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Sec. 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.



In the aftermath of the Civil War, Congress, in addition to proposing to the States the Thirteenth, Fourteenth, and Fifteenth Amendments, enacted seven statutes designed in a variety of ways to implement the provisions of these Amendments.1944 Several of these laws were general civil rights statutes which broadly attacked racial and other discrimination on the part of private individuals and groups as well as by the States, but the Supreme Court declared unconstitutional or rendered ineffective practically all of these laws over the course of several years.1945 In the end, Reconstruction was abandoned and with rare exceptions no cases were brought under the remaining statutes until fairly recently.1946 Beginning with the Civil Rights Act of 1957, however, Congress generally acted pursuant to its powers under the commerce clause1947 until Supreme Court decisions indicated an expansive concept of congressional power under the Civil War Amendments,1948 which culminated in broad provisions against private interference with civil rights in the 1968 legislation.1949 The story of these years is largely an account of the "state action" doctrine in terms of its limitation on congressional powers;1950 lately, it is the still-unfolding history of the lessening of the doctrine combined with a judicial vesting of discretion in Congress to reinterpret the scope and content of the rights guaranteed in these three constitutional amendments.

1944 Civil Rights Act of 1866, ch. 31, 14 Stat. 27; the Enforcement Act of 1870, ch. 114, 16 Stat. 140; Act of February 28, 1871, ch. 99, 16 Stat. 433; the Ku Klux Klan Act of 1871, ch. 22, 17 Stat. 13; Civil Rights Act of 1875; 18 Stat. 335. The modern provisions surviving of these statutes are 18 U.S.C. �� 241, 242, 42 U.S.C.�� 1981-83, 1985-1986, and 28 U.S.C. � 1343. Two lesser statutes were the Slave Kidnapping Act of 1866, ch. 86, 14 Stat. 50, and the Peonage Abolition Act, ch. 187, 14 Stat. 546, 18 U.S.C. �� 1581-88, and 42 U.S.C.� 1994.


1946 For cases under 18 U.S.C. �� 241 and 242 in their previous codifications, see United States v. Mosley, 238 U.S. 383 (1915); United States v. Gradwell, 243 U.S. 476 (1917); United States v. Bathgate, 246 U.S. 220 (1918); United States v. Wheeler, 254 U.S. 281 (1920). The resurgence of the use of these statutes began with United States v. Classic, 313 U.S. 299 (1941), and Screws v. United States, 325 U.S. 91 (1945).

1947 The 1957 and 1960 Acts primarily concerned voting; the public accommodations provisions of the 1964 Act and the housing provisions of the 1968 Act were premised on the commerce power.

1948 United States v. Guest, 383 U.S. 745 (1966); Katzenbach v. Morgan, 384 U.S. 641 (1966). The development of congressional enforcement powers in these cases was paralleled by a similar expansion of the enforcement powers of Congress with regard to the Thirteenth Amendment, Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968). South Carolina v. Katzenbach, 383 U.S. 301 (1966).

1949 82 Stat. 73, 18 U.S.C. � 245. The statute has yet to receive its constitutional testing.

1950 On the "state action" doctrine in the context of the direct application of � 1 of the Fourteenth Amendment, see discussion supra.

The Court, however, ultimately rejected this expansion of the powers of Congress in United States v. Morrison.1951 In Morrison, the Court invalidated a provision of the Violence Against Women Act1952 that established a federal civil remedy for victims of gender-motivated violence. The case involved a university student who brought a civil action against other students who allegedly raped her. The argument was made that there was a pervasive bias against victims of gender-motivated violence in state justice systems, and that the federal remedy would offset and deter this bias. The Court first reaffirmed the state action requirement for legislation passed under the Fourteenth Amendment,1953 dismissing the dicta in Guest, and reaffirming the precedents of the Civil Rights Cases and United States v. Harris. The Court also rejected the assertion that the legislation was "corrective" of bias in the courts, as the suits are not directed at the State or any state actor, but rather at the individuals committing the criminal acts.1954chanrobles-red

1951 529 U.S. 528, 617-27 (2000).

1952 Pub. L. No. 103-322, � 40302, 108 Stat. 1941, 42 U.S.C. � 13981.

1953 529 U.S. at 621 (quoting Shelley v. Kraemer, 334 U.S. 1, 13 (1948), for the proposition that the Amendment "erects no shield against merely private conduct, however discriminatory or wrongful").

