Deference to congressional factfinding in rights-enforcing and rights-limiting legislation

New York University Law Review

Volumn 88, Issue 3, 2013, Pages 878-957

  Araiza, William D ^a  

^a BROOKLYN LAW SCHOOL   (United States)

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EID: 84883191023     PISSN: 00287881     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Note

References (371)

1. Variations on this epigram have a long history. See Byron K. Elliott & William F. Elliott, The Work of the Advocate 390 (2d ed. 1911) ("If you have a case where the law is clearly on your side, but the facts and justice seem to be against you,. urge upon the jury the vast importance of sustaining the law. [I]f the law is against you. insist that justice be done though the heavens fall. " (internal quotation marks omitted).
2. 521 U.S. 507 (1997).
3. See U.S. Const. amend. XIV, § 5 ("The Congress shall have power to enforce, by appropriate legislation, the provisions of this article. ").
4. See Katzenbach v. Morgan, 384 U.S. 641, 648-49 (1966) (finding that allowing Congress to interpret the bounds of its Fourteenth Amendment enforcement power increased both "congressional resourcefulness" and "congressional responsibility").
5. See 521 U.S. at 536 (finding, in spite of Congress's Fourteenth Amendment enforcement power, that the ultimate authority to review the constitutionality of laws enacted by Congress belonged to the courts).
6. Rogers, 458 U.S. at 618.
7. Nev. Dep't of Hum. Res. v. Hibbs, 538 U.S. 721, 730-35 (2003) (discussing congressional fact-finding in the context of the Family and Medical Leave Act of 1993).
8. Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 368-74 (2001) (discussing congressional fact-finding in the context of the ADA).
9. Constitutional construction is the process by which more precise meaning is created-or figuratively "constructed"-from the determinate and legally binding meaning of the Constitution. Because that determinate meaning often runs out before it resolves actual constitutional controversies, scholars, even originalists, have acknowledged that courts (and other actors) must often construct constitutional meaning as best they can from whatever rules the Constitution lays out. See, e.g., Amy Barrett, The Interpretation/Construction Distinction in Constitutional Law: Annual Meeting of the AALS Section on Constitutional Law, 27 Const. Comment. 1, 2 (2010) ("Many, though not all, new originalists accept constitutional construction as a means of dealing with constitutional ambiguity and vagueness. "). For a general discussion of constitutional construction see Keith E. Whittington, Constitutional Construction: Divided Powers and Constitutional Meaning (1999).
10. See, e.g., Garrett, 531 U.S. at 373-74 (finding that Congress failed to document a "serious pattern of constitutional violations" in connection with the enactment of the ADA).
11. See Gonzales v. Carhart, 550 U.S. 124, 161-63 (2007) (allowing Congress to legislate based on a finding that the regulated abortion procedure was never medically necessary, despite lower courts' rejection of that finding).
12. John Copeland Nagle, CERCLA's Mistakes, 38 Wm. & Mary L. Rev. 1405, 1419-20 (1997).
13. See Daniel J. Solove, The Darkest Domain: Deference, Judicial Review, and the Bill of Rights, 84 Iowa L. Rev. 941, 945 (1999) (asserting that judicial deference has "profound effects" and lamenting that, in spite of those effects, "[c]ritiques of deference have remained relatively superficial, often dismissing deference as a mere tool wielded by ideological judges to achieve a particular political result").
14. John O. McGinnis & Charles W. Mulaney, Judging Facts Like Law, 25 Const. Comment. 69, 69 (2008).
15. John Copeland Nagle, CERCLA's Mistakes, 38 Wm. & Mary L. Rev. 1405, 1419-20 (1997).
16. John Copeland Nagle, CERCLA's Mistakes, 38 Wm. & Mary L. Rev. 1405, 1419-20 (1997).
17. John Copeland Nagle, CERCLA's Mistakes, 38 Wm. & Mary L. Rev. 1405, 1419-20 (1997).
18. John Copeland Nagle, CERCLA's Mistakes, 38 Wm. & Mary L. Rev. 1405, 1419-20 (1997).
19. John Copeland Nagle, CERCLA's Mistakes, 38 Wm. & Mary L. Rev. 1405, 1419-20 (1997).
20. For example, the Court's evolution toward understanding equal protection as protecting sex equality-an evolution at least partially prompted by the feminist movement, See, e.g., Reva B. Siegel, Text in Contest: Gender and Constitution from a Social Movement Perspective, 150 U. Pa. L. Rev. 297, 312 (2001) ("In adopting a new framework for reviewing sex discrimination claims under the Fourteenth Amendment, the Court was intervening in a wide-ranging controversy and responding to social movement activism in matters of women's rights. ")-necessarily implies skepticism of legislative findings purporting to find "real" differences between men and women. See United States v. Virginia, 518 U.S. 515, 541 (1996) ("State actors controlling gates to opportunity. may not exclude qualified individuals based on [stereotyped gender assumptions]. ").
21. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
22. See Paul Horwitz, Three Faces of Deference, 83 Notre Dame L. Rev. 1061, 1061 (2008) (describing these bases for deference as "legal authority" and "epistemic, or knowledge-based, authority, " respectively).
23. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
24. See Eric Berger, Deference Determinations and Stealth Constitutional Decisionmaking, 98 Iowa L. Rev. 465, 501 (2013) (calling for such review, and arguing that "the Court should ask whether Congress's fact-findings were based on careful analysis and empirical study of relevant facts, or bald, self-serving assertions, or something in between").
25. See Philip P. Frickey & Steven S. Smith, Judicial Review, the Congressional Process, and the Federalism Cases: An Interdisciplinary Critique, 111 Yale L.J. 1707, 1708 (2002) (setting out to evaluate the Supreme Court's decisional efforts at the "juncture of constitutional law and political science").
26. See David L. Faigman, Constitutional Fictions: A Unified Theory of Constitutional Facts 129 (2008) (asserting that judicial deference to congressional factfinding in a given context should reflect the level of judicial review applied to the kind of law at issue).
27. Caitlin E. Borgmann, Rethinking Judicial Deference to Legislative Fact-Finding, 84 Ind. L.J. 1, 35-36 (2009) ("Independent judicial review of constitutionallysignificant facts goes in tandem with the importance of judicial review more generally when basic personal liberties are at issue. The courts have reason in this context to be suspicious of the legislature's motives. ").
28. Neal Devins, Congressional Factfinding and the Scope of Judicial Review: A Preliminary Analysis, 50 Duke L.J. 1169, 1172-76 (2001) (noting how judicial selection of fact-dependent or fact-independent doctrinal standards affects the degree of judicial control over constitutional law).
29. John Copeland Nagle, CERCLA's Mistakes, 38 Wm. & Mary L. Rev. 1405, 1419-20 (1997).
30. See generally Jordan Goldberg, Note, The Commerce Clause and Federal Abortion Law: Why Progressives May Be Tempted to Embrace Federalism, 75 Fordham L. Rev. 301, 301-04 (2006) (discussing the relationship between federalism and federal abortion regulation).
