Sec. 4. Congressional power to enforce civil rights under sec.5 of the 14th amendment p.726
- Limitations on the scope of congressional authority to enforce the provisions of the Fourteenth (Fifteenth) Amendment – “remedial” or “substantive
Congressional protection of voting right p.726
Historically
- Congress merely provided enforcement mechanism ; delineation of the content of the rights was left to the courts ; implementation to litigation
- This case-by-case approach was insufficient to deal with insidious and pervasive evil – evil means discriminatory enforcement of voting qualification, designed to deprive Negroes of the right to vote, such as literacy and understanding test
LASSITER v. NORTHAMPTON COUNTY BD. OF ELECTIONS, 360 U.S. 45, 1959
- upholding literacy test, “the States have long been held to have broad powers to determine the conditions under which the right of suffrage may be exercised, absent the discrimination which the Constitution condemns”
Congress enacted the “Voting Rights Act of 1965” to rid the country of racial discrimination in voting, e.g. suspending literacy test
S.C. v. Katzenbach, 383 U.S. 301, 1966
- Sustained s.5 of the Voting Rights Act of 1965, directed at racial discrimination in the South, as a proper exercise of congressional power under s.2 of the 15th Amend.
- ** The test under s.2 of 15th Amend. is the same as in all cases concerning the express powers of Congress, with relation to the reserved powers of the States
o (DO) Power of Congress – (i) federalism : with relation to the reserved powers of the States, (ii) separation of power : encroach on executive power
o the powers of Congress in general : “Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional” McCulloch v. Md., 17 U.S. 316, 421, 1819
- whether the powers of Congress include fashioning specific remedies or applying them to particular localities à. Yes
o Congress may fashion specific remedies or applying them to particular localities
o Also may prescribe (specific) remedies (for voting discrimination) which go into effect without any need for prior adjudication, (See McClung, and Darby)
§ Katzenbach v. McClung, 379 U.S. 294 - Public accommodations provisions of Civil Rights Act, as applied to restaurant serving food, a substantial portion of which had moved in interstate commerce, was valid exercise of power of Congress to regulate interstate commerce
§ U.S. v. Darby, 312 U.S. 100 - Fair Labor Standards Act prohibiting the shipment in interstate commerce of goods produced for interstate commerce by employees whose wages and hours of employment do not conform to requirements of the act
Oregon v. Mitchell – upholding nationwide literacy test suspension
Katzenbach v. Morgan, 384 U.S. 641, p.730
- challenged the constitutionality of § 4(e) of the Voting Rights Act of 1965, which provided that no person who met specified educational requirements could be denied the right to vote due to inability to speak or write English,, insofar as the Act prohibited enforcement of N.Y. Law, which provided that no person could become entitled to vote unless such person was also able to read and write English.
- (The district court), holding that in enacting § 4(e) Congress exceeded the powers granted to it by the Constitution and usurped powers reserved to the states by 10th Amend.
o (i) the powers of Congress under enforcement clause of Fourteenth Amendment ; (ii) 10th Amend.
Held :
- (i) that under the McCulloch v. Maryland standard, § 4 of the Act was "plainly adapted" to furthering the Equal Protection Clause ; (ii) that its remedies constituted means consistent with the letter and spirit of the constitution ; (iii) therefore the NY law - English literacy requirement - could not be enforced to the extent that it was inconsistent with § 4(e) of the Act (supremacy clause)
Reasoning
- task is not whether the NY law literacy requirement violates equal protection, but whether (federal) the Act is “appropriate legislation” (under McCulloch standard) to enforce equal protection under s.5 of the 14th Amend.
- ** congressional power under s.5 of 14th Amend. is the same broad powers in the Necessary and Proper Clause (McCulloch) ; s.2 of 15th Amend. also grants Congress a similar power
o (DO- regarding enforcement clause of Fourteenth and Fifteenth, whether within the powers of Congress, test is McCulloch)
o “Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional” McCulloch v. Md., 17 U.S. 316, 421, 1819
o Rule that all means (i) which are appropriate, (ii) which are plainly adapted to legitimate end, and (iii) which are not prohibited, but (iv) are consistent with letter and spirit of constitution, are constitutional,,, the rule is standard measuring what constitutes appropriate legislation under enforcement clause of Fourteenth Amendment.
o Here, s.4(e) may be readily seen as “plainly adapted” to furthering the aims of equal protection ; is appropriate legislation to enforce equal protection clause
- Power of Congress under enforcement clause of Fourteenth Amendment is limited to adopting measures to enforce guarantees of amendment, and such clause grants Congress no power to restrict, abrogate, or dilute, such guarantees
- legislature need not strike at all evils at same time, and that reform may take one step at a time, addressing itself to phase of problem which seems most acute to legislative mind
- whether congressional power include substantive ; if so, violation of separation of power
o Congress made a determination that an English literacy test was unconstitutional ; thus, determined the substantive content of rights under s.1 of 14th Amend.
