"Appropriate" means-ends constraints on Section 5 powers.

• Author: Caminker, Evan H.

Over the past decade, Congress' Section 5 power to enforce the provisions of the Fourteenth Amendment has taken center stage in the unfolding drama of Our (New) Federalism.(1) For the first time in seven decades, the Supreme Court has begun to narrow the scope of Congress' power to regulate interstate commerce. While not long ago it was plausible to describe Congress' Commerce Clause power as virtually plenary, the Court has twice now invalidated statutes as exceeding the proper boundaries of this Article I authority. In United States v. Lopez(2) the Court invalidated the Gun-Free School Zones Act of 1990,(3) and in United States v. Morrison(4) the Court invalidated a provision of the Violence Against Women Act of 1994 that provided a federal civil remedy for victims of gender-motivated violence.(5) In both cases, the Court emphasized that the federal statutes purported to regulate activities not economic in nature(6) without any jurisdictional limitation linking particular instances of such activity to interstate commerce,(7) in a manner that would trench upon a realm of "traditional state concern,"(8) thereby obliterating the "distinction between what is truly national and what is truly local."(9) While it remains unclear just how significant a reduction in the scope of Congress' Commerce Clause power these recent precedents portend, it surely places greater pressure on Section 5 as a potential alternative source of congressional power for at least some regulations threatened by this Commerce Clause retrenchment.

Also within the past decade, the Supreme Court has severely restricted an important enforcement mechanism through which Congress could police state compliance with federal law. Since Hans v. Louisiana,(10) the Court has understood the principles underlying the Eleventh Amendment(11) as immunizing states from suits to which they did not consent seeking damages or other retrospective relief brought by private persons to enforce federal law.(12) Within the past three decades, the Court began to consider the extent to which this principle of state sovereign immunity is subject to abrogation by Congress. In 1976, the Court held in Fitzpatrick v. Bitzer(13) that Congress may abrogate state sovereign immunity through measures enacted pursuant to Congress' Section 5 authority to enforce the provisions of the Fourteenth Amendment against states. In 1989, the Court extended the scope of this abrogation power in Pennsylvania v. Union Gas Co.,(14) where it held that if Congress may regulate the conduct of states pursuant to its Commerce Clause power,(15) then Congress may also enforce such regulations by authorizing private individuals aggrieved by states to sue them directly in federal court to recover monetary damages, the background immunity principle notwithstanding.(16) But this broadened view of Congress' abrogation authority did not last a decade. In 1996, the Court overruled Union Gas in Seminole Tribe v. Florida,(17) holding that Congress cannot abrogate state sovereign immunity in federal court pursuant to its Commerce Clause authority. Then three years later in Alden v. Maine,(18) the Court extended Seminole Tribe by holding that Congress cannot use such authority to abrogate state sovereign immunity in state court either. At the same time, however, both Seminole Tribe and Alden specifically reaffirmed Bitzer's acknowledgment of a Section 5 abrogation power.(19) Thus, at the turn of the new century, Congress may enforce federal law by subjecting unconsenting states to private suits for damages pursuant to its Section 5 powers, but not pursuant to its Article I powers.(20) This doctrinal distinction clearly puts additional pressure on Congress to justify many of its federal statutes as being valid exercises of the Section 5 enforcement power rather than exercises of Article I authority.

Given Section 5's new centrality to federalism policy and law, particularly with respect to abrogating state sovereign immunity, it is unsurprising that more of the Supreme Court's major federalism cases in the last decade involved Section 5 than any other font of federal power.(21) And it is equally unsurprising that the Court has been inhospitable to expansive exercises of congressional authority. In the past four years, the Court both clarified and modified the longstanding doctrinal test governing whether legislation can be defended as predicated on Section 5, beginning with City of Boerne v. Flores.(22) Boerne establishes two major interpretive principles, the first constraining the legitimate end of Section 5 regulation and the second constraining the legitimate means by which Congress may achieve that end. First, Section 5 provides Congress no authority to redefine the substantive scope of the rights protected against state action by the Fourteenth Amendment; rather, Congress may only "enforce" Fourteenth Amendment rights as they are defined by the federal judiciary. Second, even when Congress aims to protect a judicially defined right, Congress may employ only those means that survive heightened scrutiny with regards to means-ends tailoring. Rather than being assessed under the conventional "rational relationship" test established by McCulloch v. Maryland(23) in the context of Article I powers, now Section 5 regulations--at least those that are "prophylactic" in that they prohibit some conduct that the federal judiciary would find constitutionally permissible(24)--must survive the stricter standard of "congruence and proportionality" between means and legitimate ends.(25)

