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

^Pr^ep^ar^{ed f}^o^r^M^e^m^b^ers^an^d^Com^mⁱ^t^t^ees^of^C^ong^r^e^ss

The lines of authority between states and the federal government are, to a significant extent,
defined by the United States Constitution and relevant case law. In recent years, however, the
Supreme Court has decided a number of cases that would seem to reevaluate this historical
relationship. This report discusses state and federal legislative power generally, focusing on a
number of these “federalism” cases. The report does not, however, address the larger policy issue
of when it is appropriate—as opposed to constitutionally permissible—to exercise federal powers.
The U.S. Constitution provides that Congress shall have the power to regulate commerce with
foreign nations and among the various states. This power has been cited as the constitutional basis
for a significant portion of the laws passed by Congress over the last 50 years, and it currently
represents one of the broadest bases for the exercise of congressional powers. In United States v.
Lopez and subsequent cases, however, the Supreme Court did bring into question the extent to
which Congress can rely on the Commerce Clause as a basis for federal jurisdiction.
Another significant source of congressional power is the Fourteenth Amendment, specifically the
Equal Protection and Due Process Clauses. Section 5 of that amendment provides that Congress
has the power to enforce its provisions. In the case of Flores v. City of Boerne, however, the Court
imposed limits on this power, requiring that there must be a “congruence and proportionality”
between the injury to be remedied and the law adopted to that end.
The Tenth Amendment provides that “powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the
people.” While this language would appear to represent one of the most clear examples of a
federalist principle in the Constitution, it has not had a significant impact in limiting federal
powers. However, in New York v. United States and Printz v. United States, the Court did find that,
under the Tenth Amendment, Congress cannot “commandeer” either the legislative process of a
state or the services of state executive branch officials.
The Eleventh Amendment provides that “[t]he Judicial power of the United States shall not be
construed to extend to any suit in law or equity, commenced or prosecuted against one of the
United States by Citizens of another State.” Although this text is limited to preventing citizens
from bringing diversity cases against states in federal courts, the Supreme Court has expanded the
concept of state sovereign immunity further to prohibit citizens generally from bringing suits
against states under federal law generally. There are exceptions to this limitation, however, and
Congress also has a limited ability to abrogate such state immunity.
Finally, Congress has the power under the Spending Clause to require states to undertake certain
activities as a condition of receiving federal monies. Such conditions, however, must be related to
the underlying grant, and the financial consequences of non-compliance cannot be coercive.

Powers of the States..................................................................................................................1
Powers of the Federal Government...........................................................................................1
The Commerce Clause..............................................................................................................3
The Fourteenth Amendment......................................................................................................8
The Tenth Amendment............................................................................................................14
Eleventh Amendment and State Sovereign Immunity............................................................15
The Spending Clause...............................................................................................................19
Conclusion .............................................................................................................................. 21
Author Contact Information..........................................................................................................22

he lines of authority between states and the federal government are, to a significant extent,
defined by the United States Constitution and relevant case law. In recent years, however,
the Supreme Court has decided a number of cases that would seem to be a reevaluation of T

this historical relationship. This report discusses state and federal legislative power generally and
focuses on a number of these “federalism” cases. The report discusses state and federal legislative ¹
power generally, and focuses on a number of these “federalism” cases. Issues addressed include
congressional power under the Commerce Clause and the Fourteenth Amendment; limits on
congressional powers, such as the Tenth Amendment; and state sovereign immunity under the
Eleventh Amendment. The report does not, however, address the much larger federalism issue of
when it is appropriate—as opposed to constitutionally permissible—for federal powers to be
exercised.
States may generally legislate on all matters within their territorial jurisdiction. This “police
power” does not arise from the Constitution, but is an inherent attribute of the states’ territorial
sovereignty. The Constitution does, however, provide certain specific limitations on that power.
For instance, a state is relatively limited in its authority regarding the regulation of foreign ²³
imports and exports or the conduct of foreign affairs. Further, states must respect the decisions ⁴
of courts of other states, and are limited in their ability to vary their territory without ⁵
congressional permission. In addition, the Supreme Court has found that states are limited in ⁶
their ability to burden interstate commerce.
The powers of the federal government, while limited to those enumerated in the Constitution,⁷
have been interpreted broadly, so as to create a large potential overlap with state authority. For
instance, Article I, § 8, cl. 18 provides that “[t]he Congress will have power ... To make all laws
which will be necessary and proper for carrying into Execution the foregoing Powers and all
other Powers vested by this Constitution in the Government of the United States, or in any
¹
^P^o^rti^oⁿ^s^o^f^th^{is rep}^o^{rt w}^e^{re p}^r^ep^ar^e^d^by^{Kristin T}^horn^b^la^d,^le^g^a^{l inte}^rn.
²^S^ee,^e.^g^.^{, U}^.^S.^Co^ns^{t. A}^r^{t. I,}^§1^0,^c^l^{. 2 (“}^N^o^Sta^t^e^s^h^a^ll^{... la}^y^aⁿ^y^I^m^pos^{t or D}^u^tie^s^{on Im}^ports^{or Ex}^ports^.”⁾
³^“^N^{o Sta}^t^e^s^h^a^ll,^w^ithout^the^C^ons^eⁿ^{t of}^C^ong^r^e^s^s^,^la^y^aⁿ^y^D^u^t^y^of^T^onna^g^e^{, k}^e^e^p^T^r^oops^{, or}^Shi^p^s^o^f^W^a^r^{in tim}^e^of
^P^eace,^en^t^e^{r i}ⁿ^t^o^an^y^A^g^re^e^m^en^t^o^r^Co^m^p^act^wⁱ^t^h^an^o^t^h^e^r^S^t^at^e,^or^wⁱ^t^h^{a f}^o^rei^gⁿ^P^o^w^e^r,^o^r^en^{gage i}ⁿ^W^a^{r u}ⁿ^l^ess
^a^c^t^ua^lly^inv^a^de^{d, or in}^suc^h^im^mⁱ^ne^{nt Da}^ng^e^r^a^s^w^{ill not a}^d^m^{it of}^de^la^y^.^”^{U.S. Const., A}^r^{t. I,}^{§ 1}⁰^{, c}^l^{. 3.}
⁴^“F^u^l^l^F^aⁱ^t^h^aⁿ^d^Cre^dⁱ^t^sh^al^l^b^e^gi^venⁱⁿ^each^S^t^at^{e t}^o^t^h^{e pu}^b^lⁱ^c^A^c^t^s^,^Reco^rd^s,^and^Judⁱ^ci^al^P^r^o^ceedⁱⁿ^{gs o}^f^ever^y^o^t^h^e^r
^S^t^at^e.^Aⁿ^d^Con^g^ress^m^a^y^b^y^g^eⁿ^e^ral^L^a^w^s^p^r^escri^b^{e t}^h^{e M}^aⁿⁿ^e^{r i}ⁿ^w^hⁱ^c^h^su^ch^A^c^t^s^,^Reco^rd^s,^an^d^P^r^o^ceedⁱⁿ^{gs sh}^al^l^b^e
^p^r^o^v^ed^,^and^t^h^{e E}^f^f^e^ct^t^h^ereo^f^.^{” U}^.^S^.^Con^s^t^.^A^r^t^.^I^V^,^§¹^.^T^hⁱ^s^“F^u^l^l^F^aⁱ^t^h^and^Credⁱ^t^Cl^au^{se” gi}^{ves C}^oⁿ^g^{ress w}^h^at
^am^ounts^t^o^eⁿ^f^o^r^c^e^m^eⁿ^{t a}^u^thor^ity^ov^e^r^the^r^e^q^u^ir^e^d^r^e^c^o^gⁿ^it^io^{n by}^each^st^at^{e o}^f^t^h^{e j}^u^d^g^m^eⁿ^t^s,^reco^rd^s,^and^l^e^gi^sl^atⁱ^oⁿ
^of^othe^r^s^t^a^t^e^s^.
⁵^“^...^[^N^]^o^ne^w^Sta^t^e^s^h^a^{ll be}^f^o^rm^e^d^{or e}^r^e^c^t^e^d^w^ithin^the^J^u^rⁱ^s^d^ic^ti^on^of^aⁿ^y^othe^{r Sta}^t^e^;ⁿ^o^{r a}ⁿ^y^Sta^t^e^be^f^o^rm^e^d^by
^the^J^unc^ti^on^of^tw^{o or}^m^o^r^e^Sta^t^e^s^{, or}^pa^r^t^s^of^Sta^t^e^s^{, w}^ithout^the^C^ons^eⁿ^t^of^the^L^e^gⁱ^s^l^a^t^ur^e^s^of^the^Sta^t^e^s^c^onc^e^r^ne^{d a}^s
^w^e^{ll a}^s^Cong^re^s^s^.^”^U^.^{S. Cons}^{t., A}^r^{t. I}^V^,^§3,^c^l^{. 1}^.
⁶^Gⁱ^bbons^v^.^O^g^deⁿ^,²²^U^.^S^.⁽⁹^W^h^e^a^t^.)^{1 (}¹⁸²⁴⁾^.
⁷^A^r^tic^le^{I, §1,}^of^the^Co^nstitu^tioⁿ^prov^ide^s^t^h^a^t^“^A^{ll le}^gⁱ^sla^tiv^e^powe^r^{s he}^re^{in g}^r^aⁿ^te^{d sha}^l^l^be^v^e^ste^d^{in a}^Co^ng^re^{ss of}
^the^Unite^d^Sta^t^e^s^.”^Unlik^e^a^ty^pic^a^l^g^r^aⁿ^{t of}^pow^e^r^{to sta}^t^e^s^A^r^tic^le^{I, §}¹^,^doe^{s n}^o^{t g}^r^aⁿ^{t t}^o^C^ong^re^{ss “}^a^{ll le}^gⁱ^sla^tiv^e
^pow^e^r^,”^{but r}^a^t^h^e^r^g^r^aⁿ^ts^{to C}^ong^r^e^s^s^only^thos^e^s^p^e^cⁱ^fⁱ^c^pow^{ers en}^u^m^erat^edⁱⁿ^§⁸^aⁿ^d^el^sew^h^{ere i}ⁿ^t^h^{e Co}ⁿ^s^tⁱ^t^u^tⁱ^on^.

Department or Officer thereof.” Early in the history of the Constitution, the Supreme Court found ⁸
that this clause enlarges rather than narrows the powers of Congress.
Congress has broad financial powers, including the power to tax and spend in order to pay debts ⁹
and provide for the common defense and general welfare of the United States. Congress also has ¹⁰
the power to borrow money and to appropriate money from the United States Treasury. The
purposes for which Congress may tax and spend are very broad and are not limited by the scope ¹¹
of other enumerated powers under which Congress may regulate. On the other hand, Congress
has no power to regulate “for the general welfare,” but may only tax and spend for that purpose.
Congress also has broad authority over the commercial interests of the nation, including the ¹²¹³¹⁴
power to regulate commerce, to establish bankruptcy laws, to coin money, to punish ¹⁵¹⁶¹⁷
counterfeiters, to establish post offices and post roads, and to grant patents and copyrights.
The Commerce Clause, discussed in more detail below, is one of the most far-reaching grants of
power to Congress. Regulation of interstate commerce covers all movement of people and things
across state lines, including communication and transportation.
Congress has broad powers over citizenship, including the power to define the circumstances ¹⁸
under which immigrants may become citizens, and to protect the rights of those persons who
have citizenship. The Fourteenth Amendment gives Congress the power to enforce the guarantees ¹⁹
of the Fourteenth Amendment, including the right to due process and equal protection. This
power extends specifically to the power of Congress to protect the rights of citizens who are at ²⁰²¹²²
least 18 to vote regardless of race, color, previous condition of servitude, or sex. Congress
⁸
^A^s^sta^t^e^d^b^y^Chie^f^Justic^e^Ma^rsha^{ll in Mc}^C^u^lloc^h^v^.^Ma^ry^la^{nd, 1}⁷^{U.S. (}⁴^W^h^e^a^t^{.) 3}^{16 (}¹⁸¹⁹⁾^{: “}^L^e^t^the^eⁿ^{d be}
^le^g^itim^a^t^e^,^le^{t it be}^w^ithin^the^sc^o^p^e^of^the^Co^nstit^utio^{n, a}^{nd a}^l^l^m^e^aⁿ^{s w}^h^ic^{h a}^r^e^a^ppro^p^ria^t^e^,^w^h^ic^h^a^r^e^plaⁱ^nly^a^d^a^p^te^d
^{to t}^h^a^t^eⁿ^d^,^w^h^ic^{h a}^r^eⁿ^o^{t pr}^oh^ibit^e^d^{, b}^u^{t c}^o^{nsist w}^ith^t^h^e^le^tte^{r a}ⁿ^d^spirit^of^the^Const^itutⁱ^oⁿ^{, a}^r^e^c^ons^tituti^ona^l.”
⁹^“^T^he^C^ong^r^e^s^s^s^h^a^{ll ha}^v^e^Pow^e^r^T^o^lay^a^{nd c}^o^lle^c^t^T^a^x^e^s^,^D^u^tie^s^,^I^m^pos^ts^a^{nd Ex}^cⁱ^s^e^s^,^{to pa}^y^the^D^e^bts^a^nd^pr^ovⁱ^d^e
^f^o^r^the^c^o^m^m^{on D}^e^f^e^nc^e^a^{nd g}^e^ne^r^a^{l W}^e^l^f^a^r^e^of^the^Uⁿ^ite^{d S}^t^a^t^e^s^{; but}^a^{ll D}^u^tⁱ^e^s^{, I}^m^pos^ts^a^{nd Ex}^cⁱ^s^e^s^s^h^a^{ll be}^uⁿ^if^or^m
^thr^o^ug^ho^{ut t}^h^e^Uⁿ^ite^{d Sta}^t^e^s^.”^U^.^{S. C}^o^ns^{t., A}^r^{t. I}^,^§8^{, c}^l^.^1.
¹⁰^“^N^{o Mo}^ne^y^s^h^a^{ll be}^dr^a^w^{n f}^r^o^m^the^T^r^e^a^s^ur^y^,^{but i}ⁿ^C^o^ns^e^que^nc^e^of^A^ppr^opr^ia^ti^ons^m^a^de^by^L^a^w^.^”^U^.^{S. C}^o^ns^t.,
^A^r^{t. I, §9,}^c^l^{. 7}^.
¹¹^Uⁿ^ite^d^Sta^t^e^s^v^.^B^u^tle^r^,²⁹^{7 U}^.^S.^{1 (}¹⁹³⁶⁾^.
¹²^“T^o^regu^l^a^t^e^co^mm^erc^e^wⁱ^t^h^f^o^rei^gⁿ^Natⁱ^oⁿ^s^,^an^{d am}^oⁿ^g^t^h^{e sever}^a^l^S^t^at^es,^an^d^wⁱ^t^h^t^h^{e Ind}ⁱ^{an T}^rⁱ^b^es.^”^U.^S^.^Con^s^t^.^,
^A^r^tic^le^I^,^{§ 8, c}^l^.^3.
¹³^U^.^{S. C}^ons^t.^{, A}^r^{t. I, §}⁸^{, c}^l^.^4.
¹⁴^U^.^{S. C}^ons^t.^{, A}^r^{t. I, §}⁸^c^l^.^5.
¹⁵^U^.^{S. C}^ons^t.^{, A}^r^{t. I, §}⁸^{, c}^l^.^6.
¹⁶^U^.^{S. C}^ons^t.^{, A}^r^{t. I, §}⁸^{, c}^l^.^7.
¹⁷^U^.^{S. C}^ons^t.^{, A}^r^{t. I, §}⁸^{, c}^l^.^8.
¹⁸^“^T^he^Cong^re^s^s^s^h^a^{ll ha}^v^e^pow^e^r^{... T}^o^e^s^ta^blis^h^aⁿ^unif^o^rm^Rule^o^f^N^a^tura^liz^a^tion.”^U^.^{S. C}^ons^t^{., A}^r^{t I, §}^8,^c^l^.^4.
^“A^l^l^p^e^rsoⁿ^s^b^o^rⁿ^o^rⁿ^a^t^u^ralⁱ^zedⁱⁿ^t^h^{e U}ⁿⁱ^t^e^d^S^t^at^{es an}^{d su}^b^j^ect^t^o^t^h^{e j}^u^ri^s^dⁱ^c^tⁱ^oⁿ^t^h^ereo^f^,^{are ci}^tⁱ^zen^{s o}^f^t^h^{e Un}ⁱ^t^ed
^Sta^t^e^s^a^nd^of^the^Sta^t^e^w^h^e^r^eⁱ^{n th}^ey^r^e^sⁱ^de^.”^U^.^{S. C}^ons^t^{., A}^m^e^nd.^XI^V,^§1.
¹⁹^“^N^{o Sta}^t^e^sha^{ll m}^a^k^e^{or e}ⁿ^f^o^rc^e^aⁿ^y^la^w^w^h^ic^{h sha}^{ll a}^b^ri^dg^e^the^p^r^iv^ile^g^e^{s or im}^m^unitie^{s of}^c^itiz^eⁿ^{s of}^the^Unite^d
^Sta^t^e^s^{; nor}^s^h^a^{ll a}ⁿ^y^Sta^t^e^de^pr^iv^e^aⁿ^y^pe^r^s^{on of}^lif^e^,^libe^r^ty^{, or}^pr^o^p^e^r^ty^,^w^ithout^due^pr^oc^e^s^s^of^la^w^;^nor^de^ny^{to a}ⁿ^y
^pe^r^s^{on w}^ithiⁿ^its^j^u^rⁱ^s^d^ic^tio^{n the}^e^qua^l^pr^ote^c^tⁱ^on^of^the^la^w^s^.”^U^.^{S. C}^ons^t.,^A^m^e^{nd. XI}^V,^§¹^{. C}^ong^r^e^s^s^s^h^a^{ll ha}^v^e
^pow^e^r^{to e}ⁿ^f^o^r^c^e^,^by^a^ppr^opr^ia^te^l^e^gⁱ^s^l^a^{tion, t}^h^e^pr^ov^isⁱ^ons^of^this^a^r^tic^le^.^Id^.^a^t^§⁵^.
²⁰^U.^S^.^C^oⁿ^s^t.^,^Am^en^d^.^XXV^I.
²¹^U^.^{S. C}^ons^t.^{, A}^m^e^{nd. X}^V^.
²²^U^.^{S. C}^ons^t.^{, A}^m^e^{nd. XI}^X.

