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COPYRIGHT 2000 Harvard Society for Law and Public Policy, Inc.
I. INTRODUCTION
The 1998 Supreme Court Term was relatively unremarkable(1) until a final day blitz in which the Court announced the Alden Trilogy, named for Alden v. Maine,(2) the lead case in a trio of federalism cases. Decided by identical 5-4 votes, these cases immunize state governments from citizen damage suits alleging a violation of federal rights. Alden v. Maine shields states from such private damage actions brought in state court.(3) Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank (College Savings Bank I), provides states immunity from patent infringement suits brought in federal court.(4) Similarly, College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board (College Savings Bank II) insulates states from private damage actions brought in federal court alleging unfair competition under the federal trademark law.(5)
This "Tuesday Trilogy"(6) declared portions of three federal statutes unconstitutional,(7) overturned one thirty-five-year-old decision of the Court,(8) reversed the outcome in another,(9) and precipitated a forty-five-minute "scene of extraordinary drama"(10) at the Court the morning the cases were announced from the bench. Each Justice who wrote a majority opinion read excerpts from it, as did the authors of the various dissenting opinions. Several Justices digressed from text during their oral presentations.(11) As one account put it, the exchange was "[n]ot exactly a street brawl episode of `The Jerry Springer Show,' but this was about as close to high drama as it gets in the distinguished, white-columned building that most Americans equate with the essence of justice."(12) Another report observed that "[t]he rhetorical volleys ... held the audience of tourists and government lawyers spellbound."(13) The opinions' strident(14) and sometimes sarcastic(15) language revealed a deep division within the Court as the two sides attempted to describe their irreconcilable understanding of the founding generation's intent regarding state sovereign immunity.
The general media appraisal of the Alden Trilogy has emphasized two themes: the interpretive process used by the Court and the political power redistribution the Trilogy achieved. Opponents, primarily, cite process. They lament the absence of textual support in the majority's opinion(16) or criticize the majority's historical understanding.(17) Regarding the Trilogy's redistribution of political power between the federal and state governments, the Trilogy has received strong praise from those who delight in the states' new-found freedom from federal control that these cases seem to provide.(18) Others object to what they perceive as an untoward judicial activism manifested in these cases,(19) particularly what opponents conclude is an arrogant disregard for Congress and the majority rule foundations of our constitutional system.(20)
In this Article, I discuss the Trilogy's interpretive process and its redistribution of political power, but do not linger on either. This Article is written in praise of the Alden Trilogy, but praise coupled with protest. I make three essential points. First, the Trilogy deserves praise as a pragmatic masterpiece. Through it, the Court shrewdly avoided a constitutional quagmire that easily could have created a federalism crisis.
Second, I argue that the Alden Trilogy is an exemplar of misdirection. Here I render reluctant praise, like that given to an opposing baseball team's dramatic double-play. Though one dislikes the outcome, one cannot deny the skill just witnessed. In this regard, I show that through its deft deployment of state sovereign immunity doctrine, the Supreme Court has enhanced its own power as well as that of the federal Executive Branch -- to the detriment of Congress's lawmaking power. Moreover, although the Trilogy focuses on Congress's remedial authority, it thwarts Congress's substantive lawmaking capacity.
Third, I show that the Trilogy has a dark side. Today, no individual can bring a damage action in any court against an unconsenting state to enforce federal statutory rights enacted pursuant to Congress's Article I powers.(21) This situation creates a profoundly disquieting enforcement gap that threatens to undermine the rule of law values in our constitutional scheme, particularly the principle that for every right there ought to be a remedy.
To situate this Article's praise and protest of the Alden Trilogy doctrinally, I begin with an abridged summary of the federalism developments of the past several decades, developments that preordained the confrontation that resulted in the Trilogy. Next, I describe the holdings of each Trilogy case, including the interpretive frameworks adopted, and identify unresolved issues generated by these holdings. I then turn to my principal undertaking: consideration of 1) how the Trilogy pragmatically avoided a constitutional crisis; 2) how the three cases masterfully invite attention in one direction while moving the law in another; and 3) how these cases raise rule of law concerns by creating a disjunction between Congress's substantive and remedial authority.
