Allen v. Cooper

Whether Congress validly abrogated state sovereign immunity via the Copyright Remedy Clarification Act, which allows authors of original expression to sue states who infringe their federal copyrights?

• Derek L. Shaffer, for the petitioners
• Ryan Park, for the respondents

In Allen v. Cooper, Justice Alito said (at p. 31 of the transcript) to Derek Shaffer, arguing for the petitioners:  “I didn’t understand you to be making an argument under U.S. versus Georgia. Am I wrong? You’re making an as-applied argument to this particular case?” Mr. Shaffer said in response: “I think it’s on North Carolina to make an as-applied challenge, Justice Alito. Our respectful submission is that the CRCA is constitutional as enacted by Congress and as relied upon by us in this case.”

With respect, I would submit that Mr. Shaffer’s answer was a non sequitur. Worse, he did not recognize a potentially friendly question as such. To see why, requires a little background.

Allen presents the question whether Congress has the power to abrogate state sovereign immunity when acting pursuant to Article I’s Patent and Copyright Clause. The Supreme Court appeared to give a negative answer to that question in Florida Prepaid Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S. 627 (1999), but Mr. Shaffer gamely sought to distinguish that case or, in the alternative, to invite the Court to overrule it. Neither Justice Alito nor any of the other Justices seemed especially sympathetic to Mr. Shaffer’s main line of argument, however.

Justice Alito’s question about United States v. Georgia, 546 U.S. 151 (2006), offered a potential lifeline. Let us assume that the Court is not prepared to narrow or overrule Florida Prepaid. Accordingly, Congress may only abrogate state sovereign immunity when acting pursuant to its Article I Bankruptcy power (as the Court held in Central Virginia Community College v. Katz, 546 U.S. 356 (2006)), or when enforcing the Reconstruction Amendments, in which case the Act must be “congruent and proportionate” to a pattern of violations of what the Court itself would recognize as violations of constitutional rights. But Georgia holds that even if an Act as a whole is not congruent and proportionate, it can be a valid basis for abrogating state sovereign immunity when a plaintiff invokes the Act in particular circumstances in which it serves to remedy “actual violations” of constitutional rights. Thus, although the Court had previously found that Title II of the Americans with Disabilities Act was not generally congruent and proportionate to a pattern of constitutional violations, in Georgia it sustained that provision as applied to an actual constitutional violation. Tennessee v. Lane, 541 U.S. 509 (2004), was to the same effect.

Thus, Mr. Shaffer’s answer to Justice Alito – “it’s on North Carolina to make an as-applied challenge” – makes no sense. Justice Alito was not asking whether any party could make an as-applied challenge to the Copyright Remedy Clarification Act. By asking about the Georgia case, Justice Alito was wondering whether the plaintiffs had preserved an argument for sustaining that Act as applied to the particular conduct North Carolina allegedly committed, even if the Act is not generally a valid basis for congressional abrogation of sovereign immunity.

To his credit, Mr. Shaffer did eventually say that he supported the arguments of amici urging a Georgia/Lane rationale, but his initial non sequitur had by then muddled matters.