Courting Disaster: Update 2001-2002

Federalism and Governmental Authority

In a number of federalism and related decisions this Term, a narrowly divided Court further restricted the authority of the federal government to protect individual rights and the ability of Americans to hold their government accountable. Led by Justices Scalia and Thomas, the Court invoked the Eleventh Amendment, state sovereignty, and other doctrines to insulate state and other government agencies from suits by mistreated citizens. Thomas and Scalia sought to go even further than the Court majority, issuing dissents and concurrences in several key cases that would have further limited the government’s ability to protect citizens. And in sharp contrast to their states’ rights positions in these cases, Scalia and Thomas would have invalidated state patients’ rights laws
5on the grounds of federal preemption. Adding more Justices like Scalia and Thomas to the Court would extend even further the harmful results of the Court’s federalism and related decisions, and would also make it more difficult for states in certain instances to protect the rights of individual Americans.

The Court’s boldest “federalism” decision this Term was its 5-4 decision in Federal Maritime Commission v. South Carolina State Ports Authority, 122 S.Ct. 1864 (2002), which concerned claims that a state agency had violated federal law. The Court held that state sovereignty bars federal administrative agencies from adjudicating a private party’s complaint against a state. The opinion, written by Justice Thomas, significantly expanded the reading of the Eleventh Amendment to apply not only to judicial proceedings, but also to administrative proceedings, which are nowhere mentioned in the text of the Amendment. In his dissent, Justice Breyer sharply criticized the Court’s decision, stating that it “threatens to deny the Executive and Legislative Branches of Government the structural flexibility that the Constitution permits and which modern government demands.”

In Raygor v. Regents of University of Minnesota, 122 S.Ct. 999 (2002), the Court created yet another Eleventh Amendment-related barrier for some civil rights claims. The plaintiffs had filed complaints in federal court against a state university, asserting federal claims under the Age Discrimination in Employment Act and state law claims under the state’s anti-discrimination statute. The cases were consolidated. After the federal lawsuit was dismissed on Eleventh Amendment grounds, the plaintiffs re-filed their state law claims in state court. The Court, in a 6-3 decision, with Scalia and Thomas joining the majority, ruled that the state lawsuit should be dismissed because it was filed too late, refusing to apply a federal law that ordinarily suspends state filing deadlines for state claims brought in a federal lawsuit and related to the federal claim.

In a sovereign immunity case involving the federal government, Correctional Services Corp. v. Malesko, 122 S.Ct. 515 (2001), a 5-4 Court held that private entities acting under federal authority to carry out a government function, in this case operating a halfway house for the Bureau of Prisons, cannot be held liable for monetary damages for constitutional violations. This was despite the fact that federal officers could have been sued for such damages themselves. Justices Scalia and Thomas joined in the Court’s opinion, but also wrote a separate concurring opinion to express an even more restrictive view. Their concurrence argued that the Court’s seminal rulings implying a private right
6of action under the Constitution against federal officers for monetary damages should be narrowly limited to the “precise circumstances” of those cases.

In a case concerning official immunity, Hope v. Pelzer, 2002 WL 1378412 (2002), the Court ruled, 6-3, that an Alabama prison inmate could maintain a civil action for damages under 42 U.S.C. § 1983 against state prison guards for allegedly violating his Eighth Amendment right not to be subjected to cruel and unusual punishment. The plaintiff based his constitutional claim on the charge that prison guards had twice handcuffed him to a “hitching post,” including once for a seven-hour period in which he was “given water only once or twice and was given no bathroom breaks.” The majority held that, under the facts alleged, “the Eighth Amendment violation is obvious. . . [T]he [guards] knowingly subjected [the prisoner] to a substantial risk of physical harm, to unnecessary pain caused by the handcuffs and the restricted position of confinement for a 7-hour period, to unnecessary exposure to the heat of the sun, to prolonged thirst and taunting, and to a deprivation of bathroom breaks that created a risk of particular discomfort and humiliation.” The majority rejected the guards’ claim that they were entitled to summary judgment on the ground that they had qualified immunity, holding that, at the time of the incidents in question and under the facts alleged, “the state of the law . . . gave [the guards] fair warning that their alleged treatment of [the prisoner] was unconstitutional.” Justice Thomas wrote a dissent, joined by Rehnquist and Scalia, asserting that “[q]ualified immunity jurisprudence has been turned on its head” by the Court’s ruling. The dissenters contended that it was not clear at the time that the guards’ alleged conduct violated the Eighth Amendment.

