bit federal claims by citizens against states in either a state’s own courts or federal agencies.
The Court has ruled, however, that Congress can abrogate state sovereign immunity under the Bankruptcy Clause and section 5 of the Fourteenth Amendment. Nevertheless, the Court has also shown a significant lack of deference to Congress regarding its Civil War era power, requiring a showing of
congruence and proportionality between the alleged harm to constitutional rights and the legislative remedy. Thus, states have been found to remain immune from federal damage suits for such issues as disability discrimination or patent infringement, while the Congress has been found to be without any power to protect religious institutions from the application of generally applicable state laws. Further, where Congress attempted to create a federal private right of action for victims of gender-related violence, alleging discriminatory treatment of these cases by the state, the Court also found that Congress exceeded its mandate, as the enforcement power of the 14th Amendment can only be applied against state discrimination. In all these case, the Court found that Congress had not sufficiently identified patterns of unconstitutional conduct by the States.
The Spending Clause, long seen as one of the last bedrocks of congressional authority, has also come under the Court's increasing scrutiny. While the Court had opined on the limits of the authority of Congress to impose
voluntary grant conditions on states, it was not until Congress required states to adopt a broad expansion of Medicaid or leave that program that the Court found such legislation to be overly
coercive. The impact of the decision, however, was diminished not only by the Court severing only the enforcement mechanism (making the states' decision to participate voluntary), but by indications (both in reasoning and dicta) that the standard set by the splintered Court would be easily met by most Spending Clause regulation.
The overriding view of the present Court is that where it has discretion, even absent constitutional mandate, it will apply federalism concerns to limit federal powers. For instance, the equity powers of the federal courts to interfere in ongoing state court proceedings and to review state court criminal convictions under habeas corpus have been curtailed, invoking a doctrine of comity and prudential restraint. But the critical fact, the scope of congressional power to regulate private activity, remains: the limits on congressional power under the commerce clause and other Article I powers, as well as under the power to enforce the Reconstruction Amendments, remain principally those of congressional self-restraint.
For much of the latter half of the 20th century, aggregation of national power in the presidency continued unabated. The trend was not much resisted by congressional majorities, which, indeed, continued to delegate power to the Executive Branch and to the independent agencies at least to the same degree or greater than before. The President himself assumed the existence of a substantial reservoir of inherent power to effectuate his policies, most notably in the field of foreign affairs and national defense. Only in the wake of the Watergate affair did Congress move to assert itself and attempt to claim some form of partnership with the President. This is most notable with respect to war powers and the declaration of national emergencies, but is also true for domestic presidential concerns, as in the controversy over the power of the President to impound appropriated funds.
Perhaps coincidentally, the Supreme Court during the same period effected a strong judicial interest in the adjudication of separation-of-powers controversies. Previously, despite its use of separation-of-power language, the Court did little to involve itself in actual controversies, save perhaps the Myers and Humphrey litigations over the President's power to remove executive branch officials. But that restraint evaporated in 1976. Since then there have been several Court decis