[Senate Hearing 107-970]
[From the U.S. Government Publishing Office]
S. Hrg. 107-970
NARROWING THE NATION'S POWER: THE SUPREME COURT SIDES WITH THE STATES
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED SEVENTH CONGRESS
SECOND SESSION
__________
OCTOBER 1, 2002
__________
Serial No. J-107-106
__________
Printed for the use of the Committee on the Judiciary
U. S. GOVERNMENT PRINTING OFFICE
88-475 WASHINGTON : 2003
____________________________________________________________________________
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; (202) 512-1800
Fax: (202) 512-2250 Mail: Stop SSOP, Washington, DC 20402-0001
COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts ORRIN G. HATCH, Utah
JOSEPH R. BIDEN, Jr., Delaware STROM THURMOND, South Carolina
HERBERT KOHL, Wisconsin CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California ARLEN SPECTER, Pennsylvania
RUSSELL D. FEINGOLD, Wisconsin JON KYL, Arizona
CHARLES E. SCHUMER, New York MIKE DeWINE, Ohio
RICHARD J. DURBIN, Illinois JEFF SESSIONS, Alabama
MARIA CANTWELL, Washington SAM BROWNBACK, Kansas
JOHN EDWARDS, North Carolina MITCH McCONNELL, Kentucky
Bruce A. Cohen, Majority Chief Counsel and Staff Director
Sharon Prost, Minority Chief Counsel
Makan Delrahim, Minority Staff Director
C O N T E N T S
----------
STATEMENTS OF COMMITTEE MEMBERS
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah...... 6
prepared statement........................................... 63
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 97
Schumer, Hon. Charles E., a U.S. Senator from the State of New
York........................................................... 1
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama.... 7
prepared statement and attachments........................... 122
WITNESSES
Hamilton, Marci A., Paul R. Verkuil Chair in Public Law, Benjamin
N. Cardozo School of Law, Yeshiva University, New York, New
York........................................................... 11
Noonan, John T., Jr., Judge, U.S. Court of Appeals for the Ninth
Circuit, San Francisco, California............................. 8
SUBMISSIONS FOR THE RECORD
Barnett, Randy E., Austin B. Fletcher Professor of Law, Boston
University, Boston Massachusetts, statement.................... 27
Epstein, Richard A., Professor of Law, University of Chicago,
Chicago, Illinois, statement and article....................... 40
Hamilton, Marci A., Paul R. Verkuil Chair in Public Law, Benjamin
N. Cardozo School of Law, Yeshiva University, New York, New
York, statement................................................ 56
Greve, Michael S., John G. Searle Scholar, Director, AEI
Federalism Project, American Enterprise Institute, Washington,
D.C., statement and attachment................................. 66
Noonan, John T., Jr., Judge, U.S. Court of Appeals for the Ninth
Circuit, San Francisco, California, statement and attachments.. 100
Presser, Stephen B., Raoul Berger Professor of Legal History,
Northwestern University School of Law, Chicago, Illinois,
statement...................................................... 112
NARROWING THE NATION'S POWER: THE SUPREME COURT SIDES WITH THE STATES
----------
TUESDAY, OCTOBER 1, 2002
U.S. Senate,
Committee on the Judiciary,
Washington, D.C.
The Committee met, Pursuant to notice, at 11:06 a.m., in
room SD-226, Dirksen Senate Office Building, Hon. Charles E.
Schumer presiding.
Present: Senators Schumer, Hatch, and Sessions.
OPENING STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR
FROM THE STATE OF NEW YORK
Senator Schumer. The hearing will come to order. I will
make a brief opening statement, Senator Hatch will, and then we
will get right to our witnesses. So I want to welcome both of
them and thank them for coming, and apologize to everybody for
the time change at the last minute--unforeseen scheduling
difficulties due to everything that is going on here.
Well, several weeks ago I returned from summer vacation
with my family and I sat down to catch up on all the newspaper
articles I missed. Among the clips that caught my interest was
Linda Greenhouse's review of a book that had just come out. She
wrote in the New York Times Book Review about a short, but
important new work by a sitting Federal judge that was critical
of the Supreme Court's federalism jurisprudence. After reading
her review, I knew that we had to hear from Judge Noonan.
His book, Narrowing the Nation's Power: The Supreme Court
Sides with the States, has already made real waves in the legal
community. You have an active Federal judge so mindful of his
obligation as a lawyer to teach, to educate, and to work to
reform the law that he published a thoughtful and nuanced
treatise on a subject that we should all be paying attention
to.
Since I came to the Judiciary Committee, I have been
especially concerned about what is happening on our courts.
Most troubling of all perhaps has been the striking trend of
diminishing judicial deference to Congress' power to find facts
and then legislate pursuant to those findings. This so-called,
quote, ``new federalism,'' unquote, jurisprudence--a term I
know Judge Noonan prefers not to use--is frequently dense and
inaccessible in terms of the way it is written and its
material.
I am particularly impressed with how clear Judge Noonan
rendered such an opaque subject. Once it is made transparent,
it is easy to see the devastating impact this string of cases
has had on our power to protect people's rights through the
courts.
There have been times in our history when the courts have
been the bulwark against efforts to undermine constitutionally
protected rights, and that is one of the reasons I respect and
revere our judicial system. But I must say I am profoundly
troubled by the extent to which the judiciary has abrogated
Congress' powers in the past years.
Starting with Lopez, the Guns in School Zones Act case,
running through Morrison, the Violence Against Women Act case,
and including recently Garrett, the disability discrimination
case, the courts, and most significantly and prominently the
Supreme Court, have been steadily eroding Congress' power to
legislate, with the effects felt and often suffered across the
Nation.
While some of the federalism decisions from recent years
have fairly noted Congress' failure to establish a nexus
between a piece of legislation and a source of congressional
power, several of the cases ignore serious study and diligent
efforts by Congress to make the necessary findings and
establish a proper constitutional exercise of power.
We hold hearings, and for some laws we hold years' worth of
hearings. We take testimony from citizens, academics, State
lawmakers, State attorneys general, and an array of other
interested parties. In passing many laws that the courts have
then struck down on federalism grounds, we have specifically
solicited input and received a green light from the States on
the question of whether there is a need for the national
legislature to act.
Generally our actions are not attempts to violate or weaken
the States' authority. They are products of what we were
elected to do. Let me give you an example that has had a lot of
personal meaning to me.
I was responsible for VAWA, the Violence Against Women Act,
when I was in the House. Senator Biden, our colleague here on
the Judiciary Committee, was the true leader on this and did
great work in the Senate. I remember hearing after hearing
after hearing that was held. I remember the research, the
meetings, the phone calls, the discussions. I remember speaking
with the victims, with State attorneys general, with local
prosecutors.
Violence against women was and is a national problem and we
need national intervention to work toward a national solution.
We found that in many corners of this country, violence against
women was swept under the rug. It was an issue that localities
simply did not want to deal with.
I was personally offended when the Court struck down part
of VAWA in the Morrison case. There are five Justices on this
Court who all too often act as if there were no first branch of
Government. They deem our findings in so many of these laws to
be nothing more than mere anecdotes. But these anecdotes are
the personal stories of real people, stories which, in the
aggregate, define the national problems we need to solve.
In the case of VAWA, those personal stories were backed up
by statistical evidence and a cry for congressional
intervention from every corner. We had the power to act, we had
the obligation to act, and it was wrong for the Court to step
in and stop us. It is a simple proposition, but we seem to have
lost sight of that recently.
The fundamental role of Congress is to make laws. The
executive branch implements them, and judges are nominated and
confirmed to interpret and apply those laws. That is the
brilliant balance that the Framers struck, and since Marbury v.
Madison that has balance has worked almost exquisitely. But
now, like at no time in our past, we are seeing a finger on the
scale that is subtly but surely altering this balance of power
between Congress and the courts.
As Justice Breyer wrote in his eloquent dissent in
Morrison, the VAWA, quote, ``Since judges cannot change the
world, it means that within the bounds of the rational
Congress, not the courts, must remain primarily responsible for
striking the appropriate State/Federal balance.'' I couldn't
agree more.
For better or worse, we are charged with making policy. The
judiciary's role, while just as important, is quite different.
