Opposition to Jeffrey Sutton's Nomination to the U.S. Court of Appeals for the Sixth Circuit

Sutton’s record on limiting congressional authority and federal rights in other areas

Sutton’s narrow views on federal authority go far beyond civil rights and religious liberty. As documented by a number of his articles and amicus curiae briefs, Sutton’s restrictive legal philosophy would go so far as to virtually eliminate the ability of Americans to protect their rights under Social Security, Medicaid, and similar programs, and would significantly limit the federal government’s ability to protect the environment.

In a recent case, Sutton espoused a radical view of individuals’ rights under federal law and the Constitution so narrow that it would, if ultimately upheld by the courts, severely limit the rights of all Americans that are based on federal law. In Westside Mothers v. Haveman, 133 F.Supp.2d 549 (E.D. Mich. 2001), rev’d by 289 F.3d 852 (6th Cir. 2002), cert. denied, 123 S.Ct.. 618 (Dec. 2, 2002), a district court ruled that poor people may not sue state officials to require the provision of important Medicaid benefits guaranteed under federal Medicaid law. The New York Times reported that the decision “shocked some legal scholars and advocates for the poor,” quoting one health law expert as explaining that if the decision stands, “it is the end of the Medicaid program as a source of insurance.” Once private individuals lose their ability to enforce their rights as in the Haveman decision, she said, they effectively “no longer have health insurance.” 10 Sutton played a key role in the case, arguing for a legal theory even more restrictive than that adopted by the lower court.

Specifically, the lower court decision explained that on its own motion, the court had ordered briefing on the issue of whether a suit could be brought at all to require Michigan officials to comply with the Medicaid program. Finding the state’s briefs to be “less than fully satisfactory,” the court invited amicus curiae participation by Sutton and the Michigan Municipal League, and specifically praised Sutton in its decision. 133 F. Supp. 2d at 553, n. 3. Sutton’s brief took the position that not only could people not sue to enforce their rights to receive Medicaid under 42 U.S.C. § 1983, as the court held, but also that Section 1983 does not permit lawsuits by individuals to enforce any legislation enacted under the Spending Clause, similar to his argument in Sandoval . See July 18, 2000 brief at 5. As the plaintiffs pointed out in their reply, this theory would “overturn 30 years of Supreme Court jurisprudence” and congressional law providing that people may bring lawsuits to enforce their rights under the Social Security Act, Medicaid, and other federal laws. See Aug. 1, 2000 brief at 5. 11 Sutton even suggested that it would be unconstitutional for Congress to pass a specific law requiring that states consent to such lawsuits in order to receive federal funds.

Even the lower court’s decision did not fully accept Sutton’s radical theory, and the Court of Appeals for the Sixth Circuit – the very court to which Sutton has been nominated -- rejected it outright, reversing the district court’s holding. 289 F. 3d 852 (6th Cir. 2002). The Court of Appeals held that Medicaid has the force of law and that it creates privately enforceable rights against state officials, contrary to what Sutton had argued. Id. at 858, 863. It rejected the lower court’s reasoning and Sutton’s radical theory point by point. First, Medicaid and similar programs “are not merely contract provisions; they are federal laws” according to Supreme Court precedent. Id. at 858. Nor is Medicaid unenforceable as a product of the Spending Clause: “The well-established principle that acts passed under Congress’s spending power are supreme law has not been abandoned in recent decisions,” contrary to what Sutton had argued. Id. at 860. The district court was also mistaken in accepting Sutton’s theory that the suit was barred by Eleventh Amendment sovereign immunity, the appellate court held. “Plaintiffs seek only prospective injunctive relief from a federal court against state officials for those officials’ alleged violations of federal law, and they may proceed.” Id. at 862. Finally, the court held, the plaintiffs do indeed have a private cause of action under the analysis set forth in Blessing v. Freestone, 520 U.S. 329, 340-341 (1997), precedent that Sutton and the district court neglected to apply. 289 F.3d 852, 862. The Supreme Court declined to review the Haveman case.

