American Bar Association
Section of State and Local Government LawState and Local Law News
Vol. 24, No. 1, Fall 2000
Supreme Court Watch
Tumultuous Term Closes with Provocative Decisions
By L. Anthony Sutin
As readers of this column know, the Supreme Court’s October 1999 Term was modest in terms of total number of cases on the docket, but disproportionately packed with disputes raising both controversial societal issues and matters of concern to state and local governments. Many of these cases were not resolved until the final weeks of the Term.
Federalism Remains on Center Stage
Most of the cases addressing questions of federalism tended to side with state authority. This was the case in the important decisions continuing the delineation of the outer contours of the Commerce Clause. The Court, in a 5-4 decision, struck down the provision of the Violence Against Women Act (VAWA) creating a federal right of action for women against their abusers. United States v. Morrison and Brzonkala v. Morrison, 68 U.S.L.W. 4351 (May 15, 2000). Courtwatchers eagerly awaited this decision to determine whether the Court’s 1995 Lopez decision, the first decision limiting Congress’ Commerce Clause powers in the modern era, was an aberration. Unlike the Gun-Free School Zone Act, at issue in Lopez was that the VAWA contained detailed findings on the extent and impact of violence against women. Nevertheless, Chief Justice Rehnquist, writing for the majority, concluded that the existence of congressional findings is not sufficient, by itself to sustain the constitutionality of Commerce Clause legislation: "Gender-motivated crimes of violence are not, in any sense of the phrase, economic activity" and the law could not be upheld because of the asserted aggregate effect on interstate commerce:
The Constitution requires a distinction between what is truly national and what is truly local. The regulation and punishment of interstate violence that is not directed at the instrumentalities, channels, or goods involved in interstate commerce has always been the province of the States.
Justice Souter, joined by Justices Stevens, Ginsburg, and Breyer in dissent, wrote that the VAWA provision should be upheld under prior decisions approving Congress’ power to legislate with regard to activity that, in the aggregate, has a substantial effect on interstate commerce. The dissenters felt that the voluminous congressional findings provided a rational basis for such a conclusion.
While the Court has now sent a loud and clear message about the exacting scrutiny that measures on the outer periphery of Commerce Clause powers will face, Congress does retain other avenues to accomplish many of the same ends. Many expect Congress to tie federal funding to substantive regulatory objectives; congressional spending power still receives much wider deference by the Court. Insertion of an explicit interstate jurisdictional element in a statute, such as requiring the affected persons to have crossed state lines in the course of a regulated activity, also is a constitutionally safe course. In the meantime, however, many previously enacted statutes dealing with the environment, controlled substances, and other matters are vulnerable to Lopez/Morrison challenges.
In a unanimous decision addressing interstate commerce issues on nonconstitutional grounds, the Court held that a federal arson law making it a federal crime to "maliciously damag[e] or destro[y], . . . by means of fire or an explosive, any building . . . used in interstate commerce or in any activity affecting interstate or foreign commerce" did not extend to an owner-occupied residence not used for any commercial purpose. The statute was susceptible of two constructions of the words "used" and "activity" and thus the Court adopted the construction that avoided potential Lopez issues. Jones v. United States, 68 U.S.L.W. 4422 (May 22, 2000).
In Vermont Agency of Natural Resources v. United States ex rel. Stevens, 68 U.S.L.W. 4399 (May 22, 2000), the Court decided that the False Claims Act did not authorize qui tam suits to be brought by a private individual against a state or state agency. The Court applied its long-standing interpretive principle that a statute’s use of the noun "person" does not include the sovereign, absent an affirmative showing of statutory intent to the contrary.
The exception was in those cases presenting issues of preemption. My last column discussed the decision in United States v. Locke, concerning the regulation of oil tankers. Subsequently, the Court struck down a Massachusetts law that operated to bar state contracts for companies doing business with Burma. The state law conflicts with Congress’ specific delegation to the president of flexible discretion and is at odds with the president’s intended authority to speak for the United States among the world’s nations on the subject of the improvement of human rights practices in Burma. Crosby v. National Foreign Trade Council, 68 U.S.L.W. 4545 (June 19, 2000). Similarly, federal specifications for federally funded warning devices at railroad crossings were found to preempt state tort actions alleging a failure to maintain adequate warning devices. Norfolk Southern Railway Co. v. Shanklin, 68 U.S.L.W. 4258 (Apr. 17, 2000). Finally, federal law preempted state tort suits premised on the lack of an airbag in vehicles for which federal law gave manufacturers the option to choose among restraint systems. Geier v. American Honda Motor Co., 68 U.S.L.W. 4425 (May 22, 2000).
You WILL Take a Day Off . . .
A vexing issue under the Fair Labor Standards Act (FLSA) was clarified by the Court in Christensen v. Harris County, 68 U.S.L.W. 4343 (May 1, 2000). The FLSA caps the number of compensatory time hours that an employee may accrue and requires the payment of cash compensation for additional overtime hours worked after that cap is reached. The statute also provides in section 207(o)(5) that an employer must honor an employee’s request to use comp time within a "reasonable period" of time following the request, so long as the use of comp time would not "unduly disrupt" the employer’s operations. Harris County, Texas, officials became concerned about the number of hours of comp time being accumulated by deputy sheriffs and feared that it might not be able to pay monetary compensation to employees who exceeded the cap. The county, after consulting with the Department of Labor, implemented a policy under which a supervisor set a maximum number of compensatory hours that may be accumulated. When an employee nears that cap, the employee is asked to take steps to reduce the accumulated comp time. If the employee does not do so voluntarily, the supervisor may order the employee to use the comp time at specified times. As a matter of statutory construction, the Court concluded that section 207(o)(5) imposes a restriction upon an employer’s efforts to prohibit the use of comp time when employees request to do so, but does not restrict an employer’s efforts to require employees to use comp time.
Friday Nights in the Lone Star State Revised . . .
The Court found that a Texas public school district’s policy of allowing high school students to vote on whether to include a student-delivered "invocation" or "message" at football games and, if so, to elect the student to deliver it over the public address system violated the Establishment Clause of the First Amendment. Santa Fe Independent School District v. Doe, 68 U.S.L.W. 4525 (June 19, 2000). The Court concluded that these messages constitute impermissible school sponsorship of a religious message, sending to members of the audience who are non-adherents the message "that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community" (quoting Lynch v. Donnelly, 465 U.S. at 688 (1984) (O’Connor, J., concurring). The Court reaffirmed, however, that "nothing in the Constitution as interpreted by this Court prohibits any public school student from voluntarily praying at any time before, during, or after the school day."
In another Establishment Clause case, the Court continued its incremental resculpting of the body of law governing public support of private and parochial schools. Mitchell v. Helms, 68 U.S.L.W. 4668 (June 28, 2000). The Court upheld Chapter 2 of the Education Consolidation and Improvement Act of 1981, which authorizes the distribution of federal funds to state and local educational agencies, which in turn acquire textbooks, library and other media materials, computers and software, and other resources and then lend these materials to public and nonprofit private schools. The Court regarded Chapter 2 as a neutral program, allocated to schools based upon the private enrollment choices of parents.
L. Anthony Sutin is the Dean of the Appalachian School of Law, Grundy, Virginia.
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