1954 This holding may have broader significance for federal civil rights law. For instance, 42 U.S.C. � 1985(3) (a civil statute paralleling the criminal statute held unconstitutional in United States v. Harris) lacks a "color of law" requirement. Although the requirement was read into it in Collins v. Hardyman, 341 U.S. 651 (1951), to avoid constitutional problems, it was read out again in Griffin v. Breckenridge, 403 U.S. 88, 97 (1971) (while it might be "difficult to conceive of what might constitute a deprivation of the equal protection of the laws by private persons . . . there is nothing inherent in the phrase that requires the action working the deprivation to come from the State"). What the unanimous Court held in Griffin was that an "intent to deprive of equal protection, or equal privileges and immunities, means that there must be some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action." Id. at 102. As so construed, the statute was held constitutional as applied in the complaint before the Court on the basis of the Thirteenth Amendment and the right to travel; there was no necessity therefore, to consider Congress' powers under � 5 of the 14th Amendment. Id. at 107.

The lower courts have been quite divided with respect to what constitutes a non-racial, class-based animus, and what constitutional protections must be threatened before a private conspiracy can be reached under � 1985(3). See, e.g., Action v. Gannon, 450 F.2d 1227 (8th Cir. 1971); Dombrowski v. Dowling, 459 F.2d 190 (7th Cir. 1972); Great American Fed. S. & L. Ass'n v. Novotny, 584 F.2d 1235 (3d Cir. 1978) (en banc), rev'd, 442 U.S. 366 (1979); Scott v. Moore, 680 F.2d 979 (5th Cir. 1982) (en banc). The Court's decision in Morrison, however, appears to preclude the use of � 1985(3) in relation to Fourteenth Amendment rights absent some state action.

State Action

In enforcing by appropriate legislation the Fourteenth Amendment guarantees against state denials, Congress has the discretion to adopt remedial measures, such as authorizing persons being denied their civil rights in state courts to remove their cases to federal courts,1955 and to provide criminal1956 and civil1957 liability for state officials and agents1958 or persons associated with them1959 who violate protected rights. These statutory measures designed to eliminate discrimination "under color of law"1960 present no problems of constitutional foundation, although there may well be other problems of application.1961 But the Reconstruction Congresses did not stop with statutory implementation of rights guaranteed against state infringement, moving as well against private interference.

Thus, in the Civil Rights Act of 18751962 Congress had proscribed private racial discrimination in the admission to and use of inns, public conveyances, theaters, and other places of public amusement. The Civil Rights Cases1963 found this enactment to be beyond Congress' power to enforce the Fourteenth Amendment. It was observed that � 1 was prohibitory only upon the States and did not reach private conduct. Therefore, Congress' power under � 5 to enforce � 1 by appropriate legislation was held to be similarly limited. "It does not invest Congress with power to legislate upon subjects which are within the domain of State legislation; but to provide modes of relief against State legislation, or State action, of the kind referred to. It does not authorize Congress to create a code of municipal law for the regulation of private rights; but to provide modes of redress against the operation of State laws, and the action of State officers executive or judicial, when these are subversive of the fundamental rights specified in the amendment."1964 The holding in this case had already been preceded by United States v. Cruikshank1965 and by United States v. Harris1966 in which the Federal Government had prosecuted individuals for killing and injuring African Americans. The Amendment did not increase the power of the Federal Government vis-a-vis individuals, the Court held, only with regard to the States themselves.1967chanrobles-red

1955 Section 3 of the Civil Rights Act of 1866, 14 Stat. 27, 28 U.S.C. � 1443. See Virginia v. Rives, 100 U.S. 313, 318 (1880); Strauder v. West Virginia, 100 U.S. 303 (1880). The statute is of limited utility because of the interpretation placed on it almost from the beginning. Compare Georgia v. Rachel, 384 U.S. 780 (1966), with City of Greenwood v. Peacock, 384 U.S. 808 (1966).

