PDA and RFRA (was McConnell comment on Boerne)

[Michael MASINTER]

On Mon, 29 Dec 1997, Jack Balkin wrote:

>      Michael Masinter asks why the PDA involves section 5 power rather
> than simply Commerce Clause power.  The answer is that the PDA
> applies to state and local governments as well as private employers.
> This raises an eleventh amendment problem: how is the immunity from
> suit waived, since there is no clear statement in the text?  The eleventh
> amendment immunity is waived because the PDA was passed in part
> under Congress's section five powers under the 14th amendment.
> Congress did this because of Fitzpatrick v. Bitzer, which holds that the
> 1972 Amendments to Title VII could waive the 11th amendment immunity
> without a clear statement in the text of the statute because they were
> passed under section 5 as well as the commerce clause.
>       Thus, one has to understand the PDA (in its application to state and
> local governments) as an exercise of power under section 5 in order to
> waive the eleventh amendment immunity.  If so, how is this use of
> section 5 power to be justified?  The answer is that it must be a
> permissable extension of or enforcement of the right against sex
> discrimination by state and local governments, despite Geduldig.  The
> PDA shows that the remedial/substantive distinction is not as clear cut
> as Kennedy's opinion in Boerne suggests it is.  If the PDA is "merely" an
> exercise of remedial power against state and local governments, (even
> thought it effectively makes an end run around Geduldig) could one not
> argue that RFRA is also remedial?

        I think Jack reads too much into the PDA for these reasons:

        1)  The 1978 amendment to Title VII we call the PDA applied to
both private and public employers, but that is no reason to tie the power
to enact the PDA to section five.  The PDA as applied to private employers
was and still is unquestionably a permissible exercise of Commerce Clause
powers.  Newport News Shipbuilding and Dry Dock Co. v. EEOC construed the
PDA in litigation against a private employer, noting that "[t]he
dissenters in Gilbert took issue with the majority's assumption 'that the
Fourteenth Amendment standard of discrimination is coterminous with that
applicable to Title VII'" and holding that by adopting the PDA, Congress
"unambiguously expressed its disapproval of both the holding and the
reasoning of the Court in the Gilbert decision."  In short, Newport News
confirmed that the PDA as an exercise of Commerce Clause lawmaking power
should be construed free from the constraints of the fourteenth amendment.

        2)  The questions of whether Congress had the power to apply the
PDA to state and local governments, and of whether Congress had the power
to subject states to suits for damages in federal court for violations of
the PDA, were not before the Court in Newport News.  Though as Doug
Laycock notes, the PDA was passed during the short lived reign of National
League of Cities v. Usery, it is also worth remembering that the 72
amendments preceded National League of Cities.  Congress might reasonably
have thought that National League curtailed but did not eviscerate its
Commerce Clause power to regulate some employment practices of state and
local governments.  We don't know because as Doug also points out,
Congress did not discuss these questions.  But had Congress thought that
it retained some Commerce Clause powers here, it would only have been
guilty of correctly anticipating the Court's holding in EEOC v. Wyoming.

        Written after Seminole Tribe, Jack's argument that Congress could
only strip states of their Eleventh Amendment immunity when legislating
within the scope of section five powers is bulletproof.  But the 72 and 78
amendments to Title VII were enacted during an era in which the scope of
Congressional power to override the Eleventh Amendment was anything but
clear.  The Court had developed two lines of Eleventh Amendment override
cases -- Congress had the power under section five to override the
Eleventh Amendment, and any override not rooted in Section Five must be
clearly stated in the statute.  The clear statement rule, applied when
Congress did not act under section five, pretty clearly implied Article
One power to override the Eleventh Amendment.

        To be sure, the clear statement rule lacked any rationale which
could command a majority.  It emerged from two ultimately irreconcileable
views of the Eleventh Amemdment.  Justice Brennan and his Atascadero
co-dissenters thought the Eleventh Amendment should be construed as
written -- that is, as only foreclosing diversity jurisdiction claims
against the states.  A shifting coterie of Justices read it to overrule
Chisholm v. Georgia, but in radically different ways.  All agreed that the
error of Chisholm was its assumption that Article Three stripped the
states of sovereign immunity in federal courts.  But because Chisholm, a
diversity case, never reached the question of whether ratification of
Article One implicitly empowered Congress to affirmatively legislate to
strip states of sovereign immunity, the repudiation of Chisholm embodied
in the Eleventh Amendment was susceptible of two very different readings:
under one view, all the amendment did was eliminate Article Three as a
self effecting override of sovereign immunity, leaving Congress free to
override under Article One, but only with a clear statement; under another
view, the amendment eliminated ratification of the constitution as
implicitly authorizing Congress to strip states of sovereign immunity in
most private claims, meaning that overrides not rooted in section five
would be unconstitutional.  The diversity minority and the Article Three
minority sometimes combined to produce a majority (Union Gas), and the
Article Three minority and the broader no power minority sometimes
combined to produce a working majority, but none of the three groups
commanded a majority until Seminole Tribe apparently adopted Scalia's
Union Gas dissent.

        Congress knew none of this in 1972 when it subjected state and
local governments to Title VII (think Parden), and gave no apparent
thought to it when it enacted the PDA.  City of Boerne refers to
Fitzpatrick v. Bitzer, but not to the PDA.

        3)  City of Boerne does leave some room for remedial legislative
power under Section Five, but seems to establish a remedial fit test.
Whatever the scope of the fit test turns out to be, City of Boerne notes
that disproportionate impact of state law and practice upon a protected
class can be taken into account in assessing the remedial fit under the
equal protection clause and section five; the Court makes much of the
absence of a legislative record of the disproportionate impact of state
law generally upon free exercise.  But the disproportionate impact of
pregnancy discrimination upon a protected class is beyond even the
obvious, at least pending new advances in reproductive implant technology.
If disproportionate impact matters in assessing the remedial scope of
section five powers, the PDA will pass with flying colors.

        4)  Other so called remedial statutes present far more compelling
bases for challenge under City of Boerne -- e.g., the ADEA and the ADA as
applied to state governments.  City of Boerne gives little indication of
how the Court will act.

Michael R. Masinter
Nova Southeastern University
Shepard Broad Law Center
masinter at law.acast.nova.edu