These days, all eyes are (understandably) focused on the recently concluded Supreme Court oral arguments in the challenge to the Affordable Care Act. Yet the Justices quietly handed down another case in the last few weeks, Coleman v. Court of Appeals of Maryland, in which the central attack on a federal statute was in some respects similar to the attack on Obamacare. Both cases raise the central question whether Congress lacked enumerated power to pass a particular statute.
In Coleman, a five-member majority of the Court struck down the provision in the Family and Medical Leave Act (FMLA) that subjects state-level government employers to damage liability for failing to provide the required unpaid leave to employees for self-care for a serious medical condition. To my mind, Coleman is noteworthy not only because the FMLA is an important statute in its own right, but also because Coleman illustrates the softness (and perhaps also the volatility) of the doctrines that govern the scope of federal powers.
What FMLA Requires
Passed by Congress almost 20 years ago, FMLA entitles each employee of a covered employer to take up to 12 weeks per year of unpaid leave for any of three purposes: (1) to deal with the birth or adoption of a child; (2) to tend to the needs of a family member with health problems; and (3) to cope with the employee’s own serious health condition, when that condition interferes with the employee’s ability to perform the job. Employers who fail to abide by FMLA’s requirements are subject to court-ordered compliance, and also subject to damage liability for past violations.
There is no doubt that Congress has the power, under the Commerce Clause of the Constitution (the very provision at the heart of the Obamacare challenge) to regulate generally how employers treat employees, including the matter of how much leave employees are provided. So private-sector employers have no basis for challenging the FMLA. But state-level government entities, including state employers, enjoy protection under the Eleventh Amendment, a constitutional provision that complicates things.
Under the prevailing understanding of the Eleventh Amendment, while state entities are subject to judicial commands to comply with legitimate federal statutes going forward into the future, suits seeking money damages against a state entity for a past violations are barred unless the state has consented to the suit, or unless Congress has validly abrogated—i.e., nullified—the state’s sovereign immunity from such a suit.
In Coleman, where an employee of the Maryland court system alleged that his employer had not given him the required time to tend to his own serious medical condition, and sued for damages, the State did not waive its Eleventh Amendment immunity. Thus, the issue for the Supreme Court became whether Congress, by passing the self-care leave requirements of the FMLA, had validly stripped states of their immunity.
The Test For Congress’s Ability to Abrogate States’ Eleventh Amendment Immunity
In recent years, the Court has allowed Congress to abrogate the Eleventh Amendment shield for states only under very limited circumstances. First, Congress must be acting pursuant to its powers under Section 5 of the Fourteenth Amendment, which gives Congress “the power to enforce, by appropriate legislation, the provisions of” the rest of the Fourteenth Amendment. (Congressional laws enacted under constitutional provisions other than Section 5, such as the Commerce Clause, cannot strip states of their immunity.)
Second, in order to be a valid Section 5 enactment, the congressional statute must remedy constitutional violations that states have committed, or are likely to commit. A congressional law that requires states to do things that the Constitution itself does not come close to requiring cannot be said to “remedy” violations of the Constitution itself. Such congressional statutes, the Court has held, are not “congruent and proportional” to the constitutional rights that the statutes are supposed to be safeguarding.
This is not to say that a congressional statute may not go any farther than the Constitution itself in the limitations it places on states. Rather, it is to say that any congressional prophylactic must be carefully tailored, so that the congressional “remedy” remains closely tied to the substantive constitutional guarantee itself.
The Previous Supreme Court FMLA Section 5 Ruling
In Nevada Dep’t of Human Resources v. Hibbs in 2003, the Court (somewhat unexpectedly) held that the family-leave requirement in FMLA—that is, the requirement that employers give employees leave to care for sick family members—was validly enacted under Section 5 (and thus could be a basis for damage suits against state employers). The Court reached this result based on its determination that the family-leave provision was a reasonably well-tailored effort by Congress to deal with gender discrimination in the public workplace, in light of the fact that employers, including public employers, had some history of structuring and implementing their family-leave policies in gender-based ways.
The Court came out the other way in Coleman. Writing for himself and three others, Justice Anthony Kennedy found no pattern of gender discrimination with respect to the self-care leave provision. In the self-care leave part of the statute, he wrote, Congress was responding to the economic burdens created by illness-related job loss. Congress was, in other words, concerned with employer discrimination based on illness, not employer discrimination based on sex. Justice Kennedy noted that, at the very worst, when public employers deny self-care leave, there might be a disparate impact that hurts women more than men (because single parents tend to be women, and the self-care leave provision helps single parents a great deal). But he quickly added that any such uneven impact, unaccompanied by demonstrable malicious gender-discriminatory intent, is not a constitutional problem that Congress can easily remedy.
