The Alden Trilogy: praise and protest.

AuthorHartley, Roger C.

    The 1998 Supreme Court Term was relatively unremarkable(1) until a final day blitz in which the Court announced the Alden Trilogy, named for Alden v. Maine,(2) the lead case in a trio of federalism cases. Decided by identical 5-4 votes, these cases immunize state governments from citizen damage suits alleging a violation of federal rights. Alden v. Maine shields states from such private damage actions brought in state court.(3) Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank (College Savings Bank I), provides states immunity from patent infringement suits brought in federal court.(4) Similarly, College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board (College Savings Bank II) insulates states from private damage actions brought in federal court alleging unfair competition under the federal trademark law.(5)

    This "Tuesday Trilogy"(6) declared portions of three federal statutes unconstitutional,(7) overturned one thirty-five-year-old decision of the Court,(8) reversed the outcome in another,(9) and precipitated a forty-five-minute "scene of extraordinary drama"(10) at the Court the morning the cases were announced from the bench. Each Justice who wrote a majority opinion read excerpts from it, as did the authors of the various dissenting opinions. Several Justices digressed from text during their oral presentations.(11) As one account put it, the exchange was "[n]ot exactly a street brawl episode of `The Jerry Springer Show,' but this was about as close to high drama as it gets in the distinguished, white-columned building that most Americans equate with the essence of justice."(12) Another report observed that "[t]he rhetorical volleys ... held the audience of tourists and government lawyers spellbound."(13) The opinions' strident(14) and sometimes sarcastic(15) language revealed a deep division within the Court as the two sides attempted to describe their irreconcilable understanding of the founding generation's intent regarding state sovereign immunity.

    The general media appraisal of the Alden Trilogy has emphasized two themes: the interpretive process used by the Court and the political power redistribution the Trilogy achieved. Opponents, primarily, cite process. They lament the absence of textual support in the majority's opinion(16) or criticize the majority's historical understanding.(17) Regarding the Trilogy's redistribution of political power between the federal and state governments, the Trilogy has received strong praise from those who delight in the states' new-found freedom from federal control that these cases seem to provide.(18) Others object to what they perceive as an untoward judicial activism manifested in these cases,(19) particularly what opponents conclude is an arrogant disregard for Congress and the majority rule foundations of our constitutional system.(20)

    In this Article, I discuss the Trilogy's interpretive process and its redistribution of political power, but do not linger on either. This Article is written in praise of the Alden Trilogy, but praise coupled with protest. I make three essential points. First, the Trilogy deserves praise as a pragmatic masterpiece. Through it, the Court shrewdly avoided a constitutional quagmire that easily could have created a federalism crisis.

    Second, I argue that the Alden Trilogy is an exemplar of misdirection. Here I render reluctant praise, like that given to an opposing baseball team's dramatic double-play. Though one dislikes the outcome, one cannot deny the skill just witnessed. In this regard, I show that through its deft deployment of state sovereign immunity doctrine, the Supreme Court has enhanced its own power as well as that of the federal Executive Branch -- to the detriment of Congress's lawmaking power. Moreover, although the Trilogy focuses on Congress's remedial authority, it thwarts Congress's substantive lawmaking capacity.

    Third, I show that the Trilogy has a dark side. Today, no individual can bring a damage action in any court against an unconsenting state to enforce federal statutory rights enacted pursuant to Congress's Article I powers.(21) This situation creates a profoundly disquieting enforcement gap that threatens to undermine the rule of law values in our constitutional scheme, particularly the principle that for every right there ought to be a remedy.

    To situate this Article's praise and protest of the Alden Trilogy doctrinally, I begin with an abridged summary of the federalism developments of the past several decades, developments that preordained the confrontation that resulted in the Trilogy. Next, I describe the holdings of each Trilogy case, including the interpretive frameworks adopted, and identify unresolved issues generated by these holdings. I then turn to my principal undertaking: consideration of 1) how the Trilogy pragmatically avoided a constitutional crisis; 2) how the three cases masterfully invite attention in one direction while moving the law in another; and 3) how these cases raise rule of law concerns by creating a disjunction between Congress's substantive and remedial authority.


