Congressional override of Geduldig

Tue Apr 25 14:13:22 PDT 2000

Out of my own curiosity, how does the overruling of Parden in the College Savings case fit into this?  It seems that when states act as market participants, they should be subject to suit like any private employer and therefore a waiver of sovereign immunity should be implied.

>>> Mcconnellm at LAW.UTAH.EDU 04/24 3:00 PM >>>
The reasoning in Garcia was terrible because the Court never reached
the merits -- it held that the federal/state balance is left to the
political process.

Participation in the labor market is economic in nature, and since
the labor market is national in scope, it is (or least substantially
affects) interstate commerce. Not only is that long settled, but it
make sense: the supply and demand for labor in each state affects the
market in other states.

The only difficult question is whether the state's status as state
gives it an implied immunity. The best answer to that, I think, is
that the federal government has no authority to control a state's
conduct in its governmental (lawmaking or law enforcing) capacity --
at least in the absence of express textual authority, see Testa v.
Katt -- but that it has authority to regulate a state's participation
in commerce in a commercial capacity, such as the capacity of
employer. In other words, Congress has the power to regulate commerce
(even when conducted by state governments) but does not have the
power to direct the the state to exercise governmental functions.

> Date:          Mon, 24 Apr 2000 13:34:27 -0500
> Reply-to:      Discussion list for con law professors
>                <CONLAWPROF at>
> From:          Richard Dougherty <doughr at ACAD.UDALLAS.EDU>
> Organization:  University of Dallas
> Subject:       Re: Congressional override of Geduldig
> To:            CONLAWPROF at

> Michael:
> Since Garcia has always confused me, could you spell out a bit the
> right reasoning that would lead to the same conclusion? Does the
> question of the interstate nature of the commercial activity make a
> difference? Or is the funding question part of the interstate
> implication?  (If you have addressed this in print, is there a cite
> I could get?) Richard Dougherty
> Michael McConnell wrote:
> > Congress has the authority to regulate state and local governments in
> > their capacity as participants in commerce (including as employers),
> > by means of generally applicable laws; thus, Garcia was rightly
> > decided, though badly reasoned. Nothing in New York or Printz is to
> > the contrary. That principle would extend to the PDA.
> >
> > -- Michael McConnell (U of Utah)
-- Michael McConnell (U of Utah)

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