Hatton W. Sumners
Supreme Court Case Book
Tenth Amendment
1
© State Bar of Texas
Special appreciation is extended to the following people and organizations:
The inspiration of all Law-Related Education projects: Dr. Isidore Starr.
Special thanks to the Scholar Staff:
Yvonne Greenwood
Professor Jerry Perry
Dr. Mel Hailey
Dr. Jerry Polinard
Special thanks to the State Bar of Texas Law-Related Education Department for their
support and skills in making this activity guide come to life. The staff includes:
Jan L. Miller, Director
Linda DeLeon, Design
Developed in 1995 and revised in 2014 by the Law-Related Education Department,
State Bar of Texas. All rights reserved. Permission is granted for these materials to be
reproduced for classroom use. No part of these materials may be reproduced in any
other form or for any other purpose without the written consent of the Department of
Public Service / Law-Related Education, State Bar of Texas.
2
© State Bar of Texas
Hatton W. Sumners
Supreme Court Case Book
Tenth Amendment
South Dakota v. Dole (1987) ..................................................................................4
United States v. Lopez (1995) .................................................................................8
Printz v. United States (1997) .................................................................................12
Nevada v. Hibbs (2003) ..........................................................................................15
Bond v. United States (2011) ..................................................................................18
Arizona v. United States (2012) ..............................................................................20
National Federation of Independent Business v. Sebelelius with Florida, ET. AL.
v. United States Department of Health Services, and United States Department
of Health and Human Services v. Florida, ET. AL. (2012) .......................................24
Shelby County, Alabama v. Holder (2013) ..............................................................33
3
© State Bar of Texas
SOUTH DAKOTA v. DOLE, SECRETARY OF
TRANSPORTATION
483 U. S. 203, No. 86-260
Argued April 28, 1987
Decided June 23, 1987
In June 1984, Congress passed an amendment to the Surface Transportation Act directing the
Secretary of Transportation, Elizabeth H. Dole, to withhold a percentage of federal highway
funds from states “in which the purchase or public possession ... of any alcoholic beverage by a
person who is less than twenty-one years of age is lawful.” South Dakota permitted anyone age
nineteen or over to buy beer containing up to 3.2 percent alcohol.
Unless it raised its legal age for all alcoholic beverages before October 1, 1986, the state faced
the loss of $12 million in federal high way money over a two-year period. The state sued in the
U. S. District Court stating that the statute violated both the Tenth and the Twenty-First
Amendments.
South Dakota argued that under the Tenth Amendment the national government
possessed only those powers delegated to it by the Constitution; the states retained
sovereignty over all areas not granted to the national government. South Dakota further
argued that the provision limiting highway funds violated the Twenty-First Amendment,
which they believed gave states the right to regulate the importation and sale of liquor.
Under the Spending Clause of the Constitution (Article I, Section 8, Clause 1), Congress
could “... pay the debts and provide for the common defence and general welfare of the
U. S...” The Necessary and Proper (Elastic) Clause of the Constitution gave Congress
the right to make laws to carry out its delegated powers, thus giving Congress the right
to attach conditions to the receipt of federal funds.
South Dakota also contended that its law permitting nineteen-to-twenty-one year-olds to drink
3.2 beer was intended to promote temperance in alcohol consumption. Controlled drinking, they
argued, promoted responsible drinking more than prohibition, which forced young people to
drink in cars or in remote areas. South Dakota was supported by eight other states,
associations of beer brewers, and organizations representing mayors and state legislatures.
Secretary Dole argued that Congress could attach conditions to grants of federal funds without
violating the Tenth Amendment. She saw the law as an incentive to the states to do something
to reduce drunk driving. The states were not required to raise the drinking age but could simply
refuse the federal funds involved.
Dole also argued that there was no conflict between the statute and the Twenty-First
Amendment because South Dakota could still choose to let those under the age of twenty-one
drink alcoholic beverages; the federal government was only recommending a minimum drinking
age, not mandating it. Secretary Dole was supported by representatives from a variety of
insurance companies, Mothers Against Drunk Driving, and the National Council on Alcoholism,
all contending that the measure would reduce drunk driving by teenagers, save lives, and
protect property.
The District Court rejected the State’s claims, and the Court of Appeals for the Eighth Circuit
affirmed. The case was then granted certiorari in the U. S. Supreme Court.
4
© State Bar of Texas

ISSUE: Does Congress, under the Tenth Amendment, have the right to impose
conditions to states in receiving federal funds? Does the Twenty-First Amendment
prohibit Congress from regulating the sale of liquor? Does Congress, under the
Spending Clause (Article I, Section 8, Clause 1) have the power to set conditions for
states to receive federal funds?
5
© State Bar of Texas
SOUTH DAKOTA v. DOLE (1987)
Decision
Chief Justice Rehnquist delivered the seven-to-two opinion of the Court, in which
Associate Justices White, Marshall, Blackmun, Powell, Stevens, and Scalia joined.
Rehnquist first answered the argument that the statute violated the Twenty-First
Amendment, by stating:
... [W]e need not decide in this case whether that [the Twenty-First]
Amendment would prohibit an attempt by Congress to legislate directly a
national minimum drinking age. Here, Congress has acted indirectly
under its spending power to encourage uniformity in the States’ drinking
ages. ... [W]e find this legislative effort within constitutional bounds even if
Congress may not regulate drinking ages directly.
Rehnquist then addressed the question raised regarding the Spending Clause of the
Constitution:
The Constitution empowers Congress to “lay and collect Taxes, Duties,
Imposts, and Excises, to pay the Debts and provide for the common
defence and general Welfare of the U. S...” Incident to this power,
Congress may attach conditions on the receipt of federal funds, and has
repeatedly employed the power “to further broad policy objectives by
conditioning receipt of federal moneys upon compliance by the recipient
with federal statutory and administrative directives.”
The Chief Justice listed several restrictions to the Spending Power of Congress. First,
the Spending Power must be for the “general welfare.” To this, Rehnquist acquiesced
to Congress. Second, Congress must make it very clear to the states their choices in
the matter. Next, previous Supreme Court cases have suggested that conditions on
federal funds must be related “to the federal interest in particular national projects or
programs.” Finally, “... other constitutional provisions may provide an independent bar
to the conditional grant of federal funds.” South Dakota did not question the first three
provisions. However, the last restriction was questioned by the state. Rehnquist
answered, “But our cases show that this ‘independent constitutional bar’ limitation on
the spending power is not of the kind petitioner suggests.”
Next, the Court moved to the Tenth Amendment question. The Chief Justice wrote,
“We have also held that a perceived Tenth Amendment limitation on congressional
regulation of state affairs did not concomitantly limit the range of conditions legitimately
placed on federal grants.”
... [W]e think that the language in our earlier opinions stands for the
unexceptionable proposition that the power may not be used to induce the
States to engage in activities that would themselves be unconstitutional.
Thus, for example, a grant of federal funds conditioned on invidiously
6
© State Bar of Texas
discriminatory state action or the infliction of cruel and unusual
punishment would be an illegitimate exercise of the Congress’ broad
spending power. But no such claim can be or is made here. Were South
Dakota to succumb to the blandishments offered by Congress and raise
its drinking age to 21, the States’ action in so doing would not violate the
constitutional rights of anyone.
Finally, Rehnquist compared the potential loss to the state to the good that might come
from the statute:
[A]ll South Dakota would lose if she adheres to her chosen course as to a
suitable minimum drinking age is 5% of the funds otherwise obtainable
under specified highway grant programs....
Here Congress has offered relatively mild encouragement to the States to
enact higher minimum drinking ages than they would otherwise choose.
But the enactment of such laws remains the prerogative of the States not
merely in theory but in fact. Even if Congress might lack the power to
impose a national minimum drinking age directly, we conclude that
encouragement to state action found in [the statute] is a valid use of the
spending power.
Justices Brennan and O’Connor dissented. O’Connor wrote:
My disagreement with the Court is relatively narrow on the spending
power issue; it is a disagreement about the application of a principle rather
than a disagreement on the principle itself....
[T]he Court’s application of the requirement that the condition imposed be
reasonably related to the purpose for which the funds are expended is
cursory and unconvincing. We have repeatedly said that Congress may
condition grants under the spending power only in ways reasonably
related to the purpose of the federal program.... In my view, establishment
of a minimum drinking age of 21 is not sufficiently related to interstate
highway construction to justify so conditioning funds appropriated for that
purpose.
7
© State Bar of Texas
U. S. v. ALFONSO LOPEZ, JR.
NO. 93-1260
Argued November 8, 1994
Decided April 26, 1995
In 1990, Congress passed the Gun-Free School Zones Act, forbidding "... any individual
knowingly to possess a firearm at a place that [he] knows ... is a school zone." The
term "school zone" was defined in the Act as "in, or on the grounds of, a public,
parochial or private school" or "within a distance of 1,000 feet from the grounds of a
public, parochial or private school."
On March 10, 1992, Alfonso Lopez, a twelfth-grade student at Edison High School in
San Antonio, Texas, arrived at school carrying a concealed .38 caliber handgun and five
bullets. Acting upon an anonymous tip, school authorities confronted Lopez, who
admitted that he was carrying the weapon. He was arrested and charged under a
Texas law with firearm possession on a school premise. The next day, the state
charges were dismissed after federal agents charged Lopez with the violation of the
federal Gun-Free School Zones Act.
After being indicted by a federal grand jury, Lopez moved to have the indictment
dismissed on the ground that it was "beyond the power of Congress to legislate control
over public schools." The U. S. District Court denied the motion, and in a bench trial he
was found guilty. He was sentenced to six months' imprisonment and two years'
supervised release. Lopez appealed his conviction on the basis that the Act exceeded
Congress' power to legislate under the Commerce Clause. The Fifth Circuit Court of
Appeals agreed and reversed his conviction. The case was then appealed to the U. S.
Supreme Court.

ISSUES: Does a congressional law prohibiting weapons on or near school
grounds violate the powers reserved to the states under the Tenth Amendment?
Does the Commerce Clause authorize Congress to enact a statute that makes it
a crime to possess a gun in, or near, a school?