§ but, s.5 of 14th Amend. grant Congress a power to “enforce”, not “interpret” ; is it violation of separation of power? See Marbury v. Madison, 5 U.S. 137 ; Cooper v. Aaron, 358 U.S. 1
· Cooper - application for permission to suspend temporarily a judicially-approved school integration plan ; Held that governor and legislature of state were bound by Federal Supreme Court's prior decision that enforced racial segregation in public schools of state was an unconstitutional denial of equal protection of laws ;
Oregon v. Mitchell, 400 U.S. 112 (1970) p.735
- Provision which guaranteed voting right if eighteen years of age or older
- Upholding the voting age provision for federal elections ; holding unconstitutional the provision as applied to state election
o DO- use it with regard to 10th Amend.
ROME v. U.S. 446 US 156 (1980) p.737
- Principles of federalism that might otherwise be an obstacle to congressional authority are necessarily overridden by power to enforce the Civil War Amendments “by appropriate legislation”; those Amendments were specifically designed as an expansion of federal power and an intrusion on state sovereignty
o (DO – enforcement clause of Fourteen and Fifteenth overrides federalism, if “appropriate legislation” )
- Congress had authority to regulate state and local voting through provisions of Voting Rights Act, despite principles of federalism articulated in decision holding that federal legislation regulating minimum wages and hours could not constitutionally be extended to employees of state and local government
o DO- without enforcement clause of the Fourteenth and Fifteenth, Congressional power may not override federalism, esp. 10th Amend.
City of Boerne v. Flores, 521 U.S. 507, 738
Fact
- Local zoning authorities denied church building permit to enlarge church under ordinance governing historic preservation ; church challenged the ordinance under Religious Freedom Restoration Act of 1993 (RFRA) ; the Court held that the RFRA exceeded Congress’s s.5 of the Fourteenth enforcement power
Reasoning
- It is the Court which has a duty to say what the law is, interpret the Constitution (Marbury v. Madison) ; it is the Court’s precedent, not the Congress legislation, which controls cases and controversies (separation of power)
o Smith (1990), 494 US 872, (compelling interest test – whether Oregon’s prohibition substantially burdened a religious practice, whether the burden was justified by a compelling government interest) ; The Court abandoned Smith in Sherbert v Verner (1963) 374 US 398 (compelling interest is not required) ; Congress recited Smith,
o RFRA was to restore “compelling-interest” test which had been abandoned by the Court ; RFRA was designed to control cases and controversies ; it is the Court’s precedent, not RFRA, which must control
- The Fourteenth Amendment enforcement power is remedial or preventive, not substantive
o s.5 of the Fourteenth (enforcement power) extends only to “enforcing” the provisions of the Fourteenth -- “remedial or preventive” --,
§ no power to (i) decree the substance of the Fourteenth’s restriction on States, (ii) change what the right is, (iii) determine what constitutes a constitutional violation
- distinction b/w “remedial or preventive” and “making a substantive change” à. congruence and proportionality between the injury (evil) to be prevented or remedied and the means adopted to that end ; if either congruence or proportionality lacks, likely a substantive change
o legislative history and precedents support the holding
o history – under revised amendment, Congress’s power was no longer plenary but remedial
o the Court said – the Fourteenth enforcement clause did not authorize Congress to pass general legislation, but corrective legislation, necessary and proper for counteracting state laws which are prohibited from making or enforcing by the Fourteenth
§ e.g. South Carolina v. Katzenbach, in upholing the Voting Rights Act of 1965, the remedies were aimed at (particular, limited) areas where voting discrimination has been most flagrant, necessary to banish the blight of racial discrimination in voting ; confined to those regions, and affected a class of state laws e.g. state voting laws
§ DO- (i) congruence : subsisting and pervasive discriminatory use of literacy test – prohibition of literacy test, (ii) proportionality : limited to particular areas where violation was flagrant and long-standing à. Since congruence and proportionality are satisfied, it is remedial or preventive, not substantive
o Here, RFRA, (i) lacks examples of modern instances of violation, (ii) given a least restrictive means requirement, RFRA is broader than is proportionate (to a supposed remedial or preventive object), (iii) the reach and scope of RFRA is so sweeping, RFRA is not designed to counteract state laws likely to be unconstitutional à. It is making a substantive change
Note
- more about horizontal separation of powers than about federalism?
