Congress Walks the Plank: Allen v. Cooper

This past Monday, the Supreme Court in Allen v. Cooper struck down a 1990 Congressional statute that had allowed citizens to sue a state in federal court for copyright infringement. The case arose after a marine salvage company discovered the wreck of the Queen Anne’s Revenge, Blackbeard’s famous pirate ship, off the coast of North Carolina and recorded documentary footage of the discovery. When North Carolina published some of the footage in various media, the company sued the state for copyright infringement. The question before the Court was whether the Constitution gives Congress the power to rescind the states’ sovereign immunity from copyright infringement claims. Justice Kagan answered “no” with a 7:2 majority, leaving the company marooned. (For lovers of wordplay and maritime puns, this piece is for you.)


In deference to Justice Elena Kagan’s brilliant writing, I must begin with her own opening paragraph. Here’s her history of Blackbeard and his dinghy:

In 1717, the pirate Edward Teach, better known as Blackbeard, captured a French slave ship in the West Indies and renamed her Queen Anne’s Revenge. The vessel became his flagship. Carrying some 40 cannons and 300 men, the Revenge took many prizes as she sailed around the Caribbean and up the North American coast. But her reign over those seas was short-lived. In 1718, the ship ran aground on a sandbar a mile off Beaufort, North Carolina. Blackbeard and most of his crew escaped without harm. Not so the Revenge. She sank beneath the waters, where she lay undisturbed for nearly 300 years.

Nearly three centuries later, Intersal, Inc., a company that discovers and salvages shipwrecks, found the remnants of the Revenge. The State of North Carolina contracted with Intersal to take on recovery operations, and Intersal hired Frederick Allen, a local videographer, to film the company’s activities. For years Allen documented Intersal’s efforts to salvage the Revenge and her barnacled remains, and he registered copyrights for all of his films.

In 2013, North Carolina published some of Allen’s photos and documentary footage in various media, including a state newsletter, the state’s own website, and elsewhere online. Allen sued the state, charging it with copyright infringement—or, as Justice Kagan writes, “a modern form of piracy.”

In defense, North Carolina invoked state sovereign immunity under the Eleventh Amendment. The doctrine provides that a private person cannot sue a state in a federal court without the state’s consent. (Rather, the person ought to sue the state in the state’s own courts.) Allen objected, arguing that there’s an exception for copyright suits like his. He cited the Copyright Remedy Clarification Act of 1990 (CRCA), which declares that a state “shall not be immune, under the Eleventh Amendment . . . or any other doctrine of sovereign immunity, from suit in Federal court . . . for a violation of any of the exclusive rights of a copyright owner provided by” the CRCA (17 U.S.C. §511(a)). North Carolina replied that the Constitution does not give Congress the power to enact the CRCA. The Fifth Circuit Court of Appeals agreed with North Carolina and struck down the statute. Allen then petitioned to the Supreme Court, which took up his case.

Justice Elena Kagan’s Majority Opinion

Justice Kagan, writing for a 7:2 majority, affirms the Fifth Circuit’s decision and holds that the Constitution provides Congress with no basis for enacting the CRCA. Chief Justice Roberts and Justices Thomas, Alito, Sotomayor, Gorsuch, and Kavanaugh join Kagan’s opinion.

First, it should be noted that Congress enacted the CRCA in a package; in the early ’90s, Congress also brought onboard a state immunity-stripping statute for patent infringement cases. But in Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank (1999), the Court struck down the sister statute as invalid, holding that Congress had no Constitutional authority to enact the patent-infringement law. So, to salvage the CRCA, Allen argues that two clauses of the Constitution do give Congress such authority in the waters of copyright infringement. He points first to the Intellectual Property Clause of Article I (Art. I §8, cl. 8) and alternatively to the Enforcement Clause of the Fourteenth Amendment (Amend. XIV §5).

