Supreme Court’s FMLA Decision in Coleman May Spell Trouble for Healthcare Reform Law

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 “self-care” provision).

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 Fourteenth Amendment.

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 Coleman. 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 likewise 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.
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