Coleman is noteworthy in a number of respects. First, FMLA is a significant workplace statute, and when its provisions can be violated by some employers without the threat of damage liability, aggregate compliance is likely reduced.
Indeed, putting damage relief to one side, since the self-care leave section is not supported by Congress’ power under Section 5 of the Fourteenth Amendment, I suppose there might be some possible question now about whether this provision of the FMLA can be enforced by courts against public employers even via forward-looking judicial relief. Although the self-care leave provision is valid under the Commerce Clause as to private employers, it is arguably not a law of “general applicability” (insofar as only larger and education-sector private employers are covered, while all public employers are covered) that can apply to state government under the Commerce Clause and the famous Garcia v. San Antonio Metropolitan Transit Authority case.
Second, although we may tend to forget this point in modern times, when the Court strikes down any provision of any Act of the duly elected Congress, that should be a momentous event in our constitutional democracy.
Third, Coleman highlights the pivotal role that Justice Kennedy plays in the federalism realm (as he does in most other important constitutional realms). Although Kennedy wrote in Coleman for four, rather than five, Justices, Justice Scalia’s separate opinion was penned primarily to underscore his view that Congress should be limited under Section 5 of the Fourteenth Amendment even more tightly than current doctrine permits. More specifically, Scalia opined that in most settings even “congruent and proportional” remedies are impermissible if they extend beyond the precise constitutional violations themselves.
So Justice Kennedy’s opinion represents the views that control the Court’s outcomes in this area. And the fact that Kennedy was selected to write that opinion suggests that he is viewed by his colleagues as the fulcrum, the Justice whose vote will dictate results. That is one reason why, in the Obamacare challenge, everyone expects he will be in the majority—that his views will correspond to the law of the land, so to speak. (That is also why his aggressive questioning of the U.S. Solicitor General defending Obamacare last week was unsettling to observers who expect the Court to uphold the Affordable Care Act.)
Fourth, Coleman highlights the manipulability (or perhaps even the volatility) of the “congruence and proportionality” test. The Court has used this test in a number of cases in ways that seem inconsistent. I myself have written about how the analysis and methodology used by the Court in Hibbs is in profound tension with, and more generous than, earlier cases in which the Court had struck down laws as being beyond Section 5 power.
Although Coleman perhaps can be reconciled with Hibbs, the distinctions between the two cases are pretty fine. As Justice Ginsburg pointed out in her Coleman dissent, Congress did have some anecdotal evidence in FMLA hearings conducted between 1986 and 1993 that some women were fired for needing self-care leave after becoming pregnant or giving birth. Although the evidence of gender motivation with respect to the implementation of self-care leave policies might not be overwhelming, neither was the evidence that public employers were biased in their family-leave policies voluminous in Hibbs, and yet it sufficed there.
And you don’t need to compare other cases to Coleman to see the beating that the “congruence and proportionality” test took there. Just within the writings in Coleman itself, Justice Scalia (as noted above) wants to replace that test with something tougher, and Justice Ginsburg wants to replace that test with something more deferential to Congress. Justice Scalia was so sarcastic about the test’s “flabb[iness]” that he said he thought Justice Kennedy’s opinion and Justice Ginsburg’s diametrically opposed opinion were both “faithful application[s]” of the test. Whether the “congruence and proportionality” yardstick—which remains the law governing Section 5 for now—remains intact in the intermediate term remains to be seen.
Finally, Coleman is interesting because of another unsuccessful argument that was made on behalf of the self-care leave provision: FMLA supporters argued that the self-care leave provision was within Congress’ powers because it operated to make more meaningful the family-leave provision that had already been upheld in Hibbs. The idea seemed to be that the inclusion of the self-care leave requirement in FMLA balances the overall amount of leave that will be taken by men and women, and thus reduces possible hiring discrimination against women that might ensue if only the family-leave provision—a provision of which women make more use than do men—were in place.
Justice Kennedy found this argument to be unsupported by any empirical evidence. And the issue of the linkage between different parts of a comprehensive statute might also loom large in the Obamacare case, where the government argues (among other things) that the individual mandate provision is within Congress’ powers because it operates to make more meaningful other provisions, including the ban on insurance company discrimination against persons with pre-existing conditions. Of course, the government has much more evidence (as well as commonsense intuition) to empirically link the two Obamacare provisions than was present in Coleman to link the two FMLA provisions. Moreover, the rigorous “congruence and proportionality” test concerning Section 5 of the Fourteenth Amendment would seem to require more of Congress than would the more giving standard that governs Congress’ powers under Article I. But, in the end, in the Affordable Care Act as in Coleman, Justice Kennedy’s sense of nexus and fit will probably drive the outcome.