In two cases, the Court rejected efforts to further restrict federal authority in the name of “federalism.” In Nevada Department of Human Resources v. Hibbs, 123 S. Ct. 1972 (2003), the Court held 6-3 that State employees may sue for money damages in federal court if a State employer violates their rights under the federal Family Medical Leave Act’s (FMLA) family-care provision. The Court explained that Congress may subject states to such liability in federal court if it makes its intention to abrogate Eleventh Amendment immunity “unmistakably clear in the language of the statute and acts pursuant to a valid exercise of its power under Section 5 of the Fourteenth Amendment.” 123 S. Ct. at 1977. In an opinion by Chief Justice Rehnquist, the majority opinion held that FMLA clearly states Congress’ intent to abrogate 11th Amendment immunity, and that FMLA was an appropriate use of Congress’ Section 5 enforcement power. Based on “the persistence of… unconstitutional discrimination by the States,” the majority stated, Congress was justified in passing FMLA as “prophylactic Section 5 legislation,” id. at 1979, and the remedy chosen by Congress, the FMLA’s family-care provision, is congruent and proportional to the violation targeted. Justices Stevens, Souter, Breyer, and Ginsburg concurred, making clear that they continue to disagree with the narrow framework for evaluating federal laws requiring state compliance as articulated by Rehnquist. Justice Kennedy, joined by Justices Thomas and Scalia, dissented, claiming that the “Court is unable to show that States have engaged in a pattern of unlawful conduct which warrants the remedy of opening state treasuries to private suits.” Id. at 1987. (PFAWF filed an amicus brief in this case.)
Jinks v. Richland County concerned a federal law (28 U.S.C. §1367(d)) preserving a claimant’s ability to later file a state lawsuit when federal and state claims are involved in the same federal lawsuit and the state claims are dismissed from the federal litigation. In a divided opinion, the Court had previously held that this “tolling rule” does not apply to claims against state governments. The question in Jinks was whether counties should also be exempt from the rule, since they are created by states. The Court rejected this effort to expand “sovereign immunity” to municipalities, and unanimously ruled that the application of the tolling rule to counties is constitutional.