Congressional Power to Regulate Sex Discrimination: The Effect of the Supreme Court\u27s New Federalism

Congressional power to prevent and remedy sex discrimination in employment has been founded almost entirely upon the commerce power and Section 5 of the Fourteenth Amendment, which gives Congress power “to enforce, by appropriate legislation” the equal protection guarantee. The commerce power has enabled Congress to prohibit private sex discrimination in employment, and the combination of the commerce and enforcement powers has enabled Congress to prohibit such sex discrimination by public employers. From the late 1930s until the early 1990s the doctrinal architecture of these powers was relatively stable, even if statutory action to realize the promise of a nondiscriminatory workplace was deferred until enactment of Title VII of the Civil Rights Act of 1964 (Title VII). Under that doctrinal scheme the Court reviewed legislation enacted pursuant to the commerce power only to determine if Congress had made a rational determination that an activity it sought to regulate was either in interstate commerce, an instrumentality of interstate commerce, or affected interstate commerce. With respect to the Fourteenth Amendment\u27s enforcement power, the combination of South Carolina v. Katzenbach and Katzenbach v. Morgan established that Congress could enact startlingly broad measures to remedy or prevent unconstitutional actions of the states. Indeed, the alternative holding of Morgan was that Congress could redefine the scope of the guarantees afforded by the Fourteenth Amendment. The result was extremely deferential review of federal legislation addressing issues of equal protection, including sex discrimination, whether founded on the commerce or the enforcement power. That scheme has been altered considerably by the Supreme Court\u27s “New Federalism,” a series of cases that have extended the scope of state sovereign immunity and increased the level of scrutiny the courts will apply to federal legislation enacted under the commerce or enforcement powers. The result is heightened uncertainty about the ability of Congress to address perceived problems of sex discrimination in the workplace, most particularly with respect to the ability of Congress to provide a damages remedy for public employees when their government employers violate the provisions of federal laws designed to ensure a sexually nondiscriminatory workplace. This Article first briefly describes the doctrinal alterations worked by the Court\u27s “New Federalism,” then discusses its application to the provisions of the Family Medical Leave Act (FMLA) that are at issue in Nevada Department of Human Resources v. Hibbs, perhaps the most important federalism case on the Court\u27s docket this coming Term, offers a few observations about the implications of these developments and some thoughts on legislative strategies for the future, and closes with a brief summary that places in perspective the New Federalism and its significance to the problem of sex discrimination in employment. There are three essential pieces to the New Federalism, and two other doctrines that, while germane, are as yet peripheral to the problem upon which I focus here—sex discrimination in the workplace. The essential pieces are the commerce power, the enforcement power, and the ever more robust constitutional doctrine of state sovereign immunity. The peripheral doctrines—but, I hasten to add, as yet peripheral doctrines—are the state autonomy exception to the commerce power and the spending power