Union Pacific v. State of Utah ( 1999 )

  •                                                       F I L E D
                                                 United States Court of Appeals
                                                         Tenth Circuit
                                                          DEC 3 1999
                                            PATRICK FISHER
                         TENTH CIRCUIT
    WASHINGTON COUNTY; WEBER               Nos. 97-4197
    COUNTY; MONTE MUNNS; KAREN                  98-4002
    NILA DAYTON, county defendants,
     SHEARER, state defendants,
                         Appeal from the United States District Court
                                   for the District of Utah
                         (D.C. Nos. 97-CV-341-C and 97-CV-419-B)
    John C. McCarrey, Assistant Attorney General (Kelly W. Wright, Special
    Assistant Attorney General and Michelle Bush, Assistant Attorney General, with
    him on the briefs), Salt Lake City, Utah, appearing for Defendants-Appellants.
    Robert A. Peterson (Kevin Joseph Simon of Giauque, Crockett, Bendinger &
    Peterson with him on the brief), of Giauque, Crockett, Bendinger & Peterson, Salt
    Lake City, Utah, appearing for Plaintiffs-Appellees.
    Stephanie R. Marcus (Mark B. Stern, Department of Justice, Washington, D.C.,
    with her on the brief) of the Department of Justice, Washington, D.C., for
    Before SEYMOUR, Chief Judge, BRORBY and HENRY, Circuit Judges.
    SEYMOUR, Chief Judge.
          Union Pacific Railroad Company and Utah Railway Company (the
    Railroads) brought separate actions for injunctive and declaratory relief against
    the State of Utah, the Utah State Tax Commission and the Tax Commissioners
    (State defendants), and various Utah counties and the treasurers of these counties
    (County defendants) under the Railroad Revitalization and Regulatory Reform Act
    (4-R Act), 49 U.S.C. § 11501 (1994). The Railroads allege that their property has
    been assessed substantially in excess of its fair market value for tax purposes
    while all other commercial and industrial property in the same tax category is
    assessed at less than fair market value, and that this discriminatory treatment
    violates section 11501.
          The State defendants in both cases moved to dismiss on the basis of
    Eleventh Amendment immunity. The district court ruled in both actions that
    section 11501 does not abrogate Eleventh Amendment immunity and granted the
    motions to dismiss with respect to the State of Utah and the Utah Tax
    Commission. See Union Pac. R.R. Co. v. Utah, 
    996 F. Supp. 1358
    , 1362 (D. Utah
    1997). 1 The court concluded, however, that the individual members of the Tax
    Commission are amenable to suit under Ex parte Young, 
    209 U.S. 123
     (1908), and
            The district court ruling in the Union Pacific Railroad case is published as
    cited above. The ruling in the Utah Railway case is not published. See Aplt.
    App., vol. II, at 338. Because the two rulings are identical in their disposition of
    the Eleventh Amendment issues, we consolidated the appeals.
    denied the motion to dismiss as to those defendants. See 996 F. Supp. at 1362-63;
    Aplt. App., vol. II, at 339. Both sides appeal. We hold that section 11501 is a
    valid abrogation of Eleventh Amendment immunity and we therefore do not
    address the district court’s application of Ex parte Young.
                            Eleventh Amendment Immunity
          The Eleventh Amendment states that “[t]he Judicial power of the United
    States shall not be construed to extend to any suit in law or equity, commenced or
    prosecuted against one of the United States by Citizens of another State, or by
    Citizens or Subjects of any Foreign State.” U.S. C ONST . amend. XI. The
    immunity provided by the Eleventh Amendment is not absolute. “A state may
    consent to be sued in federal court, or Congress may abrogate sovereign
    immunity. To abrogate Eleventh Amendment immunity, Congress must have
    ‘unequivocally expresse[d] its intent to abrogate the immunity’ and ‘acted
    pursuant to a valid exercise of power.’” Migneault v. Peck, 
    158 F.3d 1131
    , 1135
    (10th Cir. 1999) (internal quotations and citations omitted).