It appears to me, with increasing frequency, the courts have
tried to become policymaking bodies, supplanting court-made
judgments for ours. That is not good for our Government and it
is not good for our country.
Of course, one of the great ironies that looms over this
debate is that it was the conservative movement that first took
issue with what they perceived as the Warren Court's judicial
activism and willingness to make social policy judgments from
the bench.
For decades conservatives, often very convincingly, in my
opinion, argued that elected officials, as opposed to unelected
judges, should get the benefit of the doubt with respect to
policy judgments, and that courts should not reach out to
impose their will over that of elected legislatures.
Even many non-conservatives, myself included, have
significant sympathy with that position. It is easy for judges
to express their personal views and their opinions. While that
might be appealing for some to do, it is not what the Founding
Fathers intended.
Ironically, now we have the mirror image of this activism
being practiced by the very conservative judges who initially
criticized it. Ten years ago, Judge Robert Bork, a brilliant
man, characterized the Warren Court as, quote, ``a legislator
of policy,'' unquote, which reasoned backward from its desired
results when ruling to expand equal protection, the right to
vote, criminal defendants' rights, and the right to privacy.
Today, similar criticisms of the Court, acting as a social
policymaker actively rejecting the will of Congress, exists,
and with good reason. Judge Noonan doesn't want to call it
activism. I am interested to hear why not. It seems to me that
when the Supreme Court reaches out to strike down law after
law, and does so based on trumped-up constitutional theories,
that is judicial activism, and it is clearly not judicial
activism at its best.
Many of us in the Congress are acutely concerned with the
new limits that are now developing on our power to address the
problems of those who elect us to serve. These decisions affect
in a fundamental way our ability to address major national
issues, like discrimination against the disabled and the aged,
protecting the environment, and combatting gun violence.
If the trend continues, the Family Medical Leave Act may be
the next to go. That is a frightening prospect for thousands
upon thousands of Americans who rely on the Act to spend time
with newborn children or ailing loved ones without fear that
they will lose their jobs.
Again, the role of the Congress is to make laws. The role
of the judiciary is to ensure the constitutionality of those
laws. In part, the balance is guaranteed through the process of
nominating and confirming Federal judges. This committee is
currently considering judicial nominees who refuse to even
discuss already decided Supreme Court cases, cases that could
never even conceivably come before them if confirmed.
So it is refreshing, at least in my judgment, to see
someone who is already a judge not hiding behind unpersuasive
defenses but doing what all good lawyers do--examining the law
and being critical where criticism is appropriate.
Judge Noonan, I know that you are here to teach us and to
educate. I know that you do not want to, cannot, and will not
engage in any partisan debate. So I am not going to get into
any questions about nominees answering or not answering
questions about their views on already decided Supreme Court
cases.
I am just grateful that you have given us your thoughts on
this important subject through your book. I am looking forward
to exploring your ideas further through this hearing. I just
want to add you have a worthy co-witness who doesn't see things
the same way, and a fellow New Yorker, Professor Hamilton, and
we are delighted that she is here, too.
I want to thank my good friend and colleague, Orrin Hatch.
I think he is admired by every member of this committee. We
sometimes go right at it, Orrin and I and every other member of
the committee. But we know that his opinions are heartfelt,
that he is a decent and honorable man, and somebody we can work
with on many occasions.
Orrin, it is my pleasure to turn the microphone--I was
going to say the gavel; we are not going to do that, hopefully,
for a little while--over to you.
Senator Hatch. Thank you, Mr. Chairman. I appreciate your
kind remarks.
I would like to applaud my friend from New York for holding
this hearing, which I hope will be a high-minded discussion of
the constitutional structure and theories that underlie the
Supreme Court's recent jurisprudence in the area known as
federalism, which includes cases interpreting the Commerce
Clause and the doctrine of sovereign immunity.
Views of those cases defy partisan or political pigeon-
holding. There are people on both sides of the political aisle
who agree, and disagree, with the Supreme Court from time to
time. There are subtleties that are not explained simply by
whether a person generally favors State power over Federal
power.
For instance, I have been critical of the Court's City of
Boerne decision, not because I disagree with the notion of
State or local control--I don't--but rather because I believe
the First Amendment protects religious freedom against any
government that seeks to interfere.
A majority of the Supreme Court happened to disagree with
me and I respect that. That is our system of justice under the
Constitution. For different reasons, I was troubled by the
College State Bank case, which caused a great deal of
uncertainty among the owners of intellectual property. So these
issues are not a simple matter of politics.
A second point that must be made is that the Supreme
Court's federalism decisions are often wildly exaggerated in
the media. Most of the decisions have been pretty narrow,
affecting only one part of a larger Act of Congress, and they
have certainly not left people without legal remedies.
In the Morrison case, for example, the Court's decision
left intact many important programs which I happened to
cosponsor with Senator Biden aimed at reducing violence against
women and had no adverse effect on the existing State laws
designed to prevent and punish acts of violence.
In fact, I was a prime sponsor of the Religious Freedom
Restoration Act which was in part stricken down by the City of
Boerne case, and a prime cosponsor of the Violence Against
Women Act.
I might say the sovereign immunity cases, while blocking
private suits for money damages, leave open a number of
possible remedies, including injunctions, that protect people
in important ways. So I hope that our witnesses will illuminate
these issues further.
It is a great pleasure to welcome these distinguished
witnesses today, and I will start with Professor Marci
Hamilton. She holds the Paul R. Verkuil Chair in Public Law at
Benjamin N. Cardozo School of Law, Yeshiva University, where
she specializes in constitutional law, particularly federalism
and church/state issues.
She served as a law clerk to Chief Judge Edward R. Becker,
of the United States Court of Appeals for the Third Circuit,
and for Justice Sandra Day O'Connor of the Supreme Court.
Perhaps most important for today's hearing, she was the lead
counsel for the successful City of Boerne, Texas, in Boerne v.
Flores, a seminal federalism case.
It is also a great pleasure to welcome Circuit Court Judge
John Noonan, an outstanding Federal judge who has always been a
renowned scholar teacher, and was so even before he took the
bench. Judge Noonan's most recent book, Narrowing the Nation's
Power: The Supreme Court Sides with the States, shows that he
continues his great scholarship.
The book of his with which I am most familiar is A Private
Choice, published in 1979, which is a scholarly condemnation of
the Supreme Court's decision in Roe v. Wade. He demolishes
virtually every conceivable argument on behalf of the liberty
of abortion, concluding with a 12-point indictment of legalized
abortion which begins as follows: ``The liberty established by
the abortion cases has no foundation in the Constitution of the
United States. It was established by an act of raw judicial
power. Its establishment was illegitimate and unprincipled, and
imposition of the personal beliefs of seven justices on the
women and men of fifty states. The continuation of the liberty
is a continuing affront to constitutional government in this
country.''
Professor Noonan drafted and lobbied for a constitutional
amendment to overturn Roe and to return the power to outlaw
abortions to the States. His federalism approach influenced me
when I cosponsored and was the prime sponsor of the human life
amendment in 1981, which would have left the issue up to the
respective legislatures, State and Federal, with a more
restrictive law applicable.
I got a kick out of it because I remember about 20 percent
of the anti-abortion side just savaging me, and in particular
National Review. You will be interested to know, Judge Noonan,
just about a year ago or somewhere around in there, National
Review came out with almost the same recommendation that I made
back in 1981, which I think would have helped to at least put
this into the hands of the people. I have great respect for
Judge Noonan's scholarly opinions on both Roe v. Wade and
federalism, regardless of where one might be on the policy of
any issue implicated.
Fortunately for the country, Judge Noonan was confirmed
back in 1985, when the single-issue extremist interest groups
did not hold such sway over this committee. I recall that his
nomination was attacked by a group called the Federation of
Women Lawyer's Judicial Screening Panel, not for his views, the
group said, but for the, quote, ``intemperate zeal with which
he holds and expresses them,'' unquote.
The group decried his, quote, ``tone,'' unquote, saying
that, quote, ``[t]here is a certain passion, an emotional
pitch, if you will, which pervades Professor Noonan's work on
the subject of abortion,'' unquote, which the group said should
force one to, quote, ``pause and consider whether such fervor
could magically disappear with the incantation of the oath of
office,'' unquote.
