Retired Senior Fellow in Constitutional Jurisprudence at the University of Montana Robert G. Nalelson contends that a mandate prohibiting employers from favoring applicants already holding jobs fails to pass constitutional muster.
“The proposed law would violate not only the Constitution’s actual meaning, but even the watered-down version of the Constitution now applied by the U.S. Supreme Court,” he said. “Its purported basis is the Commerce Power, but the connection it recites to interstate commerce is well short of that required by the court in cases like U.S. v. Lopez (1995). The bill would impose mandate-related litigation on states as the price of receiving federal aid, but in many cases this would violate rules the Court enunciated in South Dakota v. Dole (1987).”
But Natelson sees an even bigger problem lurking in the jobs bill: a provision that would effectively nullify the Eleventh Amendment. The Eleventh generally prohibits suits by individuals against states in federal court. But according to section 376(a) of the jobs bill, any state taking federal money forfeits that protection.
Abrogation of state immunity. State shall not be immune under the 11th Amendment to the Constitution or otherwise, to a suit brought . . . under this Act.
“What? Is abrogation of the First Amendment next?” Natelson asks.
Supporters of the jobs bill will likely appeal to the Fourteenth Amendment as justification for suspending the Eleventh, arguing the provision necessary to protect the rights of job applicants. But Natelson points out that the Court has never held that Congress possesses the power to negate one constitutional guarantee to enforce another. And such a loose interpretation of the power under the Fourteenth doesn’t fit within the parameters already established by the Court.
“In University of Alabama v. Garrett (2001) and Nevada Department of Human Resources v. Hibbs (2003), the Court made it clear that Congress may override the Eleventh Amendment only when dealing with certain kinds of discrimination – race, gender, and a few others – of which unemployed status is not one. Moreover, Congress must show a pattern of state discrimination of that kind. The Obama bill meets neither of these criteria,” Natelson said. “In other words, this part of the American Jobs Act is a straightforward, in-your-face defiance of the Constitution and of the Supreme Court. One wonders what goes through the minds of those who promote it.”
The Tenth Amendment Center exists to promote and advance a return to a proper balance of power between federal and State governments envisioned by our founders, prescribed by the Constitution and explicitly declared in the Tenth Amendment. A national think tank based in Los Angeles, the Tenth Amendment Center works to preserve and protect the principle of strictly limited government through information, education, and activism.