March 23, 2012
In Coleman v. Court of Appeals of Maryland, ___ U.S. ____ (No.
10-1016, Mar. 20, 2012), the Supreme Court held, in a 5-4 decision, that suits
against states under the “self-care” provision of the Family Medical Leave Act (FMLA)
are barred by sovereign immunity. The case turned on a constitutional question:
whether Congress had the authority under the Fourteenth Amendment to override
states’ sovereign immunity against suits under the FMLA for denial of an
employee’s request for leave to attend to his own serious health condition (FMLA’s
Justice Kennedy’s plurality opinion held that Congress lacked authority to
abrogate states’ sovereign immunity because the FMLA self-care provision was not
tailored to remedy or prevent discriminatory conduct violating the Fourteenth
Amendment and does not provide a “congruent and proportional” remedy for
violations of the Fourteenth Amendment. Justice Scalia, in an opinion concurring
in the judgment, would have limited Congress’ authority to authorize lawsuits
against the states only as to regulation of conduct that actually violates the
Coleman does not directly bear on the issues to be argued in the
Supreme Court next week concerning the authority of Congress to enact the
Patient Protection and Affordable Care Act (PPACA), but it gives some clue to
the justices’ thinking on issues of federalism and congressional authority,
which underlie the constitutional challenges to PPACA.
The Supreme Court Upholds Sovereign Immunity in Coleman
Daniel Coleman sued his employer, the Maryland Court of Appeals, alleging
that it violated the FMLA by denying him self-care leave. The federal district
court dismissed his suit on sovereign immunity grounds, the Court of Appeals for
the Fourth Circuit affirmed and the Supreme Court granted certiorari.
In the plurality decision, Justice Kennedy noted that “[a] fundamental
premise of the federal system is that States, as sovereigns, are immune from
suits for damages, save as they elect to waive that defense.” He also observed
that all six courts of appeal that had considered the issue had ruled that suits
against states under the FMLA self-care provision are barred by the states’
immunity as sovereigns.
Justice Kennedy distinguished Mr. Coleman’s FMLA self-care claim from the
claim before the Supreme Court in Nevada Dept. of Human Resources v. Hibbs,
538 U.S. 721 (2003), which held that Congress could subject the states to suits
for violations of FMLA’s provision mandating leave for care of “a spouse … son,
daughter, or parent” (the “family-care” provision). That decision, said Justice
Kennedy, was based on evidence that states administered neutral family-leave
policies in ways that discriminated on the basis of sex, and congressional
abrogation of sovereign immunity was upheld because the Supreme Court concluded
in Hibbs that the FMLA narrowly targeted “sex-based overgeneralization”
in the family-care provision.
Hibbs itself was a 5-4 decision in which Justice Kennedy strongly
dissented on grounds that Congress had exceeded its authority in subjecting
states to suits for damages under the FMLA. Justice Kennedy’s dissent in
Hibbs emphasized the constitutional basis for sovereign immunity, noting
that “the Eleventh Amendment … protects a State’s fiscal integrity from federal
intrusion by vesting the States with immunity from private actions for damages
pursuant to federal laws.” Justice Thomas also dissented in Hibbs and
ruled with the majority in Coleman, writing in a concurring opinion “to
reiterate my view that Hibbs was wrongly decided.”
Justice Ginsberg, who had been in the majority in Hibbs, dissented in
Coleman, along with Justices Breyer, Sotomayor and Kagan. In her dissent,
Justice Ginsberg argued that the FMLA was primarily aimed at discrimination
against women and therefore Congress had the authority to abrogate sovereign
immunity under Section 5 of the Fourteenth Amendment. Indeed, in Footnote 1 of
her dissent, Justice Ginsberg stated her view that “Congress can abrogate state
sovereign immunity pursuant to its Article I Commerce Clause power.” Only
Justice Breyer joined in this part of her opinion.
Chief Justice Roberts proved to be the difference-maker in Coleman. In
Hibbs, then-Chief Justice Rehnquist departed from his conservative
colleagues and wrote the majority opinion. In Coleman, Chief Justice
Roberts joined the majority in deciding that a state could not be sued for
damages under the FMLA self-care provision.
What Does Coleman Portend for PPACA’s Constitutionality?
In cases to be argued next week before the Supreme Court, 26 states and
others challenge Congress’s authority to enact various provisions of PPACA. The
following issues will be addressed:
- Does the Commerce Clause of the Constitution authorize Congress to enact
PPACA’s individual mandate — the requirement effective in 2014 that
individuals purchase health insurance?
- Does PPACA’s extension of Medicaid, effective in 2014, violate states’
Tenth Amendment rights by threatening states with loss of all Medicaid
funding if they fail to comply with the expansion?
- If the Court determines that the individual mandate exceeds Congress’
Commerce Clause authority, should all of PPACA be invalidated or may the
individual mandate and related provisions be “severed” and the rest of PPACA
kept in force?
- Should the Court decline to hear the case challenging the individual
mandate under the Anti-Injunction Act, now found in Section 7421(a) of the
Internal Revenue Code of 1986, which prohibits courts from enjoining
enforcement of a federal tax until the tax is collected?
The individual mandate issue and Medicaid expansion issue raise serious
questions of congressional authority. Court watchers have speculated that
Chief Justice Roberts, Justice Kennedy or even Justice Scalia might join the
four liberal justices to uphold Congress’ authority in these areas. However,
nothing in Coleman
indicates any of these three conservative justices are
inclined to support the broad view of congressional authority espoused by
Justice Ginsberg’s dissent in that case.
It is noteworthy that one week before the PPACA arguments, the conservative
majority on the Court found that Congress exceeded its authority in enacting
this portion of the FMLA. Justice Kennedy felt strongly enough about
protecting “a State’s fiscal integrity from federal intrusion” that he
reiterated his views in Hibbs
while writing the majority opinion in
Justice Scalia’s separate opinion took an even more restrictive view of
Congress’ authority, focusing on the specific text of the Fourteenth
Amendment. Chief Justice Roberts’ vote with the majority in Coleman
shows a concern for limiting congressional authority to the enumerated
powers in the Constitution. In particular, this may foreshadow the justices’
view concerning PPACA’s expansion of Medicaid and the burdens that may be
placed on the states.
As the issues in Coleman
are very different from the PPACA challenges, one
cannot safely predict how these justices will address the PPACA
constitutional issues. Unless the Court, under the authority of the
Anti-Injunction Act, declines to decide the merits of PPACA
constitutionality, we will have answers to these questions by June of this
year. In all likelihood, it will be yet another 5-4 decision.
For more information, please contact the authors or any other members of
Employee Benefits team