31. See, e.g., William D. Araiza et al., Constitutional Law: Cases, History and Dialogues 463 (3d ed. 2006) (suggesting that separation of powers issues are likely to be resolved by the political branches rather than through judicial opinion).
32. See generally Ronald J. Allen & Michael S. Pardo, The Myth of the Law-Fact Distinction, 97 Nw. U. L. Rev. 1769, 1770 (2003) (asserting that the belief "that there is a qualitative or ontological distinction" between law and fact is "false").
33. Saul M. Pilchen, Politics v. The Cloister: Deciding When the Supreme Court Should Defer to Congressional Factfinding Under the Post-Civil War Amendments, 59 Notre Dame L. Rev. 337, 396-97 (1984) ("[C]haracterizing a matter as one of law or a fact is no more than a conclusion. that one branch of government rather than another should make the decision in question. ").
34. Court Holding, 324 U.S. at 332-33.
35. See, e.g., Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 88 (2000) (asserting that the Age Discrimination in Employment Act "prohibits very little conduct likely to be held unconstitutional" but turning to Congressional fact-findings to determine whether the law was nonetheless "reasonably prophylactic").
36. John Copeland Nagle, CERCLA's Mistakes, 38 Wm. & Mary L. Rev. 1405, 1419-20 (1997).
37. John Copeland Nagle, CERCLA's Mistakes, 38 Wm. & Mary L. Rev. 1405, 1419-20 (1997).
38. Judicial supremacy has been accepted throughout American constitutional history, and has found recent expression in opinions that achieved broad agreement across the current Court's ideological spectrum. See City of Boerne v. Flores, 521 U.S. 507, 519-20, 529, 536 (1997) (reaffirming, in an opinion for six Justices, judicial supremacy in constitutional interpretation).
39. Court Holding, 324 U.S. at 332-33.
40. Boumediene v. Bush, 553 U.S. 723, 732-33 (2008) (upholding for aliens held at Guantanamo Bay the right of judicial review of constitutional privileges, specifically of the right of habeas corpus, in spite of a law intended to limit such review).
41. See, e.g., Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (2004) (critiquing judicial supremacy as a historical and normative matter).
42. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
43. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
44. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
45. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
46. See Amnon Lehavi, Judicial Review of Judicial Lawmaking, 96 Minn. L. Rev. 520, 559-60 (2011) ("[C]ourts generally lack the authority or political legitimacy to question fact finding, especially when it is made by the legislature. "). Cf. Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 370-71 (2001) (noting that facts relied on by the dissent were not adopted by Congress in its legislative findings and that it is unlikely, therefore, that Congress relied on those facts, or that the Court should). In order to isolate the proper analysis, this Article considers the archetypical case where findings are placed in the statute that is ultimately enacted by the full Congress. The proper level of deference to be accorded findings made in smaller and less formal contexts, such as in a committee report, requires further study.
47. John Copeland Nagle, CERCLA's Mistakes, 38 Wm. & Mary L. Rev. 1405, 1419-20 (1997).
48. See Chevron U.S.A. Inc. v. Natural Res. Def. Council, 467 U.S. 837, 842-43 (1984) (setting forth the deference standard to be applied "[w]hen a court reviews an agency's construction of the statute which it administers" and asserting that when Congress's intent is ambiguous, the Court need only ask whether the agency's construction of the statute is "permissible"). Chevron deference, and its doctrinal partner, Skidmore deference, (describing Skidmore deference), deal with legal interpretations by administrative agencies, not fact-findings by legislatures. Nevertheless, as explained in the text, the limited analogy to these cases holds, as they are used here to illuminate and examine the general authority and expertise rationales for deference.
49. See Chevron, 467 U.S. at 865-66 (noting the various ways in which the agency charged with the administration of a statute may be better situated to interpret it).
50. See United States v. Mead Corp., 533 U.S. 218, 229 (2001) (asserting that, if "Congress would expect the agency to be able to speak with the force of law when it addresses ambiguity in the statute, " then the Court ought to defer so long as the agency has interpreted the ambiguity reasonably). Commentators, however, have suggested other theoretical grounds for Chevron deference. Indeed, a voluminous literature considers the proper theoretical grounding for Chevron deference. See, e.g., Mark Seidenfeld, Chevron's Foundation, 86 Notre Dame L. Rev. 273, 273 (2011) (suggesting that Chevron should be construed "as a doctrine of judicial self-restraint").
51. Peter L. Strauss, Overseers or "The Deciders"-The Courts in Administrative Law, 75 U. Chi. L. Rev. 815, 817 (2008) (asserting that Chevron separates out those agency interpretations which ought appropriately to receive full judicial review from those for which mere "oversight" is appropriate).
52. Elizabeth Garrett, Legislating Chevron, 101 Mich. L. Rev. 2637, 2637-38 (2003) (describing Chevron deference as a function of the congressional delegation to agencies of some "lawmaking power").
53. 323 U.S. 134 (1944).
54. See, e.g., Mead, 553 U.S. at 237-39 (remanding the case to a lower court to apply Skidmore deference after finding "that Chevron left Skidmore intact and applicable where statutory circumstances indicate no intent to delegate general authority to make rules with force of law").
55. Skidmore, 323 U.S. at 140 (asserting that even when agency interpretations are not binding on the courts, they may be consulted as "guidance").
56. Court Holding, 324 U.S. at 332-33.
57. See, e.g., Peter L. Strauss, "Deference" Is Too Confusing-Let's Call Them "Chevron Space" and "Skidmore Weight, " 112 Colum. L. Rev. 1143, 1146 (2012) (arguing that, properly understood, "Skidmore deference" is not really deference at all but rather "an element of independent judicial judgment").
58. See Skidmore, 323 U.S. at 140 (noting these factors).
59. Chevron deference features no requirement that the agency have had a longstanding position on the issue, or that it have had longstanding regulatory authority. Rather, an agency can obtain Chevron deference even when it changes its mind frequently and even if its regulatory authority is relatively new. See Chevron U.S.A. Inc. v. Natural Res. Def. Council, 467 U.S. 837, 863 (1984) ("The fact that the agency has from time to time changed its interpretation of the [statutory term] does not. lead us to conclude that no deference should be accorded the agency's interpretation of the statute. ").
60. Court Holding, 324 U.S. at 332-33.
61. 323 U.S. at 140.
62. John Copeland Nagle, CERCLA's Mistakes, 38 Wm. & Mary L. Rev. 1405, 1419-20 (1997).
63. See, e.g., Vincent A. Wellman, Authority of Law, in A Companion to Philosophy of Law and Legal Theory 573, 573 (Dennis Patterson ed., 1996) ("Those who are expert in a field are said to be authorities about issues within their area of expertise. This context of authority is often described as theoretical authority, or authority about what to believe. ").
