Order Code RL30315
Federalism, State Sovereignty, and
the Constitution: Basis and Limits of
Congressional Power
Updated January 24, 2007
Kenneth R. Thomas
Legislative Attorney
American Law Division

Federalism, State Sovereignty, and the Constitution:
Basis and Limits of Congressional Power
Summary
The ratification of the U.S. Constitution, to a significant extent, defined the lines
of authority between the state and federal governments. In recent years, the Supreme
Court has decided a number of cases that address this historical relationship. This
report discusses state and federal legislative power generally and focuses on a
number of these “federalism” cases. The report does not, however, address the much
larger policy issue of when it is appropriate — as opposed to constitutionally
permissible — for federal powers to be exercised.
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 the
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 based on the Equal
Protection and Due Process Clauses of the Fourteenth Amendment. Section 5 of that
amendment provides that Congress has the power to legislate regarding 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.” 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 further than the text of the
amendment, prohibiting citizens generally from bringing suits against states in
federal court. There are exceptions to this limitation, however, and Congress also has
a limited ability to abrogate such state immunity.

Contents
Powers of the States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Powers of the Federal Government . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
The Commerce Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
The Fourteenth Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
The Tenth Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Eleventh Amendment and State Sovereign Immunity . . . . . . . . . . . . . . . . . 19
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Federalism, State Sovereignty, and the
Constitution: Basis and Limits of
Congressional Power
The ratification of the U.S. Constitution, to a significant extent, defined the lines
of authority between the state and federal governments. In recent years, the Supreme
Court has decided a number of cases that address this historical relationship between
the federal government and the states. This report discusses state and federal
legislative power generally, and focuses on a number of these “federalism” cases.1
Issues addressed include congressional power under the Commerce Clause and the
Fourteenth Amendment; limits on congressional powers, such as the Tenth
Amendment; 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.
Powers of the States
States may generally legislate on all matters within their territorial jurisdiction.
This “police power” does not arise from the Constitution, but is an inherent attribute
of the states’ territorial sovereignty. The Constitution does, however, provide certain
specific limitations on that power. For instance, a state is relatively limited in its
authority regarding the regulation of foreign imports and exports2 or the conduct of
foreign affairs.3 Further, states must respect the decisions of courts of other states,4
and are limited in their ability to vary their territory without congressional
1 Portions of this report were prepared by Kristin Thornblad, legal intern.
2 See, e.g., U.S. Const. Art. I, §10, cl. 2 (“No State shall ... lay any Impost or Duties on
Imports or Exports.”)
3 “No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops,
or Ships of War in time of Peace, enter into any Agreement or Compact with another State,
or with a foreign Power, or engage in War unless actually invaded, or in such imminent
Danger as will not admit of delay.” U.S. Const., Art. I,§ 10, cl. 3.
4 “Full Faith and Credit shall be given in each State to the public Acts, Records, and Judicial
Proceedings of every other State. And the Congress may by general Laws prescribe the
Manner in which such Acts, Records, and Proceedings shall be proved, and the Effect
thereof.” U.S. Const. Art. IV, §1. This “Full Faith and Credit Clause” gives Congress what
amounts to enforcement authority over the required recognition by each state of the
judgments, records, and legislation of other states.

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permission.5 In addition, the Supreme Court has found that states are limited in their
ability to burden interstate commerce.6
Powers of the Federal Government
The powers of the federal government, while limited to those enumerated in the
Constitution,7 have been interpreted broadly, so as to create a large potential overlap
with state authority. For instance, Article I, § 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 Department or Officer thereof.”
Early in the history of the Constitution, the Supreme Court found that this clause
enlarges rather than narrows the powers of Congress.8
Congress has broad financial powers, including the power to tax and spend in
order to pay debts and provide for the common defense and general welfare of the
United States.9 Congress also has the power to borrow money and to appropriate
money from the United States Treasury.10 The purposes for which Congress may tax
and spend are very broad and are not limited by the scope of other enumerated
powers under which Congress may regulate.11 On the other hand, Congress has no
power to regulate “for the general welfare,” but may only tax and spend for that
purpose.
5 “... [N]o new State shall be formed or erected within the Jurisdiction of any other State;
nor any State be formed by the Junction of two or more States, or parts of States, without
the Consent of the Legislatures of the States concerned as well as Congress.” U.S. Const.,
Art. IV, §3, cl. 1.
6 Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824).
7 Article I, §1, of the Constitution provides that “All legislative powers herein granted shall
be vested in a Congress of the United States.” Unlike a typical grant of power to states
Article I, §1, does not grant to Congress “all legislative power,” but rather grants to
Congress only those specific powers enumerated in §8 and elsewhere in the Constitution.
8 As stated by Chief Justice Marshall in McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316
(1819): “Let the end be legitimate, let it be within the scope of the Constitution, and all
means which are appropriate, which are plainly adapted to that end, which are not
prohibited, but consist with the letter and spirit of the Constitution, are constitutional.”
9 “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises,
to pay the Debts and provide for the common Defence and general Welfare of the United
States; but all Duties, Imposts and Excises shall be uniform throughout the United States.”
U.S. Const., Art. I, §8, cl. 1.
10 “No Money shall be drawn from the Treasury, but in Consequence of Appropriations
made by Law.” U.S. Const., Art. I, §9, cl. 7.
11 United States v. Butler, 297 U.S. 1 (1936).