II. THE NEW FEDERALISM -- A CREATURE OF THE 1990S
Even though the story has been reported widely, it is worth pausing to review the major developments that led to the decisions in the Alden Trilogy. In 1971, in Younger v. Harris,(22) the Burger Court reinvigorated the states' rights values in the Constitution when it denied a request to enjoin a pending state court criminal proceeding, notwithstanding the federal plaintiffs' allegation that the underlying state criminal statute was facially unconstitutional. Justice Black, writing for the majority in Younger, rejected the unarticulated assumption of these requests for injunctive relief: that state courts will not be as prone as federal courts to vindicate constitutional rights promptly and effectively. That assumption, he argued, is disrespectful of the states and disruptive of "Our Federalism," described as the conviction that "the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways."(23)
By 1976, the Court's composition had changed sufficiently to apply this new federalism in a most dramatic way. Overruling precedent,(24) the Court decided National League of Cities v. Usery,(25) holding that Congress lacked authority to impose the requirements of the Fair Labor Standards Act (FLSA)(26) on state and local governments. As Justice Powell later explained this development, "federal overreaching under the Commerce Clause undermines the constitutionally mandated balance of power between the states and the federal government, a balance designed to protect our fundamental liberties."(27) The National League of Cities doctrine developed into a complex weighing of the respective interests of the states and the federal government.(28) The Court balanced the cost of exempting states from the reach of federal law(29) against the injury done to the states if forced to comply with federal enactments.(30) A key consideration became whether "the States' compliance with the federal law would directly impair their ability `to structure integral operations in areas of traditional governmental functions."(31)
In San Antonio Metropolitan Transit Authority v. Garcia,(32) decided in 1985, the Court again changed course, reversing National League of Cities. A 5-4 majority concluded that National League of Cities and its progeny were unsound in principle and unworkable in practice. The majority reasoned that the "safeguards inherent in the structure of the federal system" adequately protect states' interests.(33) Writing for the dissent in Garcia, Justice Powell rejected the proposition that federal political officials, invoking the commerce power, could be trusted to be the arbiters of the structural limitations on their authority.(34) Justice Kennedy subsequently sounded that same battle cry, most notably in his concurring opinion in United States v. Lopez.(35) The national political process, he argued, inherently is unreliable as a source of protection of the states' sovereignty interest.(36) In a short dissent in Garcia, Justice Rehnquist protested that the majority had rejected a salutary principle "that will, I am confident, in time again command the support of a majority of this Court."(37)
Chief Justice Rehnquist's prediction has begun to come to fruition. Garcia has not been reversed explicitly, but the years subsequent to Garcia have witnessed increased reliance on a federalist interpretive framework in the Court's decisions. Richard Fallon's exquisite treatment of the subject explains that under the regime of this framework, "states emerge as sovereign entities against which federal courts should exercise only limited powers, and state courts, which are presumed as fair and competent as federal courts, stand as the ultimate guarantors of constitutional rights."(38) This effort to reorient constitutional law has manifested itself widely(39) but no more profoundly than in the law of state judicial immunity.
