Document Type
Article
Publication Date
2013
Abstract
After the Supreme Court's decision in City of Boerne v. Flores, the Court worked systematically to undermine the scope of Congress's regulatory authority under Section 5 of the Fourteenth Amendment. The Court did this as part of the neo-federalist revival, in an effort to restrain congressional power in favor of elevating state power against federal intrusion. The Court took this route in restraining various powers, among them the powers granted to Congress under Article I of the U.S. Constitution. Arguably, though, the effort to restrain Congress was most pronounced in the arena of Section 5. In this Article, I argue that this is deeply problematic for a variety of reasons, including the fact that the Court's narrowing construction is out-of-sync with the intentions of the Framers of the Fourteenth Amendment, and further, represents the judicial usurpation of congressional authority. In order to address this problem, the Court should modify its interpretation of Section 5 by striking a pragmatic compromise -- it should maintain its current approach when evaluating congressional efforts to use Section 5 to abrogate state sovereign immunity, but when Congress uses its power simply to regulate the states without attempting to create a private right of action for litigants, it should adopt a more relaxed standard of review. This approach is not only in line with the historical intent of the Framers of the Fourteenth Amendment, but it would also give Congress a breadth of authority that is consistent with the power it exercises when using the most closely analogous power that it possesses -- the power to regulate interstate commerce.
Recommended Citation
Tiffany C. Graham, Rethinking Section Five: Deference, Direct Regulation, and Restoring Congressional Authority to Enforce the Fourteenth Amendment, 56 Rutgers L. Rev. 667 (2013).
Source Publication
Rutgers Law Review