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Congress also has broad authority over the commercial interests of the nation,
including the power to regulate commerce,12 to establish bankruptcy laws,13 to coin
money,14 to punish counterfeiters,15 to establish post offices and post roads,16 and to
grant patents and copyrights.17 The Commerce Clause, discussed in more detail
below, is one of the most far-reaching grants of power to Congress. Regulation of
interstate commerce covers all movement of people and things across state lines,
including communication and transportation.
Congress has broad powers over citizenship, including the power to define the
circumstances under which immigrants may become citizens,18 and to protect the
rights of those persons who have citizenship. The Fourteenth Amendment gives
Congress the power to enforce the guarantees of the Fourteenth Amendment,
including the right to due process and equal protection.19 This power extends
specifically to the power of Congress to protect the rights of citizens who are at least
1820 to vote regardless of race, color, previous condition of servitude,21 or sex.22
Congress may also regulate the time, place, and manner of federal elections,23 and
12 “To regulate commerce with foreign Nations, and among the several States, and with the
Indian Tribes.” U.S. Const., Article I,§ 8, cl. 3.
13 U.S. Const., Art. I, §8, cl. 4.
14 U.S. Const., Art. I, §8 cl. 5.
15 U.S. Const., Art. I, §8, cl. 6.
16 U.S. Const., Art. I, §8, cl. 7.
17 U.S. Const., Art. I, §8, cl. 8.
18 “The Congress shall have power ... To establish an uniform Rule of Naturalization.” U.S.
Const., Art I, § 8, cl. 4. “All persons born or naturalized in the United States and subject to
the jurisdiction thereof, are citizens of the United States and of the State wherein they
reside.” U.S. Const., Amend. XIV, §1.
19 “No State shall make or enforce any law which shall abridge the privileges or immunities
of citizens of the United States; nor shall any State deprive any person of life, liberty, or
property, without due process of law; nor deny to any person within its jurisdiction the equal
protection of the laws.” U.S. Const., Amend. XIV, §1. The Congress shall have power to
enforce, by appropriate legislation, the provisions of this article. Id. at §5.
20 U.S. Const., Amend. XXVI.
21 U.S. Const., Amend. XV.
22 U.S. Const., Amend. XIX.
23 “The Times, Places and Manner of holding Elections for Senators and Representatives,
shall be prescribed in each State by the Legislature thereof; but the Congress may at any
time by Law make or alter such Regulations, except as to the Places of chusing Senators.”
U.S. Const., Article I, §4, cl. 1. While the Fifteenth Amendment and the other voting rights
guarantees noted above protect only against state action, congressional authority under this
clause includes protection of the electoral process against private interference. A variety of
enactments can be traced to this authority, including campaign finance laws and the Hatch
Act (insofar as it applies to federal elections).

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judge the result of such elections.24 Congress also has a number of other powers
relating to elections and appointments.25
Congress has the power and authority to purchase and administer property, and
has power over those jurisdictions that are not controlled by states, such as the
District of Columbia and the territories.26 Congress is limited by the Fifth
Amendment, however, in the taking of private property without compensation.27
Congress has numerous powers related to war and the protection of the United States
and its sovereign interests.28
The Commerce Clause
As noted above, the U.S. Constitution provides that Congress shall have the
power to regulate commerce with foreign nations and among the various states.29
This power has been cited as the constitutional basis for a significant portion of the
laws passed by the Congress over the last 50 years, and it currently represents one of
the broadest bases for the exercise of congressional powers. In United States v.
Lopez
,30 however, the Supreme Court brought into question the extent to which the
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
24 “Each House shall be the Judge of the Elections, Returns and Qualifications of its own
Members.” Article I, §5, cl. 1. The House and the Senate act as judicial tribunals in
resolving contested election cases.
25 See, e.g., U.S. Const., Amend. XIV, §2 (apportionment).
26 “The Congress shall have power ... To exercise exclusive Legislation in all Cases
whatsoever, over such District ... as may, by Cession of Particular States, and the
Acceptance of Congress, become the Seat of the Government of the United States, and to
exercise like Authority over all Places purchased by the Consent of the Legislature of the
State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards
and other needful Buildings.” Article I, §8, cl. 17. “The Congress shall have power to
dispose of and make all needful Rules and Regulations respecting the Territory or other
Property belonging to the United States....” Article IV, § 3, cl. 2.
27 “[N]or shall private property be taken for public use, without just compensation.” U.S.
Const., Amend. V. Implicit in the Fifth Amendment’s requirement that just compensation
be paid for private property that is taken for a public use is the existence of the
government’s power to take private property for public use.
28 See, e.g., U.S. Const. Art. I, § 8, cl. 10 (“The Congress shall have power ... To define and
punish Piracies and Felonies committed on the high Seas, and Offences against the Law of
Nations”); U.S. Const., Art. I, § 8, cl. 11 (“... To declare War, grant Letters of Marque and
Reprisal, and make Rules concerning Captures on Land and Water.”); U.S. Const., Art. I,
§8, cl. 12 (“To raise and support Armies....”).
29 U.S. Const., Art. I, §8, cl. 3.
30 514 U.S. 549 (1995).

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individual knows, or has reasonable cause to believe, is a school zone.”31 In Lopez,
the Court held that, because the Act neither regulated a commercial activity nor
contained a requirement that the possession was connected to interstate commerce,
the Act exceeded the authority of the Congress under the Commerce Clause.
Although the Court did not explicitly overrule any previous rulings upholding federal
statutes passed under the authority of the Commerce Clause, the decision would
appear to suggest new limits to Congress’s legislative authority.
The scope and extent of the Commerce Clause does not appear to have been of
particular concern to the framers of the Constitution.32 There are indications that the
founding fathers considered the federal regulation of commerce to be an important
power of the new Constitution primarily as a means of facilitating trade and of
raising revenue.33 While the Anti-Federalists argued that the new Constitution gave
too much power to the federal government, they apparently did not raise significant
objections to the granting of power to regulate interstate commerce.34
The Supreme Court, however, developed an expansive view of the Commerce
Clause relatively early in the history of judicial review. For instance, Chief Justice
Marshall wrote in 1824 that “the power over commerce ... is vested in Congress as
absolutely as it would be in a single government ...” and that “the influence which
their constituents possess at elections, are ... the sole restraints” on this power.35
However, the issue in most of the early Supreme Court Commerce Clause cases dealt
not with the limits of Congressional authority, but on the implied limitation of the
Commerce Clause on a state’s ability to regulate commerce.36
It has been suggested that the Commerce Clause should be restricted to the
regulation of “selling, buying, bartering and transporting.”37 In fact, much of the
federal legislation approved of by the Supreme Court early in this century did relate
31 18 U.S.C. §922(q)(1)A).
32 Abel, The Commerce Clause in the Constitutional Convention and in Contemporary
Comment
, 25 Minn. L. Rev. 432, 443-44 (1941); Greenspan, The Constitutional Exercise
of the Federal Police Power: A Functional Approach to Federalism
, 41 Vanderbilt Law
Review 1019, 1022-24 (1988). Those materials which do address Congressional control over
commerce focus on the necessity of uniformity in matters of foreign commerce, although
the drafters clearly intended domestic commerce to be regulated as well. P. Kurland & R.
Lerner, THE FOUNDER’S CONSTITUTION 477-528 (1987).
33 Alexander Hamilton, CONTINENTALIST, No. 5, 18 Apr. 1782 (Paper 3:75-82) as reprinted
in P. Kurland & R. Lerner, supra note 32 (“The vesting of the power of regulating trade
ought to have been a principal object of the confederation for a variety of reasons. It is as
necessary for the purposes of commerce as of revenue.”)
34 Greenspan, supra note 32 at 1023.
35 Gibbons v. Odgen, 22 U.S. (9 Wheat.) 1, 197-98 (1824).
36 See, e.g., Brown v. Maryland, 25 U.S. (12 Wheat.) 419 (1827).
37 United States v. Lopez, 514 U.S. at 593 (Thomas, J., dissenting).