1956 18 U.S.C. �� 241, 242. See Screws v. United States, 325 U.S. 91 (1945); Williams v. United States, 341 U.S. 97 (1951); United States v. Guest, 383 U.S. 745 (1966); United States v. Price, 383 U.S. 787 (1966); United States v. Johnson, 390 U.S. 563 (1968).

1957 42 U.S.C. � 1983. See Monroe v. Pape, 365 U.S. 167 (1961); see also 42 U.S.C. � 1985(3), construed in Griffin v. Breckenridge, 403 U.S. 88 (1971).

1958 Ex parte Virginia, 100 U.S. 339 (1880).

1959 United States v. Price, 383 U.S. 787 (1966).

1960 Both 18 U.S.C. � 242 and 42 U.S.C. � 1983 contain language restricting application to deprivations under color of state law, whereas 18 U.S.C. � 241 lacks such language. The newest statute, 18 U.S.C. � 245, contains, of course, no such language. On the meaning of "custom" as used in the "under color of" phrase, see Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970).

1961 E.g., the problem of "specific intent" in Screws v. United States, 325 U.S. 91 (1945), and Williams v. United States, 341 U.S. 97 (1951), and the problem of what "right or privilege" is "secured" to a person by the Constitution and laws of the United States, which divided the Court in United States v. Williams, 341 U.S. 70 (1951), and which was resolved in United States v. Price, 383 U.S. 787 (1966).

1962 18 Stat. 335, �� 1, 2.

1963 109 U.S. 3 (1883). The Court also rejected the Thirteenth Amendment foundation for the statute, a foundation revived by Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968).

1964 109 U.S. at 11. Justice Harlan's dissent reasoned that Congress had the power to protect rights secured by the Fourteenth Amendment against invasion by both state and private action, but also viewed places of public accommodation as serving a quasi-public function which satisfied the state action requirement in any event. Id. at 46-48, 56-57.

1965 92 U.S. 542 (1876). The action was pursuant to � 6 of the 1870 Enforcement Act, ch. 114, 16 Stat. 140, the predecessor of 18 U.S.C. � 241.

1966 106 U.S. 629 (1883). The case held unconstitutional a provision of � 2 of the 1871 Act, ch. 22, 17 Stat. 13.

1967 See also Baldwin v. Franks, 120 U.S. 678 (1887); Hodges v. United States, 203 U.S. 1 (1906); United States v. Wheeler, 254 U.S. 281 (1920). Under the Fifteenth Amendment, see James v. Bowman, 190 U.S. 127 (1903).

Cruikshank did, however, recognize a small category of federal rights which Congress could protect against private deprivation, rights which the Court viewed as deriving particularly from one's status as a citizen of the United States and which Congress had a general police power to protect.1968 These rights included the right to vote in federal elections, general and primary,1969 the right to federal protection while in the custody of federal officers,1970 and the right to inform federal officials of violations of federal law.1971 The right of interstate travel is a basic right derived from the Federal Constitution which Congress may protect.1972 In United States v. Williams,1973 in the context of state action, the Court divided four-to-four over whether the predecessor of 18 U.S.C. � 241 in its reference to a "right or privilege secured . . . by the Constitution or laws of the United States" encompassed rights guaranteed by the Fourteenth Amendment, or was restricted to those rights "which Congress can beyond doubt constitutionally secure against interference by private individuals." This issue was again reached in United States v. Price1974 and United States v. Guest,1975 again in the context of state action, in which the Court concluded that the statute included within its scope rights guaranteed by the due process and equal protection clauses.

1968 United States v. Cruikshank, 92 U.S. 542, 552-53, 556 (1876). The rights which the Court assumed the United States could protect against private interference were the right to petition Congress for a redress of grievances and the right to vote free of interference on racial grounds in a federal election.

1969 Ex parte Yarbrough, 110 U.S. 651 (1884); United States v. Classic, 313 U.S. 299 (1941).

1970 Logan v. United States, 144 U.S. 263 (1892).

1971 In re Quarles, 158 U.S. 532 (1895). See also United States v. Waddell, 112 U.S. 76 (1884) (right to homestead).

1972 United States v. Guest, 383 U.S. 745 (1966); Griffin v. Breckenridge, 403 U.S. 88 (1971).

1973 341 U.S. 70 (1951).

1974 383 U.S. 787 (1966) (due process clause).