may also regulate the time, place, and manner of federal elections,²³ and judge the result of such ²⁴²⁵
elections. Congress also has a number of other powers relating to elections and appointments.
Congress has the power and authority to purchase and administer property, and has power over
those jurisdictions that are not controlled by states, such as the District of Columbia and the ²⁶
territories. Congress is limited by the Fifth Amendment, however, in the taking of private ²⁷
property without compensation. Congress has numerous powers related to war and the ²⁸
protection of the United States and its sovereign interests.
As noted above, the U.S. Constitution provides that Congress shall have the power to regulate ²⁹
commerce with foreign nations and among the various states. This power has been cited as the
constitutional basis for a significant portion of the laws passed by Congress over the last 50 years,
and it currently represents one of the broadest bases for the exercise of congressional powers. In ³⁰
United States v. Lopez, however, the Supreme Court brought into question the extent to which
Congress can rely on the Commerce Clause as a basis for federal jurisdiction.
Under the Gun-Free School Zones Act of 1990, Congress made it a federal offense for “any
individual knowingly to possess a firearm at a place that the individual knows, or has reasonable ³¹
cause to believe, is a school zone.” In Lopez, the Court held that, because the act neither
regulated a commercial activity nor contained a requirement that the possession was connected to
interstate commerce, the act exceeded the authority of Congress under the Commerce Clause.
Although the Court did not explicitly overrule any previous rulings upholding federal statutes
²³
^“T^h^e^Tⁱ^mes,^P^l^{aces an}^d^M^aⁿⁿ^e^r^o^f^h^o^l^diⁿ^g^E^l^ectⁱ^oⁿ^s^f^o^{r S}^eⁿ^a^t^o^rs^an^d^Rep^r^esen^t^a^tⁱ^v^es,^sh^al^l^b^e^p^r^es^cri^b^edⁱⁿ^each
^S^t^at^{e b}^y^t^h^{e L}^e^gi^sl^at^u^r^{e t}^h^ereo^f^;^bu^t^t^h^{e Co}ⁿ^g^{ress m}^a^y^at^an^y^tⁱ^{me b}^y^L^a^w^mak^e^o^r^al^t^e^{r su}^ch^Regu^l^a^tⁱ^oⁿ^s^,^excep^t^{as t}^o
^t^h^e^P^l^{aces o}^f^ch^u^sⁱⁿ^{g S}^eⁿ^a^t^o^rs.^”^U.^S^.^Con^s^t^.^,^A^r^tⁱ^c^l^e^I,^§⁴^,^cl^.^1.^W^hⁱ^l^e^t^h^e^Fⁱ^f^t^een^t^h^Am^en^d^m^en^t^and^t^h^e^o^t^h^e^{r vo}^tⁱⁿ^g
^rⁱ^g^h^ts^g^u^a^r^aⁿ^te^e^s^note^d^a^bov^e^pr^o^t^e^c^t^only^a^g^aⁱ^ns^{t s}^t^a^t^e^a^c^{tion, c}^oⁿ^g^r^e^s^sⁱ^ona^{l a}^u^tho^r^ity^unde^r^t^h^is^c^l^a^u^s^e^inc^l^u^d^e^s
^p^r^o^t^ectⁱ^oⁿ^o^f^t^h^{e el}^ect^o^r^al^p^r^o^{cess agai}ⁿ^s^t^p^rⁱ^v^at^{e i}ⁿ^t^e^rf^eren^ce.^A^va^ri^et^y^o^f^en^act^m^eⁿ^t^{s can}^b^e^t^r^aced^t^o^t^hⁱ^s^au^t^h^o^rⁱ^t^y^,
^inc^l^u^d^ing^c^a^m^pa^ig^{n f}ⁱ^na^nc^e^law^s^a^{nd t}^h^e^H^a^tc^{h A}^c^{t (}ⁱ^ns^of^a^r^a^s^{it a}^pplie^s^t^o^f^e^de^r^a^{l e}^l^e^c^tions⁾^.
²⁴^“E^ach^Ho^u^s^{e sh}^al^l^b^e^t^h^{e Ju}^d^g^{e of}^t^h^{e E}^l^ectⁱ^oⁿ^s^,^Ret^u^rn^{s and}^Qu^alⁱ^fⁱ^catⁱ^oⁿ^s^o^fⁱ^t^s^o^wⁿ^M^e^m^b^ers.^”^Artⁱ^c^l^e^I,^§5^,^cl^.¹^.
^T^h^{e Ho}^u^s^{e an}^d^t^h^{e S}^eⁿ^a^t^e^act^{as j}^u^dⁱ^ci^al^t^rⁱ^b^un^al^{s i}ⁿ^reso^l^vⁱⁿ^{g con}^t^est^e^d^el^ectⁱ^oⁿ^cases.
²⁵^S^ee,^e.^g^.^{, U}^.^S.^C^o^ns^{t., A}^m^e^{nd. X}^I^V,^§2⁽^a^pp^or^ti^onm^eⁿ^t)^.
²⁶^“^T^he^Cong^re^s^s^s^h^a^{ll ha}^v^e^pow^e^r^{... T}^o^e^x^e^r^cⁱ^s^e^e^x^c^l^us^iv^e^Le^gⁱ^s^l^a^tⁱ^{on i}ⁿ^a^{ll Ca}^s^e^s^w^h^a^t^s^o^e^v^e^r^{, ov}^e^r^s^u^c^h^Dⁱ^s^t^ric^t^.^{.. a}^s
^ma^y^,^b^y^Cessi^oⁿ^o^f^P^a^rtⁱ^c^u^l^{ar S}^t^a^t^es,^an^d^t^h^{e A}^ccep^t^aⁿ^{ce o}^f^Coⁿ^g^r^e^ss,^b^eco^m^e^t^h^{e S}^eat^o^f^t^h^{e G}^o^verⁿ^m^eⁿ^t^o^f^t^h^e
^Unⁱ^t^e^d^S^t^at^es,^an^d^t^o^exerci^{se l}ⁱ^k^e^A^u^t^h^o^rⁱ^t^y^o^v^{er al}^l^P^l^{aces p}^u^r^ch^ased^b^y^t^h^{e Co}ⁿ^s^en^t^o^f^t^h^{e L}^e^gi^sl^at^u^r^{e o}^f^t^h^{e S}^t^at^{e i}ⁿ
^w^h^ic^{h the}^Sa^m^e^s^h^a^{ll be}^{, f}^o^r^the^Er^e^c^tion^of^For^t^s^,^Ma^g^a^zⁱ^ne^s^,^A^r^se^na^ls^{, doc}^k^-^Y^a^r^d^s^aⁿ^d^ot^he^r^ne^e^d^f^u^{l B}^u^ildiⁿ^g^s^.”
^A^r^tic^le^I^,^{§8, c}^l^.¹⁷^{. “}^T^he^C^ong^r^e^s^s^s^h^a^{ll ha}^v^e^pow^e^r^{to dis}^pos^e^of^a^{nd m}^a^k^e^a^{ll ne}^e^d^f^u^{l R}^u^le^s^aⁿ^d^R^e^g^u^la^tions
^re^s^p^e^c^ting^the^T^e^rritory^{or othe}^r^Prope^rty^be^long^ing^t^o^the^Uⁿ^ite^d^S^t^a^t^e^s^....”^A^r^tic^le^IV^{, §}^3,^c^l^{. 2}^.
²⁷^“^[^N^]^or^sha^ll^priv^a^t^e^pro^p^e^r^ty^be^ta^k^e^{n f}^o^{r public}^use^,^w^ithou^{t just}^c^o^m^p^eⁿ^sa^tion.”^U.S^.^Co^{nst., A}^m^eⁿ^d.^V^.^Im^plic^{it i}ⁿ
^the^Fif^t^{h A}^m^e^ndm^eⁿ^t’^s^r^e^quir^e^m^e^{nt t}^h^a^t^jus^t^c^o^m^p^eⁿ^s^a^tion^be^paⁱ^d^f^o^r^pr^iv^a^t^e^pr^ope^r^t^y^tha^t^is^ta^k^e^{n f}^o^r^a^p^ubl^ic^us^e^is
^t^h^{e exi}^s^t^eⁿ^{ce o}^f^t^h^{e go}^vern^men^t^{’s p}^o^w^{er t}^o^ta^k^e^priv^a^t^e^pro^p^e^r^ty^f^o^{r pu}^blic^use^.
²⁸^S^ee,^e.^g^.^,^U^.^S.^Co^ns^{t. A}^r^{t. I,}^{§ 8}^,^c^l^{. 10}^(“^T^h^e^Cong^re^s^s^s^h^a^{ll ha}^v^e^pow^e^r^{... T}^o^de^fⁱ^ne^aⁿ^d^p^unis^h^Pⁱ^r^a^cⁱ^e^s^a^nd
^Fe^lonie^s^c^o^m^m^itte^{d on the}^hig^h^S^e^a^s^{, a}^{nd Of}^fe^nc^e^s^a^g^aⁱ^{nst the}^L^a^w^of^N^a^tions”⁾^{; U.S.}^Const^{., A}^r^t.^{I, §}^{8, c}^l^.¹¹^(“^...^T^o
^de^c^l^a^r^e^W^a^r^,^g^r^aⁿ^{t L}^e^tte^r^s^of^Ma^r^que^aⁿ^{d R}^e^pr^is^a^l^{, a}^{nd m}^a^k^e^R^u^le^{s c}^onc^e^rⁿⁱ^ng^C^a^ptur^e^s^oⁿ^L^a^{nd a}ⁿ^{d W}^a^te^r^.^”⁾^{; U}^.^S.
^Cons^t.,^A^r^{t. I, §}⁸^{, c}^l^.¹²^(“^T^o^ra^is^e^a^{nd s}^u^pp^{ort A}^r^mⁱ^e^s^....”^).
²⁹^U^.^{S. C}^ons^t.^{, A}^r^{t. I, §}⁸^{, c}^l^.^3.
³⁰⁵¹^{4 U}^.^S^.⁵⁴⁹⁽¹⁹⁹⁵⁾^.
³¹^{18 U}^.^S.C^.^§⁹²²⁽^q⁾⁽¹⁾^A⁾^.

passed under the authority of the Commerce Clause, the decision would appear to suggest new
limits to Congress’s legislative authority.
The scope and extent of the Commerce Clause does not appear to have been of particular concern ³²
to the framers of the Constitution. There are indications that the founding fathers considered the
federal regulation of commerce to be an important power of the new Constitution primarily as a ³³
means of facilitating trade and of raising revenue. While the Anti-Federalists argued that the
new Constitution gave too much power to the federal government, they apparently did not raise ³⁴
significant objections to the granting of power to regulate interstate commerce.
The Supreme Court, however, developed an expansive view of the Commerce Clause relatively
early in the history of judicial review. For instance, Chief Justice Marshall wrote in 1824 that “the
power over commerce ... is vested in Congress as absolutely as it would be in a single
government ...” and that “the influence which their constituents possess at elections, are ... the ³⁵
sole restraints” on this power. However, the issue in most of the early Supreme Court
Commerce Clause cases dealt not with the limits of Congressional authority, but on the implied ³⁶
limitation of the Commerce Clause on a state’s ability to regulate commerce.
It has been suggested that the Commerce Clause should be restricted to the regulation of “selling, ³⁷
buying, bartering and transporting.” In fact, much of the federal legislation approved of by the ^th
Supreme Court early in the 20 century did relate to issues such as the regulation of lottery ³⁸³⁹⁴⁰
tickets, the transporting of adulterated food, and the interstate transportation of prostitutes.
Moreover, during the early 1900s, the Supreme Court struck down a series of federal statutes that ⁴¹
attempted to extend commerce regulation to activities such as “production,” “manufacturing,” ⁴²
and “mining.”
Starting in 1937, however, with the decision in NLRB v. Jones & Laughlin Steel Corporation,⁴³
the Supreme Court held that Congress has the ability to protect interstate commerce from burdens
and obstructions that “affect” commerce transactions. In the NLRB case, the court upheld the
National Labor Relations Act, finding that by controlling industrial labor strife, Congress was
³²
^A^b^e^l^,^The^C^o^m^m^e^r^c^e^C^l^aus^eⁱⁿ^t^h^e^C^ons^t^itutⁱ^o^{nal C}^onv^eⁿ^tⁱ^oⁿ^aⁿ^d^{in C}^onte^m^p^o^r^a^r^y^C^o^m^m^e^nt^{, 2}⁵^Minn^{. L}^.^Re^v^.
⁴³²^{, 4}⁴³^-⁴⁴⁽¹⁹⁴¹⁾^{; G}^r^e^eⁿ^s^p^aⁿ^,^T^h^e^C^ons^t^itutⁱ^o^nal^Ex^e^r^cⁱ^s^e^{of the}^Fe^de^r^a^{l Po}^lic^e^Pow^e^r^:^A^Fu^nc^tio^nal^Ap^pr^oac^{h to}
^Fe^de^ralism^{, 4}¹^Vaⁿ^d^e^r^bilt^L^a^w^R^e^vⁱ^ew^1019,¹⁰²²^-²^{4 (}¹⁹⁸⁸⁾^{. T}^h^o^s^e^m^a^te^rⁱ^a^l^s^w^h^ic^{h do a}^ddr^e^s^s^C^o^ng^r^e^s^sⁱ^ona^l
^c^ontr^o^{l ov}^e^r^c^o^m^m^e^r^ce^f^o^c^u^s^{on t}^h^e^ne^c^e^s^s^ity^o^f^unif^o^r^m^it^y^{in m}^a^tte^r^s^of^f^o^r^eⁱ^g^{n c}^o^m^m^e^r^c^e^,^a^lthoug^{h the}^dr^a^f^te^r^s
^cl^earl^yⁱⁿ^t^eⁿ^d^e^d^d^o^m^estⁱ^c^co^mme^{rce t}^o^b^e^regu^l^a^t^e^d^{as w}^e^l^l^.^P^.^K^u^r^l^an^d^{& R.}^L^e^rn^er,^T^HE^F^OUND^E^R^’^S^C^O^N^S^TI^TU^TI^O^N
⁴⁷⁷^-⁵^{28 (}¹⁹⁸⁷⁾^.
³³^A^l^ex^a^nde^r^H^a^m^{ilton, C}^O^N^T^IN^EN^T^A^LI^ST^{, N}^o^{. 5,}^{18 A}^p^r^il¹⁷^{82 (}^P^a^p^e^r^3:7⁵^-⁸²⁾^a^s^r^e^prⁱⁿ^te^dⁱⁿ^{P. K}^u^r^l^a^{nd &}^R^.^L^e^rⁿ^e^r^,
^s^upr^a^no^te³²⁽^“^T^h^e^v^e^s^ting^of^the^pow^e^r^of^r^e^g^u^la^ting^tr^a^d^e^oug^ht^{to ha}^v^e^be^eⁿ^a^pr^incⁱ^pa^{l o}^b^je^c^t^of^the^c^onf^e^d^e^r^a^tion
^f^o^{r a vari}^et^y^o^f^reasoⁿ^s^.^Itⁱ^s^{as n}^e^cessar^y^f^o^{r t}^h^{e p}^u^r^po^{ses o}^f^co^{mmerce as o}^f^re^ven^u^e^.^”⁾
³⁴^G^r^een^sp^an^,^s^upr^a^no^te³²^a^t¹⁰²³^.
³⁵^Gⁱ^bbons^v^.^O^d^g^e^{n, 2}²^U^.^S^.⁽⁹^W^h^e^a^t^.)^1,¹^97-^{98 (}¹⁸²⁴⁾^.
³⁶^S^ee,^e.^g^.^,^B^r^ow^{n v}^.^Ma^r^y^la^{nd, 2}⁵^U^.^{S. (}^{12 W}^h^e^a^t^.)⁴¹^{9 (}¹⁸²⁷⁾^.
³⁷^Uⁿ^ite^d^Sta^t^e^s^v^.^L^ope^z^,⁵^{14 U}^.^S.^a^t⁵⁹^{3 (}^T^hom^a^s^{, J}^{., dis}^s^e^ntiⁿ^g⁾^.
³⁸^C^h^a^m^{pion v}^.^A^m^e^s⁽^T^he^L^o^tte^r^y^C^a^s^e⁾^,^{188 U}^.^S.³²^{1 (}¹⁹⁰³⁾^.
³⁹^Hipp^olite^Eg^g^Co.^v^.^Unite^d^Sta^t^e^s^{, 22}^{0 U.S.}⁴⁵⁽¹⁹¹^1).
⁴⁰^H^o^k^e^v^.^Uⁿ^ite^{d S}^t^a^t^e^s^{, 22}^{7 U}^.^S.³⁰⁸⁽¹⁹¹³⁾^.
⁴¹^Uⁿ^ite^d^Sta^t^e^s^v^.^{E.C. K}ⁿ^ig^{ht C}^o^.,¹⁵^{6 U}^.^S^.¹^,¹²⁽¹⁸^95).
⁴²^Ca^rte^r^v^.^Ca^rte^r^Coa^l^Co.,²^{98 U}^.^{S. 2}³⁸^,³⁰⁴⁽¹⁹³^6).
⁴³³⁰^{1 U}^.^S^.¹⁽¹⁹³⁷⁾^.

