Contact: Doug Kendall, Community Rights Counsel, 202-296-6889
Glenn Sugameli, Earthjustice, 202-667-4500
Jeffrey S. Sutton, nominated by President Bush for a lifetime
position on the U.S. Court of Appeals for the Sixth Circuit,
is one of the country's leading advocates for a new and
virulent form of judicial activism that is advancing an
anti-environmental policy agenda from the federal bench
with little regard for precedent and constitutional text.
In his writings and speeches, Mr. Sutton has been extraordinarily
outspoken in his views on limiting federal constitutional
power and citizen access to justice. Mr. Sutton's views
are extreme and go far beyond the already disturbing 5-to-4
Rehnquist Supreme Court rulings on these topics. His views
threaten enforcement of environmental protections across
In the past decade, the Supreme Court has struck down
federal legislation at a rate rivaled only by the discredited
"Lochner-era" Court, which blocked the
labor reforms of the Progressive Era and the Congressional
response to the Depression in the early stages of the New
Deal.1 The Court's
recent rulings, often grouped together under the inaccurate
label of "federalism," have undermined important
laws protecting women, senior citizens, minorities, the
disabled, and the environment.
These rulings have engendered withering criticism from
both sides of the political spectrum. For example, Judge
John Noonan, a conservative appointed by President Reagan
to the Ninth Circuit, declared in a recent book entitled
Narrowing the Nation's Power that the Rehnquist Court
has already acted "without justification of any kind"
in doing "intolerable injury to the enforcement of
"The present damage," Judge Noonan warns, "points
to the present danger to the exercise of democratic government."3
A July 2001 report entitled Hostile Environment: How
Activist Federal Judges Threaten Our Air, Water, and Land,
released jointly by Natural Resources Defense Council, Community
Rights Counsel, and Alliance for Justice, details how Supreme
Court rulings and even more extreme rulings by lower federal
courts are "threatening the very core of environmental
Jeffrey Sutton advocated for many of the rulings attacked
in Judge Noonan's book and some of those discussed in
but what's most troubling is that the arguments advanced
by Mr. Sutton are considerably more extreme than those accepted
to date by the Supreme Court.
Sutton's Legal Philosophy: Of Zero Sum Games and
Repeatedly in briefs and in speeches expressing his personal
views,6 Mr. Sutton
has characterized cases challenging federal constitutional
authority as "invariably a battle between the states
and the federal government over a legislative prerogative."7
In his words, these cases represent a "zero-sum game-in
which one, or the other law-making power must fall."8
But the states themselves overwhelmingly disagree with
Mr. Sutton's perspective on this critical point. In United
States v. Morrison, for example, thirty-six states advocated
in favor of the federal Violence Against Women Act. Only
one state, Alabama, represented by Mr. Sutton, advocated
against federal authority. In the environmental arena, nine
northeastern states recently sued the Bush Administration
for not being aggressive enough about enforcing the provisions
of the Clean Air Act. These states clearly do not share
Mr. Sutton's view that an exercise of federal authority
is "invariably" an encroachment into state legislative
prerogative. Instead, states, by and large, recognize that
a federal role is critical in combating national issues
such as environmental degradation.
In urging courts to strike down federal laws, Mr. Sutton
has repeatedly asserted that he is advancing a "neutral
principle" that "says nothing about what particular
policies should be adopted."9
But his positions would invalidate innumerable federal minimum
protections that now have the force of law in every state
in the nation. Even if every state responded by passing
legislation addressing the problem (an enormously unlikely
proposition), the states would inevitably create a patchwork
of protections that would be less effective than the existing
federal programs. While states and local governments play
an invaluable role in addressing problems such as environmental
degradation, in the wise words of Justice Oliver Wendell
Holmes from 80 years ago, "it is not sufficient to
rely on the States."10
Undermining Commerce Clause Authority to Protect
A good example of Mr. Sutton's disturbing views on the
federal power to protect the environment comes from the
brief 11 that Mr.