8
© State Bar of Texas
U. S. v. LOPEZ (1995)
Decision
In a ruling that could make it tougher for Congress to enact gun control measures, the
Supreme Court struck down the 1990 law banning possession of a firearm in or near a
school. Chief Justice Rehnquist, speaking for the five-to-four majority, indicated that
possession of a gun on school grounds is in no way an economic activity that might
have a substantial effect on interstate commerce. Rehnquist was joined by Justices
O'Connor, Scalia, Kennedy, and Thomas and began the majority opinion by quoting
James Madison from Federalist Papers No. 45:
"The powers delegated by the proposed Constitution to the federal
government are few and defined. Those which are to remain in the State
Governments are numerous and indefinite."
Rehnquist said that the school gun law had nothing to do with commerce and should be
struck down to maintain the division between what is under federal authority and what is
under state and local governments. He then referred to the 1824 Supreme Court case,
Gibbons v. Ogden, in which the Court first defined Congress' commerce power. He
indicated that Chief Justice Marshall in the Gibbons case acknowledged that limitations
on the commerce power "are inherent in the very language of the Commerce Clause."
Chief Justice Rehnquist continued:
The Court has never declared that "Congress may use a relatively trivial
impact on commerce as an excuse for broad general regulation of state or
private activities." We conclude, consistent with a great weight of our case
law, that the proper test requires an analysis of whether the regulated
activity "substantially affects" interstate commerce....
We do not doubt that Congress has authority under the Commerce Clause
to regulate numerous commercial activities that substantially affect
interstate commerce and also affect the educational process. That
authority, though broad, does not include the authority to regulate each
and every aspect of local schools.
Respondent was a local student at a local school; there is no indication
that he had recently moved in interstate commerce, and there is no
requirement that his possession of the firearm have any concrete tie to
interstate commerce.
In a concurring opinion, Justice Kennedy wrote:
While it is doubtful that any State, or indeed any reasonable person, would
argue that it is wise policy to allow students to carry guns on school
premises, considerable disagreement exists about how best to accomplish
that goal.... If a state or municipality determines that harsh criminal
9
© State Bar of Texas
sanctions are necessary and wise to deter students from carrying guns on
school premises, the reserved powers of the States are sufficient to enact
those measures. Indeed, over 40 States already have criminal laws
outlawing the possession of firearms on or near school grounds.
Justice Stevens wrote in his dissent:
Guns are both articles of commerce and articles that can be used to
restrain commerce. Their possession is the consequence, either directly
or indirectly, of commerce activity. In my judgment, Congress' power to
regulate commerce in firearms includes the power to prohibit possession
of guns at any location because of their potentially harmful use; it
necessarily follows that Congress may also prohibit their possession in
particular markets. The market for the possession of handguns by schoolage children is, distressingly, substantial.
Justice Breyer wrote a separate dissenting opinion, in which Justice Stevens, Souter,
and Ginsburg joined him:
... the question of degree (how much effect) requires an estimate of the
"size" of the effect that no verbal formulation can capture with precision. I
use the word "significant" because the word "substantial" implies a
somewhat narrower power than recent precedent suggests.
... Could Congress rationally have found that "violent crime in school
zones" through its effect on the "quality of education" significantly (or
substantially) affect "interstate" or "foreign commerce"? As long as one
views the commerce connection, not as a "technical legal conception," but
as "a practical one," the answer to this question must be yes.
... (R)eports, hearings, and other readily available literature make clear
that the problem of guns in and around schools is widespread and
extremely serious. These materials report, for example, that four percent
of American high school students (and six percent of inner-city high school
students) carry a gun to school at least occasionally; that 12 percent of
urban high school students have had guns fired at them; that 20 percent of
those students have been threatened with guns; and that, in any 6-month
period, several hundred thousand schoolchildren are victims of violent
crimes in or near their schools.... Based on reports such as these,
Congress obviously could have thought that guns and learning are
mutually exclusive.
And, Congress could therefore have found a
substantial educational problem--teachers unable to teach, students
unable to learn--and concluded that guns near schools contribute
substantially to the size and scope of that problem.
Having found that guns in school significantly undermine the quality of
10
© State Bar of Texas
education in our Nation's classrooms, Congress could also have found,
given the effect of education upon interstate and foreign commerce, that
gun-related violence in and around schools is a commercial, as well as a
human, problem.
Education, although far more than a matter of
economics, has long been inextricably intertwined with the Nation's
economy.
In recent years the link between secondary education and business has
strengthened, becoming both more direct and more important....
Increasingly global competition also has made primary and secondary
education economically more important.... Finally, there is evidence that,
today more than ever, many firms base their location decisions upon the
presence, or absence, of a work force with a basic education.
Upholding this legislation would do no more than simply recognize that
Congress had a "rational basis" for finding a significant connection
between guns in or near schools and (through their effect on education)
the interstate and foreign commerce they threaten.
FOLLOW-UP: Alfonso Lopez was described as a "basic normal kid in high school" who
had never been in trouble before this incident. He told authorities that he had been
carrying the gun for another person who was planning on using in a gang war. At the
time of the announcement of the Supreme Court decision, Lopez was twenty-one years
old and working in San Antonio. In the San Antonio Independent School, the number of
cases in which a student was caught on school grounds with a gun decreased by half
between 1991 and 1995.
11
© State Bar of Texas
PRINTZ, SHERIFF/CORONER, RAVALLI COUNTY,
MONTANA v. UNITED STATES
No. 95-1478
RICHARD MACK v. U. S.
No. 95-1503
Argued December 3, 1996
Decided June 27, 1997
In 1992, 15,377 Americans were murdered with firearms, and handguns caused 12,489 of these
deaths. James Brady, former White House Press Secretary, was crippled during the 1981
assassination attempt on President Ronald Reagan. He and his wife, Sarah, organized
Handgun Control, Inc., and led the fight in Congress to pass legislation to cut down handgun
violence.
The 1993 Brady Handgun Violence Prevention Act was passed as an amendment to the 1968
Gun Control Act. The Brady Act requires gun dealers to give a local sheriff the name of a
would-be buyer, then wait five business days to hear back on the person’s background. During
that time, the sheriff is supposed to check state, local and national crime records, and inform the
dealer if the potential buyer is a convicted felon or otherwise would be barred from purchasing a
handgun. If law enforcement officers do not perform the screening duties, they may be held
criminally liable.
Between the years 1993 and 1997, it was estimated by Clinton administration officials that the
Brady Act had blocked 250,000 illegal gun purchases. National Rifle Association officials
countered by stating that most criminals buy guns through the black market. The NRA also
cited a story of a Virginia woman who tried to buy a gun but was killed by a stalker during the
waiting period.
Montana Sheriff Jay Printz and Arizona Sheriff Richard Mack separately challenged the
background check, saying it was time consuming and distracted their deputies from enforcing
local laws. The sheriffs said states should be protected from such legislative intrusions by the
Tenth Amendment, which says that constitutional powers not given to the federal government,
nor explicitly removed from the states’ domain, are reserved for the states and the people.
The sheriffs used as precedence to their cases a 1992 ruling, New York v. U. S., in which the
Supreme Court said Congress may not force states to enact or run a federal program. In that
ruling, the Court struck down part of a federal law intended to make states responsible for the
low-level radioactive waste they generate by drafting local legislation.
Both the Arizona and Montana Federal District Courts struck down the background checks of
the Brady Law as unconstitutional, and the U. S. appealed. The Ninth Circuit Court of Appeals
rejected the sheriffs’ claims, reversing the district court’s decisions, and upheld the Brady Act.
Both Sheriff Printz and Sheriff Mack appealed to the U. S. Supreme Court.

ISSUE: Does Congress violate state sovereignty, as provided by the Tenth Amendment,
by requiring local law enforcement officials to do background checks of prospective gun
buyers without providing funding for the requirement?
12
© State Bar of Texas
PRINTZ v. UNITED STATES
MACK v. UNITED STATES (1997)
Decision
Voting five-to-four, the Supreme Court invalidated the provision requiring local sheriffs
to check the backgrounds of gun buyers, part of the broader law known as the Brady
Law. The Court upheld the law’s five-day waiting period for gun buyers and said local
police could do background checks on their own if they wished. Overturning the circuit
court decision, the Supreme Court reaffirmed its holding in New York v. U. S. (1992).
Justice Scalia wrote for the Court:
... It is an essential attribute of the States’ retained sovereignty that they remain
independent and autonomous within their proper sphere of authority.... It is no
more compatible with this independence and autonomy that their officers be
“dragooned” ... into administering federal law than it would be compatible with the
independence and autonomy of the U. S. that its officers be impressed into
service for the execution of state laws.
... By forcing state governments to absorb the financial burden of implementing a
federal regulatory program, Members of Congress can take credit for “solving”
problems without having to ask their constituents to pay for the solutions with
higher federal taxes. And even when the States are not forced to absorb the
costs of implementing a federal program, they are still put in the position of taking
the blame for its burdensomeness and for its defects....
... The federal government may neither issue directives requiring the states to
address particular problems, nor command the States’ officers, or those of their
political subdivisions, to administer or enforce a federal regulatory program. It
matters not whether policymaking is involved, and no case-by-case weighing of
the burdens or benefits is necessary; such commands are fundamentally
incompatible with our constitutional system of dual sovereignty....
The majority said that if the text and history of the Constitution fail to explicitly provide
for congressional power in a particular area, courts should presume federal lawmakers
do not have the power.
Justice O’Connor wrote in a concurring opinion that “Congress is ... free to amend the ...
program to provide for its continuance on a contractual basis with the states if it wishes,
as it does with a number of other federal programs.”
In his concurring opinion, Justice Thomas wrote:
The Court today properly holds that the Brady Act violates the Tenth Amendment
in that it compels state law enforcement officers to “administer or enforce a
federal regulatory program.” Although I join the Court’s opinion in full, I write
separately to emphasize that the Tenth Amendment affirms the undeniable
notion that under our Constitution, the Federal Government is one of
enumerated, hence limited, powers.... Accordingly, the Federal Government may
13
© State Bar of Texas
act only where the Constitution authorizes it to do so.
