Applying Section 5: Tennessee v. Lane and judicial conditions on the congressional enforcement power.

AuthorSchwartz, Kevin S.

INTRODUCTION I. THE ENFORCEMENT MODEL LIVES A. The Rehnquist Court Reconstruction B. Due Enforcement II. THE JUDICIAL PRESERVE OF AS-APPLIED ENFORCEMENT REVIEW A. Parsing Section 5 Enforcement B. Conditioning As-Applied Section 5 Review C. A Template for Fundamental Rights Enforcement III. EMANCIPATING CONGRESSIONAL REMEDIATION A. Separating Support for Rights and Remedies B. Codifying a Common Evidentiary Base for Section 5 Remedies IV. FEDERALISM AND THE SECTION 5 POWER CONCLUSION INTRODUCTION

Last Term, the Supreme Court upheld for the first time Congress's effort to enforce the Due Process Clause. In Tennessee v. Lane, the Court considered whether Congress had exceeded its constitutional authority in Title II of the Americans with Disabilities Act (ADA) by requiring states to provide accessible courthouses for disabled people like George Lane. (1) Respondent Lane was arrested after refusing to crawl or be carried up two flights of stairs to face a misdemeanor charge on the second floor of a courthouse with no elevator. He sued Tennessee for failing to comply with Congress's courthouse-accessibility mandate. Reviewing Title II of the ADA, the Court validated Congress's exercise of its Fourteenth Amendment Section 5 power "to enforce, by appropriate legislation," (2) the Due Process Clause guarantees of courthouse access for all citizens, including people with disabilities. (3)

The result in Lane was received as "unexpected," (4) standing out from recent decisions in which the Court had dramatically constrained Congress's Section 5 power. In the seven years prior to Lane, the Rehnquist Court had invalidated five different laws--including three landmark civil rights laws--on the ground that Congress had exceeded its power to enforce the Fourteenth Amendment. (5) Animating these rulings was the central claim that Congress may only use its Section 5 power to enforce judicial articulations of Fourteenth Amendment rights, not its own interpretation of those rights. Robert Post and Reva Siegel have aptly characterized this Fourteenth Amendment jurisprudence as "juricentric" because it reflects a vision of the Constitution in which interpretive authority is concentrated exclusively in the judiciary. (6) Additionally, in recent decisions the Court had invoked federalism concerns to further constrain Section 5, holding that states' sovereign immunity under the Eleventh Amendment justifies restricting otherwise legitimate Section 5 legislation. These judicial conditions on the Section 5 power left deep uncertainty about the federal government's capacity to establish constitutional standards that bind the states according to the rights enshrined in the Fourteenth Amendment.

Lane is innovative in several respects. It is the first case to validate a Section 5 statute enforcing the Due Process Clause. It is the first to consider a Section 5 statute that enforced multiple constitutional rights. It is the first to address explicitly the question of whether Section 5 legislation should be evaluated on its face or only as applied to the circumstances of a particular case. In all of these areas, Lane raises new questions about the relationship between the Court and Congress in enforcing the Fourteenth Amendment.

Measuring Lane against the juricentric rulings that characterized the period from 1997 to 2001, some commentators have interpreted the case as signaling "a significant break from recent decisions." (7) Indeed, only three years earlier in Board of Trustees v. Garrett, the Court rejected Congress's Section 5 authority to prohibit employment discrimination against individuals with disabilities through Title I of the ADA. (8) Others, by contrast, have criticized Lane for refusing to validate all of Title II (9) and instead reaching only those aspects of Title II that require access to courthouses. The question is whether Lane simply reflects the compelling facts of that case or rather represents a broader shift in the Court's attitude toward congressional power.

This Note argues that, although Lane affirms the Court's juricentric review framework for testing the validity of Section 5 laws, the Court applied this model in important new ways to vindicate a more expansive Section 5 power for Congress. Through a series of doctrinal innovations, Lane strikes a new balance of judicial and legislative enforcement powers that ultimately preserves for the courts exclusive interpretive authority, while providing Congress greater discretion to design innovative enforcement legislation that is binding on the states. This Note demonstrates that Lane possesses far-reaching implications for future judicial review of Congress's Section 5 legislation.