Sutton filed in the U.S. Supreme Court in Solid Waste
Agency of Northern Cook County (SWANCC) v. U.S. Army Corps
of Engineers. In SWANCC, he expressed the view
that the Constitution's Commerce Clause does not grant the
federal government authority to prevent destruction of waters
and wetlands that serve as critical habitat for migratory
the paramount federal interests in protecting migratory
birds, Mr. Sutton characterized these topics as "uniquely
a matter of local oversight."13
Congress has rooted most of this nation's federal environmental
protections in its authority under the Commerce Clause of
the Constitution, which grants Congress the right to "regulate
commerce among the several states." The reason is simple.
Pollution and environmental degradation are external costs
of many land uses and manufacturing processes. These external
costs are frequently borne by residents outside of the state
in which the pollution or degradation originates. Even wholly
intrastate pollution can have significant impacts on interstate
commerce, for example, where the despoliation of a lake
or river reduces tourism dollars spent by out-of-state vacationers.
For decades, the courts have recognized that the Commerce
Clause authorizes Congress to regulate such intrastate activities
that have a significant effect on interstate commerce.14
Indeed, between 1937 and 1995, the Supreme Court did not
invalidate a single federal statute as being outside the
scope of the Commerce Clause.
Since 1995, the Court's 5-to-4 rulings in United States
v. Lopez 15
and United States v. Morrison 16
struck down portions of two federal laws that it deemed
beyond Congress's Commerce Clause authority. These are deeply
divisive rulings that have been roundly criticized. They
are also, however, narrow in an important manner: in both
cases, the Court stressed that the regulated activity (handgun
possession in Lopez and violence against women in
Morrison) was not economic in nature and fell within
traditional state police powers. As a result, Lopez
and Morrison do not necessarily pose much of a threat
to environmental safeguards, because environmental laws
focus on harms resulting from commercial activity.
The "Migratory Bird Rule" in SWANCC is
a good example. The rule protects intrastate water bodies
and wetland areas that provide important habitat to migratory
birds. Protecting migratory birds is quintessentially a
task for the federal government. As Justice Holmes declared
for the Supreme Court in 1920, the protection of migratory
birds is a "national interest of very nearly the first
Justice Holmes explained that the federal government must
provide protection because action by the states individually
would be ineffectual:
The activity regulated in SWANCC was plainly economic
in nature. The sewer authority wanted to fill more than
200 ponds and small lakes in order to build a large municipal
landfill that would accept trash from a large portion of
Illinois' Cook County.19
This is typical: filling of waters and wetlands virtually
always is undertaken for commercial purposes.20
The birds themselves also generate a considerable amount
of economic activity. More than 120 bird species had been
seen at these ponds and lakes, and the waters served as
a large breeding ground for great blue herons. The commercial
value of migratory birds is manifest: each year millions
of people spend more than a billion dollars in commerce
on recreational pursuits related to migratory birds.21
These birds also protect crops and forests by feeding on
insects that would otherwise damage these commercial enterprises.22
The Migratory Bird Rule, in other words, was plainly distinguishable
from laws struck down in Morrison and Lopez.
Mr. Sutton, however, could see no distinction. Mr. Sutton
characterized the federal government's "interstate
justifications for asserting power" as "bird watching
and hunting" and dismissed these interests as "non-economic
Where Justice Holmes saw in 1920 a "national interest
of very nearly the first magnitude," Mr. Sutton saw
in 2000 an "an area that is uniquely a matter of local
Where Holmes saw protections of migratory birds as necessary
to save "the protectors of our forests and our crops,"
Mr. Sutton saw a federal law designed to allow "bird
watchers and hunters to pursue their hobbies."25
Mr. Sutton's Commerce Clause analysis in SWANCC mirrors
the reasoning applied by District Judge Brevard Hand in
his decision in United States v. Olin Corp.,26
which struck down key provisions of the federal Superfund
toxic-waste cleanup law. In Olin, Judge Hand ruled
that because the site was no longer active, the cleanup
of the site was essentially a local real estate matter,
not "economic activity."27
Because "the law regulating real property has been
traditionally a local matter," Judge Hand declared
that Congress under the Commerce Clause could not regulate
Judge Hand's view was rejected by other courts 29
and was quickly reversed on appeal.30
It indicates, however, the breadth of the threat that judicial
activism poses to federal environmental safeguards and the
danger presented by nominees such as Jeffrey Sutton. After
all, if regulation of waste disposal operations (at issue
in both Olin and SWANCC) does not fall within the
scope of the Commerce Clause, then a wide array of environmental
protections would also fall outside the Clause.