- The Boerne invalidated RFRA only insofar as it applied to the states ; RFRA’s strict scrutiny of the denial of religious exemptions from general laws has continued to be applied to the federal government
- The test of congruent and proportionate – rationality review in McCulloch,
Northwest Austin Mun. Util. Dist. No. One v. Holder, 129 S. Ct. 2504, p.745
The preclearance provision
- requires certain covered jurisdictions to obtain federal approval for changes in election procedures in order to ensure that those procedures do not discriminate on the basis of race
the principle of constitutional avoidance
- normally the Court will not decide a constitutional question if some other ground upon which to dispose of the case
Seminole Tribe of Florida v. Florida, 517 U.S. 44, 1996, p.144, 746
- Congress may not enact legislation under its Article I powers that abrogates a state’s immunity to suits for monetary damages without its consent
- despite Seminole Tribe, the Court’s earlier holdings remain intact that “Congress may subject non-consenting state to lawsuits pursuant to its powers under s.5 of the Fourteenth”
- in a series of cases since Boerne, the Court has held that … Congress lacked power to abrogate state sovereign immunity under s.5 of the Fourteenth, unless it could demonstrate that application of the (federal) statute to the states served to remedy state constitutional violations under the standards set forth in Boerne. (DO- Congress may abrogate state sovereign immunity under s.5 of the Fourteenth if Boerne is satisfied)
Fla. Prepaid Postsecondary Educ. Expense Bd. v. College Sav. Bank, 527 U.S. 627, 1999
- Determination of whether Congress' enactment of act validly abrogated states' sovereign immunity requires consideration of two questions: first, whether Congress has unequivocally expressed its intent to abrogate immunity, and second, whether Congress has acted pursuant to a valid exercise of power ; here, the first satisfied
- “appropriate” legislation pursuant to the Fourteenth enforcement clause could abrogate state sovereignty (DO- once Boerne is satisfied, Congress may abrogate state sovereign immunity)
- Question turns on whether the Patent Remedy Act (Congress) satisfies Boerne, i.e., can be viewed as remedial or preventive within the meaning of Boerne, à. the Court said no
o Here, the Congress identified no pattern of patent infringement by the State, unlike the racial discrimination in voting rights cases ;
o because of this lack, the Act is out of proportion to a supposed remedial or preventive object ; Congress did nothing to limit the coverage of the Act to a certain cases , nor make any attempt to confine the reach of the Act by limiting the remedy to certain types of infringement
United States v. Morrison, 529 U.S. 598, 2000, p.748 , p116
Fact
- female university student allegedly was raped by football players ; VA Tech discipline system did not punish the men ; she dropped out of school and sued the men under the challenged VAWA (Violence Against Women Act ) in federal district court for damages
- the challenged section of the VAWA provided cause of action, with gender motivated violence victim, against a person (perpetrator, not State), in federal court
Held
- the VAWA civil damage provision exceeds (i) Congress power to enforce the Equal Protection Clause against gender discrimination, and also (ii) Congress power under the Commerce Clause
o (DO- rape victim also sued VA Tech (State) to recover damage ; VAWA seems to abrogate state immunity to suit for damage ; VAWA seems to not meet congruence and proportionality ; thus, VAWA is unconstitutional on the ground of abrogating state immunity) à. I checked with VAWA ; VAWA is about suit against a person, not against State ; thus, in VAWA, state immunity is not an issue
- the powers of government is limited ; the powers of Congress is limited ; every law enacted by Congress must be based on its powers enumerated in the Constitution
- here, Congress invoked as basis the Fourteenth enforcement clause (s.5 of 14th Amend.) and commerce clause (s.8 of Art. 1)
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There are three broad categories of activity that Congress may regulate under its commerce power:
- (1) first, Congress may regulate the use of the channels of interstate commerce;
- (2) second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities; and,
- (3) finally, Congress' commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, i.e., those activities that substantially affect interstate commerce ;
- here, the question is whether the challenged section falls within the third category
- e.g. by conducting the third category analysis, Lopez held that the federal criminal statute which made it a federal crime to knowingly possess a firearm in a school zone, exceeded congress’s authority under the interstate commerce clause
- (i) the federal criminal statute (in Lopez) has nothing to do with economic activity
o A fair reading of Lopez shows that the non-economic, criminal nature of the conduct was central to the decision
o in every case where we have sustained federal regulation under the Wickard’s aggregation principle, the regulated activity was of an apparent commercial character (Wickard v. Filburn, 317 U.S. 111 ; the Court rejects Wickard’s aggregation rule)
o reject the argument that Congress may regulate non-economic violent criminal conduct based solely on the conduct’s aggregate effect on interstate commerce