64. Court Holding, 324 U.S. at 332-33.
65. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
66. Rogers, 458 U.S. at 618.
67. Video-based review of pro football referees' decisions demonstrates that some professional sports leagues track Chevron-type decisional structures. Official Playing Rules of the Nat'l Football League § 15-9 (2012), available at http://static.nfl.com/static/content/public/image/rulebook/pdfs/2012%20-%20Rule%20Book.pdf (noting that an on-field ruling can only be overturned on video review where "the [reviewer] has indisputable visual evidence available to him that warrants the change").
68. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
69. Cottage Sav. Ass'n v. Comm'r, 499 U.S. 554, 566 (1991).
70. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
71. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
72. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
73. Court Holding, 324 U.S. at 332-33.
74. Rogers, 458 U.S. at 618.
75. Court Holding, 324 U.S. at 332-33.
76. Rogers, 458 U.S. at 618.
77. John Copeland Nagle, CERCLA's Mistakes, 38 Wm. & Mary L. Rev. 1405, 1419-20 (1997).
78. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
79. See, e.g., 5 Oxford English Dictionary 188 (2d ed. 1989) (defining "empirical" as "pertaining to, or derived from, experience").
80. Partial-Birth Abortion Ban Act of 2003, Pub. L. No. 108-105, § 2(14)(B), 117 Stat. 1201, 1204 (codified at 18 U.S.C. § 1531 (2006).
81. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
82. See, e.g., Carhart v. Ashcroft, 331 F. Supp. 2d 805, 980-82 (D. Neb. 2004) (taking evidence on this fact question and concluding that the congressional finding was incorrect), rev'd, Gonzales v. Carhart, 550 U.S. 124 (2007).
83. Nat'l Abortion Fed. v. Ashcroft, 330 F. Supp. 2d 436, 490 (S.D.N.Y. 2004) (same), vacated, Nat'l Abortion Fed. v. Gonzales, 224 F. App'x 88 (2d Cir. 2007).
84. Planned Parenthood Fed. of Am. v. Ashcroft, 320 F. Supp. 2d 957, 1029 (N.D. Cal. 2004) (same), rev'd, Gonzales v. Carhart, 550 U.S. 124 (2007).
85. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
86. A striking example of the ideological nature of evaluative facts can be found in the following colloquy between Representative Henry Waxman and then-Chairman of the Federal Reserve Alan Greenspan, about Chairman Greenspan's understanding of the mortgage industry: On October 23, 2008, in testimony before the [U.S.] House of Representatives Oversight Committee, Greenspan admitted that "those of us who have looked to the self-interest of lending institutions to protect shareholders [sic] equity (myself especially) are in a state of shocked disbelief. " House Oversight Committee Chairman Henry Waxman asked Greenspan whether "your ideology pushed you to make decisions that you wish you had not made?" Greenspan replied: Mr. GREENSPAN. [Y]es, I found a flaw, I don't know how significant or permanent it is, but I have been very distressed by that fact. Chairman WAXMAN. You found a flaw? Mr. GREENSPAN. I found a flaw in the model that. defines how the world works, so to speak. Chairman WAXMAN. In other words, you found that your view of the world, your ideology, was not right, it was not working. Mr. GREENSPAN. Precisely. That's precisely the reason I was shocked, because I had been going for 40 years or more with very considerable evidence that it was working exceptionally well. Patricia A. McCoy, Andrey D. Pavlov & Susan M. Wachter, Systemic Risk Through Securitization: The Result of Deregulation and Regulatory Failure, 41 Conn. L. Rev. 1327, 1347 (2009) (quoting The Financial Crisis and the Role of Federal Regulators: Hearing Before the H. Comm. on Oversight and Government Reform, 110th Cong. 17, 36-37 (2010) (Statement of Alan Greenspan), available at http://democrats.oversight.house.gov/images/stories/documents/20081024163819.pdf).
87. John Copeland Nagle, CERCLA's Mistakes, 38 Wm. & Mary L. Rev. 1405, 1419-20 (1997).
88. Cf. Carhart v. Ashcroft, 331 F. Supp. 2d 805, 1006 (D. Neb. 2004) ("When the answer to the relevant question can only be a guess because the answer will turn on accurately predicting future facts, Congress, being an elected body, is most often the place to make that guess. ") (emphasis added), rev'd on other grounds, Gonzales v. Carhart, 550 U.S. 124 (2007).
89. See Turner Broad. Sys. v. FCC (Turner II), 520 U.S. 180, 191-93 (1997) (discussing the congressional findings).
90. Turner Broad. Sys. v. FCC, 512 U.S. 622, 632-34 (1994) (Turner I) (same).
91. Justice Kennedy, writing in both cases and speaking for the Court in one, called for "substantial deference" to such findings. Turner II, 520 U.S. at 195.
92. See 520 U.S. at 195-96 ("We owe Congress'[s] findings deference in part because the institution is far better equipped than the judiciary to amass and evaluate the vast amounts of data bearing upon legislative questions. [T]he deference to Congress is in one respect akin to deference owed to administrative agencies because of their expertise. " (quoting Turner I, 512 U.S. at 665-66) (internal quotation marks omitted).
93. Turner II, 520 U.S. at 196 (emphasis added).
94. Cf. Allison Orr Larsen, Confronting Supreme Court Fact Finding, 98 Va. L. Rev. 1255, 1264 (2012) ("[A]n assertion of fact is a descriptive statement that can (at least theoretically) be falsified. This feature of a fact arguably distinguishes it from statements of value or policy preferences. "). Larsen's taxonomy implies a distinction between facts and "non-facts, " while my own categorization groups both empirical and value-based facts as "facts. "
95. See, e.g., Oregon v. Mitchell, 400 U.S. 112, 206 (1970) (Harlan, J., concurring in part and dissenting in part) (describing this question as one that "depends ultimately on the values and the perspective of the decisionmaker").
96. See, e.g., 5 Oxford English Dictionary 651 (2d ed. 1989) (defining "fact" as "[s]omething that has really occurred or is actually the case;. a particular truth known by actual observation or authentic testimony, as opposed to what is merely inferred, or to a conjecture or fiction.
97. John Copeland Nagle, CERCLA's Mistakes, 38 Wm. & Mary L. Rev. 1405, 1419-20 (1997).
98. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
99. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
100. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
101. Court Holding, 324 U.S. at 332-33.
102. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
103. 529 U.S. 598 (2000).
104. 42 U.S.C. § 13981 (2006).
105. See United States v. Lopez, 514 U.S. 549, 562-63 (1995) (suggesting the usefulness of congressional findings documenting the substantiality of the interstate commerce effects of the regulated activity when "no such substantial effect was visible to the naked eye").
106. See Morrison, 529 U.S. at 615 (concluding that Congress's findings in VAWA were "substantially weakened by the fact that they rely so heavily on a method of reasoning that we have already rejected as unworkable if we are to maintain the Constitution's enumeration of powers" and that, "[g]iven these findings. the concern that we expressed in Lopez that Congress might use the Commerce Clause to completely obliterate the Constitution's distinction between national and local authority seems well founded").