Eleventh Amendment and Ex Parte Young: Ensuring State
Compliance with Federal Environmental Mandates
Environmental statutes are textbook examples of cooperative
federalism. Almost every major environmental law authorizes
state environmental agencies to implement federal environment
programs in their state. For these programs to work, states
must be held accountable for ensuring the minimum environmental
standards mandated by federal law. To ensure this accountability,
many environmental laws have citizen suit provisions that
permit citizens to sue states in federal court when state
agencies fail to implement federal mandates.
Activist interpretations of the Constitution's Eleventh
Amendment are undermining state accountability under federal
environmental laws and thus the federal/state partnerships
at the center of these critical statutes. The Eleventh Amendment's
plain language prevents a federal court only from hearing
a suit brought against a state by a citizen of another
state or another country.31
The Court, however, has ruled that the amendment applies
to suits brought by a state's own citizens, effectively
extracting the word "another" from the amendment.
In 1996, in a 5-4 ruling in Seminole Tribe of Florida
v. Florida, the Supreme Court overruled a landmark case
called Pennsylvania v. Union Gas,32
and held that the Commerce Clause - the basis for most environmental
legislation - could not be used to abrogate state immunity.
Thus, the Court made it impossible for citizens to ensure
that states are held financially responsible for their contributions
to hazardous waste sites that must be cleaned up under the
Effective, enforceable, cooperative federalism in environmental
laws remains viable after Seminole Tribe because
of the Supreme Court's 1908 ruling in Ex Parte Young,
which permits suits to enjoin state officials from violating
federal law even where the Eleventh Amendment would bar
a suit against the state seeking money damages.33
Ex Parte Young thus constitutes an essential linchpin
of our nation's federal environmental laws: without it,
almost every environmental statute would have to be re-written,
or retained in a much less effective form.
Jeffrey Sutton has been a leading advocate for expanding
Eleventh Amendment immunity from suit and limiting the reach
of Ex Parte Young. Most remarkably, in a brief that
he filed in Westside Mothers v. Haveman, 34
Mr. Sutton took the unequivocal position that federal statutes
passed under the Constitution's Spending Clause 35
"create a contract between the Federal Government,
which has offered the State federal funding in exchange
for compliance with certain conditions, and the State, which
has agreed to these conditions by accepting the proffered
in Sutton's view, "are bound only by the unambiguously
expressed terms of such Spending Clause contracts."37
Because Spending Clause legislation merely creates contracts,
according to Mr. Sutton, these mandates cannot be enforced
under Ex Parte Young.38
The District Court adopted Mr. Sutton's novel views on both
of these points.39
A Sixth Circuit panel that included Judge Danny Boggs,
the court's most prominent conservative, unanimously and
pointedly overruled the district court in Westside Mothers.
With regard to Mr. Sutton's argument about Spending Clause
legislation creating only a contract, the Circuit Court
concluded that "[b]inding precedent has put the issue
The court also made short shrift of Mr. Sutton's views on
Ex Parte Young, declaring: "Medicaid is not
merely a contract, but a federal statute. This suit seeks
only to compel state officials to follow federal law,"41
and thus may be enforced under Ex Parte Young.