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to issues such as the regulation of lottery tickets,38 the transporting of adulterated
food,39 and the interstate transportation of prostitutes.40 Moreover, during the early
1900s, the Supreme Court struck down a series of federal statutes that attempted to
extend commerce regulation to activities such as “production,” “manufacturing,”41
and “mining.”42
Starting in 1937, however, with the decision in NLRB v. Jones & Laughlin Steel
Corporation,43 the Supreme Court held that Congress has the ability to protect
interstate commerce from burdens and obstructions that “affect” commerce
transactions. In the NLRB case, the court upheld the National Labor Relations Act,
finding that by controlling industrial labor strife, Congress was preventing burdens
from being placed on interstate commerce.44 Thus, the Court rejected previous
distinctions between the economic activities (such as manufacturing) that led up to
interstate economic transactions, and the interstate transactions themselves. By
allowing Congress to regulate activities that were in the “stream” of commerce, the
Court also set the stage for the regulation of a variety of other activities that “affect”
commerce.
Subsequent Court decisions found that Congress had considerable discretion in
determining which activities “affect” interstate commerce, as long as the legislation
was “reasonably” related to achieving its goals of regulating interstate commerce.45
Thus the Court found that in some cases, events of purely local commerce (such as
local working conditions) might, because of market forces, negatively affect the
regulation of interstate commerce, and thus would be susceptible to regulation.46 The
Court has also held that an activity which in itself does not affect interstate commerce
could be regulated if all such activities taken in the aggregate did affect interstate
commerce.47 Under the reasoning of these cases, the Court has upheld many diverse
38 Champion v. Ames (The Lottery Case), 188 U.S. 321 (1903).
39 Hippolite Egg Co. v. United States, 220 U.S. 45 (1911).
40 Hoke v. United States, 227 U.S. 308 (1913).
41 United States v. E.C. Knight Co., 156 U.S. 1, 12 (1895).
42 Carter v. Carter Coal Co., 298 U.S. 238, 304 (1936).
43 301 U.S. 1 (1937).
44 301 U.S. at 41.
45 United States v. Darby, 312 U.S. 100 (1941)(approving legislation relating to working
conditions).
46 312 U.S. at 121.
47 Wickard v. Filburn, 317 U.S. 111 (1942).

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laws, including laws regulating production of wheat on farms,48 racial discrimination
by businesses,49 and loan-sharking.50
The Lopez case was significant in that it is the first time since 1937 that the
Supreme Court struck down a federal statute purely based on a finding that Congress
had exceeded it powers under the Commerce Clause.51 In doing so, the Court
revisited its prior cases, sorted the commerce power into three categories, and
asserted that Congress could not go beyond these three categories: (1) regulation of
channels of commerce, (2) regulation of instrumentalities of commerce, and (3)
regulation of economic activities that “affect” commerce.52
Within the third category of activities that “affect commerce,” the Court
determined that the power to regulate commerce applies to intrastate activities only
when they “substantially” affect commerce.53 Still, the Court in Lopez spoke
approvingly of earlier cases upholding laws that regulated intrastate credit
transactions, restaurants utilizing interstate supplies, and hotels catering to interstate
guests. The Court also recognized that while some intrastate activities may by
themselves have a trivial effect on commerce, regulation of these activities may be
constitutional if their regulation is an essential part of a larger economic regulatory
scheme. Thus, the Court even approved what has been perceived as one of its most
expansive rulings, Wickard v. Filburn, which allowed the regulation of the
production and consumption of wheat for home consumption.54
The Court in Lopez found, however, that the Gun-Free School Zones Act fell
into none of the three categories set out above. It held that it is not a regulation of
channels of commerce, nor does it protect an instrumentality of commerce. Finally,
its effect on interstate commerce was found to be too removed to be “substantial.”
The Court noted that the regulated activity, possessing guns in school, neither by
48 Id.
49 See Heart of Atlanta Motel v. United States, 370 U.S. 241 (1964); Katzenbach v.
McClung, 379 U.S. 241 (1964).
50 Perez v. United States, 402 U.S. 146 (1971).
51 Herman Schwartz, Court Tries to Patrol a Political Line, Legal Times 25 (May 8, 1995).
52 The Court failed to note that to some extent, the three categories are intertwined. For
instance, the first category, the regulation of “streams” or “channels” of commerce, allows
regulation of the creation, movement, sale and consumption of merchandise or services. But
the initial extension of the “streams” of commerce analysis by the Court to intrastate trade
was justified by the “effect” of these other activities on commerce. See NLRB v. Jones &
Laughlin, 301 U.S. 1, 31 (1936). Similarly, the second category, which allows the
regulation of such instrumentalities of commerce as planes, trains or trucks, is also based
on the theory that a threat to these instrumentalities “affects” commerce, even if the effect
is local in nature. Southern Railway Company v. United States, 222 U.S. 21, 26-27
(1911)(regulation of intrastate rail traffic has a substantial effect on interstate rail traffic).
Thus, the final category identified by the Court appears to be a catch-all for all other
activities which “substantially affect” commerce.
53 514 U.S. at 559.
54 Wickard v. Filburn, 317 U.S. 111 (1942).

