stitutionally suspect, although a workable test for this distinction has not yet been articulated. However, limits on the process by which the Federal Government regulates the states, developed over the most recent decade, have proved more resilient. This becomes important when the Congress is unsatisfied with the most common methods of influencing state regulations – grant conditions or conditional imposition of federal regulations (states being given the opportunity to avoid such regulation by effectuating their own regulatory schemes). Only in those cases where the Congress attempts to directly
commandeer state legislatures or executive branch officials, i.e. ordering states to legislate or execute federal laws, has the Tenth Amendment served as an effective bar.
The concept of state sovereign immunity from citizen suits has also been infused with new potency over the last decade, while exposing deep theoretical differences among the Justices. To a minority of the Justices, state sovereign immunity is limited to the textual restriction articulated in the Eleventh Amendment, which prevents citizens of one state from bringing a federal suit against another state. To a majority of the Justices, however, the Eleventh Amendment was merely a technical correction made by Congress after an erroneous approval by the Court of a citizen-state diversity suit in Chisholm v. Georgia. These justices prefer the reasoning of the post-Eleventh Amendment case of Hans v. Louisiana, which, using non-textual precepts of federalism, dismissed a constitutionally based suit against a state by its own citizens. The true significance of this latter case was not realized until 1992 in Seminole Tribe of Florida v. Florida, where the Court made clear that suits by citizens against states brought under federal statutes also could not stand, at least if the statutes were based on Congress’s Article I powers. The
fundamental postulate of deference to the
dignity of state sovereignty was also the basis for the Court’s recent decisions to prohibit 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 th