While the views Mr. Sutton expressed in Westside Mothers
about the Spending Clause and Ex Parte Young have
now been thoroughly rejected by the Sixth Circuit, similar
views on Ex Parte Young suits have recently been
adopted by courts in two critical environmental cases. In
the past 18-months, the Third and Fourth Circuits have ruled
that citizens could not enjoin Pennsylvania 42
or West Virginia 43
under Ex Parte Young for non-compliance with the
essential mandates of the federal Surface Mining Control
and Reclamation Act (SMCRA). In Bragg v. West Virginia
Coal Association, for example, the Fourth Circuit reversed
a district court ruling which held that state officials
had violated SMCRA by permitting one of the most environmentally-destructive
practices imaginable: mountaintop removal coal mining that
buries and destroys valleys, rivers, and streams. The Fourth
Circuit bypassed Ex Parte Young by declaring that
in states that have an approved program to administer SMCRA,
the federal minimum standards "drop out" and a
claimant's only cause of action is under state law, which
cannot be enforced under Ex Parte Young.44
The argument made by Mr. Sutton in Westside Mothers
directly parallels the argument adopted by the courts in
Bragg and Hess: both arguments limit the category
of federal rights that can be enforced under Ex Parte
Young. If anything, Mr. Sutton's argument in Westside
Mothers is more extreme than the one accepted in Bragg
and Hess, because, as the Sixth Circuit explained,
Mr. Sutton's argument in Westside Mothers was ruled
out by binding Supreme Court precedent. There is every reason
to believe that, if confirmed, Mr. Sutton would interpret
Ex Parte Young in a way that undermines enforcement
of a host of federal environmental statutes.45
Eviscerating Private Actions for Environmental Injustice
Mr. Sutton has been a leading advocate for aggressively
limiting private causes of action against states, including
the private cause of action that permits vindication of
claims of environmental injustice.
Mr. Sutton served as counsel of record for the state of
Alabama in Alexander v. Sandoval 46
and successfully convinced the Supreme Court to find that
there is no private cause of action to enforce disparate
impact regulations promulgated under Title VI of the Civil
Rights Act-regulations that form the primary source of rights
to ensure environmental justice.47
By a 5-to-4 vote, the Court, through Justice Scalia, ruled
that the well-established private cause of action to enforce
§ 601 of the Civil Rights Act 48
did not extend to disparate impact regulations promulgated
under § 602 of Title VI.49
The Sandoval decision by itself is enormously controversial.50
But our concern is not primarily that Mr. Sutton advocated
for this result. Our most significant concern is that the
position Mr. Sutton staked out in his briefs on behalf of
Alabama is considerably more extreme than the position ultimately
adopted by the Supreme Court.
The Sandoval decision left open the question of
whether victims of disparate impact discrimination could
enforce § 602 regulations under 28 U.S.C. § 1983.51
In dissent, Justice Stevens thus raised the question of
whether Sandoval was simply "something of a sport"
and suggested that "litigants who in the future wish
to enforce the Title VI regulations against state actors
in all likelihood must only reference § 1983 to obtain
The Sandoval majority never responded to this assertion
by the dissent.
Mr. Sutton's position would have eliminated this alternative
avenue for seeking relief and left victims of environmental
injustice and other forms of disparate impact discrimination
without any means of obtaining redress. Indeed, Mr. Sutton
argued that where the federal government acts within its
Spending Clause authority, a state must "express
unequivocally that it waives its immunity," in order
to be subject to suit in federal court.53
This waiver by the states must be "altogether voluntary"
and cannot be assumed even if Congress expresses "unequivocally
its intention that if the state takes certain action it
shall be deemed to have waived that immunity."54
In his brief in the Westside Mothers case, Mr. Sutton
was even more sweeping, asserting that states can never
be sued under § 1983 for federal mandates imposed in
legislation passed under the Spending Clause.55
This is an extremely broad position that would have required
the Supreme Court to overrule a host of well-established
The implications of Mr. Sutton's views on claims for environmental
injustice are illustrated by the split decision of the Third
Circuit in South Camden Citizens in Action v. New Jersey
Department of Environmental Protection 56
holding that § 602 regulations could not be enforced
under 28 U.S.C. § 1983. The South Camden case
wiped off the books a significant environmental justice
victory achieved by activists in New Jersey and leaves victims
of environmental injustice in the Third Circuit without
a reliable avenue for asserting these claims in court.
Eliminating Attorneys' Fees for Prevailing Plaintiffs
A powerful innovation of modern environmental law is the
authority Congress granted to citizens to ensure that these
laws are carried out by regulatory agencies and obeyed by
polluters. Concerned that agencies would be "captured"
by regulated industries, Congress authorized suits against
the government to force compliance with congressional mandates.
Anticipating that enforcement budgets could be slashed,
Congress enacted citizen-suit provisions deputizing citizens
to act as "private attorneys general" to force
polluters to comply with federal mandates. To ensure that
these private attorneys general have the resources necessary
to prosecute polluters, Congress ensured that "prevailing"
environmental plaintiffs would be able to obtain reasonable
attorneys fees from their adversaries.
