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

[Brian Landsberg]

DOJ made a similar argument in Mobile v. Bolden, though not about enforcement authority.  We argued that the reasons for rejecting the effects test under the Fourteenth Amendment did not apply to the Fifteenth.  The Court rejected the argument.

Brian K. Landsberg
Distinguished Professor and Scholar
Pacific McGeorge School of Law
3200 Fifth Avenue, Sacramento CA 95817
916 739-7103


-----Original Message-----
From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Justin Levitt
Sent: Wednesday, June 26, 2013 10:45 AM
To: law-election at department-lists.uci.edu
Subject: Re: [EL] The curious disappearance of Boerne and the future jurisprudence of voting rights and race : SCOTUSblog

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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