Topic: Protection of State from Lawsuits
Senator: Sessions
Date: SEPTEMBER 14, 2005
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SESSIONS: I will follow up on the Garrett case that several people mentioned. It involved the University of Alabama in a lawsuit against the state institution claiming violation of the Disabilities Act. The state defended on the grounds that you could sue the state of Alabama for back pay. You could sue the state of Alabama to get your job back. You could sue the state of Alabama and get an injunction against the state to not discriminate again in the future. But under the sovereign immunity doctrine that protects a state from lawsuits, you couldn't sue them for money damages. Now, Senator Cornyn, who was attorney general of his state and attorney generals like Attorney General, now Judge Bill Pryor, who defended Alabama raised that defense. And I don't think it is a bogus defense. I think it is a legitimate concern. Judge, do you recall where the doctrine is that's so famous in the law, that the power to sue is the power to destroy? Do you remember where that came from in our legal history?
ROBERTS: I remember tax opinions talking about it; the power to tax being the power to destroy.
SESSIONS: But I think that the doctrine has been applied to the states. We attorney generals are familiar with it. Under the sovereign immunity that the states have, if you are empowered to sue the state of Alabama in federal court, then you have virtually the power to destroy that state financially, if there's no real limit on it. And so we have always provided and the states have provided a sovereign immunity that the states are only allowing themselves to be sued under certain circumstances and you cannot just sue them unnecessarily. I know Senator Mark Pryor, our Democratic colleague, signed on the brief for the state of Alabama in the Garrett case, taking this position and the Supreme Court ruled with it. So I also would note that it did not in any way destroy the Disabilities Act. It applied to only -- state employees only make up about 3.7 percent of the employees in the nation that might be covered by that. So I think that there has been healthy trends in re-establishing that there's some limit to the reach of the commerce clause. Would not you agree?
ROBERTS: Well, the interesting thing: The court's most recent decision is the medical marijuana decision in the Raich case. And the court there looked at the Lopez and Morrison decisions and tried to put them in context and said -- because the argument there was based on Lopez and Morrison, saying this is beyond Congress' power. And the court said those are only two of our cases and they need to be put ion the broad sweep of commerce clause precedents for over 200 years. Yes, there are two cases and it had been -- I think -- 65, 70 years since the court had focused on limitation under the commerce clause and concluded that it was beyond Congress' power. But the Raich case concluded that this was within Congress' power. they said it's not as if Lopez and Morrison are junking all that came before. They just need to be considered in a broad context. And, of course, there's decision after decision, going back to Gibbons against Ogden, one of Chief Justice John Marshall's early opinions about the scope of Congress' power; and the recognition under the constitutional scheme that it is a broad grant of power; and the recognition that this body has the authority to determine when issues affecting interstate commerce merit legislative response at the federal level.
SESSIONS: I think you're going to another setting. But I think you are correct. These are some difficult areas in the court that you need a lot of attention to. But some recognition that there are limits to federal reach is, I think, legitimate for a court.
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