Coeur d'Alene, Federal Courts and the Supremacy of Federal Law: The Competing Paradigms of Chief Justices Marshall and Rehnquist
Jackson, Vicki C., Constitutional Commentary
In a decade that is witnessing a resurgence of law's development and application to government entities around the world, in newly emerging democracies and in multi-national organizations like the European Union, the United States Supreme Court has moved away from the "political axiom" that the judicial power be co-extensive with the legislative.(1) In two recent cases the Court refused to uphold the jurisdiction of the lower federal courts to enforce federal law as against the states of the Union or their officers.(2) It is a puzzling phenomenon. Perhaps it is explainable as merely an expected swing in the cycle of more or less nationalist views of the judicial power described by Richard Fallon,(3) or perhaps it should be seen as part of a broader discomfort by a five justice majority with what it sees as an expanding and difficult-to-limit federal power.(4) While the reasons may be obscure, the trend towards limitation of the ability of the federal courts to hear federal claims against states and their officers is apparent.
Idaho v. Coeur d'Alene Tribe of Idaho,(5) holding that a federal court lacked jurisdiction over a suit for equitable relief against state officers claimed to be interfering with tribal rights to lands under a river in Idaho, marks the second time in two Terms that the Court has found that the lower federal courts lack jurisdiction to decide claims based on federal law, simply because the defendants were state officials. Even for those without an interest in the underlying dispute, Coeur d'Alene would be worth at least a brief reflection in light of the case it follows.
In 1996 the Court in Seminole Tribe v. Florida(6) held that the Eleventh Amendment stood for a principle of constitutional immunity of states from suits in federal courts, prohibiting Congress from authorizing private suits against states in federal courts to vindicate federal laws enacted pursuant to its Article I powers, such as the Commerce Clause, the Indian Commerce Clause, and, presumably, the Copyright and Bankruptcy Clauses as well. In so holding, the Court reversed the contrary conclusion it had reached only eight years earlier in Union Gas v. Pennsylvania.(7) The Union Gas holding that Congress did have power to authorize suits against states in federal courts was foreshadowed in the 1964 decision in Parden v. Terminal Railway.(8) Union Gas, however, was overruled by Seminole Tribe.
In the more than thirty years between Parden and Seminole Tribe, Congress extended a variety of federal statutes to the states, including minimum wage laws, anti-discrimination laws, environmental laws, bankruptcy, and copyright laws.(9) Many of these statutes included remedial and jurisdictional provisions that, read in the ordinary way, would appear to have authorized suits against states in federal courts. Once the Court began, in the 1970s, to require an unusually clear statement of intent to subject states to suits in federal courts,(10) Congress responded by specifically authorizing suits against states notwithstanding their Eleventh Amendment immunity.(11)
Why did this occur? No doubt a complex set of reasons are involved, among them, perhaps, these. First, state governments over the last 30 years have expanded the size and scope of their operations, in ways often lost in political rhetoric about the expansion of the federal government.(12) As states participated in a broader array of activities, in areas in which private activity was legitimately subject to federal regulation, the distortions to federal policy from exempting states from regulation began to seem higher.(13) Second, in part as a result of the reinvigoration of the Fourteenth Amendment as a constraint on state activities,(14) the notion that states had distinctive claims of immunity from federal law and federal process had less and less political resonance, when put up against claims in the national legislature for equality of treatment by the states--for those employed by or in contact with the states as compared to their private counterparts. …