THE SUPREME COURT, in the most dramatic rulings of its just-completed term, struck a blow for the power of the states vis-a-vis the federal government. In and of itself, this would be a good thing. Despite the hysteria that has erupted in recent years when the high court approached the limits of Congress's power, the constitutional balance between Washington and the states could use some tinkering. But the blow the court struck raises real worries about the states being freer to violate long-presumed rights of individuals. It tends to deprive individuals of the power to do anything about state violations of important federal laws.
The court made it more difficult for Congress to require states to submit to lawsuits by individuals for money damages. The context was a trio of cases in which people sued states under federal statutes claiming the states had violated some federal protection.
One involved employees of Maine who claimed the state had violated federal overtime laws. The court held that Congress could not simply abrogate Maine's sovereign immunity, which it held to be both an inherent feature of its sovereignty and embedded in the structure of the Constitution. The court also held, in another case, that a federal law abrogating state sovereign immunity for patent infringement litigation was invalid and, therefore, could not be the basis of a suit against Florida by a patent holder who claims that a state entity misused his intellectual property.
It seems unlikely that states will respond to these decisions with systematic patent infringements or by failing to pay the minimum wage. At the same time, the implications of the decisions are troubling, particularly for certain statutory civil rights protections. The decisions also seem to affront the legal axiom that a right must be accompanied by some means of vindicating that right.
The Supreme Court has not in this instance challenged either the authority of Congress to impose worker protection requirements on the states or the right of the federal government to sue a noncompliant state. It has only attacked the ability of individuals to get those requirements enforced in the courts. In the name of shifting the balance of power within our system of divided sovereignty, the court has largely shifted the balance of power between state government and its citizens.
The court's continued expansion of this area is a perverse kind of federalism that doesn't actually augment state policymaking authority except to the extent that states wish to violate federal law. The principle that a state cannot be sued without its consent should yield to acts of Congress.