- (ii) the federal criminal statute contained “no express jurisdictional element” which might limit its reach to a discrete set of firearm possessions that additionally have an explicit effect on inter-state commerce
o e.g. other provision “… interstate crime abuse .. against partners during interstate travel … “ was held constitutional
- (iii) neither the federal criminal statute, nor its legislative history, contains express congressional findings regarding the effects upon interstate commerce of (violation of the federal criminal statute) gun possession in a school zone
o Congress normally is not required to make formal findings, but such findings may help the court to evaluate the effect on inter-state commerce, when the effect is not visible to naked eye
o Congressional finding is not dispositive ; since Marbury, the Court has remained the ultimate expositor of the constitutional text
- (iv) the link between (violation of the federal criminal statute) gun possession and a substantial effect on interstate commerce was attenuated ,
o rejected the “costs of crime” and “national productivity” arguments ; because the but-for reasoning would permit Congress to regulate not only all violent crime, but also any activity that is related to the economic productivity of individualized citizens, including family law and other areas of traditional state regulation , and ultimately obliterate the distinction between what is national and what is local in the activities of commerce
here,
- (i) gender motivated crimes of violence is not economic activity
- (ii) no jurisdictional element ;
- (iii) numerous findings regarding the impact the gender-motivated violence has on victims ; but the congressional reasoning is based on the but-for reasoning ; it is the Court not congress which has the power to say what is law ;
- (iv) the regulation and punishment of intra-state violence (that is not directed at the instrumentalities, channels, or goods involved in inter-state commerce) has always been the province of the states (traditional state regulation)
o
§ Given (i) constitution’s careful enumeration of federal power, (ii) (10th Amend.) explicit statement that all powers not granted to the federal government are reserved
o Here, under federal system, remedy must be provided by the VA, not by the U.S.
** the Fourteenth enforcement clause analysis framework **
- The Fourteenth enforcement clause states that Congress may “enforce,” by ‘appropriate legislation’ the constitutional guarantee that no State shall deprive any person of ‘life, liberty or property, without due process of law,’ nor deny any person ‘equal protection of the laws.”
- It includes authority to “prohibit conduct which is not itself unconstitutional and to intrude into ‘legislative sphere of autonomy previously reserved to the States.’” ; However, the authority has limitation inherent in s.5 text and constitutional context
- the Fourteenth Amend., by its terms, prohibits only state action ; it erects no shield against merely private conduct
- here, the challenged section visit no consequence on VA public official involved in investigating victims’ assault, unlike Congress imposed voting rights requirement on States ,
- the prophylactic legislation under s.5 of the Fourteenth must have a “congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end”
- here, the challenged section applies uniformly throughout the Nation, unlike remedy was directed only to those states in which there had been discrimination
- (DO – like limited to literacy test, here, limited to gender-motivated violence)
Note
1.. the problem of state omission to act
- DO- VA failed to investigate, punish, or prevent the rape ; Congress may legislate under s.5 of the Fourteenth ;
Kimel v. Fla. Bd. of Regents, 528 U.S. 62, p.750
Fact
- federal statute allowed state employee to sue the states for violations of the Age Discrimination in Employment Act (ADEA) ;
Held ** ** how to unfold logic **
- noted that the Fourteenth enforcement clause is the sole source of possible congressional authority to abrogate state sovereign immunity under the Seminole Tribe line of cases ;
o Even then the Constitution vests in Congress’ complete law-making authority over a particular area, the 11th Amend. prevents congressional authorization of suits by private parties against un-consenting states
§ the Constitution does not provide for federal jurisdiction over suits against non-consenting States (11th Amend.)
o Congress lacks power under the Constitution’s Article 1 to abrogate the state’s sovereign immunity
o The Fourteenth enforcement clause grants Congress the authority to abrogate the state’s sovereign immunity
- examined the ADEA under the test in Boerne ;
o congress’ power to enforce the 14th Amend. includes the authority both to remedy and to deter violation of rights guaranteed thereunder by prohibiting a somewhat broader swath of conduct, including what is not itself forbidden by the 14th Amend. text ; not the power to determine what constitutes a constitutional violation
§ ultimate interpretation and determination of the Fourteenth Amend. substantive meaning is left to judicial branch
- concluded the ADEA failed the “congruence and proportionality test”
o in order for a congressional enactment to be appropriate remedial legislation under the Fourteenth enforcement clause, there must be a congruence and proportionality b/w injury to be prevented or remedied and the means adopted to that end
