Abstract

On June 23, 1999, the Supreme Court handed down three noteworthy decisions bearing on the law of constitutional remedies. Alden v. Maine struck down an attempt by Congress, acting under its Article I powers, to subject states to suits in state court on federal statutory grounds. Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank curbed Congress' power under Section 5 of the Fourteenth Amendment to authorize suits against state governments on constitutional grounds, reasoning that a case cannot be made for the federal cause of action unless state law remedies are inadequate. A companion case, College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board, repudiated the notion that a state may "constructively" waive its sovereign immunity by engaging in conduct that is regulated by federal law.

Viewed as decisions about federal-state relations, these cases demonstrate once again the determination of the contemporary Court's conservative majority to find ways to shield states from Congress' regulatory agenda. In terms of the allocation of decision making between federal and state courts, Alden, Florida Prepaid, and College Savings Bank are the latest in an even longer line of cases, stretching back to Younger v. Harris in which the post-Warren Supreme Court has, by one means or another, channeled constitutional litigation to the state courts and limited the remedies available to persons injured by state governments' violations of federal law.

This Article makes three points. First, contrary to concerns some have expressed about the implications of Alden, the reasoning of the opinion rests on the implicit premise that, as a matter of due process, state courts must be open for certain constitutional claims. This is not an original contribution to constitutional doctrine. But, a footnote in Seminole Tribe of Florida v.Florida cast doubt on the authority of Reich, and Alden provides a needed correction.

My second point addresses the ruling in Florida Prepaid and its interaction with Alden. Though the Court purported to be applying relatively uncontroversial principles developed in earlier cases, it in fact forged novel restrictions on the scope of Congress' Section 5 power. Taken together, Alden's holding that states enjoy sovereign immunity in their own courts against suits based on federal law and Florida Prepaid's limits on Congress' Section 5 power demonstrates that Congress may subject states to suit in the federal or state courts only when the statute satisfies the Court's new and as yet undefined conditions for Section 5 legislation.

Third, the similarities between Alden and Florida Prepaid conceal a difference between the two cases regarding the allocation of power between Congress and the Supreme Court in the federal system. In its reaffirmation of Reich, the Alden majority relies on the traditional doctrine that decisions about the scope of lower federal court jurisdiction are for Congress to make, with the state courts serving as the ultimate protectors of constitutional rights in the event Congress takes away federal jurisdiction. Florida Prepaid diverges from the principle of congressional control. In the course of determining what is "appropriate" legislation within Section 5, the opinion sets forth a potentially far-reaching doctrine that may hobble efforts by Congress to assign litigation over constitutional remedies to the federal courts. In my view, the Court fails to identify valid reasons why congressional power over jurisdiction should be any narrower when acting under Section 5 than in any other context.

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