The State of the Nation, Not the State of the Record: Finding Problems with Judicial 'Review' of Eleventh Amendment Abrogation Legislation

Abstract

This Article attacks the Supreme Court’s recent requirement that in order to abrogate Eleventh Amendment immunity, Congress must physically document massive findings of widespread constitutional violations, to be scrutinized by the Court. By forcing a judicial fact-finding procedure on Congress, and then conducting its own substantive “strict scrutiny” of those findings, the Supreme Court has overstepped the express bounds set two hundred years ago in Marbury v. Madison by performing a legislative — as opposed to a judicial — function. And despite upholding congressional abrogation of the Eleventh Amendment for the first time in over a decade, the Supreme Court’s 2003 decision in Nevada Department of Human Resources v. Hibbs only perpetuated the problem. This recent aggrandizement of judicial review and venture into the procedural prerogative of a coequal branch raises serious separation of powers concerns. The result is precedential, constitutional, and institutional catastrophe that, in time, will do more harm than good for future courts, legislators, and a constitutional governing system of coequal departments.

Using Eleventh Amendment abrogation jurisprudence as an analytical baseline, this Article urges the Supreme Court to recognize that Congress is not a court and that the Court is not Congress’s taskmaster. By virtue of Fourteenth Amendment jurisprudence and legislation, the history and practicalities of federal lawmaking, and by the proper scope of judicial review, I contend that the power to make law pursuant to the assessment of national concerns and societal conditions has been properly bequeathed to Congress, not the courts. Likewise, Congress’s power to do so has, will, and should extend beyond the state of the legislative record. This Article calls for a wholesale reversal of all Eleventh Amendment abrogation case law to the contrary. In its place, the Supreme Court should reinstate its Seminole Tribe v. Florida abrogation analysis, which, by narrowing the dispositive inquiry to two questions, properly heeded the sovereign immunity lessons of pre-ratification history while simultaneously elucidating the practical (and temporal) distinctions between congressional authority under Article I and congressional power under Section Five of the Fourteenth Amendment. In its most basic form, this abrogation schematic properly pinpoints Congress’s power to act, and recognizes that the province and duty of the Judiciary is to say what the law is, not how to make the law.