    Even though the story has been reported widely, it is worth pausing to review the major developments that led to the decisions in the Alden Trilogy. In 1971, in Younger v. Harris,(22) the Burger Court reinvigorated the states' rights values in the Constitution when it denied a request to enjoin a pending state court criminal proceeding, notwithstanding the federal plaintiffs' allegation that the underlying state criminal statute was facially unconstitutional. Justice Black, writing for the majority in Younger, rejected the unarticulated assumption of these requests for injunctive relief: that state courts will not be as prone as federal courts to vindicate constitutional rights promptly and effectively. That assumption, he argued, is disrespectful of the states and disruptive of "Our Federalism," described as the conviction that "the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways."(23)

    By 1976, the Court's composition had changed sufficiently to apply this new federalism in a most dramatic way. Overruling precedent,(24) the Court decided National League of Cities v. Usery,(25) holding that Congress lacked authority to impose the requirements of the Fair Labor Standards Act (FLSA)(26) on state and local governments. As Justice Powell later explained this development, "federal overreaching under the Commerce Clause undermines the constitutionally mandated balance of power between the states and the federal government, a balance designed to protect our fundamental liberties."(27) The National League of Cities doctrine developed into a complex weighing of the respective interests of the states and the federal government.(28) The Court balanced the cost of exempting states from the reach of federal law(29) against the injury done to the states if forced to comply with federal enactments.(30) A key consideration became whether "the States' compliance with the federal law would directly impair their ability `to structure integral operations in areas of traditional governmental functions."(31)

    In San Antonio Metropolitan Transit Authority v. Garcia,(32) decided in 1985, the Court again changed course, reversing National League of Cities. A 5-4 majority concluded that National League of Cities and its progeny were unsound in principle and unworkable in practice. The majority reasoned that the "safeguards inherent in the structure of the federal system" adequately protect states' interests.(33) Writing for the dissent in Garcia, Justice Powell rejected the proposition that federal political officials, invoking the commerce power, could be trusted to be the arbiters of the structural limitations on their authority.(34) Justice Kennedy subsequently sounded that same battle cry, most notably in his concurring opinion in United States v. Lopez.(35) The national political process, he argued, inherently is unreliable as a source of protection of the states' sovereignty interest.(36) In a short dissent in Garcia, Justice Rehnquist protested that the majority had rejected a salutary principle "that will, I am confident, in time again command the support of a majority of this Court."(37)

    Chief Justice Rehnquist's prediction has begun to come to fruition. Garcia has not been reversed explicitly, but the years subsequent to Garcia have witnessed increased reliance on a federalist interpretive framework in the Court's decisions. Richard Fallon's exquisite treatment of the subject explains that under the regime of this framework, "states emerge as sovereign entities against which federal courts should exercise only limited powers, and state courts, which are presumed as fair and competent as federal courts, stand as the ultimate guarantors of constitutional rights."(38) This effort to reorient constitutional law has manifested itself widely(39) but no more profoundly than in the law of state judicial immunity.

    Literally read, the Eleventh Amendment(40) strips federal courts of Article III diversity jurisdiction when a state is a defendant.(41) It does not speak to federal question jurisdiction. For at least one hundred years, however, the Court has held that states' protections against federal jurisdiction is much broader than the mere text of the Eleventh Amendment. Since Hans v. Louisiana.(42) the Court has "reaffirmed that federal jurisdiction over suits against unconsenting States `was not contemplated by the Constitution when establishing the judicial review power of the United States.'"(43) Accordingly, the Eleventh Amendment bars federal courts from hearing, among other things, cases against a state brought by one of its own citizens asserting a federal right.(44)

    A minority on the Court mounted a...

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