107. The "substantial effects" prong refers to that component of the modern Court's Interstate Commerce clause doctrine which allows Congress to regulate intra-state activity that "substantially affect[s]" interstate commerce. See United States v. Lopez, 514 U.S. 549, 559 (1995) (identifying this prong of the doctrine).
108. 2 F.3d 1342 (5th Cir. 1993), aff'd, 514 U.S. 549 (1995).
109. See 2 F.3d at 1366-67 (discussing the lack of congressional findings tying gun possession in schools to interstate commerce).
110. See Violence Against Women Act of 1994, Pub. L. No. 103-322, Title IV, 108 Stat. 1796, 1902 (1994) (enacted Sept. 13, 1994). The Court granted certiorari in Lopez on April 18, 1994, 511 U.S. 1029, and decided the case on April 26, 1995, 514 U.S. 549.
111. See Lopez, 514 U.S. at 562-63 (discussing the helpful role findings play when the relationship between activity regulated by Congress and interstate commerce is not immediately visible).
112. See, e.g., Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 587-88 (1985) (O'Connor, J., dissenting) (criticizing the majority's reliance on the political process to protect state prerogatives as amounting to reliance on Congress's "underdeveloped capacity for self-restraint").
113. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
114. John O. McGinnis & Ilya Somin, Federalism vs. States' Rights: A Defense of Judicial Review in a Federal System, 94 Nw. U. L. Rev. 89, 96-97 (2004) (arguing that voters have very little information-and very little incentive to collect information-about federalism). Indeed, defenders of broad congressional authority to legislate in ways that implicate the federal-state balance sometimes attempt to argue that Congress is, in fact, responsive to federalism concerns. See, e.g., New York v. United States, 505 U.S. 144, 190-91 (1992) (White, J., concurring in part and dissenting in part) (arguing that the federal legislation struck down was favored by state officials as a method of resolving a difficult interstate conflict).
115. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
116. See, e.g., Corinna Barrett Lain, Upside Down Judicial Review, 101 Geo. L.J. 113, 167-68 (2012) ("Whether articulated in terms of protecting unpopular minorities or otherwise, today most normative theories of judicial review are based on the Court's ability to act in a countermajoritarian manner. ").
117. Thomas O. Sargentich, The Future of the Item Veto, 83 Iowa L. Rev. 79, 131 (1997) ("One reason why students of American constitutionalism defend vigorously the 'counter-majoritarian' role of the federal courts as the protectors of minorities and unpopular individuals is that the majority itself can disregard the interests of such persons. ").
118. See Fisher v. Univ. of Tex. at Austin, 631 F.3d 213 (5th Cir. 2011), cert. granted, 132 S. Ct. 1536 (Feb. 21, 2012) (No. 11-345) (reviewing the use of race-conscious affirmative action in the higher education context).
119. Cf. Sable Commc'ns of Cal. v. FCC, 492 U.S. 115, 129-31 (1989) (considering a government argument for deference to such a finding, but concluding that Congress had not actually made such a finding).
120. See, e.g., Brown v. Entm't Merchs. Ass'n, 131 S. Ct. 2729, 2738 (2011) (stating this test).
121. John Copeland Nagle, CERCLA's Mistakes, 38 Wm. & Mary L. Rev. 1405, 1419-20 (1997).
122. See Turner II, 520 U.S. 180, 196 (1997) (noting the technical complexity of the facts found).
123. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
124. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
125. See, e.g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring) (observing that the Constitution requires both separation and interdependence to ensure a workable government).
126. See United States v. Mead Corp., 533 U.S. 218, 239, 243 (2001) (Scalia, J., dissenting) (noting that the majority replaced the presumption that Chevron deference was owed with a threshold inquiry into Congress's intent as to whether deference was owed an agency determination).
127. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
128. Universal Camera Corp. v. NLRB, 340 U.S. 474, 487 (1951).
129. Court Holding, 324 U.S. at 332-33.
130. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
131. See, e.g., Einer R. Elhauge, Does Interest Group Theory Justify More Intrusive Judicial Review?, 101 Yale L.J. 31, 77-78 (1991) (noting the limitations adjudication often imposes on a broad representation of interests).
132. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
133. John Copeland Nagle, CERCLA's Mistakes, 38 Wm. & Mary L. Rev. 1405, 1419-20 (1997).
134. See, e.g., Marshall J. Breger, The APA: An Administrative Conference Perspective, 72 Va. L. Rev. 337, 347 (1986) ("Formal rulemaking, whatever its conceptual virtue in ensuring due process, has failed in practice because it emphasizes trial-type procedures that are not suited for exploration of the general characteristics of an industry. ").
135. See United States v. Fla. E. Coast Ry. Co., 410 U.S. 224, 234-38 (1973) (establishing this rule).
136. Bernard Schwartz, Administrative Law 199-200 (3d ed. 1991) (explaining this rule).
137. See Partial-Birth Abortion Ban Act of 2003, Pub. L. No. 108-105 § 2(14)(B)-(C), 117 Stat. 1201, 1204 (2003) (making this finding).
138. Carhart v. Gonzales, 413 F.3d 791, 793 (8th Cir. 2005) (discussing this finding), rev'd, 550 U.S. 124 (2007).
139. Of course, a judicial determination whether a particular fact lies within the judicial ken involves the court in yet another determination, thus increasing the complexity of the deference inquiry. This difficulty would be mitigated through a general presumption favoring judicial review of empirical facts. Still, some empirical facts are highly complex and quite difficult to uncover, thus suggesting that this threshold inquiry might in fact entail difficult choices for a court.
140. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
141. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
142. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
143. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
144. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
145. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
146. See Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 81 (2000) (explaining that when Congress seeks to enforce rights it has the authority to prohibit "a somewhat broader swath of conduct" than that delineated by the right itself).
147. City of Boerne v. Flores, 521 U.S. 507, 519-20 (1997) (insisting on the distinction between identifying and enforcing rights, even while conceding that it is sometimes difficult to uncover the precise dividing line between those two activities).
148. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
149. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
150. See, e.g., Americans with Disabilities Act of 1990, Pub. L. No. 101-336 § 2(a)(7), 104 Stat. 327, 328-29 (1990) ("Congress finds that. individuals with disabilities are a discrete and insular minority who have been faced with restrictions and limitations, subjected to a history of purposeful unequal treatment, and relegated to a position of political powerlessness in our society. "), amended by Pub. L. No. 110-325 § 3(2), 122 Stat. 3553, 3555 (2008) (striking § 2(a)(7) along with "discrete and insular" language).
151. S. 2238, 103d Cong. § 2(7) (1994) (finding that gays and lesbians are a "discrete and insular minority").
152. H.R. 4526, 103d Cong. § 2(4) (1994) (finding that children are a "discrete and insular minority").
153. See United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938) (implying that "prejudice against discrete and insular minorities" may be "a special condition" calling forth heightened judicial scrutiny).
154. Religious Freedom Protection Act of 1993, Pub. L. No. 103-141, 107 Stat. 1488 (1993), invalidated by City of Boerne v. Flores, 521 U.S. 507 (1997).
