1. Constitutional Law Spring 2008 Prof. Fischer Class 16: Limits on Congressional Power to Regulate – Sovereign Immunity Feb 13, 2008

2. Florida Prepaid Postsecondary Educ. Expense Bd. v. College Savings Bank (1999) [C p. 231] Patent infringement action Involved constitutionality of abrogation provisions in Patent Remedy Act 5-4 Majority opinion written by Rehnquist joined by O’Connor, Scalia, Kennedy, Thomas

3. Florida Prepaid Postsecondary Educ. Expense Bd. v. College Savings Bank (1999) [C p. 231] Dissenting opinion of Stevens, joined by Souter, Ginsburg, Breyer Unfair decision “even if full respect is giving to the Court’s recent cases.” Criticizes Court’s “aggressive sovereign immunity jurisprudence.”

4. Kimel v. Florida Board of Regents (2000) [C p. 235] Consolidated lawsuit vs. state entities brought under Age Discrimination in Employment Act of 1967 by, inter alia, various professors (like the one on the left, Prof. Narz) (“ADEA”) State successfully challenged abrogation provisions in ADEA as exceeding congressional power under § 5 of Amendment XIV Majority opinion written by O’Connor (joined by Rehnquist and Scalia and, in part, by Kennedy and Thomas) Thomas (joined by Kennedy) dissents on the issue of whether Congress has shown a clear intent to abrogate

5. Kimel v. Florida Board of Regents (2000)[C p. 235] Dissent (in part) of Justice Stevens, joined by Souter, Breyer, and Ginsburg (they all concurred as to whether Congress had shown a clear intent to abrogate) Eleventh Amendment is only a diversity limit Union Gas correctly decided; Seminole wrong Criticical of judicial activism Does not think the judicial branch should be the guardian of federalism

6. Board of Trustees, University of Alabama v. Garrett (2001) [C p. 239] Lawsuit for money damages for employment discrimination brought by employees of U. of Alabama under Americans with Disabilities Act Issue: did congress validly abrogate state sovereign immunity in Title I of the ADA? Majority opinion by Rehnquist (joined by O’Connor, Scalia, Kennedy, Thomas) No pattern of unconstitutional violation Even if there were, ADA fails Boerne congruence and proportionality requirement

7. Board of Trustees, University of Alabama v. Garrett (2001) [C p. 239] Dissent by Breyer, joined by Stevens, Souter, Ginsburg Argues for judicial deference to the rational conclusion by congress that the remedy was an appropriate way to enforce equal protection Ample evidence of discriminatory treatment of disabled by state and local government

8. Nevada Dep’t of Human Resources v. Hibbs (2003) [C p. 246] State employees sued for money damages, injunctive, and declaratory relief for State’s failure to comply with FMLA Issue: could congress abrogate state sovereign immunity under § 5 of Amendment XIV? Majority opinion by Rehnquist, joined by O’Connor, Ginsburg, Souter, Breyer Stevens and Souter (joined by Ginsburg and Breyer) concurred

9. Nevada Dep’t of Human Resources v. Hibbs (2003) [C p. 246] Dissent of Kennedy, joined by Scalia and Thomas No pattern of unlawful conduct shown in evidence that would be enough to justify abrogation of sovereign immunity Even if gender is subject to heightened scrutiny, that doesn’t take away need to identify history and pattern of discrimination

10. Nevada Dep’t of Human Resources v. Hibbs (2003) [C p. 246] Dissent of Scalia

11. Tennessee v. Lane (2004) [C p. 251] Case brought by disabled Tennessee residents alleging that TN violated Title II of ADA by failing to make courthouses accessible to those who use wheelchairs Did Congress validly abrogate state sovereign immunity? Majority opinion by Stevens, joined by O’Connor, Souter, Ginsburg, Breyer

12. Tennessee v. Lane (2004) [C p. 251] Concurrence of Ginsburg, joined by Souter and Breyer

13. Tennessee v. Lane (2004) [C p. 251] Dissent of Rehnquist, joined by Kennedy and Thomas

14. Tennessee v. Lane (2004) [C p. 251] Dissent of Scalia Proposes new test to replace “congruence and proportionality” test except in cases of race discrimination (McCulloch standard)

15. United States v. Georgia (2006) [Supp. 44] Unanimous Scalia wrote majority opinion

16. Alden v. Maine (1999) [C p. 258] Majority opinion by Justice Kennedy (joined by Rehnquist, Scalia, Thomas, O’Connor] Could Congress abrogate state sovereign immunity pursuant to Art. I powers in state courts?

17. Alden v. Maine (1999) [C p. 258] Dissent by Souter (joined by Ginsburg, Breyer, Stevens)

18. Federal Maritime Commission v. South Carolina State Port Authority (2002) [C p. 268] Could nonconsenting states be sued in federal agency proceedings? Majority opinion written by Thomas (joined by Rehnquist, O’Connor, Kennedy, Scalia)

19. Federal Maritime Commission v. South Carolina State Port Authority (2002) [C p. 268] Dissenting opinion written by Breyer, joined by Stevens, Souter, Ginsburg