Inasmuch as both Price and Guest concerned conduct which the Court found implicated with sufficient state action, it did not then have to reach the question of � 241's constitutionality when applied to private action interfering with rights not the subject of a general police power. But Justice Brennan, responding to what he apparently intepreted as language in the opinion of the Court construing Congress' power under � 5 of the Fourteenth Amendment to be limited by the state action requirement, appended a lengthy statement, which a majority of the Justices joined, arguing that Congress' power was broader.1976 "Although the Fourteenth Amendment itself . . . 'speaks to the State or to those acting under the color of its authority,' legislation protecting rights created by that Amendment, such as the right to equal utilization of state facilities, need not be confined to punishing conspiracies in which state officers participate. Rather, � 5 authorizes Congress to make laws that it concludes are reasonably necessary to protect a right created by and arising under that Amendment; and Congress is thus fully empowered to determine that punishment of private conspiracies interfering with the exercise of such a right is necessary to its full protection."1977 The Justice throughout the opinion refers to "Fourteenth Amendment rights," by which he meant rights which, in the words of 18 U.S.C. � 241, are "secured . . . by the Constitution," i.e., by the Fourteenth Amendment through prohibitory words addressed only to governmental officers. Thus, the equal protection clause commands that all "public facilities owned or operated by or on behalf of the State," be available equally to all persons; that access is a right granted by the Constitution, and � 5 is viewed "as a positive grant of legislative power, authorizing Congress to exercise its discretion in fashioning remedies to achieve civil and political equality for all citizens." Within this discretion is the "power to determine that in order adequately to protect the right to equal utilization of state facilities, it is also appropriate to punish other individuals" who would deny such access.1978chanrobles-red

1975 383 U.S. 745 (1966) (equal protection clause).

1976 Justice Brennan's opinion, 383 U.S. at 774, was joined by Chief Justice Warren and Justice Douglas. His statement that "[a] majority of the members of the Court expresses the view today that � 5 empowers Congress to enact laws punishing all conspiracies to interfere with the exercise of Fourteenth Amendment rights, whether or not state officers or others acting under the color of state law are implicated in the conspiracy," id. at 782 (emphasis by the Justice), was based upon the language of Justice Clark, joined by Justices Black and Fortas, id. at 761, that inasmuch as Justice Brennan reached the issue the three Justices were also of the view "that there now can be no doubt that the specific language of � 5 empowers the Congress to enact laws punishing all conspiracies—with or without state action—that interfere with Fourteenth Amendment rights." Id. at 762. In the opinion of the Court, Justice Stewart disclaimed any intention of speaking of Congress' power under � 5. Id. at 755.

1977 383 U.S. at 782.

1978 383 U.S. at 777-79, 784.

Congressional Definition of Fourteenth Amendment Rights

In the Civil Rights Cases,1979 the Court observed that "the legislation which Congress is authorized to adopt in this behalf is not general legislation upon the rights of the citizen, but corrective legislation," that is, laws to counteract and overrule those state laws which� 1 forbade the States to adopt. And the Court was quite clear that under its responsibilities of judicial review, it was the body which would determine that a state law was impermissible and that a federal law passed pursuant to � 5 was necessary and proper to enforce � 1.1980 But in United States v. Guest,1981 Justice Brennan protested that this view "attributes a far too limited objective to the Amendment's sponsors," that in fact "the primary purpose of the Amendment was to augment the power of Congress, not the judiciary."

In Katzenbach v. Morgan,1982 Justice Brennan, this time speaking for the Court, in effect overrode the limiting view and posited a doctrine by which Congress was to define the substance of what the legislation enacted pursuant to � 5 must be appropriate to. That is, in upholding the constitutionality of a provision of the Voting Rights Act of 19651983 barring the application of English literacy requirements to a certain class of voters, the Court rejected a state argument "that an exercise of congressional power under � 5 . . . that prohibits the enforcement of a state law can only be sustained if the judicial branch determines that the state law is prohibited by the provisions of the Amendment that Congress sought to enforce."1984 Inasmuch as the Court had previously upheld an English literacy requirement under equal protection challenge,1985 acceptance of the argument would have doomed the federal law. But, said Justice Brennan, Congress itself might have questioned the justifications put forward by the State in defense of its law and might have concluded that instead of being supported by acceptable reasons the requirements were unrelated to those justifications and discriminatory in intent and effect. The Court would not evaluate the competing considerations which might have led Congress to its conclusion; since Congress "brought a specially informed legislative competence" to an appraisal of voting requirements, "it was Congress' prerogative to weigh" the considerations and the Court would sustain the conclusion if "we perceive a basis upon which Congress might predicate a judgment" that the requirements constituted invidious discrimination.1986chanrobles-red

1979 109 U.S. 3, 13-14 (1883).

