[EL] The curious disappearance of Boerne and the future jurisprudence of voting rights and race : SCOTUSblog

[Justin Levitt]

Congressional enforcement power has to be related to its substantive 
constitutional provision, which means that the Court needs some standard 
of review.

But even if textual grants of enforcement power are identical -- and 
even if Congressional power to act is equal under each enforcement 
provision, which need not be the case -- it is not a necessary 
conclusion that the Court should review all enforcement activity with an 
equally skeptical eye.  (Cf. the equal protection clause, where the 
single textual standard of equal protection spawns judicial review with 
varying degrees of deference depending on the context.)

One argument to believe in broader deference for 15th Amendment 
enforcement activity power stems from the relative perceived danger of 
expansive congressional power.  The 14th Amendment is a substantive 
protection that is quite broad, which renders Congressional enforcement 
power quite broad.   A Court worried about overly expansive 
congressional activity might review this enforcement power more 
strictly, to reduce congressional latitude: enforcement power would be 
broad but somewhat shallow.   The 15th Amendment is a substantive 
protection that is much narrower, and so perhaps there is less reason to 
fear overly expansive congressional activity: review might be more 
deferential, to allow enforcement power that is topically narrow but 
comparatively deeper.  (I'm not claiming that this is actually the view 
of the Court -- but it's a nontrivial reason to think that standards of 
review might be different.  As Rick pointed out, none of this was 
clarified yesterday.)

Justin

-- 
Justin Levitt
Associate Professor of Law
Loyola Law School | Los Angeles
919 Albany St.
Los Angeles, CA  90015
213-736-7417
justin.levitt at lls.edu
ssrn.com/author=698321

On 6/26/2013 10:31 AM, Rick Hasen wrote:
> I'm on vacation without access to everything but others have written about why the 15 th amendment power should be broader.  Ellen Katz I think for one.
>
> Rick Hasen
>
> Sent from my iPhone. Please excuse typos.
>
> On Jun 26, 2013, at 2:09 AM, "Jonathan Adler" <jha5 at case.edu> wrote:
>
>> Rick --
>>
>> Interesting post.  Here's my question.  Is there any reason to assume that
>> the test governing Congressional exercises of the 15th Amendment's
>> enforcement power should be different than for the 14th Amendment?  That
>> is, if one believes Boerne is correct, what would the reason be for not
>> applying a similar approach to the 15th Amendment?  I recognize that
>> Boerne may be wrong, but the question would be the same.  Assume the Court
>> should apply a different test for Section 5 of the 14th, why should the
>> test for a parallel enforcement provision adopted contemporaneously be any
>> different?
>>
>> JHA
>>
>> ------
>> Jonathan H. Adler
>> Johan Verheij Memorial Professor of Law
>> Director, Center for Business Law & Regulation
>> Case Western Reserve University School of Law
>> 11075 East Boulevard
>> Cleveland, OH 44106
>> ph) 216-368-2535
>> fax) 216-368-2086
>> cell) 202-255-3012
>> jha5 at case.edu
>> http://www.jhadler.net
>> SSRN: http://ssrn.com/author=183995
>>
>>
>> -----Original Message-----
>> From: law-election-bounces at department-lists.uci.edu
>> [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Rick
>> Hasen
>> Sent: Tuesday, June 25, 2013 7:20 PM
>> To: law-election at UCI.edu
>> Subject: [EL] The curious disappearance of Boerne and the future
>> jurisprudence of voting rights and race : SCOTUSblog
>>
>>
>> http://www.scotusblog.com/2013/06/the-curious-disappearance-of-boerne-and-
>> the-future-jurisprudence-of-voting-rights-and-race/
>>
>>
>> Rick Hasen
>>
>> Sent from my iPhone. Please excuse typos.
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