Literally read, the Eleventh Amendment(40) strips federal courts of Article III diversity jurisdiction when a state is a defendant.(41) It does not speak to federal question jurisdiction. For at least one hundred years, however, the Court has held that states' protections against federal jurisdiction is much broader than the mere text of the Eleventh Amendment. Since Hans v. Louisiana.(42) the Court has "reaffirmed that federal jurisdiction over suits against unconsenting States `was not contemplated by the Constitution when establishing the judicial review power of the United States.'"(43) Accordingly, the Eleventh Amendment bars federal courts from hearing, among other things, cases against a state brought by one of its own citizens asserting a federal right.(44)
A minority on the Court mounted a determined, but ultimately unsuccessful, campaign during a short period in the mid-1980s to return the Eleventh Amendment more closely to its textual groundings.(45) This effort coincided with an extensive body of legal scholarship concluding that Hans had been decided incorrectly.(46) The arguments opposing Hans metamorphosed several times, eventually emerging as three approaches:(47) the literal,(48) the diversity,(49) and the abrogation models.(50)
Opposition to Hans never gained majority support at the Court.(51) However, in Pennsylvania v. Union Gas Co.(52) a majority held that Congress possesses authority to abrogate state sovereign immunity from suit in federal court through exercise of the Commerce Power.(53) To the extent this abrogation power is extended to other Article I powers, states would be subject to private damage suit in federal court on federal claims virtually whenever Congress so determined. This would effectively end the Hans era.(54) In 1996, the Court overruled Union Gas in Seminole Tribe v. Florida.(55) In Seminole Tribe, the Court held that state sovereign immunity from suit in federal court is a constitutional, not common law, immunity, which is beyond the reach of Congress's abrogation authority through exercise of its Article I powers.(56)
Seminole Tribe thus created a gap between Congress's substantive and remedial authority.(57) The search to preserve state accountability to federal law in the face of the remedial limits Seminole Tribe imposes soon concentrated on seven alternatives: (1) consent;(58) (2) suit against units of local government;(59) (3) suit by the federal government;(60) (4) prospective relief;(61) (5) damage actions against state officers;(62) (6) enforcement of Section 5-based legislation;(63) (7) suit in state court;(64)
The Alden Trilogy addressed the last two alternatives: suits against a state in state court to enforce federal rights and abrogation of state sovereign immunity from suit in federal court through Congress's exercise of power under Section 5 of the Fourteenth Amendment. The Alden Trilogy is important because it eliminated the first and substantially restricted the second.(65)
III. THE ALDEN TRILOGY: THE HOLDINGS, INTERPRETIVE FRAMEWORKS, AND UNRESOLVED QUESTIONS
A. Alden v. Maine: A State's Sovereign Immunity in Its Own Courts
Until quite recently, federal courts scholars did not concentrate on the question of Congress's power to require state courts to hear federal claims against state governments.(66) Before Seminole Tribe in 1996, it seemed Congress could abrogate state sovereign immunity in federal court through exercise of its Article I powers, so there seemed no pressing need to consider state courts as alternative forums.(67) Secondly, there seemed to be little reason to explore the availability of state courts to enforce federal rights because federal courts seemed preferable.(68) Accordingly, few scholars paid heed to the tantalizing dicta in several Supreme Court decisions, predating Alden, suggesting that a state could not be sued in its own courts to enforce federal rights without its consent.(69)
In 1997, Professor Carlos Manuel Vazquez published an important article that brought the question to the forefront of academic inquiry.(70) He carefully traced the Court's Eleventh Amendment jurisprudence and concluded that the Supreme Court seemed poised to interpret state sovereign immunity as immunity from nonconsensual suit on federal causes of action not only in federal court, but also in a state's own court.(71) Vazquez's argument relied, in part, on dicta in Seminole Tribe(72) and in Hess v. Port Authority Trans-Hudson Corp.(73) His view ran contrary to conventional wisdom,(74) and the conclusions in his article were disputed.(75)
It is understandable that one might entertain serious reservations about accepting that state judicial immunity entails immunity from liability in private damage actions on federal claims in either federal or state court.(76) First, the language of the Eleventh Amendment refers only to federal judicial authority and the Court often has made plain that the Eleventh Amendment only applies to federal courts.(77) Moreover, lower federal courts had assumed that even when federal courts are not available to hear certain federal claims against a state, plaintiff may seek redress in state court.(78) In addition, many state courts agreed that they must hear federal claims against state government,(79) although others disagreed.(80) Finally, one might be forgiven for insisting that immunizing states from private damage claims in any court when federal law provides for such a damage remedy poses the troubling rule of law concern that Congress is being permitted to create federal rights that are illusory.(81)
Supreme Court precedent did not provide reliable guidance regarding whether state sovereign immunity included immunity from suit in its own courts on federal claims. The precise issue had never been litigated in the Court, but two cases seemed apposite: Hilton v. South Carolina Public Railways Commission(82) and Howlett v. Rose.(83) A close review shows that neither is controlling or particularly compelling.