Mr. Sutton has also taken the position that plaintiffs
should not be allowed attorneys' fees under laws authorizing
such fees for "prevailing parties" when, in response
to a lawsuit, a polluting company does precisely what a
plaintiff is requesting in the lawsuit.57
Sadly, this position was adopted by the Supreme Court with
regard to an important statute in a 5-4 ruling in Buckhannon
v. West Virginia Department of Health and Human Resources
that undermines Congress's intent "to place private
actions, * * * securely within the federal law enforcement
Buckhannon involved what is known as the "catalyst"
rule, under which an environmental claimant is deemed to
have "prevailed" within the meaning of fee shifting
provisions when a defendant responded to the filing of a
lawsuit by voluntarily changing its conduct. Under the catalyst
rule "aggrieved individuals were not left to worry,
and wrongdoers were not led to believe, that strategic maneuvers
by defendants might succeed in averting a fee award."59
While never endorsed specifically by the Supreme Court,
the catalyst rule was deeply ingrained in the fabric of
our nation's environmental and civil rights laws. Prior
to 1994, every single court of appeals (with the exception
of the Federal Circuit, which never had the opportunity
to address the issue) had unanimously endorsed the catalyst
rule.60 So had Congress;
both the Senate and House Reports for the 1976 Civil Rights
Attorney's Fees Awards Act unambiguously endorse fee awards
even where no formal relief is obtained.61
The first challenge to the rule came in 1994, when the
Fourth Circuit - the most conservative court in the country
- voted 6-to-5 along purely ideological lines to jettison
the catalyst rule.62
The Fourth Circuit's ruling caused other circuits to look
again at the catalyst rule. Nine courts of appeals revisited
the issue and each one rejected the Fourth Circuit's ruling
and reaffirmed the catalyst rule.63
In the face of this precedent, Mr. Sutton's brief was mostly
devoted to policy. He argued that fee-shifting is a bad
idea because it reverses the "historic presumption
against shifting responsibility for attorney fees,"64
but this was precisely Congress's intent in enacting fee
shifting provisions. He argued that the catalyst rule forces
"lower courts into utterly speculative debates over
why parties voluntarily dismiss cases or voluntarily change
their conduct after cases are filed"65
but ignores that lower courts had been applying the catalyst
rule for more than a decade with few recorded problems.
Finally, Mr. Sutton argued that the plain meaning of the
term "prevailing" precluded recovery when a claimant
merely caused a change in behavior,66
but he failed entirely to explain why appellate judges overwhelmingly
concluded that the term "prevailing" was at least
ambiguous in this regard.
Justice Ginsburg's stinging dissent to Chief Justice Rehnquist's
majority opinion is equally forceful in response to Mr.
The Court states that the term "prevailing party"
in fee-shifting statutes has an "accepted meaning."
If that is so, the "accepted meaning" is not the
one the Court today announces.
* * *
When this Court rejects the considered judgment prevailing
in the Circuits, respect for our colleagues demands a cogent
explanation. Today's decision does not provide one. The
Court's narrow construction of the words "prevailing
party" is unsupported by precedent and unaided by history
or logic. Congress prescribed fee-shifting provisions *
* * to encourage private enforcement of laws designed to
advance civil rights. Fidelity to that purpose calls for
court-awarded fees when a private party's lawsuit, whether
or not its settlement is registered in court, vindicates
rights Congress sought to secure.67
Comments on Judicial Temperament
A disturbing aspect of the briefs discussed in this memorandum
is Mr. Sutton's tendency to cavalierly disregard precedent
that is unfavorable to his position and his willingness
to instruct judges to ignore precedent in order to rule
in his favor. One example is Mr. Sutton's brief in Buckhannon,
where he blithely asserted that "precedent confirms"
his interpretation of attorneys fees statutes, even though
at least nine courts of appeals cases, not cited by Mr.
Sutton, had rejected his reading.