155. Indeed, the conclusion in RFRA is arguably even more extreme, because it purports to prescribe the appropriate standard by which a type of constitutional claim should be evaluated, rather than simply purporting to find that standard to have been satisfied.
156. John Copeland Nagle, CERCLA's Mistakes, 38 Wm. & Mary L. Rev. 1405, 1419-20 (1997).
157. Cf. Christopher L. Eisgruber & Lawrence G. Sager, Why the Religious Freedom Restoration Act is Unconstitutional, 69 N.Y.U. L. Rev. 437, 470-72 (1994) (arguing that the Religious Freedom Restoration Act violates the principle of United States v. Klein, 80 U.S. 128 (1871), by prescribing a rule of decision (the strict scrutiny test) for the Court to follow).
158. See, e.g., J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 130-31 (1994) ("Intentional discrimination on the basis of gender. violates the Equal Protection Clause, particularly where. the discrimination serves to ratify and perpetuate invidious, archaic, and overbroad stereotypes about the relative abilities of men and women. ").
159. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
160. Cf. California v. Greenwood, 486 U.S. 35, 39-41 (1988) (finding no reasonable expectation of privacy in household garbage left on the street for collection, and therefore rejecting an argument that evidence discovered in that garbage, and further evidence whose discovery was prompted by that discovery, should be excluded from trial).
161. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
162. Partial-Birth Abortion Ban Act of 2003, Pub. L. No. 108-105 § 2(1), 117 Stat. 1201, 1201 (2003) ("The Congress finds and declares the following:. the practice of performing a partial-birth abortion. is never medically necessary. ").
163. Anthony B. Kolnec, Easing Abortion's Pain: Can Fetal Pain Legislation Survive the New Judicial Scrutiny of Legislative Fact-Finding?, 10 Tex. Rev. L. & Pol. 171, 187 (2005).
164. 285 U.S. 22 (1932).
165. See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 845 (1992) (reaffirming that abortion restrictions, to be constitutional, must include a health exception).
166. Cf. Brown v. Bd. of Ed., 347 U.S. 483, 493-95 (1954) (relying on the harm segregation causes African-American children to hold that segregation violates the Fourteenth Amendment).
167. Cf. Simon & Schuster, Inc. v. Members of the N.Y. State Crime Victims Bd., 502 U.S. 105, 118 (1991) (applying the strict scrutiny test of narrow tailoring to meet a compelling government interest to a speech restriction).
168. Cf. Crowell v. Benson, 285 U.S. 22, 71-72 (1932) (Brandeis, J., dissenting) (criticizing the majority's insistence on judicial re-finding of administratively found constitutional facts, on the ground that there is nothing about those facts that renders them any more incapable of accurate determination by administrative agencies).
169. See Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266-68 (1977) (explaining the multi-factor approach).
170. Rogers, 458 U.S. at 618.
171. See, e.g., U.S. Postal Serv. v. Gregory, 534 U.S. 1, 10 (2001) (noting this presumption).
172. See, e.g., Arlington Heights, 429 U.S. at 270 n.21 (discussing the burden-shifting process for equal protection claims).
173. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
174. One can discern a distant echo here of United States v. Klein, 80 U.S. 128 (1871), the Reconstruction-era case that struck down a federal statute purporting to dictate that presidential pardons given to former Confederates were proof of disloyalty to the Union, hence disqualifying them from reimbursement for property seized or destroyed by the Union Army in the Civil War. Klein includes the cryptic statement that Congress violated the separation of powers when it purported to "prescribe rules of decision" for the federal courts. at 146. For our purposes, the precision of the analogy between Klein and congressional findings of the sort identified in Principle 3 is less important than the general idea that the separation of powers is threatened when congressional action comes close to forcing courts to reach certain outcomes in cases.
175. See Arlington Heights, 429 U.S. at 266 (noting that the extent of a law's disparate impact is relevant to a determination of its discriminatory intent).
176. See Grosjean v. Am. Press Co., 297 U.S. 233, 250-51 (1936) (striking down such a newspaper tax).
177. For example, it is hard to understand cases such as Garrett, which discounted facts supporting the ADA because they were not presented to Congress itself, unless one assumes a model of the legislative process in which it is expected that Congress will deliberate in good faith on facts, and rest its judgment only on the facts in the formal record. See Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 368-74 (identifying various failures of legislative deliberation in the ADA).
178. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
179. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
180. See, e.g., Douglas Laycock, A Syllabus of Errors, 107 Mich. L. Rev. 1169, 1175 (2007) (book review) ("[O]ften [legislators] are locked into positions by ideology or political pressure before the hearing ever begins. ").
181. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
182. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
183. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
184. Equal protection again provides an analogy. As John Hart Ely explained, "[t]he goal [that a statute's] classification in issue is likely to fit most closely, obviously, is the goal the legislators actually had in mind. " John Hart Ely, Democracy and Distrust: A Theory of Judicial Review 145 (1980). However, under current doctrine, even after a plaintiff makes out a prima facie showing that the law purposely discriminates (for example, because of its disparate impact) the government may rebut that showing by proving that it would have enacted the same law absent any discriminatory intent. See, e.g., Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 270 n.21 (1977) (describing the burden shifting). Analogously, if a plaintiff makes out a prima facie case that the finding's precise targeting of the right reflects an illegitimate intent to alter that right, Congress can always rebut that showing by demonstrating the accuracy of its finding, and thus the good faith of its fact-finding procedure.
185. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
186. See, e.g., Sable Commc'ns of Cal., Inc. v. FCC, 492 U.S. 115, 129 (1989) ("[W]hatever deference is due legislative findings would not foreclose our independent judgment of the facts bearing on an issue of constitutional law. ").
187. John Copeland Nagle, CERCLA's Mistakes, 38 Wm. & Mary L. Rev. 1405, 1419-20 (1997).
188. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
189. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
190. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
191. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
192. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
193. See Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944) (noting this consistency factor).
194. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
195. While of only indirect relevance here, it bears mentioning that the Congress that enacted the Civil Rights Act of 1875 relied solely on its power to enforce the Fourteenth Amendment, rather than its power to regulate interstate commerce. See Jack M. Balkin, The Reconstruction Power, 85 N.Y.U. L. Rev. 1801, 1832 (2010) (comparing the striking down of the 1875 Act under the Fourteenth Amendment with the upholding of the Civil Rights Act of 1964 under the Commerce Clause).
196. See, e.g., United States v. Carolene Prods. Co., 304 U.S. 144, 152 (1938) (noting this presumption).
197. See, e.g., United States v. Virginia, 518 U.S. 515, 535-36 (1996) (requiring actual justifications when reviewing a government action that discriminated based on sex).
198. Consider, for example, Judge Wald's description of the court's duty when reviewing an administrative agency's rulemaking on a complex issue: "We reach our decision after interminable record searching. We have. studied [the agency's] references. endeavored to understand them where they were intelligible (parts were simply impenetrable), and on close questions given the agency the benefit of the doubt out of deference for the terrible complexity of its job. " Sierra Club v. Costle, 657 F.2d 298, 410 (D.C. Cir. 1981).