In Hilton, the Court reversed a state court's refusal to provide a forum to adjudicate a damage claim brought against a state-operated railway pursuant to the Federal Employers' Liability Act (FELA).(84) The Supreme Court had previously held that federal courts were not required to provide a forum for FELA actions, because Congress had not adequately manifested an intent to provide a federal court forum for FELA actions.(85) The South Carolina supreme court extended this precedent to state courts. The Supreme Court in Hilton concluded that the question before it was "a pure question of statutory construction."(86) The Court held Congress did intend such causes of action, notwithstanding the asymmetrical result such a conclusion creates.(87) Hilton did not address a state's constitutional duty to provide a forum.(88)
Howlett speaks to a general constitutional duty of state courts to adjudicate federal claims(89) but, like Hilton, is wide of the mark. In Howlett, the plaintiff brought a [sections] 1983(90) action in state court against a school board. The state court dismissed the action. The state court explained that [sections] 1983 suits brought in federal court can be maintained only against "persons," and that a government entity that has sovereign immunity from suit in federal court is not a "person" within the meaning of [section] 1983. The court acknowledged that determination of whether a government entity has sovereign immunity from suit in federal court is a question of federal law. However, the state court held that when [sections] 1983 suits are brought in state court, the relevant inquiry is whether the state has waived its sovereign immunity to suit under [sections] 1983 as a matter of state common law. Because the state court held that Florida had not so waived its sovereign immunity, the court determined that it had no need to reach the issue of whether school boards are "persons" under [sections] 1983.(91)
The Supreme Court reversed. Writing for the Court, Justice Stevens stated that the issue was "whether a state law defense of `sovereign immunity' is available to a school board otherwise subject to suit in a Florida court even though such a defense would not be available if the action had been brought in a federal forum."(92) The majority opinion explained that because municipalities, counties, and school districts do not enjoy Eleventh Amendment immunity when sued in federal court, they are "persons" subject to suit under [sections] 1983.(93) Thus the Howlett suit could have been brought in federal court. Therefore, "[t]o the extent that the Florida law of sovereign immunity reflects a substantive disagreement with the extent to which governmental entities [subject to suit in federal court] should be held liable for their constitutional violations [in state court], that disagreement cannot override the dictates of federal law."(94)
The Court also rejected Florida's alternative argument that Congress cannot require state courts to hear cases that the state law of sovereign immunity excludes from their jurisdiction. Because the Supremacy Clause makes federal law the law in each of the states, and because state courts are bound by the Constitution and laws of the United States made to conform to the Constitution, state courts have a responsibility to enforce federal law "in the absence of a valid excuse.(95) Discrimination against federal law is not a valid excuse.(96) The key is whether state courts enforce the "same types of claims" arising under state law(97) because it also is clear that state courts may enforce "a neutral state rule regarding the administration of the courts."(98) The Court found that Florida courts may not refuse to hear [sections] 1983 claims against a school board because Florida courts are courts of general jurisdiction with authority to hear private damage claims and enter judgment against school boards under a wide variety of state causes of action, including matters of the type presented in [sections] 1983 litigation.(99)
Howlett thus addressed a state's duty to open its courts to federal claims that also could be brought in federal court. The case was silent regarding the state's duty to open its courts to claims that constitutionally may not be brought in federal court. That was the issue litigated in Alden v. Maine.
In Alden, a group of state probation officers filed an FLSA overtime claim against the State in state court after a federal court had dismissed the identical claim following the Supreme Court's decision in Seminole Tribe.(100) The Maine Supreme Judicial Court affirmed the state trial court's dismissal of the action.(101) The United States Supreme Court affirmed, holding that "the powers delegated to Congress under Article I of the United States Constitution do not include the power to subject nonconsenting States to private suits for damages in state court."(102) Writing for the majority, Justice Kennedy argued that the concept of Eleventh Amendment sovereign immunity is "something of a misnomer" because "sovereign immunity of the States neither derives from nor is limited by the terms of the Eleventh Amendment."(103) It derives instead from the history and structure of the Constitution.
