The Pew Charitable Trusts

The U.S. Supreme Court last week (5/27) issued another in a series of rulings that define boundaries between state and federal powers. In one of the few recent victories for those who favor a larger federal role, the Court said Congress acted within its constitutional authority in permitting federal lawsuits against states and state agencies under the Family and Medical Leave Act (FMLA) of 1993.

Chief Justice William Rehnquist wrote the decision, entitled Nevada v Hibbs, and it represented something of a departure, since Rehnquist has almost always sided with states in federalism disputes.

Joining Rehnquist in the 6-3 ruling were Justices Sandra Day O'Connor, David Souter, Ruth Bader Ginsburg, Stephen Breyer and John Paul Stevens. Justices Antonin Scalia, Anthony Kennedy and Clarence Thomas dissented.

The FLMA entitles eligible employees to take up to 12 work weeks of unpaid leave annually for any of several reasons, including the onset of a serious health condition in an employee's spouse, child or parent. Employers who violate the act can be sued for monetary damages.

The case before the Court was brought by Nevada state employee William Hibbs. In 1997 Hibbs asked for leave to care for his wife, who was recovering from a car accident and neck surgery. The department for which Hibbs worked granted his request for the full 12 weeks of FMLA leave and authorized him to use the leave intermittently as needed. When he used up his 12 weeks, the department told him no further leave would be granted and ordered him to return to work.

When Hibbs did not comply, he was fired.

Hibbs sued, claiming the department's actions violated the FMLA. Without considering the merits of his case, the trial court held that his lawsuit was barred by the Eleventh Amendment, which normally forbids suits against states or state agencies in federal court for money damages.

The federal Court of Appeals for the Ninth Circuit reversed, and the Supreme Court took up the case.

Rehnquist found that Congress does have the power, under the Fourteenth Amendment, to override the sovereign immunity that states normally enjoy under the Eleventh Amendment. This power derives from Section Five of the Fourteenth Amendment, which gives Congress the power to enforce, by appropriate legislation, the civil rights and civil liberties guarantees provided by the Fourteenth Amendment, such as equal protection of the laws and due process of law.

The logic that undergirds this "override" power is that the Fourteenth Amendment, passed decades after the Eleventh Amendment in the aftermath of the Civil War, was a deliberate alteration of the balance between federal and state power in the arena of civil rights.

In creating a national constitutional guarantee of basic civil rights and in giving Congress the power to put teeth in those guarantees as an "enforcer," the framers of the Fourteenth Amendment contemplated that states could be held accountable in federal court in order to vindicate those rights.

Supreme Court decisions over the last decade have sought to define the limits of this enforcement power. A number of important principles have evolved during this period. Congress does not have the authority under the Fourteenth Amendment to add new rights, or to use its Section Five authority to enforce some substantive right that does not exist.

But Congress is permitted to enact what are known as "prophylactic" rules to protect substantive rights that do exist. The term "prophylactic" in this sense means "preventative," and this power allows Congress to outlaw certain conduct that might itself be constitutionally permissible as a kind of buffer or precaution to prevent states from engaging in conduct that is not permissible.

This is not the same as creating a "new right." Rather, it is creating rules and remedies that protect "old rights," giving those rights additional strength and teeth. Whenever Congress attempts to abrogate the sovereign immunity of states, it must make its intent to exercise this drastic power extremely clear and precise. Moreover, the legislation must be "in scale" to the abuses Congress is attempting to prevent. The Supreme Court has adopted the terms "proportionality and congruence" to describe this notion, which essentially means the punishment must fit the crime.

Against this backdrop, the Court found in Hibbs that the FMLA was a legitimate exercise of Congress' article five power. The FMLA, the Supreme Court observed, aims to protect the right to be free from gender-based discrimination in the workplace.

Freedom from gender discrimination by public employers is a substantive civil right encompassed by the guarantee of equal protection of the law in the main body of the Fourteenth Amendment. When it enacted the FMLA, Congress had significant evidence of a long and extensive history of sex discrimination with respect to the administration of leave benefits by the States, the Court noted, and this evidence was weighty enough to justify the enactment of the prophylactic FMLA legislation.

Congress, the Court in Hibbs reasoned, was attacking the mutually reinforcing stereotypes that only women are responsible for family caregiving and that men lack domestic responsibilities. The Court held that the remedy Congress chose to fight this form of discrimination was "congruent and proportional" to the harm. The FMLA, the Court held, is narrowly targeted at the fault line between work and family -- precisely where sex-based overgeneralization has been and remains strongest.

In this respect the FMLA was far more precise (and less damaging to state sovereignty) than a number of the more sweeping federal laws that the Court had struck down in the past decade.

Rod Smolla is the Allen Professor of Law at the University of Richmond School of Law. On July 1 he will become the new Dean of the Law School.