[*PG697]IN LIGHT OF THE EVIL PRESENTED: WHAT KIND OF PROPHYLACTIC ANTIDISCRIMINATION LEGISLATION CAN CONGRESS ENACT AFTER GARRETT?
Abstract: In recent years, the Supreme Court has repeatedly invalidated congressional legislation enacted pursuant to Section 5 of the Fourteenth Amendment. The Court has severely restricted this avenue for Congress to remedy and prevent discrimination. Soon, the Court may have the opportunity to address this issue again and resolve a circuit split concerning the Family and Medical Leave Act of 1993. In light of this opportunity, this Note examines the evolution and scope of the Section 5 power. The Note traces the history and varied interpretations of the Fourteenth Amendment, as well as Section 5 legislation and Court precedents reviewing that legislation. The Note concludes that when faced with the issue again, the Court should return to its former deference to congressional efforts to remedy and prevent discrimination pursuant to Section 5.
Much ink has been spilled over the increasingly restrictive stance of the Supreme Court of the United States toward Congress’s power to legislate under Section 5 of the Fourteenth Amendment.1 Since 1997, the Court has invalidated provisions in five different federal statutes on grounds that Congress lacked power to enact the legislation under Section 5.2 This period represents the first time since Re[*PG698]construction that the Court has denied Congress’s power to enact antidiscrimination legislation.3 This trend, denounced as “fundamentally misguided” by one set of commentators, seriously calls into question Congress’s continued efficacy in the protection of individual rights.4
Among the chief targets in this clash between the Court and Congress have been provisions of federal employment antidiscrimination laws that operate directly on the states.5 This leads some commentators to speculate that the Court is deliberately sapping Congress’s ability to lead the fight against discrimination by repeatedly invalidating federal employment legislation.6 These analysts fear for the continued vitality of various pieces of federal legislation that many Americans regard as cornerstones of the nation’s commitment to equality.7
The future of federal antidiscrimination legislation largely focuses on Congress’s power to enforce the Fourteenth Amendment under Section 5.8 This is because the Commerce Clause, which Congress previously relied on as the constitutional basis for most of its post-New Deal antidiscrimination legislation, is—due to recent Court holdings—no longer a viable way for Congress to enforce antidiscrimination norms directly against the states.9 In light of the great amount of attention this area is receiving from the courts and legal academics, as well as the grave practical implications the Court’s Section 5 rulings have for individual rights, it is useful to gauge more precisely where Congress’s power to legislate under Section 5 stands today.10 Nevertheless, although the Court’s Section 5 rulings are tremendously consequential for the national fight against discrimination, they are also notoriously imprecise.11
[*PG699] The Court may soon clarify its Section 5 rules if it takes the opportunity to consider another piece of federal antidiscrimination legislation, the Family and Medical Leave Act of 1993 (FMLA).12 Recently, the United States Courts of Appeals for the Fifth Circuit and the United States Court of Appeals for the Ninth Circuit split over the constitutionality of one of its provisions, as it applies to state employers.13 This legislation is different from legislation the Court has previously faced because section 2612 of the FMLA was enacted to combat discrimination against women, a quasi-suspect class.14 Until the Court speaks definitively, the way these Courts of Appeals treat this legislation may help us learn more about what the new Section 5 rules mean for Congress’s power to enact prophylactic antidiscrimination legislation.15
Until the present era, the Court had not found that Congress lacked power to enact antidiscrimination legislation since Reconstruction.16 The Court’s recent activity demonstrates a radical change in the types of discrimination the Court will allow Congress to attack and the methods it will allow Congress to use.17 This Note argues that by encouraging federal courts to uncover congressional motive, as exemplified by the treatment of the FMLA in the two Courts of Appeals, the Court’s contemporary approach unjustifiably encroaches on congressional prerogatives and seriously threatens Congress’s constitutional duty to contend with the most widespread forms of discrimination.18
Part I of this Note explores the role of history in interpreting Congress’s power under the Fourteenth Amendment.19 It focuses primarily on the history of the Amendment’s drafting and the precedents that followed, as well as what they reveal about the meaning and [*PG700]range of Section 5.20 Part II surveys the Court’s most recent cases addressing Congress’s power under Section 5.21 Part III critically reviews a split between the United States Courts of Appeals for the Ninth Circuit and the Fifth Circuit over the constitutionality of a provision of another piece of Section 5 legislation, the FMLA.22 Part IV discusses the scope and reach of the Section 5 power; and contrasts the present treatment of Section 5 with that originally envisioned by its framers.23 Finally, Part V analyzes Congress’s power to enact prophylactic antidiscrimination legislation under Section 5 as it is informed by the courts’ divergent treatment of the FMLA.24
Section 1 of the Fourteenth Amendment demands that no state “deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”25 Section 5 reads, “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”26 Despite this seemingly straightforward text, however, Congress’s power to enforce the Fourteenth Amendment is, and has long been, very controversial.27 Much of the controversy stems from the degree of independence Congress may assume in interpreting the Amendment’s guarantees.28 Is Congress strictly bound by the Court’s interpretations of Section 1, or is Congress armed by Section 5 with some degree of independent interpretive power?29
It is important to consider the Section’s drafting history because the Court and observers have offered various interpretations of it and, in so doing, have drawn conflicting inferences from it regarding the [*PG701]scope of congressional power.30 For example, the current Supreme Court underscores the importance of historical evidence concerning Section 5’s drafting for the conclusion that Congress’s power was always meant to be remedial, not substantive.31 As support for its deduction, the Court consistently notes the opposition waged against the first draft of the Amendment.32 This draft read:
The Congress shall have power to make all laws which shall be necessary and proper to secure to the citizens of each State all privileges and immunities of citizens in the several States, and to all persons in the several States equal protection in the rights of life, liberty, and property.33
This version was ultimately rejected in favor of the Amendment in its current form, with prohibitions against the states enumerated in Section 1 and Congress’s enforcement power granted in Section 5.34 From this structural change, the Court has inferred that “Congress’ power was no longer plenary but remedial.”35 By reading the Amendment’s drafting history in this particular way, the Court uncovers a reduced role for Congress.36
Even so, scholars question the present Court’s characterization of the drafting history of Section 5.37 They criticize the Court for, for example, relying on isolated quotations in opposition to the first draft from the floor debate without demonstrating how those statements related to the final version of the Amendment.38 It is possible, likely even, that the changes made to the Amendment had nothing at all to do with whether Congress was to have independent interpretive [*PG702]authority under Section 5.39 What is clear, at least, is that the Court’s reasoning from history in City of Boerne v. Flores is not conclusively supported.40
It may ultimately be futile to attempt to define precisely the intentions of the Fourteenth Amendment’s framers regarding the scope of Congress’s power.41 Nevertheless, evidence from its drafting history solidly supports the proposition that the framers of the Fourteenth Amendment “intended to improve society” by guaranteeing to all persons their natural rights under the Constitution.42 In order to accomplish this goal, the Amendment’s drafters employed two main tools: first, they gave Congress, not the Court, the primary role in securing the Amendment’s protections, and second, they neutralized state resistance to equality in civil rights with robust federal power.43