With respect to history, the majority concluded that the Constitution's intent, as confirmed by the Tenth Amendment, is that the states are to play a vital governing role through their status as sovereign entities(104) and are to be accorded the "dignity and essential attributes inhering in [sovereign] status."(105) Justice Kennedy then argued that prior to the Constitution's ratification, immunity from suit was considered a fundamental aspect of sovereignty,(106) and the Constitution was intended to preserve such state sovereign immunity from suit. This immunity, the majority concluded, is evidenced from the ratification debates,(107) the reaction to Chisholm v. Georgia,(108) the Eleventh Amendment's ratification debates,(109) and the Court's own precedent.(110)
The majority opinion took refuge in the Framers' silence on the issue of constitutionalizing a state's immunity from suit in its own court, concluding that:
[s]ilence is best explained by the simple fact that no one, not even the Constitution's most ardent opponents, suggested the document might strip the States of the immunity [from suit in their own courts].... [Silence] suggests the sovereign's right to assert immunity from suit in its own courts was a principle so well established that no one conceived it would be altered by the new Constitution.(111)
In addition, the Court found neither the Supremacy Clause(112) nor the Necessary and Proper Clause(113) an impediment to its conclusions. The Court dismissed the former as circular,(114) and considered the latter trumped by the implicit principles of sovereign immunity built into the Constitution.(115)
The Kennedy majority opinion also drew support from the Constitution's structure. The opinion reasoned that finding congressional power to abrogate a state's sovereign immunity from suit in its own courts imposes an indignity on the States and an anomaly in the law. As the Court stated,
Private suits against nonconsenting States... present "the indignity of subjecting a State to the coercive process of judicial tribunals at the instance of private parties," ... regardless of the forum. [A] state ... must face the prospect of being thrust, by federal fiat and against its will, into the disfavored status of a debtor, subject to the power of private citizens to levy on its treasury ....(116)
This single observation introduces the four main structural themes that animate the Alden decision.(117)
The first is autonomy. State autonomy suffers when states must answer for breaches of federal law in federal court, the majority reasoned, but not so much as when states loose immunity in their own courts. This is because a state's own courts have "always been understood to be within the sole control of the sovereign itself."(118) The Court added that permitting the federal government to force states to hear federal damage claims against the state in the state's own courts would place the federal government in a position to "press a State's own courts into federal service to coerce the other branches of the State [and ultimately] to turn the State against itself...."(119)
The second theme is fiscal stability. Being placed in the "disfavored status of a debtor," the majority opinion argues, could "threaten [the] financial integrity [of the States]."(120) This was true at the founding, and
[e]ven today an unlimited congressional power to authorize suits in state court to levy upon the treasuries of the States for compensatory damages, attorney's fees, and even punitive damages could create staggering burdens, giving Congress a power and a leverage over the States that ... would pose a severe and notorious danger to the States and their resources.(121)
The third theme is the anomaly of the "national government ... wield[ing] greater power in the state courts than in its own judicial instrumentalities."(122) The Court previously had noted the anomaly concerns,(123) as had some state courts.(124) It would be an "unprecedented step," the majority in Alden argued, to infer from the state courts' obligation to enforce federal law that "Congress's authority to pursue federal objectives through state judiciaries exceeds not only its power to press other branches of the State into its service but even its control over the federal courts themselves."(125)
The final theme is the "`unanticipated intervention [of individuals] in the processes of government.'"(126) The majority opinion reiterates this apprehension. Drafting a state's courts to enforce federal obligations of the State government could "ultimately ... commandeer the entire political machinery of the State against its will and at the behest of individuals."(127) "When the States' immunity from private suits is disregarded, `the course of their public policy and the administration of their public affairs' may become `subject to and controlled by the mandates of judicial tribunals without their consent, and in favor of individual interests.'"(128) This, the court concluded, sacrifices political accountability.(129) Democratic governance requires that these judgments be made through each state's political process, not by "judicial decrees mandated by the Federal Government and invoked by the private citizen."(130) The Court juxtaposed a suit brought by the United States. These suits "require the exercise of political responsibility for each suit prosecuted against a State, a control which is absent from a broad delegation to private persons to sue nonconsenting states."(131)