preventing burdens from being placed on interstate commerce.⁴⁴ Thus, the Court rejected previous
distinctions between the economic activities (such as manufacturing) that led up to interstate
economic transactions, and the interstate transactions themselves. By allowing Congress to
regulate activities that were in the “stream” of commerce, the Court also set the stage for the
regulation of a variety of other activities that “affect” commerce.
Subsequent Court decisions found that Congress had considerable discretion in determining
which activities “affect” interstate commerce, as long as the legislation was “reasonably” related ⁴⁵
to achieving its goals of regulating interstate commerce. Thus the Court found that in some
cases, events of purely local commerce (such as local working conditions) might, because of
market forces, negatively affect the regulation of interstate commerce, and thus would be ⁴⁶
susceptible to regulation. The Court has also held that an activity which in itself does not affect
interstate commerce could be regulated if all such activities taken in the aggregate did affect ⁴⁷
interstate commerce. Under the reasoning of these cases, the Court has upheld many diverse ⁴⁸
laws, including laws regulating production of wheat on farms, racial discrimination by ⁴⁹⁵⁰
businesses, and loan-sharking.
The Lopez case was significant in that it is the first time since 1937 that the Supreme Court struck
down a federal statute purely based on a finding that Congress had exceeded it powers under the ⁵¹
Commerce Clause. In doing so, the Court revisited its prior cases, sorted the commerce power
into three categories, and asserted that Congress could not go beyond these three categories: (1)
regulation of channels of commerce, (2) regulation of instrumentalities of commerce, and (3) ⁵²
regulation of economic activities that “affect” commerce.
Within the third category of activities that “affect commerce,” the Court determined that the
power to regulate commerce applies to intrastate activities only when they “substantially” affect ⁵³
commerce. Still, the Court in Lopez spoke approvingly of earlier cases upholding laws that
regulated intrastate credit transactions, restaurants utilizing interstate supplies, and hotels catering
to interstate guests. The Court also recognized that while some intrastate activities may by
themselves have a trivial effect on commerce, regulation of these activities may be constitutional
if their regulation is an essential part of a larger economic regulatory scheme. Thus, the Court
⁴⁴
³⁰^{1 U}^.^S^.^a^t⁴¹^.
⁴⁵^Uⁿ^ite^d^Sta^t^e^s^v^.^D^a^r^b^y^,^{312 U}^.^S.¹⁰⁰⁽¹⁹⁴¹⁾⁽^a^pp^r^o^vⁱ^ng^le^gⁱ^s^l^a^tion^r^e^la^ting^{to w}^o^r^k^ing^c^oⁿ^d^iti^ons⁾^.
⁴⁶³¹^{2 U}^.^S^.^a^t¹²¹^.
⁴⁷^Wi^ckar^d^v.^Fⁱ^l^b^u^r^n,³¹^{7 U.}^S^.¹¹¹⁽¹⁹⁴²⁾^.
⁴⁸^Id.
⁴⁹^Se^e^H^e^a^r^{t of}^A^tla^nta^Mote^{l v}^.^Uⁿ^ite^{d Sta}^t^e^s^,³⁷^{0 U}^.^S.²^{41 (}¹⁹⁶⁴⁾^;^K^a^tz^e^nba^c^h^v^.^Mc^C^l^ung^,³⁷^{9 U}^.^S^.²⁴^{1 (}¹⁹⁶⁴⁾^.
⁵⁰^P^e^r^e^z^v^.^Uⁿ^ite^{d Sta}^t^e^s^,⁴⁰^{2 U}^.^S^.¹⁴⁶⁽¹⁹⁷¹⁾^.
⁵¹^Her^m^an^S^c^h^w^art^z^,^{Court Trie}^{s to}^Patro^l^a^Pol^itic^al^Line^,^L^e^g^a^l^Tⁱ^m^e^s^{25 (}^M^a^y^{8, 19}⁹⁵⁾^.
⁵²^T^h^{e Co}^u^r^t^f^aⁱ^l^e^d^t^o^no^t^e^t^h^at^t^o^s^o^m^e^e^x^t^eⁿ^t^,^t^h^{e t}^h^{ree cat}^ego^rⁱ^e^{s a}^r^{e i}ⁿ^t^e^rt^wⁱⁿ^e^d^.^F^o^{r i}ⁿ^st^an^ce,^t^h^{e f}ⁱ^rst^cat^ego^r^y^,^t^h^e
^regu^l^a^tⁱ^oⁿ^o^f^“st^r^ea^m^s^{” o}^r^“ch^an^nel^s^{” o}^f^co^mm^er^ce,^al^l^o^w^s^re^gu^l^a^tⁱ^oⁿ^o^f^t^h^{e creat}ⁱ^oⁿ^,^m^o^ve^men^t^,^sal^e^an^d^con^s^u^m^p^tⁱ^oⁿ
^of^m^e^rc^ha^ndise^{or se}^rv^ic^e^s^{. But t}^h^e^init^ia^{l e}^x^te^nsion^of^the^“st^r^{eams” o}^f^co^mm^er^{ce an}^al^y^sⁱ^s^b^y^t^h^{e Co}^u^r^t^t^oⁱⁿ^t^r^ast^a^t^e
^tra^d^e^w^a^{s justif}^ie^{d b}^y^the^“^e^ffe^c^t^”^of^the^s^e^othe^{r a}^c^tiv^itie^{s o}ⁿ^c^o^m^m^e^r^c^e^.^Se^e^N^L^R^B^v^.^J^one^s^&^La^ughlin^{, 3}⁰¹^U^.^S.^1,
^{31 (}¹⁹³⁶⁾^{. Sim}^ila^rly^,^the^s^e^c^{ond c}^a^t^e^g^or^y^,^w^h^ic^{h a}^llow^s^the^re^g^u^la^tion^of^s^u^c^h^ins^t^r^u^m^e^nta^litie^s^of^c^o^m^m^e^rce^a^s^plaⁿ^e^s^,
^traⁱ^{ns or}^truc^k^s^{, is a}^l^so^ba^se^{d o}ⁿ^t^h^e^th^e^o^ry^tha^t^a^th^re^a^t^{to t}^h^e^s^e^ins^t^rum^e^nta^litie^{s “}^a^ff^e^c^t^s^”^c^o^m^m^e^r^c^e^{, e}^v^eⁿ^if^the^e^ffe^c^t
^{is lo}^{cal in}ⁿ^a^tu^re.^So^u^t^h^e^rn^Railw^a^y^Co^m^p^an^y^v^.^Un^ited^Stat^{es, 2}²²^U.S.²¹^,²⁶^-²⁷⁽¹⁹¹¹^)(re^g^u^lati^oⁿ^o^fⁱⁿ^{trastate rail}
^tra^f^fⁱ^c^ha^{s a}^substa^ntia^{l e}^f^f^e^c^t^{on i}ⁿ^te^rsta^te^ra^{il tra}^f^fⁱ^c⁾^{. T}^{hus, the}^fⁱⁿ^a^{l c}^a^t^e^g^or^y^ideⁿ^tif^ie^{d by}^the^Cour^{t a}^ppe^a^r^{s to}^be^a
^c^a^t^c^h^-a^{ll f}^o^{r a}^{ll othe}^{r a}^c^tiv^itie^{s w}^h^ic^{h “}^s^u^b^staⁿ^tia^lly^a^ffe^c^t^”^c^o^m^m^e^rc^e^.
⁵³⁵¹^{4 U}^.^S^.^a^t⁵⁵⁹^.

even approved what has been perceived as one of its most expansive rulings, Wickard v. Filburn,
which allowed the regulation of the production and consumption of wheat for home ⁵⁴
consumption.
The Court in Lopez found, however, that the Gun-Free School Zones Act fell into none of the
three categories set out above. It held that it is not a regulation of channels of commerce, nor does
it protect an instrumentality of commerce. Finally, its effect on interstate commerce was found to
be too removed to be “substantial.” The Court noted that the regulated activity, possessing guns in ⁵⁵
school, neither by itself nor in the aggregate affected commercial transactions. Further, the
statute contained no requirement that interstate commerce be affected, such as that the gun had ⁵⁶
been previously transported in interstate commerce. Nor was the criminalization of possession ⁵⁷
of a gun near a school part of a larger regulatory scheme that did regulate commerce. Finally,
the Court indicated that criminal law enforcement is an area of law traditionally reserved to the ⁵⁸
states. Consequently, the Court found that Congress did not have the authority to pass the Gun-
Free School Zone Act.
It should be noted that the Lopez Court purported to be limiting, but not overruling, prior case law
that had supported an expansive interpretation of the commerce clause. Consequently, most ⁵⁹
existing federal laws, which have traditionally been drafted to be consistent with this case law,
would survive constitutional scrutiny even under Lopez. However, in at least one significant case,
Congress passed a law, the Violence Against Women Act, that seemed to invoke the same
concerns that the Court found in Lopez. Consequently, the relevant portion of that act was struck ⁶⁰
down in United States v. Morrison.
In Morrison, the Court evaluated whether 42 U.S.C. § 13981, which provides a federal private
right of action for victims of gender-motivated violence, was within the power of Congress to
enact under the Commerce Clause. In Morrison, the victim of an alleged rape brought suit against
the alleged rapist, arguing that this portion of the act was sustainable because it addressed ⁶¹
activities that substantially affect interstate commerce. The Court, however, noted that unlike
traditional statutes based on the commerce clause, the activity in question had nothing to do with
commerce or an economic enterprise. This point had been made previously in Lopez, and here the
Court reaffirmed the holding that in order to fall under the acceptable category of laws that
“substantially affect commerce,” the underlying activity itself must generally be economic or
⁵⁴
^Wi^ckar^d^v.^Fⁱ^l^b^u^r^n,³¹^{7 U.}^S^.¹¹¹⁽¹⁹⁴²⁾^.
⁵⁵⁵¹^{4 U}^.^S^.^a^t⁵⁶⁴^.^T^h^e^C^o^ur^{t r}^e^je^c^t^e^d^a^r^g^u^m^e^nts^tha^t^pos^s^e^s^sⁱ^on^of^g^unsⁱⁿ^s^c^ho^{ol a}^f^f^e^c^t^e^d^the^na^ti^ona^{l e}^c^onom^y^by^its
^ne^g^a^tiv^eⁱ^m^pa^c^t^{on e}^duc^a^tⁱ^on.^I^d^.
⁵⁶⁵¹^{4 U}^.^S^.^a^t⁵⁶¹^.
⁵⁷⁵¹^{4 U}^.^S^.^a^t⁵⁶⁰^.
⁵⁸⁵¹^{4 U}^.^S^.^a^t⁵⁸⁰⁽^K^e^nne^dy^{, J}^{., c}^o^nc^ur^rⁱ^ng⁾^.^T^h^e^C^our^t^ha^s^r^e^ite^r^a^te^{d its}^c^o^nc^e^rⁿ^ov^e^r^e^x^te^nding^C^o^m^m^e^r^c^e^C^l^a^u^s^e
^pow^e^r^{s to Cong}^re^{ss in a}^r^e^a^s^of^th^e^la^w^tra^d^itiona^lly^re^se^r^v^e^d^{to the}^sta^t^e^s^.^S^ee,^e.^g^.^,^S^o^lⁱ^d^W^a^st^e^A^g^eⁿ^cy^o^f^No^rt^h^e^rn
^C^ook^C^o^unty⁽^S^WA^N^C^C⁾^v^.^U^.^{S. A}^r^m^y^C^o^r^p^s^of^Engⁱ^ne^e^r^s^,⁵³¹^U^.^S.¹⁵^9,¹⁷^{4 (}²⁰⁰¹⁾⁽^r^e^je^c^ting^aⁿⁱⁿ^te^r^p^r^e^ta^tioⁿ^of
^the^Cle^aⁿ^W^a^te^{r A}^c^t^w^h^ic^{h a}^llowe^{d re}^g^u^la^tion^of^no^nna^vⁱ^g^a^bl^e^,^iso^l^a^t^e^d^w^e^tla^{nds a}^s^inf^r^ingⁱ^ng^up^on^the^“^t^ra^diti^ona^l
^an^d^p^rⁱ^m^ar^y^st^at^{e p}^o^w^{er o}^v^{er l}^aⁿ^d^an^{d w}^a^t^e^{r u}^s^e”).
⁵⁹^S^ee,^e.^g^.^,¹⁸^U^.^S^.^C^.^§2^{47 (}²⁰⁰⁰⁾⁽^f^o^r^b^iddi^ng^o^b^s^t^r^u^c^tⁱ^on^of^pe^r^s^ons^{in t}^h^e^f^r^e^e^ex^e^r^cⁱ^s^e^o^f^r^e^lig^ious^be^lie^f^s^w^h^e^r^e^the
^o^f^fen^s^{e “i}^{s i}ⁿ^o^r^af^f^e^ct^{s i}ⁿ^t^e^rst^a^t^e^o^r^f^o^rei^gⁿ^co^mm^er^ce.^”)
⁶⁰⁵²^{9 U}^.^S^.⁵⁹⁸⁽²⁰⁰⁰⁾^.
⁶¹^Id^{. a}^t⁶⁰^9.

