The Troubled Adolescence of City of Boerne v. Flores

This chapter, which will appear in a book examining current controversies in equal protection, considers the state of judicial doctrine governing congressional power to enforce the Equal Protection clause. That doctrine – the “congruence and proportionality” standard enunciated in 1997 in City of Boerne v. Flores, has faced a decade of challenges as early consensus about the standard evolved into sharp disagreements over its proper application. This chapter considers those disagreements. First, it considers the problem raised when the Court accords skeptical review of enforcement legislation based on the suspect class status of the benefitted group. It argues that the Court’s approach makes little sense when it has abandoned meaningful suspect class analysis of groups, particularly groups only recently beginning to assert equal protection claims. More fundamentally, this approach misconstrues the Court’s tiered scrutiny/suspect class methodology. The Court’s Enforcement Clause jurisprudence assumes that suspect class analysis constitutes core equal protection law, rather than what it really is – a useful, judicially-workable method of deciding equal protection cases, but one that only approximates the true constitutional rule. Thus, a gap exists between the results suspect class analysis yields and those the Constitution demands. Congress should enjoy at least some leeway to fill in that gap, subject to appropriate limiting principles. Unfortunately, the Court’s Enforcement Clause doctrine denies the existence of that gap, and hence of Congress’s legitimate role in constructing constitutional meaning. Second, this chapter considers problems raised by the Court’s two most recent Enforcement Clause cases. Those cases – striking down a provision of the Family and Medical Leave Act and narrowly avoiding a confrontation with the Voting Rights Act – raise distinct but related problems. The FMLA case, Coleman v. Court of Appeals, reflects the Court’s impatience with Congress’s attempts to address stubborn or nuanced discrimination through aggressive or indirect means. While the Court did not reach the Enforcement Clause issue in the VRA case, Northwest Austin Municipal Utility District No. 1 v. Holder (“NAMUDNO”), it nevertheless expressed unmistakable skepticism about the continued need for the statute, in light of evidence tentatively suggesting that the VRA had successfully eradicated racial discrimination in voting. Thus, these cases limit congressional latitude to make quintessentially legislative judgments: in Coleman, about the need for aggressive legislation, and in NAMUDNO, judgments about the VRA’s success and predictions about backsliding were the statute to disappear. Such judgments might result in overly broad enforcement legislation, were congressional power not appropriately cabined. But Coleman and NAMUDNO reflect a refusal to accord Congress adequate discretion to make the policy judgments appropriate to the national legislature. Limits on congressional enforcement power are appropriate: the Enforcement Clause, while broad, is not limitless. But as these examples illustrate, an appropriate set of judicial limitations on that power requires the Court to recognize its, and Congress’s, respective institutional roles. This chapter argues that the Court should rethink its application of the congruence and proportionality test in a way that recognizes those distinct, but complimentary, roles.