          In a series of recent cases, the Supreme Court has addressed congressional
    power to abrogate the immunity provided by the Eleventh Amendment. In
    Seminole Tribe of Florida v. Florida, 
    517 U.S. 44
    , 59, 65-66 (1996), the Court
    concluded that Congress may only abrogate state immunity when it acts pursuant
    to the legislative authority granted to it by section 5 of the Fourteenth
    Amendment. In City of Boerne v. Flores, 
    521 U.S. 507
     (1997), the Court
    analyzed the scope of congressional power under section 5, providing the analysis
    by which we determine whether a congressional abrogation of Eleventh
    Amendment immunity is a valid exercise of that power. In so doing, the Court
    articulated several governing principles that we set out below as a framework for
    our consideration of the validity of the abrogation contained in section 11501 of
    the 4-R Act.
           The Fourteenth Amendment restricts the power of the states by providing
           [n]o State shall make or enforce any law which shall abridge the
           privileges or immunities of citizens of the United States; nor shall
           any State deprive any person of life, liberty, or property, without due
           process of law; nor deny to any person within its jurisdiction the
           equal protection of the laws.
    U.S. C ONST . amend. XIV, § 1. Congressional power to abrogate state immunity is
    contained in section 5, which provides that “[t]he Congress shall have power to
    enforce, by appropriate legislation, the provisions of this article.” Id. § 5.
           In considering the interplay of these two provisions and the scope of
    Congress’ power under them, the Court initially observed that section 5 is a broad
    grant of authority. City of Boerne, 521 U.S. at 517.
          Whatever legislation is appropriate, that is, adapted to carry out the
          objects the amendments have in view, whatever tends to enforce
          submission to the prohibitions they contain, and to secure to all
          persons the enjoyment of perfect equality of civil rights and the equal
          protection of the laws against State denial or invasion, if not
          prohibited, is brought within the domain of congressional power.
    Id. at 517-18 (quoting Ex parte Virginia, 
    100 U.S. 339
    , 345-46 (1879)).
    Accordingly, the Court reiterated the principle that “[l]egislation which deters or
    remedies constitutional violations can fall within the sweep of Congress’
    enforcement power even if in the process it prohibits conduct which is not itself
    unconstitutional and intrudes into ‘legislative spheres of autonomy previously
    reserved to the States.’” Id. at 518 (quoting Fitzpatrick v. Bitzer, 
    427 U.S. 445
    455 (1976)). Moreover, the Court left undisturbed the principle that
    congressional action may be upheld under section 5 even when Congress does not
    expressly rely on that provision as the source of its abrogation power. See, e.g.,
    EEOC v. Wyoming, 
    460 U.S. 226
    , 243 n. 18 (1983) 2; see also Fullilove v.
            In holding that Congress need not expressly rely on section 5 for
    abrogation to be valid, the Court in EEOC v. Wyoming distinguished Pennhurst
    State Sch. v. Halderman, 
    451 U.S. 1
    , 16 (1981), in which the Court cautioned that
    “we should not quickly attribute to Congress an unstated intent to act under its
    authority to enforce the Fourteenth Amendment.” In Pennhurst, the Court had to
    determine whether Congress had intended to create substantive rights through
    unclear statutory language. Thus, its task was “to divine the meaning of
    otherwise ambiguous intent,” in order “to construe a statute, not to adjudge its
    constitutional validity.” EEOC, 460 U.S. at 243 n.18. Where, as in EEOC and
    the present case, the congressional intent is clear, “[t]he observations in
    Pennhurst . . . simply have no relevance to the question of whether . . . Congress
    acted pursuant to its powers under § 5.” Id.
    448 U.S. 448
    , 478 (1980); Katzenbach v. Morgan, 
    384 U.S. 641
    , 650-
    51 (1966); L AURENCE H. T RIBE , A MERICAN C ONSTITUTIONAL L AW § 5-4, at 307 n.