Even more telling are the district court briefs Mr. Sutton
filed in Westside Mothers. In Mr. Sutton's opening
brief, he confidently and unequivocally stated that federal
rights created under the Spending Clause differ from federal
rights created under other Constitutional grants of authority
and that only the latter category of rights can be enforced
through § 1983. But Maine v. Thiboutot, the
landmark ruling that established that federal statutory
rights could be enforced through § 1983 actions, involved
rights established under the Social Security Act, a Spending
Mr. Sutton's failed entirely to mention this major problem
with his theory in his opening brief and had to admit, rather
sheepishly, in his reply brief that he was "aware that
Thiboutot itself, as well as several of its progeny,
arose in the context of Spending Clause legislation."69
Mr. Sutton's then argued that because the Court in Thiboutot
and subsequent cases had "assumed but not squarely
decided" the enforceability of Spending Clause mandates
under § 1983, the question was an open one. He advised
the district court not to "be overly concerned whether
its decision can be reconciled with the facts - as opposed
to the rationale - of Thiboutot and its progeny."70
Similarly, Sutton argued unequivocally in Westside Mothers
that Spending Clause legislation creates a federal/state
contract despite a 1985 Supreme Court ruling in Bennett
v. Kentucky Department of Education that declared that
Spending Clause legislation was "[u]nlike normal contractual
undertakings" because they "originate in and remain
governed by statutory provisions expressing the judgment
of Congress concerning desirable public policy."71
Mr. Sutton never cited Bennett in his brief and,
perhaps as a result, the district court adopted his position.
The Sixth Circuit, reversed, finding that "binding
precedent has put the issue to rest."72
The Supreme Court denied review in Westside Mothers
and, in June 2002, Justice Scalia reaffirmed Bennett,
stating "we have been careful not to imply that all
contract-law rules apply to spending clause legislation,
see, e.g., Bennett v. Kentucky Dep't of Ed. 470 U.S.
656, 669 (1985)").73
Even as a matter of advocacy, Mr. Sutton's Westside
Mothers briefs push the envelope: ethical rules obligate
lawyers to inform a court of binding precedent that contradicts
More important for present purposes, Mr. Sutton's Westside
Mothers briefs provide a disturbing window into his
views on the authority of a lower court judge regarding
Supreme Court precedent. Mr. Sutton first ignored Maine
v. Thiboutot, a Supreme Court decision that was factually
indistinguishable and directly in opposition to his position,
and then instructed the district court not to be "overly
concerned" with the ruling because the Supreme Court
had backed away from other aspects of Thiboutot in
subsequent cases. But backing away from binding Supreme
Court precedent is the job of the Supreme Court, not a district
judge. Mr. Sutton's Westside Mothers briefs call
into serious question his willingness to follow precedent
and his understanding of the role and power of lower court
judges in our federal judicial system.
Jeffrey Sutton is one of the nation's leading and most
extreme proponents of a judicial activism that is advancing
an anti-environmental policy agenda from the federal bench.
His aggrandized view of the authority of lower court judges
indicates that he would feel little compulsion to follow
precedent that runs contrary to his personal ideology. Mr.
Sutton's nomination to the Sixth Circuit Court of Appeals
thus poses a significant threat to the enforcement of our
nation's core environmental protections.
1 See JOHN T. NOONAN,
JR., NARROWING THE NATION'S POWER
13 (2002) ("This state of affairs invites comparison
with other moments in the history of the United States produced
by positions taken by the Supreme Court - with Dred Scott
v. Sandford, holding that Congress could not constitutionally
prevent property, including slaves, from being brought into
federal territory; with Lochner v. New York, holding that
a state could not constitutionally regulate the hours of
work of employees of business; and with Carter v. Carter
Coal Company, holding that Congress could not constitutionally
regulate the labor relations of a corporation whose business
was coal mining. * * * Each decision is recognized today
as unjustified by the Constitution.").
2 NOONAN, supra note 1, at 154-55.
3 Id. at 140.
4 HOSTILE ENVIRONMENT is available on line
The report was published by the Environmental Law Reporter
as Douglas T. Kendall, Timothy J. Dowling, Sharon Buccino
& Elaine Weiss, Conservative Judicial Activism and the
Environment: An Assessment of the Threat, 32 ENVT'L L. REP.
5 Mr. Sutton argued before the Supreme Court
in City of Boerne v. Flores, 521 U.S. 507 (1997), Univ.
of Alabama v. Garrett, 531 U.S. 356 (2001), Alexander v.