1980 Cf. Marbury v. Madison, 5 U.S. (1 Cr.) 137 (1803).

1981 383 U.S. 745, 783 and n.7 (1966) (concurring and dissenting).

1982 384 U.S. 641 (1966). Besides the ground of decision discussed here, Morgan also advanced an alternative ground for upholding the statute. That is, Congress might have overridden the state law not because the law itself violated the equal protection clause but because being without the vote meant the class of persons was subject to discriminatory state and local treatment and giving these people the ballot would afford a means of correcting that situation. The statute therefore was an appropriate means to enforce the equal protection clause under "necessary and proper" standards. Id. at 652-653. A similar "necessary and proper" approach underlay South Carolina v. Katzenbach, 383 U.S. 301 (1966), under the Fifteenth Amendment's enforcement clause.

1983 79 Stat. 439, 42 U.S.C. � 1973b(e).

1984 384 U.S. at 648.

1985 Lassiter v. Northampton County Bd. of Elections, 360 U.S. 45 (1959).

1986 Katzenbach v. Morgan, 384 U.S. 641, 653-56 (1966).

In dissent, Justice Harlan protested that "[i]n effect the Court reads � 5 of the Fourteenth Amendment as giving Congress the power to define the substantive scope of the Amendment. If that indeed be the true reach of� 5, then I do not see why Congress should not be able as well to exercise its � 5 'discretion' by enacting statutes so as in effect to dilute equal protection and due process decisions of this Court."1987 Justice Brennan rejected this reasoning. "We emphasize that Congress' power under � 5 is limited to adopting measures to enforce the guarantees of the Amendment; � 5 grants Congress no power to restrict, abrogate, or dilute these guarantees."1988 Congress responded, however, in both fashions. On the one hand, in the 1968 Civil Rights Act it relied on Morgan in expanding federal powers to deal with private violence that is racially motivated, and to some degree in outlawing most private housing discrimination;1989 on the other hand, it enacted provisions of law purporting to overrule the Court's expansion of the self-incrimination and right-to-counsel clauses of the Bill of Rights, expressly invoking Morgan.1990chanrobles-red

1987 384 U.S. at 668. Justice Stewart joined this dissent.

1988 384 U.S. at 651 n.10. Justice O'Connor for the Court quoted and reiterated Justice Brennan's language in Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 731-33 (1982).

1989 82 Stat. 73, 18 U.S.C. � 245. See S. Rep. No. 721, 90th Congress, 1st Sess. 6-7 (1967). See also 82 Stat. 81, 42 U.S.C. � 3601 et seq.

1990 Title II, Omnibus Safe Streets and Crime Control Act, 82 Stat. 210, 18 U.S.C. �� 3501, 3502. See S. Rep. No. 1097, 90th Congress, 2d Sess. 53-63 (1968). The cases which were subjects of the legislation were Miranda v. Arizona, 384 U.S. 436 (1966), and United States v. Wade, 388 U.S. 218 (1967), insofar as federal criminal trials were concerned.

Congress' power under Morgan returned to the Court's consideration when several States challenged congressional legislation1991 lowering the voting age in all elections to 18 and prescribing residency and absentee voting requirements for the conduct of presidential elections. In upholding the latter provision and in dividing over the former, the Court revealed that Morgan's vitality was in some considerable doubt, at least with regard to the reach which many observers had previously seen.1992 Four Justices accepted Morgan in full,1993 while one Justice rejected it totally1994 and another would have limited it to racial cases.1995 The other three Justices seemingly restricted Morgan to its alternate rationale in passing on the age reduction provision but the manner in which they dealt with the residency and absentee voting provision afforded Congress some degree of discretion in making substantive decisions about what state action is discriminatory above and beyond the judicial view of the matter.1996chanrobles-red

1991 Titles II and III of the Voting Rights Act Amendments of 1970, 84 Stat. 316, 42 U.S.C. �� 1973aa-1, 1973bb.

1992 Oregon v. Mitchell, 400 U.S. 112 (1970).

1993 400 U.S. at 229, 278-81 (Justices Brennan, White, and Marshall), id. at 135, 141-44 (Justice Douglas).