In several cases, the Court majority rejected attempts by Scalia, Thomas, and others to further restrict the power of government to protect its citizens. The so-called “property rights” movement suffered a setback in the 6-3 decision of Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 122 S.Ct. 1465 (2002). The Court held that a temporary moratorium on development in the Lake Tahoe Basin was not a per se “taking” of property that required compensation under the Constitution. Rehnquist, Scalia and Thomas strongly dissented, and would have held that the temporary moratorium was a “taking” that required the property owners to be compensated. This position was in keeping with their view expressed in prior cases that the Takings Clause should be construed to prevent corporations and developers from having to comply with environmental and other regulations without compensation.

In a critical decision involving patients’ rights, and by the narrowest of margins, the Court in Rush Prudential HMO, Inc. v. Moran, 122 S.Ct. 2151 (2002), upheld a state law providing that recipients of health care coverage by a Health Maintenance Organization under an employee benefit plan have the right to an independent medical review of the denial of a covered service when there is a dispute between the patient’s primary care provider and the HMO regarding the “medical necessity” of that service. In a 5-4 ruling, the Court rejected an HMO’s claim that the state law was preempted by ERISA, a federal statute. Although Justices Scalia and Thomas have been part of the 5-4 Court majority in a number of recent decisions upholding states’ rights and blocking the enforcement of federal laws protecting the rights of individual Americans, Thomas in this case wrote the dissent, joined by Scalia, Rehnquist, and Kennedy, which would have invalidated the progressive state law on the ground of federal preemption. Forty-two states and the District of Columbia reportedly have patients’ rights laws similar to the one at issue in this case. Adding just one more Justice like Scalia or Thomas to the Court would have a significant impact on the ability of states to protect the rights of ordinary Americans when it comes to health care decisions by HMOs.

In several other decisions, the Court rejected Eleventh Amendment arguments without dissent. These included Lapides v. University of Georgia Board of Regents, 122 S.Ct. 1640 (2002), in which the Court held that a state waives its Eleventh Amendment immunity when it voluntarily removes a case from state court to federal court, and Verizon Maryland, Inc. v. Public Service Commission of MD, 122 S.Ct. 1753 (2002), in which the Court held that a telecommunications company can bring suit in federal court against state utility commissioners in their official capacities to secure prospective relief concerning an order of the commission that allegedly violated the 1996 Telecommunications Act.

In a decision that effectively denied Utah’s bid for another congressional seat following the 2000 census and preserved a new seat for North Carolina, the Court in Utah v. Evans, 122 S.Ct. 2191 (2002), upheld the Census Bureau’s use of a methodology called “hot-deck imputation” to fill in gaps in information or resolve conflicts about a housing unit when the actual information cannot otherwise be determined. Under this methodology, the Bureau imputes the relevant information based on the known information for a similar housing unit nearby. The Court held that this form of “imputation” violates neither a federal census law prohibition against “the statistical method known as
‘sampling,’ ” nor the Census Clause of the Constitution, which requires an “actual Enumeration.” Four Justices, including Thomas and Scalia, dissented from the ruling for a variety of reasons.
8Ironically, Justice Thomas, who formed part of the five-Justice majority that effectively determined the outcome of the 2000 presidential election, dissented on the ground that “imputation” is unconstitutional and leaves “the basis of our representative government vulnerable to political manipulation.”

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