Re: Family and Medical Leave Act upheld

[Marci Hamilton]

The Hibbs majority is in the mainstream of the Boerne reasoning, to be sure.  What this proves is that the constant criticism of the Court's federalism jurisprudence as a political attack on civil rights in general was unfounded.  As the Court has said repeatedly, the Civil Rights Acts are fine under this analysis.  The key, as Ann points out, is the level of scrutiny.  Where there is increased scrutiny, a la race or gender, the Court is going to be more likely to uphold a federal law regulating the states under Sec. 5.  But where the right is examined under rationality review, Garrett and disability rights, the Congress is going to have less latitude and more of a burden in showing the necessity of its actions.

I don't think there is any question that Scalia is pushing the envelope or that he will not get a majority on such reasoning.

Marci