The framers designed a special role for Congress in the enforcement of the Fourteenth Amendment through Section 5.44 According to former Chief Justice Earl Warren, “[Section 5] was a rather clear mandate to Congress to undertake the task of defining and securing the rights guaranteed . . . by the amendment.”45 In fact, Section 5 can be seen in large part as a reaction to the perceived hostility of the Court to Reconstruction goals, evidenced by the Court’s contemporaneous decisions, and as a determination that the Court should not be trusted with the primary role in protecting Fourteenth Amendment rights.46 Further, evidence from the immediate post-Amendment legislative record makes it clear that Congress itself did [*PG703]not understand its role under the Fourteenth Amendment as merely enforcing judicially defined rights.47
In addition to designing a special role for Congress, the Amendment’s drafters also intended to dramatically alter the balance of power between the federal and state governments.48 Before Reconstruction, the states were the primary guarantors of individuals’ liberties; after the Fourteenth Amendment, constitutional rights were nationalized.49 As part of the balance shift, the drafters empowered Congress to protect fundamental rights against infringement by states and even, some have suggested, private individuals.50 Even so, the Court has not always seen fit to afford Congress such an expansive role.51 Beginning in 1883 with its Civil Rights Cases decision, the Court limited the scope of the Section 5 power by declaring that Congress cannot directly regulate the actions of private actors.52 The Court concluded that the legislation in question had impermissibly altered the balance of power between the federal government and the states.53 The Court reached this conclusion even though there is solid evidence that the Fourteenth Amendment’s framers intended such a shift.54
Despite its early resistance to the Fourteenth Amendment’s equality guarantees, the Court eventually, with Congress’s help, began [*PG704]to fulfill the Amendment’s promises.55 Following the early civil rights cases of the 1950s, “the Court established a relationship with Congress that was fluid and dynamic.”56 The Court learned from Congress the people’s understanding of what American equality norms should be.57 This interbranch give and take “enabled the Court to interpret the Equal Protection Clause in a manner that was attentive to evolving and contested social norms.”58 The Court’s present insistence that it retain primary, perhaps exclusive, control over the Amendment’s substantive guarantees represents a dramatic change from the old working relationship.59 The current uncertainty surrounding the federal role in combating discrimination suggests, in part, a shift in the nature of the relationship between Congress and the Court.60
In 1997, in City of Boerne v. Flores, the Supreme Court of the United States dramatically curtailed Congress’s power under Section 5 of the Fourteenth Amendment to remedy and prevent discrimination.61 Boerne arose as a challenge to the Religious Freedom Restoration Act of 1993 (RFRA), a direct legislative response to a recent Court holding.62 Through RFRA, Congress explicitly attempted to reverse the holding in Employment Division, Department of Human Resources v. Smith, that neutral, generally applicable laws may be applied to religious practices without violating the Free Exercise Clause of the First Amendment, even when not supported by a compelling governmental interest.63 The plaintiff in Boerne, the Archbishop of San Antonio, sued under RFRA for relief from a municipality’s refusal to issue a building permit to a church that was burdened by a historic preserva[*PG705]tion regulation.64 The United States District Court for the Western District of Texas concluded that, by applying RFRA to state statutes, Congress exceeded its power under Section 5.65 The United States Court of Appeals for the Fifth Circuit reversed, finding RFRA constitutional.66 The Supreme Court, in turn, reversed.67
The Court in Boerne addressed the issue of whether RFRA as applied to the states was a proper exercise of Congress’s Section 5 power to enforce by appropriate legislation the guarantees of the Fourteenth Amendment.68 The Court initially observed that Section 5 is a positive grant of legislative power to Congress.69 The Court explained that “[w]hatever legislation is appropriate, that is, adapted to carry out the objects the amendments have in view . . . is brought within the domain of congressional power.”70 Furthermore, Congress is empowered to enact legislation that deters or remedies constitutional violations even if, in so doing, it prohibits conduct that is not itself unconstitutional.71
Nevertheless, focusing on the text of the Fourteenth Amendment, the Court in Boerne emphasized the remedial nature of the Section 5 power.72 The power, the Court stated, extends only to enforcing the provisions of the Fourteenth Amendment, not to decreeing the Amendment’s substance.73 Emphatically, the Court declared that “Congress does not enforce a constitutional right by changing what the right is.”74 The power to determine what constitutes a constitutional violation, then, does not belong to Congress.75 Furthermore, although the line between remedial measures and those that make a substantive change in the governing law is difficult to discern, it is a distinction that must be observed.76 Famously, the Court determined that “[t]here must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that [*PG706]end. Lacking such a connection, legislation may become substantive in operation and effect.”77 The courts’ role in evaluating legislation enacted under Section 5, then, is to police the line between remedy and substance.78
The Court in Boerne justified its conclusion that the nature of the Section 5 power is remedial rather than substantive by pointing to two historical and structural issues: federalism and separation of powers.79 According to Justice Kennedy, writing for the Court, the drafters of the Fourteenth Amendment specifically rejected a draft amendment submitted by Representative John Bingham of Ohio, which would have given Congress, some believed, too much power at the expense of the existing federal constitutional structure.80 Under the revised amendment, Justice Kennedy observed, Congress’s power against the states was “no longer plenary but remedial.”81 Moreover, the drafters designed the amendment to respect the traditional separation of powers between the legislative and judicial branches.82 Although the Bingham proposal had given Congress the primary power to interpret and elaborate on the meaning of the amendment through legislation, the amendment as adopted maintained the Court’s primary authority to interpret its prohibitions.83
The Court’s precedents confirmed that Congress’s enforcement power was merely remedial and preventive, Justice Kennedy noted, relying especially on the Civil Rights Cases.84 Additionally, he concluded, the Court’s more recent holdings did not disturb the Court’s consistent requirement that measures enacted under the Section 5 power be remedial.85 For example, in 1966, in Katzenbach v. Morgan, the Court upheld the constitutionality of section 4(e) of the Voting Rights Act of 1965, which prohibited a New York state literacy re[*PG707]quirement for certain Puerto Rican voters, even though the Court had previously determined that literacy requirements were constitutionally permissible.86 Justice Kennedy acknowledged that Morgan could be read to recognize “a power in Congress to enact legislation that expands the rights contained in Section 1 of the Fourteenth Amendment.”87 Nevertheless, he stated, such a reading was not necessary or “best;” rather, Morgan could and should be read as the Court’s having “perceived a factual basis on which Congress could have concluded that [the] literacy requirement ‘constituted an invidious discrimination in violation of the Equal Protection Clause.’”88 Such a narrow reading was preferable, Justice Kennedy reasoned, to protect the Constitution’s role as “superior paramount law, unchangeable by ordinary means,” as it would be if it were a mere legislative enactment.89
Turning to consider RFRA’s application to the states, the Court examined the fit between the means used by the Act and the perceived constitutional injuries.90 The Court noted that “[t]he appropriateness of remedial measures must be considered in light of the evil presented. Strong measures appropriate to address one harm may be an unwarranted response to another, lesser one.”91 First, the Court examined the legislative record for modern examples of generally applicable laws passed because of religious bigotry.92 The Court found no modern instances of such legislation, noting that none had occurred within the past forty years.93 Furthermore, the Court observed, RFRA was completely out of proportion to any “supposed remedial or preventive object,” such that it could not be understood as anything but an attempt to change the substance of constitutional rights.94 [*PG708]RFRA’s sweeping reach and scope, the Court determined, were far broader than any perceptible “mischief and wrong” Congress could have meant to prevent or remedy.95 In sum, RFRA lacked the congruence and proportionality required of Section 5 legislation and was therefore invalid as applied to the states.96