commercial.⁶² As gender-motivated violence does not inherently relate to an economic activity,
the Court held that it was beyond the authority of Congress to regulate.
In the case of Gonzales v. Raich,⁶³ the Court evaluated an “as applied” challenge to the Controlled
Substances Act as regards obtaining, manufacturing, or possessing marijuana for medical
purposes. The case was brought by two seriously ill residents of California who used marijuana in ⁶⁴
compliance with the California Compassionate Use Act of 1996. The challenge was based on
the argument that the narrow class of activity being engaged in—the intrastate, noncommercial
cultivation and possession of cannabis for personal medical purposes as recommended by a
patient’s physician pursuant to valid California state law—did not have a substantial impact on ⁶⁵
commerce, and thus could not be regulated under the Commerce Clause.
In upholding the application of the Controlled Substances Act in the Raich case, the Court relied ⁶⁶
on its decision in Wickard v. Filburn, which held that “even if appellee’s activity be local and
though it may not be regarded as commerce, it may still, whatever its nature, be reached by ⁶⁷
Congress if it exerts a substantial economic effect on interstate commerce.” The Wickard case ⁶⁸
upheld the application of the Agricultural Adjustment Act of 1938, which was designed to
control prices by regulating the volume of wheat moving in interstate commerce. The Court in
Wickard held that Congress could regulate not only the wheat sold into commerce, but also wheat ⁶⁹
retained for consumption on a farm. The Court did so on the theory that the while the impact of
wheat consumed on the farm on interstate commerce might be trivial, it was significant when ⁷⁰
combined with wheat from other farmers similarly situated.
Based on Wickard, the Court in Raich held that Congress could consider the aggregate effect that
allowing the production and consumption of marijuana for medical purposes would have on the
⁶²
^T^h^{e req}^uⁱ^rem^eⁿ^t^t^h^at^{a co}^mm^er^c^e^cl^au^{se regu}^l^a^tⁱ^oⁿ^b^e^econ^o^mⁱ^c^{or co}^mm^er^ci^al^h^a^{s b}^eenⁱⁿ^f^l^u^eⁿ^tⁱ^a^lⁱⁿ^{a nu}^m^b^{er o}^f
^s^ubs^e^que^{nt s}^t^a^t^ut^or^y^inte^r^p^r^e^ta^tio^{n c}^a^s^e^s^{. I}ⁿ^J^o^ne^s^v^.^Uⁿ^ite^d^Sta^t^e^s^,⁵²^{9 U}^.^S^.⁸⁴⁸⁽²⁰⁰⁰⁾^{, a}^c^r^im^ina^l^de^f^e^nda^nt
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^b^e^“actⁱ^v^el^y^e^m^p^l^o^y^ed^”^f^o^{r co}^mmerci^a^l^p^u^r^po^ses,^id^.^a^t⁸⁵⁵^,^a^r^g^uⁱⁿ^g^tha^t^a^broa^de^{r in}^te^rpre^ta^tio^{n w}^{ould e}^x^te^nd^the
^st^at^u^t^{e t}^o^vi^rt^u^a^l^l^y^ev^er^y^arsoⁿⁱⁿ^t^h^{e co}^un^t^r^y^.
^A^si^m^{ilar resu}^{lt o}^ccu^rredⁱⁿ^th^{e case o}^f^So^lid^W^a^{ste A}^g^en^c^y^o^f^No^rth^e^rn^Co^o^k^Co^uⁿ^t^y^(SWA^{NCC) v}^.^{U.S. A}^r^my^Co^rp^s
^o^f^Eⁿ^giⁿ^eer^s,⁵³¹^U.^S.¹⁵^{9 (}²⁰⁰¹⁾^.^Iⁿ^S^W^ANCC^,^t^h^{e Co}^urt^con^sⁱ^d^e^r^ed^{a ch}^al^l^eⁿ^g^{e t}^o^t^h^{e M}ⁱ^grat^o^r^y^Bi^rd^Rul^e^,⁵¹^F^e^d.
^R^e^g^.⁴¹²^17,^w^h^ic^{h e}^x^te^nde^d^{§ 4}⁰⁴⁽^a⁾^of^the^C^l^e^aⁿ^W^a^te^r^A^c^{t (}^C^WA⁾^,^{33 U}^.^S.C^.^§¹³⁴⁴⁽^a⁾^to^no^nna^vⁱ^g^a^ble^,^is^ola^t^e^d
^w^e^tla^nds^{. T}^h^e^C^our^{t he}^l^d^t^h^a^t^th^is^inte^r^p^r^e^ta^ti^on^of^the^s^t^a^t^ute^w^oul^{d r}^a^is^e^s^e^rⁱ^ous^c^o^ns^tit^utio^na^l^que^s^tions^,^r^e^qu^ir^ing^,
^f^o^{r i}ⁿ^st^an^ce,^{a cl}^o^s^{e exa}^mⁱⁿ^atⁱ^oⁿ^o^f^p^r^eci^sel^y^w^h^at^actⁱ^vⁱ^t^y^w^a^{s b}^eⁱⁿ^{g regu}^l^a^t^e^d^.^A^b^sen^t^{a cl}^{ear st}^at^emen^t^f^r^o^m
^Coⁿ^g^{ress t}^h^atⁱ^tⁱⁿ^t^e^nd^ed^t^h^{e Cl}^eaⁿ^W^a^t^e^{r Act}^t^o^h^a^{ve su}^ch^a^b^r^o^a^d^reach^,^t^h^{e Cou}^r^t^f^o^un^d^t^h^{e r}^u^l^e^w^a^{s n}^o^t^sup^p^o^r^t^e^d
^b^y^t^h^{e st}^at^u^t^e.^Id^.^a^t¹^73.^S^{ee al}^so^R^a^pa^nos^v^.^Uⁿ^ite^d^Sta^t^e^s^A^r^m^y^C^o^r^p^s^of^Engⁱ^ne^e^r^s^,¹⁶^{5 L}^.^Ed^{. 2}^d¹^59,²^{01 (}²⁰⁰⁶⁾^.
⁶³¹²^{5 S}^.^C^t^.²¹⁹⁵⁽²⁰⁰⁵⁾^.
⁶⁴^C^a^{l. H}^e^a^{lth &}^Sa^f^e^t^y^C^ode^A^{nn §11}³⁶^2.^{5 (}^W^e^s^{t Sup}^p^.²⁰⁰⁵⁾⁽^p^r^o^vⁱ^ding^f^o^r^the^le^g^a^{l pos}^s^e^s^sⁱ^oⁿ^of^m^e^dic^a^l
^m^a^rijuaⁿ^a^by^a^pa^tie^{nt or}^prim^a^r^y^c^a^r^e^-^gⁱ^ve^{r, upo}ⁿ^t^h^e^w^r^itte^{n or}^or^a^l^re^c^o^m^m^e^nda^tion^of^a^phy^sicⁱ^aⁿ^).
⁶⁵¹²^{5 S}^.^{Ct. a}^t²²¹¹^.
⁶⁶³¹^{7 U}^.^S^.¹¹¹⁽¹⁹⁴²⁾^.
⁶⁷^Id^{. a}^t¹²^5.
⁶⁸^{52 Sta}^t^{. 31}^.
⁶⁹^Id^.^a^t¹²^8-²⁹^.
⁷⁰^Id^{. a}^t¹²^7.

illegal market for marijuana.⁷¹ Of even greater concern was that diversion of marijuana grown for
medicinal purposes for other uses would frustrate the federal interest in eliminating commercial ⁷²
transactions in the interstate market. In both cases, the Court found that the regulation was
within Congress’s commerce power because Congress had a rational basis to determine that
production of a commodity meant for home consumption, be it wheat or marijuana, could have a
substantial effect on supply and demand. In addition, because exempting the use of medical
marijuana could undercut enforcement of the Controlled Substances Act, the Court found that the
application in this case was within Congress’s authority to “make all Laws which shall be ⁷³
necessary and proper” to effectuate its powers.
Another significant source of congressional power is § 5 of the Fourteenth Amendment. The
Fourteenth Amendment provides that states shall not deprive citizens of “life, liberty or property”
without due process of law nor deprive them or equal protection of the laws. Section 5 provides
that Congress has the power to legislate to enforce the amendment.
The Fourteenth Amendment represented a significant shift of power in the nation’s federal
system. Until the passage of the Fourteenth Amendment, the Constitution was limited to
establishing the powers and limitations of the federal government. However, the amendments ⁷⁴⁷⁵
passed immediately after the Civil War (the Thirteenth, Fourteenth, and Fifteenth
Amendments), dramatically altered this regime. Passage of these amendments subjected a state’s
control over its own citizens to oversight by either the federal judiciary or Congress. The most
significant impact of the Fourteenth Amendment has been its implementation by the federal
courts, as state legislation came under scrutiny for having violated due process or equal
protection. However, Congress has also seen fit to exercise its power under the Fourteenth
Amendment to address issues such as voting rights and police brutality.
The scope of Congress’s power under §5 of the Fourteenth Amendment, however, has been in ⁷⁶
flux over the years. In Katzenbach v. Morgan, the Court held that §5 of the Fourteenth
Amendment authorized Congress not just to enforce the provisions of the Fourteenth Amendment
as defined by the courts, but to help define its scope. In Katzenbach, the Court upheld a portion of
the Voting Rights Act of 1965 that barred the application of English literacy requirements to ^th
persons who had reached 6 grade in a Puerto Rican school taught in Spanish. In upholding the
statute, the Court rejected the argument that Congress’s power to legislate under the Fourteenth
Amendment was limited to enforcing that which the Supreme Court found to be a violation of
that amendment. Rather, the Court held that Congress could enforce the Fourteenth Amendment
by “appropriate” legislation consistent with the “letter and spirit of the constitution.”
The rationale for this holding appears to be that Congress has the ability to evaluate and address
factual situations that it determines may lead to degradation of rights protected under the
⁷¹
¹²^{5 U}^.^S^.^a^t²²⁰⁷^.
⁷²^Id^.
⁷³^U^.^{S. C}^ons^t.^{, A}^r^{t. I, §}^8.
⁷⁴^{U.S. C}^onst.^{, Am}^e^{nd. X}^III^(pr^ohi^biting^sla^v^e^r^y⁾^.
⁷⁵^{U.S. C}^onst.^{, Am}^e^{nd. XV}^(v^o^ting^rig^h^ts).
⁷⁶³⁸^{4 U}^.^S^.⁶⁴¹⁽¹⁹⁶⁶⁾^.

Fourteenth Amendment. This is true even if a court would not find a constitutional violation to
have occurred. In fact, what the Court appeared to have done was to require only that Congress
establish a rational basis for why the legislation was necessary to protect a Fourteenth
Amendment right.
Subsequent Supreme Court cases, however, have limited the reach of Katzenbach. In Oregon v. ⁷⁷
Mitchell, the Court struck down a requirement that the voting age be lowered to 18 for state
elections. In prohibiting Congress from dictating the voting age for state elections, a splintered
Court appears to have supported Congress’s power to pass laws that protect Fourteenth
Amendment rights against state intrusions, but rejected the ability of Congress to extend the
substantive content of those rights. As 18-year-olds are not a protected class under the Fourteenth
Amendment, the Court found that Congress was attempting to create, rather than protect,
Fourteenth Amendment rights.
More recently, in the case of Flores v. City of Boerne,⁷⁸ the Court struck down the Religious
Freedom Restoration Act (RFRA) as beyond the authority of Congress under §5 of the Fourteenth
Amendment. For many years prior to the passage of RFRA, a law of general applicability
restricting the free exercise of religion, to be consistent with the Freedom of Exercise Clause of
the First Amendment, had to be justified by a compelling governmental interest. However, in the ⁷⁹
1990 case of Oregon v. Smith, the Court had lowered this standard. The Smith case involved
members of the Native American Church who were denied unemployment benefits when they
lost their jobs for having used peyote during a religious ceremony. The Smith case held that
neutral generally applicable laws may be applied to religious practices even if the law is not
supported by a compelling governmental interest. RFRA, in response, was an attempt by
Congress to overturn the Smith case, and to require a compelling governmental interest when a
state applied a generally applied law to religion.
The City of Boerne case arose when the City of Boerne denied a church a building permit to
expand, because the church was in a designated historical district. The church challenged the
zoning decision under RFRA. The Supreme Court reiterated that §5 of the Fourteenth
Amendment gave Congress the power to enforce existing constitutional protections, but found
that this did not automatically include the power to pass any legislation to protect these rights.
Instead, the Court held that there must be a “congruence and proportionality” between the injury
to be remedied and the law adopted to that end. For instance, the Court’s decision in Katzenbach
v. Morgan of allowing the banning of literacy tests was justified based on an extensive history of
minorities being denied suffrage in this country. In contrast, the Court found no similar pattern of
the use of neutral laws of general applicability disguising religious bigotry and animus against
religion. Rather than an attempt to remedy a problem, RFRA was seen by the Court as an attempt
by Congress to overturn an unpopular Supreme Court decision. The law focused on no one area
of alleged harm to religion, but rather just broadly inhibited state and local regulations of all
types. Consequently, the Court found RFRA to be an overbroad response to a relatively
nonexistent problem.
The scope of the enforcement power under § 5 of the Fourteenth Amendment also has become
important in cases where the Court has found that Congress has overreached its power under
⁷⁷
⁴⁰^{0 U}^.^S^.¹¹²⁽¹⁹⁷⁰⁾^.
⁷⁸⁵²^{1 U}^.^S^.⁵⁰⁷⁽¹⁹⁹⁷⁾^.
⁷⁹⁴⁹^{4 U}^.^S^.⁸⁷²⁽¹⁹⁹⁰⁾^.

other provision of the Constitution, or is limited by some provision thereof. For instance, as
discussed in detail below, the Supreme Court has held that the Eleventh Amendment and state
sovereign immunity generally prohibit individuals from suing states for damages under federal ⁸⁰
law. However, the Supreme Court has also held that Congress can abrogate state sovereign ⁸¹
immunity under the Fourteenth Amendment. This means that in many cases, litigants suing
states will have to find a Fourteenth Amendment basis for federal legislation in order to defeat an
Eleventh Amendment defense. For instance, a significant amount of federal legislation is clearly
supported by the commerce clause, but it might not be supported under §5. Recently, the Court
decided two cases that illustrate the difficulties of establishing Fourteenth Amendment authority
for such legislation.
In College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board,⁸² the
Supreme Court considered an unfair competition suit brought by a New Jersey savings bank
against the state of Florida. The New Jersey savings bank had developed a patented program
where individuals could use a certificate of deposit contract to save for college. The state of
Florida set up a similar program, and the College Savings Bank sued Florida for false and ⁸³
misleading advertising under a provision of the Trademark Act of 1946 (Lanham Act), alleging
that Florida had made misleading representations about its own product.
The Court first noted that under Seminole Tribe of Florida v. Florida, Article I, powers such as
the power to regulate commerce were insufficient to abrogate Eleventh Amendment immunity.
Thus, the Court next considered whether the Lanham Act could be characterized as an exercise of
Congress’s power under §5 of the Fourteenth Amendment. Although the Fourteenth Amendment
provides that no state shall “deprive a person of ... property ... without due process of law,” the
Court found that the unfair trade in question, which consisted of allegedly inaccurate statements
made by the state of Florida about its own saving program, did not infringe on any exclusive
property right held by the College Savings Bank. As the Court found that Congress had not
established an authority under the Fourteenth Amendment to abrogate the state’s immunity, the
College Savings Bank could not proceed against the state of Florida for unfair trade practices.
Even if a property interest is established, it would still need to be determined that Congress had
the authority to protect that property interest under the Fourteenth Amendment. In Florida ⁸⁴
Prepaid Postsecondary Education Expense Board v. College Savings Bank, the Court, in a
decision concerning the same parties as the case discussed above, considered whether the College
Savings Bank could sue the state of Florida for patent infringement. Congress had passed a law ⁸⁵
specifically providing that states could be sued for patent violations, citing three sources of ⁸⁶⁸⁷
constitutional authority: the Article I Patent Clause, the Article I Interstate Commerce Clause,
and §5 of the Fourteenth Amendment. As the Court had previously precluded abrogation of
⁸⁰
^S^{ee n}^o^t^es⁹⁰^-¹⁰⁴^and^acco^m^p^an^yiⁿ^g^t^e^xt^,^infr^a.
⁸¹^Se^mⁱ^nole^T^r^ibe^of^Flor^ida^v^.^Flor^ida^,⁵¹⁷^U^.^S.⁴⁴^{, 6}⁵^-⁶^{6 (}¹⁹⁹⁶⁾^;^See^dis^c^us^sⁱ^on^infra^no^t^e^{s 95}^-98^and^acco^m^p^an^yⁱⁿ^g
^te^x^t^.
⁸²⁵²^{7 U}^.^S^.⁶⁶⁶⁽¹⁹⁹⁹⁾^.
⁸³^{15 U}^.^S.C^.^§¹¹²⁵⁽^a⁾^.
⁸⁴⁵²^{7 U}^.^S^.⁶²⁷⁽¹⁹⁹⁹⁾^.
⁸⁵^P^a^te^{nt a}ⁿ^d^P^l^aⁿ^t^Va^rⁱ^e^t^y^P^r^ote^c^tⁱ^{on R}^e^m^e^d^y^C^l^a^r^ifⁱ^c^a^{tion A}^c^{t (}^P^a^t^eⁿ^{t R}^e^m^e^d^y^A^c^t)^{, 35 U}^.^S.C^.^§§²⁷¹⁽^a⁾^.
⁸⁶^U^.^{S. C}^ons^t.^A^r^{t. I}^,^§^{8, c}^l^.^8.
⁸⁷^U^.^{S. C}^ons^t.^A^r^{t. I}^,^§^{8, c}^l^.^3.