Well, the Judiciary Committee and the Senate looked beyond
such unwarranted attacks and chose instead to take this fine
scholar at his word that he would enforce Roe v. Wade and all
other controlling Supreme Court precedents. I would like
today's record to reflect that Judge Noonan has not, from his
perch on the Ninth Circuit Court of Appeals, overturned the
Supreme Court's abortion decisions, despite the fears of his
critics. He has done as he said, as any fine judge should.
The fact that Judge Noonan is here today at the invitation
of this committee should be a profound warning of the price
this committee pays, and forces the American people to pay,
when it deprives the judiciary of the service of high-caliber
legal thinkers on the basis of unfounded criticism made by the
usual Washington single-issue interest groups.
You have to admit, Mr. Chairman, that the Ninth Circuit and
the country are better off today for Judge Noonan's service,
right?
Senator Schumer. I agree.
STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE
OF UTAH
Senator Hatch. OK, and we would be even better if we
confirmed the highly qualified nominees currently pending for
that court, Carolyn Kuhl and Jay Bybee.
Senator Schumer. Since I want balance on the court and
Judge Noonan is so powerful, maybe we should have three or four
liberals just to balance Judge Noonan.
Senator Hatch. That would be fine. That means that we would
at least get eight or nine more conservatives before we got
through. With the court having 24 people, 17 of them Democrats,
and 13 or 14 appointed by Bill Clinton, you can imagine----
Senator Schumer. It is the only one left.
[Laughter.]
Senator Hatch. I will tell you, he never gives up, he never
gives up. He is just a miserable, wretched New Yorker, is all I
can say.
[Laughter.]
Senator Hatch. I never give up either. I am a miserable,
wretched Utahn.
Senator Schumer. One of those lovely people from Utah.
Senator Hatch. That is right.
Judge Noonan is an example of what I have been saying about
well-qualified judges. They take seriously their
responsibilities of adhering to the Constitution and following
precedent. Judge Noonan clearly disagrees with the Supreme
Court both on Roe and on the issue of State sovereign immunity.
In fact, he has written powerful books challenging the basis
for those decisions. Nevertheless, as a lower court judge, he
has no qualms whatever about being bound by these very
precedents.
Again, I want to thank the chairman for holding and the
witnesses for participating in this forum for discussing the
role of the Supreme Court, federalism, and State sovereign
immunity.
Thank you, Mr. Chairman.
[The prepared statement of Senator Hatch appears as a
submission for the record.]
Senator Schumer. Thank you, Senator Hatch, and we very much
appreciate your being here.
Senator Sessions has been such a great participant in all
these hearings.
Would you like to make an opening statement, Senator,
briefly?
STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE
OF ALABAMA
Senator Sessions. Thank you, Mr. Chairman. I am looking
forward to this and you really wish you could spend more time
being prepared for these significant constitutional issues.
I haven't written a book on the subject. I have lived with
the Commerce Clause as a prosecutor and State attorney general,
and dealt with sovereign immunity. I think those are historic
doctrines that are quite valid, and I believe the Constitution
clearly requires an interstate commerce nexus for most
activities of the Federal Government.
I believe historically there has been no doubt that there
is a doctrine of sovereign immunity that protects States from
destruction. The power to sue is the power to destroy, so the
State has a right to limit how much it subjects itself to
attack financially.
So I look forward to the hearing today.
[The prepared statement of Senator Sessions appears as a
submission for the record.]
Senator Schumer. Thank you, Senator.
Now, let me introduce our first witness, Judge John T.
Noonan, Jr. Judge Noonan is a senior judge on the United States
Court of Appeals for the Ninth Circuit, Orrin Hatch's favorite
circuit. He was appointed to the bench by President Ronald
Reagan in 1985. Judge Noonan received both his B.A. and law
degree from Harvard University. He also earned a Doctorate of
Philosophy from Catholic University.
Judge Noonan began his legal career at the National
Security Council. He then moved on to private practice before
joining the faculty at Notre Dame Law School. Judge Noonan
later taught at Boalt Hall School of Law at the University of
California-Berkeley.
Among several other works, Judge Noonan is the author of
the recently published book entitled Narrowing the Nation's
Power: The Supreme Court Sides with the States, where he
presents his own view of how the Supreme Court in recent
decisions has shifted the balance of power in the country away
from Congress toward the States and toward the Court itself.
Judge Noonan, your entire statement will be read into the
record and you may proceed as you wish.
STATEMENT OF HON. JOHN T. NOONAN, JR., JUDGE, UNITED STATES
COURT OF APPEALS FOR THE NINTH CIRCUIT, SAN FRANCISCO,
CALIFORNIA
Judge Noonan. Thank you very much, Senator Schumer and
Senator Hatch, for your welcome. I was glad to respond to your
joint invitation, with the emphasis that it would be a fully
bipartisan affair.
I note that the legislation that was held unconstitutional
in the Supreme Court decisions we are addressing was passed by
large bipartisan majorities and signed by both Republican and
Democratic Presidents. The issues raised by the decisions are
not partisan political issues. They cut more deeply into the
structure of our American Government.
I have submitted a seven-page statement. I am just going to
hit the highlights, first summarizing the propositions that are
established by the recent decisions of the Supreme Court.
First, all the States have entered the Union--and I quote
the Court now--entered the Union ``with their sovereignty
intact.'' That has been put forward four times by the Supreme
Court since 1991.
Second, the immunity of the States from suits by
individuals from damages is not a judge-made rule of common
law, but is a constitutional principle embodied in, but larger
than, the 11th Amendment.
Third, under its power to regulate commerce, Congress does
not have the power to pierce the immunity of the States.
Fourth, under the power to enforce the 14th Amendment ``by
appropriate legislation,'' as section 5 of the Amendment puts
it, Congress must now conform to criteria set by the Court in
City of Boerne and its sequelae.
What is now required as a matter of constitutional law is a
record of evidence that has been taken by Congress. The
evidence must be more than allegations and it must be more than
anecdotes. The evidence must establish the existence of a
pattern of evil, a national pattern, and then the response of
Congress must be proportionate and it must be congruent.
Now, as corollaries of those decisions, Congress cannot
enact preventative legislation under the 14th Amendment. It
cannot prohibit States from discrimination that is actually
irrational, but might be supposed to reflect some rational
stereotype. The holders of patents, copyrights, and trademarks
cannot seek damages from a State institution infringing on
their rights, as Congress has flunked the Boerne criteria in
its legislation protecting those rights.
That is the judicial landscape. I will add a brief
commentary. First, as to the intact sovereignty of the 50
States, I quote the Supreme Court in 1816: The Constitution
``is crowded with provisions which restrain or annul the
sovereignty of states in some of the highest branches of their
prerogatives.'' Of course, there is provision after provision
in the Constitution which does infringe or annul State
sovereignty. It is not intact. That cannot be the case.
Second, as to the basis for State immunity, at common law,
as we know from Blackstone's famous commentaries, the king was
immune from suit because it was important, as Blackstone says,
to convey to his people that the king was a superior being.
We took into the United States, in at least some of the
States, that common law principle. But that it was a
constitutional principle has very little support, and the text
of the 11th Amendment does not mention immunity, and it does
not mention sovereignty.
The basic cases of the Marshall Court establishing our
federalism show that sovereignty of the States can be invaded
again and again on behalf of Federal legislation, and there is
no convincing reason put forward now to create State immunity.
It would be ridiculous for a State to invoke it to avoid paying
its bonds. It is not a good principle for a State, to put it
mildly, to escape liability for its torts. As for the dignity
of a State, a State is not a human being who does have dignity,
and a State is not a king who has to be considered a superior
being.
Now the breadth of the States' immunity is far broader than
it was when it was the royal immunity. First, it is extended to
all enterprises that act on behalf of a State. State
universities, State university presses, State university
laboratories, and a large variety of other boards, commissions,
and agencies now enjoy this immunity.
In 1789, the States did not have these multiple arms, and
now in the recent Ports Authority case of this past term
immunity has been extended to all suits started by individuals
against the States before administrative agencies of the
Federal Government. In 1789, these independent agencies, set up
by Congress to carry out the laws, did not exist. But now
agencies enforce the Clean Air Act, the Clean Water Act, the
Toxic Substances Control Act, the Solid Waste Disposal Act. All
of these agencies are now barred by Ports Authority from
holding administrative hearings on the complaints of a citizen
against an agency or activity of a State.
