March 20, 2012

A Commerce Clause change of heart?

By Damien M. Schiff Senior Attorney

Today the Supreme Court issued its decision in Coleman v. Court of Appeals of Maryland, holding that a certain provision of the Family Medical Leave Act did not abrogate the states’ sovereign immunity from suit.  The petitioner had argued that such abrogation did occur because the relevant provision was a valid excercise of Congress’s power under Section 5 of the Fourteenth Amendment to enforce the substantive provisions of the Amendment (i.e., due process and equal protection).  The Court held to the contrary, ruling that the enforcement provision was not “congruent and proportional” to any Fourteenth Amendment proscription.

What I found interesting about today’s decision, however, was that Justices Sotomayor and Kagan, although signing on to Justice Ginsburg’s dissent, nevertheless chose not to sign on to the dissent’s first footnote, which expressed Justice Ginsburg’s view that the Family Medical Leave Act was a valid exercise of Congress’s power to regulate interstate commerce, and that pursuant to that power, Congress can abrogate state sovereign immunity.  Could these Justices’ choice not to sign on to that footnote indicate an inchoate concern for federalism that may come to full blossom during the Obamacare arguments?

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