sovereign immunity through the exercise of Article I powers, the question became whether
Congress had the authority to pass patent legislation under §5 of the Fourteenth Amendment.
Unlike the previous case, the Court found that, under a long line of precedents, patents were
considered property rights. However, the Court had to further consider whether the protection of
such a property right under §5 of the Fourteenth Amendment was “appropriate” under its ruling in
City of Boerne. Consequently, the Court evaluated whether a federal right to enforce patents
against states was appropriate remedial or preventive legislation aimed at securing the protections
of the Fourteenth Amendment for patent owners. Specifically, the Court sought to evaluate
whether unremedied patent infringement by states rose to the level of a Fourteenth Amendment
violation that Congress could redress.
The Court noted that Congress had failed to identify a pattern of patent infringement by the states,
and that only a handful of patent infringement cases had been brought against states in the last
100 years. The Court also noted that Congress had failed to establish that state remedies for
patent infringement were inadequate for citizens to seek compensation for injury. In fact, the state
of Florida argued that no constitutionally based violation had occurred, as it had procedures in
place that would provide the necessary due process for patent infringement by the state to be
challenged. Consequently, the Court found that the exercise of §5 of the Fourteenth Amendment
in this context would be out of proportion to the remedial objective.
The Court engaged in a similar analysis, with like results, in evaluating the application of age ⁸⁸
discrimination laws to the states. In Kimel v. Florida Board of Regents, the Court noted that the
Age Discrimination in Employment Act of 1967, while a valid exercise of Congress’s commerce
power, could not be applied to the states unless Congress also had the power to enact it under §5
of the Fourteenth Amendment. The Kimel Court held, however, that age is not a suspect class, and
that the provisions of the ADEA far surpassed the kind of protections that would be afforded such
a class under the Fourteenth Amendment. Further, the Court found that an analysis of Congress’s
ability to legislate prophylactically under section §5 required an examination of the legislative
record to determine whether the remedies provided were proportional and congruent to the
problem. A review by the Court of the ADEA legislative record found no evidence of a pattern of
state governments discriminating against employees on the basis of age. Consequently, the Court
held that a state could not be liable for damages under the ADEA.
Similarly, the application of Title I of the Americans with Disabilities Act (ADA) to states was ⁸⁹
considered in the case of the Board of Trustees v. Garrett, again with similar result. In Garrett,
the Court evaluated whether two plaintiffs could bring claims for money damages against a state
university for failing to make reasonable employment accommodations for their disabilities; one
plaintiff was under treatment for cancer, the other for asthma and sleep apnea. Although disability
is not a suspect class and thus discrimination is evaluated under a rational basis test, the Court had ⁹⁰
previously shown a heightened sensitivity to arbitrary discrimination against the disabled.
Further, Congress had made substantial findings regarding the pervasiveness of such
discrimination. However, the Supreme Court declined to consider evidence of discrimination by
either the private sector or local government, and dismissed the examples that did relate to the
states as unlikely to rise to the level of constitutionally “irrational” discrimination. Ultimately, the
⁸⁸
⁵²^{8 U}^.^S^.⁶²⁽²⁰⁰⁰⁾^.
⁸⁹⁵³^{1 U}^.^S^.³⁵⁶⁽²⁰⁰¹⁾^.
⁹⁰^C^l^e^bur^ne^v^.^C^l^e^bur^ne^Lⁱ^vⁱ^ng^C^e^nte^r^{, I}ⁿ^c^.,⁴⁷^{3 U}^.^S^.⁴³²⁽¹⁹⁸⁵⁾^.

Court found that no pattern of unconstitutional state discrimination against the disabled had been
established, and that the application of the ADA was not a proportionate response to any pattern
that might exist.
However, the Court reached a different conclusion in the case of Nevada Department of Human ⁹¹
Resources v. Hibbs. In the Hibbs case, an employee of the Nevada Department of Human
Resources had a dispute with the Department regarding how much leave time he had available
under the Family and Medical Leave Act of 1993 (FMLA). The FMLA requires employers to
provide employees up to 12 weeks of unpaid leave to care for a close relative with a “serious ⁹²
health condition.” In Hibbs, the Court held that Congress had the power to abrogate a state’s
Eleventh Amendment immunity under the FMLA, so that a state employee could recover money
damages. The Court found that Congress had established significant evidence of a long and
extensive history of sex discrimination with respect to the administration of leave benefits by the
states, and that history was sufficient to justify the enactment of the legislation under § 5. The
standard for demonstrating the constitutionality of a gender-based classification is more difficult
to meet than the rational-basis test, such was at issue in Kimel and Garrett, so it was easier for
Congress to show a pattern of state constitutional violations.
Even where the Eleventh Amendment and state sovereign immunity are not at issue, the Court
may be asked to consider whether the Fourteenth Amendment establishes a sufficient basis for a
federal law that does not appear to have a constitutional basis elsewhere in the Constitution. For ⁹³⁹⁴
instance, in United States v. Morrison, discussed previously, the Court found that Congress, in
creating a federal private right of action for victims of gender-motivated violence, had exceeded
its authority under the Commerce Clause. Consequently, the plaintiff in that case made the
alternate argument that the federal private right of action could be sustained under § 5 of the
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 ⁹⁵
individuals. In Morrison, however, the civil case had been brought against the individuals
alleged to have engaged in the offense. The plaintiff attempted to avoid this problem by arguing
that there is pervasive bias in various state justice systems against victims of gender-motivated
violence, and that providing a federal private right of action was an appropriate means to remedy
this “state action.”
However, the Court rejected this argument, finding that the remedy did not meet the City of
Boerne test of “congruence and proportionality to the injury to be prevented or remedied and the ⁹⁶
means adopted to that end.” Because the federal private right of action was not aimed at the
allegedly discriminatory actions by state officials, but was instead directed against the individual
⁹¹
⁵³^{8 U}^.^S^.⁷²¹⁽²⁰⁰³⁾^.
⁹²^{29 U}^.^S.C^.^§²⁶¹²⁽^a⁾⁽¹⁾⁽^C⁾^.
⁹³⁵²^{9 U}^.^S^.⁵⁹⁸⁽²⁰⁰⁰⁾^.
⁹⁴^Se^e^s^upr^a^no^t^e^{s 60}^-61^and^accom^p^an^yⁱⁿ^g^t^e^xt^.
⁹⁵^Se^e^She^lle^y^v^.^K^r^a^e^m^e^r^,³³⁴^U^.^S^.^1,¹³⁽¹⁹⁴⁸⁾^.
⁹⁶⁵²^{1 U}^.^S^.^a^t⁵²⁶^.

engaging in the violence itself, the Court found that the action could not be supported by ⁹⁷
reference to the Fourteenth Amendment.
The Court again considered the issue of Congress’s power under § 5 of the Fourteenth ⁹⁸
Amendment in Tennessee v. Lane. In the Lane case, two paraplegic plaintiffs alleged that the
state of Tennessee and several of its counties violated Title II of the ADA, which requires that the
disabled be provided access to public services, programs, and activities, by failing to provide ⁹⁹
physical access to state courts. The Court held that Title II, as applied to this right of access to
the courts, was a proper exercise of Congress’s authority under § 5 of the Fourteenth Amendment
to abrogate states’ Eleventh Amendment immunity. Similar to its holdings in the Garrett and
Hibbs cases, the Court found that Congress had established sufficient evidence of the sustained ¹⁰⁰
denial of persons with disabilities of access to the courts.
In applying the Boerne congruence and proportionality test, the Court in Lane distinguished the
rights Congress intended to protect in Title II (access to public services, programs, and activities)
from the Title I employment rights that had been struck down in Garrett. While both Titles I and
II were intended to address unequal treatment of the disabled (which is only a constitutional
violation when it is irrational), the Court held that Title II was also intended to reach the more
rigorously protected rights of the Due Process Clause of the Fourteenth Amendment, such as the ¹⁰¹
right of access to the courts. The Court stated that the due process rights Congress sought to
protect under Title II required a standard of judicial review at least as searching as the sex-based ¹⁰²
classifications the Court considered in Hibbs. The limited nature of Title II as a remedy for the
denial of the right of access to courts also informed the Court’s holding that the measure is a valid ¹⁰³
prophylactic remedy.
Congress’s authority under § 5 of the Fourteenth Amendment to abrogate states’ Eleventh
Amendment immunity appears strongest when the focus of the prophylactic measure at issue is ¹⁰⁴
conduct that actually violates a constitutional right. In United States v. Georgia, a disabled state
⁹⁷
⁵²^{9 U}^.^S^.^a^t⁶²⁶^.
⁹⁸⁵⁴^{1 U}^.^S^.⁵⁰⁹⁽²⁰⁰⁴⁾^.
⁹⁹^On^{e p}^l^aiⁿ^tⁱ^f^fⁱⁿ^Lane^cl^ai^m^e^d^h^e^w^a^{s u}ⁿ^a^b^l^{e t}^o^app^{ear t}^o^an^sw^{er cri}^mⁱⁿ^al^ch^{arges o}ⁿ^t^h^{e seco}ⁿ^d^f^l^o^o^{r o}^f^{a co}^u^r^t^h^o^u^s^e
^t^h^at^h^a^{d no}^el^evat^o^r^.^T^h^{e seco}ⁿ^d^p^l^aiⁿ^tⁱ^f^f^,^{a cert}ⁱ^fⁱ^e^d^co^u^r^t^rep^o^r^t^e^r^,^cl^ai^m^e^d^sh^e^w^a^{s d}^eⁿⁱ^ed^t^h^e^o^ppo^rt^unⁱ^t^y^b^o^t^{h t}^o
^w^o^{rk an}^d^t^o^p^a^rtⁱ^cⁱ^p^at^{e i}ⁿ^t^h^{e j}^u^di^ci^al^p^r^o^{cess b}^ecau^{se sh}^{e w}^a^{s u}ⁿ^a^b^l^{e t}^o^{access n}^u^m^ero^u^s^c^ounty^c^our^th^ous^e^s^.
¹⁰⁰^T^h^{e Co}^u^r^{t cite}^d^coⁿ^g^ressioⁿ^a^l^ev^id^en^{ce th}^{at leg}ⁱ^slativ^e^attem^p^{ts p}^r^ecedⁱⁿ^g^T^{itle II in}^ad^eq^u^a^tely^ad^d^r^essed^th^e
^p^r^ob^l^e^m^o^f^p^a^t^t^e^rn^ed^uⁿ^c^on^stⁱ^t^u^tⁱ^oⁿ^a^l^t^r^eat^m^eⁿ^tⁱⁿ^{access t}^o^t^h^{e cou}^r^t^s^.⁵⁴^{1 U.}^S^.^at⁵²⁶^.
¹⁰¹^T^h^e^Court^he^ld^tha^t^it^ne^e^d^no^{t e}^x^a^m^ine^T^itle^{II a}^s^a^w^hole^w^h^eⁿ^e^v^a^l^ua^ting^the^re^m^e^d^y^{’s c}^ong^rueⁿ^c^e^a^nd
^p^r^o^p^o^r^ti^oⁿ^a^li^ty^to^th^{e in}^ju^ry^o^f^dⁱ^sab^ility^dⁱ^scrimⁱⁿ^a^tioⁿⁱⁿ^{access to}^th^{e co}^u^r^{ts. T}^h^{e relev}^aⁿ^tⁱⁿ^q^uⁱ^ry^so^lely^coⁿ^cern^e^d
^T^{itle II’s sco}^p^e^{as ap}^p^lie^d^to^th^{e r}ⁱ^g^h^{ts asso}^ciated^w^ith^{access to}^ju^dⁱ^cial^serv^{ices. T}^h^{e Co}^u^r^{t cited}^as^p^r^eced^en^{t f}^o^{r th}^is
^lim^ite^{d a}^pplic^a^tio^{n a}^ppr^oa^c^h^t^h^e^Ga^rrett^c^a^s^e^,^{in w}^h^ic^{h it c}^o^nside^r^e^d^on^ly^T^itle^{I of}^the^A^D^A^f^o^{r pu}^rpose^s^of
^Four^te^eⁿ^{th A}^m^e^ndm^eⁿ^{t a}ⁿ^a^l^y^s^is^{. B}^a^s^e^{d on t}^h^is^na^r^r^o^w^s^c^ope^of^inq^u^ir^y^,^the^C^our^t^de^te^r^m^ine^d^tha^t^bo^{th t}^h^e^pa^tte^rⁿ^of
^p^a^st^dⁱ^scri^mⁱⁿ^a^tⁱ^oⁿⁱⁿ^{access t}^o^t^h^{e co}^u^r^t^s^and^t^h^{e f}^aⁱ^l^u^{re o}^f^p^r^evi^o^{us l}^e^gi^sl^atⁱ^v^{e at}^t^e^m^p^t^s^t^o^re^m^e^d^y^t^h^{e i}ⁿ^j^u^ry^w^e^re
^suff^ic^ie^{nt to h}^o^l^d^tha^t^T^itle^{II is a}^v^a^{lid e}^x^e^r^cⁱ^se^o^f^Cong^re^{ss’ pow}^e^r^un^de^{r §}⁵^of^the^Fo^urte^eⁿ^t^h^Am^e^ndm^eⁿ^t.
¹⁰²⁵⁴^{1 U}^.^S^.^a^t⁵²⁹^.^A^s^note^d^by^C^h^ie^f^J^u^s^tic^e^R^e^hnquis^tⁱⁿ^dis^s^e^nt,⁵⁴^{1 U}^.^S.^a^t⁵^41-⁴²⁽^R^e^hⁿ^quis^t^{, C}^.^J^.^,^dis^s^e^ntiⁿ^g⁾^,
^the^c^ong^r^u^eⁿ^c^e^a^nd^pr^o^por^tⁱ^oⁿ^a^lit^y^aⁿ^a^l^y^s^{is in the}^m^a^jority^opinioⁿⁱⁿ^L^ane^di^{d n}^o^{t l}ⁱ^m^{it its}^e^l^f^{to his}^t^or^ic^a^l^e^x^am^ple^s^of
^the^dis^a^ble^d^beⁱⁿ^g^de^nie^d^d^u^e^pr^o^c^e^s^s^,^{but a}^l^s^o^c^ite^{d a}^his^t^or^y^of^dis^p^a^r^a^t^e^tr^e^a^t^m^e^{nt in ot}^he^r^le^s^s^pr^o^t^e^c^t^e^d^a^r^e^a^s^.^Se^e
^id^{. a}^t⁵²^4-²⁵^.
¹⁰³^T^itle^{II doe}^sⁿ^o^{t re}^quire^s^t^a^t^e^s^to^c^o^m^p^romⁱ^s^e^the^inte^g^r^ity^of^publi^c^prog^ra^m^s^or^m^a^ke^undu^ly^burde^ns^om^e^c^h^aⁿ^g^e^s
^{to p}^u^b^lic^f^a^c^ilitie^{s. 541}^U.S.^a^t⁵³²^{. Ra}^the^r^,^sta^t^e^s^ne^e^d^oⁿ^ly^ta^k^e^re^a^s^ona^ble^m^e^a^s^ure^s^{to c}^o^m^p^l^y^wⁱ^t^h^T^itle^II
^re^g^u^la^tions.^Id^.
¹⁰⁴¹²^{5 S}^.^C^t^.⁸⁷^{7 (}²⁰⁰⁶⁾^.