The dissenters in Boerne largely focused on their belief that the Court’s decision in Smith was erroneous; only Justice O’Connor specifically addressed the issue of Congress’s Section 5 power.97 Justice O’Connor largely agreed with the Court’s reasoning about the Section 5 power.98 She was even more explicit about Congress’s institutional limitations, arguing that “[i]n short, Congress lacks the ability to define or expand the scope of constitutional rights by statute.”99 She noted that this fact did not detract from Congress’s duty to draw its own conclusions regarding the Constitution’s meaning, but in so doing, Congress must make such conclusions consistent with the Court’s exposition of the Constitution.100
Boerne was an exceptional case in part because RFRA was an explicit attempt by Congress legislatively to overrule a politically unpopular decision of the Court.101 Some of the Court’s language in Boerne reflects the Court’s having interpreted RFRA as a direct institutional affront:
When the political branches of the Government act against the background of a judicial interpretation of the Constitution already issued, it must be understood that in later cases and controversies the Court will treat its precedents with the respect due them under settled principles, including stare decisis, and contrary expectations must be disappointed.102
Because of the unusual circumstances surrounding the Boerne decision, one might have thought that its application and utility would be [*PG709]fairly limited.103 Nevertheless, the Court applied the Boerne test four times over the next four years, demonstrating the enduring impact of its new approach.104
Three years after Boerne, the Court faced Section 5 legislation that, unlike RFRA, did not deliberately attempt to enlarge substantive rights beyond the Court’s definition.105 In 2000, in Kimel v. Florida Board of Regents, the Supreme Court relied on Boerne in invalidating a portion of the Age Discrimination in Employment Act of 1967 (ADEA), which prohibited employers, including states, from discriminating against individuals because of age.106 Justice O’Connor’s opinion for the Court focused on the ADEA’s private suit provision, as applied to the states, which required Congress validly to abrogate the states’ sovereign immunity through use of its Section 5 power.107 After it first determined that Congress explicitly intended to abrogate states’ sovereign immunity under the ADEA, the Court then con[*PG710]cluded that the ADEA was not appropriate legislation under Section 5 of the Fourteenth Amendment.108
The Court in Kimel began by reiterating its approach in Boerne.109 Justice O’Connor recognized that Section 5 is a positive grant of power to Congress, but, nevertheless, one with inherent limitations.110 Although Congress can remedy and deter violations of rights guaranteed by the Fourteenth Amendment by prohibiting “a somewhat broader swath of conduct, including that which is not itself forbidden by the Amendment’s text,” it cannot independently determine what constitutes a constitutional violation.111 To ensure that Congress does not cross the decidedly fine line between appropriate remedial legislation and inappropriate substantive redefinition of rights, a court examining legislation must find congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.112
Applying the congruence and proportionality test to the ADEA, Justice O’Connor determined that the Act was invalid in trumping state immunity.113 First, she observed, its provisions targeted a disproportionate level of “unconstitutional conduct.”114 Because age is not a suspect classification under the Court’s equal protection analysis, it followed, according to Justice O’Connor, that states are not constitutionally required to tailor narrowly their age distinctions to legitimate interests.115 In fact, states need only have a rational basis for drawing lines on the basis of age to satisfy the Constitution.116 Because states are allowed to discriminate byage if they have a rational basis for doing so, the ADEA provision was out of proportion to a supposed remedial or preventive object.117 Justice O’Connor emphasized that the ADEA’s broad restriction on the use of age as a discriminating factor [*PG711]prohibited substantially more conduct than would be held unconstitutional under the Court’s equal protection, rational basis standard.118 The ADEA’s increased burden on state employers was more like a strict scrutiny standard, the Court reasoned, a more stringent standard than the Court applies in adjudicating an Equal Protection claim based on age classifications.119
Besides prohibiting “very little conduct likely to be held unconstitutional,” the provision of the ADEA also failed because it was not reasonably prophylactic.120 To determine whether the ADEA was appropriately prophylactic or “merely an attempt to substantively redefine the States’ legal obligations with respect to age discrimination,” the Court examined the ADEA’s legislative record to identify the basis on which Congress might have decided there was a “difficult and intractable problem[]” requiring a robust remedy.121 The Court found that, on the contrary, the ADEA was “an unwarranted response to a perhaps inconsequential problem.”122 Congress identified no pattern of age discrimination by state employers, Justice O’Connor observed, only “isolated sentences clipped from floor debates and legislative reports.”123 As a result, the Court concluded, Congress had insufficient reason to believe that states were unconstitutionally discriminating against employees on the basis of age and thus insufficient reason to enact such a harsh remedy as the ADEA.124
In 2000, in United States v. Morrison, the Supreme Court followed Boerne in striking down the civil remedy provided by the Violence Against Women Act of 1994 (VAWA).125 The VAWA was enacted to combat perceived inadequate state remedies, including prosecution, for violent crimes motivated by gender.126 The Court in Morrison, after first determining that Congress lacked power to enact the private [*PG712]damage suit provision of the VAWA under the Commerce Clause, considered Congress’s power to enact it under Section 5.127
Chief Justice Rehnquist, writing for the Court, began the Section 5 analysis in the same way as did the Court in Boerne and Kimel, by acknowledging Congress’s authority and then observing its limitations.128 The Court then laid out the manner in which it would analyze a gender discrimination problem under the Equal Protection Clause; it noted that state-sponsored gender discrimination violates Equal Protection unless it serves important governmental objectives through means that are substantially related to the fulfillment of those objectives.129 Chief Justice Rehnquist acknowledged that gender classifications trigger heightened scrutiny by the Court, but also observed that the Court’s Equal Protection analysis does not reach private individuals because the Clause requires state action.130 The absence of state action proved fatal to the VAWA’s private suit provision.131 Chief Justice Rehnquist concluded that the Act was not a congruent and proportional prophylactic measure because it was “directed not at any State or state actor, but at individuals who have committed criminal acts motivated by gender bias.”132 The Court was not convinced of the Act’s remedial nature despite the alleged failure of state actors to enforce the law adequately because of their gender bias.133
In dissent, Justice Breyer, joined by Justice Stevens for discussion of Section 5, primarily disagreed with the Court’s narrow Commerce Clause analysis.134 Nevertheless, Justice Breyer did briefly register his doubts regarding the Court’s reasoning in rejecting Congress’s power under Section 5 to enact the VAWA’s private suit provision.135 Although Justice Breyer agreed with the Court that Section 5 does not empower Congress to remedy purely private conduct, he reminded the Court that the government’s argument in the case was that the [*PG713]VAWA was a remedy for the (in)actions of state actors.136 Moreover, Justice Breyer asked rhetorically, “[W]hy can Congress not provide a remedy against private actors?”137 Even though private actors had not themselves violated the Constitution, under the Court’s Section 5 analysis, Congress is empowered “at least sometimes” to enact remedial legislation that prohibits conduct that is not itself unconstitutional.138 Because the VAWA intruded little upon states or private parties, Justice Breyer asked, “Why is the remedy ‘disproportionate’?”139 Given the close relationship between the injury (inadequate state remedies) and the remedy (a federal forum), Justice Breyer asked, “[W]here is the lack of ‘congruence’?”140 Justice Breyer believed the VAWA was properly enacted under the Commerce Clause, and left these probing questions regarding Congress’s Section 5 power unanswered.141