In Part I of this Note, I examine how the Lane Court affirmed the doctrinal tests used to invalidate Title I of the ADA while, at the same time, upholding a nearly identical antidiscrimination mandate in Title II of the ADA. By identifying the key features of Lane's Section 5 review, this Part reveals the compatibility between the Court's stringent review conditions and its validation of Due Process Clause enforcement.

Parts II and III then consider the scope-of-review puzzles posed by Title II's enforcement of multiple constitutional rights. As these Parts show, the Court expanded legislative authority even while restricting its holding to the specific context of courthouse access. Part II argues that Lane retains juricentric restrictions on Section 5 by using, for the first time, an as-applied methodology to test Congress's invocation of the Section 5 power. Part III then demonstrates that, despite its narrow holding, Lane vindicates more expansive authority for congressional remedies based on broader pragmatic considerations of the "gravity of the harm" (10) stemming from Fourteenth Amendment violations.

Finally, Part IV shows how Lane distinguishes its Section 5 review framework from the Eleventh Amendment federalism concerns used in recent decisions to restrict otherwise valid Section 5 legislation. Through the lens of Due Process Clause enforcement, Lane exposes the true stakes of these previous Section 5 rulings by revealing their threat to the national government's power to enforce constitutional rights standards against the states.

By examining how the Court combined a juricentric vision with a validation of Congress's power to use Section 5 to enforce Due Process Clause rights, this Note reveals Lane to be a potential turning point in the Court's Section 5 jurisprudence. While some interpret Lane to mark a "congressional power day" (11) and others criticize it as a narrow exception to the Court's encroachment on legislative enforcement, (12) this Note challenges both interpretations as incomplete. The Court's juricentric logic continues to formally deny Congress the independent authority to interpret the Fourteenth Amendment. Nevertheless, this Note shows important ways in which Lane's analytic structure implicitly validates more expansive authority for Congress to give practical content to constitutional values through remedial legislation. Thus, by explicating the doctrinal and conceptual changes that drive the Court's analysis in Lane, this Note reveals how the Court has begun to create room for a more balanced relationship between the judicial and legislative powers to enforce the Fourteenth Amendment.

  1. THE ENFORCEMENT MODEL LIVES

    At issue in Lane was the validity of a disabled person's damages suit against Tennessee for its failure to enforce the accessibility requirements in Title II of the ADA. Under its Section 5 power, Congress passed Title II (13) as a constitutionally binding requirement on the states: "[N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." (14) Invoking this legal prohibition against their exclusion, six citizens brought damages suits against Tennessee for failing to make state courthouses accessible to people with physical disabilities.

    George Lane, a paraplegic who uses a wheelchair, was one of the individuals who challenged his exclusion from the courtroom. (15) When Tennessee prosecuted Lane on criminal misdemeanor charges, the state judge refused to move from a second-floor courtroom to one on the ground floor or to make a reasonable accommodation so that Lane could be present for his trial. The judge subsequently ordered law enforcement officers to arrest Lane after he refused to crawl or be carded up two flights of stairs to appear at his trial. (16) Lane argued that Tennessee's failure to make the courthouse accessible was precisely the type of constitutional violation that Congress sought to eliminate by invoking the "sweep of congressional authority" (17) to enforce the Fourteenth Amendment. Tennessee sought to dismiss Lane's suit on the ground that "Title II of the ADA exceeds Congress' power under Section 5 of the Fourteenth Amendment to abrogate the sovereign immunity of the States." (18)

    In evaluating Lane's holding, Section A explicates the requirements of the Court's current review framework, revealing two key conditions imposed by the Court as prerequisites for valid congressional enforcement. Section B explains how the Court deployed these constraining conditions and nevertheless validated Title II's courthouse-accessibility mandate based on analytically distinct features of congressional Due Process Clause enforcement.

    1. The Rehnquist Court Reconstruction

      In 1997, the Rehnquist Court began narrowing the scope of Congress's Fourteenth Amendment enforcement authority by claiming that Section 5 legislation could represent a direct threat to the "separation of powers and the federal balance." (19) Breaking with decades of substantial deference to Congress over Section 5 lawmaking, (20) the Court in City of Boerne v. Flores...

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