Other courts have formally rejected the lower court’s holding in Haveman, including Sutton’s theory on sovereign immunity and the Spending Clause, as “at odds with existing, binding precedent.” Antrican v. Odom, 290 F.3d 178 (4th Cir. 2002). 12 Sutton’s constricted theory of Congress’ Spending Clause authority, however, is extremely disturbing, and would deprive all Americans of the ability to enforce their rights under Social Security and similar laws. 13

Sutton has also argued for an extremely narrow view of Congress’ authority to protect the environment. Sutton advocated this theory clearly in an amicus curiae brief in Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, 531 U.S. 159 (2001) (“SWANCC”). The issue in SWANCC concerned whether the Army Corps of Engineers had the authority to regulate disposal of solid wastes into wetlands within a state that serve as important habitats for migratory birds. The Court ruled 5-4 that Congress had not specifically granted such authority to the Corps, a result supported in Sutton’s brief. But Sutton went a significant step further. He claimed (along with SWANCC) that Congress did not have the ability under the Commerce Clause to exercise such authority. According to Sutton, the basis for the rule was “non-economic”, it concerned the “eminently local activity” of land use, and allowing such federal authority would improperly give Congress a “general police power” over “local zoning and landuse matters.” Amicus Curiae Brief for State of Alabama in SWANCC, 2000 WL 1052159 at 14, 9 (July 27, 2000).

The radical and potentially destructive nature of Sutton’s restrictive theories was explained by four justices in the SWANCC case. Justices Stevens, Souter, Breyer, and Ginsburg believed that Congress had in fact given the Corps the authority to regulate the wetlands, and went on to explain why the argument that this violated the Commerce Clause had “no merit.” 531 U.S. at 197 (Stevens, J., dissenting). Contrary to Sutton’s claim, the basis of the rule clearly did relate to economic activity, since it was premised on the discharge of industrial and other solid wastes into the wetlands “for economic reasons.” Id. at 193. Nor was the matter truly “local,” since “the protection of migratory birds is a textbook example of a national problem.” Id. at 195 (emphasis in original). 14. Accepting Sutton’s theory could make Congress powerless to deal effectively with many water pollution and other environmental problems in one state that produce significant harmful effects across state lines. The dangers of such limits on federal power are far from hypothetical. As Justice Stevens pointed out, the very same clean water legislation at issue in SWANCC was prompted by the dramatic 1969 industrial waste fire on Ohio’s Cuyahoga River and other similar incidents. Id. at 174. Sutton’s narrow view of Congress’ authority under the Commerce Clause could literally have devastating consequences.

Sutton’s restrictive philosophy of congressional authority came to the forefront yet again in a recent Supreme Court decision, United States v. Craft, 122 S.Ct. 1414 (2002). In Craft, Sutton argued for the respondent that based on an interpretation of Michigan state law, the federal tax lien statute does not allow the IRS to impose a lien on property owned by two spouses when only one spouse has been delinquent in paying taxes. Brief for Respondent at 1-2, 2001 WL 1631569. The Court summarized this view as “absurd” because it would lead to individuals being able to “shield their property from federal taxation.” 122 S.Ct. at 1424. Writing for the 6-3 majority, Justice O’Connor also rejected Sutton’s argument that Michigan law, rather than federal law, should govern the outcome, because “this was a federal question, and in answering that question we are in no way bound by state courts’ answers to similar questions involving state law.” 122 S.Ct. at 1425-1426.

