The Section 5 Mystique, Morrison, and the Future of Federal Discrimination Law

The article seeks, first and foremost, to demystify conceptions concerning the Section 5 of the Fourteenth Amendment power of Congress. Properly understood, Section 5 enactments raise no issue of separation of powers. The infirmity of the statute struck down in City of Boerne v. Flores, 521 U.S. 507 (1997), was not due to its provenance in Section 5. Rather, the statute sought directly to enlist the judiciary in implementing a congressional substitute for the equal protection analysis the courts would perform; in effect, Congress was commandeering the courts to do its bidding in the course of engaging in constitutional adjudication. Unlike the statute at issue in Boerne, Section 5 legislation generally should be understood as providing supplementary protection of groups, supplemental regulation of conduct that implicates no separation of powers concerns. Thus, while Congress unquestionably exercises substantive authority under Section 5, it enjoys no definitional authority over the Constitution's meaning. Section 5 enactments do raise federalism concerns, and the Supreme Court properly should inquire whether the ends of the legislation can be said plausibly to "enforce" the self-operative provisions of the Fourteenth Amendment. But enforcement authority is not limited to codifying, or providing additional sanctions for, conduct that courts on their own would find unconstitutional. Congress enjoys a remedial authority to act in a prophylactic fashion to prevent violations ever from occurring; to establish an environment conducive to the practical enjoyment of equal protection and due process. On the issue of permissible ends of Section 5 legislation, the question ordinarily should be whether the Court has acted in an area that the Court has identified as (or will agree is) one warranting heightened constitutional concern. Classifications the Court has subjected to intermediate or strict scrutiny are such areas, while classifications that are held to merit only rational basis scrutiny generally are not. However, classifications in the latter category may be proper subjects of Section 5 laws when they are found to implicate constitutional values (as recognized by the Court). The Court's "congruence and proportionality" test plays a useful role in cases, like Kimel v. Florida Bd. of Regents, 120 S.Ct. 631 (2000), where despite the invocation of Section 5, the absence of findings and the size of the gap between what the statute requires and what the Fourteenth Amendment requires of its own force raise the question whether Congress was, in fact, animated by Fourteenth Amendment concerns in passing the law. The test is unnecessary in cases like Boerne; it is inappropriate in cases like United States v. Morrison, 120 S.Ct. 1740 (2000), for it results in judicial scrutiny of the means Congress has chosen to advance an otherwise legitimate Section 5 objective. At one level, we should welcome the renewed attention to Congress's Section 5 authority, for an appropriate set of ground rules can serve both to quiet legitimate concerns that Congress impermissibly will overtake state functions and to initiate a new era of candor, encouraging Congress to legislate in the service of equality and due process norms under Section 5 rather than under the guise of regulation of commercial activity under the Commerce Clause. Morrison gives pause, however, and presents a threat to the capacity of the national legislature of address national problems through national solutions.