In 2001, in Board of Trustees of the University of Alabama v. Garrett, the Supreme Court invalidated provisions of the Americans with Disabilities Act of 1990 (ADA) that allowed for recovery of money damages against the states.142 The ADA prohibited certain employers, including states, from discriminating in employment against qualified individuals with disabilities and required employers to make reasonable accommodations for employees with disabilities.143 The Court faced a similar issue as in Kimel: to abrogate the states’ sovereign immunity effectively, the ADA must have been validly enacted under Section 5 of the Fourteenth Amendment.144
In its most explicit terms to date, the Court expounded upon the contours of Congress’s Section 5 power.145 The Court observed that “Congress is not limited to mere legislative repetition of this Court’s [*PG714]constitutional jurisprudence.”146 Rather, Congress retains a narrow window of authority whereby it can remedy and prevent violation of rights by prohibiting conduct that is not itself a violation of the Fourteenth Amendment.147 Congress can enact Section 5 legislation “reaching beyond Section 1’s actual guarantees” when the legislation exhibits congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.148
The Court then followed its now familiar process of analyzing the legislation.149 First, the Court outlined the scope of the constitutional right at issue—here, the states’ treatment of the persons with disabilities.150 By looking at its own precedents on this point, the Court observed that classifications involving disability trigger only rational basis review.151 As such, states can, without violating Section 1 of the Fourteenth Amendment, discriminate against individuals with disabilities if there is a rational relationship between the disparate treatment and a legitimate governmental purpose.152 Second, the Court examined the legislative record to see “whether Congress identified a history and pattern of unconstitutional employment discrimination by the States against the disabled.”153 The Court concluded that Congress’s general finding of systematic societal discrimination against individuals with disabilities did not explicitly implicate enough discrimination by the states.154 The Court noted that the Respondents’ brief cited “half a dozen examples” of relevant discrimination by the states.155 Further, the record’s most blatant examples of state discrimination were drawn from years long past.156 Even if, in aggregate, the examples were found to be unconstitutional, they would not, the Court concluded, [*PG715]suggest “the pattern of unconstitutional discrimination” that would empower Congress to enact remedial legislation under Section 5.157
Furthermore, the Court stated, even if it were to concede a pattern of unconstitutional discrimination by the states, “the rights and remedies created by the ADA against the States” would raise concerns as to congruence and proportionality.158 The ADA was incongruous and disproportional in three ways: first, it would be rational for states to discriminate against persons with disabilities for financial reasons, but the ADA required employers to make reasonable accommodations; second, only undue hardship triggered the ADA’s exception, but the Court’s rational relationship test would impose a lesser duty; and, third, the employer bore the burden of proving an undue burden under the ADA instead of the employee, as would be true under the rational basis test.159 Because the ADA failed the Boerne congruence and proportionality test, it did not validly abrogate the states’ sovereign immunity.160
Justice Kennedy, joined by Justice O’Connor, concurred with the Court in Garrett, writing separately to emphasize the importance of state sovereignty in the federal system.161 He noted the seriousness of accusing a state of “engag[ing] in a pattern or practice designed to deny its citizens the equal protection of the laws, particularly where the accusation is based not on hostility but instead on the failure to act or the omission to remedy.”162 He observed that states are “neutral entities,” which are responsible to their own citizens and which do not violate the Equal Protection Clause merely by failing to revise public policy to be in step with prevailing opinion.163 Unequivocally, Justice Kennedy stated, “The predicate for money damages against an unconsenting State in suits brought by private persons must be a federal statute enacted upon the documentation of patterns of constitutional violations committed by the State in its official capacity.”164 Justice Kennedy’s focus on the importance of federalism issues in the Section 5 context echoes his conclusions in Boerne.165
[*PG716] Justice Breyer dissented vigorously in Garrett; Justices Stevens, Souter, and Ginsburg joined him.166 He accused the majority of “[r]eviewing the congressional record as if it were an administrative agency record.”167 Arguing against the level of scrutiny with which the majority examined the legislative process, Justice Breyer insisted that Congress reasonably could have concluded that the ADA was an appropriate way to enforce the Equal Protection Clause.168
Justice Breyer focused on the differences in institutional capacity between the courts and Congress.169 For example, the majority noted that the evidence before Congress was insufficient to prove in court that “in each instance, the discrimination they suffered lacked justification from a judicial standpoint.”170 Justice Breyer suggested that the majority was holding Congress to an improper standard; he argued, “[A] legislature is not a court of law.”171 Congress as an institution makes its decisions differently from the courts, often relying on anecdotal or opinion testimony to draw general conclusions.172 The Court in Garrett, Justice Breyer argued, deviated from its past practice of looking to the reasonableness of Congress’s conclusions rather than requiring “extensive investigation of each piece of evidence.”173 Justice Breyer found no justification for the majority’s heightened scrutiny in the Section 5 context.174
According to Breyer, the Court’s failure to find sufficient evidence in the legislative record to support the ADA stemmed from its erroneously holding Congress to judicial standards.175 Limitations stemming from the nature of the judicial process, such as burden of proof, are inapposite when applied to Congress.176 Indeed, rational basis review, which had by then condemned the ADA and the ADEA as invalid Section 5 legislation, inherently presumes constitutionality and is itself a limitation on judges.177 The Court’s approach to review[*PG717]ing Congress’s power under Section 5 was flawed, then, because “the Congress of the United States is not a lower court.”178 The Court should not require Congress to adopt “rules or presumptions” that reflect a court’s institutional capacity.179 To do so, as the majority did, according to Justice Breyer, was to stand the principle of judicial restraint on its head.180 If the Court had not improperly held Congress to a judicial standard, it would have found the legislative record more than adequate.181
Justice Breyer then analyzed the Court’s alternative conclusion by applying the congruence and proportionality requirements to the ADA.182 He observed that the Court had in the past upheld disparate impact standards in contexts in which they were not constitutionally required, even though the perceived excess of the reasonable accommodation requirement bothered the Court here.183 Justice Breyer noted that “what is ‘reasonable’ in the statutory sense and what is ‘unreasonable’ in the constitutional sense might differ. In other words, the requirement may exceed what is necessary to avoid a constitutional violation.”184 That, to Justice Breyer, was exactly the point.185 Section 5 grants to Congress the power to do that which “‘tends to enforce submission’ to its ‘prohibitions’ and ‘to secure to all persons . . . the equal protection of the laws.’”186 It is a power the Court in the past equated with the authority granted to Congress in the Necessary and Proper Clause, a broad power.187 Although the majority’s current approach paid lip service to judicial deference to Congress and purported to follow that standard, Justice Breyer found nothing of it in practice in the Court’s recent cases.188
