Tuesday, May 27, 2003

Considering Nevada Department of Human Resources v. Hibbs

I am puzzled by the outcome in today's decision by the Supreme Court in Nevada Department of Human Resources v. Hibbs.

The idea that Congress was acting to remedy discrimination by "the States" seems like a scam, first because certainly not all of them were engaged in such "discrimination," and second because it would not be discrimination for them to provide no leave at all. It makes sense to me that Congress has the power to prohibit discrimination by the states, but not that the Congress can require that they all should provide family and medical leave, much less than they can all be sued in federal court simply for not providing leave (without discrimination). Could the Congress require "the States" to provide day care, health insurance for specific health problems, scholarships for the children of single parents, disability and death benefits for their employees, all in the name of fighting gender discrimination? Maybe so, but I would not have thought it.

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