The Violence Against Women Act was done in because it was
said not to regulate commerce. Robbery and extortion are not
commercial activities, but no one has doubted that the Hobbs
Act, which prohibits robbery and extortion, is constitutional.
The traditional understanding of the power of Congress is
that it is complete in itself and may be exercised to its
utmost extent. The power under Article I has been now denied in
Seminole Tribe as penetrating State immunity. It has not been
explicitly decided by the Supreme Court whether the bankruptcy
law of the United States can trump State immunity. If Seminole
Tribe is followed, the bankruptcy law will be subject to the
immunity of States.
The Court has not decided explicitly whether the exercise
of the war powers under Article I can trump State immunity. But
there are now two cases, one from Puerto Rico that was reversed
in the First Circuit, and another from Indiana, where the
States have made that defense that they are immune from the war
powers.
Finally, and most importantly, I think, for Congress, the
criteria of Boerne and its sequelae are binding on every
Federal court. The Federal District Court in Guam as much as
the Supreme Court itself must now measure Federal law if it is
challenged in terms of these criteria.
As a consequence, every Federal judge is made a monitor of
Congress. The Federal judge will scrutinize a law enacted under
the 14th Amendment for the evidence establishing a pattern of
the existing national evil the law is supposed to cure. The
Federal judge will determine if the law is a proportionate and
congruent response.
Before a case reaches the Supreme Court, a variety of
Federal judges will exercise this function of monitoring.
Congress is subjected to review at least as much as a Federal
administrative agency, perhaps more so, for the reasonableness
of its response, and the burden is put on the U.S. Government
to show that an evidentiary record was made and that the
response of Congress was proportionate and congruent.
The standard set by City of Boerne and its sequelae is new,
and it is high. It represents a substantial increase in
judicial supervision of Congress. It effects a shift in power
from the Congress to the judges, and its invention could be
understood as an invasion by the judiciary of the sphere given
by the Constitution to the Congress.
[The prepared statement of Judge Noonan appears as a
submission for the record.]
Senator Schumer. Thank you very much, Judge Noonan, for
your strong, intelligent testimony.
Now, we are going to hear from Professor Marci A. Hamilton.
Professor Hamilton is the Paul R. Verkuil Professor of Public
Law at the Benjamin N. Cardozo School of Law. She earned a B.A.
at Vanderbilt University, master's degrees at the University of
Pennsylvania, and finally her law degree at the University of
Pennsylvania Law School, where she graduated magna cum laude
and was editor-in-chief of the law review.
Professor Hamilton clerked for Judge Edward R. Becker, of
the U.S. Court of Appeals for the Third Circuit, and she also
clerked for Justice Sandra Day O'Connor on the Supreme Court.
Professor Hamilton publishes extensively and speaks frequently
in the area of constitutional law, and is often involved in
Supreme Court litigation addressing cutting-edge constitutional
law issues.
Most particularly for our purposes, she litigated the case
that the judge just referred to, City of Boerne, in which the
Supreme Court found that Congress exceeded its power in passing
the Religious Freedom Restoration Act. I should note that I was
the lead sponsor of that in the House. Many of my laws are
being struck down by the courts. This is a case that gets
substantial treatment in Judge Noonan's book.
Your entire statement, Professor Hamilton, will be read
into the record and you may proceed as you wish.
STATEMENT OF MARCI A. HAMILTON, PAUL R. VERKUIL CHAIR IN PUBLIC
LAW, BENJAMIN N. CARDOZO SCHOOL OF LAW, YESHIVA UNIVERSITY, NEW
YORK, NEW YORK
Ms. Hamilton. Thank you, Mr. Chairman and Senator Hatch,
for including me in this hearing today. These are very
important issues. They are being debated in the press, they are
being debated in the academy, and I will respectfully disagree
with Judge Noonan's reading of the Constitution.
Here, I would like to make just three points. The Framers
went to the Convention to fix the Articles of Confederation.
The problem was that the States had been incapable of
conducting war and international trade by themselves. The
answer was to add a national government, but there was no
question that the States would continue to also be governments,
to be sovereign. The innovation of the Framers was to create a
dual sovereign system. It was a brilliant innovation which
would create two governments that could simultaneously serve
the greater interests of the people.
Alexander Hamilton, who is quoted at the beginning of Judge
Noonan's book, assumed that Congress would not be interested in
the arenas that were assumed to be left to the States. He
thought that Congress would have no interest in those arenas
because it would only want to govern the truly national issues.
Congress would be interested in war, federal taxation, and
spending.
But as it turned out, Congress, when it was not prohibited
from expanding its interests, was willing to venture into any
territory. So during the 20th century when the Supreme Court
refused to draw the lines that the Constitution requires
between the Federal Government and the State Government,
Congress came to have plenary power. There was no arena that
Congress would not enter. The reactions by Judge Noonan, Linda
Greenhouse for the New York Times, and others are a reaction to
that status quo.
What the Court has done with its federalism decisions,
which are not that many, actually--is to remind us of the
fundamental constitutional arrangement. The courts have always
been in the business of interpreting the lines of power in the
Constitution. They have always determined the separation of
powers. They have always been in the business, at least since
incorporation of the Fourteenth Amendment, of interpreting
church/state relationships of power.
The burden rests on the detractors of the Court to explain
why it is that with respect to federalism the courts are
supposed to stand aside and let the Federal Government take
over the power that was lodged in the States at the time of the
framing. As a matter of constitutional history, I simply cannot
agree that the Court has gone the wrong way. To the contrary, I
think it was much too little and much too late.
Now, it is a mistake to assume, as all of the Court's
critics do, that federalism will only serve conservative
interests. Rather, federalism leaves the States to experiment,
to work out different approaches to achieving the public good,
e.g., in arenas like assisted suicide or even the medical use
of marijuana.
Federalism does not take policy away from the people.
Rather, it only changes the locus of decisionmaking. The
question in the federalism cases is only does the Federal
Government get to decide this or do the States get to decide
this? It does not shut down any particular policy.
The pragmatic upshot of the federalism decisions is that
lobbyists may not have one office anymore. They may not assume
that D.C. is the only location for them. Rather, they now have
to have 51 offices, 50 States plus a Federal office.
There is no constitutional right to lobby only one entity.
So the objection that now the 50 States are in charge of a
policy and therefore lobbying will have to be taken there just
doesn't carry any water.
There is an underlying assumption in the criticism--and
this is definitely true with respect to Linda Greenhouse's
criticisms and with respect to many in the academy--that one
simply can't trust the States. They are supposedly bad actors
and the Federal Government is the savior for all civil rights.
But what the Supreme Court noted in both the Garrett
decision, invalidating aspects of the Americans With
Disabilities Act, and in the Kimel decision, invalidating
aspects of the Age Discrimination in Employment Act, is that in
both of those arenas the States were already protecting rights.
For example, with respect to disability discrimination, the
vast majority of States were invalidating disability
discrimination when Garrett was decided. So the notion that
civil rights are being suppressed by the federalism decisions
is not factually true. The federalism cases are, rather,
sending these decisions to the States rather than letting them
sit solely with the Federal Government.
Let me just close by saying that I see three pragmatic
results of the federalism cases. One is that, in fact, very
little of Congress' enormous power has been diminished and the
reactions have been overreactions. The case that I don't see in
Judge Noonan's book and I don't see in the general criticisms
of the court is Condon v. Reno, where the Supreme Court upheld
the Drivers' Privacy Protection Act against a federalism
challenge. Why? Because the States were acting as economic
actors in a market of information. So when the States act as
part of the economy and not out of their sovereign ability to
regulate, the Federal Government still has a great deal of
power.
Second, the lobbyists now are going to have to go to the
States. As I said earlier, that is a pragmatic result and it
was already happening. It is not a huge change in the
landscape.
Finally, the focus of Congress may be permitted to be
shifted a bit away from having to address every conceivable
issue that a constituent or a lobbying group can imagine. In a
time of international terrorism and an economy in need of
attention, letting the States carry some of the policy water
seems to me to be a relief for an overburdened Congress and not
bad news.
I would be pleased to take questions.
[The prepared statement of Ms. Hamilton appears as a
submission for the record.]