Sandoval, 532 U.S. 275 (2001), and Kimel v. Florida Bd.
of Regents, 528 U.S. 62 (2000), and filed briefs in favor
of the states' rights position in Solid Waste Agency of
Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers,
531 U.S. 159 (2001), United States v. Morrison, 529 U.S.
598 (2000), and Buckhannon v. West Virginia Dep't of Health
& Human Res., 532 U.S. 598 (2001).
6 See, e.g., Federalism Revived? The Printz
and City of Boerne Decisions, Oct. 17, 1997, available at
See also, Brief of Amicus Curiae the State of Alabama at
*14, Solid Waste Agency of Northern Cook County (SWANCC)
v. U.S. Army Corps of Eng'rs, 531 U.S. 159 (2001) (No. 99-1178),
available at 2000 WL 1052159 (hereinafter "SWANCC Brief").
7 Federalism Revived? The Printz and City
of Boerne Decisions, supra note 6.
10 Missouri v. Holland, 252 U.S. 416, 435
11 See SWANCC Brief, 2000 WL 1052159. Reports
confirm that Mr. Sutton's litigating positions parallel
his personal views. See Tony Mauro, The Limbo Bar, AMERICAN
LAWYER, October 2001 ("Sutton developed a specialty
of arguing the states' rights side of federalism cases before
the Supreme Court. He also happens to believe in that point
of view . . ."); Tony Mauro, An Unlikely High Court
Specialist, LEGAL TIMES, Nov. 2, 1998 (quoting Mr. Sutton,
"I love these issues. I believe in this federalism
stuff."). In most of the cases cited in this memorandum,
Mr. Sutton has appeared as counsel of record for an amicus
or "friend of the court," frequently the State
of Alabama, a position that gives an advocate considerable
flexibility in expressing his own views before the U.S.
Supreme Court and lower federal courts. Finally, Mr. Sutton
has been an officer of the Federalist Society's Separation
of Powers and Federalism practice group and he has personally
adopted many of the positions that he has taken in his briefs
in articles written for Society publications and speeches
delivered to the Society. In one of these speeches he actually
reprimanded state and local governments for opposing his
positions regarding the reach of federal authority, demanding
that they "develop a little more courage when it comes
to litigating these structural issues." See, e.g.,Federalism
Revived? The Prinz and City of Boerne Decisions, supra note
12 531 U.S. 159 (2001). The Court in SWANCC
ultimately interpreted the Clean Water Act narrowly to avoid
the Commerce Clause question discussed in Mr. Sutton's brief.
See SWANCC, 531 U.S. at 173.
13 SWANCC Brief, 2000 WL 1052159 at *12.
14 See, e.g., Wickard v. Filburn, 317 U.S.
111, 125 (1942) (intrastate activity "may still, whatever
its nature, be reached by Congress if it exerts a substantial
economic effect on interstate commerce . . . ."); United
States v. Darby, 312 U.S. 100, 118 (1941) (rejecting a Commerce
Clause challenge to the Fair Labor Standards Act because
Congress's Commerce Clause power "extends to those
activities intrastate which so affect interstate commerce
. . . as to make regulation of them appropriate means to
the attainment of a legitimate end . . . .").
15 514 U.S. 549 (1995).
16 529 U.S. 598 (2000).
17 Missouri v. Holland, 252 U.S. 416, 435
19 The Rehnquist Supreme Court has repeatedly
held that trash is an object of commerce, see, e.g., C&A
Carbone, Inc. v. Town of Clarkson, New York, 511 U.S. 383
(1994), and has repeatedly struck down local efforts to
regulate the flow of trash. Id.
20 SWANCC, 531 U.S. at 192-93 (Stevens,
J., with whom Souter, Ginsburg, & Breyer, JJ., join,
21 SWANCC, 531 U.S. at 173.
22 Missouri v. Holland, 252 U.S. at 431.
23 SWANCC Brief, 2000 WL 1052159 at *4.
24 Id. at *12.
26 927 F. Supp. 1502 (S.D. Ala. 1996).