In my “revisionist” view, the Federal Government’s authority under the
Commerce Clause, which merely allocates to Congress the power “to regulate
Commerce ... among the several states,” does not extend to the regulation of
wholly intrastate, point-of-sale transactions.... Absent the underlying authority to
regulate the intrastate transfer of firearms, Congress surely lacks the corollary
power to impress state law enforcement officers into administering and enforcing
such regulations. Although this Court has long interpreted the Constitution as
ceding Congress extensive authority to regulate commerce (interstate or
otherwise), I continue to believe that we must “temper our Commerce Clause
jurisprudence” and return to an interpretation better rooted in the Clause’s
original understanding....
Even if we construe Congress’ authority to regulate interstate commerce to
encompass those intrastate transactions that “substantially affect” interstate
commerce, I question whether Congress can regulate the particular transactions
at issue here. The Constitution, in addition to delegating certain enumerated
powers to Congress, places whole areas outside the reach of Congress’
regulatory authority. The First Amendment, for example, is fittingly celebrated for
preventing Congress from “prohibiting the free exercise” of religion or “abridging
the freedom on speech.” The Second Amendment similarly appears to contain
an express limitation on the government’s authority.... This Court has not had
recent occasion to consider the nature of the substantive right safeguarded by
the Second Amendment. If, however, the Second Amendment is read to confer
a personal right to “keep and bear arms,” a colorable argument exists that the
Federal Government’s regulatory scheme, at least as it pertains to the purely
intrastate sale or possession of firearms, runs afoul of that Amendment’s
protections. As the parties did not raise this argument, however, we need not
consider it here. Perhaps, at some future date, this Court will have the
opportunity to determine whether Justice Story was correct when he wrote that
the right to bear arms “has justly been considered, as the palladium of the
liberties of a republic.”...
Other than in Justice Thomas’ concurrence, the Supreme Court did not deal with the
Second Amendment right to bear arms in this case.
The dissenters said the Court should look to see whether anything in the Constitution
explicitly denied Congress the power challenged in this case. Wrote Stevens, who was
joined by Justices Souter, Ginsburg, and Breyer:
Article 1 grants the Congress the power to regulate commerce among the
States.... [T]here can be no question that that provision adequately supports the
regulation of commerce in handguns effected by the Brady Act....
There is not a clause, sentence, or paragraph in the entire text of the Constitution
of the U. S. that supports the proposition that a local police officer can ignore a
command contained in a statute enacted by Congress pursuant to an express
delegation of power enumerated in Article I.
14
© State Bar of Texas
NEVADA DEPT. OF HUMAN RESOURCES v. HIBBS
No. 01-1368
Argued January 15, 2003
Decided May 27, 2003
Congress passed the Family and Medical Leave Act (FMLA) in 1993. The federal law
requires employers to allow workers to take up to twelve weeks of unpaid leave a year
to care for a sick relative or for the birth or adoption of a child. It was intended to apply
to all but the smallest employers and most specialized jobs, and to guarantee the same
rights to both male and female employees.
William Hibbs sought leave from his job with the Nevada Department of Human
Resources to care for his wife after she was injured in an automobile accident. He was
granted and used twelve weeks of leave, then sought additional time off under the
state’s “catastrophic leave” policy. State officials ruled that Hibbs’ catastrophic leave
hours, which were donated by other agency employees, were included in the twelve
weeks, and when he did not return to work, he was fired.
A provision in the FMLA provided the right of an employee to sue if an employer denies
rights provided in the law. Hibbs sued in federal district court, which decided he was
barred by the Eleventh Amendment from receiving damages. The court also
determined that Hibbs’ Fourteenth Amendment rights had not been violated. The Ninth
Circuit reversed this decision.
Nevada then appealed to the United States Supreme Court, where five of the nine
justices had, in similar cases over the preceding eight years, sided together to expand
state government power while shrinking the influence of the federal government and
Congress.

ISSUES:
Is it a violation of the Eleventh Amendment for an individual to sue
a state (for whom he or she is employed) in federal court for money damages
because of violations of the federal Family and Medical Leave Act?

Does Congress, under Section 5 of the Fourteenth Amendment, have the power
to enforce the Family and Medical Leave Act, which allows an individual to sue a
state for whom he or she is employed?
15
© State Bar of Texas
NEVADA DEPT. OF HUMAN RESOURCES v. HIBBS (2003)
Decision
In a six-to-three decision, the Supreme Court ruled that a state worker may sue the
state to enforce his or her rights under the Family and Medical Leave Act. Writing for
the Court majority, Chief Justice Rehnquist said a long history of gender-based
discrimination by state governments justified enactment of the law that explicitly did
away with the immunity from private lawsuits that states in the past enjoyed under the
Eleventh Amendment. Rehnquist explained:
For over a century now, we have made clear that the Constitution
does not provide for federal jurisdiction over suits against
nonconsenting States. …
Congress may, however, abrogate such immunity in federal court if it
makes its intention to abrogate unmistakably clear in the language of
the statute and acts pursuant to a valid exercise of its power under
§5 of the Fourteenth Amendment. … The clarity of Congress’ intent
here is not fairly debatable. The Act enables employees to seek
damages “against any employer (including a public agency) in any
Federal or State court of competent jurisdiction.”
The decision and the chief justice’s authorship of the majority opinion were noteworthy
because they ran counter to a trend that had become a hallmark of the Rehnquist Court.
In the eight years preceding this case, the majority of the justices had most often sided
with the states against the federal government in disputes involving the extension of
federal anti-discrimination laws to the states.
In his opinion, however, Rehnquist said that gender discrimination, like race
discrimination, triggers a higher standard of scrutiny by the courts, making it easier for
Congress to establish “a pattern of state constitutional violations.” Rehnquist then
explained why gender-based discrimination must be subjected to a higher degree of
scrutiny. He continued:
… [S]tereotype-based beliefs about the allocation of family duties
remained firmly rooted, and employers’ reliance of them in
establishing discriminatory leave policies remained widespread.
For example, the chief justice explained:
Many states offered women extended “maternity” leave that far
exceeded the typical 4- to 8-week period of physical disability due to
pregnancy and childbirth, but very few States granted men a parallel
benefit.
16
© State Bar of Texas
By granting up to twelve weeks of unpaid leave a year to both women and men to deal
with family illnesses and other emergencies, “Congress sought to ensure that familycare leave would no longer be stigmatized as an inordinate drain on the workplace
caused by female employees and that employers could not evade leave obligations
simply by hiring men,“ Rehnquist continued.
Justices Stevens, Souter, Ginsburg and Breyer had dissented in all the Eleventh
Amendment immunity decisions made during the preceding eight years. In this one,
Justice Souter wrote a concurring opinion, joined by Justices Ginsburg and Breyer. He
stated, “Even on this Court’s view of the scope of congressional power under §5 of the
Fourteenth Amendment, … the Family and Medical Leave Act is undoubtedly valid
legislation, and application of the Act to the States is constitutional.” Souter added, “I
join the Court’s opinion here without conceding the dissenting positions” that he and the
others had expressed in previous cases.
Justice Stevens concurred separately, stating, “As long as it clearly expresses its intent,
Congress may abrogate … common-law defense pursuant to its power to regulate
commerce ‘among the several States.’”
Justice Kennedy, who was joined by Justices Scalia and Thomas, wrote a dissenting
opinion that argued that the majority had failed to demonstrate a pattern of
unconstitutional discrimination by state governments. Calling the act “not a remedy (to
past discrimination) but a benefit program,” Kennedy said the evidence required more
“than a simple recitation of a general history of employment discrimination against
women.” “When the federal statute seeks to abrogate state sovereign immunity, the
court should be more careful to insist on adherence to the analytic requirements set
forth in its own precedents,” Kennedy stated.
17
© State Bar of Texas
CAROL ANNE BOND v. UNITED STATES
No. 09-1227
Argued February 22, 2011
Decided June 16, 2011
Carol Bond, a trained microbiologist, discovered that her husband was the father of her
best friend, Myrlinda Haynes’, child. She promised to make her former friend’s life “a
living hell” and began to spread chemicals around Haynes’ home, including on
doorknobs, on car door handles, and in her mailbox. Bond continued doing this for
several months on at least twenty-four occasions. Haynes discovered the chemicals in
most cases and suffered only minor injuries.
When Haynes complained to the police about the chemicals, it was suggested that she
wipe door handles clean before using them in the future. She then reported the
presence of chemicals in her mailbox to the U.S. Postal Inspection Service. The postal
inspectors placed surveillance cameras on Haynes’ property and caught Bond taking an
envelope out of Haynes’ mailbox and placing a chemical in Haynes’ car muffler. Bond
was charged with violating a law that was passed under an international treaty banning
the use of chemical weapons. She entered a conditional plea of guilty, reserving the
right to appeal the ruling on the validity of the statute. She was then sentenced to six
years imprisonment.
Bond appealed her conviction and sentence to the Third Circuit Court of Appeals on the
ground that she couldn’t be charged with the federal crime because her crimes were the
kind of crimes that states should prosecute and that the federal law under which she
was convicted violated the Tenth Amendment as an unconstitutional intrusion of federal
power into areas of state sovereignty. The appeals court ruled that Bond did not have
standing to raise a Tenth Amendment defense. Only states, it said, can invoke the
amendment.

Issue: May an individual challenge a federal law on the grounds that it violates
the Tenth Amendment?
18
© State Bar of Texas
BOND v. UNITED STATES (2011)
Decision
The Supreme Court unanimously agreed with Bond that she did have standing to argue
that the federal government had gone too far. The justices determined that an
individual’s right not to be jailed for allegedly unconstitutional law does not belong to the
states.
Justice Kennedy wrote for the Court, giving a lesson in federalism in his opinion:
The federal system rests on what might at first seem a counterintuitive
insight that “freedom is enhanced by the creation of two governments, not
one.” … The Framers concluded that allocation of powers between the
National Government and the States enhances freedom, first by protecting
the integrity of the governments themselves, and second by protecting the
people, from whom all governmental powers are derived.
Federalism has more than one dynamic. … The allocation of powers in
our federal system preserves the integrity, dignity, and residual
sovereignty of the States. The federal balance is, in part, an end in itself,
to ensure that States function as political entities in their own right.
…
… Federalism secures the freedom of the individual. It allows States to
respond, through the enactment of positive law, to the initiative of those
who seek a voice in shaping the destiny of their own times without having
to rely solely upon the political processes that control a remote central
power. …
Federalism also protects the liberty of all persons within a State by
ensuring that laws enacted in excess of delegated governmental power
cannot direct or control their actions. …
By denying any one
government complete jurisdiction over all the concerns of public life,
federalism protects the liberty of the individual from arbitrary power.
When government acts in excess of its lawful powers, that liberty is
at stake. (Emphasis added.)
Justice Ginsburg wrote a concurring opinion, which was joined by Justice Breyer,
stating, “Bond, like any other defendant, has a personal right not to be convicted under
a constitutionally invalid law.”
The case was sent back to the lower courts to decide if the federal statute violates the
Tenth Amendment.
19
© State Bar of Texas
ARIZONA v. UNITED STATES
567 U. S. ___ (2012)
In 2010, Arizona passed a law called the Support Our Law Enforcement and Safe
Neighborhoods Act the stated purpose of which was “to discourage and deter the
unlawful entry and presence of aliens and economic activity by persons unlawfully
present in the United States.” The law’s provisions establish an official state policy of
“attrition through enforcement.” Four provisions of the Arizona law are at issue: (1)
Section 3 makes failure to comply with federal alien registration requirements a state
misdemeanor offense; (2) Section 5 ( C) makes it a state misdemeanor offense for an
unauthorized alien to seek or engage in work in Arizona; (3) Section 6 authorizes state
and local law enforcement officers to arrest without a warrant a person “the officer has
probable cause to believe … has committed any public offense that makes the person
removable from the United States;” and (4) Section 2 (B) provides that officers who
conduct a stop, detention, or arrest must in some circumstances make efforts to verify
the person’s immigration status with the federal government.
The United States filed suit against Arizona in U. S. District Court where it sought an
injunction against the Arizona law to prevent its taking effect on grounds that it was
preempted by federal law. The District Court issued a preliminary injunction preventing
the four provisions of the law from taking effect, and the U. S. Court of Appeals for the
Ninth Circuit affirmed the District Court’s action. The Court of Appeals agreed that the
United States had established a likelihood of success on its preemption claim. The
Supreme Court granted certiorari “to resolve important questions concerning the
interaction of state and federal power with respect to the law of immigration and alien
status.
Issue: Does federal law preempt and render invalid four separate provisions of an
Arizona law the stated purpose of which was “to discourage and deter the
unlawful entry and presence of aliens and economic activity by persons
unlawfully present in the United States”?
20
© State Bar of Texas
ARIZONA v. UNITED STATES
DECISION
By a 6-2 vote, the Supreme Court affirmed the Court of Appeals’ judgment relative to
Section 3 of the Arizona law being preempted by federal law (Kennedy, Roberts,
Ginsburg, Breyer, Alito, and Sotomayor in the majority). By a 5-3 vote, the Court also
affirmed the Court of Appeals’ judgment relative to Sections 5 and 6 of the Arizona law
being preempted by federal law (Kennedy, Roberts, Ginsburg, Breyer, and Sotomayor
in the majority). By an 8-0 vote, the Court reversed the Court of Appeals’ judgment
relative to Section 2(B) of the Arizona law being preempted by federal law. Justice
Kennedy authored the opinion of the Court which Chief Justice Roberts and Justices
Ginsburg, Breyer, and Sotomayor joined. Justices Scalia, Thomas, and Alito each filed
opinions concurring in part and dissenting in part. Justice Kagan took no part in the
consideration or decision of the case.
Justice Kennedy wrote: “The government of the United States has broad, undoubted
power over the subject of immigration and the status of aliens. … This authority rests,
in part, on the national government’s constitutional power to ‘establish an uniform rule of
naturalization’ … and its inherent power as sovereign to control and conduct relations
with foreign nations … The federal power to determine immigration policy is well
established. … It is fundamental that foreign countries concerned about the status,
safety, and security of their nationals in the United States must be able to confer and
communicate on this subject with one national sovereign, not the 50 separate states.
… Federalism, central to the constitutional design, adopts the principle that both the
national and state governments have elements of sovereignty the other is bound to
respect. … From the existence of two sovereigns follows the possibility that laws can
be in conflict or at cross-purposes. The supremacy clause provides a clear rule that
federal law ‘shall be the supreme law of the land.’ … Under this principle, Congress
has the power to preempt state law.” …
“ In effect Section 3 [of the Arizona law] adds a state-law penalty for conduct proscribed
by federal law. The United States contends that this state enforcement mechanism
intrudes on the field of alien registration, a field in which Congress has left no room for
states to regulate.
…
Federal law makes a single sovereign responsible for
maintaining a comprehensive and unified system to keep track of aliens within the
nation’s borders. If Section 3 of the Arizona statute were valid, every state could given
itself independent authority to prosecute federal registration violations, ‘diminishing the
federal government’s control over enforcement’ and ‘detracting from the integrated
scheme of regulation created by Congress.’ … Permitting the state to impose its own
penalties for the federal offenses here will conflict with the careful framework Congress
adopted. … These specific conflicts between state and federal law simply underscore
the reason for field preemption. … Section 3 is preempted by federal law.” …
“Unlike Section 3, which replicates federal statutory requirements, Section 5 ( C) enacts
a state criminal prohibition where no federal counterpart exists. … The United States
contends that the provision upsets the balance struck by the Immigration Reform and
Control Act of 1986 (IRCA) and must be preempted as an obstacle to the federal plan
of regulation and control. … The legislative background of IRCA underscores the fact
21
© State Bar of Texas
that Congress made a deliberate choice not to impose criminal penalties on aliens who
seek, or engage in, unauthorized employment. … It follows that a state law to the
contrary is an obstacle to the regulatory scheme Congress chose. … Section 5 (C ) is
preempted by federal law.”
“Section 6 … The United States argues that arrests authorized by this [section of the]
statute would be an obstacle to the removal system Congress created. … As a
general rule, it is not a crime for a removable alien to remain present in the United
States. If the police stop someone based on nothing more than possible removability,
the usual predicate of an arrest is absent. … The federal statutory structure instructs
when it is appropriate to arrest an alien during the removal process. … Section 6
attempts to provide state officers even greater authority to arrest aliens on the basis of
possible removability than Congress has given to trained federal immigration officers.
…
This state authority could be exercised without any input from the federal
government about whether an arrest is warranted in a particular case. This would allow
the state to achieve its own immigration policy. … Congress has put in place a
system in which state officers may not make warrantless arrests of aliens based on
possible removability except in specific, limited circumstances. By nonetheless
authorizing state and local officers to engage in these enforcement activities as a
general matter, Section 6 creates an obstacle to the full purposes and objectives of
Congress. … Section 6 is preempted by federal law.” …
“Section 2 (B) … However the law is interpreted, if Section 2 (B) only requires state
officers to conduct a status check during the course of an authorized, lawful detention or
after a detainee has been released, the provision would likely survive preemption --- at
least absent some showing that it has other consequences that are adverse to federal
law and its objectives. … There is a basic uncertainty about what [this section] of the
law means and how it will be enforced. At this stage, without the benefit of a definitive
interpretation from the state courts, it would be inappropriate to assume Section 2 (B)
will be construed in a way that creates a conflict with federal law. … This opinion
does not foreclose other preemption and constitutional challenges to [Section 2 B] of the
law as interpreted and applied after it goes into effect.” …
“Arizona may have understandable frustrations with the problems caused by illegal
immigration while that process continues, but the state may not pursue policies that
undermine federal law.”
Concurring in part and dissenting in part, Justice Scalia wrote: “The United States
is an indivisible ‘Union of sovereign states.’ … Today’s opinion, approving virtually all
of the Ninth Circuit’s injunction against enforcement of the four challenged provisions of
Arizona’s law, deprives states of what most would consider the defining characteristic of
sovereignty: the power to exclude from the sovereign’s territory people who have no
right to be there. Neither the Constitution itself nor even any law passed by Congress
supports this result. I dissent. As a sovereign, Arizona has the inherent power to
exclude persons from its territory, subject only to those limitations expressed in the
Constitution or constitutionally imposed by Congress. … Of course, it hardly bears
mention that federal immigration law is now extensive. I accept that as a valid exercise
of federal power --- not because of the naturalization clause (it has no necessary
connection to citizenship) but because it is an inherent attribute of sovereignty no less
for the United States than for the states. … In light of the predominance of federal
22
© State Bar of Texas
immigration restrictions in modern times, it is easy to lose sight of the states’ traditional
role in regulating immigration --- and to overlook their sovereign prerogative to do so. I
accept as a given that state regulation is excluded by the Constitution when (1) it has
been prohibited by a valid federal law, or (2) it conflicts with federal regulation…
Possibility (1) need not be considered here: there is no federal law prohibiting the
states’ sovereign power to exclude (assuming federal authority to enact such a law).
The mere existence of federal action in the immigration area – and the so-called field
preemption arising from that action, upon which the Court’s opinion so heavily relies, -cannot be regarded as such a prohibition.”
“We are not talking here about a federal law prohibiting the states from regulating
bubble gum advertising, or even the construction of nuclear plants. We are talking about
a federal law going to the core of state sovereignty: the power to exclude. Like
elimination of the states’ other inherent sovereign power, immunity from suit, elimination
of the states’ sovereign power to exclude requires that ‘Congress … unequivocally
express its intent to abrogate’… Implicit ‘field preemption’ will not do. … What this
case comes down to, then, is whether the Arizona law conflicts with federal immigration
law --- whether it excludes those whom federal law would admit, or admits those whom
federal law would exclude. It does not purport to do so. It applies only to aliens who
neither possess a privilege to be present under federal law nor have been removed
pursuant to the federal government’s inherent authority. … Arizona has moved to
protect its sovereignty --- not in contradiction of federal law, but in complete compliance
with it. The laws under challenge here do not extend or revise federal immigration
restrictions, but merely enforce those restrictions more effectively. If securing its territory
in this fashion is not within the power of Arizona, we should cease referring to it as a
sovereign state. I dissent.”