The Intellectual Property Clause provides that Congress “shall have power to . . . promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” Allen contends that the power to abrogate states’ immunity from copyright suits follows naturally from this clause. But “[t]he problem for Allen,” Kagan replies, “is that this Court has already rejected his theory” in Florida Prepaid. There, the Court acknowledged that the Intellectual Property Clause is intended to safeguard the “uniform, surefire protection” of intellectual property. But this doesn’t mean Congress possesses the power to wholly revoke the states’ freedom from being sued for infringing a citizen’s intellectual property rights. Thus, Florida Prepaid held that Congress cannot anchor in the Intellectual Property Clause a statute that strips the states of immunity from patent suits. This exact same reasoning applies to the CRCA, Kagan says. In general, Congress’ “power to ‘secur[e]’ an intellectual property owner’s ‘exclusive right’ under Article I” runs aground when it hits “sovereign immunity.” It’s a little dash of federalism in your spiced rum; true, Congress has a duty to enforce the guarantees of the Intellectual Property Clause, but that duty cannot override the states’ right of exemption from certain lawsuits.

Allen thinks he has a lifeboat. He steers the Court’s attention to Central Virginia Community College v. Katz (2006). There the Supreme Court held that the Bankruptcy Clause of the Constitution (Art. I §8, cl. 4) gives Congress the authority to rescind state immunity vis-à-vis bankruptcy proceedings—the opposite of Florida Prepaid‘s holding for patent proceedings. So why stop there, Allen asks? If one clause in the Constitution permits Congress to subject nonconsenting states to bankruptcy proceedings, his argument goes, why can’t a neighboring clause do the same thing with copyright proceedings?

The answer, Kagan says, is the “exceptional[],” “singular nature” of bankruptcy jurisdiction—and the fact that Katz dealt only with this. First, bankruptcy jurisdiction has always been “premised on the debtor and his estate, and not on the creditors” which often “includ[e] a State,” she writes (quoting Katz). So, the Katz Court felt that the Bankruptcy Clause “does not implicate States’ sovereignty to nearly the same degree as other kinds of jurisdiction.” Second, the Clause itself has a “unique” history. The Founders, Kagan explains, saw that the several states “‘had wildly divergent schemes’” for discharging debt, and often “‘refus[ed] to respect one another’s discharge orders'” (quoting Katz). The Framers sought to address that problem in the Bankruptcy Clause, and “in that project, [they] intended federal courts to play a leading role,” she says. Finally, Katz declared something very important (and very problematic for Allen) about the Bankruptcy Clause itself. The Katz Court could’ve concluded that the Bankruptcy Clause permits Congress to pass legislation stripping states’ bankruptcy immunity. It didn’t; it went furtherKatz “found that the Bankruptcy Clause itself did the abrogating,” Kagan emphasizes (italics in original). The Katz Court didn’t need to put the task on Congress’ plate; the Constitution had already taken care of it. Why? Because, Kagan writes, “the States had already ‘agreed in the plan of the Convention not to assert any sovereign immunity defense’ in bankruptcy proceedings” (quoting Katz).

Thus, Florida Prepaid quells any notion that the CRCA stems from the Intellectual Property Clause, and alternative reliance on Katz is inapposite. Allen’s first argument is sunk.

We now embark on the second leg of our voyage: the Enforcement Clause of the Fourteenth Amendment. The clause provides that Congress shall have the “power to enforce, by appropriate legislation,” the substantive provisions of the Fourteenth Amendment. Those provisions are found in Section 1 and guard against the “depriv[ation] . . . of life, liberty, or property, without due process of law.” The Court has concluded, Kagan acknowledges, that Section 1 “may enable Congress to abrogate the States’ immunity and thus subject them to suit in federal court,” adducing Fitzpatrick v. Bitzer (1976). But Congress may only do so via a statute that is “tailored to ‘remedy or prevent'” the type of conduct barred by Section 1 (quoting City of Boerne v. Flores (1997)). This, of course, follows from the plain text of the Enforcement Clause.

The Court in Boerne created a “means-ends” test for determining whether Congress has abrogated immunity “by appropriate legislation.” That test says there “must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.”

Let’s apply that test to this case. Here, the “injury” Congress seeks to “prevent[] or remed[y]” is a person’s intellectual property being plundered; the “means” Congress has “adopted to that end” is the CRCA, a statute that revokes state immunity from copyright infringement suits. Now, is there both a “congruence” and “proportionality” between the means and the end? Allen earnestly argues “yes.”