prison inmate who used a wheelchair for mobility alleged that the state of Georgia violated Title
II of the ADA in relation to his conditions of confinement. The Court reiterated its holding in
Lane that Title II is a constitutional exercise of Congress’s Fourteenth Amendment powers. It
went on to state that Title II was valid as applied to the plaintiff’s cause of action, because he
alleged independent violations under § 1 of the Fourteenth Amendment concerning his prison ¹⁰⁵
treatment.
The Tenth Amendment provides that “powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the
people.” While this language would appear to represent one of the most clear examples of a
federalist principle in the Constitution, it has not had a significant impact in limiting federal
powers. Initially, the Supreme Court interpreted the Tenth Amendment to have substantive
content, so that certain “core” state functions would be beyond the authority of the federal ¹⁰⁶
government to regulate. Thus, in National League of Cities v. Usery, the Court struck down
federal wage and price controls on state employees as involving the regulation of core state ¹⁰⁷
functions. The Court, however, overruled National League of Cities in Garcia v. San Antonio ¹⁰⁸
Metropolitan Transit Authority. In sum, the Court in Garcia seems to have said that most
disputes over the effects on state sovereignty of federal commerce power legislation are to be
considered political questions, and that the states should look for relief from federal regulation ¹⁰⁹
through the political process. This appeared to have ended the Court’s attempt to substantively
limit federal government regulation of the states.
The Court soon turned, however, to the question of how the Constitution limits the process by ¹¹⁰
which the federal government regulates the states. In New York v. United States, Congress had
attempted to regulate in the area of low-level radioactive waste. In a 1985 statute, Congress
provided that states must either develop legislation on how to dispose of all low-level radioactive
waste generated within the state, or the state would be forced to take title to such waste, which
would mean that it became the state’s responsibility. The Court found that although Congress had
the authority under the Commerce Clause to regulate low-level radioactive waste, it only had the
power to regulate the waste directly. Here, Congress had attempted to require the states to
perform the regulation, and decreed that the failure to do so would require the state to deal with
the financial consequences of owning large quantities of radioactive waste. In effect, Congress
sought to “commandeer” the legislative process of the states. In the New York case, the Court
¹⁰⁵
^Id^{. a}^t⁸⁸^1.
¹⁰⁶⁴²^{6 U}^.^S^.⁸³³⁽¹⁹⁷⁶⁾^.
¹⁰⁷^In^N^a^tio^nal^Le^a^gue^{of C}ⁱ^tⁱ^e^s^v^.^U^s^e^r^y^{, the}^Court^c^onc^e^d^e^d^tha^t^the^le^gⁱ^sla^{tion u}^nde^{r a}^tta^c^k^{, w}^h^ic^{h re}^g^u^la^te^{d the}
^w^a^g^e^s^a^{nd hour}^s^of^c^e^r^ta^{in s}^t^a^t^e^a^{nd l}^o^c^a^l^g^o^v^e^rⁿ^m^e^nta^l^em^ploy^e^e^s^{, w}^a^s^undo^ubte^d^ly^w^{ithin t}^h^e^s^c^o^p^e^of^the
^Co^{mmerce Cl}^au^se,^b^u^tⁱ^t^cau^tⁱ^oⁿ^e^d^t^h^at^t^h^{ere are at}^t^rⁱ^b^u^t^{es o}^f^so^verei^gⁿ^t^y^at^t^achⁱⁿ^{g t}^o^ever^y^st^at^{e go}^vern^m^eⁿ^t^w^hⁱ^c^h
^ma^yⁿ^o^t^b^eⁱ^m^p^aⁱ^r^ed^b^y^Coⁿ^g^ress,ⁿ^o^t^b^ecau^{se Con}^g^{ress ma}^y^l^a^c^k^an^affⁱ^r^m^atⁱ^v^{e gran}^t^o^f^l^e^gi^sl^atⁱ^v^e^au^t^h^o^rⁱ^t^y^t^o^reach
^t^h^{e m}^a^t^t^e^r,^b^u^t^b^ecau^{se t}^h^{e C}^oⁿ^s^tⁱ^t^u^tⁱ^oⁿ^p^r^ohⁱ^bⁱ^t^sⁱ^t^f^r^o^m^exer^ci^siⁿ^g^t^h^{e au}^t^h^o^rⁱ^t^yⁱⁿ^t^h^at^m^aⁿⁿ^e^r.
¹⁰⁸⁴⁶^{9 U}^.^S^.⁵²⁸⁽¹⁹⁸⁵⁾^{. J}^u^s^t^ic^e^B^l^a^c^k^m^un’^s^opi^nioⁿ^f^o^r^the^C^our^{t in}^Ga^rcia^c^onc^l^ude^{d tha}^t^the^N^a^tioⁿ^a^{l Le}^a^gue^of
^Citie^s^te^{st f}^o^{r “}ⁱ^nte^g^ra^{l ope}^ra^tio^ns^”^{in a}^r^e^a^s^of^tra^d^itio^na^{l g}^o^v^e^rnm^e^nta^l^f^unc^tio^{ns ha}^{d pr}^ov^eⁿ^im^pra^c^tic^a^l^{, a}^{nd t}^h^a^t^t^h^e
^C^our^tⁱⁿ¹⁹⁷⁶^ha^{d “}^t^rⁱ^e^d^t^o^r^e^pa^ir^w^h^a^t^{did n}^o^t^ne^e^d^r^e^pa^ir^.”
¹⁰⁹^Se^e^als^o^S^out^{h C}^a^r^o^li^{na v}^.^Bak^e^r^{, 48}^{5 U}^.^S.⁵⁰^{5 (}¹⁹⁸⁸⁾^.
¹¹⁰⁵⁰^{5 U}^.^S^.¹⁴⁴⁽¹⁹⁹²⁾^.

found that this power was not found in the text or structure of the Constitution, and it was thus a
violation of the Tenth Amendment.
A later case presented the question of the extent to which Congress could regulate through a ¹¹¹
state’s executive branch officers. This case, Printz v. United States, involved the Brady
Handgun Act. The Brady Handgun Act required state and local law-enforcement officers to
conduct background checks on prospective handgun purchasers within five business days of an
attempted purchase. This portion of the act was challenged under the Tenth Amendment, under
the theory that Congress was without authority to “commandeer” state executive branch officials.
After a historical study of federal commandeering of state officials, the Court concluded that
commandeering of state executive branch officials was, like commandeering of the legislature,
outside of Congress’s power, and consequently a violation of the Tenth Amendment.
Although the federal government is prohibited from commandeering either the legislature or
executive branch of a state, this does not appear to be the case with state judicial branches. The
federal judicial system and the state judicial system were not intended to be as separate as the
other branches of government, and the Supremacy Clause of the Constitution explicitly provides ¹¹²
that state courts must follow federal law, even if it overrides state laws or constitutions. So,
there appears to be less of a concern regarding the “commandeering” of state courts.
A key distinction between constitutional “substantive regulation” and unconstitutional
“commandeering” appears to be whether or not the federal mandate in question is regulating state
activities or whether it is seeking to control the manner in which states regulate private parties. ¹¹³
Thus, for instance, the Court recently held in Reno v. Condon that the Driver’s Privacy
Protection Act of 1994, which regulates the sale of personal information gathered from persons
seeking drivers licenses, was substantive regulation, not commandeering. In that case, the Court
found that the state was not being directed on how to regulate its citizens, but rather on how to
treat information that had been elicited from those citizens. However, because the regulation
affected both state governments and private resellers of such information, the Court reserved the
question as to whether a law, which only regulated state activities, would be constitutionally
suspect.
The Eleventh Amendment and state sovereign immunity provide an example of the complicated
interaction between the powers of the federal government, the state, and the individual. The basic ¹¹⁴
issue to be addressed here is the extent to which individuals can sue a state under federal law.
¹¹¹
⁵²^{1 U}^.^S^.⁸⁹⁸⁽¹⁹⁹⁷⁾^.
¹¹²^“^T^he^Constitu^tio^{n a}ⁿ^{d t}^h^e^L^a^w^of^the^Unite^{d Sta}^t^e^s^.^{.. sh}^a^l^l^be^t^h^e^Supre^m^e^L^a^w^o^f^the^L^a^{nd; a}^{nd t}^h^e^Judg^e^s^of
^e^v^e^r^y^Sta^t^e^s^h^a^{ll be}^bou^nd^the^r^e^b^y^....”^U^.^{S. Cons}^t.^{, A}^r^{t. V}^I^{, c}^l^.^2.
¹¹³⁵²^{8 U}^.^S^.¹⁴¹⁽²⁰⁰⁰⁾^.
¹¹⁴^It^sh^ou^l^d^b^eⁿ^o^t^e^d^t^h^at^no^t^al^l^s^uⁱ^t^{s i}ⁿ^w^hⁱ^c^h^{a st}^at^{e i}^sⁱⁿ^vo^l^v^edⁱ^s^a^“suⁱ^t^”^agaiⁿ^s^t^{a st}^at^e.^In^T^eⁿⁿ^e^{ssee S}^t^u^d^eⁿ^t
^A^s^sⁱ^s^t^aⁿ^c^e^C^o^r^p^{. v}^.^H^o^od^{, 5}⁴¹^U^.^{S. 4}⁴⁰⁽²⁰⁰⁴⁾^{, t}^h^e^C^o^ur^{t a}^d^dr^e^s^s^e^{d s}^t^a^t^e^s^o^v^e^r^e^ig^{n im}^m^unit^y^{in the}^c^onte^x^{t of}
^b^aⁿ^k^ru^p^t^cy^p^r^o^ceedⁱⁿ^gs.^{In t}^h^at^c^a^se,^t^h^{e Co}^u^r^t^ad^d^r^essed^w^h^et^h^e^r^E^l^even^t^h^Am^en^d^m^en^tⁱ^m^m^uⁿⁱ^t^y^e^x^t^eⁿ^d^e^d^t^o^an
^ad^v^e^rsar^y^p^r^o^ceedⁱⁿ^gⁱⁿ^itiated^b^y^{a d}^e^b^t^o^r^seekⁱⁿ^g^an^uⁿ^d^u^e^h^a^rd^shⁱ^p^dⁱ^sch^a^rg^{e o}^f^h^e^{r state-h}^e^ld^stu^d^eⁿ^t^lo^an^d^e^b^t^{. T}^h^e
^Co^u^r^t^h^e^l^d^t^h^at^t^h^{e p}^r^o^ceedⁱⁿ^{g di}^d^no^t^con^s^tⁱ^t^u^t^{e a su}ⁱ^t^agaiⁿ^s^t^t^h^e^st^at^{e f}^o^{r p}^u^r^po^{ses o}^f^t^h^{e E}^l^even^t^h^Amen^d^m^en^t^.^T^h^e
^Court^no^te^{d t}^h^a^t^the^ba^nk^ru^ptc^y^pe^titionⁱⁿ^que^sti^oⁿ^w^a^{s a}ⁿ^{in re}^m^p^r^o^ceedⁱⁿ^g,^s^o^t^h^at^t^h^{e cou}^r^t^’^{s j}^u^rⁱ^sdⁱ^c^tⁱ^oⁿ^w^a^{s o}^v^er
^the^pe^titi^one^r’s^de^bt,^ra^the^r^t^h^aⁿ^o^v^e^{r he}^{r pe}^rson^{or t}^h^e^sta^t^e^.^Id^.^a^t⁴⁴⁸^{. T}^hus^,^the^f^e^de^r^a^{l ba}^nk^r^u^p^t^c^y^c^our^t’^s^e^x^e^r^cⁱ^s^e^of
^jurⁱ^s^d^ic^ti^on^ov^e^r^the^s^t^a^t^e^-^he^l^d^de^{bt d}ⁱ^d^not^inf^r^ing^e^u^p^oⁿ^the^s^t^a^t^e^’^s^s^o^v^e^r^e^ig^nt^yⁱ^m^m^unity^.^Id^.^a^t⁴⁵^0.

The answer to this question may vary based on a number of factors, including what law the suit is
being brought under, whether the state has taken action to make itself amenable to such law, and
what relief is being sought.
The starting point for such a discussion is usually the Eleventh Amendment. The Eleventh
Amendment reads as follows: “The Judicial power of the United States shall not be construed to
extend to any suit in law or equity, commenced or prosecuted against one of the United States by
Citizens of another State.” The actual text of the Amendment appears to be limited to preventing
citizens from bringing diversity cases against states in federal courts. However, the Supreme
Court has expanded the concept of state sovereign immunity to reach much further than the text
of the amendment.
The Eleventh Amendment, the first amendment to the Constitution after the adoption of the Bill ¹¹⁵
of Rights, was passed as a response to the case of Chisholm v. Georgia. Immediately after the
adoption of the Constitution, a number of citizens filed cases in federal court against states. One
of these, Chisholm, was a diversity suit filed by two citizens of South Carolina against the State
of Georgia to recover a Revolutionary War debt. In Chisholm, the Supreme Court noted that
Article III of the Constitution specifically grants the federal courts diversity jurisdiction over suits ¹¹⁶
“between a State and citizens of another State.” Thus, the Court held that this grant of
jurisdiction authorized the private citizen of one state to sue another state in federal court without
that state’s consent.
The states were outraged that such a suit could be brought in federal court, protesting that the
drafters of the Constitution had promised the states they would not be sued by their debtors in
federal courts. Almost immediately after the decision of the Chisholm cases, resolutions were
introduced in Congress to overturn it, the end result being the Eleventh Amendment. The
amendment ensured that a citizen of one state could not sue another state in federal court—in
other words, a citizen could not sue under federal diversity jurisdiction without a state’s
permission.
However, even after the Eleventh Amendment was passed, a number of cases were filed against
states by private citizens, with jurisdiction based on federal question rather than diversity. Under
this reasoning, if a citizen of a state sued his or her own state in federal court, the prohibition of
the Eleventh Amendment would not apply. Consequently, for a number of years after the passage
of the Eleventh Amendment, this type of case was entertained by the federal courts. However, this ¹¹⁷
line of cases was ended by the case of Hans v. Louisiana.
In Hans v. Louisiana, the Court provided for an interpretation of the Eleventh Amendment that
allowed the Court to move beyond the literal text of that amendment. Under the reasoning of the
Court, the Eleventh Amendment was not so much an amendment to the original structure of the
Constitution as it was an attempt to overturn a specific court decision that had misinterpreted this
structure. According to this line of reasoning, the Eleventh Amendment was not an amendment,
but a restoration of the original constitutional design.
¹¹⁵
^{2 U}^.^S^.⁽^D^a^ll.)⁴¹^{9 (}¹⁷⁹³⁾^.
¹¹⁶^{U.S. C}^oⁿ^s^t.^{, A}^r^{t. III, §}²^.
¹¹⁷¹³^{4 U}^.^S^.¹⁽¹⁸⁹⁰⁾^.