Concurring in part and dissenting in part, Justice Thomas wrote: “I agree with
Justice Scalia that federal immigration law does not preempt any of the challenged
provisions [of the Arizona law.] I reach that conclusion, however, for the simple reason
that there is no conflict between the ‘ordinary meaning’ of the relevant federal laws and
that of the four provisions of Arizona law at issue here.”
Concurring in part and dissenting in part, Justice Alito wrote: “I agree with the
Court that Section 2 (B) is not preempted. … I also agree with the Court that Section
3 is preempted… While I agree with the Court on 2 (B) and 3, I part ways on 5 (C) and
6. … Because state police powers are implicated here, our precedents require us to
presume that federal law does not displace state law unless Congress’ intent to do so is
clear and manifest. I do not believe Congress has spoken with the requisite clarity to
justify invalidation of 5 (C) … or 6…”
23
© State Bar of Texas
NATIONAL FEDERATION OF INDEPENDENT BUSINESS v.
SEBELIUS together with FLORIDA, ET. AL. v. U.S.
DEPARTMENT OF HEALTH AND HUMAN SERVICES AND
U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES v.
FLORIDA, ET. AL.
567 U. S. ___ (2012)
In 2010 the U. S. Congress passed the Patient Protection and Affordable Care Act with
the intent of increasing the number of Americans with health insurance and lowering
health care costs. Among the statute’s many provisions is one referred to as “the
individual mandate” which requires most Americans to maintain “minimum essential”
health insurance coverage. Individuals who are not exempt and who do not receive
health insurance through an employer or through a government program must satisfy
the requirement by purchasing insurance from a private company. Beginning in 2014,
those who do not comply must make a “shared responsibility payment” to the
government. Under the statute, these individuals will pay this “penalty” to the Internal
Revenue Service with their tax returns which “shall be assessed and collected in the
same manner” as tax penalties. Another key provision is the expansion of Medicaid.
Under current law, Medicaid offers federal funding to states to assist pregnant women,
children, needy families, the blind, the elderly, and the disabled with medical care. The
Affordable Care Act expands the scope of Medicaid and increases the number of
people the states must cover. The law requires states by 2014 to provide Medicaid
coverage to adults with incomes up to 133 percent of the federal poverty level. Many
states now cover adults with children only if their income is much lower and do not
cover childless adults at all. The law increases federal funding to help the states with
this expansion of Medicaid coverage; but the law provides that if a state does not
comply with the new coverage requirements, the state may not only lose federal funding
for those new requirements but may also lose all federal Medicaid funds.
Florida and twelve other states filed a complaint in a U. S. District Court in Florida
alleging, among other things, that “the individual mandate” provision exceeded
Congress’ powers under Article I of the Constitution. Thirteen more states, several
individuals, and the National Federation of Independent Business subsequently joined
the suit. The District Court agreed with the plaintiffs and held that Congress did not have
the constitutional power to pass “the individual mandate” provision. The District Court
also ruled that this provision could not be severed from the rest of the law and thus
struck down the entire law. The U. S. Court of Appeals for the Eleventh Circuit affirmed
the District Court’s judgment in part and reversed its judgment in part. The Appeals
Court agreed with the District Court that Congress had exceeded its constitutional
powers in passing “the individual mandate.” However, the Appeals Court disagreed with
the District Court and determined that “the individual mandate” provision could be
severed from the remainder of the law. Thus, the Appeals Court left all of the statute’s
other provisions standing. Specifically, the Appeals Court unanimously held that
Congress’ expansion of Medicaid was within its power under the spending clause (“to
pay the debts and provide for the general welfare”) and rejected the states’ argument
that Congress violated the Tenth Amendment when it threatened the loss of all a state’s
24
© State Bar of Texas
federal Medicaid funding if a state did not comply with the expansion. Other Courts of
Appeals have also decided cases involving challenges to the law’s “individual mandate”
provision. The U. S. Court of Appeals for the Sixth Circuit and the U. S. Court of
Appeals for the D. C. Circuit have upheld “the individual mandate” provision as a valid
exercise of Congress’ power under the commerce clause. The Supreme Court granted
certiorari in order to review the Eleventh Circuit’s judgment with regard to “the individual
mandate” and the Medicaid expansion provisions of the statute.
Issue: (1) Does Congress have the constitutional authority under the commerce
clause and the necessary and proper clause of Article I, Section 8 to pass “the
individual mandate” provision of the Patient Protection and Affordable Care Act?
(2) Does Congress have the constitutional authority under its power to tax to
pass “the individual mandate” provision of the Patient Protection and Affordable
Care Act? (3) Does Congress have the constitutional authority to require the
states in the Patient Protection and Affordable Care Act to expand Medicaid
coverage and threaten the states with the loss of all Medicaid funding if they do
not comply?
25
© State Bar of Texas
NATIONAL FEDERATION OF INDEPENDENT BUSINESS v. SEBELIUS together
with FLORIDA, ET. AL. v. U.S. DEPARTMENT OF HEALTH AND HUMAN
SERVICES AND U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES v.
FLORIDA, ET. AL. (2012)
DECISION
Chief Justice Roberts announced the judgment of the Court and delivered the opinion of
the Court with respect to Parts I, II, and III C which Justices Ginsburg, Breyer,
Sotomayor, and Kagan joined; an opinion with respect to Part IV which Breyer and
Kagan joined; an opinion with respect to Parts III A, III B, and III D. Justice Ginsburg
wrote an opinion concurring in part, concurring in the judgment in part, and dissenting in
part which Justice Sotomayor joined and Parts I, II, III, and IV of which Justices Breyer
and Kagan joined. Justices Scalia, Kennedy, Thomas, and Alito filed a dissenting
opinion. Justice Thomas also filed a solo dissenting opinion.
By a 5-4 vote (Chief Justice Roberts and Justices Scalia, Thomas, Kennedy, and Alito
in the majority), the Court ruled that Congress did not have the constitutional authority to
pass “the individual mandate” provision of the Affordable Care Act under the commerce
and necessary and proper clauses of the Constitution. By a 5-4 vote (Chief Justice
Roberts and Justices Ginsburg, Breyer, Sotomayor, and Kagan in the majority), the
Court ruled that Congress did have the constitutional authority to pass “the individual
mandate” provision of the Affordable Care Act under its power to tax. By a 7-2 vote
(Chief Justice Roberts and Justices Scalia, Thomas, Kennedy, Alito, Breyer, and Kagan
in the majority) the Court ruled that Congress did not have the power under the
Constitution to threaten the states with losing all of their federal Medicaid funding if they
did not comply with the expansion of Medicaid.
Chief Justice Roberts begins his opinion with what he calls “basic principles”
which, he asserts, provide the background against which the questions in the
case must be considered: “We do not consider whether the Act embodies sound
policies. That judgment is entrusted to the nation’s elected leaders. We ask only
whether Congress has the power under the Constitution to enact the challenged
provisions. In our federal system, the national government possesses only limited
powers; the states and the people retain the remainder. … Rather than granting
general authority to perform all the conceivable functions of government, the
Constitution lists, or enumerates, the federal government’s powers.
…
The
Constitution’s express conferral of some powers makes clear that it does not grant
others. And the federal government ‘can exercise only the powers granted to it.’ …
The federal government has expanded dramatically over the past two centuries, but it
still must show that a constitutional grant of power authorizes each of its actions. The
same does not apply to the states, because the Constitution is not the source of their
power. … The states thus can and do perform many of the vital functions of modern
government … even though the Constitution’s text does not authorize any government
to do so. Our cases refer to this general power of governing, possessed by the states
but not by the federal government, as the ‘police power.’ … The independent power
of the states also serves as a check on the power of the federal government…”
Continuing his explanation of what he calls “basic principles,” Roberts writes:
26
© State Bar of Texas
“This case concerns two powers that the Constitution does grant the federal
government, but which must be read carefully to avoid creating a general federal
authority akin to the police power. The Constitution authorizes Congress to ‘regulate
commerce with foreign nations, and among the several states, and with the Indian
tribes.’ Our precedents read that to mean that Congress may regulate ‘the channels of
interstate commerce,’ ‘persons or things in interstate commerce,’ and ‘those activities
that substantially affect interstate commerce.’ … Congress may also ‘lay and collect
taxes, duties, imposts, and excises, to pay the debts and provide for the common
defense and general welfare of the United States.’ Put simply, Congress may tax and
spend. This grant gives the federal government considerable influence even in areas
where it cannot directly regulate. The federal government may enact a tax on an activity
that it cannot authorize, forbid, or otherwise control. And in exercising its spending
power, Congress may offer funds to the states, and may condition those offers on
compliance with specified conditions. These offers may well induce the states to adopt
policies that the federal government itself could not impose. … The reach of the
federal government’s enumerated powers is broader still because the Constitution
authorizes Congress to ‘make all laws which shall be necessary and proper for carrying
into execution the foregoing powers.’ We have long read this provision to give Congress
great latitude in exercising its powers … Our permissive reading of these powers is
explained in part by a general reticence to invalidate the acts of the nation’s elected
leaders. ‘Proper respect for a co-ordinate branch of the government’ requires that we
strike down an act of Congress only if ‘the lack of constitutional authority to pass the act
in question is clearly demonstrated.’ Members of this Court are vested with the authority
to interpret the law; we possess neither the expertise nor the prerogative to make policy
judgments. Those decisions are entrusted to our nation’s elected leaders, who can be
thrown out of office if the people disagree with them. It is not our job to protect the
people from the consequences of their political choices.”