[*PG718] Justice Breyer then took on the majority’s primary motivation in curtailing Congress’s Section 5 power: federalism.189 Justice Breyer conceded that the ADA imposed a burden on states by abrogating their sovereign immunity.190 Nevertheless, he observed that “[r]ules for interpreting � 5 that would provide States with special protection . . . run counter to the very object of the Fourteenth Amendment.”191 The Fourteenth Amendment, then, overrides principles of federalism that might otherwise be impediments to Congress in enacting corrective legislation.192
Neither federalism nor the majority’s backward separation of powers arguments satisfied Justice Breyer.193 He doubted “that [the] decision serves any constitutionally based federalism interest” and argued that “[t]he Court . . . improperly invades a power that the Constitution assigns to Congress.”194 What is left of the Section 5 power is but a shell, Justice Breyer concluded: “[Garrett] saps � 5 of independent force, effectively ‘confin[ing] the legislative power . . . to the insignificant role of abrogating only those state laws that the judicial branch [is] prepared to adjudge unconstitutional.’”195 One might infer from Justice Breyer’s analysis that all that remains of the Section 5 power is the authority to legislate against latent violations of Section 1, a power with very dubious independent value.196
As previously discussed, the Court’s recent Section 5 cases severely restrain Congress’s ability to enact federal antidiscrimination legislation.197 Yet, after Board of Trustees of the University of Alabama v. Garrett, it is still very unclear what legislation will survive the Court’s new heightened scrutiny of Section 5 measures.198 Currently, it is clear that legislation must be congruent and proportional to the constitu[*PG719]tional violation to be remedied or prevented.199 That is, for legislation to pass the Court’s stricter approach, its remedy must be congruent and proportional to behavior that has previously been found to be a constitutional violation by a court.200 It would be wrong for this requirement to mean, however, that Congress can only remedy or prevent constitutional violations by specifically outlawing behaviors that would violate Section 1.201 If that were the case, Section 5 would be redundant, a dead letter.202 That interpretation would reduce Congress to the role of federal scrivener, merely codifying prohibitions on those behaviors federal courts have previously identified as violations of the Fourteenth Amendment.203
If we accept that Congress has power to protect court-identified constitutional rights by prohibiting otherwise constitutional behavior—as must be true if Section 5 is to have logical meaning and as the Court has reiterated—the question remains, when and under what circumstances?204 At least the following issues are still unresolved: how much deference the Court will afford to Congress to decide, as a matter of policy; which means are best suited to accomplishing its goals; the size of that narrow window wherein Congress can legislate against otherwise constitutional behavior; and whether the degree of deference changes and the size of the window expands and contracts in tandem with the level of scrutiny the Court applies to potential constitutional violations.205
Two United States Courts of Appeals recently addressed these issues in hearing challenges to a provision of the FMLA; they reached [*PG720]opposite conclusions.206 In 2000, in Kazmier v. Widmann, the United States Court of Appeals for the Fifth Circuit concluded that section 2612(a)(1)(C) of the FMLA, which requires employers to provide leave for employees to care for sick relatives, did not validly abrogate state sovereign immunity because it was not validly enacted under Section 5 of the Fourteenth Amendment.207 In 2001, in Hibbs v. Department of Human Resources, the United States Court of Appeals for the Ninth Circuit refused to follow Kazmier and concluded that the same provision of the FMLA was valid Section 5 legislation.208 This circuit split very likely could lead the Supreme Court to revisit the Section 5 issue.209
In Kazmier, the Fifth Circuit laid out a two-part test it derived from Kimel v. Florida Board of Regents.210 First, the court gauged the scope of Congress’s potential authority to legislate in this area by identifying the constitutional right: “Congress’s authority is most broad when ‘we require a tight[] fit between [the discriminatory classifications in question] and the legitimate ends they serve,’ as we do with classifications that are based on race or sex.”211 Second, the court examined the legislative record specifically “to see whether it contains evidence of actual constitutional violations by the States sufficient to justify the full scope of the statute’s provisions.”212 The court emphasized that the legislative record must reveal “an identified pattern of actual constitutional violations by the States” rather than merely the potential for constitutional violations.213
[*PG721] The court in Kazmier identified the constitutional issue as gender discrimination in employment, concluding that “Congress potentially has wide latitude under Section 5 to enact broad prophylactic legislation designed to prevent the States from discriminating on the basis of sex.”214 In spite of this, the court was highly skeptical about whether preventing gender discrimination was Congress’s true intent, noting that “Congress was responding to findings that private sector employers frequently discriminate against men in granting leave to provide family care. . . . [T]he perverse effect of this reverse discrimination has actually been to push women out of the work force . . . .”215 Even so, the Kazmier court acknowledged Congress’s potentially great leeway for legislating in this area.216
The Kazmier court concluded, however, that the legislative record did not reveal the “actual, identified constitutional violations by the States” that would support broad prophylactic legislation.217 Notably, the court concluded that findings of discrimination in granting family leave from the private sector could not be extrapolated to the public sector.218 Moreover, evidence in the record regarding parental leave was “not in the least probative of the question before [the court].”219 The FMLA, the court reasoned, was “broad, prophylactic legislation [because] . . . [t]here is nothing in the Constitution that even closely approximates either a duty to give all employees up to twelve weeks of leave per year to care for ailing family members or a right of an employee to take such leave.”220 As a result, the Fifth Circuit was faced with what it saw as broad legislation imposing a burden on the states without an adequate legislative record for support.221
The Kazmier court refused to credit Congress’s express declaration of legislative intent, concluding instead that “the FMLA is not designed to prevent discrimination at all, but rather is crafted to provide employees throughout the nation with a substantive statutory right to take leave from work for family and medical reasons.”222 The Fifth Circuit clearly attempted to sniff out improper congressional [*PG722]intent by first announcing that the right at issue is gender discrimination in employment but then proceeding to analyze the right as if it is the right to take family leave, a right that is not constitutionally guaranteed.223 From this, the Fifth Circuit held that Congress did not enact this FMLA provision pursuant to its enforcement power under Section 5.224
In Hibbs, the Ninth Circuit began its analysis in essentially the same way as the Fifth Circuit had in Kazmier, by defining the constitutional issue as gender discrimination.225 Because state-sponsored gender discrimination receives heightened scrutiny, the court explained, it produces a rebuttable presumption of unconstitutionality.226 Even so, the court acknowledged that the FMLA provision “sweeps more broadly than the Equal Protection Clause itself” because it does not merely prohibit gender discrimination in the granting of medical leave.227 Nevertheless, that fact was not fatal, according to the Ninth Circuit, because Congress can enact reasonably prophylactic legislation under Section 5.228
In determining whether gender discrimination in employment is the type of “difficult and intractable problem[] that would justify such broad remedies,” the Hibbs court rejected the argument that judges should look only to the legislative record for adequate support.229 Rather, the court concluded, the legislative record was only one source of information by which a court could “determine whether the broad prophylactic legislation under consideration is justified by the [*PG723]existence of sufficiently difficult and intractable problems.”230 The court considered the legislative record, discriminatory state employment laws, previous attempted federal antidiscrimination legislation, and Supreme Court precedent in concluding that gender discrimination in employment is the type of difficult constitutional problem that deserves broad legislative remedies.231
The Hibbs court then concluded that section 2616(a)(1)(C) was validly enacted Section 5 legislation.232 First, the court reasoned that, because the FMLA involves gender discrimination, it is presumptively constitutional; therefore, the burden shifts to the challenger to prove that states have not engaged in pervasive unconstitutional conduct.233 Second, the court recognized that there is a long history of invidious gender discrimination by the states, unlike the situations in Kimel and Garrett.234 Thus, because the defendants failed to show that there was neither a pattern of state-sponsored gender discrimination in granting family leave nor an historical record of enforcing gender stereotypes, the FMLA was valid Section 5 legislation.235
In the alternative, the court concluded that even if it looked solely at the legislative record (a position the court rejected), that record contained enough evidence of pervasive gender discrimination in granting family leave to state employees to support the FMLA as reasonable prophylactic legislation.236 The court expressly noted that [*PG724]heightened scrutiny of gender discrimination impacted its analysis, explaining that “courts have more latitude in drawing inferences from the legislative history of a federal statute aimed at remedying state-sponsored gender discrimination than in drawing inferences from the histories of statutes like the ADA and the ADEA, which aim to remedy discrimination with respect to nonsuspect classifications.”237 The court credited evidence of widespread gender discrimination by private sector employers and testimony that public sector policies are similar to private sector policies in determining that unconstitutional state-sponsored gender discrimination is “significant” and “widespread.”238 The court acknowledged that the evidence in the legislative record related specifically to parental leave, but it reasoned that such indicators “constitute strong circumstantial evidence of state-sponsored gender discrimination in the granting of leave to care for a sick family member, because if states discriminate along gender lines regarding the one kind of leave, then they are likely to do so regarding the other.”239 Ultimately, the Ninth Circuit sustained the family leave provision of the FMLA on the basis of its legislative record as well, a record the Fifth Circuit had found grossly inadequate.240
The line of cases from City of Boerne v. Flores to Board of Trustees of the University of Alabama v. Garrett, plots the Court’s new course for evaluating the appropriateness of Section 5 legislation that attempts to abrogate states’ sovereign immunity.241 That new course involves evaluating the legislation’s congruence and the proportionality between the remedy provided and the injury to be prevented.242 First, the Court identifies the scope of the constitutional right Congress seeks to protect through legislation.243 Second, the Court examines its own precedents to determine the level of review a court would use to identify a constitutional violation; this quantifies the amount of possi[*PG725]ble unconstitutional conduct in which states could be engaging.244 Third, the Court examines the legislative record as one means of determining the state conduct Congress is addressing.245 The Court decides whether there is a specific history and pattern of recent conduct that would be judged unconstitutional by a court and whether that specific conduct is targeted by the legislation.246 If the conduct prohibited by Congress would also be considered a violation of Section 1 by a court, then the measure is appropriate Section 5 legislation.247 If not, a very small window of constitutional conduct may still be prohibited as a prophylactic means of preventing future constitutional violations.248 If Congress targets constitutional conduct outside of that small window, however, the measure attempts a substantive redefinition of rights and is therefore not appropriate Section 5 legislation.249
The Boerne-Garrett line of cases represents the Court’s clear attempt to diminish Congress’s power under Section 5.250 The Boerne test unduly restricts Congress’s choice of both ends and means.251 Legitimate ends of Congress’s Section 5 power are those state actions that a court itself would adjudge to be violations of Section 1 of the Fourteenth Amendment; this is what is meant by “congruence.”252 This limitation defies the Framers’ intent that Congress, not the Court, would play the primary role in protecting Fourteenth [*PG726]Amendment rights through a degree of independent definitional power.253
The Boerne test also unjustifiably restricts Congress’s choice of means to enforce the Fourteenth Amendment.254 The Court’s current approach departs from its traditional method of evaluating Congress’s legislative power, the one pronounced in McCulloch v. Maryland.255 Under McCulloch, the Court defers to Congress’s choice of means so long as it is “plainly adapted” or “conducive” to a legitimate end.256 The Court does not independently evaluate the prudence of Congress’s choice, preferring instead to credit its legislative judgment.257 Further, the Court does not independently assess the degree of the problem to be solved or the need for legislation in the first place.258
The Court followed this deferential approach in the Section 5 context until the Boerne line of cases.259 Katzenbach v. Morgan typifies the Court’s approach before Boerne.260 In Morgan, voters in New York City challenged the constitutionality of section 4(e) of the Voting Rights Act of 1965, which prohibited states’ use of literacy as a prerequisite to voting when the voter had successfully completed sixth grade in a public or accredited private school in Puerto Rico.261 Although the Court had previously held that literacy requirements do not always violate the Fourteenth Amendment, the Morgan Court concluded that section 4(e) was a proper exercise of Congress’s Section 5 power.262 The Attorney General of New York urged the Court to conclude that Congress could only exercise its enforcement power under Section 5 against a state when the judiciary determines that the state has violated the provision of the Amendment that Congress seeks to enforce.263 Justice Brennan, writing for the Court, disagreed [*PG727]and concluded that “[n]either the language nor history of � 5 supports such a construction,” noting that the Attorney General’s construction “would depreciate both congressional resourcefulness and congressional responsibility for implementing the Amendment.”264
Given that New York’s literacy requirement was not per se unconstitutional, the Court asked whether the legislation could still be appropriate to enforce the Equal Protection Clause.265 To answer that question, the Court laid out the reach of the Section 5 power, the breadth of which it equated with the congressional power announced in McCulloch.266 Applying the McCulloch test to the legislation in question, the Court credited what Congress both declared explicitly and might have believed.267 Justice Brennan emphasized that
[i]t is not for us to review the congressional resolution of . . . factors. It is enough that we be able to perceive a basis upon which the Congress might resolve the conflict as it did . . . . Any contrary conclusion would require us to be blind to the realities familiar to the legislators.268
Justice Brennan consistently used deferential language such as “Congress might well have questioned” and “Congress might well have concluded” to evaluate the factual basis upon which Congress legislated.269 Notably, only two Justices dissented from the Morgan opinion.270
This deferential approach makes sense in the constitutional realm because of the different institutional capacities of Congress and the Court.271 There are many devices that federal courts use in evaluating legislation to limit themselves because they are not part of a democratic branch of government.272 One scholar notes that judicial [*PG728]restraint “will give elected officials the benefit of the doubt with respect to governmental purpose, will assume facts favorable to the government in assessing effect, will seek to avoid gratuitous conflict with legislative authority, and will accept reasonable interpretations of the Constitution that support legislative action.”273 These devices do not define the meaning of the constitutional text; they are tools of judicial restraint with respect to the states.274 These judicial standards of decision-making, which sometimes lead courts to choose less intrusive alternatives, should not apply to Congress, a democratically-elected branch of government, in its process of decision-making.275 Furthermore, these judicially imposed constraints should not bind Congress when it exercises its Section 5 power because they are “predicated on the need to protect the discretionary judgments of representative institutions from uncabined judicial interference,” and “there is no reason for Congress—the representatives of the people—to abide by them. Congress need not be concerned that its interpretations . . . will trench upon democratic prerogatives, because its actions are the expression of the democratic will of the people.”276 As a result, Congress should logically be able to enforce the Fourteenth Amendment fully, without deferring to state judgments as the courts do.277
