October 31, 2005

Alito and the Family and Medical Leave Act.

Judge Alito made short work of the question whether Congress has the power under the 14th amendment to enact the Family and Medical Leave Act in Chittister v. Department of community and Economic Development:
In enacting the FMLA, Congress found, among other things, that it is "important . . . that fathers and mothers be able to participate in early childrearing and the care of family members who have serious health conditions," 29 U.S.C. § 2601(a)(2), that the "lack of employment policies to accommodate working parents can force individuals to choose between job security and parenting," § 2601(a)(3), that "there is inadequate job security" for persons who might take medical leave, § 2601(a)(4), and that "the primary responsibility for family caretaking often falls on women" and has a greater effect on their work than it does on men, § 2601(a)(5). 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. For example, Congress did not find that public employers refused to permit as much sick leave as the FMLA mandates with the intent of disadvantaging employees of one gender. (Indeed, it is doubtful that a practice of allowing less sick leave than the FMLA requires would even have a disparate impact on men and women.). Nor are we aware of any substantial evidence of such violations in the legislative record.

Moreover, even if there were relevant findings or evidence, the FMLA provisions at issue here would not be congruent or proportional. Unlike the Equal Protection Clause, which the FMLA is said to enforce, the FMLA does much more than require nondiscriminatory sick leave practices; it creates a substantive entitlement to sick leave. This requirement is "disproportionate to any unconstitutional conduct that conceivably could be targeted by the Act." Kimel, 120 S. Ct. at 645. It is "so out of proportion to a supposed remedial or preventive object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior." City of Boerne, 117 S. Ct. at 2170. For these reasons, the legislative scheme cannot be said to be congruent or proportional to any identified constitutional harm, and it cannot be said to be tailored to preventing any such harm. Accordingly, we hold that the FMLA provisions at issue here do not represent a valid exercise of Congress's power to enforce the Fourteenth Amendment and that the FMLA does not abrogate Eleventh Amendment immunity. Cf. Lavia v. Commonwealth of Pennsylvania, Department of Corrections, 224 F.3d 190, 2000 U.S. App. LEXIS 18989 (3d Cir., 2000) (Title I of ADA).
This is stunningly well and concisely written and quite correct, though it is not the position the Court ultimately took in Nevada Department of Human Resources v Hibbs. I have a law review article on Hibbs, which you can read in PDF here. Alito took the position Justice Kennedy took in dissent in Hibbs. Chief Justice Rehnquist wrote the majority opinion, which purported to apply Boerne and Kimel, but most certainly did not. You can argue that Boerne and Kimel were wrongly decided, but Alito was bound by them and duly and competently applied them. Anyone who tries to say that Alito is hostile to women's rights because of this decision is utterly wrong.

Note: The FMLA is still supported by the commerce power. The issue under the 14th amendment only concerns whether the plaintiff can receive retroactive relief when the employer is the state.

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.


Dave said...

Alito is hostile to women's rights.

(I'm practicing for my People For the American Way membership here. Did I do well??)

Too Many Jims said...

"Anyone who tries to say that Alito is hostile to women's rights because of this decision is utterly wrong."

I think this statement, standing alone, goes too far in defending him. I mean it is possible that this decision does evidence a hostility to women's rights that Alito holds. It might be that "women's rights" and "constitutional rights" (in this case of a State) are in some instances in conflict. As you suggested, he was bound by precedent and he duly and properly applied them. He did not have the flexibility of a Supreme Court justice to set aside prior precedent.

Put another way, there may be instances where he could have chosen to be pro "women's rights" or to be a good judge. Having chosen to be a good judge I don't see the need to defend him against charges of being anti "women's rights".

Bruce Hayden said...


The problem is that Judge Alito was constrained by the law here. What did you want him to do here? Say, well, the Supreme Court said otherwise, but since we are above the law, we are ignoring them? We see this with the 9th Circuit a fair amount, which is why they get reversed so much.

Too Many Jims said...


I want him to be a good judge. That is, if he is constrained by the law, then he should rule like that. If that means he is "anti women's rights" in a particular instance so be it. Better to be "anti women's rights" than a bad judge.

Dave said...

"Better to be anti-women's rights than be a bad judge?"

Perhaps. But there's no way in hell he'd be confirmed if he were marketed that way.

XWL said...

. . . . but if Judge Alito is unwilling to bend any provision or amendment of the Constitution to suit our political objectives without regard to the text of said provision than he is clearly in unkind, unwise, and unjudicious, and worst of all he's not a woman, doesn't Bushie know that he had to find a woman to replace O'Connor, what's wrong with him.

And now I will crawl up into my own rectum (while my foot is in my mouth) and try and channel the future statements of Howard 'hide the salami' Dean regarding the nomination of Judge Alito:

"Bush tried to hide the salami with Miers, but now the president has found the salami, and that salami's name is Sam Alito, and I want to tell you all that I've examined this salami, and it's long, and thick, and pungent, and will be used as a weapon against women, we must reject this salami, Yearggggh!!!!!"

(i feel so dirty now, Deanthink is a dark place that I'd rather avoid from now on)

XWL said...

and I was joking about the woman thing at the beginning of the previous post, but Wolf Blitzer with Ken Mehlman just now. . . . (not exact transcripts, but the gist of the conversation is there)

but I have it on good authority from sources within the administration that Alito has a penis, couldn't Bush find a woman, (Ken answers, Alito's qualified and experienced) but aren't there qualified WOMEN (Alito's the best person available) but he's not a WOMEN, women are half of the population and with only Ginsburg they will only be 1 of 9 on the court.

Yep, serious analysis alright.

(and the penis comment may not be in the official transcripts, but I'm pretty sure that's what Wolf was thinking, sometimes the closed caption on my TV reads thoughts by accident, and Wolf really does start every sentence when speaking to a Republican with the word 'but')

Icepick said...

And now I will crawl up into my own rectum (while my foot is in my mouth)....

Okay, I'm going to have to go get my topology text out to see what the hell your trying to accomplish.

Oh, and thanks for THAT visual right before dinner!

XWL said...

The point I was trying to make with that vivid and disturbing allusion is that to think like and speak like Howard Dean you really have to be talking and thinking out of your ass. He also has the amazing ability to speak from his ass and stick his foot in his mouth at the same time, that was the concept I was conveying, it's not a reference to his politics (with which I disagree anyway) but the incredibly disagreeable way in which he presents his views and his representation of his version of the Democratic party.

So I defend the topology of that analogy (he said anal, heh, heheh) on the grounds that Howard Dean often approaches a concentration of poor word choice that resembles the gravitational pull of a singularity (which conveniently would be about the only place you could place foot in mouth and head in rectum simultaneously).

(and referencing the Audible Althouse #16's reference to Orwell, how's that for an non-cliched visualization!)

(and I really should quit now 3 out of 9 comments that have little to do with the subject at hand is a bit much)

(and CBS newsreader John Roberts already beat Dean to this round of inappropriately sexual remarks regarding a Supreme Court nominee with his 'sloppy seconds' comment regarding Pres. Bush's choice of Judge Samuel Alito)

J said...

Heh, you have a typo in your Law Review article. The folks at Penn need to get back to work.

Check the first sentence on page 1800 -- it's missing an 'of'

Icepick said...
This comment has been removed by a blog administrator.
Icepick said...

XWL, I understood your metaphor. (Simile? Allusion? Whatever....) I was just having trouble understanding the shape you were coming up with. I must have been fried from work, though, because it really isn't that difficult. And no, a singularity is not required.

Imagine a garden hose with... ah, nevermind.