    6 (2d ed. 1988) (“An otherwise valid exercise of congressional authority is not, of
    course, invalidated if Congress happens to recite the wrong clause . . . as the
    source of its power--or, indeed, if Congress recites no clause at all.”).
          The Court cautioned, however, “that ‘[a]s broad as the congressional
    enforcement power is, it is not unlimited.’” City of Boerne, 521 U.S. at 518
    (quoting Oregon v. Mitchell, 
    400 U.S. 112
    , 128 (1970) (opinion of Black, J.)).
    The Court pointed out that congressional power under section 5 is remedial in
    nature, and confers the authority to enforce the Fourteenth Amendment rather
    than to define its parameters as a matter of substantive law. Id. at 519. While
    recognizing that the line between remedy and substance is not easy to discern, the
    Court emphasized that “the distinction exists and must be observed.” Id. at 520.
    Accordingly, the Court established several factors to guide an assessment of
    whether an abrogation of immunity under section 5 is a valid remedial measure or
    an impermissible substantive change in the governing law.
          The Court stated that legislation adopted under the enforcement clause must
    be judged with reference to the historical experience it reflects, id. at 525, and
    that the “appropriateness of remedial measures must be considered in light of the
    evil presented,” id. at 530. In assessing this factor, the Court looked to the
    legislative record before Congress as an indication that the congressional action
    taken was necessary and appropriate. The Court noted that lack of evidentiary
    support is not conclusive.
          Judicial deference, in most cases, is based not on the state of the
          legislative record Congress compiles but “on due regard for the
          decision of the body constitutionally appointed to decide.” As a
          general matter, it is for Congress to determine the method by which it
          will reach a decision.
    Id. at 531-32 (citation omitted).
          Accordingly, the Court also looked to whether the legislation was
    proportional to its remedial or preventive object and could thus “be understood as
    responsive to, or designed to prevent, unconstitutional behavior.” Id. at 532.
    The Court cautioned that the sweep of remedial legislation must be congruent
    with and carefully directed to the scope of the unconstitutional conduct it was
    enacted to curtail. Id. at 532-34.
          This is not to say, of course, that § 5 legislation requires termination
          dates, geographic restrictions or egregious predicates. Where,
          however, a congressional enactment pervasively prohibits
          constitutional state action in an effort to remedy or to prevent
          unconstitutional state action, limitations of this kind tend to ensure
          Congress’ means are proportionate to ends legitimate under § 5.
    Id. at 533.
          In its most recent examination of Congress’ power under section 5, the
    Court reiterated and applied its holdings in City of Boerne that “for Congress to
    invoke § 5, it must identify conduct transgressing the Fourteenth Amendment’s
    substantive provisions, and must tailor its legislative scheme to remedying or
    preventing such conduct.” Florida Prepaid Postsecondary Educ. Expense Bd. v.
    College Sav. Bank, 
    119 S. Ct. 2199
    , 2207 (1999). The Court emphasized that
    while the lack of legislative history showing that Congress was responding to a
    history of constitutional violations is not determinative, “identifying the targeted
    constitutional wrong or evil is still a critical part of our § 5 calculus because
    ‘[s]trong measures appropriate to address one harm may be an unwarranted
    response to another, lesser one.’” Id. at 2210 (quoting City of Boerne, 521 U.S. at
            The Court has thus made clear that legislation is more likely to be
    considered a valid exercise of Congress’ section 5 authority if it is supported by a
    legislative record showing the extent of state conduct violative of the Fourteenth
    Amendment, and if it is carefully drawn to target that conduct.
                                         The 4-R Act
            With the above general principles in mind, we turn to the validity of the
    abrogation of Eleventh Amendment immunity contained in the 4-R Act. The
    substantive provision of the Act upon which the Railroads rely provides:
                  The following acts unreasonably burden and discriminate
            against interstate commerce, and a State, subdivision of a State, or
          authority acting for a State or subdivision of a State may not do any
          of them:
                        (1) Assess rail transportation property at a value
                that has a higher ratio to the true market value of the rail
                transportation property than the ratio that the assessed
                value of other commercial and industrial property in the
                same assessment jurisdiction has to the true market
                value of the other commercial and industrial property.
