Patterico's Pontifications

11/4/2005

The Alito Project: The Decision on the Family and Medical Leave Act

Filed under: Court Decisions,Judiciary — Patterico @ 6:42 am



I keep hearing about that case where Judge Alito ruled that Congress couldn’t make states follow the Family and Medical Leave Act (FMLA). So I thought I’d read that case and analyze it. You can read it yourself, here.

This one is easy. The analysis is simple and the accusations are bogus. Any leftist who tells you that Judge Alito ruled the FMLA unconstitutional doesn’t know what they’re talking about.

Here’s what happened:

In short, some guy tried to sue the State of Pennsylvania under the FMLA. He ran into the Eleventh Amendment and he lost.

See, there’s this amendment to the Constitution called the Eleventh Amendment. You can tell it’s the Eleventh Amendment because it comes right after the Tenth. The Eleventh Amendment says:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

This might sound like it’s okay for the citizen of a state to sue his own state — but some crazy activist court in a case called Hans v. Louisiana said that’s not okay either. It may not have much to do with the strict text of the amendment, but the case was decided an awful long time ago (1890, to be exact), and, you know, stare decisis and all that.

So we’re stuck with the simple rule: if you are a private citizen, you can’t sue a state in federal court unless the state says it’s okay. And in this case, it was clear that the State of Pennsylvania did not consent to be sued.

That didn’t end the matter, because the Congress tried to say it was okay for private citizens to sue the state under the FMLA. And under some circumstances, Congress can do that.

How is that possible, given the existence of that pesky Eleventh Amendment? Good question. After all, Congress can’t just do whatever it wants, and the Constitution be damned. Right?

Ah, but what if the Fourteenth Amendment gave Congress the authority to allow private citizens to sue the states? Since the Fourteenth Amendment came later, it could permissibly change the Eleventh Amendment. That makes sense, doesn’t it?

And that turns out to be the rule. As Judge Alito explained:

Congress has the authority to abrogate Eleventh Amendment immunity pursuant to its power to enforce the Fourteenth Amendment. See Kimel, 120 S. Ct. at 643-44. In order to invoke this, Congress “must identify conduct transgressing the Fourteenth Amendment’s substantive provisions, and must tailor its legislative scheme to remedying or preventing such conduct.”

In other words, if Congress sees activity that violates the Fourteenth Amendment, and passes a law that is narrowly tailored to remedy that violation, that law is constitutional even if the law permits private citizens to sue a state. That’s because the Fourteenth Amendment trumps the Eleventh.

In order to be narrowly tailored,

“[t]here must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.” See id. at 2164. In the present case, consequently, there must be “congruence and proportionality” between “the potential for employment discrimination on the basis of sex” and the FMLA’s provision of 12 weeks of leave to eligible employees.

If the law was not narrowly tailored to remedy a Fourteenth Amendment violation, then the Court would have to find that Congress ran afoul of the Eleventh Amendment if it authorized private citizens to sue states.

So the simple legal issue in the FMLA case was this: was the FMLA narrowly tailored to remedy a Fourteenth Amendment violation? And the answer was: No. It wasn’t. Let me quote Judge Alito’s decision:

In enacting the FMLA, Congress found, among other things, that it is “important . . . that fathers and mothers be able to participate in early childrearing and the care of family members who have serious health conditions,” 29 U.S.C. S 2601(a)(2), that the “lack of employment policies to accommodate working parents can force individuals to choose between job security and parenting,” S 2601(a)(3), that “there is inadequate job security” for persons who might take medical leave, S 2601(a)(4), and that “the primary responsibility for family caretaking often falls on women” and has a greater effect on their work than it does on men, S 2601(a)(5). Notably absent is any finding concerning the existence, much less the prevalence, in public employment of personal sick leave practices that amounted to intentional gender discrimination in violation of the Equal Protection Clause. For example, Congress did not find that public employers refused to permit as much sick leave as the FMLA mandates with the intent of disadvantaging employees of one gender. (Indeed, it is doubtful that a practice of allowing less sick leave than the FMLA requires would even have a disparate impact on men and women.). Nor are we aware of any substantial evidence of such violations in the legislative record.