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itself nor in the aggregate affected commercial transactions.55 Further, the statute
contained no requirement that interstate commerce be affected, such as that the gun
had been previously transported in interstate commerce.56 Nor was the
criminalization of possession of a gun near a school part of a larger regulatory
scheme that did regulate commerce.57 Finally, the Court indicated that criminal law
enforcement is an area of law traditionally reserved to the states. 58 Consequently,
the Court found that the 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 existing federal laws, which have traditionally
been drafted to be consistent with this case law,59 would survive constitutional
scrutiny even under Lopez. However, in at least one significant case, Congress
passed a law, the Violence Against Women Act, that seemed to invoke the same
concerns that the Court found in Lopez. Consequently, the relevant portion of that
act was struck down in United States v. Morrison.60
In Morrison, the Court evaluated whether 42 U.S.C. § 13981, which provides
a federal private right of action for victims of gender-motivated violence, was within
the power of Congress to enact under the Commerce Clause. In Morrison, the victim
of an alleged rape brought suit against the alleged rapist, arguing that this portion of
the Act was sustainable because it addressed activities that substantially affect
interstate commerce.61 The Court, however, noted that unlike traditional statutes
based on the commerce clause, the activity in question had nothing to do with
commerce or an economic enterprise. This point had been made previously in Lopez,
and here the Court reaffirmed the holding that in order to fall under the acceptable
category of laws that “substantially affect commerce,” the underlying activity itself
must generally be economic or commercial.62 As gender-motivated violence does not
55 514 U.S. at 564. The Court rejected arguments that possession of guns in school affected
the national economy by its negative impact on education. Id.
56 514 U.S. at 561.
57 514 U.S. at 560.
58 514 U.S. at 580 (Kennedy, J., concurring). The Court has reiterated its concern over
extending Commerce Clause powers to Congress in areas of the law traditionally reserved
to the states. See, e.g., Solid Waste Agency of Northern Cook County (SWANCC) v. U.S.
Army Corps of Engineers, 531 U.S. 159, 174 (2001) (rejecting an interpretation of the Clean
Water Act which allowed regulation of nonnavigable, isolated wetlands as infringing upon
the “traditional and primary state power over land and water use”).
59 See, e.g., 18 U.S.C. §247 (2000)(forbidding obstruction of persons in the free exercise
of religious beliefs where the offense “is in or affects interstate or foreign commerce.”)
60 529 U.S. 598 (2000).
61 Id. at 609.
62 The requirement that a commerce clause regulation be economic or commercial has been
influential in a number of subsequent statutory interpretation cases. In Jones v. United
(continued...)

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inherently relate to an economic activity, the Court held that it was beyond the
authority of the Congress to regulate.
In the case of Gonzales v. Raich,63 the Court evaluated an “as applied” challenge
to the Controlled Substances Act as regards obtaining, manufacturing, or possessing
marijuana for medical purposes. The case was brought by two seriously ill residents
of California who used marijuana in compliance with the California Compassionate
Use Act of 1996.64 The challenge was based on the argument that the narrow class
of activity being engaged in — the intrastate, noncommercial cultivation and
possession of cannabis for personal medical purposes as recommended by a patient’s
physician pursuant to valid California state law — did not have a substantial impact
on commerce, and thus could not be regulated under the Commerce Clause.65
In upholding the application of the Controlled Substances Act in the Raich case,
the Court relied on its decision in Wickard v. Filburn,66 which held that “even if
appellee’s activity be local and though it may not be regarded as commerce, it may
still, whatever its nature, be reached by Congress if it exerts a substantial economic
effect on interstate commerce.”67 The Wickard case upheld the application of the
Agricultural Adjustment Act of 1938,68 which was designed to control prices by
regulating the volume of wheat moving in interstate commerce. The Court in
62 (...continued)
States, 529 U.S. 848 (2000), a criminal defendant challenged his conviction under 18 U.S.C.
§ 844(i), which, in part, makes it a crime to destroy by fire or explosive a building “used”
in interstate commerce. Applying the statutory canon that one should interpret a statute to
avoid constitutional doubt, Jones v. United States, 526 U.S. 227, 239 (1999), the Court held
that the statute did not apply to a private residence that was “used” as collateral to obtain
and secure a loan, “used” to obtain insurance, and “used” to receive natural gas from other
sources. The Court construed the statute to require that a building protected by § 844(i) be
“actively employed” for commercial purposes, id. at 855, arguing that a broader
interpretation would extend the statute to virtually every arson in the country.
A similar result occurred in the case of Solid Waste Agency of Northern Cook County
(SWANCC) v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001). In SWANCC, the Court
considered a challenge to the Migratory Bird Rule, 51 Fed. Reg. 41217, which extended
§ 404(a) of the Clean Water Act (CWA), 33 U.S.C. § 1344(a) to nonnavigable, isolated
wetlands. The Court held that this interpretation of the statute would raise serious
constitutional questions, requiring, for instance, a close examination of precisely what
activity was being regulated. Absent a clear statement from Congress that it intended the
Clean Water Act to have such a broad reach, the Court found the rule was not supported by
the statute. Id. at 173. See also Rapanos v. United States Army Corps of Engineers, 165 L.
Ed. 2d 159, 201 (2006).
63 125 S. Ct. 2195 (2005).
64 Cal. Health & Safety Code Ann §11362.5 (West Supp. 2005) (providing for the legal
possession of medical marijuana by a patient or primary care-giver, upon the written or oral
recommendation of a physician).
65 125 S. Ct. at 2211.
66 317 U.S. 111 (1942).
67 Id. at 125.
68 52 Stat. 31.