The Court rejected the suggestion that it was adding any of its own preferences into the analysis through these conclusions. All of this, the majority argued, arises from nothing more than respecting "what the Framers and those who ratified the Constitution sought to accomplish when they created a federal system."(132)
The dissent answered the majority's arguments by insisting that the majority decision was based on false historical claims, underinclusive selection of historical data, and an erroneous structural analysis. Specifically, the dissent argued: first, that "[t]here is no evidence that the Tenth Amendment constitutionalized a concept of sovereign immunity as inherent in the notion of statehood;"(133) second, that there is "no evidence that any concept of inherent sovereign immunity was understood historically to apply when the sovereign sued was not the font of the law" under which the suit was brought;(134) third, that there is no evidence that the structure of the constitution anticipated a unique "scheme of American federalism" that immunizes the States from individual damage actions in any court on federal claims;(135) and 4) that the majority's concept of federalism "ignores the accepted authority of Congress to bind States under [Article I powers] and to provide for enforcement of federal rights in state court."(136)
In short, while each side drew from the historical record, past practice, and structural concepts to provide it debating points, these arguments were indeterminate.(137) One might fairly argue that the most valid understanding of the interpretive process deployed in Alden is that a majority of the Court preferred state autonomy, fiscal predictability, and political accountability, and disapproved of individuals' ability to influence the course of government through litigation.(138)
B. College Savings Bank I and II: Circumscribing Congress's Section 5 Power
The two College Savings Bank cases represent another installment of the doctrinal shift over the past five years limiting Congress's authority under Section 5 of the Fourteenth Amendment.(139) Previously, in Fitzpatrick v. Bitzer,(140) the Court had held that Section 5 of the Fourteenth Amendment authorizes Congress to abrogate States's immunity from suit in federal court.(141) Seminole Tribe added the requirement that a reviewing court must determine whether Congress "`unequivocally expresse[d] its intent to abrogate the immunity' [and whether Congress acted] `pursuant to a valid exercise of power.'"(142) Thus in every case, the plaintiff asserting that Congress has abrogated state judicial immunity through the exercise of Section 5 authority must establish that the exercise of power was valid in the circumstances. This task was made more arduous by the Court's 1997 holding in City of Boerne v. Flores.(143)
In Boerne, the Court held that Congress lacked Section 5 authority to enact the Religious Freedom Restoration Act of 1993 (RFRA).(144) RFRA imposed greater restrictions on state and local interference with religious freedom than the Fourteenth Amendment requires.(145) The case focused on the scope of Congress's Section 5 power to "enforce" the provisions of the Fourteenth Amendment. On the one hand, "Congress has [no] power to decree the substance of the Fourteenth Amendment's restrictions on the States. Legislation which alters the meaning of the Free Exercise Clause cannot be said to be enforcing the Clause."(146) On the other hand, "[l]egislation which deters or remedies constitutional violations can fall within the sweep of Congress' enforcement power even if in the process it prohibits conduct which is not itself unconstitutional and intrudes into `legislative spheres of authority previously reserved to the States.'"(147)
The Court concluded that "RFRA cannot be considered remedial, preventative legislation, if those terms are to have any meaning."(148) In so holding, the Court introduced what has come to be referred to as the "congruence and proportionality" test. "There must be congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end. Lacking such a connection, legislation may become substantive in operation and effect."(149) At a minimum, this test requires a demonstration that the true aim of federal legislation enacted pursuant to the Section 5 power is the elimination of state action that the Supreme Court is prepared to conclude is unconstitutional.(150)
Federal civil rights legislation made applicable to the states has been upheld in the lower courts against state challenges to Congress's Section 5 power. This is true of the Americans with Disabilities Act (ADA),(151) Title VII of the Civil Rights Act of 1964,(152) and other legislation prohibiting discrimination? That could change as courts more clearly understand the demands of the Boerne test.(154) The Section 5 power is unavailable to enact business legislation, such as copyright, trademark, and patent legislation, because no fair case can be made that the aim of such legislation is enforcement of the equal protection of the laws.(155)
However, because patent, trademark, copyright, and perhaps other categories of federal law create species of property, a fair question is whether state infringement of these property rights constitutes a deprivation of property without due process that Congress can remedy through its Section 5 power. This was the plaintiff's theory in the two actions adjudicated in federal district court in College Savings Bank I and II.