Sutton’s views in Haveman, SWANCC, and Craft are clearly consistent with his overall philosophy on limiting the authority of Congress. In several articles for the Federalist Society, he has praised the Supreme Court’s decisions since 1995 limiting Congress’s power under the Commerce Clause, the Fourteenth Amendment, and other constitutional provisions. This has included, for example, the Court’s 5-4 decisions striking down the Gun-Free School Zones Act and parts of the Brady Act. See Jeffrey S. Sutton, “Federalism 2000: A Review of the Supreme Court’s Federalism Decisions,” Federalism & Separation of Powers Law Newsletter (Fall 2000), Jeffrey S. Sutton, “Supreme Court 2000 - A Review and Preview,” The Federalist Paper (Summer 2000). Sutton has derided congressional efforts to support its authority to enact such legislation by making “extensive findings,” commenting that this would “give to any congressional staffer with a laptop” the ability to define “the limits on Congress’ Commerce Clause powers.” “Federalism 2000” at 2; “Supreme Court 2000” at 6. In Sutton’s view, moreover, decisions in this area are “zero-sum decisionmaking” – simply by upholding a federal law like the ADA, Sutton claimed, courts are “slighting the states’ capacity.” “Federalism 2000” at 12. Lost in this recitation, of course, are the rights of individuals that the ADA and other federal laws seek to protect.

From this review, it is clear that Sutton is a proponent of a radical restriction of individuals’ rights under federal law and the ability of Congress to protect interests like the environment. Sutton, if able to wield his views from the federal bench, could devalue protections enacted by Congress by reducing them to little more than empty words on paper, leaving the American people with rights but no remedies.



10. Robert Pear, “Ruling in Michigan Bars Suits Against State Over Medicaid,” New York Times, May 12, 2001, p. A18 (quoting George Washington University professor Sara Rosenbaum).
11. 42 U.S.C. 1983, a federal law critical to the enforcement of federally-protected rights, specifically authorizes an individual to file suit for deprivation of such rights by state officials.
12. See also. e.g., Boudreau v. Ryan, 2001 WL 840583 at 94 (N.D. Ill. 2001) (explicitly rejecting the theory that there is no private cause of action to enforce Spending Clause legislation under 42 U.S.C. § 1983); Bryson v. Shumway, 177 F.Supp.2d 78, 87 (D. N.H. 2001) (rejecting the district court’s holding in Haveman and holding that in the First Circuit, “a state official acting in violation of federal law is not insulated by the Eleventh Amendment”); Markava v. Haveman, 168 F.Supp.2d 695, 709 (E.D.Mich. 2001) (rejecting its own district’s Haveman holding because “the Supreme Court and the Sixth Circuit have held that private parties may enforce rights established by federal Medicaid statutes against state officers in the federal courts pursuant to 42 U.S.C. § 1983”); Wilder v. Virginia Hospital Association, 496 U.S. 498, 508 (1990)); Memisovski v. Patla, 2001 WL 1249615, n.8 (N.D. Ill) (rejecting the district court’s ruling in Haveman as “unpersuasive and inconsistent with other settled law”); Oklahoma Chapter of the American Academy of Pediatrics v. Fogarty, 205 F.Supp.2d 1265, 1270 (N.D. Okla.2002) (rejecting the district court’s holding in Haveman as “not supported by the law of the Tenth Circuit”); Rancourt v. Concannon, 175 F.Supp.2d 60, 62 (D. Maine 2001) (rejecting the district court’s ruling in Haveman as unpersuasive authority because its reasoning has been specifically rejected by at least three district courts).
13. Significantly more inquiry on Sutton’s federalism theories and his role in the Haveman case is warranted in considering his nomination. For example, the plaintiffs in Haveman suggested that Sutton may not have had authorization to represent the Michigan Municipal League itself. Attorneys in Michigan have also questioned the events surrounding the judge’s decision to request that Sutton’s participate in the case.
14. Justice Holmes first stated that the matter of migratory birds is a “national interest of . . . the first magnitude” in Missouri v. Holland, 252 U.S. 416, 435 (1920). This case involved Missouri’s challenge to a treaty between the U.S. and Great Britain that sought to protect many species of migratory birds in the U.S. and Canada by regulating their killing, capture, and sale. In a 7-2 decision, Holmes and the majority rejected the argument that the federal government had no power to take action that allegedly encroached upon the states’ asserted regulatory powers for the purpose of environmental protection. Id. at 434. Sutton’s arguments could jeopardize this long-accepted principle.
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