Senator Schumer. Well, thank you very much, Professor
Hamilton. Again, your testimony, I thought, was incisive and
intelligent. You are a worthy counter to Judge Noonan and I am
glad you are my constituent.
Ms. Hamilton. Thank you.
Senator Schumer. Let me start off with you, since we
finished with you. First, you did make something of an
exception for economic issues, which is where most of the
lobbyists pay their attention to. There are a few lobbyists who
are involved in the others, but that is where they all are.
For instance, let me give you an example and just ask you
to comment on this. Traditionally, insurance has been regulated
by the States. You can make an argument that each individual
has an insurance policy and it is not that much in the throes
of commerce.
But in the last few years, the heads of the insurance
industry have come to us and said we need a Federal law because
to go to each of the 50 States is no longer feasible or
practical in this new economy, the reason being that new
products come up so quickly, No. 1, that by the time they get
approval from most of the States, there is another new product.
Second, it has become a world market and they have foreign
competitors and have to go to foreign places and it really puts
them at a competitive disadvantage.
Would you say that that is sort of acceptable Federal
legislating, even though traditionally it has never been part
of the Federal Government? We have left insurance to the
States. What would be your feelings about that?
I would just say it is a greater consequence than just
sending the lobbyists to the States.
Ms. Hamilton. Where you have an arena where the
externalities are such that the individual States can't
efficiently govern the market, that is probably the best
argument for saying that the Federal Government needs to
intervene.
So I think in the case of the insurance industry, about
which I know very little, the question would be whether or not
it is true, in fact, that the market can't work through a 50-
State system.
Senator Schumer. It works, but it works more----
Ms. Hamilton. Inefficiently.
Senator Schumer. More inefficiently.
Ms. Hamilton. If it is inefficient, I think that is an
argument to go to the Federal level.
There is no arena that the Constitution identifies as
solely relegated to the States. What we have, rather, is
traditional areas that the States have had the first power
over. And those arenas are not really regulated arenas like
insurance, but rather land use is one of them. Local crime and
incarceration is another issue. So there are arenas where I
think it would be easy for me to say, yes, I think they belong
to the States.
Senator Schumer. I had a little debate once with Justice
Scalia in one of those Fred Friendly things. It was at
Constitution Hall, in fact, in Philadelphia, and he was making
the argument that the Brady law is something that should be
left to the States; let each State determine its waiting
period.
The counterargument, of course, is what happens when one
State has strict regulations against guns, including a waiting
period? Gun-runners go buy the guns, say, in South Carolina,
which has no--well, they do, but go to a State that has no
waiting period and then just run them up here. Sure, New York
State could set up a toll booth at the Lincoln Tunnel and
require everybody to open their trunk and see if they have
guns, but that would slow commerce immeasurably.
Do you agree with the sentiments, at least, that were
expressed that day by Justice Scalia that a waiting period
should be left to the States? That is a traditional area,
crime, which you mentioned just a minute ago, and yet there are
commercial, if you will, or interstate commerce implications.
Ms. Hamilton. The courts addressed the Brady Act in Printz.
To the extent that the Federal Government is directing or
commandeering the way that the States regulate, then I think it
is unconstitutional. If the Federal Government is, however,
carrying out those policies itself, it is a very different
issue. So I agree with the Printz decision. I think it was
unconstitutional for Congress to direct the states to carry out
its policies.
Can the Federal Government regulate gun usage? I think
there are arenas where it can, but direct regulation of the
States is definitely----
Senator Schumer. What about mandating a waiting period
everyplace in the whole country?
Ms. Hamilton. It depends on who carries out monitoring the
waiting period. If the Federal Government tries to coopt the
State government to do its bidding, then it is
unconstitutional.
Senator Schumer. But you would let the Federal Government
then enforce it?
Ms. Hamilton. There is nothing in the briefing in that case
or in the reasoning to say ``no.''
Senator Schumer. I am going to give you some of the
rhetoric you have thrown at us and ask you comment on that, and
then I will proceed to Judge Noonan.
This is an article you wrote called ``federalism and
September 11th: Why the Tragedy Should Convince Congress to
Concentrate on Truly National Topics.'' Here is one of your
quotes: ``While Congress was piddling around with duplicating
State laws in a remarkable number of categories, apparently no
one in the Capital was studying seriously what America would do
if attacked by anthrax or smallpox,'' unquote.
You go on to describe our actions in writing the laws we
passed, the laws that the Supreme Court invalidated, to be,
quote, ``like a child who cannot decide which toy to pick at
the toy store,'' and you said we are avaricious in expanding
our powers.
Now, most of my constituents--clearly, not all; you are one
of them--want the Congress to help with national problems like
violence against women and discrimination against seniors and
the disabled. We have seen the slow progress made at State
levels there.
They basically don't have much of a predilection; they want
to get the job done. I rarely find that when there is a real
problem out there, people say, well, you shouldn't do it, the
States should do it, or the States shouldn't do it, you should
do it.
I think your statements are pretty tough.
Ms. Hamilton. Yes.
Senator Schumer. I mean, I would like to use them in
buttressing my arguments because I think it shows something of
a contempt for Congress. So why don't you elaborate a little
bit on that? I mean, to say that Congress wasn't focusing on
terrorism because it was dealing with other issues doesn't
strike me as quite fair.
Ms. Hamilton. My focus there is on the point I was making
earlier, which is that Congress does tend to run toward what I
have called in other writings look-good, feel-good legislation.
Senator Schumer. Why do you think Congress does that?
Ms. Hamilton. Because it had no limits on its power from
1936 to 1995.
Senator Schumer. Do you think it has anything to do with
constituent demands and inability of the States to deal with
those issues?
Ms. Hamilton. With all due respect, the people are not the
Constitution. Demands by a majority, or even by a vocal
minority, cannot trump the requirements of the Constitution.
Constituents, I think, have been misled into believing that
Congress has an answer to every social problem. And, in fact,
it doesn't.
As to the charge that the States are not able to serve
these interests, it is just not empirically true. The vast
majority of States, as I said earlier, do have disability
legislation. Many have age discrimination legislation. In fact,
in my experience in litigating these issues, the States are the
most likely to jump ship from the litigation challenging such
litigation and to side with the Federal Government for
political reasons.
Senator Schumer. With the Violence Against Women Act, there
were very few State laws in this regard. I mean, is your
criteria whether the States are able to do this or not? It is a
constitutional criteria, I presume.
Ms. Hamilton. There are constitutional criteria. The
question is whether or not it is a truly local concern. With
respect to the Violence Against Women Act, it had a fundamental
flaw. The error that was identified in the hearings was that
local government was not protecting the rights of the victims,
and that is a very serious problem and no one believes that
more than I do.
But the provision at issue regulated the perpetrators and
bypassed the local governments. Had the law been crafted to
regulate the States, I think VAWA might have survived under
section 5. But it wasn't a regulation of the States. Therefore,
section 5 of the 14th Amendment was an inadequate source of
congressional power. Finally, the argument that the violent act
was affecting commerce was too attenuated.
Senator Schumer. Didn't you just argue the opposite when it
came to, I think it was the Brady case? There, the Congress was
going through the States and you said, no, it should do it
itself.
Ms. Hamilton. The question is whether or not the Congress
is directly regulating the regulation of the States. That is
what happened in Printz. It was commandeering State actors to
act for the Federal Government.
Senator Schumer. You were just saying the opposite in terms
of Violence Against Women, I thought.
Ms. Hamilton. No.
Senator Schumer. Explain to me the difference.
Ms. Hamilton. The Violence Against Women Act was unlike the
Brady Gun Act because in the Violence Against Women Act what
was being regulated was not the States, but rather the
perpetrator. The civil remedy was to be had from the
perpetrator, so it was not a regulation of the States.
Section 5 of the 14th Amendment permits direct regulation
of the States if they are violating the Constitution, but that
is not what VAWA did.
Senator Schumer. OK. Well, I am going to ask Judge Noonan a
few questions. I don't quite agree with you on all of this.
Actually, I am reminded that my time is up. I have a whole
bunch of questions for Judge Noonan, but let me call on Senator
Sessions and then we will come back to me for a second round.
Senator Sessions. Thank you, Mr. Chairman. This is a very
interesting hearing. It deals with the fundamental structure of
our Government.
