October 31, 2005
Will Alito Try To Revive Dead Again Federalism?
Posted by David Zaring

I take few doctrines less seriously than federalism. In this I am not alone, of course; conservatives have abandoned federalism in the California medical marijuana and Oregon right to die cases, and everybody else has had little patience for it since the New Deal. The idea that this country, with a national economy, a national language, and a news media that disseminates a single culture nationwide ought to be politically governed and economically regulated by a set of random fragments, er, states – indeed, fragments devised in intermittent fits of 19th century ad hockery … well, it is, neurotic, as Malcolm Feeley and Edward Rubin have said more eloquently than I can here (see 41 UCLA L. REV. 903 for their insightful but non-SSRN-available view).

I would counsel any senator against confirming a judge with a sincere commitment to federalism – and that’s if such a commitment is even possible, or at least possible to claim with a straight face. So – uh, oh – what’s going on in Judge Alito’s opinion in Chittister v. Department of Community and Economic Development, 226 F.3d 223 (3d Cir. 2000): excising the applicability of the Family and Medical Leave Act to state employees because of a failure by Congress to make a particular finding? “Notably absent is any finding concerning the existence, much less the prevalence, in public employment of personal sick leave practices that amounted to intentional gender discrimination in violation of the Equal Protection Clause.” And what’s this? By creating “a substantive entitlement to sick leave … the legislative scheme cannot be said to be congruent or proportional to any identified constitutional harm," therefore failing to get it over the high hurdle posed by [shudder] state immunity from suit under the Eleventh Amendment?

It’s troubling, is what it is. But at least it's a relief that this is what federalism amounts to today in the courts - a fight over whether state employees get to enjoy the same federal benefits that everyone else does.  There's another silver lining too: at least Alito doesn’t give any old public authority the protections he appears to be willing to afford state bureaucracies. See Bolden v. SEPTA, 953 F.2d 807 (3d Cir. 1991).

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