Having outlined these “basic principles,” Roberts now turns his attention to
Congress’ alleged constitutional authority to pass “the individual mandate.” He
writes: “The Government advances two theories for the proposition that Congress had
constitutional authority to enact the individual mandate. First, the government argues
that Congress had the power to enact the mandate under the commerce clause and the
necessary and proper clause. Under that theory, Congress may order individuals to buy
health insurance because the failure to do so affects interstate commerce, and could
undercut the Affordable Care Act’s other reforms. Second, the Government argues that
if the commerce power does not support the mandate, we should nonetheless uphold it
as an exercise of Congress’ power to tax. According to the Government, even if
Congress lacks the power to direct individuals to buy insurance, the only effect of the
individual mandate is to raise taxes on those who do not do so, and thus the law may be
upheld as a tax.”
Addressing the Government’s first argument for Congress’ constitutional
authority to pass the individual mandate, Roberts writes: “According to the
Government, the health care market is characterized by a significant cost-shifting
problem. Everyone will eventually need health care at a time and to an extent they
cannot predict, but if they do not have insurance, they often will not be able to pay for it.
Because state and federal laws nonetheless require hospitals to provide a certain
27
© State Bar of Texas
degree of care to individuals without regard to their ability to pay, … hospitals end up
receiving compensation for only a portion of the services they provide. To recoup the
losses, hospitals pass on the cost to insurers through higher rates, and insurers, in turn,
pass on the cost to policy holders in the form of higher premiums. Congress estimated
that the cost of uncompensated care raises family health insurance premiums, on
average, by over $1,000 per year. … The Government contends that the individual
mandate is within Congress’ power because the failure to purchase insurance ‘has a
substantial and deleterious effect on interstate commerce’ by creating the cost-shifting
problem. … But Congress has never attempted to rely on that power to compel
individuals not engaged in commerce to purchase an unwanted product. … The
power to regulate commerce presupposes the existence of commercial activity to be
regulated. If the power to ‘regulate’ something included the power to create it, many of
the provisions in the Constitution would be superfluous. … The language of the
Constitution reflects the natural understanding that the power to regulate assumes there
is already something to be regulated. … As expansive as our cases construing the
scope of the commerce power have been, they all have one thing in common: they
uniformly describe the power as reaching ‘activity.’
…
The individual mandate,
however, does not regulate existing commercial activity. It instead compels individuals
to become active in commerce by purchasing a product, on the ground that their failure
to do so affects interstate commerce. Construing the commerce clause to permit
Congress to regulate individuals precisely because they are doing nothing would open
a new and potentially vast domain to congressional authority. … Allowing Congress
to justify federal regulation by pointing to the effect of inaction on commerce would bring
countless decisions an individual could potentially make within the scope of federal
regulation, and – under the Government’s theory – empower Congress to make those
decisions for him. … Indeed, the Government’s logic would justify a mandatory
purchase to solve almost any problem. … Under the Government’s theory, Congress
could address the diet problem by ordering everyone to buy vegetables. … Under the
Government’s logic, that authorizes Congress to use its commerce power to compel
citizens to act as the Government would have them act. That is not the country the
Framers of our Constitution envisioned. … Accepting the Government’s theory would
give Congress the same license to regulate what we do not do, fundamentally changing
the relation between the citizen and the federal government. … The framers gave
Congress the power to regulate commerce, not to compel it, and for over 200 years
both our decisions and Congress’s actions have reflected this understanding. There is
no reason to depart from that understanding now. The Government sees things
differently. It argues that because sickness and injury are unpredictable but
unavoidable, ‘the uninsured as a class are active in the market for health care, which
they regularly seek and obtain.’ … The Government regards it as sufficient to trigger
Congress’s authority that almost those who are uninsured will, at some unknown point
in the future, engage in a health care transaction. … The proposition that Congress
may dictate the conduct of an individual today because of prophesied future activity
finds no support in our precedent. … The commerce clause is not a general license
to regulate an individual from cradle to grave, simply because he will predictably engage
in particular transactions. Any police power to regulate individuals as such, as opposed
to their activities, remains vested in the states. The Government argues that the
28
© State Bar of Texas
individual mandate can be sustained as a sort of exception to this rule, because health
insurance is a unique product. According to the Government, upholding the individual
mandate would not justify mandatory purchases if items such as cars or broccoli
because, as the Government puts it, ‘health insurance is not purchased for its own sake
like a car or broccoli; it is a means of financing health care consumption and covering
universal risks.’ … The individual mandate forces individuals into commerce precisely
because they elected to refrain from commercial activity. Such a law cannot be
sustained under a clause authorizing Congress to ‘regulate commerce.’”
Roberts next turns to the Government’s argument that the individual mandate can
be upheld based on Congress’s constitutionally enumerated power to lay and
collect taxes. He writes: “ In making its commerce clause argument, the Government
defended the mandate as a regulation requiring individuals to purchase health
insurance. The Government does not claim that the taxing power allows Congress to
issue such a command. Instead, the Government asks us to read the mandate not as
ordering individuals to buy insurance, but rather as imposing a tax on those who do not
buy that product. The text of a statute can sometimes have more than one possible
meaning. … And it is well established that if a statute has two possible meanings,
one of which violates the Constitution, courts should adopt the meaning that does not
do so. … Under the mandate, if an individual does not maintain health insurance, the
only consequence is that he must make an additional payment to the IRS when he pays
his taxes.
…
Rather, it makes going without insurance just another thing the
Government taxes, like buying gasoline or earning income. And if the mandate is in
effect just a tax hike on certain taxpayers who do not have health insurance, it may be
within Congress’s constitutional power to tax. The question is not whether that is the
most natural interpretation of the mandate, but only whether it is a ‘fairly possible’ one.
… The Government asks us to interpret the mandate as imposing a tax, if it would
otherwise violate the Constitution. Granting the Act the full measure of deference owed
to federal statutes, it can be so read … … It is of course true that the Act describes
the payment as a ‘penalty,’ not a ‘tax.’ {That label} does not determine whether the
payment may be viewed as an exercise of Congress’s taxing power. … We have
similarly held that exactions not labeled taxes nonetheless were authorized by
Congress’s power to tax. … Sustaining the mandate as a tax depends only on
whether Congress has properly exercised its taxing power to encourage purchasing
health insurance, not whether it can. Upholding the individual mandate under the taxing
clause thus does not recognize any new federal power. It determines that Congress has
used an existing one.
…
The Affordable Care Act’s requirement that certain
individuals pay a financial penalty for not obtaining health insurance may reasonably be
characterized as a tax. Because the Constitution permits such a tax, it is not our role to
forbid it, or to pass upon its wisdom or fairness.”
Roberts finally turns to a consideration of the states’ argument that the
Affordable Care Act’s expansion of Medicaid violates the spending clause by
coercing the states to comply by threatening to withhold all of a state’s Medicaid
funds, thus violating the basic principle that the “Federal Government may not
compel the states to enact or administer a federal regulatory program.” Roberts
writes: “There is no doubt that the Act dramatically increases state obligations under
Medicaid.
… We have long recognized that Congress may use this power {the
29
© State Bar of Texas
spending clause} to gran federal funds to the states, and may condition such a grant
upon the states ‘taking certain actions that Congress could not require them to take.’
… At the same time, our cases have recognized limits on Congress’s power under the
spending clause to secure state compliance with federal objectives. … Respecting
this limitation is critical to ensuring the spending clause legislation does not undermine
the status of the states as independent sovereigns in our federal system.
…
Congress may use its spending power to create incentives for the states to act in
accordance with federal policies. But when ‘pressure turns into compulsion,’ the
legislation runs contrary to our system of federalism.
…
Permitting the federal
government to force the states to implement a federal program would threaten the
political accountability key to our federal system. … Instead of simply refusing to
grant the new funds to states that will not accept the new conditions, Congress has also
threatened to withhold those states’ existing Medicaid funds. The states claim that this
threat serves no purpose other than to force unwilling states to sign up for the dramatic
expansion in health care coverage effected by the Act. Given the nature of the threat
and the programs at issue here, we must agree. … Nothing in our opinion precludes
Congress from offering funds under the Affordable Care Act to expand the availability of
health care, and requiring that states accepting such funds comply with the conditions
on their use. What Congress is not free to do is to penalize states that choose not to
participate in that new program by taking away their existing Medicaid funding.”
In her opinion concurring in part, concurring in the judgment in part, and
dissenting in part, Justice Ginsburg writes: “I agree with the Chief Justice … that the
minimum coverage provision is a proper exercise of Congress’ taxing power.
…
Unlike the Chief Justice, however, I would hold, alternatively, that the commerce clause
authorizes Congress to enact the minimum coverage provision. I would also hold that
the spending clause permits the Medicaid expansion exactly as Congress enacted it.”
… Referring to Chief Justice Roberts’ rejection of the commerce clause as Congress’
constitutional authority to pass the individual mandate, Ginsburg writes: “This rigid
reading of the {commerce} clause makes scant sense and is stunningly retrogressive.
Since 1937, our precedent has recognized Congress’ large authority to set the nation’s
course in the economic and social welfare realm. … The Chief Justice’s crabbed
reading of the commerce clause harks back to the era in which the Court routinely
thwarted Congress’ efforts to regulate the national economy in the interest of those who
labor to sustain it. … Until today, this Court’s pragmatic approach to judging whether
Congress validly exercised its commerce power was guided by two familiar principles.
First, Congress has the power to regulate economic activities ‘that substantially affect
interstate commerce.’ … Second, we owe a large measure of respect to Congress
when it frames and enacts economic and social legislation. … Rather than evaluating
the constitutionality of the minimum coverage provision in the manner established by
our precedents, the Chief Justice relies on a newly minted constitutional doctrine. The
commerce power does not, the Chief Justice announces, permit Congress to ‘compel
individuals to become active in commerce by purchasing a product.’ The Chief Justice’s
novel constraint on Congress’ commerce power gains no force from our precedent and
for that reason alone warrants disapprobation. But even assuming, for the moment, that
Congress lacks authority under the commerce clause to ‘compel individuals not
engaged in commerce to purchase an unwanted product,’ such a limitation would be
30
© State Bar of Texas
inapplicable here. Everyone will, at some point, consume health-care products and
services. Thus, if the Chief Justice is correct that an insurance-purchase requirement
can be applied only to those who ‘actively’ consume health care, the minimum coverage
provision fits the bill. … It is more than exaggeration to suggest that the minimum
coverage provision improperly intrudes on ‘essential attributes of state sovereignty.’