Moreover, even if there were relevant findings or evidence, the FMLA provisions at issue here would not be congruent or proportional. Unlike the Equal Protection Clause, which the FMLA is said to enforce, the FMLA does much more than require nondiscriminatory sick leave practices; it creates a substantive entitlement to sick leave. This requirement is “disproportionate to any unconstitutional conduct that conceivably could be targeted by the Act.” Kimel, 120 S. Ct. at 645. It is “so out of proportion to a supposed remedial or preventive object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior.” City of Boerne, 117 S. Ct. at 2170. For these reasons, the legislative scheme cannot be said to be congruent or proportional to any identified constitutional harm, and it cannot be said to be tailored to preventing any such harm. Accordingly, we hold that the FMLA provisions at issue here do not represent a valid exercise of Congress’s power to enforce the Fourteenth Amendment and that the FMLA does not abrogate Eleventh Amendment immunity.

(All emphasis mine.)

This conclusion seems quite logical. If anyone has a good argument as to why sick leave is a Fourteenth Amendment issue at all, let me know, but I certainly don’t see it.

Judge Alito’s conclusion was shared by numerous other judges, including Democrat-appointed judges. As Ed Whelan notes here, here, and here, the opinion was joined by two Democrat-appointed judges. Also, as Whelan points out, 20 of 21 judges considering the issue had ruled this way, and 10 of them were Democrat-appointed:

Judge Alito was one of 21 judges on seven panels of seven different courts of appeals who, prior to the Ninth Circuit’s decision in Hibbs, applied Supreme Court precedent to the question whether Congress validly abrogated the states’s Eleventh Amendment immunity when it enacted the FMLA. Twenty judges, including Alito, determined that Supreme Court precedent dictated that the answer to that question was no. By my quick tally, ten of these twenty judges were Clinton or Carter appointees, including the most liberal member of the Third Circuit, Judge McKee, who joined Alito’s opinion, and highly respected Democratic appointees like Amalya Kearse, Jose Cabranes, and the late Richard Arnold.

Pretty tough to make an “out-of-the mainstream” argument based on this case.

Note well: Judge Alito did not rule the FMLA unconstitutional, as some leftists have claimed. He merely held, in my view quite correctly, that the Eleventh Amendment barred suits against the states.

P.S. Alito opponents note that a later Supreme Court decision found that Congress had indeed validly abrogated states’ Eleventh Amendment immunity. True — but this doesn’t mean Alito was wrong.

Full disclosure: I’m not going to offer a definitive opinion on the Supreme Court opinion, because I have only skimmed it. I am relying on the punditry of Ed Whelan and Ann Althouse.

First, the Supreme Court case dealt with a different provision of the FMLA than had been considered by Alito and most of the numerous courts that had agreed with him. Remember: it’s the Family and Medical Leave Act. So, there’s family leave, and there’s medical leave. Alito’s decision related to medical leave, which (as we have discussed) has little or nothing to do with the Fourteenth Amendment; where’s the intentional gender discrimination there?

But the Supreme Court decision related to family leave. The Ninth Circuit decision that the Supreme Court affirmed had pointedly distinguished cases like Judge Alito’s, on the basis that those decisions interpreted the portion of the law relating to medical leave. The Ninth Circuit said that the portion relating to family leave (subpart (C)) could “more plausibly be defended as an attempt to remedy gender discrimination” than the portion relating to medical leave (subpart (D)), which Judge Alito and other courts had considered. The Supreme Court agreed, in the Hibbs decision. As Ed Whelan explains:

Understood as limited to subpart (C), the Supreme Court’s decision in Hibbs does not in fact disagree with Alito’s holding in Chittister, the facts of which involved subpart (D). Tellingly, in identifying a circuit conflict below, the majority decision in Hibbs cited only the Ninth Circuit and Fifth Circuit opinions.

One last point: I’m no expert in this area, but Professor Ann Althouse is. And, for what it’s worth, she says the Supreme Court just flat-out got it wrong. I don’t know whether she’s right, since I haven’t yet carefully read the Supreme Court opinion. But I know that she agrees with Antonin Scalia and Clarence Thomas, which is usually a good indication that a legal position is sound.

UPDATE: Proof that the Supreme Court did not overrule Alito’s position — together with links to a false PFAW claim to the contrary — can be found here.

3 Responses to “The Alito Project: The Decision on the Family and Medical Leave Act”

  1. Well written Patterico, your explanation made it easier to understand.

    Dwilkers (a1687a)

  2. Ann Althouse is having some difficulty making that clear to some Kossites on her site.

    It’s not that complicated, is it?

    Steve Donohue (2d2535)

  3. Good grief. I followed Steve’s link and have for the last hour been in KosLand at of all places Ann Althouse’ site. Won’t be long before she turns off the comments over there is my guess.

    Dwilkers (a1687a)


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