FW: Garrett and the Spending Clause

[Rebecca E. Zietlow]

Professor Masinter is correct that the two sources of power have nothing
to do with each other.  The Supreme Court treats them very differently -
even as it has cut back significantly on Congress' other enumerated
powers in the name of state sovereignty, it has put virtually no limits
on Congress' Spending Power and has expressly disavowed state
sovereignty based limits on that power.  Moreover, in many of the
Court's recent cases limiting congressional power, including Seminole
Tribe, Alden, and the "anti-commandeering" cases, the Court has referred
to the spending power as an alternative source for Congress to
accomplish the goals which the Court found unconstitutionally intrusive
on state sovereignty when Congress attempted them by other means.  I
agree that Congress' ability to use the spending power to solicit the
state's waiver of sovereign immunity is a very hot issue, and it's just
a matter of time before the Court addresses it.  The Court sidestepped
the issue last term in Sandoval, but it looks like Garrett (II) may
provide a vehicle for the Court's consideration of this issue.  That
opinion appears to create a circuit split.  Prior to last week's opinion
in Garrett, every Circuit that had considered the issue since Seminole
Tribe ruled in favor of congressional power.

Rebecca Zietlow
University of Toledo College of Law
rzietlo at uoft02.utoledo.edu
(419) 530-2872

-----Original Message-----
From: Michael MASINTER [mailto:masinter at NOVA.EDU]
Sent: Friday, August 17, 2001 4:24 PM
To: CONLAWPROF at listserv.ucla.edu
Subject: Garrett and the Spending Clause


The Supreme Court held in Garrett that section five does not empower
Congress to override the eleventh amendment immunity of states in ADA
suits.  Yesterday the Eleventh Circuit held on remand that accordingly,
it
necessarily follows that Congress, using its Spending Clause powers,
cannot subject states to suits under section 504 of the Rehabilitation
Act
by conditioning acceptance of funds on a waiver of immunity.  Why is
that
so?  The two sources of congressional power have nothing to do with each
other.  What am I missing?  The short per curiam opinion can be found at
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=11th&navby=case&n
o=986069OP2





Michael R. Masinter                     3305 College Avenue
Nova Southeastern University            Fort Lauderdale, Fl. 33314
Shepard Broad Law Center                (954) 262-6151
masinter at nova.edu                       Chair, ACLU of Florida Legal
Panel