                        (2) Levy or collect a tax on an assessment that
                may not be made under paragraph (1) of this subsection.
                        (3) Levy or collect an ad valorem property tax on
                rail transportation property at a tax rate that exceeds the
                tax rate applicable to commercial and industrial property
                in the same assessment jurisdiction.
                        (4) Impose another tax that discriminates against a
                rail carrier providing transportation subject to the
                jurisdiction of the Board under this part.
    49 U.S.C. § 11501(b).
          The abrogation of Eleventh Amendment immunity which the Railroads
    contend permits their suit for relief under the Act provides:
                 Notwithstanding section 1341 of title 28 [the Tax Injunction
          Act ] and without regard to the amount in controversy or citizenship
          of the parties, a district court of the United States has jurisdiction,
          concurrent with other jurisdiction of courts of the United States and
          the States, to prevent a violation of subsection (b) of this section.
          Relief may be granted under this subsection only if the ratio of
          assessed value to true market value of rail transportation property
          exceeds by at least 5 percent the ratio of assessed value to true
          market value of other commercial and industrial property in the same
          assessment jurisdiction. The burden of proof in determining assessed
            The Tax Injunction Act provides that “[t]he district courts shall not
    enjoin, suspend or restrain the assessment, levy or collection of any tax under
    State law where a plain, speedy and efficient remedy may be had in the courts of
    such State.” 28 U.S.C. § 1341 (1994).
          value and true market value is governed by State law.
    49 U.S.C. § 11501(c).
          To determine whether the above provision is a valid abrogation of state
    sovereign immunity, we must determine whether Congress unequivocally
    expressed its intent to abrogate, and whether it acted pursuant to a valid exercise
    of power. See College Savings Bank, 119 S. Ct. at 2205. The statute contains an
    unmistakably clear expression of congressional intent to abrogate state immunity
    and the parties do not argue otherwise. We therefore must ascertain whether the
    4-R Act is a legitimate exercise of Congress’ section 5 power.
          Following the principles laid down by the Supreme Court, we look first to
    Congress’ identification of the unconstitutional state conduct it intended to
    remedy in passing the 4-R Act. We begin with the legislative record, which
    reveals a substantial history of state discrimination in the taxation of railroad
    property. As the Supreme Court has observed, “[a]fter an extended period of
    congressional investigation, Congress concluded that ‘railroads are over-taxed by
    at least $50 million each year.” Burlington N. R.R. Co. v. Oklahoma Tax
    481 U.S. 454
    , 457 (1987) (quoting H.R. R EP . N O . 94-725, at 78 (1975)).
    The legislative history makes clear that the 4-R Act is intended to eliminate
    “discriminatory State and local taxation of common and contract carrier
    transportation property . . . as an unreasonable and unjust discrimination against
    . . . interstate commerce.” S. R EP . N O . 91-630, at 1 (1969).
                 In essence, the provisions of [section 11501] are designed to
          put an end to the widespread practice of treating for tax purposes the
          property of common and contract carriers on a different basis than
          other property in the same taxing district. In describing the extent of
          discriminatory tax treatment by State and local governments, the
          Doyle report states that ‘despite State laws requiring uniform tax
          treatment, railroads and pipelines are discriminated against as
          compared to other property taxpayers in the same jurisdiction, due in
          large measure to outdated procedures (which are sometimes
          deliberately retained) for assessment of property,’ and went on to
          state that [the committee] had information ‘showing the extent of
          overpayment of railroad ad valorem taxes resulting from the
          assessment of railroad property at a percent of its value that is higher
          than the percent for the assessment of other taxpayer property is to
          the value of such other property’; and that ‘This confirmed the
          findings of this committee that there is a studied and deliberate
          practice of assessing railroad property at a proportion of full value
          substantially higher than other property subject to the same tax rates.
