Garrett

[Ann Althouse]

>Marci writes: I think it is quite clear in Boerne and its successors that
>there is no
>requirement of a one violation-to-one-remedy formula.  What that analysis
>misses in my view is that the existence of a pattern of state
>unconstitutional conduct is a *threshold* inquiry to the
>proportionality/congruence standard.  If there is widespread and persisting
>state unconstitutional conduct, Congress may act pursuant to Sec. 5.  If not,
>the inquiry stops altogether. (Boerne, Florida Prepaid)....

Let me be clear about what you're saying. What if after Florida Prepaid,
Congress were to rewrite the statute to make the federal claim for
retrospective relief available only in cases where the state had actually
deprived the patent holder of property without due process? There would
then be a one violation-to-one-remedy correspondence but no pattern. Good
enough (on the ground that there is no attempt to cover behavior beyond
what the constitution already provides)?

Re political action in the wake of Garrett: wouldn't the best route be to
ask state legislatures to consent to suit under the ADA, to hold each state
legislator to the test, and then pillory them if they won't do it? That
would be absolutely in line with the SCt opinion, rather than attacking the
Court, of course.

Ann