Ultimately, the issue before the Court in Hans v. Louisiana and in subsequent cases was not the
Eleventh Amendment, but the issue of state sovereign immunity. State sovereign immunity means
that a state must consent to be sued in its own court system. This concept is based on early
English law, which provided that the Crown could not be sued in English courts without its
consent. The doctrine of sovereign immunity was in effect in the states that were in existence at
the time of the drafting of the Constitution. Further, various writings by the founding fathers ¹¹⁸
seemed to support the concept. Thus, the issue before the Court in Hans was whether the grant
of jurisdiction to federal courts under Article III of the Constitution had abrogated state sovereign
immunity. The Hans Court found that Article III did not have this effect.
Although the Hans Court answered the issue of whether adoption of Article III of the Constitution
had waived state sovereign immunity in federal courts, it left a number of questions unanswered.
For instance, the question as to whether there are any instances where Congress could, by statute,
abrogate a state’s sovereign immunity, so that a citizen could sue a state under federal law. In ¹¹⁹
Seminole Tribe of Florida v. Florida, the Court seemed to answer that in most cases, such suits
would not be accepted. The Seminole case involved the Indian Gaming Regulatory Act of 1988,
which provided Indian tribes with an opportunity to establish gambling operations. However, to
establish such gambling, the Indian tribes had to enter into a compact with the state in which they
were located. The states, in turn, were obligated to negotiate with the Indian tribes in good faith,
and this requirement was made enforceable in federal court. Thus, the question arose as to
whether the tribes could sue the states under the Eleventh Amendment.
The Court in Seminole found it important to establish what constitutional authority was being
exercised by the passage of the Indian Gaming Law. The Court determined that the power being ¹²⁰
exercised was the Indian Commerce Clause, which is found in Article I. The Court had found ¹²¹
previously in Pennsylvania v. Union Gas, that the Commerce Power, as a plenary power, was
so broad that of necessity it required the ability to abrogate state sovereign immunity. In
Seminole, however, the Court overturned Union Gas, holding that as the Eleventh Amendment
was ratified after the passage of the Constitution and Article I, it was a limitation on Congress’s
authority to waive a state’s sovereign immunity under that Article. The Court did indicate,
however, that Congress can abrogate state sovereignty under the Fourteenth Amendment. While ¹²²
the logic behind this distinction is unclear, it means that in many cases, litigants suing states
¹¹⁸
^Se^e^A^l^de^{n v}^.^Ma^ine^,⁵²^{7 U}^.^S^.⁷⁰⁶^{, 2}²⁴⁸⁽¹⁹⁹⁹⁾^.
¹¹⁹⁵¹^{7 U}^.^S^.⁴⁴⁽¹⁹⁹⁶⁾^.
¹²⁰^U^.^{S. C}^ons^t.^{, A}^r^{t. I, §}^8,^c^l^{. 3}^.
¹²¹⁴⁹^{1 U}^.^S^.¹⁽¹⁹⁸⁹⁾^.
¹²²^On^{e ap}^p^a^ren^t^argu^m^eⁿ^tⁱ^s^t^h^at^t^h^{e F}^o^u^r^t^een^t^h^A^m^en^d^m^en^t^{was p}^a^s^s^ed^af^t^e^{r t}^h^{e E}^l^even^t^h^Am^en^d^m^en^t^an^d^t^h^u^s^,
^unlik^e^le^gⁱ^s^l^a^tiv^e^pow^e^r^s^f^oundⁱⁿ^A^r^tic^le^I^of^the^C^ons^tit^utio^n,^{it c}^aⁿ^be^s^e^eⁿ^a^s^aⁿ^a^lte^r^a^ti^on^of^the^r^e^s^t^rⁱ^c^tions^of^the
^Ele^v^eⁿ^{th A}^m^e^ndm^eⁿ^{t. Se}^mⁱ^nole^T^r^ibe^of^Flor^ida^v^.^F^l^orⁱ^d^a^,⁵¹⁷^U^.^S.^44,⁶⁵^-⁶^{6 (}¹⁹⁹⁶⁾^{. H}^o^w^e^ve^r^,^a^s^is^dis^c^us^s^e^{d i}ⁿ
^d^e^t^aⁱ^l^b^e^l^o^w^,^t^h^{e S}^u^p^r^em^{e Co}^u^r^t^h^a^{s h}^e^l^d^t^h^at^st^at^{e so}^verei^gⁿⁱ^mmuⁿⁱ^t^y^p^r^eced^ed^an^{d p}^r^ed^at^{ed t}^h^e^Coⁿ^s^tⁱ^t^u^tⁱ^oⁿ^.^A^l^d^eⁿ
^v^.^Ma^ine^,⁵²⁷^U^.^S.⁷⁰^6,²²⁴⁸⁽¹⁹⁹⁹⁾^.^C^ons^e^q^ue^nt^ly^{, a}^{ll the}^A^r^tic^les^of^the^C^ons^t^itutⁱ^oⁿ^c^o^u^l^{d a}^r^g^u^a^b^ly^be^s^e^eⁿ^a^s
^a^lte^ring^the^re^stric^tio^{ns of}^the^sta^t^e^sov^e^re^ig^{n i}^m^m^unity^.
^A^nothe^r^a^r^g^u^m^e^nt^m^a^de^b^y^the^C^our^tⁱⁿ^Se^mⁱⁿ^o^leⁱ^s^t^h^at^t^h^e^F^o^u^r^t^een^t^h^A^m^en^d^m^en^t^w^a^{s d}^e^si^gn^ed^t^o^al^t^e^{r t}^h^{e p}^r^e-
^e^x^isting^ba^la^nc^e^be^tw^e^eⁿ^sta^t^e^aⁿ^{d f}^e^de^ra^{l pow}^e^r^a^t^the^tim^e^of^{its pa}^ssa^g^e^{. T}^h^is^a^r^g^u^m^e^nt^is^m^o^re^pla^u^sible^,^but^{is still}
^dif^fⁱ^c^u^{lt to dif}^f^e^r^e^ntia^te^be^tw^e^eⁿ^C^ong^r^e^s^s^’^s^pow^e^r^unde^r^t^h^e^F^our^t^e^eⁿ^{th A}^m^e^ndm^eⁿ^{t a}^{nd C}^ong^r^e^s^s^’^s^pow^e^r^unde^r^t^h^e
^A^r^tic^le^{s o}^f^the^Constit^uti^oⁿ^.^Lⁱ^k^e^the^Fo^urte^eⁿ^t^h^Am^e^ndm^eⁿ^t,^the^A^r^tic^le^{s o}^f^the^Constit^uti^oⁿ^w^e^re^c^l^e^a^r^l^y^inte^nde^{d t}^o
^a^lte^{r the}^ba^la^nc^e^be^tw^e^eⁿ^sta^t^e^a^{nd f}^e^de^ra^{l pow}^e^r^a^t^the^tim^e^of^the^pa^ssa^g^e^of^the^Constituti^on^{, w}^h^ic^{h inc}^l^ude^d^sta^t^e
^sov^e^re^ig^{n i}^m^m^unity^{. T}^h^{is is e}^x^e^m^plif^ie^{d by}^the^Su^pre^m^a^c^y^Cla^u^s^e^{, U}^.^{S. Co}^ns^t.,^A^r^{t. V}^I^{, c}^l^{. 2}^w^h^ic^{h prov}^ide^s^t^h^a^t^la^w^s
^pa^s^s^e^{d un}^de^r^the^A^r^tic^le^s^of^the^C^ons^tit^uti^{on w}^oul^d^be^s^upr^e^m^e^ov^er^s^t^a^t^e^la^w^.

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 ¹²³
state’s own courts. In Alden v. Maine, the Supreme Court found that the same principles of
sovereign immunity identified in Hans would prevent Congress from authorizing a state to be
sued in its own courts without permission. As in Hans, the Court acknowledged that the literal
text of the Eleventh Amendment does not prohibit such suits, as its language addresses only suits
brought in federal courts. Consequently, the Court relied instead on the proposition that sovereign
immunity is a “fundamental postulate” of the constitutional design, and is not amenable to
congressional abrogation. The same reasoning that prohibited these suits from being brought in
federal court, a deference to the “respect and dignity” of state sovereignty, led the Court to
conclude that it would be anomalous to allow such cases to be brought instead in state court.
In Federal Maritime Comm’n v. South Carolina State Ports Authority, the Court addressed the ¹²⁴
issue of whether state sovereign immunity extended to proceedings before federal agencies. In
this case, the South Carolina State Ports Authority denied a cruise ship permission to berth at the
state’s port facilities in Charleston, South Carolina, contending that the primary purpose of the
cruise was for gambling. The cruise ship company, Maritime Services, filed a claim with the
Federal Maritime Commission (FMC) arguing that South Carolina had discriminated against it in
violation of the Shipping Act of 1984 and sought, among other things, damages for loss of ¹²⁵
profits. The Port Authority, however, successfully moved to dismiss the complaint, arguing that
it was inconsistent with the concept of state sovereign immunity.
In reviewing the case, the Court analogized between the FMC’s quasi-judicial proceedings and
traditional judicial proceedings, while noting that “[t]he preeminent purpose of state sovereign
immunity is to accord States the dignity that is consistent with their status as sovereign ¹²⁶
entities.” Consequently, the Court agreed that state sovereign immunity bars the FMC from ¹²⁷
adjudicating damage claims made by a private party against a nonconsenting State. In dissent,
however, Justice Breyer noted that agency administrative proceedings are not judicial
proceedings and that the ultimate enforcement of such proceedings in a court is done by the
federal agency, to which state sovereign immunity does not apply. Thus, while an agency remains
capable of enforcement actions against states in federal court, it cannot use its own adjudicative ¹²⁸
process to determine whether to do so, but must rely on its investigatory powers. According to
¹²³
⁵²^{7 U}^.^S^.⁷⁰⁶⁽¹⁹⁹⁹⁾^.
¹²⁴¹²^{2 S}^.^C^t^.¹⁸^{6 (}²⁰⁰²⁾^.
¹²⁵^{46 U}^.^S.C^.^A^{pp. §}¹⁷⁰¹⁽¹⁹⁹^{4 &}^Sup^p^.^V)^.
¹²⁶¹²^{2 S}^.^{Ct. a}^t¹⁸⁷⁴^.
¹²⁷^T^h^{e Co}^u^r^tⁿ^o^t^e^d^t^h^at^“[t^h^{ere are]}ⁿ^u^m^ero^u^s^co^mm^oⁿ^f^eat^u^r^{es sh}^are^d^b^y^ad^mⁱⁿⁱ^st^ratⁱ^v^{e ad}^j^u^dⁱ^catⁱ^oⁿ^s^an^d^j^u^dⁱ^ci^al
^p^r^o^ceedⁱⁿ^gs.^”¹²^{2 S}^.^Ct^.^at¹⁸⁷²^.^“[^F^]^ed^eral^ad^mⁱⁿⁱ^st^ratⁱ^v^{e l}^a^w^req^uⁱ^r^{es t}^h^at^agen^cy^ad^j^u^dⁱ^catⁱ^o^{n con}^t^aiⁿ^m^aⁿ^y^o^f^t^h^e
^sa^m^e^sa^fegu^ard^s^{as are a}^v^ai^l^a^b^l^{e i}ⁿ^t^h^e^j^u^dⁱ^ci^al^p^r^o^cess.^T^h^{e p}^r^o^ceedⁱⁿ^{gs are ad}^versar^yⁱⁿⁿ^a^t^u^re.^T^h^e^y^{are c}^onduc^te^d
^be^f^o^re^a^trie^{r of}^fa^c^t^insula^te^{d f}^r^o^m^politic^a^l^inf^l^ue^nc^e^.^A^pa^rty^{is e}ⁿ^title^d^to^pre^s^eⁿ^t^{his c}^a^s^e^by^ora^l^{or d}^o^c^u^m^e^nta^r^y
^evi^d^en^ce,^an^d^t^h^{e t}^r^an^scri^p^t^o^f^t^e^stⁱ^m^oⁿ^y^an^d^exhⁱ^bⁱ^t^s^t^o^get^h^{er w}ⁱ^t^h^t^h^{e pl}^eadⁱⁿ^{gs co}ⁿ^s^tⁱ^t^u^t^e^{s t}^h^{e excl}^u^sⁱ^v^{e reco}^rd^f^o^r
^de^cⁱ^sion.^T^h^e^pa^rtie^{s a}^r^e^eⁿ^title^d^t^o^k^now^the^fⁱ^ndi^ng^{s a}^{nd c}^o^nc^lusi^ons^{on a}^l^l^of^the^issue^s^of^f^a^c^t^{, la}^w^,^{or disc}^re^tion
^p^r^esen^t^e^d^on^t^h^{e reco}^rd^.^”^Id^.
¹²⁸^Ju^stⁱ^{ce Breyer n}^o^t^ed^t^h^at^af^t^e^{r t}^hⁱ^s^d^eci^si^oⁿ^“a^p^rⁱ^v^at^{e p}^e^rsoⁿ^canno^t^b^rⁱⁿ^{g a co}^m^p^l^aⁱⁿ^t^agaiⁿ^s^t^{a S}^t^a^t^{e t}^o^{a f}^e^d^e^ral
^a^d^mⁱ^nistra^tiv^e^a^g^eⁿ^c^y^w^h^e^r^e^the^a^g^eⁿ^c^y⁽¹⁾^w^{ill use}^aⁿⁱⁿ^te^rn^a^l^a^d^j^udic^a^tioⁿ^proc^e^{ss to}^de^cⁱ^de^if^the^c^o^m^p^la^{int is w}^e^ll
^f^ounde^d,^aⁿ^d⁽²⁾^if^s^o^{, pr}^o^ceed^t^o^co^u^r^t^t^o^en^f^o^{rce t}^h^{e l}^a^w^.^”^Id^.^a^t¹⁸⁸¹^.

Justice Breyer, “[t]he natural result is less agency flexibility, a larger federal bureaucracy, less fair ¹²⁹
procedure, and potentially less effective law enforcement.”
It should be noted that in many instances, the federal government still has the ability to influence ¹³⁰
state behavior despite the constitutional limits discussed above. One of the more significant
ways that the federal government can encourage state behavior is to impose conditions on the
receipt of federal monies by the states. Considering the large amount of funds provided to states
by the federal government, this represents a significant power for Congress to exercise. Further,
as the concept of grant conditioning can involve waiver by the states of Tenth and Eleventh
Amendment rights, these grant conditions may allow Congress to indirectly achieve compliance
by a state in a way that could not be achieved directly.
The question of whether a state can be required to perform (or refrain from) certain actions was ¹³¹
addressed in the Supreme Court case of South Dakota v. Dole. In Dole, Congress enacted the ¹³²
National Minimum Drinking Age Amendment of 1984, which directed the Secretary of
Transportation to withhold a percentage of federal highway funds from states in which the age for
purchase of alcohol was below 21 years. The State of South Dakota, which permitted 19-year-
olds to purchase beer, brought suit arguing that the law was an invalid exercise of Congress’s ¹³³
power under the Spending Clause to provide for the “general welfare.” The Supreme Court
held that, as the indirect imposition of such a standard was directed toward the general welfare of
the country, it was a valid exercise of Congress’s spending power.
The Court noted that the grant condition did not implicate an independent constitutional bar, i.e.,
the grant condition did not require the state to engage in an unconstitutional activity. Further, the
court noted that the grant condition was not a violation of the Tenth Amendment, which generally ¹³⁴¹³⁵
prevents Congress from “commandeering” state legislatures and executive branch officials to ¹³⁶
implement federal programs. The Tenth Amendment would not apply here, the Court held,
because the state officials were voluntarily cooperating in order to receive federal grants, and thus
were not being directed to comply with federal mandates.
¹²⁹
^Id^.
¹³⁰^{For i}ⁿ^staⁿ^c^e^,^t^h^e^f^e^de^ra^{l g}^o^v^e^rn^m^e^{nt ha}^{s, in}^som^e^c^a^s^e^s^{, m}^a^de^the^a^pplic^a^tio^{n of}^f^e^de^ra^{l re}^g^u^la^tory^a^u^th^ority
^coⁿ^tⁱⁿ^gen^t^,^so^t^h^atⁱ^f^{a st}^at^{e ch}^oo^{ses t}^o^regu^l^a^t^eⁱⁿ^t^h^at^fⁱ^el^d^,^t^h^e^f^e^de^ra^{l re}^g^u^la^tory^role^is^circu^m^scrib^e^d^.^In^m^aⁿ^y^c^a^ses,
^{this w}^{ill e}ⁿ^c^oura^g^e^sta^t^e^s^{to re}^g^u^l^a^te^{, so}^tha^t^the^sta^t^e^ha^{s c}^l^ose^r^c^o^ntrol^of^the^a^p^plic^a^tio^{n of}^suc^h^re^g^u^la^{tion w}^ithiⁿ^t^h^e
^st^at^e.^S^ee,^e.^g^.^,⁴²^U^.^S^.^C^.^§⁷⁴¹⁰⁽ⁿ^a^tio^na^{l a}ⁱ^r^c^o^ntr^o^l^s^t^a^nda^r^d^sⁿ^o^t^a^pplic^a^b^le^up^on^the^a^d^op^tio^{n by}^s^t^a^t^e^s^of^a^d^e^qua^te
^ai^{r co}ⁿ^t^r^o^l^st^and^a^rd^s).
¹³¹⁴⁸^{3 U}^.^S^.²⁰³⁽¹⁹⁸⁷⁾^.
¹³²²³^U^.^S^.^C^.^§1⁵⁸^.
¹³³^U^.^{S. C}^ons^t.^{, A}^r^{t I}^,^8,^c^l^{1 (}^C^ong^r^e^s^s^ha^s^the^pow^e^r^{to “}^l^a^y^a^{nd c}^o^ll^e^c^t^T^a^x^e^s^,^D^u^tie^s^,^I^m^pos^ts^{, a}^{nd E}^x^cⁱ^s^e^s^,^{to pa}^y
^t^h^{e Deb}^t^{s and}^p^r^o^vⁱ^d^{e f}^o^{r t}^h^{e c}^o^mm^oⁿ^De^f^eⁿ^{ce an}^d^gen^e^ral^W^e^l^f^{are o}^f^t^h^{e Un}ⁱ^t^e^d^S^t^at^es”).
¹³⁴^N^e^w^Y^o^r^k^v^.^Uⁿ^ite^{d S}^t^a^t^e^s^{, 50}⁵^U^.^{S. 1}⁴⁴⁽¹⁹⁹²⁾^.
¹³⁵^P^r^intz^v^.^Uⁿ^ite^d^Sta^t^e^s^{, 5}²¹^U^.^S.⁸⁹⁸⁽¹⁹⁹⁷⁾^.
¹³⁶^I^t^w^{ould s}^e^e^m^tha^t^s^o^v^e^r^e^ig^{n im}^m^unit^y^is^a^c^o^r^e^s^t^a^t^e^pow^e^r^{, a}^nd^tha^t^r^e^q^u^ir^ing^its^w^a^iv^e^r^w^{ould r}^aⁱ^s^e^T^e^nth
^Amen^d^m^en^t^coⁿ^cern^s^.^S^ee,^e.^g.^,^N^a^tiona^{l L}^e^a^g^ue^of^Citie^s^v^.^U^s^e^r^y^,^{426 U}^.^S.⁸^{33 (}¹⁹^76)(s^tr^ik^ing^d^o^wⁿ^f^e^de^ra^l^w^a^g^e
^a^{nd pr}^ic^e^c^ontr^o^ls^oⁿ^s^t^a^t^e^e^m^ploy^e^e^s^as^inv^o^lv^ing^the^r^e^g^u^la^tioⁿ^o^f^tr^a^d^itiona^{l s}^t^a^t^e^f^unc^ti^ons⁾^.^A^s^dⁱ^s^c^us^s^e^d
^pr^e^v^ious^ly^{, how}^e^v^e^r^{, the}^C^our^t^ha^s^,^f^o^r^the^tim^e^be^ing^,^a^b^aⁿ^d^one^{d t}^h^is^li^ne^of^c^a^s^e^s^.^G^a^r^c^ia^v^.^Sa^{n A}ⁿ^to^nio
^Me^trop^olitaⁿ^T^r^aⁿ^{sit A}^u^thority^{, 4}^{69 U.}^S.⁵²^{8 (1}⁹⁸^5)(c^oⁿ^c^l^ud^ing^t^h^a^t^the^te^{st to}^ideⁿ^tify^tra^d^itio^na^{l g}^o^v^e^rnm^e^nta^l
^f^unc^{tions ha}^{d prov}^eⁿ^im^pra^c^tic^a^l^{, a}^{nd t}^h^a^t^suc^h^dis^pute^s^sh^ou^ld^be^re^solv^e^d^thro^ug^{h t}^h^e^p^o^litic^a^l^pro^c^e^ss).

