by Rob Natelson

A section located deep in President Obama’s proposed “American Jobs Act” would suspend part of the U.S. Constitution. 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.

You might be surprised to learn that the Obama bill seeks to “create jobs” partly by punishing anyone who seeks to create them. Specifically, the bill would impose a new mandate on employers: prohibiting them from favoring applicants who already have jobs.

Why an employer would, without good cause, favor an employed person over an unemployed person is not clear, and the bill’s findings do not suggest this is really a widespread problem. But the mandate is there nonetheless, and it would add significant compliance costs and litigation risks on anyone hiring people.

Of course, the mandate is flatly unconstitutional under the Constitution’s actual meaning. But it also is deeply suspect under modern Supreme Court jurisprudence. 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 the bill’s biggest problem is its bald claim to suspend the Eleventh Amendment. That Amendment generally prohibits suits by individuals against states in federal court. Section 376(a) provides, however:

Abrogation of state immunity—A 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?

In my book, The Original Constitution: What It Actually Said and Meant, I tell the story of the Eleventh Amendment. During the debates over the Constitution’s ratification, opponents pointed out that the instrument would give federal courts jurisdiction over “Cases . . . between a State and Citizens of another State.” Through a series of expensive lawsuits, opponents argued, a state and its taxpayers might be bankrupted. In response, proponents of the Constitution such as John Marshall (the future chief justice) pointed out that a suit by an individual against an unwilling state was not properly a “case” or “controversy” as the law used the term, and the Constitution gave the federal courts jurisdiction only over “cases” and “controversies.” On such representations, the Constitution was ratified.

Nevertheless, just a few years after ratification the Supreme Court tore up the bargain by authorizing such suits. (Marshall was not yet on the court, but Justice James Iredell, a leading ratifier, dissented.) To restore the ratifiers’ understanding, Congress quickly proposed—and the states rapidly ratified—the Eleventh Amendment. Note that the Amendment was designed to reinforce rather than change the original meaning of the Constitution:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

Although the amendment does not specifically address suits against a state by its own citizens, the Supreme Court has properly recognized that a ban on such suits was also part of the constitutional bargain.

During the 20th century, the Court did punch a few holes in the Eleventh Amendment. Perhaps the most important is that Congress may authorize individual suits against states under the power the Fourteenth Amendment gives Congress to protect individuals from state oppression. I’m all for protecting people from state oppression, but the Court has never explained how it can be “appropriate legislation” for Congress to violate another specific constitutional guarantee. Could, for example, Congress override the First Amendment in the process of enforcing the Fourteenth?

The Obama bill never mentions the Fourteenth Amendment. But presumably its supporters will justify suspending the Eleventh Amendment as part of enforcing the Fourteenth. If so, that argument flies in the face of some very recent Supreme Court rulings.

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In University of Alabama v. Garrett (2001) and Nevada Dep’t 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.

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.

EDITOR’S NOTE: Rob Natelson will be a guest on TRX: Tenther Radio on October 5th. If you have questions about the Necessary and Proper clause – or any other part of the constitution, let us know! You can call in your questions to our voice feedback line 24/7 – 213.785.7848 – or post them in our chat room here

In private life, Rob Natelson is a long-time conservative/free market activist, but professionally he is a constitutional scholar whose meticulous studies of the Constitution’s original meaning have been published or cited by many top law journals. (See Most recently, he co-authored The Origins of the Necessary and Proper Clause (Cambridge University Press) and The Original Constitution(Tenth Amendment Center). After a quarter of a century as Professor of Law at the University of Montana, he recently retired to work full time at Colorado’s Independence Institute.

Rob Natelson

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