Left/Right: Managing the Coming Clash Between Congressional Rights Enforcement and Judicial Doctrine

Democratic Party victories in the 2020 presidential and congressional elections have created a unified national government that is committed to enacting legislation furthering individual rights. Congress and the President are currently poised to consider rights-protective legislation covering everything from voting rights to women’s and LGBT rights to protections against abusive policing, among other topics. If enacted, such legislation will face a skeptical judicial reception. Current Supreme Court doctrine insists on careful scrutiny of legislation enacted under Congress’s powers to enforce the Reconstruction Amendments, while Article I doctrine looks askance at federal regulation of non-commercial activities and spending grants to states that include meaningful conditions. Nor are trends in the Court’s personnel favorable; if anything, former President Trump’s ability to name three Justices has likely further skewed the Court toward strict enforcement of federalism-based limits on congressional power to regulate states. Thus, today’s situation likely presages a coming collision between a Congress seeking to enact rights-enforcing federal legislation and a skeptical Court armed with hostile judicial doctrine. This article, written for a symposium on the Constitution outside the courts, mines four historical examples of congressional consideration of rights-enforcing legislation to find models for a Congress that seeks to vindicate its right-protecting preferences against a hostile judiciary. It considers three general approaches Congress might take when seeking to ground civil rights legislation on a firm constitutional foundation despite the existence of hostile precedent or a skeptical Court: challenging unfavorable precedent, avoiding it by relying on a different constitutional power, or arguing that its legislation merely applies that precedent. After Part I introduces the issue and the various paths Congress can take in order to vindicate individual rights, Part II considers four instances of congressional rights-protecting legislation—over what became the 1964 Civil Rights Act’s public accommodations provisions, the private right of action provided by the 1994 Violence Against Women Act, and the 2003 Partial-Birth Abortion Ban Act, as well as never-enacted legislation adding sexual orientation (and, in later iterations, gender identity) to the list of federally-prohibited grounds for employment discrimination—to uncover what those debates offer by way of lessons for congressional action today. In each of these examples Congress confronted a slightly different doctrinal and judicial backdrop to the desired legislative action, and each reflects a different ultimate constitutional strategy it settled on. Based on those case studies, Part III evaluates those challenge, avoidance, and application strategies. It concludes that each strategy holds both promise and peril for Congress. In particular, it concludes that, while the application strategy appears the most straightforward and safest, it is by no means foolproof or risk free. Part IV briefly evaluates the implications of Part III’s analysis. It concludes that the risks posed by each of these strategies requires Congress to think long and hard as it deliberates on the proper constitutional foundation for whatever civil rights legislation it is disposed to enact.