I would agree with you, Professor Hamilton, that the
Supreme Court is not--let's see if I correctly interpret you
that the Supreme Court is not coming up with some new doctrine
in Lopez and some other cases, but in fact is just recognizing
a doctrine that hasn't recently been talked much about and in
some cases almost ignored.
Ms. Hamilton. Absolutely.
Senator Sessions. But it would not be quite as ignored,
Judge Noonan, as I think you suggest. The Hobbs Act, which I
used to prosecute, does allow the Federal Government to
prosecute offenses that deal with extortion and robbery, those
kinds of crimes. But the title of it, Section 1951, is
``Interference with Commerce by Threats of Violence or Robbery
or Extortion.''
The prosecution of theft of a stolen motor vehicle is not
just the fact that the Federal Government does not prosecute
the theft of a stolen motor vehicle in Federal court. It
prosecutes the interstate transportation of a stolen motor
vehicle. It does not prosecute prostitution, but it prosecutes
interstate transportation of a person for the purposes of
prostitution.
Wouldn't you agree that our criminal law, as a Federal
judge--and you have seen it--is consistently stating within the
statute itself an interstate commerce nexus?
Judge Noonan. Are you asking me, Senator?
Senator Sessions. Yes, sir.
Judge Noonan. Yes, I certainly would agree. Of course, if
you transport that reasoning to the Violence Against Women Act,
the position of Congress was that a crime like rape interfered
with the movement of women in business in the United States,
that this was an interference with commerce just as much as
robbery and extortion are interferences with commerce under the
Hobbs Act, or as prostitution in interstate commerce is a form
of interference in commerce.
The Supreme Court, as I understood it, said, well, the
activity being regulated is not commercial. No, it isn't
commercial. Prostitution in its basic form is not commercial;
it is commercially exploited. Robbery and extortion are not
commercial; they are preying on commerce. But that is what
Congress said about violence against women: it is preying on
commerce. So I feel the analogy was pretty strong.
Senator Sessions. Well, I think about the Lopez case.
Congress has re-passed the Lopez statute and utilized the
traditional language that the firearm had traveled in or was a
part of interstate commerce, adding an element of the offense
which must be proven beyond a reasonable doubt that commerce
did occur, before you can make that a Federal crime.
Do you think that will save the statute or do you think it
makes any difference in your analysis?
Judge Noonan. Well, I really don't want to pronounce on
constitutionality of legislation that is on review. But I will
say this to you, Senator: Lopez is not mentioned in my book. It
did not fall within the kind of focus I was making on decisions
that eroded the power of Congress. Lopez is something that I
certainly thought was perfectly appropriate.
Senator Sessions. So you would agree with that one?
Judge Noonan. I did.
Senator Sessions. With regard to your question, Mr.
Chairman, about insurance regulation, I share some of those
same concerns. But I would ask Professor Hamilton, when we are
dealing with major national or even international insurance
corporations that do business in every State, isn't that
perfectly what the Founding Fathers were concerned about and
would not, if Congress chose to act, clearly be within the
Commerce Clause?
Ms. Hamilton. I think that is right. If we are dealing with
a business that is running across State borders, that is the
kind of commerce they had in mind.
Senator Sessions. But the Constitution does require, unless
there is some other provision allowing regulation, that
Congress can act in matters affecting interstate commerce. So
that is a limiting power on the sovereignty of the Federal
Government, is it not?
Ms. Hamilton. Well, what the Court held in Lopez is there
must be a showing of substantial effect on interstate commerce.
With the insurance industry, I suppose that would be hard not
to show, but there are industries where it is more difficult to
show that there is a substantial effect on commerce.
Senator Sessions. I think there may be a time in various
industries that were at one time basically local become so
national that it would be appropriate for us to regulate what
we have not regulated before. Traditionally, though, we have
insurance departments in every State and they have done this
and it is a sort of acknowledgement of one area of expertise
and the Federal Government does not move in there, and I think
that is significant.
Professor Hamilton, isn't it true that there is only a
small fraction of the total U.S. work force that would be
affected by the Supreme Court's sovereign immunity decisions?
In other words, basically it involves only that small fraction
who would be working for a State government, but the Federal
laws that protect them otherwise apply.
Ms. Hamilton. The Commerce Clause can be used to regulate
private interstate industry. The federalism cases only go to
State actions and the question of the Federal Government
regulating the States. Sovereign immunity only protects against
monetary damages when you have State-affected entities. So it
is a very small proportion.
Senator Schumer. How many?
Ms. Hamilton. How many?
Senator Schumer. 3.7 percent. What is that, 5, 6 million
people--no. The total work force is, what, 120 million?
Senator Sessions. 3.6 percent is what I have.
Ms. Hamilton. We have to be very careful because the states
are immune under the 11th Amendment from damage actions brought
by citizens. But, of course, the States can be forced to pay
through Federal Government actions. The Department of Justice
can go after any State it so desires. The 11th Amendment does
not stand in the way of those suits.
Senator Schumer. Does that include universities, all the
categories Judge Noonan mentioned, not just State governments?
Senator Sessions. I think so. Of course, States have
extraordinary civil service regulations that usually go beyond
the private sector at any rate. I don't hear many people
wanting to quit the Federal or State government, frankly.
Are you saying, Judge Noonan, that you don't think there is
a legitimate basis for the claim of sovereign immunity for
State government, or just creatures of the State governments
like universities? Do you believe the whole doctrine is without
basis? How would you summarize your view on that?
Judge Noonan. Well, let me distinguish. As a judge of the
United States addressing a case, I am bound by the Supreme
Court of the United States that tells me it is now a
constitutional principle that the States have sovereign
immunity.
If I take off my judicial robes and look at it as a
historian, I would say sovereign immunity was something that
existed at common law as a common law principle. It could be
trumped by statute and it was not a part of the Constitution,
except to the extent that the 11th Amendment said an out-of-
state citizen could not sue a State. To that extent, it is a
constitutional principle. So there is a distinction there
between what is now held as doctrine and what I think a
historian would say the facts are.
Senator Sessions. I will ask you if you are aware of any
case, State or Federal, that allows a State to be sued without
a State statutory provision allowing that.
Judge Noonan. I think that is the way the law operates,
yes.
Senator Sessions. So I guess all I am saying is it is not a
radical thing, would you say, Professor Hamilton, for the
Supreme Court to affirm this principle of sovereign immunity?
In fact, it has remained virtually inviolate throughout the
history of our Nation. It would be an activist decision to
eliminate it, would it not?
Ms. Hamilton. It would be a constitutional amendment to
eliminate it, and for the Court or the Congress to engage in
that kind of activity without going through Article V is a
problem. Sovereign immunity is solid in the Constitution. It is
part of protecting the States against those entities that would
rob their coffers, essentially, and it is necessary.
Senator Sessions. Thank you.
Judge Noonan. Well, if you look at my book, Senator
Sessions, you will see a series of decisions by the John
Marshall Court which really established our federalism in which
the States were brought to book. They include cases like
Worcester v. Georgia, which is a case directly against the
State of Georgia. So sovereign immunity in the modern sense is
not part of our constitutional heritage.
Senator Schumer. Thank you, Senator Sessions.
Let me go to Judge Noonan now. Judge, as I mentioned in my
opening remarks, when a court invents new theories to strike
down law after law, that looks to me like judicial activism.
When a court uses one approach to constitutional interpretation
when it comes to a certain set of cases, then uses the opposite
approach to constitutional interpretation for another set of
cases, that looks to me like outcome-driven decisionmaking. To
me, that is judicial activism.
You were, I think, quite brave and quite right to publish
this book and you make some bold comments and we are all better
for having you prick our thinking, but you stop short of
calling the Supreme Court jurisprudence activism. Why? Isn't
that exactly what it is?
Judge Noonan. Well, I don't call it that because I think
this is what judges do all the time. They interpret. They are
not parrots. They are applying their reason to the Constitution
and to the facts before them.
``Activist'' is used as an abusive term, used at least
originally by people criticizing judges who were characterized
as liberal, and now it could be used with equal propriety as an
abusive term of conservative judges. But it really is just a
word that can be found useful in talking about almost any
judge. I would rather get rid of it.
