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

Wed Jun 26 11:22:27 PDT 2013

I think we're vigorously agreeing.

I agree entirely that there has to be some relationship between the 
substantive scope of an Amendment and enforcement power -- some fit 
between legislation and the supporting Amendment, ensuring that Congress 
is actually enforcing the Amendment's substantive mandate, whether by 
means of remedy or prophylaxis. I'm not arguing that Congress can change 
the substantive scope of an Amendment it's enforcing.

The distinction I was making was about the first sentence of your second 
paragraph: the degree to which the Court double-checks a congressional 
determination on fit.  There's good reason to think that those might not 
be the same under the 14th and 15th Amendments, even though the text 
granting enforcement power is similar.  If "congruence and 
proportionality" indicates not only a requirement of fit but also a 
certain intensity of review ("proportionality," in particular, seems to 
connote more intensive review than merely rough congruence), there's 
reason to think that courts should perhaps review Fourteenth Amendment 
legislation with more intensity and Fifteenth Amendment legislation with 
less.

Justin

On 6/26/2013 11:06 AM, Pildes, Rick wrote:
> I don't understand Rick Hasen's point, or Justin's elaboration, regarding possible 14th/15th Amendment distinctions and Boerne.  The "congruence and proportionality" test is designed to enforce a boundary between Acts that expand the substantive scope of the 14th Amendent and those that provide remedies for violations of the actual substantive scope of the Amendment.  The Boerne view is that Congress is limited to enforcing the Amendment and does not have power to expand its substantive scope.  Whatever one thinks of Boerne, how could th same logic not apply to the 15th Amendment.  How can Boerne not mean that Congress can only enforce the 15th Amendment, but not expand its substantive scope?
>
> Now, I realize there will be lots of issues about what it means properly to apply the congruence and proportionality standard in any particular case, as well as to cases that arise under the 14th versus the 15th amendment.  But in terms of the constitutional requirement that Congress is limited to enforcing the actual amendment, what's the case that Congress has power to expand the substantive scope of the 15th Amendement even if it does not have power to do that for the 14th?  Nothing said so far explains that to me.
>
> -----Original Message-----
> From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Brian Landsberg
> Sent: Wednesday, June 26, 2013 1:57 PM
> To: Justin Levitt; 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
>
> 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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