Alito and the Family and Medical Leave Act -- Part 2.

Sovereign immunity law is difficult, so it is not surprising that people misread what Samuel Alito wrote about the Family and Medical Leave Act.

Here's the blunder on Daily Kos:

Alito's record also seems to put the Family Medical Leave Act in jeopardy. According to Angry Bear, Alito found

that the FMLA was unconstitutional because there was no evidence for the notion that women are disadvantaged in the workplace when they are not allowed to take family leave.

No, no, no, no.

Last night on "The Daily Show," Senator Barbara Boxer said that Alito would have deprived state employees of the benefits of the FMLA. Not as wrong as Angry Bear got it, but still wrong!

I know what I'm talking about on this subject. Here's my law review article. I am making it my business to correct misstatements about Alito's opinion in Chittister. The law here is horrendously complicated, and I will try to put it as simply as I can.

Chittister was not about whether Congress had the power to pass the FMLA. The commerce power clearly supports the FMLA, and nothing in Chittister addresses or in any way challenges that very basic point of law.

Chittister is about whether the FMLA is also supported by the power the Fourteenth Amendment gives Congress to enforce the rights guaranteed by that Amendment. The reason why the additional basis for congressional power matters is that Congress can only abrogate state sovereign immunity if there is power under the Fourteenth Amendment. If Congress can't abrogate sovereign immunity, that only affects state employees and it only means that they can't get retrospective relief if the state violates the law. The state is, in fact, still bound by the requirements of the FMLA (contrary to Boxer's statement), but employees will only be able to sue for prospective relief.

For there to be Fourteenth Amendment power, it must be shown that Congress is really enforcing the rights guaranteed by the Fourteenth Amendment. It can't use this power to create different rights or offer other benefits, however justifed and beneficial those new rights or benefits may be. To say that there is no Fourteenth Amendment power is not to say the FMLA isn't a good idea or that women aren't "disadvantaged in the workplace when they are not allowed to take family leave." Fourteenth Amendment power requires that the law remedy the violation of rights. What constitutional right against sex discrimination was being remedied by guaranteeing unpaid family and medical leave? Keep in mind that the constitutional right against sex discrimination is only violated by intentional discrimination. How were the states violating rights in a way that family leave corrected?

In Hibbs, Chief Justice Rehnquist ultimately bent over backwards to find a way to say that the FMLA fit the Fourteenth Amendment power. (It had to do with the tendency to give more leave to women than to men, by the way, not any failure to give leave. And it wasn't about the need to help women who have family responsibilities. It was about stereotyping women by assuming they have more family responsibilities than men!)

Rehnquist twisted a whole line of cases to get to his result, as Justice Kennedy explains in dissent. Alito wrote his opinion in Chittister before Hibbs was decided, and what he wrote was a solid application of the precedent that reveals nothing more than his commitment to precedent and his legal craftsmanship.

Those who try to paint Alito as hostile to women's interests for this are either distorting his record or misunderstanding the law. It is very easy for Alito's opponents to do this because the law is hellishly complicated, and the Family Medical Leave Act is a very nice and popular benefit. Please be alert to this problem. Alito absolutely does not deserve criticism for this!

Okay, I've put in my Google Alert for "'family medical leave act' alito." Expect me to point out the errors ad nauseum.

UPDATE: Here's lawprof Pam Karlan getting it wrong on the News Hour:

[H]e would have held unconstitutional the provisions democratically enacted by Congress of the Family Medical Leave Act that applied to require states to give unpaid medical leave to their employees.

Now the Supreme Court with both Justice O'Connor and Chief Justice Rehnquist in the majority voted to uphold those provisions. And one of the reasons why I think it's incorrect to talk about people as if there are people who read the text of the Constitution and people who don't is that social conservatives and movement conservatives have read into the 11th Amendment of the Constitution, which gives sovereign immunity to states against democratically-passed laws, words that aren't there, and they read the [word] "equality," which is in the Constitution, the word "equal" differently from liberals.

Again, denying the existence of Fourteenth Amendment power would not make the FMLA unconstitutional. It is independently supported by the commerce power, even for state employees.

Karlan is also saying something more about the interpretation of the 11th Amendment: that conservatives read beyond its text when they interpret state sovereign immunity. This is another complicated matter that I won't detail right now, but what is very important to acknowledge is that the interpretation in question is a matter of sticking with a precedent that has been relied on for over 100 years (Hans v. Louisiana). Those who care about preserving Roe v. Wade emphasize the importance of stare decisis, and that is part of what we are talking about here.

YET ANOTHER UPDATE: Patterico points out an extremely important point about Alito's Chittister case: it was not about leave to take care of a family member, but about sick leave. What is the sex discrimination problem to be remedied with respect to self-care? Hibbs was about taking care of family members, so there was a way to connect the FMLA to the stereotyping of women as the main caregivers. But when it's a matter of taking care of yourself, where's the rights violation to enforce? Patterico links to Bench Memos and this Tenth Circuit case. The bottom line is that Alito was even more scrupulously correct than I've been portraying him. And it's not even about families. Even single folks with no responsibilities for others get this benefit. It may be nice, but it's not about remedying violations of constitutional rights.