1994 400 U.S. at 152, 204-09 (Justice Harlan).

1995 400 U.S. at 119, 126-31 (Justice Black).

1996 The age reduction provision could be sustained "only if Congress has the power not only to provide the means of eradicating situations that amount to a violation of the Equal Protection Clause, but also to determine as a matter of substantive constitutional law what situations fall within the ambit of the clause, and what state interests are 'compelling."' 400 U.S. at 296 (Justices Stewart and Black-mun and Chief Justice Burger). In their view, Congress did not have that power and Morgan did not confer it. But in voting to uphold the residency and absentee provision, the Justices concluded that "Congress could rationally conclude that the imposition of durational residency requirements unreasonably burdens and sanctions the privilege of taking up residence in another State" without reaching an independent determination of their own that the requirements did in fact have that effect. Id. at 286.

More recent decisions read broadly Congress' power to make determinations that appear to be substantive decisions with respect to constitutional violations.1997 Acting under both the Fourteenth and Fifteenth Amendments, Congress has acted to reach state electoral practices that "result" in diluting the voting power of minorities, although the Court apparently requires that it be shown that electoral procedures must have been created or maintained with a discriminatory animus before they may be invalidated under the two Amendments.1998 Moreover, movements have been initiated in Congress by opponents of certain of the Court's decisions, notably the abortion rulings, to utilize � 5 powers to curtail the rights the Court has derived from the due process clause and other provisions of the Constitution.1999 The case of City of Boerne v. Flores,2000 however, illustrates that the Court will not always defer to Congress's determination as to what legislation is appropriate to "enforce" the provisions of the Fourteenth Amendment. In Flores, the Court held that the Religious Freedom Restoration Act,2001 which expressly overturned the Court's narrowing of religious protections under Employment Division v. Smith,2002 exceeded congressional power under section 5 of the Fourteenth Amendment. Although the Court allowed that Congress's power to legislate to deter or remedy constitutional violations may include prohibitions on conduct that is not itself unconstitutional, the Court also held that there must be "a congruence and proportionality" between the means adopted and the injury to be remedied.2003 Unlike the pervasive suppression of the African American vote in the South which led to the passage of the Voting Rights Act, there was no similar history of religious persecution constituting an "egregious predicate" for the far-reaching provision of the Religious Freedom Restoration Act. Also, unlike the Voting Rights Act, the Religious Freedom Restoration Act contained no geographic restrictions or termination dates.2004chanrobles-red

1997 See discussion of City of Rome v. United States, 446 U.S. 156, 173-83 (1980), under the Fifteenth Amendment, infra. See also Fullilove v. Klutznick, 448 U.S. 448, 476-78 (1980) (plurality opinion by Chief Justice Burger), and id. at 500- 02 (Justice Powell concurring).

1998 The Voting Rights Act Amendments of 1982, Pub. L. 97-205, 96 Stat. 131, amending 42 U.S.C. � 1973, were designed to overturn City of Mobile v. Bolden, 446 U.S. 55 (1980). A substantial change of direction in Rogers v. Lodge, 458 U.S. 613 (1982), handed down coextensively with congressional enactment, seems to have brought Congress and the Court into essential alignment, thus avoiding a possible constitutional conflict.

1999 See The Human Life Bill: Hearings Before the Senate Judiciary Subcommittee on Separation of Powers, 97th Congress, lst sess. (1981). An elaborate constitutional analysis of the bill appears in Estreicher, Congressional Power and Constitutional Rights: Reflections on Proposed 'Human Life' Legislation, 68 VA. L. REV. 333 (1982).

2000 521 U.S. 507 (1997).

2001 Pub. L. 103-141, 107 Stat. 1488, 42 U.S.C. � 2000bb et. seq.

2002 494 U.S. 872 (1990).

2003 521 U.S. at 533.