He casts off well; there is at least a congruence between the two, Kagan admits. “Copyrights are a form of property,” and Section 1 of the Fourteenth Amendment prohibits states from “depriv[ing]” a person of property “without due process of law.” So, if the injury a person suffers is the deprivation of his copyright property by a state without due process of law, then a congressional statute making that state liable to suit is “congruent” or compatible with “remedy[ing]” or “prevent[ing]” that injury.

But, turning to proportionality, Allen struggles to remain afloat. First, recall Florida Prepaid, the case that struck down Congress’ mirror-image attempt to nullify state immunity from patent infringement claims. That Court held that the statute plainly failed the “proportionality” prong. The patent statute “swept too far,” Kagan says. It “did not set any limits.” It “did not . . . confine the abrogation to suits alleging” knowable or intended infringement. It “did not . . . target States [that] refus[ed] to offer alternative remedies to patent holders.” In short, the patent statute categorically revoked state immunity, and it did so without ever showing that it “was responsive to, or designed to prevent, unconstitutional behavior” (emphasis added). Thus, the patent statute was plainly disproportionate.

Allen’s in choppy waters now. If the only difference between that statute and the CRCA is the substitution of “copyright” for “patent,” is there any way the CRCA could come out differently? “[O]nly if [it] responded to materially stronger evidence of infringement, particularly of the unconstitutional kind,” Kagan asserts. Allen argues that a Congressional report pre-dating the CRCA presents such evidence. Specifically, the then-Register of Copyrights submitted a 158-page report to Congress stating that, unless the CRCA is enacted, “copyright proprietors . . . will suffer immediate harm” because they will be “unable to sue infringing states in federal court.” Allen contends this is enough to demonstrate greater evidence of infringement, thereby allowing the CRCA to find safe harbor while the patent statute did not.

Kagan, however, disagrees. She makes clear that, other than that “headline-grabbing conclusion,” there is “nothing in the [report] or the rest of the legislative record” that “cures the problems we identified in Florida Prepaid.” For one, the report presents “scarcely more” concrete evidence of state copyright infringement than the Florida Prepaid Court saw of patent infringement. But what worries Kagan more is that neither the report nor the CRCA’s legislative record voices any “concern with whether the States’ copyright infringements . . . violated the Due Process Clause.” The report, for instance, cites an armada of state law cases that involve some kind of copyright injury. But “only two” even “appear . . . to raise a constitutional issue,” let alone confirm a due process injury, Kagan points out (emphasis added). Such a showing is absolutely crucial to prove that a congressional abrogation is proportional to the injury suffered by a person whose rights under Section 1 of the Fourteenth Amendment have been violated by a state. It does the Court no good to point to a type of injury that isn’t actually violative of the Due Process Clause. Therefore, Kagan concludes that Florida Prepaid commands the same result as it did then: “the CRCA . . . must fail our ‘congruence and proportionality’ test.” Allen’s Enforcement Clause is also sunk, and his case has keeled over.

All this talk ultimately makes one thing clear in Kagan’s mind: “Florida Prepaid all but prewrote our decision today.” Florida Prepaid held that (1) the Intellectual Property Clause does not, by itself, allow Congress to rescind state sovereign immunity; and (2) the Enforcement Clause of the Fourteenth Amendment does allow Congress to do so only if Congress presents a strong legislative record. The Florida Prepaid Court jettisoned the patent statute because it failed both marks. The CRCA is no different; it has to be tossed overboard too.

Finally, Kagan offers a few words about the consequences of the Court’s decision. First, the immediate result is that states are immune from being haled into federal court by a private citizen alleging copyright infringement. But Kagan’s decision by no means “prevent[s] Congress from passing a valid copyright abrogation law in the future.”  The Intellectual Property Clause alone will not supply a sound basis, that much is clear. But the Enforcement Clause of the Fourteenth Amendment can. Congress simply needs to do what it failed to do with the CRCA: identify a “violation[] of due process” and then “enact a proportionate [and congruent] response.”