199. See Baker v. Carr, 369 U.S. 186, 210-11 (1962) (noting these criteria).
200. See, e.g., Nixon v. United States, 506 U.S. 224, 228-29 (1993) ("[T]he concept of a textual commitment to a coordinate political department is not completely separate from the concept of a lack of judicially discoverable and manageable standards for resolving it.
201. See William D. Araiza, New Groups and Old Doctrine: Rethinking Congressional Power to Enforce the Equal Protection Clause, 37 Fla. St. U. L. Rev. 451, 514 (2010) (noting the generality of equal protection's core requirements).
202. See, e.g., Watkins v. U.S. Army, 837 F.2d 1428, 1444 (9th Cir. 1988) ("The second factor that the Supreme Court considers in suspect class analysis is difficult to capsulize and may. represent a cluster of factors grouped around a central idea-whether the discrimination embodies a gross unfairness that is sufficiently inconsistent with the ideals of equal protection to term it invidious. "), amended by 847 F.2d 1329 (9th Cir. 1988), vacated and aff'd on other grounds, 875 F.2d 699 (9th Cir. 1989) (en banc).
203. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
204. See Jessica L. Roberts, Preempting Discrimination: Lessons from the Genetic Information Nondiscrimination Act, 63 Vand. L. Rev. 439, 478 (2010) (discussing legislative history reflecting this understanding).
205. Compare Smith v. City of Salem, 378 F.2d 566, 571-72 (6th Cir. 2004) (concluding that transgender discrimination constitutes a form of sex discrimination under federal employment law), with Ulane v. E. Airlines, Inc., 742 F.2d 1081, 1084-86 (7th Cir. 1984) (concluding that transgender status is a distinct status from "sex" as understood under federal employment discrimination law).
206. See Laurence H. Tribe, The Puzzling Persistence of Process-Based Constitutional Theories, 89 Yale L.J. 1063, 1074 (1980) ("[I]n looking at social attitudes toward groups, one cannot simply play Linnaeus and engage in taxonomy. One cannot speak of 'groups' as though society were objectively subdivided along lines that are just there to be discerned. Instead, people draw lines, attribute differences, as a way of ordering social existence. ").
207. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
208. John Copeland Nagle, CERCLA's Mistakes, 38 Wm. & Mary L. Rev. 1405, 1419-20 (1997).
209. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
210. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
211. See Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 632-34, 646 (1994) (considering legislation in light of findings by Congress regarding the cable and broadcasting industries).
212. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
213. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
214. See, e.g., Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 374 (2001) (holding that the ADA's employment provisions were not appropriate enforcement legislation).
215. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
216. See, e.g., Gonzales v. Carhart, 550 U.S. 124, 161-67 (2007) (deferring to several findings in the PBABA, despite their lack of support and the existence of other statutory findings that were demonstrably incorrect).
217. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
218. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
219. John Copeland Nagle, CERCLA's Mistakes, 38 Wm. & Mary L. Rev. 1405, 1419-20 (1997).
220. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
221. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
222. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
223. John Copeland Nagle, CERCLA's Mistakes, 38 Wm. & Mary L. Rev. 1405, 1419-20 (1997).
224. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
225. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
226. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
227. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
228. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
229. Court Holding, 324 U.S. at 332-33.
230. 512 U.S. 622 (1994).
231. Court Holding, 324 U.S. at 332-33.
232. See, e.g., Walters v. Nat'l Ass'n of Radiation Survivors, 473 U.S. 305, 331 n.12 (1985) (deferring to congressional findings on the likely increased accuracy of more elaborate administrative procedures, a key factor in considering procedural due process claims). At times the Court has also deferred to similarly crucial findings made by state entities. See, e.g., Grutter v. Bollinger, 539 U.S. 306 (2003) (deferring to a state university law school's conclusions about the level of racial diversity needed in the student body in order to ensure a valuable classroom experience).
233. 18 U.S.C. § 248 (2006). This statute provided for criminal and civil penalties for, among other conduct, obstructing access to abortion or family planning clinics.
234. Don't Ask, Don't Tell Repeal Act of 2010 ("Repeal Act"), Pub. L. No. 111-321, 124 Stat. 3515 (2010).
235. Pub. L. No. 103-322, 108 Stat. 1796 (1994) (codified in scattered sections of 18 U.S.C. and 42 U.S.C.).
236. 42 U.S.C. §§ 12101 et seq. (2006).
237. Pub. L. No. 110-233, 122 Stat. 1796 (2008) (codified in scattered sections of 42 U.S.C.).
238. Pub. L. No. 97-205, 96 Stat. 131 (1982).
239. A version of the Employment Non-Discrimination Act (ENDA) has been introduced in every Congress since 1994, with the sole exception of the 109th Congress. See S. 811, 112th Cong. (2011).
240. H.R. 1397, 112th Cong. (2011).
241. S. 1584, 111th Cong. (2009).
242. See, e.g., Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2, 123 Stat. 5 (overturning Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007).
243. Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071 § 2(2) (noting that the Act was intended to overrule the Supreme Court's holding in Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989), which Congress found "weakened the scope and effectiveness of Federal civil rights protections").
244. John Copeland Nagle, CERCLA's Mistakes, 38 Wm. & Mary L. Rev. 1405, 1419-20 (1997).
245. See, e.g., Mancur Olson, The Logic of Collective Action, 1-3 (1965) (noting this dynamic).
246. See, e.g., Hill v. Colorado, 530 U.S. 703 (2000) (evaluating a state law enacted in 1993 dealing with abortion clinic picketing).
247. Madsen v. Women's Health Center, Inc., 512 U.S. 753 (1994) (considering a series of state court injunctions from 1992 and 1993 restricting abortion clinic picketing).
248. See, e.g., Evelyn Figueroa & Mette Kurth, Madsen and the FACE Act: Abortion Rights or Traffic Control?, 5 UCLA Women's L.J. 247, 250-55 (1994) (examining what the authors called the "dual fronts" of "the courtroom and the clinic" in the battle over abortion rights).
249. For example, the 1992 elections were touted as "The Year of the Woman. " See, e.g., Herma Hill Kay, From the Second Sex to the Joint Venture: An Overview of Women's Rights and Family Law in the United States During the Twentieth Century, 88 Cal. L. Rev. 2017, 2075 (2000) (noting this description).
250. The FACE statute was enacted on May 26, 1994, a little more than a year after President Clinton's first inauguration. Pub. L. No. 103-259, 108 Stat. 694 (1994).
251. Indeed, some scholars argue that a broad examination of American history suggests that Congress is more likely than courts to protect individual rights. See generally Rebecca E. Zeitlow, Enforcing Equality: Congress, the Constitution, and the Protection of Individual Rights (2006).
252. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
253. Compare 384 U.S. 641, 648 (1966) ("A construction of § 5 that would require a judicial determination that the enforcement of the state law precluded by Congress violated the Amendment, as a condition of sustaining the congressional enactment, would depreciate both congressional resourcefulness and congressional responsibility for implementing the Amendment. "), with id. at 666 (Harlan, J., dissenting) (critiquing this argument and noting "I believe the Court has confused the issue of how much enforcement power Congress possesses under § 5 with the distinct issue of what questions are appropriate for congressional determination and what questions are essentially judicial in nature").
254. See, e.g., Bonnie I. Robin-Vergeer, Disposing of the Red Herrings: A Defense of the Religious Freedom Restoration Act, 69 S. Cal. L. Rev. 589, 697 n.438 (1996) (citing sources noting these critiques). But see William D. Araiza, The Section 5 Power and the Rational Basis Standard of Equal Protection, 79 Tulane L. Rev. 517, 567-68 (2005) (suggesting a defense of the ratchet concept as an interpretation of core equal protection law, rather than in a way implicating the deference question).
255. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
256. Shelby County v. Holder, 679 F.3d 848 (D.C. Cir. 2012).
257. See generally Mitchell N. Berman, Constitutional Decision Rules, 90 Va. L. Rev. 1, 51-60 (2004) (explaining the concept of decision rules).
258. See City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 442-43 (noting this concern in the context of the mentally retarded).
259. Rogers, 458 U.S. at 618.
260. United States v. Watson, 483 F.3d 828, 831-33 (D.C. Cir. 2007) (making the same point with regard to the disabled).
261. United States v. Harris, 197 F.3d 870, 875 (7th Cir. 1999) (same).
262. See, e.g., Cleburne, 473 U.S. at 442-43.
263. Coolbaugh v. Louisiana, 136 F.3d 430, 436 (5th Cir. 1998) (same).
264. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
265. 531 U.S. 356, 368-74 (2001).
266. See generally Robert C. Post & Reva B. Siegel, Protecting the Constitution from the People: Juricentric Restrictions on Section 5 Power, 78 Ind. L. Rev. 1 (2003) (criticizing the Court's Enforcement Clause jurisprudence as overly restrictive of congressional discretion).
267. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
268. See, e.g., Watkins v. U.S. Army, 847 F.2d 1329, 1347 (9th Cir. 1988).
269. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
270. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
271. See Bradwell v. Illinois, 83 U.S. 130 (1873) (upholding state law prohibiting women from practicing law).
272. Court Holding, 324 U.S. at 332-33.
273. John Copeland Nagle, CERCLA's Mistakes, 38 Wm. & Mary L. Rev. 1405, 1419-20 (1997).
274. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
275. See The Slaughter-House Cases, 83 U.S. 36, 81 (1873) (expressing serious doubt "whether any action of a State not directed by way of discrimination against the negroes as a class, or on account of their race, will ever be held to come within the purview of" the Equal Protection Clause).
276. See, e.g., John Harrison, Reconstructing the Privileges or Immunities Clause, 101 Yale L.J. 1385, 1433-51 (1992) (arguing that the Equal Protection Clause is fundamentally concerned with requiring that government provide equality in the protection for rights, rather than in the rights themselves).
277. See Village of Willowbrook v. Olech, 528 U.S. 562, 564-65 (2000) (holding that an individual can allege an equal protection violation as a "class of one").
278. See, e.g., City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 442-46 (1985) (confessing its incompetence to judge the appropriateness of many types of classifications states make, and thus refusing to hold, despite strong evidence to the contrary, that the mentally retarded are a suspect class).
279. See, e.g., Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 720-35 (2007) (applying strict scrutiny to a school district's race-conscious pupil assignment program).
280. Adarand Constructors v. Pena, Inc., 515 U.S. 200, 227 (1995) (applying the same standard to a federal government set-aside).
281. City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493-94 (1989) (applying strict scrutiny to a city's racial set-aside).
282. See, e.g., Croson, 488 U.S. at 495-96 (providing only a cursory and unconvincing Carolene-type analysis of why affirmative action set-asides should receive strict scrutiny).
283. See, e.g., Grutter, 539 U.S. at 351-54 (Thomas, J., concurring) (explaining his understanding of equal protection without reference to political process theory).
284. John Copeland Nagle, CERCLA's Mistakes, 38 Wm. & Mary L. Rev. 1405, 1419-20 (1997).
285. Seminole Tribe v. Florida, 517 U.S. 44, 73 (1996). Indeed, one could argue that this rejection was apparent even in Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989), despite that case's ultimate holding that the Commerce Clause authorized Congress to abrogate state sovereign immunity. Recall that in Union Gas, Justice White, the fifth vote for that holding, nevertheless expressed disagreement with "much of" Justice Brennan's analysis-an analysis that explicitly compared the Fourteenth Amendment's effects on the federalstate balance with those of the Commerce Clause. at 57.
286. See Printz v. United States, 521 U.S. 898 (1997) (law enforcement commandeering).
287. New York v. United States, 505 U.S. 144 (1992) (legislative commandeering).
288. The Court has consistently held that, aside from the different subject matters, the scope of Congress's enforcement power is the same under the Fourteenth and the Fifteenth Amendments. See, e.g., Lopez v. Monterey County, 525 U.S. 266, 294 n.6 (1999) (citing caselaw in support of this proposition).
289. See, e.g., Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U.S. 564, 610-20 (1997) (Thomas, J., dissenting) (joined by Rehnquist, C.J. and Scalia, J.) (criticizing the entire idea of a "dormant" Commerce Clause).
290. Bendix Autolite Corp. v. Midwesco Enters., Inc., 486 U.S. 888, 897 (1988) (Scalia, J., concurring in the judgment) (expressing similar doubts).
291. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
292. See Missouri v. Jenkins, 515 U.S. 70, 112-13 (1995) (O'Connor, J., concurring) (noting congressional power in this context).
293. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
294. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
295. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
296. Cottage Sav. Ass'n v. Comm'r, 499 U.S. 554, 566 (1991).
297. See, e.g., William E. Nelson, The Fourteenth Amendment: From Political Principle to Judicial Doctrine 114 (1988) (noting that both Democrats and Republicans in the Congress enacting the Fourteenth Amendment feared centralized power and did not intend for the Amendment to accomplish that result).
298. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
299. See, e.g., Note, Clear Statement Rules, Federalism, and Congressional Regulation of States, 107 Harv. L. Rev. 1959, 1959 (1994) (noting the tension between textualist interpretive methodologies, which attempt to discern the meaning of statutory language, and clear statement rules, which "erect potential barriers to the straightforward effectuation of legislative intent").
300. E.g., Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242 (1985) (requiring a clear statement before an Article I-based law is held to abrogate state sovereign immunity).
301. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
302. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
303. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
304. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
305. See Partial Birth Abortion Ban Act of 2003, Pub. L. 108-105, 117 Stat. 1201 § 2(14)(B) (making this finding).
306. Rogers, 458 U.S. at 618.
307. Rogers, 458 U.S. at 618.
308. Rogers, 458 U.S. at 618.
309. 530 U.S. 914 (2000).
