As with the constitutional struggle that was stirred up by the passage of ObamaCare, the President’s latest pet proposal is brightening the battle lines between friends of federal power and those who advocate the protection of the sovereignty of states. The American Jobs Act contains several key provisions that apparently push the boundary between state and federal power back, expanding Washington’s sphere of authority.
Section 376 of the President’s bill, for example, seems to abolish the protection of immunity provided to states by the 11th Amendment to the United States Constitution. The section at issue reads:
SEC. 376. FEDERAL AND STATE IMMUNITY.
(a) Abrogation of State Immunity- A State shall not be immune under the 11th Amendment to the Constitution from a suit brought in a Federal court of competent jurisdiction for a violation of this Act.
Later in the same section, the 11th Amendment is again dismissed.
(A) WAIVER- A State’s receipt or use of Federal financial assistance for any program or activity of a State shall constitute a waiver of sovereign immunity, under the 11th Amendment to the Constitution or otherwise, to a suit brought by an employee or applicant for employment of that program or activity under this Act for a remedy authorized under Section 375(c) of this Act.
A fair reading of this portion of the American Jobs Act reveals that if any state chooses to avail itself of the federal funds provided by the bill, it must at the same time accept the surrender of its constitutionally protected sovereign immunity.
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