    Id. at 2 (emphasis added). The report also states that “[i]n the last 9 years, the
    railroads alone have been assessed more than $900 million in discriminatory
    taxes.” Id. at 3. Indeed, the legislative history is replete with evidence of
    widespread, long-standing and deliberate “discriminatory taxation of interstate
    common carrier transportation property.” Id. at 4.
          The legislative history sets out Congress’ findings that the discriminatory
    state taxation of interstate railroads runs afoul of the constitution in two ways.
    First, it may violate the rational basis requirement of the Equal Protection Clause
    by arbitrarily discriminating against a particular taxpayer contrary to “the
    applicable State laws or constitutional provisions.” Id. at 7. Second, it may
    violate equal protection by placing interstate carriers in a separate tax category
    which, while permitted by state law, impermissibly discriminates against
    interstate commerce. Id. 4
          In addition, Congress took note of the procedural barriers which prevented
    railroads from obtaining effective relief in state courts. Despite its profound
    respect for state sovereignty in taxation matters embodied in the Tax Injunction
    Act, Congress passed section 11501 as an explicit exception to that Act, stating
    that the effect of the Tax Injunction Act
          has been to close the doors of the Federal courts to carriers affected
          by discriminatory taxation. It has not, however, insured that the
          State courts provide carriers with a plain, speedy, and efficient
                 The testimony before the committee indicated that present
          State procedures to challenge discriminatory State tax assessments
          are often difficult, time consuming, and not productive of material
          relief. For example, the Southern Pacific and its rail affiliates were
          required to bring 48 separate suits in 48 separate California superior
          courts to challenge the level of assessments of railroad property by
          48 counties and cities in California.
    Id. at 6-7. In sum, our review of the legislative history convinces us that in
    passing the 4-R Act, Congress was responding to evidence of a pattern of
            The legislative history observes that in Nashville, Chattanooga & St. Louis
    Ry. v. Browning, 
    310 U.S. 362
     (1940), the Supreme Court upheld against an equal
    protection challenge the discriminatory taxation of railroads when based on
    appropriate state classifications. See S. R EP . N O . 91-630, at 7 (1969). More
    recent Supreme Court authority makes clear that arbitrary state discrimination
    against interstate commerce violates the Equal Protection Clause. See
    Metropolitan Life Ins. Co. v. Ward, 
    470 U.S. 869
     (1984)( discussed in text infra).
    unconstitutional taxation.
          The type of arbitrary state discrimination against interstate railroads in the
    assessment and collection of taxes that disturbed Congress was subsequently well
    illustrated in Allegheny Pittsburgh Coal Co. v. County Comm’n, 
    488 U.S. 336
    (1989). There, an assessor’s valuation practices resulted in the taxation of
    generally comparable property at rates different than those applied to the railroad
    in violation of the state constitutional guarantee of equal and uniform taxation.
    The Supreme Court held the practice unconstitutional, stating that “‘[t]he equal
    protection clause . . . protects the individual from state action which selects him
    out for discriminatory treatment by subjecting him to taxes not imposed on others
    of the same class.” Id. at 345 (quoting Hillsborough v. Cromwell, 
    326 U.S. 620
    623 (1946)). Underlying the Court’s decision was the state’s failure to justify a
    discriminatory taxing practice as reasonably related to a legitimate state policy
    when it violated an expressed state policy of equal and uniform taxation. 5 In this
    regard, the Court specifically distinguished Nashville, Chattanooga & St. Louis
    Ry. v. Browning, 
    310 U.S. 362
     (1940) (see supra n.4). Id. Thus, Congress’
             In Nordlinger v. Hahn, 
    505 U.S. 1
     (1992), the Supreme Court addressed a
    taxation scheme which created dramatic tax disparities for properties of
    comparable value. The Court found no equal protection violation, holding that
    the classification embodied in state law rationally furthered a legitimate state
    interest and that Allegheny Pittsburgh was distinguishable on its facts. Id. at 14-
    concern as set out in the legislative history of the 4-R Act that railroads were the
    victims of arbitrary discriminatory taxation in violation of state provisions
    requiring equal and uniform taxation clearly supports the enactment of that
    legislation under the Equal Protection Clause.