First, the Affordable Care Act does not operate ‘in an area such as criminal law
enforcement or education where states historically have been sovereign.’ … Second,
and perhaps more important, the minimum coverage provision, along with other
provisions of the ACA, addresses the very sort of interstate problems that made the
commerce power essential in our federal system.”
Justice Ginsburg then addresses Congress’ spending power and the ACA’s
expansion of Medicaid and the threat of states losing their Medicaid funding. She
writes: “The spending power conferred by the Constitution, the Court has never
doubted, permits Congress to define the contours of programs financed with federal
funds.
…
The Chief Justice … for the first time ever – finds an exercise of
Congress’ spending power unconstitutionally coercive. … Moreover, states have no
entitlement to receive any Medicaid funds; they enjoy only the opportunity to accept
funds on Congress’ terms. … Congress is simply requiring states to do what states
have long been required to do to receive Medicaid funding: comply with the conditions
Congress prescribes for participation. … The coercion inquiry … appears to involve
political judgments that defy judicial calculation. … I would uphold the Eleventh
Circuit’s decision that the Medicaid expansion is within Congress’ spending power.”
Justices Scalia, Thomas, Kennedy, and Alito dissented. They wrote: “The question
in this case, however, is whether the complex structures and provisions of the Patient
Protection and Affordable Care Act go beyond [the powers accorded to Congress by the
Constitution]. We conclude that they do. … The case is easy and straightforward,
however, in another respect. What is absolutely clear, affirmed by the text of the 1789
Constitution, by the Tenth Amendment ratified in 1791, and by innumerable cases of
ours in the 220 years since, is that there are structural limits upon federal power – upon
what it can prescribe with respect to private conduct, and upon what it can impose upon
the sovereign states. Whatever may be the conceptual limits upon the commerce clause
and upon the power to tax and spend, they cannot be such as will enable the federal
government to regulate all private conduct and to compel the states to function as
administrators of federal programs. That clear principle carries the day here. … The
Act before us here exceeds federal power both in mandating the purchase of health
insurance and in denying nonconsenting states all Medicaid funding. These parts of the
Act are central to its design and operation, and all the Act’s other provisions would not
have been enacted without them. In our view it must follow that the entire statute is
inoperative.”
Addressing the individual mandate provision of the ACA specifically and whether
or not either the commerce clause or the spending clause authorizes
congressional passage, the dissenters write: “… abstention from commerce – is not
‘commerce’; but one does not regulate commerce that does not exist by compelling its
existence. … If Congress can reach out and command even those furthest removed
from an interstate market to participate in the market, then the commerce clause
31
© State Bar of Texas
becomes a font of unlimited power … ‘If we were to accept the Government’s
arguments, we are hard pressed to posit any activity by an individual that Congress is
without power to regulate.’ … But if every person comes within the commerce clause
power of Congress to regulate by the simple reason that he will one day engage in
commerce, the idea of a limited government power is at an end. … The Government
contends, however, … that ‘the minimum coverage provision is independently
authorized by Congress’s taxing power.’ … The phrase ‘independently authorized’
suggests the existence of a creature never hitherto seen in the United States Reports:
a penalty for constitutional purposes that is also a tax for constitutional purposes. In all
our cases the two are mutually exclusive. The provision challenged under the
Constitution is either a penalty or else a tax. … The issue is not whether Congress
had the power to frame the minimum-coverage provision as a tax, but whether it did so.
… In this case, there is simply no way, ‘without doing violence to the fair meaning of
the words used,’ … to escape what Congress enacted: a mandate that individuals
maintain minimum essential coverage, enforced by a penalty. … We never have
classified as a tax an exaction imposed for violation of the law, and so too, we never
have classified as a tax an exaction described in the legislation itself as a penalty.”
Finally, the four dissenters address the Act’s dramatic expansion of the Medicaid
program and the states’ argument that in doing so Congress has acted to compel
the states to comply. They write: “The practice of attaching conditions to federal
funds greatly increases federal power. … This formidable power, if not checked in
any way, would present a grave threat to the system of federalism created by our
Constitution.
…
Finally, while Congress may seek to induce states to accept
conditional grants, Congress may not cross the ‘point at which pressure turns into
compulsion, and ceases to be inducement.’ … Coercing states to accept conditions
risks the destruction of the ‘unique role of the states in our system.’ … In structuring
the ACA, Congress unambiguously signaled its belief that every state would have no
real choice but to go along with the Medicaid expansion. If the anticoercion rule does
not apply in this case, then there is no such rule. … We would find the Act invalid in its
entirety.”
Justice Thomas filed a solo dissenting opinion. He writes: “I dissent for the reasons
stated in our joint opinion, but I write separately to say a word about the commerce
clause. … I adhere to my view that ‘the very notion of a substantial effects test under
the commerce clause is inconsistent with the original understanding of Congress’
powers and with this Court’s early commerce clause cases.’ … As I have explained,
the Court’s continued use of that test ‘has encouraged the federal government to persist
in its view that the commerce clause has virtually no limits.’ The Government’s
unprecedented claim in this suit that it may regulate not only economic activity but also
inactivity that substantially affects interstate commerce is a case in point.”
32
© State Bar of Texas
SHELBY COUNTY, ALABAMA v. HOLDER, ATTORNEY
GENERAL, et. Al.
570 U. S. __ (2013)
Facts: Congress adopted the Voting Rights Act of 1965 to address persistent racial
discrimination in voting. Section 2 of the law bans any “standard, practice, or procedure”
that “results in a denial or abridgment of the right of any citizen to vote on account of
race or color.” It applies nationwide, is permanent, and is not at issue in this case. Other
sections, however, applied only to some parts of the nation. Section 4 provided the
“coverage formula” and defined the “covered jurisdictions” as states or their political
subdivisions that utilized tests or devices as requirements for voting in November, 1964,
and had less than 50 percent voter registration or turnout in the 1964 presidential
election. Such tests or devices included literacy and knowledge tests, good moral
character requirements, the need for vouchers from registered voters, and the like. A
“covered jurisdiction” could “bail out” of coverage if it had not used a test or device in the
preceding five years “for the purpose or with the effect of denying or abridging the right
to vote on account of race or color.” In those “covered jurisdictions,” Section 5 provided
that no change in voting procedures could take effect until “precleared” by the
Department of Justice in Washington, D. C. or by the U. S. District Court for the District
of Columbia. In 1965 in South Carolina v Katzenbach, the Supreme Court upheld the
1965 Act against constitutional challenge. In 1970, Congress reauthorized the Act for
five more years and extended the coverage formula of Section 4 to jurisdictions that had
a voting test and less than 50 percent voter registration or turnout as of 1968. In 1975,
Congress reauthorized the Act for seven more years and extended its coverage to
jurisdictions that had a voting test and less than 50 percent voter registration or turnout
as of 1972. In addition, Congress amended the definition of “test or device” to include
the practice of providing English-only voting materials in places where only five percent
of voting-age citizens spoke a single language other than English. Congress at the
same time amended Sections 2 and 5 to forbid voting discrimination on the basis of
membership in a language minority group, in addition to discrimination on the basis of
race or color. In 1982, Congress reauthorized the Act for 25 years but did not alter its
coverage formula. The Supreme Court upheld each of these reauthorizations against
constitutional challenge. In 2006, by overwhelming votes in both houses, Congress
reauthorized the Act for 25 years but did not change its coverage formula. Congress
also amended Section 5 to prevent more conduct than before. Section 5 now forbids
voting changes with “any discriminatory purpose” as well as voting changes that
diminish the ability of citizens, on account of race, color, or language minority status, “to
elect their preferred candidates of choice.” In 2009, in Northwest Austin Municipal Utility
District No. One v Holder, the Supreme Court heard and decided a challenge to the law.
The Court unanimously resolved the case on nonconstitutional grounds by allowing
nearly any “covered jurisdiction” to “bail out.” However, in his opinion for the Court,
Chief Justice Roberts stated that “the preclearance requirement and coverage formula
raised serious constitutional questions” and further indicated that for himself and other
justices the law had accomplished its goals and now might be unnecessary and
outdated.
33
© State Bar of Texas
In 2010, the Attorney General of the U. S. objected to voting changes proposed by
Shelby County, Alabama, a largely white suburb of Birmingham, and a “covered
jurisdiction” under the Voting Rights Act. The county did not seek “bailout” and sued the
Attorney General in U. S. District Court in the District of Columbia. It sought a
declaratory judgment that Sections 4 and 5 of the Act were facially unconstitutional and
a permanent injunction against their enforcement. The District Court ruled against the
county and upheld the Act. The Court of Appeals for the
D. C. Circuit affirmed the
District Court’s judgment. The Supreme Court granted certiorari.
Issue: In reauthorizing Section 5 of the Voting Rights Act of 1965 using the
coverage formula of Section 4, did Congress exceed its constitutional authority
under the Fourteenth and Fifteenth Amendments and thus violate the Tenth
Amendment?
34
© State Bar of Texas
SHELBY COUNTY, ALABAMA v. HOLDER, ATTORNEY GENERAL, et. Al. (2013)
Decision
By a 5-4 vote, the Supreme Court reversed the judgment of the Court of Appeals and
declared Section 4 of the Voting Rights Act unconstitutional. The Court did not issue
any holding on Section 5.
