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Federalism: Selected Opinions of Judge Samuel Alito

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During his 15 years as a federal appellate judge on the Third Circuit, Judge Samuel Alito has written several opinions related to federalism. Two of these cases appear to be of particular significance. In Chittister v. Department of Community and Economic Development, Judge Alito authored a unanimous opinion which held that an individual could not sue a state under the Family Medical Leave Act (FMLA). This opinion addressed an issue which has been controversial in recent years -- the parameters of the 11th Amendment and Section 5 of the 14th Amendment. The decision held that a provision of the Family Medical Leave Act which mandates the provision of sick leave for employees with serious health conditions could not be enforced by employees against states agencies or instrumentalities.

In United States v. Rybar, Judge Alito authored a dissent to a decision that upheld a law providing that "it shall be unlawful for any person to transfer or possess a machine gun" as within the authority of the Congress under the Commerce Clause. Judge Alito, noting that the statute lacked both a requirement for a specific connection to interstate commerce and findings that the purely intrastate possession of machine guns had a substantial effect on interstate commerce, would have struck the law down.

In general, it appears that Judge Alito's opinion in the Chittister case was consistent with Supreme Court precedent at the time. Although Judge Alito has been criticized because his opinion did not anticipate the result in the subsequent case of Nevada Department of Human Resources v. Hibbs, the Hibbs case actually addressed a separate provision of the FMLA. The Chittister case is arguably distinguishable from the Hibbs case, a conclusion which has been reached by other federal circuits.

Judge Alito's dissent in the Rybar case, however, seems to have anticipated a more expansive application of the Supreme Court decisions in Lopez and Morrison than was being utilized by most other circuits at the time. Further, his reasoning in Rybar may have been repudiated by the Supreme Court in Gonzales v. Raich. Consequently, it would appear that Judge Alito's dissent was an argument for a more limited interpretation of the Commerce Clause than is consistent with current case law.