In this Article, I discuss the Alden Trilogy's interpretive process and its redistribution of political power, but do not linger on either. This Article is written in praise of the Trilogy, but praise coupled with protest. I make three essential points. First, the Trilogy deserves praise as a pragmatic masterpiece. Through it the Court shrewdly avoided a constitutional quagmire that easily could have created a federalism crisis.
Second, I argue that the Alden Trilogy is an exemplar of misdirection. Here I render reluctant praise, like that given to an opposing baseball team's dramatic double-play. Though one dislikes the outcome, one cannot deny the skill just witnessed. In this regard, I show that through its deft deployment of state sovereign immunity doctrine, the Supreme Court has enhanced its own power as well as that of the federal Executive Branch to the detriment of Congress's lawmaking power. Moreover, although the Trilogy focuses on Congress's remedial authority, it thwarts Congress's substantive lawmaking capacity.
Third, I show that the Trilogy has a dark side. Today, no individual can bring a damage action in any court against an unconsenting state to enforce federal statutory rights enacted pursuant to Congress's Article I powers.2" This situation creates a profoundly disquieting enforcement gap that threatens to undermine the rule of law values in our constitutional scheme, particularly the principle that for every right there ought to be a remedy.
To situate this Article's praise and protest of the Alden Trilogy doctrinally, I begin with an abridged summary of the federalism developments of the past several decades, developments that preordained the confrontation that resulted in the Trilogy. Next, I describe the holdings of each Trilogy case, including the interpretive frameworks adopted, and identify unresolved issues generated by these holdings. I then turn to my principal undertaking: consideration of 1) how the Trilogy pragmatically avoided a constitutional crisis; 2) how the three cases masterfully invite attention in one direction while moving the law in another; and 3) how these cases raise rule of law concerns by creating a disjunction between Congress' substantive and remedial authority.
Roger C. Hartley, The Alden Trilogy: Praise and Protest, 23 HARV. J.L. & PUB. POL’Y 323 (2000).