Two zones of prophylaxis: The scope of the fourteenth amendment enforcement power

George Washington Law Review

Volumn 76, Issue 1, 2007, Pages 1-51

  Massey, Calvin ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

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EID: 36849074085     PISSN: 00168076     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (81)

1. City of Boerne v. Flores, 521 U.S. 507 (1997).
2. Congress "has been given the power 'to enforce' [the provisions of the Fourteenth Amendment], not the power to determine what constitutes a constitutional violation." Id. at 519.
3. Id. at 520.
4. "While preventive rules are sometimes appropriate remedial measures, there must be a congruence between the means used and the ends to be achieved. The appropriateness of remedial measures must be considered in light of the evil presented. Strong measures appropriate to address one harm may be an unwarranted response to another, lesser one." Id. at 530 (citation omitted).
5. Id. at 520.
6. Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996), held that Congress may not use its Article I, Section 8 powers to abrogate the states' Eleventh Amendment immunity from private suits for money damages. Id. at 62-66. Central Virginia Community College v. Katz, 546 U.S. 356 (2006), modified this holding with respect to Congress's bankruptcy power by holding that the constitutional requirement of uniformity in federal bankruptcy legislation implied that states had surrendered "in the plan of the Convention" their sovereign immunity with respect to matters ancillary to the in rem jurisdiction of bankruptcy. Id. at 373. Other than bankruptcy, though, the only avenue for Congress to abrogate the states' Eleventh Amendment immunity is by using its power to enforce the Fourteenth Amendment. See Fitzpatrick v. Bitzer, 427 U.S. 445, 447-48 (1976). After Katzenbach v. Morgan, 384 U.S. 641 (1966), it was thought that it might be possible for Congress to enforce the Fourteenth Amendment by altering its substance, so long as those alterations did not "restrict, abrogate, or dilute" the rights guaranteed under the Amendment. See id. at 651 n.10. That possibility remained controversial but was extinguished by Flores, 521 U.S. at 512, which expressly limited the Section 5 enforcement power to remedial measures. According to Flores, only those measures that are congruent with and proportional to an identified constitutional violation are remedial. Id. at 519-20. Ever since Flores, the scope of the Section 5 power has been charted in the context of congressional attempts to abrogate the states' Eleventh Amendment immunity.
7. Bd. of Trs. v. Garrett, 531 U.S. 356 (2001).
8. Id. at 366-68.
9. Nev. Dep't of Human Res. v. Hibbs, 538 U.S. 721 (2003).
10. Id. at 735.
11. "Because the standard for demonstrating the constitutionality of a gender-based classification is more difficult to meet than our rational-basis test . . . it was easier [in Hibbs] for Congress to show a pattern of state constitutional violations" than in Garrett. Id. at 736; accord Tennessee v. Lane, 541 U.S. 509, 533-34 (2004) (upholding abrogation of Eleventh Amendment by Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12131-12165 (2000), as applied to state action infringing the "fundamental right of access to the courts").
12. See Garrett, 531 U.S. at 374 n.9 ("Our holding here that Congress did not validly abrogate the States' sovereign immunity from suit by private individuals for money damages under Title I does not mean that persons with disabilities have no federal recourse against discrimination. Title I of the ADA still prescribes standards applicable to the States. Those standards can be enforced by the United States in actions for money damages, as well as by private individuals in actions for injunctive relief under Ex parte Young. . . .") (internal citation omitted).
13. I recognize the long-standing debate over whether federalism is more properly enforced by political or judicial processes. I reject the proposition that federalism limits are, or should be, established entirely by the political process, no matter how free from defects that process may be. While the level of judicial scrutiny applicable with respect to various federal initiatives that may transcend the Constitution's federalism limits is fairly debatable, I contend that judicial power to police federalism limits ought not be debatable.
14. See generally United States v. Georgia, 546 U.S. 151 (2006); Lane, 541 U.S. 509; Hibbs, 538 U.S. 721; Garrett, 531 U.S. 356; Kimel v. Fla. Bd. of Regents, 528 U.S. 62 (2000); Fla. Prepaid Postsec. Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S. 627 (1999).
15. Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 64-66 (1995) (holding that Article I of the U.S. Constitution does not give Congress the power to abrogate state sovereign immunity).
16. Alden v. Maine, 527 U.S. 706, 712 (1999) (holding that Article I of the U.S. Constitution does not give Congress the power to abrogate state sovereign immunity).
17. Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976) (holding that Congress may abrogate state sovereign immunity pursuant to its Fourteenth Amendment enforcement power).
18. Seminole Tribe, 517 U.S. at 72-73 (holding that Congress may not abrogate state sovereign immunity under the Indian Commerce Clause and overruling a decision allowing abrogation under the Interstate Commerce Clause).
19. City of Boerne v. Flores, 521 U.S. 507, 535-36 (1997).
20. The basic relationship between the Supreme Court and Congress with respect to the enforcement power that was established by Flores may be expressed as follows: (1) The Fourteenth Amendment creates constitutional rights, the substance of which are determined with finality by the Supreme Court. See id. at 536. (2) When Congress interprets the substance of the Fourteenth Amendment differently from the Supreme Court, its interpretation does not establish any constitutional rights, but simply creates statutory rights, which are valid only to the extent condition (3) is satisfied. See id. at 519. (3) Congress may act validly to enforce constitutional rights but may not enforce statutory rights (unless there is some other valid source of authority for congressional action). See id. Left unstated is the following problem: Under its enforcement power Congress may prohibit state conduct that actually violates constitutional rights, and Congress may also prohibit state conduct to prevent violation of constitutional rights, but how extensive is this prophylactic power? May Congress prohibit only state conduct that poses an immediate threat of constitutional violations, or only that conduct which is necessary to prevent such violations? May it prohibit state conduct that does not violate constitutional rights, but which, in Congress's judgment, might produce results that violate constitutional rights, or which Congress thinks will violate constitutional rights, once the judiciary has examined the prohibited conduct?
21. Katzenbach v. Morgan, 384 U.S. 641 (1966).
22. Id. at 648-51.
23. United States v. Georgia, 546 U.S. 151, 157-58 (2006) (assuming the truth of a state prison inmate's allegations that the conditions of confinement violated both Title II of the ADA and the Eighth Amendment's prohibition of cruel and unusual punishment incorporated into the Due Process Clause of the Fourteenth Amendment, Congress had undoubted power to subject the state to a private suit for damages).
24. Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 81 (2000).
25. Flores, 521 U.S. at 525 (quoting South Carolina v. Katzenbach, 383 U.S. 301, 308 (1996)).
26. Fla. Prepaid Postsec. Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S. 627 (1999).
27. Id. at 639.
28. Id. at 640, 645-46.
29. Id. at 641, 645-46.
30. Kimel v. Fla. Bd. of Regents, 528 U.S. 62 (2000).
31. Id. at 89 ("Congress never identified any pattern of age discrimination by the States, much less any discrimination whatsoever that rose to the level of constitutional violation.").
32. Id.
33. See id.
34. Americans with Disabilities Act of 1990, Pub. L. 101-336, 104 Stat. 327 (codified at 42 U.S.C. §§ 12101-12213 (2000)). Title I is codified at 42 U.S.C. §§ 12111-12117.
35. Bd. of Trs. v. Garrett, 531 U.S. 356, 374 (2001).
36. Id. at 370-72.
37. See Lincoln County v. Luning, 133 U.S. 529, 530 (1890).
38. Garrett, 531 U.S. at 368-69. The focus upon state conduct, as distinguished from that of private actors and local governments, appears to depend upon the nature of the constitutional right that Congress is purportedly enforcing. In South Carolina v. Katzenbach, 383 U.S. 301, 312-15 (1966), the Court relied upon evidence of constitutional misconduct by local officials to support the validity of the Voting Rights Act of 1965, 42 U.S.C. §§ 1973-1973bb-1 (2000), as an exercise of congressional power to enforce the Fifteenth Amendment. Similarly, in Nevada Department of Human Resources v. Hibbs, 538 U.S. 721, 730-35 (2003), the Court invoked evidence of private misconduct to support the validity of the family medical leave provisions of the Family and Medical Leave Act of 1993, 5 U.S.C. §§ 6381-6387, 29 U.S.C. §§ 2601-2654 (2000), as within the enforcement power. Finally, in Tennessee v. Lane, 541 U.S. 509, 527 n.16 (2004), the Court characterized as "mistaken" the "premise that a valid exercise of Congress' § 5 power must always be predicated solely on evidence of constitutional violations by the States themselves." However, the Court in Lane relied heavily upon evidence of state misconduct with respect to the constitutionally fundamental right of access to courts. Id. at 527. As discussed below, the rights at issue in each of South Carolina v. Katzenbach, Hibbs, and Lane are rights that command particular protection, a fact that Lane recognized by noting that, "[w]hile § 5 authorizes Congress to enact reasonably prophylactic remedial legislation, the appropriateness of the remedy depends on the gravity of the harm it seeks to prevent." Id. at 523.
