- The Washington Times - Tuesday, January 25, 2000

The Congress of the United States regularly contrives evils to justify invading a limited constitutional shield for States from private damage suits in federal courts.
This penchant to meddle, like Lucy's disposition toward Charlie Brown, pivots on a prevailing ignorance in the legislative branch that the federal government wields limited powers. In other words, every congressional law must find an anchor in some constitutional authority, either among the many enumerated powers or within the broad "necessary and proper" clause of Article I, section 8, clause 18.
The 11th Amendment is an additional limitation. As an earmark of state autonomy, it generally prohibits Congress from exposing arms of state government from private damage actions for alleged violations of federal law. An exception is made under section 5 of the 14th Amendment. It empowers Congress to set aside the 11th Amendment if reasonably necessary to remedy or to deter State violations of the Constitution or a pattern of misconduct that skates close to the line.
Over the past several years, the United States Supreme Court has repeatedly upbraided Congress for unconstitutional meddling in state affairs. The latest episode unfolded in Kimel vs. Florida Board of Regents (Jan. 11, 2000), featuring the Age Discrimination in Employment Act.
It generally prohibits private employers, the federal government, and States from employment practices that discriminate on the basis of age, with exceptions for law enforcement officers and firefighters. Its ambit, as applied to states, reaches beyond the equal protection clause of the 14th Amendment. The latter condemns only irrational or whimsical age discrimination, whereas the ADEA imposes a much more exacting standard no discrimination whatsoever absent proof by the defending state employer that age strictly correlates with job performance.
Congressional findings to support yanking states into the ADEA were shockingly perfunctory. As Justice Sandra Day O'Connor observed in writing for a 5-4 majority, "Congress never identified any pattern of age discrimination by the States, much less any discrimination whatsoever that rose to the level of constitutional violation." In addressing such a serious constitutional matter, Members of Congress cavalierly relied on marginally relevant newspaper articles (concerning federal, not state employees) and gripes voiced in constituent letters. A 1966 report prepared by the State of California was also invoked. But it found no unconstitutional age discrimination, and noted that the majority of age employment restrictions applied to law enforcement and firefighting occupations, which are exempted from the ADEA. Moreover, even if California was a culprit, no evidence or reasonable inference would have indicated other states were comparably culpable.
Finally, the ADEA-protected class of persons 40 and older is politically muscular and spiraling in number. They have railroaded almost all the 50 states into enacting state laws that authorize state employees to sue their state employers for age discrimination. The American Association of Retired Persons is probably the most potent lobby in the United States, sporting more than 40 million members and flush coffers. When Social Security and Medicare benefits are discussed by officeholders or candidates, only increases or additions are on the table; the idea of even a freeze is taboo. The Internal Revenue Code also favors the elderly. In sum, the case for prophylactic laws to forestall government villainy against the geriatric class is laughable.
The Kimel decision occasioned hand-wringing by the customary circle of liberal Cassandras insinuating that states might be licensed to return to the ugly Jim Crow days of Police Commissioner Bull Connor's dogs in Birmingham and Sheriff Jim Clark's cattle prods in Selma, Ala. Nonsense. All the majority said in Kimel was that when Congress encroaches on state prerogatives, the wrongs addressed must be authentic, not counterfeit. The evidence of invidious racial discrimination marshaled on behalf of the 1964 Civil Rights Act and the 1965 Voting Rights Act, in contrast to the trivialities behind the ADEA, was both chilling and overwhelming. That the high court is not bullheaded against congressional power over states is further demonstrated by Reno vs. Condon, decided on Jan. 12, the day after Kimel. Speaking for a unanimity, Chief Justice William H. Rehnquist upheld the 1994 Driver's Privacy Protection Act, which tightly regulates the disclosure and resale of personal information contained in the records of state motor vehicle departments. The court is emphatically not poised for a Thermidorian counterrevolution in the distribution of federal-state powers.
It might be argued that Kimel is much ado about nothing. State autonomy would not collapse if states were subject to the ADEA. Correct, but unconvincing. Freedom of speech would not crumble if neo-Nazi marches in Jewish neighborhoods or erotic art were forbidden. These forms of expression are nevertheless protected by Supreme Court rulings. Similarly, small chunks of state sovereignty are worth preserving because they affect the delicate balance between centralized and local decision-making that promotes community welfare and send a refreshing signal to Congress that it is neither omniscient nor omnipotent.
Why wait for a wall to begin toppling before undertaking repairs?

Bruce Fein is a lawyer and free-lance writer specializing in legal issues.

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