Separation anxiety: Congress, the courts, and the Constitution

59. Garcia, 469 U.S. at 552.

60. U.S. CONST. art. I, [sec] 8, cl. 3.

61. U.S. CONST. amend. XIV, [sec] 5.

62. See Kramer, supra note 32, at 129 ("[W]hat Congress thinks about the Constitution carries no formal legal weight in the eyes of the Rehnquist Court, and has only so much practical weight as the Justices think it deserves (which typically turns out to be not much).").

63. United States v. Lopez, 514 U.S. 549, 559 (1995).

64. Id. at 567-68.

65. City of Boerne v. Flores, 521 U.S. 507, 520 (1997). For a persuasive critique of the Court's new tailoring requirements under Section 5, see Evan H. Caminker, "Appropriate" Means-Ends Constraints on Section 5 Powers, 53 STAN. L. REV. 1127 (2001).

66. Compare, e.g., U.S. CONST. amend. XI ("The judicial power of the United States shall not . . . extend to any suit . . . against one of the United States by citizens of another state . . . ."), with Federal Maritime Comm'n v. S.C. State Ports Auth., 122 S. Ct. 1864, 1867-68 (2002) (holding that Eleventh Amendment bars executive branch agency from adjudicating complaint for damages against nonconsenting state by citizen of same state), Alden v. Maine, 527 U.S. 706, 712 (1999) (holding that Eleventh Amendment bars federal claim for damages by in-state citizen against nonconsenting state in state court), and Seminole Tribe v. Florida, 517 U.S. 44, 47 (1996) (holding that Eleventh Amendment bars federal suit for damages against nonconsenting state despite express authorization by Congress pursuant to Article I); cf. Nina Totenberg, States Rights (NPR radio broadcast, May 28, 2002) (reporting criticism of Court's Eleventh Amendment jurisprudence from scholars across the ideological spectrum).

67. See, e.g., Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 561-66 (2001) (striking down state restrictions on tobacco advertising as infringement on commercial speech rights); Phillips v. Washington Legal Found., 524 U.S. 156, 160, 167-69, 172 (1998) (finding interest earned on client funds required by state law to be held in special accounts funding legal aid to be "private property" of client for Taking Clause purposes, even though such funds would not earn interest for client absent the state law); Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1019, 1027 (1992) (restricting scope of state prerogative to regulate land use under Takings Clause).

68. See, e.g., Boy Scouts of Am. v. Dale, 530 U.S. 640, 644 (2000) (applying First Amendment associational rights principle to invalidate state civil rights statute prohibiting Boy Scouts from excluding homosexuals); City of Richmond v. J.A. Croson Co., 488 U.S. 469, 486, 499-500, 506-08 (1989) (invalidating local minority contracting set-aside program under Equal Protection Clause).

69. See, e.g., Hoffman Plastic Compounds, Inc. v. NLRB, 122 S. Ct. 1275, 1283 (2002) (reversing NLRB order requiring backpay to be paid by employer who, without knowledge that employee was an illegal immigrant, unlawfully terminated employee for organizing a union); Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health & Human Res., 532 U.S. 598, 600 (2001) (limiting "prevailing party" entitled to attorneys' fees under various civil rights statutes to a party who has secured judgment on merits or court-ordered consent decree); Alexander v. Sandoval, 532 U.S. 275, 285-86 (2001) (finding no private right of action to enforce Title VI regulations prohibiting disparate impact discrimination); Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 109, 119 (2001) (finding form employment contracts requiring arbitration of employment discrimination claims enforceable under federal law).