Judicial Review of Thirteenth Amendment Legislation: 'Congruence and Proportionality' or 'Necessary and Proper'?

The Thirteenth Amendment has relatively recently been rediscovered by scholars and litigants as a source of civil rights protections. Most of the scholarship focuses on judicial enforcement of the Amendment in lawsuits brought by individuals. However, scholars have paid relatively little attention as of late to the proper scope of congressional action enforcing the Amendment. The reason, presumably, is that it is fairly well settled that Congress enjoys very broad authority to determine what constitutes either literal slavery or, to use the language of Jones v. Alfred H. Mayer Co., a "badge or incident of slavery" falling within the Amendment's purview. Indeed, the Supreme Court has repeatedly held that the Thirteenth Amendment empowers Congress "to pass all laws necessary and proper for abolishing all badges and incidents of slavery in the United States." Thirteenth Amendment legislation, the Court has stated, is to be reviewed only for its rationality. Thirteenth Amendment legislation is constitutional unless it can be said that the congressional determination that a given condition constitutes slavery, involuntary servitude, or a badge or incident thereof is wholly irrational. This broad "necessary and proper" interpretation of congressional authority under the Thirteenth Amendment therefore seems unassailable, until one recalls that prior to the Court's decision in City of Boerne v. Flores, roughly the same interpretive framework existed regarding congressional power to protect civil rights under section 5 of the Fourteenth Amendment. Boerne and its progeny have systematically dismantled the prior "necessary and proper" structure supporting section 5 legislation, replacing it with a new and shaky edifice requiring Congress to demonstrate "congruence and proportionality" between the problem that Congress has chosen to address and the means it has selected to do so. The Court has made clear that it did not intend a mere rhetorical shift by virtue of this new test, but rather, Congress must now specifically demonstrate by factual findings in the congressional record that it has satisfied the Court's requirements. While the Supreme Court has not yet decided whether the "congruence and proportionality" test applies to the Thirteenth Amendment, it is reasonable to assume that this question will arise in the near future. In this article, I provide a preliminary analysis of the effect, if any, of Boerne and its progeny on the standard of review for assessing the constitutionality of Thirteenth Amendment legislation. In Part II, I discuss the standard of review currently applied to Thirteenth Amendment legislation. In Part III, I provide an overview of the Boerne "congruence and proportionality" test and discuss the underlying theoretical justifications for that test. Part IV identifies salient differences between the Thirteenth and Fourteenth Amendments and argues that these differences render the Boerne test's theoretical justifications inapplicable to most Thirteenth Amendment legislation. In Part V, I conclude that, despite Boerne, Congress continues to enjoy great latitude in the exercise of its power to enforce the Thirteenth Amendment to protect civil rights.