2004 521 U.S. at 532-33. The Court found that the Religious Freedom Restoration Act was "so far out of proportion to a supposed remedial or preventive object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior." Id.

A reinvigorated Eleventh Amendment jurisprudence has led to a spate of decisions applying the principles the Court set forth in Boerne, as litigants precluded from arguing that a state's sovereign immunity has been abrogated under Article I congressional powers2005 seek alternative legislative authority in section 5. For instance, in Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank,2006 a bank which had patented a financial method designed to guarantee investors sufficient funds to cover the costs of college tuition sued the State of Florida for administering a similar program, arguing that the state's sovereign immunity had been abrogated by Congress in exercise of its Fourteenth Amendment enforcement power. The Court, however, held that application of the federal patent law to the states was not properly tailored to remedy or prevent due process violations. The Court noted that Congress had identified no pattern of patent infringement by the states, nor a systematic denial of state remedy for such violations such as would constitute a deprivation of property without due process.2007

A similar result was reached regarding the application of the Age Discrimination in Employment Act to state agencies in Kimel v. Florida Board of Regents.2008 In determining that the Act did not meet the "congruence and proportionality" test, the Court focused not just on whether state agencies had engaged in age discrimination, but on whether states had engaged in unconstitutional age discrimination. This was a particularly difficult test to meet, as the Court has generally rejected constitutional challenges to age discrimination by states, finding that there is a rational basis for states to use age as a proxy for other qualities, abilities and characteristics.2009 Noting the lack of a sufficient legislative record establishing broad and unconstitutional state discrimination based on age, the Court found that the ADEA, as applied to the states, was "so out of proportion to a supposed remedial or preventive object that it cannot be understood as responsive to or designed to prevent unconstitutional behavior."2010chanrobles-red

2005 Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996) (Article I powers may not be used to abrogate a state's Eleventh Amendment immunity, but Fitzpatrick v. Bitzer, 427 U.S. 445 (1976), holding that Congress may abrogate Eleventh Amendment immunity in exercise of Fourteenth Amendment enforcement power, remains good law). See discussion pp. 1533-37.

2006 527 U.S. 627 (1999).

2007 527 U.S. at 639-46. See also College Savings Bank v. Florida Prepaid Post-secondary Education Expense Board, 527 U.S. 666 (1999) (Trademark Remedy Clarification Act amendment to Lanham Act subjecting states to suits for false advertising is not a valid exercise of Fourteenth Amendment power; neither the right to be free from a business competitor's false advertising nor a more generalized right to be secure in one's business interests qualifies as a "property" right protected by the Due Process Clause).

2008 528 U.S. 62 (2000). Again, the issue of the Congress's power under � 5 of the Fourteenth Amendment arose because sovereign immunity prevents private actions against states from being authorized under Article I powers such as the commerce clause.

2009 See, e.g., Gregory v. Ashcroft, 501 U.S. 452 (1991) (applying rational basis test to uphold mandatory retirement age of 70 for state judges).

2010 528 U.S. at 86, quoting City of Boerne, 521 U.S. at 532.

Despite what was considered by many to be a better developed legislative record, the Court in Board of Trustees of the University of Alabama v. Garrett2011 also rejected the recovery of money damages against states, this time under the Americans with Disabilities Act of 1990 (ADA).2012 The ADA prohibits employers, including states, from "discriminating against a qualified individual with a disability"2013 and requires employers to "make reasonable accommodations [for] . . . physical or mental limitations . . . . unless [to do so]. . . would impose an undue hardship on the . . . business."2014 Although the Court had previously overturned discriminatory legislative classifications based on disability in City of Cleburne v. Cleburne Living Center,2015 the Court had held that determinations of when states had violated the Equal Protection clause in such cases were to be made under the relatively deferential standard of rational basis review. Thus, failure of an employer to provide the kind "reasonable accommodations" required under the ADA would not generally rise to the level of a violation of the14th Amendment, and instances thereof did not qualify as a "history and pattern of unconstitutional employment discrimination." Thus, according the Court, not only did the legislative history developed by the Congress not establish a pattern of unconstitutional discrimination against the disabled by states,2016 but the requirements of the ADA would be out of proportion to the alleged offenses.