Justice Clarence Thomas’ Concurrence

Justice Thomas wrote a three-page opinion concurring in part and concurring in the judgment. He first makes clear that he “agrees with the Court’s conclusion that the [CRCA] . . . does not validly abrogate States’ sovereign immunity.” However, he does have “two disagreements” with the majority opinion. He also wants to bring out “one question that remains open for resolution in a future case.”

First, his disagreements. Recall Kagan’s heavy reliance on Florida Prepaid. We now know that the CRCA follows the exact same course that Florida Prepaid charted, and thus Allen is left high and dry. Well, there is always the possibility that the course charted was wrong and should be drawn differently—in other words, that Florida Prepaid was decided incorrectly and should be overruled. Kagan dismisses this idea in as many words. But Thomas goes a bit further. He quotes Kagan as saying the Court needs “special justification[s]’” to overrule precedent because error alone “cannot overcome stare decisis.” To Thomas, this is too strict a standard. “If our decision in Florida Prepaid were demonstrably erroneous,” he contends, “the Court would be obligated to correct the error, regardless of whether other factors support overruling the precedent” (internal citation and quotation marks omitted).

Second, remember that Kagan devotes a paragraph to the ramifications of the Court’s decision. But in Thomas’ mind, the Court “should opine on ‘only the case before us in light of the record before us'” (quoting last term’s decision in Manhattan Community Access Corp. v. Halleck (2019)). This doesn’t include opining on future actions or hypothetical cases. Thomas would simply steer clear of any discussion of what this case means for Congress. To him, prescience is not productive.

Finally, Thomas voices his hesitancy about Kagan’s declaration that copyrights are “property” within the meaning of the Due Process Clause. He thinks this is still an “open question” and would be “willing to consider the matter in an appropriate case.”

Justice Stephen Breyer’s Opinion

Justice Breyer (joined by Justice Ginsburg) filed a short opinion “concurring in the judgment.” This is legalese for, “I agree only with what the Court says should happen to the case now.” The majority “affirmed” the Fifth Circuit’s decision, meaning the next step for the case is to do whatever the Fifth Circuit told it to do—likely dismissal. Thus, Breyer agrees that the Fifth Circuit’s decision should be kept in place.

But Breyer drops anchor there. He disagrees with the majority’s opinion on the merits of Allen’s case (that is, the Court’s holding and reasoning). Breyer’s opinion is that the Constitution’s Intellectual Property Clause gives citizens a fundamental, benthic right not to have their intellectual property infringed by the government. “Government” is all-inclusive. So the several states, just like the federal government, have a duty not to infringe that right. “One might therefore expect,” he writes, that a person “injured by a State’s violation of its duty could ‘resort to the laws of his country’ for a remedy, especially where, as here, Congress has sought to provide one” in the CRCA (quoting Kagan’s opinion). But alas, the majority concludes otherwise.

Breyer says the majority opinion leaves Congress to “venture into [a] great constitutional unknown.” “That our sovereign-immunity precedents can be said to call for so uncertain a voyage suggests that something is amiss,” he says. Indeed, Breyer argues the Court went “astray” in Seminole Tribe of Fla. v. Florida (1996)—a case upon which Florida Prepaid relied—and then wandered further in Florida Prepaid.

All that said, though, Breyer wraps up his opinion on a perplexing note: “[R]ecognizing that my longstanding view has not carried the day, and that the Court’s decision in Florida Prepaid controls this case, I concur in the judgment.” For someone who feels so strongly that the relevant precedents were wrong, it is confusing that he would vote to affirm a judgment that applied those precedents to the tee. One plausible explanation is that he is perturbed about flouting stare decisis. Indeed, in Franchise Tax Bd. of California v. Hyatt—a sovereign immunity case from last year in which five Justices voted to reverse a prior decision—Breyer chastised the majority for overturning precedent. (I reviewed the case for the blog.) If not this, though, what then? His dissent argued that the Court is sailing into uncharted waters, so perhaps he sees something foggy in the offing. But if this is the case, he says not what.

Photo Credits:
Jean Leon Gerome Ferris, Capture of the Pirate, Blackbeard, 1718 (1920)

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