310. See Gonzales v. Carhart, 550 U.S. 124, 141 (2007) (noting that the PBABA was a response to Stenberg).
311. Pub. L. No. 108-105, §§ 2(1), (2), (5), (13), (14)(E). See also id. § 14(O) (procedure is "never medically indicated").
312. Court Holding, 324 U.S. at 332-33.
313. Court Holding, 324 U.S. at 332-33.
314. 505 U.S. 833 (1992).
315. Cf. Roe v. Wade, 410 U.S. 113, 163 (1973) (concluding that the interest in women's health became compelling, and thus justified state regulation, only after the first trimester, and that the state's interest in protecting the potentiality of life in the fetus became compelling, and thus justified regulation only after viability, which was normally thought to be at the end of the second trimester).
316. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
317. PBABA, Pub. L. 108-105, § 2(1).
318. Court Holding, 324 U.S. at 332-33.
319. Compare Lawrence v. Texas, 539 U.S. 558, 599 (2004) (Scalia, J., dissenting) (arguing that the majority's analysis means that morality is never a legitimate reason for legislation), with Casey, 505 U.S. at 877 (explaining that the government has the right to show its "profound respect for the life of the unborn").
320. See Casey, 505 U.S. at 877 (allowing states to regulate abortion in support of their respect for fetal life, as long as the regulation does not constitute an undue burden).
321. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
322. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
323. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
324. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
325. See, e.g., Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1977) (setting forth the factors and the process for determining whether a statute purposely discriminates, and noting that disparate impact is "an important starting point" for the inquiry).
326. Personnel Adm'r v. Feeney, 442 U.S. 256, 281 (1979) (Stevens, J., concurring) (suggesting that the disparate impact and discriminatory intent questions are even more closely related than suggested by the Court's doctrine).
327. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
328. See Brown v. Allen, 344 U.S. 443, 540 (1953) (Jackson, J., concurring in the judgment) ("We are not final because we are infallible, but we are infallible only because we are final. ").
329. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
330. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
331. See Casey, 505 U.S. at 878 (holding that an "undue burden" on the abortion right is one where the "purpose or effect" of a law "is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability").
332. Rogers, 458 U.S. at 618.
333. There is at least a slight irony in the fact that Casey's recognition of significant state interests throughout the pregnancy effectively requires heightened judicial scrutiny of legislative fact-findings. However, this irony disappears when one realizes that the existence of those interests creates a convenient hiding place behind which a legislature can obscure more nefarious motives for legislation restricting abortion. Thus, after Casey, government may have legitimate interests in legislation that effectively limits the abortion right, but this increased freedom of action requires more careful attention to the government's actual motivations, to determine whether the legislature is in fact staying within the bounds of permissible goals.
334. See PBABA, Pub. L. No. 108-105, §§ 2(5), (13), (14)(A), (14)(O) (finding the procedure to be risky for women).
335. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
336. See Gonzales v. Carhart, 550 U.S. 124, 165-66 (2007) (noting this erroneous finding).
337. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
338. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
339. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
340. See, e.g., H.R. 1096, 112th Cong., 1st Session (2011).
341. H.R. 2533, 111th Cong., 1st Session (2009).
342. H.R. 227, 111th Cong., 1st Session (2009) (examples of such legislation).
343. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
344. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
345. Pub. L. No. 89-110, 79 Stat. 437 (codified as amended at 42 U.S.C. §§ 1971, 1973 to 1973bb-1 (2000). The preclearance requirements are codified at 42 U.S.C. § 1973c.
346. See, e.g., Luis Fuentes-Rohwer, Is This the Beginning of the End of the Second Reconstruction?, 59 Fed. Lawyer 54, 54 (2012) ("The Voting Rights Act (VRA) of 1965 is, without question, the most important and effective civil rights statute in U.S. history. ").
347. See, e.g., William Colbert Keady & George Colvin Cochran, Section 5 of the Voting Rights Act: A Time for Revision, 69 Ky. L.J. 741, 755-56 (1981) (describing one form of the preclearance provisions as "the most important segment of the Voting Rights Act").
348. See Northwest Austin Mun. Util. Dist. No. 1 v. Holder, 557 U.S. 193 (2009) (ruling for the plaintiff governmental unit without reaching the plaintiff's argument that the VRA's preclearance requirements exceed Congress's power).
349. Rogers, 458 U.S. at 618.
350. See South Carolina v. Katzenbach, 383 U.S. 301, 309 (1966) (describing the record as "voluminous, " and demonstrating "an insidious and pervasive evil which had been perpetuated in certain parts of our country through unremitting and ingenious defiance of the Constitution").
351. An important component of the argument against the VRA was that the preclearance provisions applied only to some states and local jurisdictions. 679 F.3d at 858-59.
352. But see 679 F.3d at 877-78 (expressing concern about data on successful cases alleging violations of another VRA provision).
353. Compare, e.g., 679 F.3d at 862 ("Congress considered. evidence that, in its judgment, showed that attempts to discriminate persist and evolve, and that [preclearance] is still needed to protect minority voters in the future" (internal quotations and brackets omitted), with id. at 898 (Williams, J., dissenting) (finding this inferred deference insufficient to justify Congress's action).
354. See 679 F.3d at 871-73.
355. See, e.g., 679 F.3d at 861, 868, 871-73 (citing Turner).
356. See, e.g., City of Boerne v. Flores, 521 U.S. 507, 536 (1997) ("It is for Congress in the first instance to determine whether and what legislation is needed to secure the guarantees of the Fourteenth Amendment. " (internal quotation and brackets omitted).
357. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
358. See 679 F.3d at 869.
359. H.R. Rep. No. 109-478, at 24.
360. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
361. 679 F.3d at 895-99.
362. See, e.g., 679 F.3d at 882 (critiquing the dissent's "speculat[ion]" about the significance of the low rate at which jurisdictions have "bailed out" of the preclearance provisions).
363. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
364. Cf. 679 F.3d at 898 (Williams, J., dissenting) (casting doubt on the deterrence argument for the preclearance provisions, on the ground that "it is plainly unquantifiable" and, if credited, would allow their indefinite extension). See also id. at 871 (majority opinion) (conceding that "the claimed [deterrence] effect is hard to measure empirically and even harder to consider judicially").
365. See 679 F.3d at 873 ("The point at which [S]ection 5's strong medicine becomes unnecessary and therefore no longer congruent and proportional turns on several critical considerations, including. the continued need for [S]ection 5's deterrent. effect.
366. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
367. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
368. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
369. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
370. Lewis R. Steinberg, Form, Substance and Directionality in Subchapter C, 52 Tax Law. 457, 499 (1999).
371. This same fundamental truth is captured in another epigram, attributed to Chief Justice Hughes: "Let me find the facts for the people of my country, and I care little who lays down the general principles. " Remark attributed to Chief Justice Hughes, quoted in United States v. Forness, 125 F.2d 928, 942 (2d Cir. 1942) (Frank, J.).