          Moreover, classifications that are permitted by state law but result in
    invidious discrimination against interstate commerce are also properly the subject
    of remedial action under the Equal Protection Clause. In Metropolitan Life Ins.
    Co. v. Ward, 
    470 U.S. 869
     (1984), the Supreme Court traced the “checkered
    history” of its “jurisprudence of the applicability of the Equal Protection Clause
    to discriminatory tax statutes,” id. at 874, and held that a state violates equal
    protection when it imposes “‘more onerous taxes or other burdens on foreign
    corporations than those imposed on domestic corporations, unless the
    discrimination between foreign and domestic corporations bears a rational relation
    to a legitimate state purpose,’” id. at 875 (quoting Western & Southern Life Ins.
    Co. v. State Bd. of Equalization, 
    451 U.S. 648
    , 667 (1981)). We thus conclude
    that the discriminatory taxation of railroads, whether in violation of state
    provisions or pursuant to them, is a proper object of Congress’ power under
    section 5 to remedy violations of the Equal Protection Clause.
          We turn then to the second part of the inquiry mandated by City of Boerne
    and examine whether the provision at issue is tailored to remedying or preventing
    the history of constitutional violations set out above. We begin by observing that,
    unlike the statute the Court condemned in City of Boerne, section 11501 of the 4-
    R Act is not broad, sweeping legislation that intrudes on state conduct unrelated
    to the targeted violation. To the contrary, section 11501 is directed at the
    discriminatory assessment and collection of railroad taxes, and provides a remedy
    only when such discrimination passes a threshold of five percent. Moreover, the
    Act permits only injunctive relief and further provides that state law is to govern
    the burden of proof. The remedy is therefore congruent with and in proportion to
    the Equal Protection violation. This congruence between the Act’s remedial or
    preventative means and the legitimate end it seeks to achieve convinces us that it
    is a proper exercise of Congress’ power under section 5. Accordingly, we join
    those circuits that have addressed the issue and hold that section 11501 abrogates
    Eleventh Amendment immunity. See Wheeling & Lake Erie Ry. Co. v. Public
    Utility Comm’n, 
    141 F.3d 88
     (3d Cir. 1998), cert. denied, No. 99-86, 
    1999 WL 506331
    , and No. 99-234, 
    1999 WL 3116
    ; Oregon Short Line R.R. Co. v.
    Department of Revenue, 
    139 F.3d 1259
     (9th Cir. 1998).
          In holding to the contrary below, the district court in the Union Pacific
    proceeding observed that although Congress need not recite the power under
    which it passes legislation abrogating Eleventh Amendment immunity, a court
    must not “‘quickly attribute to Congress an unstated intent to act under its
    authority to enforce the Fourteenth Amendment.’” Union Pac., 996 F. Supp. at
    1361-62 (quoting Pennhurst State Sch. v. Halderman, 
    451 U.S. 1
    , 16 (1981)). As
    we have discussed in note 2, however, the Supreme Court subsequently described
    this statement as articulating a rule of statutory construction having “no relevance
    to the question of whether . . . Congress acted pursuant to its powers under § 5.”
    EEOC v. Wyoming, 460 U.S. at 243 n. 18.
          The district court also relied on the statement in Wilson-Jones v. Caviness,
    99 F.3d 203
    , 210 (6th Cir. 1996), that “‘in the absence of explicit comment by
    Congress, only efforts to remedy discrimination against a class of persons that
    Fourteenth Amendment jurisprudence has already identified as deserving special
    protection’ is properly viewed as legislation passed pursuant to § 5.” Union Pac.,
    996 F. Supp. at 1362. In so doing, the district court noted that we cited Wilson-
    Jones with approval in Aaron v. Kansas, 
    115 F.3d 813
    , 817 (10th Cir. 1997). The
    court’s reliance on Wilson-Jones is misplaced for several reasons.
