The Section 5 Power and the Three-Tiered Structure of Equal Protection

This Article addresses the current controversy over the scope of Congress' power to enforce the Equal Protection Clause via the Section 5 power. Recent Section 5 cases have engendered much criticism, some of it focused at the Court's seeming disrespect for Congress' factfinding capabilities, some of it on the "congruence and proportionality" standard the Court has enunciated, and the most aggressive of it arguing that Congress should have a greater role in determining constitutional meaning. This Article takes a different tack. It focuses not on what power Congress should have vis-a-vis the Court, but rather, on what the Court has actually said about equal protection. Specifically, it argues that many equal protection decisions don't represent abstract statements of equal protection law; instead, they reflect the outcome of decisional methods that speak to underlying constitutional concerns but which don't themselves yield statements about what the Equal Protection Clause means. Thus, less equal protection "law" exists than is commonly assumed. And if that's the case, more room exists for Section 5 legislation. The Article focuses on the rational basis standard. It argues that the rarity of judicial strike-downs under that standard does not mean that almost all classifications so reviewed satisfy the Equal Protection Clause. Instead, it suggests that that standard is better understood as a statement by the court that it often doesn't have the capability confidently to identify violations of the Clause's underlying rule against unreasonable classifications. The implication under the latter view is that the decision upholding the law does not itself amount to a declaration of constitutional law, which Congress is therefore obliged to respect when the latter seeks to enforce the Clause. The Article argues that the Court's own explanations and application of the rational basis standard support this judicial-restraint characterization. It then argues that the reasons for that restraint apply with much less force to Congress, given the latter's institutional characteristics. The Article then applies these insights to the Court's explanation, in City of Cleburne v. Cleburne Living Center, of why it would not grant suspect class status to the mentally retarded. Cleburne's explanation allows a comparison of Congress' and the Court's abilities to determine whether a classification runs a high risk of being constitutionally unreasonable. The Article then confronts a final theoretical problem: If most rational basis cases don't reflect true declarations of equal protection law, and if rational basis cases comprise the vast majority of equal protection claims, then where is the law in the Equal Protection Clause? The Article suggests that lurking in the rational basis cases is a fundamental principle of equal protection law - namely, the rule against animus. The last major part of the Article considers if, and how, this anti-animus rule could cabin what would otherwise seem to be a very broad Section 5 power. The Article concludes by speculating about what this analysis means for Section 5 enactments addressing gender and race. In particular, the Court's gender jurisprudence implies a significant role for congressional input via the Section 5 power. The Article also speculates whether this analysis illuminates the scope of Congress' power to address substantive rights under the Due Process or other clauses of the Fourteenth Amendment.