I think judges respond to situations otherwise than as
machines, otherwise than as parrots. I note so often, if I may
take the liberty with this committee, that people are asked,
will you observe the Constitution? Of course, every judge will,
but to observe it requires reasoning. It requires more than
just taking the words and just parroting them.
Senator Schumer. Of course, and things change, cases
evolve. Doctrines may stay the same, but you are going to have
new fact patterns all the time.
Let me ask you this. In City of Boerne, the Supreme Court
articulated a standard that I never really heard before. It
held that Congress could properly act pursuant to its power
under the 14th Amendment only if it could demonstrate, quote,
``the congruence and proportionality of its remedy to specific
past discrimination.''
This new requirement, it seemed to me, was invented from
whole cloth that has no basis in prior decisions or in the
Constitution, and it effectively changed the rules for proper
congressional action without giving Congress notice or an
opportunity to meet the new test.
The Court has since applied this new test to invalidate
important legislation that was passed long before the City of
Boerne decision. It prevented the States from violating
copyrights and patents, and discriminating on the basis of age,
disability, and gender. Despite ample legislative history
detailing the need to remedy these violations, the Court used
its new test and found the laws to be unconstitutional as
applied to the States.
In my mind, legislating shouldn't require a crystal ball to
see what roadblock the Supreme Court might next throw up. So
how is Congress supposed to protect the laws we write to
protect the citizens of this country from a Court which appears
more concerned with protecting the States than the people of
those States?
Judge Noonan. Well, that is, you might say, a fundamental
question. I think you have to respond to what you have in front
of you, surprising as it is. I frankly don't think the series
of decisions that begin with Boerne could have been
anticipated.
Senator Schumer. I was here. I wrote some of the laws they
threw out.
Judge Noonan. As Justice Breyer said in his dissent in the
Ports Authority case, there is no clear end in sight. You can't
say now where it will end. So I think you have to legislate
with those cases in mind and with such devices that have not
yet been held unconstitutional by the Supreme Court. Of course,
there are some ways of legislating that have not been addressed
by the Court.
Senator Schumer. You also have sort of a sqwishy notion of
congruence and proportionality which is awfully hard to figure
out. It almost seems instinctive to me--I may be wrong on
this--that that kind of judgment test belongs more in a
Congress than in a court.
Judge Noonan. I think there is a particular difficulty
because while you can have some sense of what proportion is,
congruence seems to mean it is fitting. What is fitting? That
seems to be very much a legislative judgment.
In the Boerne opinion itself, sometimes the two terms are
used conjunctively and sometimes disjunctively. It is
``congruent and proportionate'' or ``congruent or
proportionate.'' But as the course of adjudication has gone on,
there are two tests, not alternate tests.
Senator Schumer. Do you want to comment on that, Professor
Hamilton, with your long involvement in Boerne?
Ms. Hamilton. The Boerne decision actually reflects a
culmination of the preceding section 5 cases. I understand that
it came as a surprise to some, but if one read(s) back through
the Civil Rights Act cases, what the Court is essentially
saying is that Congress has a power to regulate the States
under section 5, but that power is not unlimited. The open
question was how the limits would be articulated.
The proportionality rule comes straight out of the law of
remedies. The Court held that section 5 provides a remedial
power, that Congress can fix constitutional evils in the
States. I have written an article about it. I have actually
written more than one thing about it, but if you look to the
law of remedies, congruence and proportionality are always used
to try to fit the remedy to the problem.
Senator Schumer. Give me an example of congruence, because
I share Judge Noonan's----
Ms. Hamilton. Congruence means the law is aimed at the evil
that has been identified. This is something the Court does in
the First Amendment all the time. It is nothing new to legal
analysis. These may be two new words in the federalism
doctrine, but they do not change the actual operation of the
courts.
Senator Schumer. But you would then not be terribly
reluctant to have the courts say that the findings of Congress
that this was congruent, just to take two concepts that you
have advocated, are wrong. We could have a lot of findings and
say this is congruent, this fits, and you put us in almost a
box. You say, well, a court could come along and rule, well, it
is really not congruent, and there seems to be almost no
deference with that kind of sqwishy word and the new Court's
view that they can sort of overrule the findings of Congress
which have always been given big deference. You combine those
two concepts and you are really changing things around rather
dramatically, in my judgment.
Ms. Hamilton. I would disagree with that, respectfully. The
law of remedies has been employing those phrases for a long
time and the courts have been trying to fit remedies to wrongs.
I think one needs to look carefully at the federalism
decisions that have come down since 1995, especially since
Boerne, because the primary finding in these cases is that
there are no widespread constitutional violations in the
country to justify the exercise of the power in the first
place.
The threshold question is how are the States behaving? Are
they violating the Constitution? If they are violating the
Constitution, then Congress actually has a broad hand, and the
Court has said that more than once. The turning point in these
cases--the determinative element has not been congruence and
proportionality. It has been whether or not there have been
widespread and persistent constitutional violations. That is
the key.
Senator Schumer. Particular for a State, that is a rather
narrow group, that is a rather narrow field. I mean, many of
the other things we seek to do have other bases of power, not
constitutional protection of the citizens against the States.
That is not much salve to what I am saying here.
I understand that if it is constitutional, obviously we
have the right to step in. But what about in all the instances
where there are other bases for our regulation--Commerce Clause
or anything else?
Ms. Hamilton. Congruence and proportionality only apply
under section 5, and so we are only talking about the section 5
cases.
Senator Schumer. I think we are headed--I don't know if
Judge Noonan agrees--we are headed to a situation where the
basic view that Congress' findings should not be deferred to
are going to be added to many of these other areas.
Ms. Hamilton. Actually, I think that is a
misinterpretation. It is part of the over-reaction to the
cases. The fact-finding is only required under section 5. In
fact, it is not even required, and the Court said this a number
of times, but it is repeatedly misstated everywhere.
The Court said that a record is not necessary to justify
congressional legislation explicitly in Boerne; we argued this
in Boerne and I think it is right. If there is general
knowledge of violations of the Constitution, that is
sufficient.
Racial discrimination with respect to the civil rights
acts--one hardly needed a record, although Congress had a
record and the Court refers to it.
The problem is where it is not clear that there have been
widespread constitutional violations. The Court has refused to
presume the States violate the Constitution without some
evidence of it, and that is where the records issue comes up.
So it is not a constitutional requirement to have a record, but
in the absence of a record the Court will not presume
constitutional violations.
Senator Schumer. Do you want to comment on what Professor
Hamilton said, Judge?
Judge Noonan. I would draw the committee's attention to an
article I was not aware of when I wrote my book, but since I
have just been teaching it at Emory University Law School, this
is by two professors at Emory and it is called ``Legislative
Record Review'' and it is published in the Stanford Law Review.
Professor Busby and Professor Shapiro have interpreted the
cases differently and see a requirement in them for a
legislative record, and they ask what is a legislative record.
We know what an administrative record is, but Congress has not
been used to making something they call a legislative record.
Is it speeches, is it anecdotes? What is it? I find the set of
questions posed in this overwhelming, and the authors don't see
a very easy way out of it.
I would like to submit this article to the committee
afterwards.
Senator Schumer. Without objection, it will be put in the
record.
I would just note, corroborating what Judge Noonan said, in
Lopez and in VAWA, the Court rejected an ample record. They
then took that record and said, well, that is not good enough,
for a bunch of different reasons. I was part of the VAWA
record. I was amazed when the Court overruled that record. I
mean, they may not like the reasoning, but if there is lots of
violence against women, it certainly is interfering with
commerce in this country.
Ms. Hamilton. Well, that is a leap that the Court is not
willing to let the Congress take, thankfully.
Senator Schumer. Why?
Ms. Hamilton. The record in VAWA was about violence against
women, but the record did not substantiate that these violent
actions were commercial in nature. That is what needs to be in
the record with respect to the Commerce Clause, and it wasn't
there.
Senator Schumer. I don't recall, but if we put in that a
million person-hours were lost because of violence against
women in terms of economic productivity, would that be enough
for you?
Ms. Hamilton. Well, it doesn't matter what I think. Would
it be enough for the Court?
Senator Schumer. Yes, well, in your view of what the Court
ought to do.