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Wickard held that the Congress could regulate not only the wheat sold into
commerce, but also wheat retained for consumption on a farm.69 The Court did so
on the theory that the while the impact of wheat consumed on the farm on interstate
commerce might be trivial, it was significant when combined with wheat from other
farmers similarly situated.70
Based on Wickard, the Court in Raich held that Congress could consider the
aggregate effect that allowing the production and consumption of marijuana for
medical purposes would have on the illegal market for marijuana.71 Of even greater
concern was that diversion of marijuana grown for medicinal purposes for other uses
would frustrate the federal interest in eliminating commercial transactions in the
interstate market.72 In both cases, the Court found that the regulation was within
Congress’s commerce power because Congress had a rational basis to determine that
production of a commodity meant for home consumption, be it wheat or marijuana,
could have a substantial effect on supply and demand. In addition, because
exempting the use of medical marijuana could undercut enforcement of the
Controlled Substances Act, the Court found that the application in this case was
within Congress’s authority to “make all Laws which shall be necessary and proper”73
to effectuate its powers.
The Fourteenth Amendment
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 passed immediately after the Civil War (the
Thirteenth,74 Fourteenth, and Fifteenth75 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.
69 Id. at 128-29.
70 Id. at 127.
71 125 U.S. at 2207.
72 Id.
73 U.S. Const., Art. I, § 8.
74 U.S. Const., Amend. XIII (prohibiting slavery).
75 U.S. Const., Amend. XV (voting rights).

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The scope of Congress’s power under §5 of the Fourteenth Amendment,
however, has been in flux over the years. In Katzenbach v. Morgan,76 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 persons who had
reached 6th grade in a Puerto Rican school taught in Spanish. In upholding the
statute, the Court rejected the argument that Congress’s power to legislate under the
Fourteenth Amendment was limited to enforcing that which the Supreme Court
found to be a violation of that amendment. Rather, the Court held that Congress
could enforce the Fourteenth Amendment by “appropriate” legislation consistent with
the “letter and spirit of the constitution.”
The rationale for this holding appears to be that Congress has the ability to
evaluate and address factual situations that it determines may lead to degradation of
rights protected under the Fourteenth Amendment. This is true even if a court would
not find a constitutional violation to have occurred. In fact, what the Court appeared
to have done was to require only that Congress establish a rational basis for why the
legislation was necessary to protect a Fourteenth Amendment right.
Subsequent Supreme Court cases, however, have limited the reach of
Katzenbach. In Oregon v. Mitchell,77 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 1990 case of
Oregon v. Smith,79 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 the Congress to overturn the Smith case, and
76 384 U.S. 641 (1966).
77 400 U.S. 112 (1970).
78 521 U.S. 507 (1997).
79 494 U.S. 872 (1990).

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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 the 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 other provision of the Constitution, or is limited by
some provision thereof. For instance, as discussed in detail below, the Supreme
Court has held that the Eleventh Amendment and state sovereign immunity generally
prohibit individuals from suing states for damages under federal law.80 However, the
Supreme Court has also held that Congress can abrogate state sovereign immunity
under the Fourteenth Amendment.81 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 misleading advertising under a
80 See notes 90-104 and accompanying text, infra.
81 Seminole Tribe of Florida v. Florida, 517 U.S. 44, 65-66 (1996); See discussion infra
notes 95-98 and accompanying text.
82 527 U.S. 666 (1999).

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provision of the Trademark Act of 1946 (Lanham Act),83 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 the Congress had the authority to protect that property interest under the
Fourteenth Amendment. In Florida Prepaid Postsecondary Education Expense
Board v. College Savings Bank
,84 the Court, in a decision concerning the same parties
as the case discussed above, considered whether the College Savings Bank could sue
the state of Florida for patent infringement. Congress had passed a law specifically
providing that states could be sued for patent violations,85 citing three sources of
constitutional authority: the Article I Patent Clause,86 the Article I Interstate
Commerce Clause,87 and §5 of the Fourteenth Amendment. As the Court had
previously precluded abrogation of sovereign immunity through the exercise of
Article I powers, the question became whether 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 the 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
83 15 U.S.C. § 1125(a).
84 527 U.S. 627 (1999).
85 Patent and Plant Variety Protection Remedy Clarification Act (Patent Remedy Act), 35
U.S.C. §§ 271(a).
86 U.S. Const. Art. I, § 8, cl. 8.
87 U.S. Const. Art. I, § 8, cl. 3.

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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 discrimination laws to the states. In Kimel v. Florida Board of
Regents
,88 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 the Congress’s ability to legislate prophylactically under section
§5 required an examination of the legislative record to determine whether the
remedies provided were proportional and congruent to the problem. A review by the
Court of the ADEA legislative record found no evidence of a pattern of state
governments discriminating against employees on the basis of age. Consequently,
the Court held that a state could not be liable for damages under the ADEA.
Similarly, the application of Title I of the Americans with Disabilities Act
(ADA) to states was considered in the case of the Board of Trustees v. Garrett,89
again with similar result. In Garrett, the Court evaluated whether two plaintiffs
could bring claims for money damages against a state university for failing to make
reasonable employment accommodations for their disabilities; one plaintiff was
under treatment for cancer, the other for asthma and sleep apnea. Although disability
is not a suspect class and thus discrimination is evaluated under a rational basis test,
the Court had previously shown a heightened sensitivity to arbitrary discrimination
against the disabled.90 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 Court found that no
pattern of unconstitutional state discrimination against the disabled had been
established, and that the application of the ADA was not a proportionate response to
any pattern that might exist.
However, the Court reached a different conclusion in the case of Nevada
Department of Human Resources v. Hibbs.91 In the Hibbs case, an employee of the
Nevada Department of Human Resources had a dispute with the Department
88 528 U.S. 62 (2000).
89 531 U.S. 356 (2001).
90 Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985).
91 538 U.S. 721 (2003).