27 Id. at 1532-1533.
28 Id. at 1533.
29 See Nova Chemicals, Inc. v. GAF Corp.,
945 F. Supp. 1098 (E.D. Tenn. 1996); U.S. v. NL Indus.,
Inc., 936 F. Supp. 545 (S.D. Ill. 1996).
30 United States v. Olin Corp., 107 F.3d
1506 (11th Cir. 1997).
31 U.S. CONST. amend. XI. The Amendment
states simply: "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."
32 490 U.S. 1 (1989), overruled by Seminole
Tribe of Florida v. Florida, 517 U.S. 44 (1996).
33 209 U.S. 123 (1908).
34 133 F. Supp. 2d 549, rev'd 289 F.3d
852 (2002), cert. denied, 123 S. Ct. 618 (2002).
35 U.S. Const. Art. 1, § 8 (providing
the power to tax and spend for the "general welfare").
In United States v. Butler, 297 U.S. 1 (1936), the Court
rejected Madison's view and held that the "power of
Congress to authorize expenditure of public moneys for public
purposes is not limited by the direct grants of legislative
power found in the Constitution." Id. at 66.
36 Brief of Amicus Curiae Michigan Municipal
League at 2, Westside Mothers v. Haveman, 133 F. Supp. 2d
549 (2001) (No. 99-73442).
38 See Reply Brief of Amicus Curiae Michigan
Municipal League at 7, Westside Mothers v. Haveman, 133
F. Supp. 2d 549 (2001) ("Ex Parte Young explicitly
approved the holding and rationale of In re Ayers, 123 U.S.
443 (1887), distinguishing that case as involving 'an attempt
to make the state itself, through its officers, perform
its alleged contract, by directing those officers to do
acts which constituted such performance' and recognizing
that it properly denied relief because '[t]he State alone
had any interest in question, and a decree in favor of plaintiff
would affect the treasury of the state'"). In other
words, Mr. Sutton argued that because Spending Clause legislation
created a federal/state contract, such legislation could
not be enforced under Ex Parte Young. The District Court
adopted Mr. Sutton's argument on this point. See Westside
Mothers v. Haveman, 133 F. Supp. 2d at 562.
39 See 133 F. Supp. at 561-62, 574-575.
40 289 F.3d at 858.
41 Id. at 861.
42 Pennsylvania Fed'n of Sportsmen's Clubs,
Inc. v. Hess, 297 F.3d 310 (3d Cir. 2002).
43 Bragg v. West Virginia Coal Ass'n, 248
F.3d 275 (4th Cir. 2001), cert. denied, 122 S. Ct. 920 (2002).
44 See Pennhurst State School & Hosp.
v. Halderman, 451 U.S. 1 (1981).
45 As explained above, Mr. Sutton believes
that cases challenging federal constitutional authority
are "invariably a battle between the states and the
federal government over legislative prerogative." See
supra text accompanying note 7.
46 532 U.S. 275 (2001).
47 See discussion of the South Camden case
48 This cause of action under Title VI
was originally implied by the Court but has subsequently
been recognized and expanded by Congress.
49 § 602 authorizes federal agencies
"to effectuate the provisions of [§ 601] * * *
by issuing rules, regulations, or orders of general applicability"
(42 U.S.C. 2000d-1). DOJ promulgated a regulation forbidding
funding recipients to "utilize criteria or methods
of administration which have the effect of subjecting individual
to discrimination because of their race, color or national
" (28 C.F.R. § 42.104(b)(2) (1999).
See Buckhannon, 532 U.S. at 278.
50 The Sandoval decision effectively overruled
a line of earlier Supreme Court rulings that had, at the
very least, presumed that § 602 regulations could be
privately enforced. Interpreting these Supreme Court rulings,
ten federal circuit courts had addressed the question of
whether there was a private cause of action to enforce regulations
validly promulgated under Title VI and every one of these
courts had concluded that such a right existed. As Justice
Stevens notes in dissent: "This Court has already considered
the question presented today and concluded that a private
right of action exists." 532 U.S. at 295 (Stevens,
J., dissenting). Stare decisis alone demanded that the Sandoval
plaintiffs prevail. Justice Stevens ends his Sandoval dissent
with a stinging critique of the majority's activism in denying
the Sandoval class a day in court: