The power to enforce the reconstruction amendments

• Amendments 13,14,15 all give Congress power to enforce, by appropriate legislation, the provisions of amendments.

• However, given that Amendments 13,14,15 are self-executing, it is not clear what exactly Congress’ power to execute them is. [Brown v. Board of Education did not invoke federal statute.]

Katzenbach V. Morgan – Spanish speaking voters

• Brennan 1966. Issue. How can Congress’ interpretation of 14^th amendment legitimately differ from SC’s?

• Lassiter v. Northampton Election Board (1959) held that English-language literacy requirement did not violate 14^th or 15^th amendment. Then Congress enfranchised Spanish-speaking persons (largely New Yorkers) who had completed 6^th grade in Puerto Rico.

• Possible Interpretations of Katzenbach

• Remedial Interpretation. Congress can fashion remedies too complex for courts, or prevent constitutional violations before they happen (which courts cannot do because there is not yet a case/controversy), or find facts that it would be hard for court to find.

• Substantive Interpretation. Congress can adopt any reading of 14^th amendment that is within reason. Or, SCt should reconsider its earlier decision in light of Congress’s considered disagreement.

• Underenforcement. Venn diagram. Judicially enforceable part of 14^th amendment is not entire amendment. Because institutional considerations prevent SC from completely enforcing USC’s commands, Congress can step in and do what courts can’t. (Sager at 56) This theory is especially powerful in explaining validity of laws reaching private action. (See Jones v. Alfred H. Mayer Co.)

1. Substantive interpretation does not bind courts to “one-way ratchet” set by Brennan (e.g. Congress has power to enforce, but not to dilute constitutional guarantees). However, under enforcement does bind courts to “one-way ratchet.”

City of Boerne V. Flores – rfra Unconstitutional

• Kennedy 1997. Landmark case in which SCt found that Congress has no right to specify substantive contours of constitutional rights.

• Holding. Congress could not use its 14^th Amendment enforcement powers to prevent local governments from unintentionally burdening individuals’ religious freedom in certain ways. The decision’s effect was to prevent Congress from effectively overruling a prior SCt decision about the meaning of the Free Exercise clause.

• Statutory and case law background.

• First Amendment says Congress can make no law abridging free exercise of religion. 14^th amendment makes this apply to states as well.

• 1963-1990. Compelling Interest Test (Sherbert v. Verner) – government regulations imposing substantial burden on exercise of religion were constitutional only if justified by compelling state interest. Under this test, acts were periodically struck down.

• Facially neutral statutes. In 1990, SCt decided Employment Division v. Smith, a case about the meaning of the First Amendment’s guarantee of the free exercise of religion. SCt held that facially neutral regulations were constitutional no matter what their impact on exercise of religion. SCt held that where a state enacts a criminal ban that is generally applicable, the state may automatically enforce that ban – without any balancing of the government’s interest against the individual’s interest – even where the ban has the effect of substantially interfering with an individual’s exercise of his religion. (The ban at issue in Smith prevented Native Americans from making their traditional religious use of the drug peyote.) However, facially neutral regulation designed to suppress religious exercise and nothing else is unconstitutional. (Church of the Lukumi Babalu Aye v. City of Hialeah).

• Congress’ response. The Smith decision was very unpopular. Congress responded in 1993 by overwhelmingly passing the “Religious Freedom Restoration Act” (RFRA). RFRA forced federal, state, and local governments to apply pre-Smith law, by which no government action that had the effect of “substantially burdening” a person’s exercise of religion could be taken unless that action was the least restrictive means of accomplishing a “compelling governmental interest.” (In other words, Congress was effectively saying that any governmental action that substantially burdened the exercise of religion had to exercise strict scrutiny.)

• Based on Congress’ 14^th Amendment enforcement power: In applying its new rule to state and local governments, Congress relied on its 14^th Amendment enforcement powers: since the 1^st Amendment (including the guarantee of free exercise of religion) is made applicable to the states through the 14^th Amendment’s guarantee of due process, Congress reasoned that it could tell the states how to enforce that free-exercise guarantee as a means of “enforcing” due process. (Analogous to Voter Rights Act after Lassiter).

• Result. SCt held that RFRA was unconstitutional. Majority said that “Congress has been given the power ‘to enforce,’ not the power to determine what constitutes a constitutional violation.” (In fact, even the three dissenters agreed that Congress did not have the power to define substantive aspects of the 14^th Amendment.)