In 1994, College Savings Bank brought two separate actions against the Florida Prepaid Postsecondary Education Expense Board, an entity the parties agreed was an arm of the state of Florida.(156) One action alleged patent infringement(157) and the other alleged false advertising under the trademark laws.(158) After Seminole Tribe, federal jurisdiction in these cases depended upon College Savings Bank being able to demonstrate that Congress possesses Section 5 authority to enact the federal rights advanced in these two cases. College Savings Bank argued that the federal rights it asserted were valid exercises of Congress's Section 5 power because each right was designed to secure the Fourteenth Amendment's protections against deprivations of property without due process of law.(159) The district court agreed with respect to the patent infringement claim(160) but not the false advertising claim,(161) and the Third Circuit affirmed.(162)
The Supreme Court rejected the due process theories in both cases. In College Savings Bank I, Chief Justice Rehnquist, writing for the majority, acknowledged that patents are property subject to the protection of the Due Process Clause.(163) But, the majority held that the federal patent laws could not be viewed as remedial or preventive legislation aimed at securing the protections of the patent owner's due process rights. First, the legislative record contained no evidence of any pattern of patent infringement by state governments, undermining the "proposition that Congress sought to remedy a Fourteenth Amendment violation by enacting the [patent laws]."(164) Second, a due process violation consists of a deprivation without due process of law, not just a deprivation. A state's patent infringement thus violates due process "only where the State provides no remedy, or only inadequate remedies, to injured patent owners for its infringement of their patent...."(165) The legislative history, the Court observed, indicated that "Congress ... barely considered the availability of state remedies for patent infringement...."(166) Finally, the patent laws define infringement to include both intentional and unintentional conduct, but the Fourteenth Amendment concept of deprivation of property does not include negligent acts.(167) Yet, "Congress did not focus on instances of intentional or reckless infringement on the part of the States" when it extended the patent laws to them,(168) providing further evidence that Congress's aim in enacting the patent laws was not to address unconstitutional conduct.(169) "The statute's apparent ... aims were to provide a uniform remedy for patent infringement and to place States on the same footing as private parties under that regime."(170) While these may be proper Article I goals, the majority argued, they do not provide Congress Section 5 authority.(171)
College Savings Bank II(172) never reached the Section 5 analysis required by Boerne. The Court rejected the claim that the false advertising provisions of the Trademark Act of 1946 (Lanham Act) enforced the requirements of Due Process because it held that the right not to be victimized by false advertising is not a property right. "The hallmark of a protected property interest is the right to exclude others."(173) While provisions dealing with infringements of trademarks may protect constitutionally cognizable property interests, "[t]he Lanham Act's false-advertising provisions ... bear no relationship to any right to exclude."(174)
Nor can participation in the interstate commerce of administering a tuition prepayment program be deemed a waiver of a state's judicial immunity, according to the Court. College Savings Bank had argued that if Congress makes clear that a state will be subject to suit in federal court if it engages in conduct governed by a particular federal statute, and if the state voluntarily elects to engage in that conduct, it should be deemed to have waived its judicial immunity.(175) The majority rejected constructive waiver of sovereign immunity as a permissible constitutional principle. First, "there is little reason to assume actual consent based upon the State's mere presence in a field subject to congressional regulation,"(176) and second, "[r]ecognizing a congressional power to exact constructive waivers of sovereign immunity through the exercise of Article I powers would ... as a practical matter, permit Congress to circumvent the antiabrogation holding of Seminole Tribe."(177)
IV. THE ALDEN TRILOGY AS A MASTERPIECE OF PRAGMATISM
By deciding the Alden Trilogy as it did, the Supreme Court astutely avoided many thorny constitutional issues whose resolution would necessitate a considerable investment of judicial effort and create an appreciable risk of federal-state conflict. The decision in Alden demonstrates the point well.