Ms. Hamilton. There are two doctrinal bases we are talking
about. One is under section 5 of the 14th Amendment, no matter
how much Congress had shown impact on commerce that wasn't
going to turn the law into a regulation of the States, as
section 5 requires. So I will leave section 5 to the side.
With respect to the Commerce Clause, what had to be shown
was that the Congress was regulating an intrastate activity,
because the violence against the woman is unquestionably
intrastate, and whether or not that intrastate activity would
result in substantial effects on commerce.
Senator Schumer. Would you recommend the Court overturn the
Hobbs Act, which is what Judge Noonan had talked about?
Ms. Hamilton. No, I wouldn't recommend----
Senator Schumer. What is the difference?
Ms. Hamilton. The difference between the two is that the
entity being regulated with respect to violence against women
in the way the Act was drafted--and as I said before, I think
there are ways to draft that Act to make it work. But in the
way that it was drafted, what was being regulated was an
intrastate activity for which you could not show substantial
effects on commerce.
Senator Schumer. Well, isn't that true in what was
regulated in the Hobbs Act?
Ms. Hamilton. In the Hobbs Act, it was the transportation
of the women across State lines. That is an interstate
activity. That is quite different.
Senator Schumer. I see. Why don't we let Judge Noonan
respond.
You are saying even if there are indirect effects on
interstate, that doesn't apply. It has to be direct crossing of
interstate lines, which is a pretty narrow interpretation of
the Commerce Clause.
Ms. Hamilton. It still leaves an enormous amount of power.
But the Court is still clarifying precisely the question you
are asking about, which is how to deal with intrastate effects
on commerce.
Senator Schumer. Judge Noonan, do you want to respond?
Judge Noonan. Well, I thought that was a debate that went
on in the 1930's.
Senator Schumer. Right.
Judge Noonan. And I thought we were well past direct and
indirect. You can turn almost anything into a direct or
indirect----
Senator Schumer. That is what I thought, but Professor
Hamilton is going back to that standard.
Let me go to a second question. As you observe in your
book, Judge Noonan, recent efforts to enforce State sovereign
immunity are based neither on the text nor the legislative
history of the 11th Amendment. This adventurous--that is your
wording, not mine--reading of the 11th Amendment is embraced by
the same Justices who, in the area of individual rights,
complain that the rights are nowhere to be found in the text of
the Constitution and thus are not rights at all. Privacy is the
big one.
It seems to me there appears to be some kind of
inconsistency here. It strictly adheres to the text when
interpreting the Constitution with respect to individual
rights, but uses broader, more expansive and more creative
approaches in all the ways that Professor Hamilton and I have
been debating when it comes to States' rights.
Judge Noonan. Well, I think it is fair to say that in these
decisions the Court has given up its critique that at least
individual Justices have made in other contexts. The key words,
it struck me, are in Alden v. Maine, where the Court says we
don't believe in ``a historical literalism.'' In other words,
taking up the text out of history just won't work.
Once the Court has said that, it seems to me it brings into
doubt a number of these pronouncements which said you have just
got to look at the text and the text will tell you what it
means.
Senator Schumer. Only in some types of cases.
One final question for you, because I know Jeff has a few
and we have a vote in about 9, 10 minutes. The vote is now,
about 10 minutes left.
Do you think there is going to be real danger--let me not
characterize it. Do you think there is a likelihood that the
constitutionality of the Family Medical Leave Act, which is
coming before the Court this term, will be invalidated?
Judge Noonan. I really don't want to speculate.
Senator Schumer. Well, it is past you already; it is up to
the Supreme Court, but that is OK.
Judge Noonan. Everyone can read what is there and what the
logical implications are.
Senator Schumer. Yes. I am very worried about that.
Judge Noonan. They are not hard to figure out.
Senator Schumer. Thank you, Judge.
Let me let Jeff ask a couple of questions and then I think
we will call it a day.
Senator Sessions. Well, you know, on the Hobbs Act it is
just something I have wrestled with over the years. It was
passed in 1945. It requires a commerce nexus. Not only does it
require a commerce nexus, but the name of the Act is not the
Hobbs Act. The name of it in the rubric is ``Interference with
Commerce by Threats of Violence.'' It requires a connection
between commerce and----
Senator Schumer. If we rename VAWA that, would that be OK?
Senator Sessions. It might because it would make it an
element of the offense. I don't know about the VAWA Act,
frankly.
Senator Schumer. A little sophistry there.
Ms. Hamilton. It is called the jurisdictional element.
Senator Sessions. The jurisdictional nexus element. It has
always been in that. The next offense, interstate and foreign
travel of transportation in aid of racketeering--racketeering
by itself is not sufficient.
I had a case involving a small town where the police chief
was taking money from people for traffic tickets and we had a
serious doubt as to whether or not the case could be prosecuted
under the Hobbs Act if it was only local people in the local
town having to pay bribes to avoid the ticket. Fortunately for
our case, somebody was involved from out of State coming
through and we felt that provided the sufficient nexus.
It is not going back to the 1930's to say that the
Constitution is being violated here. Section 8 says, ``The
Congress shall have the power to regulate commerce with foreign
nations and among the several states.'' Now, that has to have
some meaning. Otherwise, we are at a point of breathing in and
breathing out somehow in air that travels.
Isn't the Supreme Court simply struggling, Professor
Hamilton, to put some meaning to a clause that we have always
felt had meaning and have some rational standard for its
application? And isn't the Court saying that merely because we
find A, B and C as fact does not necessarily decide the
question if it takes a finding of D to answer the question?
Ms. Hamilton. I think that is right. I think that is
exactly what the Court is doing.
Senator Sessions. I just don't feel like this is anything
other than--maybe we can disagree with precisely where you draw
the line, but I do not believe it would be sound constitutional
law to conclude that this phrase ``commerce'' has no meaning
whatsoever, to define it so weakly that it covers everything
that you could imagine. I just can't believe that that would be
what we are talking about.
Judge Noonan, on that subject about good people might
disagree, do you think if a lawyer defended a hospital, as
Elliot Spitzer, the Attorney General of New York has, on the
grounds of sovereign immunity, or defended a defendant on the
ground that Congress had failed to make the interstate commerce
nexus required, that that would disqualify them from serving on
the Federal bench?
Judge Noonan. No. I think it is perfectly appropriate for
lawyers to make the arguments that are there in the realm of
precedent.
Senator Sessions, your comment, though, makes me recall a
case I did write the opinion in when you say we don't want
``commerce'' to mean anything. We had a case where one animal
rights league sued another animal rights league under the
antitrust laws and claimed that the defendant was violating the
antitrust laws by getting contributions that should have gone
to the plaintiff. The way we decided that case--and I wrote the
opinion--was non-profits are not engaged in commerce. End of
case.
Senator Sessions. That is very interesting. I bet Senator
Schumer would not agree with that.
Judge Noonan. Some universities have not picked up on that.
Senator Sessions. Well, I know we have a nominee, Jeff
Sutton, who has argued for sovereign immunity in the Garrett
case. I trust our panel here will not browbeat him for
asserting what at least is a colorable theory of law. Would you
agree with that?
Judge Noonan. Well, yes.
Senator Sessions. Thank you.
Senator Schumer. You have 2 minutes left, Jeff.
Senator Sessions. Two minutes. Well, I won't continue. It
is an interesting, interesting debate. I think the Supreme
Court has taken some cases and they have attempted to try to
establish a defensible line between what is commerce and what
is not commerce. I do not believe it is a retreat to the
1930's, but I believe it is simply an attempt to give meaning
to a clear clause in the Constitution and I frankly am not
offended by what they have done.
Senator Schumer. We will let Jeff have the last word, other
than for me to thank both of you. This was really an excellent
hearing. It brought the issues to a head and will all make us
think a great deal.
So, Judge Noonan, thank you, and your book is something
that is just great.
Professor Hamilton, you did a great job and I hope we will
be hearing from you in this committee again.
Ms. Hamilton. Thank you.
Judge Noonan. Thank you very much.
Senator Schumer. Thank you.
We are adjourned.
[Whereupon, at 12:36 p.m., the committee was adjourned.]
[Submissions for the record follow.]
[Additional material is being retained in the Committee
files.]
SUBMISSIONS FOR THE RECORD
[GRAPHICS NOT AVAILIABLE IN TIFF FORMAT]