Calvin Massey · November 2007
76 GEO. WASH. L. REV. 1 (2007)
Although City of Boerne v. Floresestablished that Congress has nly a remedial power to enforce the Fourteenth Amendment and may not define for itself the substance of the Amendment’s guarantees, it left the boundaries of that power ill-defined. The Court acknowledged that “Congress must have wide latitude” to determine the scope of its remedial power, and it recognized that Congress may remedy the constitutional wrongs of the states both before and after they occur. But the Court insisted that the test for whether remedial measures are authorized by the Fourteenth Amendment is that there must exist “a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.”
The Court has not yet decided whether Congress has greater latitude to exercise its enforcement power when it does not subject the states to private suits for damages for those actions. The Court has, however, left hints suggesting that there are two zones of prophylaxis: an “inner zone” that is tightly bound to levels of judicial scrutiny applicable to Fourteenth Amendment claims and an “outer zone” that permits Congress greater discretion to prevent state wrongdoing when state sovereign immunity is not at issue. Although the Court in Garrett held that Congress had no Section 5 enforcement power to abrogate Eleventh Amendment immunity to enable the disabled to sue states to recover money damages for state discrimination against them, it suggested in a footnote that Congress did have Section 5 enforcement authority to forbid that discrimination and subject officers of the states to suit for injunctive relief and the states themselves to suit for money damages brought by the federal government, neither of which implicate state sovereign immunity. So long as Congress does not seek to remedy identified state misbehavior by abrogating state sovereign immunity, its power to prevent Fourteenth Amendment violations may be broader.
Part I recapitulates briefly the judicial calculus used to assess whether Congress may validly subject states to private suits for damages for conduct that Congress prohibits to prevent possible violations of the Fourteenth Amendment. I argue that the Court’s tool kit—congruence and proportionality—is one fashioned by Flores to advance both separation-of-powers and federalism concerns. The Flores test preserves the Court’s primacy as the authoritative interpreter of the Constitution and prevents Congress from exercising a general police power. When the test is applied in the abrogation context, however, it functions mostly to preserve state sovereignty. Although both federalism and separation-of-powers issues are matters of constitutional interpretation, and thus properly for the Court to decide,13 the Court’s conflation of these issues tends to impede clarity. Do the cases involving use of the Section 5 power to abrogate state sovereign immunity14 pertain only (or primarily) to the scope of congressional power to abrogate such immunity, which is principally a federalism question concerning the proper scope of state sovereign immunity? Or, do those cases have equal application to the scope of the enforcement power generally, which implicates both separation-of-powers concerns and a different federalism issue: the extent of the enumerated powers of Congress?
Because these cases lie at the intersection of state sovereign immunity and congressional power to enforce the substance of the Fourteenth Amendment, they pertain to both doctrinal areas. But the threshold question is whether their reasoning principally explicates the Court’s doctrine concerning the scope of Congress’s power to abrogate state sovereign immunity or informs the Court’s jurisprudence concerning the general scope of the Section 5 enforcement power. If they are only about abrogation, they are applications of Seminole Tribe of Florida v. Florida and Alden v. Maine within the specific context of the enforcement power. If they are about the general scope of the enforcement power, they delimit congressional power to enforce the Fourteenth Amendment, regardless of the remedy chosen by Congress. The messy reality, of course, is that these cases speak to both issues, and both issues involve questions of federalism and separated powers. The task is to separate the strands of this tangled skein into usable threads.
City of Boerne v. Flores makes clear that Congress’s enforcement power does not permit it to prohibit state practices that the Court has determined to be constitutionally valid. Put another way, Congress may enforce constitutional rights, but the set of constitutional rights is determined by the Court. Congress has no independent power to determine the substance of constitutional rights and, thus, may not enforce its own notion of what constitutes constitutional rights. Congress may, however, prohibit practices that threaten to interfere with judicially recognized constitutional rights. As described in Part I, in the inner zone of the abrogation context the scope of this prophylactic enforcement power has been tightly bound to the levels of judicial scrutiny applicable to claims of constitutional right and to specific evidence of state constitutional wrongdoing.
I argue that, within the outer zone, Congress should be free to prohibit state practices that have not been determined by the Supreme Court to be constitutionally valid when a substantial portion of such practices materially interferes with an inchoate constitutional right. I use the term “inchoate constitutional right” to refer to either of two forms of claimed right. The first is a claimed right that has yet to be recognized by the Supreme Court as deserving of any form of heightened judicial scrutiny, but which has been widely and repeatedly treated as a plausible constitutional right by multiple sources within our constitutional culture, including decisions of state and lower federal courts, repeated dicta in opinions of the Supreme Court, legislative debate, learned commentary, and popular opinion. The second is a legislative application of an existing judicially recognized right that has not yet been determined by the Court to be within or without the existing right, but which Congress has found, by adequate evidence, to be within the existing judicially recognized right.