39. See Fla. Prepaid Postsec. Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S. 627, 672-74 (1999).
40. Garrett, 531 U.S. at 366-67.
41. Hibbs, 538 U.S. at 735.
42. Family and Medical Leave Act of 1993, 5 U.S.C. §§ 6381-6387, 29 U.S.C. §§ 2601-2654 (2000).
43. Hibbs, 538 U.S. at 730.
44. Id. at 732.
45. Id. at 746 (Kennedy, J., dissenting).
46. Id. at 747-48.
47. Id. at 748.
48. Id. at 731 n.5 (majority opinion).
49. Id. at 735.
50. Id. at 736 (internal citations omitted).
51. Voting Rights Act of 1965, 42 U.S.C. §§ 1973-1973bb-1 (2000).
52. Hibbs, 538 U.S. at 736 (citing South Carolina v. Katzenbach, 383 U.S. 301, 308-13 (1966)).
53. Justice Scalia rejects the entire notion that Congress's enforcement power under Section 5 of the Fourteenth Amendment includes a prophylactic power: "Nothing in § 5 allows Congress to go beyond the provisions of the Fourteenth Amendment to proscribe, prevent, or 'remedy' conduct that does not itself violate any provision of the Fourteenth Amendment. So-called 'prophylactic legislation' is reinforcement rather than enforcement." Tennessee v. Lane, 541 U.S. 509, 559 (2004) (Scalia, J., dissenting). Nevertheless, Justice Scalia would make an exception, "principally for reasons of stare decisis," for "congressional measures designed to remedy racial discrimination by the States." Id. at 564 (Scalia, J., dissenting). The fact that an opponent of prophylaxis would relent when it comes to race may suggest that those who embrace prophylaxis would relax the evidentiary burden on Congress in cases of race even more than the Court did with respect to sex in Hibbs.
54. See Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265 (1977); Washington v. Davis, 426 U.S. 229, 242-48 (1976). Of course, a state found to have acted with the requisite animus might still prevail if it can prove that it would have adopted the practice regardless of the identified animus. See Mt. Healthy City Sch. Dist. Bd. of Ed. v. Doyle, 429 U.S. 274, 286-87 (1977).
55. United States v. Morrison, 529 U.S. 598 (1999).
56. Id. at 626-27.
57. South Carolina v. Katzenbach, 383 U.S. 301, 308-10 (1966).
58. See discussion infra Part I.C.
59. Nev. Dep't Human Res. v. Hibbs, 538 U.S. 721, 725 (2003).
60. Id. at 735-37.
61. Patent and Plant Variety Protection Remedy Clarification Act, Pub. L. 102-560, 106 Stat. 4230 (1992).
62. Fla. Prepaid Postsec. Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S. 627, 641 (1999).
63. Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 90 (2000).
64. Age Discrimination in Employment Act of 1967, Pub. L. 90-202, 81 Stat. 602 (codified as amended at 29 U.S.C. §§ 621-634 (2000)).
65. Kimel, 528 U.S. at 90 (quoting Fla. Prepaid, 527 U.S. at 641).
66. United States v. Morrison, 529 U.S. 598, 626-27 (2000).
67. Id. at 619.
68. Id. at 666 (Breyer, J., dissenting).
69. Id. at 620 (majority opinion).
70. Id. at 626.
71. See id.
72. See Katzenbach v. Morgan, 384 U.S. 641, 656 (1966).
73. Morrison, 529 U.S. at 627.
74. South Carolina v. Katzenbach, 383 U.S. 301, 329, 337 (1965).
75. Morrison, 529 U.S. at 626-27.
76. Nev. Dep't of Human Res. v. Hibbs, 538 U.S. 721, 741-42 (2003) (Scalia, J., dissenting).
77. "Upon this point a page of history is worth a volume of logic." N.Y. Trust Co. v. Eisner, 256 U.S. 345, 349 (1921).
78. Oregon v. Mitchell, 400 U.S. 112 (1970).
79. Id. at 118.
80. The majority declared: In enacting the literacy test ban . . . Congress had before it a long history of the discriminatory use of literacy tests to disfranchise voters on account of their race. . . . [As] to the Nation as a whole, Congress had before it statistics which demonstrate that voter registration and voter participation are consistently greater in States without literacy tests. Congress also had before it this country's history of discriminatory educational opportunities in both the North and the South. . . . [The] history of this legislation suggests that concern with educational inequality was perhaps uppermost in the minds of the congressmen who sponsored the Act. The hearings are filled with references to educational inequality. Faced with this and other evidence that literacy tests reduce voter participation in a discriminatory manner not only in the South but throughout the Nation, Congress was supported by substantial evidence in concluding that a nationwide ban on literacy tests was appropriate to enforce the Civil War amendments. . . . In imposing a nationwide ban on literacy tests, Congress has recognized a national problem for what it is - a serious national dilemma that touches every corner of our land. . . . Congress has decided that the way to solve the problems of racial discrimination is to deal with nationwide discrimination with nationwide legislation. Id. at 132-34.
81. Robert C. Post, Fashioning the Legal Constitution: Culture, Courts, and Law, 117 HARV. L. REV. 4, 23 (2003).