The Court did suggest, however, that there were limits to Congress’s power under the Spending
Clause to require states to meet certain grant conditions. First, a grant condition must be related to ¹³⁷
the particular national projects or programs to which the money was being directed. In Dole,
the congressional condition imposing a specific drinking age was found to be related to the
national concern of safe interstate travel, which was one of the main purposes for highway funds
being expended. Second, the Court suggested that, in some circumstances, the financial
inducements offered by Congress might be so coercive as to pass the point at which “pressure ¹³⁸
turns into compulsion.” In Dole, however, the percentage of highway funds that were to be
withheld from a state with a drinking age below 21 was relatively small, so that Congress’s
program did not coerce the states to enact higher minimum drinking ages than they would
otherwise choose.
One of the more controversial potential applications of this doctrine arises when the government
requires that, in order to receive a grant, a state waive its sovereign immunity to suits brought by
private citizens. As discussed above, the Supreme Court has imposed significant limits on
Congress’s ability to abrogate state sovereign immunity. However, this does not appear to have
prevented the lower courts from finding that states can be required to waive their sovereign
immunity as a condition of receiving grants.
A state’s sovereign immunity, is “a personal privilege which it may waive at its pleasure.”¹³⁹
Thus, it is clearly possible for a state, under some circumstances, to waive sovereign immunity as ¹⁴⁰
a condition of receiving federal funds. The Supreme Court has held that “mere receipt of ¹⁴¹
federal funds” is insufficient to constitute a waiver of state sovereign immunity. However, the
Court has also held that where a federal statute contains an “unambiguous waiver” of a state’s
Eleventh Amendment immunity, then a state’s acceptance of such funds can be an effective ¹⁴²
waiver.
¹³⁷
⁴⁸^{3 U}^.^S^.^a^t²⁰⁷^.
¹³⁸^I^d^{. a}^t²¹^1.
¹³⁹^C^o^lle^g^e^Sa^vⁱ^ng^s^B^a^nk^v^.^Flor^ida^P^r^e^p^aⁱ^d^Pos^t^s^e^c^oⁿ^d^a^r^y^Educ^a^tion^Ex^pe^ns^e^B^o^a^r^d,⁵²^{7 U}^.^S^.⁶⁶⁶^,⁶⁷⁴⁽¹⁹⁹⁹⁾^c^iti^ng
^C^l^a^r^k^v^.^B^a^rⁿ^a^r^{d, 1}^{08 U}^.^S.⁴³^6,⁴^{47 (}¹⁸⁸³⁾^.
¹⁴⁰^Sinc^e^suc^h^a^w^a^ive^r^m^u^{st be}^v^o^lu^nta^r^y^,^the^{Court w}^ill^c^o^nside^r^c^a^r^e^f^ull^y^w^h^e^t^he^{r a}^sta^t^e^ha^{s a}^c^t^ua^lly^w^aⁱ^v^e^d^its
^im^m^unit^y^{. A}^t^a^s^c^a^d^e^r^{o Sta}^t^e^Hosp^ita^{l v}^.^Sc^aⁿ^lo^n,⁴⁷^{3 U.S}^.²³⁴^,²⁴¹⁽¹⁹⁸⁵⁾^{. F}^o^{r insta}ⁿ^c^e^,^a^c^ourt^w^{ill g}^e^ne^ra^ll^y^only
^fⁱⁿ^d^{a w}^aⁱ^v^{er t}^o^f^e^d^e^ral^suⁱ^t^b^a^{sed o}ⁿ^{a st}^at^{e st}^at^u^t^{e i}^f^{a st}^at^{e mak}^e^{s a “cl}^{ear d}^ecl^aratⁱ^oⁿ^”^t^h^atⁱ^tⁱⁿ^t^e^{nds t}^o^sub^mⁱ^tⁱ^t^s^el^f
^{to f}^e^de^ra^{l juris}^d^ic^ti^on^{. G}^r^e^a^t^N^o^rthe^{rn L}ⁱ^f^e^Ins^.^{Co. v}^.^Re^a^d^,³²^{2 U}^.^{S. 4}⁷^,⁵⁴⁽¹⁹⁴^4).^S^{ee a}^l^so^P^eⁿⁿ^hu^r^s^{t Sta}^t^e^Sc^h^ool
^a^{nd H}^o^s^p^ita^{l v}^.^H^a^lde^r^m^a^{n, 46}⁵^U^.^{S. 8}⁹^,⁹⁹⁽¹⁹⁸⁴⁾⁽^S^ta^te^’^s^c^o^ns^eⁿ^{t t}^o^s^u^it^m^u^s^t^be^“^une^q^u^iv^oc^a^lly^e^x^pr^e^s^s^e^d”⁾^.
¹⁴¹^A^t^a^s^c^a^d^e^r^{o Sta}^t^e^H^o^s^p^ita^l^v^.^Sc^aⁿ^lo^n,⁴⁷^{3 U}^.^S^.²³⁴⁽¹⁹⁸⁵⁾^{. I}ⁿ^At^a^s^c^ade^r^o^St^ate^H^o^s^p^it^al,^t^h^e^Co^urt^he^{ld t}^h^a^t^if^a
^s^t^a^t^ute^“^m^aⁿⁱ^f^e^s^ts^a^c^l^e^a^r^inte^{nt t}^o^c^ond^itioⁿ^pa^rtic^ipa^tⁱ^on^{in t}^h^e^pr^o^g^r^am^s^f^unde^{d u}^nde^r^the^A^c^{t on a}^Sta^t^e^’^s^w^aⁱ^v^e^r^of
ⁱ^t^s^coⁿ^s^tⁱ^t^u^tⁱ^oⁿ^a^lⁱ^m^m^uⁿⁱ^t^y^,^”^f^e^d^e^ral^co^u^r^t^s^w^o^u^l^d^h^a^{ve j}^u^ri^s^dⁱ^c^tⁱ^{on o}^v^{er cl}^ai^{ms agai}ⁿ^s^t^st^at^{es a}^ccep^tⁱⁿ^{g f}^e^d^e^ral^f^unds^.
^I^d^{. a}^t²⁴^7.
¹⁴²^L^a^ne^v^.^P^e^na^,⁵¹^{8 U}^.^S^.¹⁸⁷^,²⁰⁰⁽¹⁹^96).^For^ins^t^aⁿ^c^e^,^Se^c^tion⁵⁰⁴^of^the^Re^ha^bilita^ti^on^A^c^{t of}¹⁹⁷³^,^{29 U}^.^S.C.^§
⁷⁰¹^,^et^seq^.^pr^ov^ide^s^tha^t^“^a^s^t^a^t^e^s^h^a^{ll n}^o^{t be}^im^m^une^unde^r^the^El^e^v^eⁿ^{th A}^m^eⁿ^d^m^eⁿ^{t of}^the^C^ons^tit^utioⁿ^of^the^Uⁿ^ite^d
^Sta^t^e^s^f^r^o^m^{suit in}^Fe^de^ra^{l c}^our^{t f}^o^{r a}^vⁱ^ola^tⁱ^on^of^se^c^{tion 5}⁰⁴^of^th^e^Re^ha^bilita^ti^{on A}^c^{t of}¹⁹⁷^3..^..”⁴²^U.S.C^.^§²⁰⁰^0d-
⁷⁽^a⁾⁽¹⁾^.^C^ons^e^q^ue^ntly^{, a}^num^be^r^of^Uⁿ^ite^{d Sta}^t^e^s^C^o^ur^ts^of^A^ppe^a^l^s^ha^v^e^f^{ound t}^h^a^t^r^ecei^p^t^o^f^f^e^d^e^ral^f^unding^s^u^bje^c^t
^{to t}^h^{is c}^oⁿ^d^iti^on^w^a^{s suff}^icⁱ^e^{nt to}^w^aⁱ^v^e^a^sta^t^e^’^{s sov}^e^re^ig^{n i}^m^m^unity^{. Koslow}^v^.^Co^m^m^onwe^a^{lth of}^P^eⁿⁿ^sy^lv^aⁿ^ia^rd^th
^D^e^pa^r^t^m^e^{nt of}^C^o^r^r^e^c^tions^;³⁰^{2 F}^.^3d¹⁶^{1 (}³^Cⁱ^r^.²⁰⁰²⁾^;^Nihⁱ^ser^{v. Oh}ⁱ^o^EP^A^,²⁶⁹^F.^3d⁶²^{6 (}⁶^Cⁱ^r^.²⁰⁰¹⁾^;^Jⁱ^m^C^.^v^.^th^th
^Uⁿ^ite^{d S}^t^a^t^e^s^{, 23}^{5 F}^.³^d¹⁰⁷⁹⁽⁸^Cⁱ^r^.²⁰⁰⁰⁾^;^S^t^aⁿ^le^y^v^.^L^itsc^h^e^r^{, 2}¹³^F.3^d³⁴^0,³⁴⁴⁽⁷^Cⁱ^r^.²⁰⁰⁰⁾^;^P^e^de^r^s^{on v}^.^L^a^{. St.}^th^th
^Uⁿ^iv^.,²^{13 F.}^{3d 85}^{8, 87}^5-⁷⁶⁽⁵^Cⁱ^r^.²⁰⁰⁰⁾^;^Sa^nd^ov^a^l^v^.^H^a^g^a^{n, 197}^F.3^d⁴⁸^4,⁴⁹³^-⁹^{4 (}¹¹^Cⁱ^r^.¹⁹⁹⁹⁾^,^r^e^v^’^{d o}ⁿ^ot^he^r^th
^g^r^oun^ds^{, 5}³²^U^.^S.²⁷^{5 (}²⁰⁰¹⁾^;^L^itm^aⁿ^v^.^G^e^or^ge^Ma^s^{on U}ⁿ^iv^.,¹⁸⁶^F.3^d⁵⁴⁴^,⁵⁵⁴⁽⁴^Cⁱ^r^.¹⁹⁹⁹⁾^{; C}^l^a^r^k^v^.^C^a^lif^or^nia^,^th
¹²³^F^.³^d¹²⁶⁷^,¹²⁷¹⁽⁹^Cⁱ^r^.¹⁹⁹⁷⁾^.

Thus, it would appear that the waiver of sovereign immunity as a grant condition would pass
constitutional muster under Dole. Just as states may waive their Tenth Amendment rights not to
be commandeered when accepting grant conditions (as noted in Dole), it seems generally
accepted that there is no constitutional bar to a state voluntarily waiving its sovereign immunity ¹⁴³
rights. As a general matter, conditioning a federal grant on the voluntary waiver of state
sovereign immunity does not seem to be of particular constitutional concern.
Under Dole, however, a court would, on a case-by-case basis, need to examine the level of
financial burden that would be imposed on the state by the withdrawal of a particular federal
grant to ensure that the condition was not coercive. Further, under Dole, a court would need to
examine how related the purpose of the proposed bill was to the waiver of sovereign immunity in ¹⁴⁴
connection with a particular grant program. However, the Court in Dole indicated that it would
show significant deference to Congress in determining whether a grant condition relates to an
underlying federal program, and this requirement does not appear to have been of concern to ¹⁴⁵
lower courts considering waiver of sovereign immunity as a grant condition.
It would appear that the status of the state in the federal system has been strengthened by recent
Supreme Court opinions. Although the Court has not scaled back the federal government’s
substantive jurisdiction significantly, it has to some extent prevented the expansion of Congress’s
power under the Commerce Clause and under §5 of the Fourteenth Amendment. Further it has
created a variety of obstacles as to how these powers can be executed, forbidding Congress under
the Tenth Amendment from commandeering the authority of state legislative and executive
branches, and limiting the authority of Congress to abrogate state sovereign immunity.
Ultimately, however, Congress retains significant powers to influence state behavior, such as
through the Spending Clause, and, under the Supremacy Clause, Congress may require the
enforcement of its laws in both state and federal court.
¹⁴³
^Sus^aⁿ^{M. L}^u^k^e^n,^Irrecoⁿ^c^il^a^b^l^e^Differen^{ces: th}^{e S}^p^eⁿ^dⁱⁿ^g^Cl^a^u^s^e^aⁿ^d^t^h^{e Eleven}^th^Amen^d^m^en^t:^Li^mitin^g
^C^ongr^e^s^s^’^s^U^s^e^{of C}^oⁿ^d^iti^on^al^Sp^e^ndin^g^t^o^Cⁱ^r^c^um^v^eⁿ^t^El^even^t^h^A^m^en^d^m^en^t^Immunⁱ^t^y^,7^{0 U}^.^Cⁱ^n.^L^.^R^e^v^.⁶⁹^{3 (}²⁰⁰²⁾^;
^Mⁱ^ch^ael^T^.^Gⁱ^b^s^oⁿ^,^C^o^ngr^e^s^sⁱ^oⁿ^a^l^Aut^hor^ity^t^o^Iⁿ^d^u^c^e^W^a^iv^e^r^s^{of S}^t^ate^S^o^v^e^r^eⁱ^{gn I}^m^m^u^nity^:^T^h^e^C^o^nditi^on^al
^Speⁿ^dⁱⁿ^{g P}^o^w^e^r⁽^{and Be}^y^o^nd)^{, 2}⁹^H^a^s^ting^s^C^ons^t^.^L^.^Q^.⁴^{39 (}²⁰⁰²⁾^{; L}^itm^aⁿ^v^.^G^e^or^ge^Ma^s^{on U}ⁿ^iv^e^r^s^ity^{, 186 F.}^3d⁵⁴⁴^th^th
⁽⁴^Cⁱ^r^.¹⁹⁹⁹⁾^;^Ji^m^C^.^v.^Unⁱ^t^e^d^St^at^es,²³⁵^F^.³^d¹⁰⁷⁹⁽⁸^Cir.²⁰⁰⁰^).
¹⁴⁴^Se^e^id.^a^t¹⁰⁸⁴⁽^B^ow^m^a^{n, J}^,^dis^s^e^nting⁾⁽^a^r^g^uing^t^h^a^t^w^a^iv^e^r^o^f^s^o^v^e^r^e^ig^{n i}^m^m^unity^w^a^s^{not r}^e^la^te^d^to^pur^pos^e^of
^ed^u^catⁱ^o^{n gran}^t^s^).
¹⁴⁵^Se^e^ge^ne^r^a^lly^L^itm^aⁿ^v^.^G^e^or^ge^Ma^s^{on U}ⁿ^iv^e^r^sⁱ^t^y^{, 186}^F.^3d⁵⁴^{4 (}⁴^th^Cⁱ^r^.¹⁹⁹⁹⁾^;^Jⁱ^m^C^.^v^.^Uⁿ^ite^d^St^a^t^e^s^{, 235}^F.^3d
¹⁰⁷^{9 (}⁸^th^Cⁱ^r^.²⁰⁰⁰⁾^.

^K^eⁿⁿ^et^h^R^.^T^h^om^a^s
^L^e^gⁱ^s^l^at^iv^{e A}^t^torn^e^y
^k^t^h^o^m^a^s@^crs^.^l^o^c.g^o^v^,^7-⁵⁰⁰⁶