The Boerne line of cases, however, clearly diverges from the deferential approach apparent in Morgan.278 Instead of the traditional rational relationship test, Section 5 laws are now held to a stricter congruence and proportionality test.279 The only legitimate means Congress may now use are those that can withstand heightened scrutiny as narrowly tailored to address unconstitutional conduct—perhaps including a small amount of constitutional conduct.280 This is what is meant by “proportionality”: the magnitude of the remedy must closely resemble the magnitude of the violation.281 The proportionality factor [*PG729]contains both quantitative and qualitative elements.282 The quantitative element calculates how much constitutional conduct the measure sweeps into its prohibitions; the more overinclusive a measure is, the less proportional.283 The qualitative element analyzes the nature and severity of the measure’s burden on the states; the greater the burden, the less likely it is to be proportional.284 The Boerne test’s searching inquiry renders the deferential McCulloch approach unrecognizable.285 In its choice of both ends and means, Congress’s hands are now tied.286
The Supreme Court, from City of Boerne to Board of Trustees of the University of Alabama v. Garrett, has transformed the manner in which Congress can protect individual liberties when it uses its Section 5 power.287 Section 5 of the Fourteenth Amendment is a positive grant of power to Congress to enforce the substantive rights Section 1 guarantees; it may even be read as granting Congress a degree of independent definitional power.288 The Amendment’s Framers intended Congress to take a primary role in guaranteeing civil rights nationwide through this special enforcement power, regardless of changes in the accepted federal-state balance.289 Prior to Boerne, the Court had accorded Congress a great deal of deference in its exercise of Section 5 power, as shown in cases such as Katzenbach v. Morgan.290 This former deference to both legislative ends and means is similar to the Court’s evaluation of legislation passed under other positive grants of power to Congress since McCulloch v. Maryland.291 It also squares with the different institutional capacities of Congress and the Court that are relevant in a democratic society.292
[*PG730] The Court justifies its new approach by appealing to two sets of values, federalism and separation of powers.293 The new test, which evaluates legislation’s congruence and proportionality, restricts Congress’s choice of both ends and means.294 It requires narrow tailoring between the constitutional injury to be prevented, as federal courts define that injury, and the legislative remedy.295 Nevertheless, there must still be some window of opportunity in which Congress can act so that Section 5 does not become superfluous.296 After all, the Court states time after time that Congress can, under Section 5, sometimes prohibit conduct that is not per se unconstitutional in order to prevent constitutional violations.297 It may be that the level of judicial suspicion the federal legislation’s putative beneficiaries raise may determine the size of the window Congress retains in which it may act without infringing upon separation of powers or federalism concerns.298 Even so, the contrasting approaches of the United States Courts of Appeals for the Fifth and Ninth Circuits reveal that how judicially suspect the beneficiaries are may not be determinative and that the congruence and proportionality test may serve yet another role, that of sniffing out judicially disfavored congressional motive and legislative substance.299
The Kazmier v. Widmann and Hibbs v. Department of Human Resources opinions demonstrate that courts can use the congruence and proportionality test to make sure Congress doesn’t improperly invade the province of the courts or the states, or can use it to invalidate legislation when they disagree with its substance and motivating purpose.300 The courts in Kazmier and Hibbs reached opposite conclusions about the constitutionality of the FMLA provision at issue primarily because they applied congruence and proportionality differently to scrutinize Congress’s means and ends.301 The Fifth and Ninth Circuits differed in three basic ways, the sum of which is deference to Con[*PG731]gress: first, how they defined the constitutional right; second, how they allocated the burden of proof; and third, how they assessed the role of the legislative record.302 The courts’ different treatment of congressional intent exposes the way the congruence and proportionality test can lead courts to view their role in reviewing federal antidiscrimination legislation.303 It also reveals how a court’s fundamental conception of that role determines how much latitude Congress has to exercise its constitutionally granted power to enact prophylactic antidiscrimination legislation.304
The courts in Kazmier and Hibbs agreed that Congress’s stated intent in enacting this portion of the FMLA was to prevent gender discrimination in employment.305 Nevertheless, the cases characterized that gender discrimination differently.306 Although the Kazmier court focused narrowly on the issue of gender discrimination in leave-granting, the Hibbs court broadened the scope somewhat by connecting leave-granting policies to the larger problem of gender discrimination in employment.307 The Kazmier court was highly skeptical of Congress’s express intention, namely, remedying gender discrimination in employment, ultimately concluding that Congress had a different motive in enacting the FMLA.308 By framing the issue narrowly, the Kazmier court readily concluded that the FMLA was improper congressional overreaching; because the Constitution does not require state employers to grant employees twelve weeks of family leave, the court reasoned, Congress cannot do so.309
In contrast, the Hibbs court deferred greatly to Congress, willing to make explicit the connections between employers’ family leave policies, the marginalization of female employees in the way employers think about them because of leave-taking, and the resultant gen[*PG732]der discrimination in employment.310 The Ninth Circuit credited Congress’s conclusion that providing a minimum amount of family leave for employees on a gender-neutral basis is instrumentally useful in preventing gender discrimination in employment.311
For the Kazmier court, the FMLA was not an appropriate means of remedying gender discrimination in employment—discrimination that would be unconstitutional—because the court rejected those connections that the Hibbs court explicitly embraced; implicitly, the Kazmier court found them to be too attenuated.312 By refusing to credit those connections, the Kazmier court was able to infer that Congress’s intent in enacting the FMLA was not a proper one—to prevent unconstitutional gender discrimination—but rather was an improper one—to grant state employees a substantive benefit.313
The two courts’ treatments of the burden of proof and the legislative record also reveal different ideas about congressional intent.314 By presuming unconstitutionality, Kazmier in essence assigns to Congress the role of defending the FMLA as appropriate legislation, apparently because of federalism concerns.315 Hibbs, on the other hand, approaches the FMLA as presumptively constitutional because it seeks to prevent gender discrimination and therefore assigns to the defense the burden of proving that there was no evidence of state-sponsored gender discrimination before Congress.316
The two courts also approached the legislative record differently.317 The enactment of the FMLA to combat gender discrimination is key to the analysis because classifications based on gender receive heightened scrutiny.318 This differs from Kimel and Garrett because “the City of Boerne test left Congress little room to enact legislation to protect nonsuspect groups or to enforce nonfundamental rights despite the purported deference to Congress.”319 The Hibbs [*PG733]court took this difference seriously.320 Having already decided that the FMLA provision was constitutional through its burden-shifting technique, the Ninth Circuit then concluded, in the alternative, that it was constitutional because it was supported by an adequate legislative record.321 Again, the heightened scrutiny of gender discrimination was important to the Hibbs court.322 The Hibbs court admitted certain weaknesses in the legislative record, such as its extrapolation of public sector behavior from private sector behavior and inference of discrimination in family leave from similar discrimination in parental leave.323 Nevertheless, it still found the legislative record adequate because “courts have more latitude in drawing inferences from the legislative history of a federal statute aimed at remedying state-sponsored gender discrimination than in drawing inferences from the histories of statutes like the ADA and the ADEA.”324 In Kazmier, the Fifth Circuit gave no such deference to the legislative record.325
