Analysis: Another Take on U.S. v. Georgia Oral Argument
on Nov 9, 2005 at 2:59 pm
Having attended the argument and followed the issue in United States v. Georgia , No. 04-1203, for a while, I thought I would add my own reactions to Lyle Denniston’s coverage of the argument here.
[Disclosure: I had some involvement in the United States’ petition in this case when I was working for the Government].
While I agree that it is far too early — particularly in light of the recent and imminent changes in the Court’s personnel — to declare that the court’s “federalism revolution” dead, I saw few signs of a reversal from the Court’s most recent trend of moderating its approach to invalidating federal statutes purporting to enforce the Fourteenth Amendment.
In particular, I found it interesting that two of the most ardent supporters of the Court’s Seminole Tribe line of cases — Justices Kennedy and Scalia — seemed to be suggesting in their questions that they might be willing to cut back on the Court’s prior practice of wholesale invalidation of Fourteenth Amendment legislation that in their view exceeds Congress’s powers.
In the past, the Court has looked at the substantive requirements of a statute or part of a statute — be it Title I of the ADA, the Age Discrimination in Employment Act, or the Religious Freedom Restoration Act — and if it concluded that those requirements prohibited substantially more than the Constitution, it would hold that the entire statute is invalid Fourteenth Amendment legislation unless Congress had a substantial basis for believing that the “prophylactic” aspect of the statute (the portion that prohibited more than the Constitution itself) was necessary to respond to a history of unconstitutional state conduct in the area.
Questions from both Justice Scalia and Justice Kennedy suggested that they would moderate this approach somewhat.
Justice Scalia repeatedly questioned the State’s attorney and amicus on why the Court should not allow the prisoner to go forward at least with claims in which the State’s conduct violates both the ADA and the Constitution (for example, where failure to provide a reasonable accommodation to permit an inmate with a disability to use the bathroom results in cruel and unusual punishment). The Court could have followed this approach in any of its prior cases that declared federal statutes invalid, but it did not. For example, in Univ. of Alabama v. Garrett, the Court held that Title I of the ADA was not valid legislation to enforce the Fourteenth Amendment even though it was clear that some applications of the statute would prohibit unconstitutional conduct (e.g., discrimination based in irrational hostility toward people with disabilities). Justice Scalia’s questions today suggested that he might be on the verge of abandoning that approach in favor of a more traditional as-applied analysis that would hold the statute invalid only in applications where the defendant’s conduct does not also violate the Constitution.
This potential change in approach is related to Justice Scalia’s dissent last Term in Tennessee v. Lane. In that case, Justice Scalia declared that he had made a mistake in joining the Court’s analysis in prior cases (including Garrett), which required the Court to determine whether any prophylactic aspect of a statute was “congruent and proportional” to a record of state constitutional violations. Rather than apply that “flabby” test, Justice Scalia declared he would afford Congress no leeway at all to prohibit more than the Constitution itself (except in the area of race discrimination, which he considered sufficiently settled that he would adhere to it as a matter of stare decisis). That position leads to the question posed in this case: what to do when a statute prohibits some conduct that is unconstitutional (and therefore within Congress’s Fourteenth Amendment power in Justice Scalia’s view) and some that is not (and therefore beyond Congress’s power according to Scalia). His questions today strongly suggested that Justice Scalia would not hold that the entire statute is invalid Fourteenth Amendment legislation, as the Court did in Garrett and in other cases, but instead would hold the statute unconstitutional only insofar as it authorizes damages actions for otherwise constitutional conduct. (Notably, this is essentially the as-applied approach Justice Scalia has advocated in abortion cases, an approach that will be at issue later this Term).
Although his thinking was far less apparent that Justice Scalia’s, Justice Kennedy also asked several questions that might suggest a different way in which he would limit the impact of the Court’s conclusion that Title II extended too far beyond the prohibitions of the Fourteenth Amendment. At least on two occasions, Justice Kennedy asked whether the damages remedy itself was necessary to remedy the constitutional problems Congress identified, as opposed to whether the substantive requirements of Title II were necessary. This line of questioning may suggest that Justice Kennedy would hold that the substantive requirements of Title II are valid Fourteenth Amendment legislation but the damages remedy is not. This might provide a solution to what some of the Justices might see as a problem: holding that Title II is invalid Fourteenth Amendment legislation would very likely mean that the statute is completely invalid and could not be enforced through an injunction or even in a suit by the Government, a point Justice Stevens made in a colloquy with the Solicitor General. (This is because, as I’ve explained elsewhere, it would be very difficult to defend the substantive requirements of Title II as valid Commerce Clause legislation).
Previously, the Court has looked at the substantive provisions and damages remedy as a single unit — if the substantive provisions are valid Fourteenth Amendment legislation, then the damages remedy is valid, too. At the same time, as the Court held in Lane, if the substantive provisions are valid, so is the damages remedy. Justice Kennedy, however, may be thinking whether the two issues should be separated, allowing Congress more authority to prohibit disability discrimination than it has to enforce that prohibition through a damages remedy. The result may have a pragmatic appeal — it would limit the Court’s interference with Congress’s ability to protect people with disabilities from conduct that, while not strictly unconstitutional, is nonetheless close to the line and otherwise undesirable, while at the same time protecting States from all the ill effects of a damages remedy.
But if Justice Kennedy is inclined to adopt such a solution, it seems unlikely that he will be able to persuade a majority of his colleagues to follow that path. The four dissenters from Seminole Tribe have shown no interest in moderating their opposition to the entire project and I doubt that Justice Thomas would be interested in a position that gives Congress greater leeway to impose substantive limitations on State authority.
Thus, the possibility of a fractured Court seems quite high. The one possible compromise might be one pressed by the Solicitor General — the Court may make plain that Title II must be narrowly construed in the prison context in order to avoid serious constitutional doubt. That view may be acceptable to the four Seminole Tribe dissenters if it could sway the Chief. If not, it seems almost certain that the case will have to be reargued when Justice O’Connor’s replacement takes the bench. (Justice O’Connor’s position in today’s argument was difficult to discern, but is unlikely to matter because the case almost certainly will not be decided until after her successor takes the bench).