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regarding how much leave time he had available under the Family and Medical Leave
Act of 1993 (FMLA). The FMLA requires employers to provide employees up to 12
weeks of unpaid leave to care for a close relative with a “serious health condition.”92
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 instance, in United States v.
Morrison
,93 discussed previously,94 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 individuals.95 In Morrison, however, the civil case had been
brought against the individuals alleged to have engaged in the offense. The plaintiff
attempted to avoid this problem by arguing that there is pervasive bias in various
state justice systems against victims of gender-motivated violence, and that providing
a federal private right of action was an appropriate means to remedy this “state
action.”
However, the Court rejected this argument, finding that the remedy did not
meet the City of Boerne test of “congruence and proportionality to the injury to be
prevented or remedied and the means adopted to that end.”96 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 engaging in the violence
itself, the Court found that the action could not be supported by reference to the
Fourteenth Amendment.97
92 29 U.S.C. § 2612(a)(1)(C).
93 529 U.S. 598 (2000).
94 See supra notes 60-61 and accompanying text.
95 See Shelley v. Kraemer, 334 U.S. 1, 13 (1948).
96 521 U.S. at 526.
97 529 U.S. at 626.

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The Court again considered the issue of Congress’s power under § 5 of the
Fourteenth Amendment in Tennessee v. Lane.98 In the Lane case, two paraplegic
plaintiffs alleged that the state of Tennessee and several of its counties violated Title
II of the ADA, which requires that the disabled be provided access to public services,
programs, and activities, by failing to provide physical access to state courts.99 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 denial of persons with disabilities of access to the courts.100
In applying the Boerne congruence and proportionality test, the Court in Lane
distinguished the rights Congress intended to protect in Title II (access to public
services, programs, and activities) from the Title I employment rights that had been
struck down in Garrett. While both Titles I and II were intended to address unequal
treatment of the disabled (which is only a constitutional violation when it is
irrational), the Court held that Title II was also intended to reach the more rigorously
protected rights of the Due Process Clause of the Fourteenth Amendment, such as the
right of access to the courts.101 The Court stated that the due process rights Congress
sought to protect under Title II required a standard of judicial review at least as
searching as the sex-based classifications the Court considered in Hibbs.102 The
limited nature of Title II as a remedy for the denial of the right of access to courts
also informed the Court’s holding that the measure is a valid prophylactic remedy.103
98 541 U.S. 509 (2004).
99 One plaintiff in Lane claimed he was unable to appear to answer criminal charges on the
second floor of a courthouse that had no elevator. The second plaintiff, a certified court
reporter, claimed she was denied the opportunity both to work and to participate in the
judicial process because she was unable to access numerous county courthouses.
100 The Court cited congressional evidence that legislative attempts preceding Title II
inadequately addressed the problem of patterned unconstitutional treatment in access to the
courts. 541 U.S. at 526.
101 The Court held that it need not examine Title II as a whole when evaluating the remedy’s
congruence and proportionality to the injury of disability discrimination in access to the
courts. The relevant inquiry solely concerned Title II’s scope as applied to the rights
associated with access to judicial services. The Court cited as precedent for this limited
application approach the Garrett case, in which it considered only Title I of the ADA for
purposes of Fourteenth Amendment analysis. Based on this narrow scope of inquiry, the
Court determined that both the pattern of past discrimination in access to the courts and the
failure of previous legislative attempts to remedy the injury were sufficient to hold that Title
II is a valid exercise of Congress’ power under § 5 of the Fourteenth Amendment.
102 541 U.S. at 529. As noted by Chief Justice Rehnquist in dissent, 541 U.S. at 541-42
(Rehnquist, C.J., dissenting), the congruence and proportionality analysis in the majority
opinion in Lane did not limit itself to historical examples of the disabled being denied due
process, but also cited a history of disparate treatment in other less protected areas. See id.
at 524-25.
103 Title II does not require states to compromise the integrity of public programs or make
unduly burdensome changes to public facilities. 541 U.S. at 532. Rather, states need only
(continued...)

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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 conduct that actually violates a constitutional right.
In United States v. Georgia,104 a disabled state prison inmate who used a wheelchair
for mobility alleged that the state of Georgia violated Title II of the ADA in relation
to his conditions of confinement. The Court reiterated its holding in Lane that Title
II is a constitutional exercise of Congress’s Fourteenth Amendment powers. It went
on to state that Title II was valid as applied to the plaintiff’s cause of action, because
he alleged independent violations under § 1 of the Fourteenth Amendment
concerning his prison treatment.105
The Tenth Amendment
The Tenth Amendment provides that “powers not delegated to the United States
by the Constitution, nor prohibited by it to the States, are reserved to the States
respectively, or to the people.” While this language would appear to represent one
of the most clear examples of a federalist principle in the Constitution, it has not had
a significant impact in limiting federal powers. Initially, the Supreme Court
interpreted the Tenth Amendment to have substantive content, so that certain “core”
state functions would be beyond the authority of the federal government to regulate.
Thus, in National League of Cities v. Usery,106 the Court struck down federal wage
and price controls on state employees as involving the regulation of core state
functions.107 The Court, however, overruled National League of Cities in Garcia v.
San Antonio Metropolitan Transit Authority.
108 In sum, the Court in Garcia seems
to have said that most disputes over the effects on state sovereignty of federal
commerce power legislation are to be considered political questions, and that the
states should look for relief from federal regulation through the political process.109
This appeared to have ended the Court’s attempt to substantively limit federal
government regulation of the states.
103 (...continued)
take reasonable measures to comply with Title II regulations. Id.
104 125 S. Ct. 877 (2006).
105 Id. at 881.
106 426 U.S. 833 (1976).
107 In National League of Cities v. Usery, the Court conceded that the legislation under
attack, which regulated the wages and hours of certain state and local governmental
employees, was undoubtedly within the scope of the Commerce Clause, but it cautioned that
there are attributes of sovereignty attaching to every state government which may not be
impaired by Congress, not because Congress may lack an affirmative grant of legislative
authority to reach the matter, but because the Constitution prohibits it from exercising the
authority in that manner.
108 469 U.S. 528 (1985). Justice Blackmun’s opinion for the Court in Garcia concluded that
the National League of Cities test for “integral operations” in areas of traditional
governmental functions had proven impractical, and that the Court in 1976 had “tried to
repair what did not need repair.”
109 See also South Carolina v. Baker, 485 U.S. 505 (1988).