          Wilson-Jones addressed whether, under Seminole Tribe, section 5
    authorized Congress to abrogate Eleventh Amendment immunity with respect to
    violations of the Fair Labor Standards Act. In holding the abrogation invalid, the
    court expressly stated that its result might have been different if Congress had
    made findings that a particular group needed special protection from
    discrimination. See Wilson-Jones, 99 F.3d at 210 n.4. Congress did make such
    findings in enacting the 4-R Act: “Unfortunately, interstate carriers, especially
    railroads, are easy prey for State and local tax assessors. Railroads, oil pipelines,
    and other interstate carriers are nonvoting, often nonresident, targets for local
    taxation, and cannot easily remove their right-of-way and terminals.” S. R EP . N O
    91-630, at 3.
          Moreover, while this court did cite Wilson-Jones with approval for one
    proposition in Aaron, we did not adopt or approve the statement relied on by the
    district court here. Finally, we point out that the Sixth Circuit, in a case
    subsequent to its decision in Wilson-Jones, expressly held that “[t]he Supreme
    Court’s equal protection jurisprudence is not confined to suspect or quasi-suspect
    classifications.” Coger v. Board of Regents, 
    154 F.3d 296
    , 305 (6th Cir. 1998).
    The court in Coger upheld the abrogation of Eleventh Amendment immunity
    found in the Age Discrimination in Employment Act (ADEA), stating that
          “[t]he purpose of the equal protection clause of the Fourteenth
          Amendment is to secure every person within the state’s jurisdiction
          against intentional and arbitrary discrimination.” Thus, the fact that
          age is not a suspect classification does not eliminate the Equal
          Protection Clause as a source authorizing Congress to prohibit age-
          based discrimination; accordingly, Congress did not exceed the scope
          of its Section 5 authority in enacting the 1974 amendments to the
    Id. (citations omitted). Indeed, “[t]he majority of courts to address this argument
    have concluded that the mere fact of non-suspect status does not preclude
    Congress from legislating on a group’s behalf.” Little Rock Sch. Dist. v. Mauney,
    183 F.3d 816
    , 826-27 (8th Cir. 1999) (listing cases).
          The district court in the Utah Railway case ruled from the bench in granting
    the State defendants’ motion to dismiss on Eleventh Amendment immunity
    grounds. The court based its ruling on the fact that Congress invoked the
    Commerce Clause in passing the 4-R Act, stating “I don’t find that this is a case
    where I am going to work backwards and say, well, Congress could have done it
    under the fifth section of the Fourteenth Amendment.” Aplts. Supp. App. at 400.
    As we have discussed, however, congressional action may be upheld under
    section 5 even when Congress does not expressly rely on that provision as the
    source of its power.
          The district court also stated that it was guided by Nordlinger v. Hahn, 
    505 U.S. 1
     (1992), where the Supreme Court rejected an equal protection challenge to
    a state system of taxation. The fact that a particular state taxation scheme passes
    constitutional muster simply does not inform the inquiry before us. As the
    Supreme Court reiterated in City of Boerne, “[l]egislation which deters or
    remedies constitutional violations can fall within the sweep of Congress’
    enforcement power even if in the process it prohibits conduct which is not itself
    unconstitutional and intrudes into ‘legislative spheres of autonomy previously
    reserved to the States.’” 521 U.S. at 518 (quoting Fitzpatrick v. Bitzer, 
    427 U.S. 445
    , 455 (1976)). Accordingly, Congress may include conduct that is itself
    constitutional in remedial legislation and in so doing may trench upon areas such
    as taxation that are of particular State concern.
          In sum, we conclude that the abrogation of Eleventh Amendment immunity
    set out in section 11501 of the 4-R Act is a valid exercise of Congress’ power
    under section 5 of the Fourteenth Amendment to remedy violations of the Equal
    Protection Clause. We therefore hold that the State defendants are not entitled to
    Eleventh Amendment immunity, and we REVERSE and REMAND to the district
    court for further proceedings in light of this opinion.