Numerous scholars have assessed the first doctrinal principle concerning the scope of legitimate Section 5 ends, some criticizing the Court for giving Congress too little leeway to redefine the scope of Section 1 rights in at least certain circumstances. More specifically, some maintain, quite plausibly in my view, that Section 5 is best understood as contemplating some participation by Congress in the definition of constitutional norms.(26)

My focus here, however, is on the second principle concerning the meansends relationship, which, with respect, constitutes a sharper break from prior articulated doctrine.(27) Even assuming the Court correctly viewed Congress as having no special role in interpreting the meaning of Fourteenth Amendment rights, the Court acted precipitously in so severely constraining Congress' choice of means in enforcing judicially defined rights. Perhaps on the surface, "the notion that [sections] 5 enactments designed to remedy or prevent constitutional violations should be proportional and congruent to the constitutional wrongs Congress wishes to stop seems harmless enough."(28) But this is a wolf in sheep's clothing: in fact, Section 5 measures have "suddenly been saddled with something between intermediate and strict scrutiny, effectuating what can only be understood as a substantial, albeit not conclusive, presumption of unconstitutionality."(29) While the Court upheld a variety of prophylactic Section 5 measures over the past four decades, the Court has now held provisions of six federal statutes to be inappropriate exercises of Section 5 power within the past four years alone.(30)

I argue here that the Supreme Court's decision to subject all prophylactic Section 5 measures to significantly more rigorous means-ends scrutiny than measures that carry into execution Congress' various Article I and other powers cannot persuasively be defended. Some proffered justifications prove unpersuasive in their entirety, and others are too crude because they at best can explain some but not all of the four recent cases. In my view, Section 5 provides Congress with the same capacious discretion to select among various means to achieving legitimate ends as does Article I as construed in McCulloch v. Maryland. This understanding suggests that, while Boerne itself and College Savings might be explicable on narrow grounds, the other statutory provisions invalidated in Boerne's wake should have been upheld as appropriate enforcement measures--even assuming arguendo that Section 5 does not provide Congress any interpretive role in construing the meaning of Fourteenth Amendment rights.

Part I of this article explores both the relaxed McCulloch means-ends standard for executory Article I legislation and the more rigorous Boerne congruence and proportionality requirement for prophylactic Section 5 enforcement measures, and then clarifies the precise ways in which the latter deviates from the former. Part II demonstrates that the McCulloch standard reflects, and thus the Boerne standard deviates from, the original intent and understanding of the Fourteenth Amendment. Part III then identifies and explores various arguments, grounded in both separation of powers and federalism principles, to evaluate the extent to which they might justify this isolated deviation; none of these arguments proves satisfactory to the task. Part IV speculates whether Boerne, coupled with the Court's recent narrowing of Congress' Commerce Clause authority, portends a more general tightening of means-ends requirements that will soon constrict all executory powers granted to Congress by the Constitution.

1. MEANS-ENDS JUDICIAL SCRUTINY OF CONGRESSIONAL POWER

   1. McCulloch's Deferential Means-Ends Scrutiny of Executory Laws

      Prior to Boerne, the Supreme Court had consistently articulated and employed a very deferential means-ends test when assessing the validity of federal legislation, whether enacted pursuant to Congress' original constitutional authority or the subsequent Reconstruction and other amendments. In order to assess the extent of Boerne's departure from established doctrine, we must first explore that doctrine in some detail.

      1. McCulloch and Article I.

         With respect to congressional authority under Article I, Chief Justice John Marshall provided the canonical articulation of the requisite means-ends nexus in McCulIoch v. Maryland: "Let the end...