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The Court soon turned, however, to the question of how the Constitution limits
the process by which the federal government regulates the states. In New York v.
United States
,110 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 found that this power was not found in the text or structure of the
Constitution, and it was thus a violation of the Tenth Amendment.
A later case presented the question of the extent to which Congress could
regulate through a state’s executive branch officers. This case, Printz v. United
States
,111 involved the Brady Handgun Act. The Brady Handgun Act required state
and local law-enforcement officers to conduct background checks on prospective
handgun purchasers within five business days of an attempted purchase. This portion
of the Act was challenged under the Tenth Amendment, under the theory that
Congress was without authority to “commandeer” state executive branch officials.
After a historical study of federal commandeering of state officials, the Court
concluded that commandeering of state executive branch officials was, like
commandeering of the legislature, outside of Congress’s power, and consequently
a violation of the Tenth Amendment.
Although the federal government is prohibited from commandeering either the
legislature or executive branch of a state, this does not appear to be the case with
state judicial branches. The federal judicial system and the state judicial system were
not intended to be as separate as the other branches of government, and the
Supremacy Clause of the Constitution explicitly provides that state courts must
follow federal law, even if it overrides state laws or constitutions.112 So, there
appears to be less of a concern regarding the “commandeering” of state courts.
A key distinction between constitutional “substantive regulation” and
unconstitutional “commandeering” appears to be whether or not the federal mandate
in question is regulating state activities or whether it is seeking to control the manner
in which states regulate private parties. Thus, for instance, the Court recently held
in Reno v. Condon113 that the Driver’s Privacy Protection Act of 1994, which
regulates the sale of personal information gathered from persons seeking drivers
110 505 U.S. 144 (1992).
111 521 U.S. 898 (1997).
112 “The Constitution and the Law of the United States ... shall be the Supreme Law of the
Land; and the Judges of every State shall be bound thereby....” U.S. Const., Art. VI, cl. 2.
113 528 U.S. 141 (2000).

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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.
Eleventh Amendment and State Sovereign Immunity
The Eleventh Amendment and state sovereign immunity provide an example of
the complicated interaction between the powers of the federal government, the state,
and the individual. The basic issue to be addressed here is the extent to which
individuals can sue a state under federal law.114 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 of Rights, was passed as a response to the case of Chisholm v.
Georgia
.115 Immediately after the adoption of the Constitution, a number of citizens
filed cases in federal court against states. One of these, Chisholm, was a diversity
suit filed by two citizens of South Carolina against the State of Georgia to recover a
Revolutionary War debt. In Chisholm, the Supreme Court noted that Article III of
the Constitution specifically grants the federal courts diversity jurisdiction over suits
“between a State and citizens of another State.”116 Thus, the Court held that this
114 It should be noted that not all suits in which a state is involved is a “suit” against a state.
In Tennessee Student Assistance Corp. v. Hood, 541 U.S. 440 (2004), the Court addressed
state sovereign immunity in the context of bankruptcy proceedings. In that case, the Court
addressed whether Eleventh Amendment immunity extended to an adversary proceeding
initiated by a debtor seeking an undue hardship discharge of her state-held student loan debt.
The Court held that the proceeding did not constitute a suit against the state for purposes of
the Eleventh Amendment. The Court noted that the bankruptcy petition in question was an
in rem proceeding, so that the court’s jurisdiction was over the petitioner’s debt, rather than
over her person or the state. Id. at 448. Thus, the federal bankruptcy court’s exercise of
jurisdiction over the state-held debt did not infringe upon the state’s sovereignty immunity.
Id. at 450.
115 2 U.S. (Dall.) 419 (1793).
116 U.S. Const., Art. III, §2.

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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
line of cases was ended by the case of Hans v. Louisiana.117
In Hans v. Louisiana, the Court provided for an interpretation of the Eleventh
Amendment that allowed the Court to move beyond the literal text of that
amendment. Under the reasoning of the Court, the Eleventh Amendment was not
so much an amendment to the original structure of the Constitution as it was an
attempt to overturn a specific court decision that had misinterpreted this structure.
According to this line of reasoning, the Eleventh Amendment was not an amendment,
but a restoration of the original constitutional design.
Ultimately, the issue before the Court in Hans v. Louisiana and in subsequent
cases was not the Eleventh Amendment, but the issue of state sovereign immunity.
State sovereign immunity means that a state must consent to be sued in its own court
system. This concept is based on early English law, which provided that the Crown
could not be sued in English courts without its consent. The doctrine of sovereign
immunity was in effect in the states that were in existence at the time of the drafting
of the Constitution. Further, various writings by the founding fathers seemed to
support the concept.118 Thus, the issue before the Court in Hans was whether the
grant of jurisdiction to federal courts under Article III of the Constitution had
abrogated state sovereign immunity. The Hans Court found that Article III did not
have this effect.
Although the Hans Court answered the issue of whether adoption of Article III
of the Constitution had waived state sovereign immunity in federal courts, it left a
number of questions unanswered. For instance, the question as to whether there are
any instances where Congress could, by statute, abrogate a state’s sovereign
immunity, so that a citizen could sue a state under federal law. In Seminole Tribe of
117 134 U.S. 1 (1890).
118 See Alden v. Maine, 527 U.S. 706, 2248 (1999).

