[Congressional Record (Bound Edition), Volume 145 (1999), Part 11]
[Senate]
[Pages 15213-15215]
[From the U.S. Government Publishing Office, www.gpo.gov]




               THE SUPREME COURT'S END-OF-TERM DECISIONS

  Mr. LEAHY. Mr. President, the Supreme Court ended its term last week 
with a trio of deeply disturbing decisions regarding the role of the 
States and Congress in our federal system. In Alden v. Maine, the Court 
made it impossible for State employees to enforce their rights under 
the Fair Labor Standards Act, which for decades has guaranteed public 
and private employees nationwide a fair minimum wage.
  In College Savings Bank, the Court deprived private parties of the 
ability to enforce federal unfair competition law against the States. 
And in Florida Prepaid, the Court held that Congress

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can execute its constitutional mandate to protect patents as against 
States only if the Court is satisfied that there is a sufficient 
``pattern of constitutional violations'' of patent rights by the 
States. The Court also made an unprecedented suggestion about how we 
must write legislation: that we must expressly invoke a constitutional 
provision before it will honor our authority to legislate.
  These three decisions, all by the same bare majority, are disturbing 
on three fronts. First, they seem to be premised on obsolete notions of 
natural law, with no basis in the text of the Constitution, and they 
expressly depart from established constitutional precedent. Second, 
they will make it harder for ordinary Americans to enforce their 
federally-protected rights against States. Third, they will make it far 
more difficult for Congress to enforce uniform policies on matters of 
national concern.
  Justice Souter has eloquently explained how the Court's decisions 
will harm individuals. Dissenting in the Alden case, Justice Souter 
pointed out that the majority's decision left Maine's employees with a 
federal right to get paid for overtime work, but no way to enforce it. 
This flies in the face of logic, precedent, and common sense. As every 
first-year law student knows, where there is a right, there must be a 
remedy.
  The maintenance of State sovereignty is clearly a matter of great 
importance. For this reason, I have been critical of the increasing 
intrusion of federal regulation into areas traditionally reserved to 
the States.
  In particular, I have expressed concern about the seemingly 
uncontrollable impulse to react to the latest headline-grabbing 
criminal caper with a new federal prohibition. This Congress has also 
extended the federalization of State laws to civil law matters 
traditionally the province of the States, as in the Y2K bill. But 
though I watch the federalization of the law with concern, I cannot 
agree with the Court's decisions, which privilege States' rights over 
those of both the individual citizen and the federal Government. It is 
one thing to say that Congress should forbear from interfering in areas 
that are adequately regulated by the States; it is quite another thing 
to say that Congress may not exercise its constitutionally-delegated 
authority even when the national interest so demands.
  We on the Senate Judiciary Committee hear a good deal of rhetoric 
about judicial activism. Here we have the real thing. The Court's so-
called conservatives, who routinely limit individual constitutional 
rights on the basis of supposed strict adherence to the constitutional 
text, have suddenly developed a natural law concept of State 
sovereignty that even they admit has no basis in the constitutional 
text.
  These conservative activists have reached out to overrule solid legal 
precedent. Thirty-five years ago, in Parden v. Terminal Railway 
Company, the Court held that States may lose their immunity by engaging 
in ordinary commercial ventures. This makes a good deal of sense.
  Why should States that choose to act outside their core sovereign 
powers and compete in the marketplace get an edge over their regulated 
private competitors? Certainly, nothing in the Constitution suggests 
that they should. By overruling Parden, the Court's ``conservatives'' 
abandoned all pretense of judicial restraint.
  Let me turn now to the flip-side of the Court's new emphasis on 
States' rights. In strengthening the power of the States, the Court has 
weakened the power of Congress and the federal Government.
  We should, I believe, pay particular attention to the Court's 
restrictive reading of Congress's authority to enforce the Fourteenth 
Amendment.
  This amendment grants the Congress the power to enforce, by 
appropriate legislation, federal constitutional rights. Last week, for 
the second time in as many years, the Court invalidated an Act of 
Congress because of the perceived deficiency of the legislative record. 
The Court held, in effect, that Congress may not exercise its power 
pursuant to the Fourteenth Amendment unless it justifies itself, in 
advance, to the satisfaction of the federal courts. This demonstrates a 
breathtaking lack of respect for a co-equal branch of Government. 
Congress is not an administrative agency, and it should not be required 
to dot every ``i'' and cross every ``t'' before taking action in the 
public interest.
  The Court's ``no-deference'' approach could complicate a broad range 
of current legislative initiatives. I will note just two that are of 
critical importance to me: civil rights and intellectual property.
  The Religious Liberty Protection Act, which was recently reported by 
the House Judiciary Committee, is an important congressional effort to 
protect religious liberty after the Court struck down our previous 
attempt in the 1997 City of Boerne case. To the extent that any new 
bill rests on our authority under the Fourteenth Amendment, we must now 
do the work of an administrative agency to develop an evidentiary 
record that will satisfy the Supreme Court.
  The end-of-term decisions will also make it harder for Congress to 
design a uniform system that will apply throughout the nation to 
protect important intellectual property interests. Intellectual 
property rights are deeply rooted in the Constitution, which provides 
in Article I that ``The Congress shall have power . . . [t]o promote 
the progress of science and useful arts, by securing for limited times 
to authors and inventors the exclusive right to their respective 
writings and discoveries.'' I have worked hard over the years to 
provide the creators and inventors of copyrighted and patented works 
with the protection they may need in our global economy.
  Yet, the Court's decisions will have far-reaching consequences about 
how these intellectual property rights may be protected against even 
egregious infringements and violations by the States. For example, in 
light of the Court's decisions, will Congress now have to write one law 
for private universities, libraries and educational institutions, while 
State-run institutions are free to do whatever they please. This is a 
matter that Chairman Hatch and I will have to examine closely in the 
Judiciary Committee as we consider a host of intellectual property 
matters ranging from distance education, database protection, 
cyberpiracy of domain names, and others.
  The Court's new conception of federalism poses an interesting 
challenge to Congress. Over the coming years, we can expect a flurry of 
lawsuits aimed at testing the limits of last week's rulings and of this 
body's legislative authority. In fact, the Court has already agreed to 
decide next term whether States are immune from suits charging that 
they have violated the federal law against age discrimination and 
whether they may be sued for defrauding the federal government.
  I have risen to discuss the Court's end-of-term decisions for two 
reasons. First, I agree with the four dissenting Justices that these 
decisions are an egregious case of judicial activism and a 
misapplication of the Constitution. The four dissenters expressed their 
belief that the Court's new direction will eventually be reversed. I 
hope this is so. In the interim, however, we need to determine what 
means remain to Congress to fulfill the promise of the Constitution, 
which guarantees national supremacy to federal law and to federally-
protected rights.
  At least three paths remain open to us. First, Congress can require 
States to waive their immunity from suit as a condition of receiving 
federal funds. Second, since the States are not immune from suit by the 
federal Government, Congress can empower federal authorities to collect 
damages on behalf of private citizens whose federal rights have been 
violated by States. Third, Congress can give more emphasis to 
preventative remedies, since nothing in the Court's decisions affects 
the ability of individuals to sue States for injunctive relief.
  I urge all Senators to study the Court's decisions. We need to work 
together with a clear understanding of the Court's new constitutional 
order.

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