The Kazmier court analyzed the legislative record in almost the exact same way as the Supreme Court did in Kimel, even though that case concerned legislation preventing discrimination against older persons, a non-suspect class, as opposed to women, a quasi-suspect class.326 In most cases, state-sponsored age discrimination does not violate the Fourteenth Amendment; in most cases, state-sponsored gender discrimination, however, does violate the Fourteenth Amendment.327 Yet, the Fifth Circuit required the FMLA’s legislative record to contain the same pattern of actual constitutional violations by the states as the Supreme Court did in Kimel and Garrett, even though the range of possible unconstitutional conduct by the states is much wider in the area of gender discrimination than in age or disability discrimination.328
In the end, reasonable minds could decide that the provision of the FMLA in question is a close case. Nevertheless, “[i]t is precisely in [*PG734]a close case that the independent judgment of Congress on a constitutional question should make a difference.”329 As noted above, however, the Court’s treatment of Section 5 legislation from Boerne through Garrett has hardly been characterized by deference to Congress.330 Rather, the Court has required narrow tailoring between legitimate ends and means in order to protect two stated values, separation of powers and federalism.331 The contrast between the Fifth Circuit’s approach in Kazmier and the Ninth Circuit’s approach in Hibbs demonstrates that congruence and proportionality may serve a function other than the ones the Court acknowledges, a motive-searching function that seriously calls the courts’ role into question.332
This FMLA provision need not raise serious separation of powers questions such as those raised in Boerne.333 In fact, few serious separation of powers questions arise regarding the legitimacy of Congress’s express ends—here, preventing unconstitutional gender discrimination.334 This is unlike the situations in Kimel and Garrett, where the Court was faced with federal legislation designed to protect groups of Americans whom the Court had already deemed (in words at least, if not in deed) non-suspect, older persons and persons with disabilities.335 In those cases, the Court could plausibly conclude that its duty to say what the law is was crowded by congressional overreaching, raising separation of powers concerns.336 Here, however, the Court has already declared that gender classifications receive heightened scrutiny and must be defended by exceedingly persuasive justifications.337 In the FMLA, Congress has not provided heightened constitutional protection to a group the Court has denied heightened protection.338 [*PG735]For that reason, there seem to be no serious separation of powers concerns with the end of the FMLA.339
Are there separation of powers concerns raised by the means Congress employs in the FMLA?340 Again, it would appear not. As discussed before, the Court seems to be on pretty shaky footing when it talks about means related to separation of powers.341 Means—at the least the selection of means—seems to be part of Congress’s specialty in policy-making.342 If any separation of powers concerns arise in this area, it would seem that the Court infringes on separation of powers values when it restricts Congress’s choice of means to effectuate otherwise legitimate ends.343
If the Court is to be concerned here, that concern is more likely to be founded on federalism interests.344 The end of the FMLA provision should not raise federalism concerns because, as the Court has acknowledged, there is very little gender-based classification by states that is constitutional.345 If there are federalism concerns to be found, they are more likely to be found in the FMLA’s means.346 The Fifth Circuit in Kazmier explicitly voiced such concerns, noting that “[t]he respect that must be accorded the States as independent sovereigns within our federal system” constrains this type of congressional activity.347 At the same time, as noted previously, this invocation of federalism begs the question in reference to properly remedial or prophylactic federal antidiscrimination legislation under Section 5.348 The Framers of the Fourteenth Amendment vested in the federal government, specifically in Congress, the power to protect individual liberties.349 They did so at the expense of state autonomy.350 To invoke [*PG736]concerns about disrupting the carefully crafted federal-state balance in the Fourteenth Amendment context is anomalous at best.351
In any event, invalidating Section 5 legislation based on such concerns is not unprecedented.352 United States v. Morrison is an example of a case in which the end of the legislation—preventing gender discrimination—was proper, but the Court used congruence and proportionality to dispute the legislation’s means.353 The Court took issue with the means Congress used to remedy and to prevent state-sponsored discrimination—there, giving women the right to sue private individuals in federal court through the use of a federal cause of action.354 By rejecting the private suit provision of the VAWA because it did not involve state action, the Court decided that the Act’s means violated federalism values.355 This reasoning is unpersuasive because, as has been noted,
[i]t is hard to understand this argument as anything other than a flat rejection of Congress’s judgment as to how best to effectuate its goals. . . . The fact that reasonable minds can disagree over whether the means Congress has chosen to achieve its goal will in fact be successful should itself put an end to the inquiry.356
It is possible that the Court, if it settles this split between the Fifth and Ninth Circuits, could go out of its way to find a similar federalism-based objection to the means used in the FMLA, as it did with the VAWA in Morrison.357
The Fifth Circuit’s approach in Kazmier demonstrates that courts can use the congruence and proportionality test to disagree with the substance of legislation and with Congress’s motive by invoking federalism values when analyzing Congress’s choice of means.358 Morrison is a clear precedent for this approach.359 This result does not seem to be consistent with Kimel and Garrett, however, because those cases relied [*PG737]so heavily on the involvement of non-suspect groups.360 There, courts used congruence and proportionality to demonstrate that Congress had acted vigorously where the Court does not grant high constitutional priority.361 The same cannot be said about the FMLA provision because, as did the Ninth Circuit, courts acknowledge that deference is due to Congress.362 The possibility that courts, both the Supreme Court and lower federal courts, can use congruence and proportionality to disagree with the substance of legislation rather than simply to protect separation of powers and federalism values directly refutes the purpose of Section 5.363 By using congruence and proportionality to locate disfavored congressional motive and legislative substance, the courts themselves raise serious separation of powers questions for a democratic society.364
The Framers of the Fourteenth Amendment intended to transform society by guaranteeing to all people basic individual rights. Congress, in the first place, was to effectuate the Amendment’s promises through its special enforcement power granted in Section 5. Although the Court for more than a century traditionally recognized Congress’s special role under Section 5 and deferred to congressional judgment, its recent opinions seriously threaten Congress’s continued ability to fulfill its fundamental, constitutionally granted role. The congruence and proportionality test found in cases from Boerne to Garrett restricts Congress’s choice of means and ends in enacting prophylactic antidiscrimination legislation. It turns the principle of deference to Congress on its head out of separation of powers and federalism concerns that ultimately are unjustifiable. It allows courts to hide improper inquiries into congressional motive and legislative substance under a cloak of narrow tailoring requirements. As a result, it threatens Congress’s ability to fulfill its constitutional duty to remedy and prevent discrimination. Moreover, the congruence and propor[*PG738]tionality test, when misused by courts, tramples on congressional prerogatives and threatens healthy separation of powers values.