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Florida v. Florida,119 the Court seemed to answer that in most cases, such suits
would not be accepted. The Seminole case involved the Indian Gaming Regulatory
Act of 1988, which provided Indian tribes with an opportunity to establish gambling
operations. However, to establish such gambling, the Indian tribes had to enter into
a compact with the state in which they were located. The states, in turn, were
obligated to negotiate with the Indian tribes in good faith, and this requirement was
made enforceable in federal court. Thus, the question arose as to whether the tribes
could sue the states under the Eleventh Amendment.
The Court in Seminole found it important to establish what constitutional
authority was being exercised by the passage of the Indian Gaming Law. The Court
determined that the power being exercised was the Indian Commerce Clause,120
which is found in Article I. The Court had found previously in Pennsylvania v.
Union Gas
,121 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 the logic behind this distinction is unclear,122 it
means that in many cases, litigants suing states will try to find a Fourteenth
Amendment basis for federal legislation to defeat an Eleventh Amendment defense.

A question left unanswered by the Hans decision was whether the Eleventh
Amendment, which prohibited Congress from abrogating a state’s sovereign
immunity in federal court, extended to a state’s own courts. In Alden v. Maine,123 the
Supreme Court found that the same principles of sovereign immunity identified in
119 517 U.S. 44 (1996).
120 U.S. Const., Art. I, § 8, cl. 3.
121 491 U.S. 1 (1989).
122 One apparent argument is that the Fourteenth Amendment was passed after the Eleventh
Amendment and thus, unlike legislative powers found in Article I of the Constitution, it can
be seen as an alteration of the restrictions of the Eleventh Amendment. Seminole Tribe of
Florida v. Florida, 517 U.S. 44, 65-66 (1996). However, as is discussed in detail below, the
Supreme Court has held that state sovereign immunity preceded and predated the
Constitution. Alden v. Maine, 527 U.S. 706, 2248 (1999). Consequently, all the Articles of
the Constitution could arguably be seen as altering the restrictions of the state sovereign
immunity.
Another argument made by the Court in Seminole is that the Fourteenth Amendment
was designed to alter the pre-existing balance between state and federal power at the time
of its passage. This argument is more plausible, but is still difficult to differentiate between
Congress’ power under the Fourteenth Amendment and Congress’ power under the Articles
of the Constitution. Like the Fourteenth Amendment, the Articles of the Constitution were
clearly intended to alter the balance between state and federal power at the time of the
passage of the Constitution, which included state sovereign immunity. This is exemplified
by the Supremacy Clause, U.S. Const., Art. VI, cl. 2 which provides that laws passed under
the Articles of the Constitution would be supreme over state law.
123 527 U.S. 706 (1999).

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Hans would prevent Congress from authorizing a state to be sued in its own courts
without permission. As in Hans, the Court acknowledged that the literal text of the
Eleventh Amendment does not prohibit such suits, as its language addresses only
suits brought in federal courts. Consequently, the Court relied instead on the
proposition that sovereign immunity is a “fundamental postulate” of the
constitutional design, and is not amenable to congressional abrogation. The same
reasoning that prohibited these suits from being brought in federal court, a deference
to the “respect and dignity” of state sovereignty, led the Court to conclude that it
would be anomalous to allow such cases to be brought instead in state court.
In Federal Maritime Comm’n v. South Carolina State Ports Authority, the Court
addressed the issue of whether state sovereign immunity extended to proceedings
before federal agencies.124 In this case, the South Carolina State Ports Authority
denied a cruise ship permission to berth at the state’s port facilities in Charleston,
South Carolina, contending that the primary purpose of the cruise was for gambling.
The cruise ship company, Maritime Services, filed a claim with the Federal Maritime
Commission (FMC) arguing that South Carolina had discriminated against it in
violation of the Shipping Act of 1984 and sought, among other things, damages for
loss of profits.125 The Port Authority, however, successfully moved to dismiss the
complaint, arguing that it was inconsistent with the concept of state sovereign
immunity.
In reviewing the case, the Court analogized between the FMC’s quasi-judicial
proceedings and traditional judicial proceedings, while noting that “[t]he preeminent
purpose of state sovereign immunity is to accord States the dignity that is consistent
with their status as sovereign entities.”126 Consequently, the Court agreed that state
sovereign immunity bars the FMC from adjudicating damage claims made by a
private party against a nonconsenting State.127 In dissent, however, Justice Breyer
noted that agency administrative proceedings are not judicial proceedings and that
the ultimate enforcement of such proceedings in a court is done by the federal
agency, to which state sovereign immunity does not apply. Thus, while an agency
remains capable of enforcement actions against states in federal court, it cannot use
its own adjudicative process to determine whether to do so, but must rely on its
124 122 S. Ct. 186 (2002).
125 46 U.S.C. App. § 1701 (1994 & Supp. V).
126 122 S. Ct. at 1874.
127 The Court noted that “[there are] numerous common features shared by administrative
adjudications and judicial proceedings.” 122 S. Ct. at 1872. “[F]ederal administrative law
requires that agency adjudication contain many of the same safeguards as are available in
the judicial process. The proceedings are adversary in nature. They are conducted before
a trier of fact insulated from political influence. A party is entitled to present his case by
oral or documentary evidence, and the transcript of testimony and exhibits together with the
pleadings constitutes the exclusive record for decision. The parties are entitled to know the
findings and conclusions on all of the issues of fact, law, or discretion presented on the
record.” Id.

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investigatory powers.128 According to Justice Breyer, “[t]he natural result is less
agency flexibility, a larger federal bureaucracy, less fair procedure, and potentially
less effective law enforcement.”129

Conclusion
In conclusion, it would appear that the status of the state in the federal system
has been strengthened by recent Supreme Court opinions. Although the Court has
not scaled back the federal government’s substantive jurisdiction significantly, it has
to some extent prevented the expansion of Congress’s power under the Commerce
Clause and under §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 under the
Constitution and, under the Supremacy Clause, may require the enforcement of its
laws in both state and federal court.
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128 Justice Breyer noted that after this decision “a private person cannot bring a complaint
against a State to a federal administrative agency where the agency (1) will use an internal
adjudication process to decide if the complaint is well founded, and (2) if so, proceed to
court to enforce the law.” Id. at 1881.
129 Id.