Boerne Fallout

[Douglas Laycock]

        This line of inquiry will quickly lead us off list into the arcana
of immunity law and the mysteries of Printz v. United States; the starting
point is the effects of Boerne.

        1.a.  Suits in federal court for restitution of  past unpaid
obligations of the state is barred by 11th Amendment, Edelman v. Jordan, 415
U.S. 651 (1974), except where Congress clearly authorizes such a remedy
pursuant to its power to enforce the 14th Amendment, Fitzpatrick v. Bitzer,
427 U.S. --- (1976).  If the Age Discrimination in Employment Act is not a
section 5 statute, as Boerne clearly implies, then no backpay against the
state, its agencies, or instrumentalities in federal court.

        b.  Presumably employees can sue the head of the agency and get
reinstatement and an injunction against any illegal personnel policies.
There are some conceptual problems with this, but the Court has never
suggested otherwise.

        2.  The employee can sue for back pay or money damages in state
court.  The state may plead its own doctrine of sovereign immunity.  The
only context I know in which the Court has required states to waive
sovereign immunity in their own courts is suits for refunds of
unconstitutional taxes.  There it was done without explanation.  Justice
Marshall once suggested that states must provide a damage remedy for federal
causes of action, but I don't know that the Court has ever addressed the
issue.  Sovereign immunity is not in general unconstitutional.  Does
Congress have power to override it for federal claims?  (I don't know;  with
this Court, I am not optimistic).  Does any effort to do so require a clear
statement?  (Surely yes.)  Does a clear statement authorizing suit in
federal court count as a clear statement to authorize suit in state court
after the suits in federal court turn out to be barred?  (Probably not).

        3.  Back pay and money damages are available against municipalities,
counties, school boards and similar units of local government that are not
the state for Eleventh Amendment purposes.

        4.  All of this assumes that the ADEA as applied to states is still
valid under the Commerce Clause.  It was upheld on that theory, 5-4, in EEOC
v. Wyoming, after National League of Cities and before Garcia overruled NLC.
Scalia in Printz tries to re-open that debate, saying that when commerce
clause regulation applies to states and to the private sector, the validity
as applied to the states depends on a balancing test.


At 12:40 PM 8/8/97 MST, you wrote:
>I assume that by "age discrimination suit," Doug Laycock
>means a suit for money damages against the State in federal
>court. Is there any reason to doubt that, even after
>Boerne, plaintiffs can (1) get injunctive relief (back-pay,
>maybe, as a form of restitution???) against the state
>officers who do the hiring and firing, (2) get money
>damages in state court, and (3) get money damages in state
>court against instrumentalities of goverment not understood
>to be "the state"?
>-- Michael McConnell (U of Utah)
>