• Rejection of Katzenbach v. Morgan. Majority admitted that there was language in a prior opinion, Katzenbach v. Morgan, which he said “could be interpreted as acknowledging a power in Congress to enact legislation that expands the rights contained in §1 of the 14^th Amendment.” But he said that this was not the best interpretation of what Katzenbach was saying.

• Effects would be unbounded: Majority then argued that allowing Congress to expand or contract the scope of constitutional guarantees would produce an unstable, easily-changed USC: “If Congress could define its own powers by altering the 14^th Amendment’s meaning, no longer would the USC be ‘superior paramount law, unchangeable by ordinary means.’ It would be ‘on a level with ordinary legislative acts, and, like other acts, alterable when the legislature shall please to later it’ [citing Marbury v. Madison] Under this approach, it is difficult to conceive of a principle that would limit congressional power. Shifting legislative majorities could change the USC and effectively circumvent the difficult and detailed amendment process contained in Article V.”

• RFRA struck down. Majority then concluded that RFRA in fact modified the scope of the free exercise clause, rather than merely enforcing that clause.

• Congress can sometimes prohibit state statutes. Majority acknowledged that Congress could, in certain circumstances, prevent states from enacting certain types of statutes that were not facially unconstitutional, as a method of preventing likely constitutional violations. For instance, in the Voting Rights Act provision upheld in Katzenbach v. Morgan, Congress could, and did, prohibit states with a history of voting-rights violations from applying literacy tests.

• RFRA out of proportion. But RFRA, majority said, was “so out of proportion to any supposed remedial or preventive object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior. It appears, instead, to attempt a substantive change in constitutional protections.” Therefore, it was invalid.

• Dissent. Three justices dissented here. But even the three dissenters agreed that Congress can’t expand or contract the scope of constitutional guarantees, even the scope of the 14^th Amendment guarantees as to which Congress has an explicit enforcement power. (These Justices dissented only because they disagreed with the Smith decision, and therefore didn’t believe that Congress was in fact modifying the scope of the Free-Exercise clause from what these dissenters believed that scope should be.

• Koppelman discussion. Issue. Can RFRA be justified under any of 3 possible defenses of Morgan?

• Substantive interpretation.

1. SC takes this up first and rejects this. Held Congress must not be permitted to advance its own substantive interpretation of 14^th Amendment, because “under this approach it is difficult to conceive of principle that would limit congressional power.”

2. SC rejected without discussion possibility that Congress’s substantive disagreement should occasion revisiting of Smith decision. SC casually rather casually invoked stare decisis. This was hypocritical, given that Smith itself rejected large body of precedent; demonstrates that SC is not bound by its own precedents when it does not want to be.

3. SC did not consider possibility that it could retain power to review rationality of Congress’s interpretation of its own powers, as it did in Jones v. Alfred H. Mayer Co. (264).

• Remedial Interpretation:

1. SC accepts this interpretation; namely, that RFRA is merely device to prevent constitutional violations that are recognized as such by Smith (intentional religious persecutions).

2. But SC observes Congress has not documented/alleged contemporary religious persecution of magnitude sufficient to justify such a sweeping statute.

3. This implies that Morgan power contains requirement of proportionality: “The appropriateness of remedial measures must be considered in light of the evil presented.” (23) This statute is beyond Congress’s powers because it is so disproportionate to evil presented.

• Under enforcement

1. Extremely complex argument which SC did not raise here.

2. In Smith, Scalia argued it was inappropriate for judges to weigh “social importance of all laws against centrality of all religious beliefs” (1603).

3. However, it would not be inconsistent with Scalia’s opinion here to say that Congress have obligation, under free exercise clause, to place great weight on religious liberty and to enact religious exemptions (e.g. Native American peyote users got their exemption from legislature after judiciary rejected one). Thus, while it is inappropriate for judges to be doing balancing, Congress could pass laws specifically carving out certain religiously-based exemptions from state laws.

4. Problem with RFRA was that it instructed courts to balancing laws against religious beliefs as under Smith, which Scalia said was inappropriate.

5.  Under enforcement thesis allows Congress to step in where courts cannot go, but it does not clearly say whether SC should defer to Congress’s judgment about limitations of judicial competence. Neither Smith nor Boerne courts explained whether/why SC’s judgment about its institutional competence was one of constitutional magnitude which Congress could not override.

• Good Confusion. It is not clear what scope of Congressional power is in aftermath of Boerne. SC was less deferential here to Congressional power than it was in the past, but it is difficult to say exactly how less deferential.

• Koppelman: SC did not persuasively distinguish Boerne from Katzenbach v. Morgan.