As the majority argued, a contrary result in Alden would have created the anomaly of the "national government ... wield[ing] greater power in the state courts than in its own judicial instrumentalities."(178) Such a strategy to enforce federal statutory rights is problematic. First, one reasonably could expect that many state officials would consider federal commandeering of a state's own courts a greater intrusion on state sovereignty than compelling states to appear before federal courts. A certain degree of resistance to such commandeering is plausible. How would the federal government force an unwilling state court to hear private damage claims against the state? It is not exactly like ordering in riot-trained units of the 101st Airborne Division to desegregate Central High School in Little Rock, Arkansas, contrary to the wishes of Arkansas Governor Orval Faubus. If Federal Executive Branch coercion were an unrealistic option, then the federal judiciary would need to perform the task, although it would undermine the Seminole Tribe majority's commitment to federal judicial abstention, to say nothing of the awkwardness of a federal judge placing a state court under a mandatory federal injunction to hear a case it refuses to hear.
Even though outright revolt by the states is remote, the possibility of bias and procedural unfairness in state court proceedings certainly is not.(179) Once state courts become the exclusive repository of judicial authority to enforce federal rights through private damage claims against the states, the federal government necessarily must guarantee the integrity of these state courts. From the point of view of the Alden majority, such a federal oversight function would seem structurally undesirable and institutionally unworkable. Claims of bias and procedural unfairness by the state courts would find their way to the Supreme Court through appeals to the Court from adverse state court decisions.(180) The Supreme Court would become the exclusive source of federal judicial review of state court compliance.(181) This role soon could overwhelm its docket, would require the fashioning of a myriad of compliance rules, and easily could subject the Court to criticism, both from the state governments and court systems being monitored and from dissatisfied claimants. The Alden Trilogy nicely avoids all of these problems.
Beyond difficulties stemming from recalcitrance, a contrary result in Alden would have required the Supreme Court to address some stubborn procedural issues. As Martin Redish and Steven Sklaver have noted, "a natural question that arises concerns the extent to which state courts, in adjudicating federal claims, should be required to employ federal procedures."(182) This "converse Erie" problem(183) has received little attention from the Court.(184) Dice v. Akron, Canton Youngstown Railroad(185) strongly suggests that state courts must comply if Congress provides that particular procedures be employed in litigation of federal claims in state court.(186) A more nettlesome -- and more likely -- problem arises when congressional intent is unclear regarding the rules of procedure to be employed. Current Court precedent provides no clear answer.(187) In Johnson v. Fankell(188) a state obligation to provide an interlocutory appeal upon denial of immunity in a [sections] 1983 action was decided in favor of the state because the denial of interlocutory appeal was not "outcome determinative."(189) In Felder v. Casey,(190) a state was required to abandon its notice of claim rule, which shortened the normal statute of limitations in [sections] 1983 actions, because the requirement "burdens the exercise of the federal right" contrary to the "compensatory aims of federal civil rights law."(191) In Dice, the Court applied "some form of systemic balancing approach to the converse-Erie question."(192)
The Supreme Court's cobbling together of ad hoc results is questionable federalism policy even when virtually all federal claims are brought to federal court. It is wholly unworkable in the Seminole Tribe era. Had Alden been decided differently, state courts would have experienced an abundant influx of private damage actions to enforce federal rights against the state. The inevitable result would have been an increased demand on the Supreme Court to mediate the fairness of local procedural rules at a time when the Court's precedent is somewhat chaotic. This is no-win work for the Court. Either the Court imposes federal procedural rules on discontented state court judges and officials or it abandons plaintiffs to the vicissitudes and burdens of local rules. The Alden decision liberated the Court from this trap.
Perhaps the most prickly problem avoided by denying Congress the authority to abrogate state sovereign immunity in a state's own courts was the problem of developing a jurisprudence of valid excuse. One may recall that in Howlett v. Rose,(193) the Court reiterated the oft-cited rule that because federal law is the law in each of the states and because state courts are bound to enforce it in conformance with the Constitution, state courts have a responsibility to enforce federal law "in the absence of `valid excuse.'"(194) While...
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