Chief Justice Roberts authored the opinion of the Court which Justices Scalia,
Kennedy, Thomas, and Alito joined. Roberts writes: “The Voting Rights Act of 1965
employed extraordinary measures to address an extraordinary problem. … This was
strong medicine, but Congress determined it was needed to address entrenched racial
discrimination in voting… … As we explained in upholding the law, ‘exceptional
conditions can justify legislative measures not otherwise appropriate.’ … There is no
denying, however, that the conditions that originally justified these measures no longer
characterize voting in the covered jurisdictions. By 2009, ‘the racial gap in voter
registration and turnout was lower in the states originally covered by Section 5 than it
was nationwide.’ … Since that time, Census Bureau data indicate that African-American
voter turnout has come to exceed white voter turnout in five of the six states originally
covered by Section 5… … At the same time, voting discrimination still exists; no one
doubts that. The question is whether the Act’s extraordinary measures, including its
disparate treatment of the states, continue to satisfy constitutional requirements. As we
put it a short time ago, ‘the Act imposes current burdens and must be justified by current
needs.’ … In Northwest Austin … we concluded that ‘a departure from the fundamental
principle of equal sovereignty requires a showing that a statute’s disparate geographic
coverage is sufficiently related to the problem that it targets.’ These basic principles
guide our review of the question before us. … Outside the strictures of the Supremacy
Clause, states retain broad autonomy in structuring their governments and pursuing
legislative objectives. … More specifically, ‘the Framers of the Constitution intended the
states to keep for themselves, as provided in the Tenth Amendment, the power to
regulate elections.’ … States have ‘broad powers to determine the conditions under
which the right of suffrage may be exercised.’ … Not only do states retain sovereignty
under the Constitution, there is also a ‘fundamental principle of equal sovereignty’
among the states. … The voting Rights Act sharply departs from these basic principles.
… At the time, the coverage formula … made sense. … Nearly 50 years later, things
have changed dramatically. … In the covered jurisdictions, ‘voter turnout and
registration rates now approach parity. Blatantly discriminatory evasions of federal
decrees are rare. And minority candidates hold office at unprecedented levels.’ … The
preclearance statistics are also illuminating. In the first decade after enactment of
Section 5, the Attorney General objected to 14.2 percent of proposed voting changes.
… In the last decade before reenactment, the Attorney General objected to a mere 0.16
percent. There is no doubt that these improvements are in large part because of the
Voting Rights Act. … Respondents do not deny that there have been improvements on
the ground, but argue that much of this can be attributed to the deterrent effect of
Section 5, which dissuades covered jurisdictions from engaging in discrimination that
they would resume should Section 5 be struck down. Under this theory, however,
Section 5 would be effectively immune from scrutiny… By 2009, however, we concluded
35
© State Bar of Texas
that the ‘coverage formula raised serious constitutional questions.’ … Coverage today is
based on decades-old data and eradicated practices. … In 1965, the states could be
divided into two groups: those with a recent history of voting tests and low voter
registration and turnout, and those without those characteristics. Congress based its
coverage formula on that distinction. Today the nation is no longer divided along those
lines, yet the Voting Rights Act continues to treat it as if it were. … But history did not
end in 1965. By the time the Act was reauthorized in 2006, there had been 40 more
years of it. … Congress did not use the record it compiled to shape a coverage formula
grounded in current conditions. It instead reenacted a formula based on 40-year old
facts having no logical relation to the present day. … Congress could have updated the
coverage formula … but did not do so. Its failure to act leaves us today with no choice
but to declare Section 4 unconstitutional.”
Justice Thomas authored a brief concurring opinion. He writes: “I join the Court’s
opinion in full but write separately to explain that I would find Section 5 of the Voting
Rights Act unconstitutional as well.”
Justice Ginsburg authored a lengthy dissenting opinion which Justices Breyer,
Sotomayor, and Kagan joined. She writes: “In the Court’s view, the very success of
Section 5 of the Voting Rights Act demands its dormancy. Congress was of another
mind. Recognizing that large progress has been made, Congress determined, based on
a voluminous record, that the scourge of discrimination was not yet extirpated. The
question this case presents is who decides whether, as currently operative, Section 5
remains justifiable, this Court, or a Congress charged with the obligation to enforce the
post-Civil War Amendments ‘by appropriate legislation.’ With overwhelming support in
both houses, Congress concluded that, for two prime reasons, Section 5 should
continue in force, unabated. First, continuance would facilitate completion of the
impressive gains thus far made; and second, continuance would guard against
backsliding. Those assessments were well within Congress’ province to make and
should elicit this Court’s unstinting approbation. … ‘Voting discrimination still exists; no
one doubts that.’ But the Court today terminates the remedy that proved to be best
suited to block that discrimination. The Voting Rights Act of 1965 (VRA) has worked to
combat voting discrimination where other remedies had been tried and failed. … Efforts
to reduce the impact of minority votes, in contrast to direct attempts to block access to
the ballot, are aptly described as ‘second-generation barriers’ to minority voting.
Second-generation barriers come in various forms. One of the blockages is racial
gerrymandering… Another is adoption of a system of at-large voting in lieu of district-bydistrict voting in a city with a sizable black minority. … It is well established that
Congress’ judgment regarding exercise of its power to enforce the Fourteenth and
Fifteenth Amendments warrants substantial deference. ... When confronting the most
constitutionally invidious form of discrimination, and the most fundamental right in our
democratic system, Congress’ power to act is at its height. … The Court’s role, then, is
not to substitute its judgment for that of Congress, but to determine whether the
legislative record sufficed to show that ‘Congress could rationally have determined that
its chosen provisions were appropriate methods. … All told, between 1982 and 2006,
DOJ objections blocked over 700 voting changes based on a determination that the
36
© State Bar of Texas
changes were discriminatory. … The number of discriminatory changes blocked or
deterred by the preclearance requirement suggests that the state of voting rights in the
covered jurisdictions would have been significantly different absent this remedy. …
There is no question, moreover, that the covered jurisdictions have a unique history of
problems with racial discrimination in voting. … The Court criticizes Congress for failing
to recognize that ‘history did not end in 1965.’ But the Court ignores that ‘what’s past is
prologue.’ … And ‘those who cannot remember the past are condemned to repeat it.’ …
Congress was especially mindful of the need to reinforce the gains already made and to
prevent backsliding. Of particular importance, even after 40 years and thousands of
discriminatory changes blocked by preclearance, conditions in the covered jurisdictions
demonstrated that the formula was still justified by ‘current needs.’ … Although covered
jurisdictions account for less than 25 percent of the country’s population, the Katz study
revealed that they accounted for 56 percent of successful Section 2 litigation since
1982. … The evidence before Congress, furthermore, indicated that voting in the
covered jurisdictions was more racially polarized than elsewhere in the country. … The
VRA permits a jurisdiction to bail out by showing that it has complied with the Act for ten
years, and has engaged in efforts to eliminate intimidation and harassment of voters. …
Congress was satisfied that the VRA’s bailout mechanism provided an effective means
of adjusting the VRA’s coverage over time. … Nearly 200 jurisdictions have successfully
bailed out of the preclearance requirement, and DOJ has consented to every bailout
application filed by an eligible jurisdiction since the current bailout procedure became
effective in 1984. … This experience exposes the inaccuracy of the Court’s portrayal of
the Act as static, unchanged since 1965. Congress designed the VRA to be a dynamic
statute, capable of adjusting to changing conditions. … The Court makes no genuine
attempt to engage with the massive legislative record that Congress assembled.
Instead, it relies on increases in voter registration and turnout as if that were the whole
story. … I note the most disturbing lapses. First, by what right, given its usual restraint,
does the Court even address Shelby County’s facial challenge to the VRA? Second, the
Court veers away from controlling precedent regarding the ‘equal sovereignty’ doctrine
without even acknowledging that it is doing so. Third, hardly showing the respect
ordinarily paid when Congress acts to implement the Civil War Amendments, and just
as stressed, the Court does not even deign to grapple with the legislative record. … ‘A
facial challenge to a legislative Act,’ the Court has other times said, ‘is, of course, the
most difficult challenge to mount successfully, since the challenger must establish that
no set of circumstances exists under which the Act would be valid.’ … Instead, the
‘judicial power’ is limited to deciding particular ‘cases’ and ‘controversies.’ … The
Court’s opinion in this case contains not a word explaining why Congress lacks the
power to subject to preclearance the particular plaintiff that initiated this lawsuit – Shelby
County, Alabama. The reason for the Court’s silence is apparent, for as applied to
Shelby County, the VRA’s preclearance requirement is hardly contestable. … Between
1982 and 2005, Alabama had one of the highest rates of successful Section 2 suits,
second only to its VRA-covered neighbor Mississippi. … Alabama’s sorry history of
Section 2 violations alone provides sufficient justification for Congress’ determination in
2006 that the state should remain subject to Section 5’s preclearance requirement. …
Leaping to resolve Shelby County’s facial challenge without considering whether
application of the VRA to Shelby County is constitutional, or even addressing the VRA’s
37
© State Bar of Texas
severability provision, the Court’s opinion can hardly be described as an exemplar of
restrained and moderate decisionmaking. Quite the opposite. Hubris is a fit word for
today’s demolition of the VRA. … The Court stops any application of Section 5 by
holding that Section 4’s coverage formula is unconstitutional. It pins this result, in large
measure, to ‘the fundamental principle of equal sovereignty.’ In Katzenbach, however,
the Court held, in no uncertain terms, that the principle ‘applies only to the terms upon
which States are admitted to the Union, and not to the remedies for local evils which
have subsequently appeared.’ … Today’s unprecedented extension of the equal
sovereignty principle outside its proper domain – the admission of new states – is
capable of much mischief. Federal statutes that treat states disparately are hardly
novelties. … As the record for the 2006 reauthorization makes abundantly clear,
second-generation barriers to minority voting rights have emerged in the covered
jurisdictions as attempted substitutes for the first-generation barriers that originally
triggered preclearance in those jurisdictions. … The sad irony of today’s decision lies in
its utter failure to grasp why the VRA has proven effective. … After exhaustive
evidence-gathering and deliberative process, Congress reauthorized the VRA, including
the coverage provision, with overwhelming bipartisan support. It was the judgment of
Congress that ’40 years has not been a sufficient amount of time to eliminate the
vestiges of discrimination following nearly 100 years of disregard for the dictates of the
15th Amendment and to ensure that the right of all citizens to vote is protected as
guaranteed by the Constitution. That determination of the body empowered to enforce
the Civil War Amendments ‘by appropriate legislation’ merits this Court’s utmost
respect. In my judgment, the Court errs egregiously by overriding Congress’ decision.”
38
© State Bar of Texas