States Rights' vs. Civil Rights

If anyone unequivocally supported the Supreme Court's recent "federalism" jurisprudence, you'd think it'd be the states. After all, the Supreme Court inevitably invokes the "dignity interest" of the states as justification for its rulings limiting federal constitutional authority. That is what makes the brief filed by the State of New York and five other states in Nevada Department of Human Resources v. Hibbs, No. 01-1368, so interesting. The states argued that it was critical that states be held liable under the Family and Medical Leave Act in order to advance important objectives served by federal law.

FMLA was passed by Congress in 1993. Under the "family medical care provision" of FMLA, all workers, no matter of gender, are entitled to twelve weeks maximum per year of unpaid leave for a family emergency. Williams Hibbs, a Nevada state social worker, has sued Nevada for being denied the full twelve weeks to care for his ill wife, and then fired.

This case is significant because it represents the immense effort by some Justices to scale back the broad power of the federal government when the Justices view those powers as an intrusion upon state and local authority. The one question that was central to the oral argument heard Jan. 15, 2003 was whether Congress acted within its constitutional power when it applied the FMLA to the states, and authorized state employees to sue states for damages when the state violated the FMLA. What remains to be seen is whether the court will shift from its recent rulings -- the court has held that Congress does not have the power to protect state employees against age discrimination under the Age Discrimination in Employment Act, or against disability discrimination with the Americans With Disabilities Act.

We might well have to wait until June to see what the court decides. As Professor Robert C. Post of the University of California at Berkeley said: "Nothing could be more symbolic of this court's hostility to civil rights than to strip these laws of their constitutional resonance."