The Court’s most recent decisions in this area, however, seem to de-emphasize the need for a substantial legislative record when the class being discriminated against is protected by heightened scrutiny of the government’s action. In Nevada Department of Human Resources v. Hibbs,37 the Court considered the recovery of monetary damages against states under the Family and Medical Leave Act. This Act provides, among other things, that both male and female employees can take up to twelve weeks of unpaid leave to care for a close relative with a serious health condition. Noting that the Fourteenth Amendment could be used to justify prophylactic legislation, the Court accepted the argument that the Act was intended to prevent gender-based discrimination in the work-place tracing to the historic stereotype that women are the primary caregivers. Congress had documented historical instances of discrimination against women by state governments, and had found that women were provided maternity leave more often than men were provided paternity leave. Although there was a relative absence of proof that states were still engaged in wholesale gender discrimination in employment, the Court distinguished Garrett and Kimel, which had held Congress to a high standard for justifying legislation attempting to remedy classifications subject only to rational basis review. “Because the standard for demonstrating the constitutionality of a gender-based classification is more difficult to meet than our rational basis test38 . . . it was easier for Congress to show a pattern of state constitutional violations.” 39 Consequently, the Court upheld an across-the-board, routine employment benefit for all eligible employees as a congruent and proportional response to the gender stereotype.

Applying the same approach, the Court in Tennessee v. Lane 40 held that Congress could authorize damage suits against a state for failing to provide disabled persons physical access to its courts. Title II of the Americans with Disabilities Act (ADA) provides that no qualified person shall be excluded or denied the benefits of a public program by reason of a disability,41 but since disability is not a suspect class, the application of Title II against states would seem suspect under the reasoning of Garrett.42 Here, however, the Court evaluated the case as a limit on access to court proceedings, which, in some instances, has been held to be a fundamental right subject to heightened scrutiny under the Due Process Clause.43 Reviewing the legislative history of the ADA, the Court found that Title II, as applied, was a congruent and proportional response to a congressional finding of “a backdrop of pervasive unequal treatment in the administration of state services and programs, including systematic deprivations of fundamental rights.” 44 However, as pointed out by both the majority and by Justice Rehnquist in dissent, the deprivations relied upon by the majority were not limited to instances of imposing unconstitutional deprivations of court access to disabled persons.45 Rather, in an indication of a more robust approach where protection of fundamental rights is at issue, the majority also relied more broadly on a history of state limitations on the rights of the disabled in areas such as marriage and voting, and on limitations of access to public services beyond the use of courts.46chanrobles-red

2011 531 U.S. 356 (2001).

2012 42 U.S.C. �� 12111 - 12117.

2013 42 U.S.C. � 12112(a).

2014 42 U.S.C. � 12112(b) (5) (A).

2015 473 U.S. 432 (1985).

2016 As Justice Breyer pointed out in the dissent, however, the Court seemed determined to accord Congress a degree of deference more commensurate with review of an agency action, discounting portions of the legislative history as based on secondary source materials, unsupported by evidence and not relevant to the inquiry at hand.

37 538 U.S. 721 (2003).

38 Statutory classifications that distinguish between males and females are subject to heightened scrutiny, Craig v. Boren, 429 U.S. 190, 197–199 (1976); they must be substantially related to the achievement of important governmental objectives. United States v. Virginia, 518 U.S. 515, 533 (1996).

39 538 U.S. at 736.

40 124 S. Ct. 1978 (2004).

41 42 U.S.C. � 12132.

42 531 U.S. 356 (2001).

43 See, e.g., Faretta v. California, 422 U.S. 806, 819, n.15 (1975) (a criminal defendant has a right to be present at all stages of a trial where his absence might frustrate the fairness of the proceedings).

44 124 S. Ct. at 1989.

45 124 S. Ct. at 1999.

46 124 S. Ct. at 1989–90. Justice Rehnquist, in dissent, disputed Congress’ reliance on evidence of disability discrimination in the provision of services administered by local, not state, governments, as local entities do not enjoy the protections of sovereign immunity. Id. at 1999–2000. The majority, in response, noted that local courts are generally treated as arms of the state for sovereign immunity purposes, Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977), and that the action of non-state actors had previously been considered in such pre-Boerne cases as South Carolina v. Katzenbach, 383 U.S. 301, 312–15 (1966).

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