-federalists supported a confederation of sovereign states allied only for the purpose of mutual defense.

The Articles of Confederation, which governed the 13 states in national matters until 1787, created a national government that was too weak to defend itself and could not raise or collect revenue. The federal Constitution created a much stronger centralized government, but the states retained some powers.

The Tenth Amendment reserves to the states all powers not granted to the federal government by the Constitution, except for those powers that the Constitution prohibits the states from exercising.

The Eleventh Amendment limits the power of federal courts to hear lawsuits against state governments brought by the citizens of another state (or the citizens of a foreign country). (The Supreme Court has interpreted this Amendment also to bar federal courts from hearing lawsuits instituted by citizens of the state being sued and lawsuits initiated by the governments of foreign countries.)

Exceptions to the Eleventh Amendment have been recognized by the Supreme Court. One permits Congress to abrogate a state’s immunity from being sued in federal court by enacting legislation pursuant to its enforcement powers under the Equal Protection and Due Process Clauses of the Fourteenth Amendment.

Consequently, the Fourteenth Amendment has also entered into the stew of Supreme Court cases that have bubbled up in the last two decades or so challenging these Congressional powers.

Section 1 of the Fourteenth Amendment makes all persons born within the U.S. citizens of both the United States and the states where they reside. It prohibits states from abridging privileges or immunities of United States citizens, and from depriving persons of due process of law or equal protection of the laws.

Article 1, Section 8, Clause 3 of the Constitution explicitly authorizes Congress to regulate commerce “among the several States” (the “Commerce Clause”). The concluding clause of Article 1 authorizes Congress to make all laws “necessary and proper” for executing all the powers listed in the preceding clauses of Section 8 as well as all other powers granted by the Constitution to the federal government, its departments, and its officers (the “necessary and proper clause”).

The Commerce Clause has been a Constitutional basis for much of the federal legislation that has shaped this country, and the Tenth Amendment in particular has had its ups and downs as a basis for striking down Congressional legislation on Constitutional grounds.

A “new federalism” has looked to the Tenth and Eleventh Amendments to narrow the scope of Congress’ authority. In what has been described as the Rehnquist federalism revolution, the Supreme Court, in 5-4 decisions, (1) struck down a federal law banning the possession of guns near schools (United States v. Lopez, 1995); (2) made states immune from suits by state employees for violations of federal labor law (Alden v. Maine, 1999); (3) ruled that Congress lacked the authority to bind state governments to the federal law, the Age Discrimination in Employment Act, that bars discrimination against older workers (Kimel v. Florida Board of Regents, 2000); (4) decided that state workers cannot sue for damages for violations of the federal Americans With Disabilities Act (Board of Trustees of the University of Alabama v. Garrett, 2001).

The march of the new federalism seemed to hit a bump in the road, at least, with a 6-3 Supreme Court ruling in 2003 that surprised legal commentators. The Court upheld the application of the federal Family and Medical Leave Act to state employees (Nevada Dept. of Human Resources v. Hibbs, 2003).

In Hibbs, the Court held that Congress may abrogate the States’ Eleventh Amendment immunity from suit in federal court pursuant to a valid exercise of its power under the Fourteenth Amendment.

Chief Justice Rehnquist delivered the Court’s opinion.

Concerning this ruling, Linda Greenhouse, who covered the Supreme Court for many years for the New York Times, wrote that “the master himself [Rehnquist] blinked when his revolution got too close to the core of issues that people really care about” (“Which Side History,” the Opinionator blog, New York Times, March 25, 2010).

Legal handicappers differ on the prospects for success of the lawsuits challenging the constitutionality of the new Patient Protection and Affordable Health Care Act. In the online blog, Linda Greenhouse referred to polls showing the public rallying around the new health care law, and found a prediction that the Supreme Court would find the new health care legislation unconstitutional to be “in the realm of fantasy.”

She noted that hardly anyone had heard of the law the Court had invalidated in the possession-of-guns-near-schools case (Lopez), but that plenty of people had heard of the Family and Medical Leave Act, which Rehnquist voted to uphold (Hibbs). She also stated that "Chief Justice Roberts appears particularly in tune with the exercise of national power.”

We’ll see.