After the recent Supreme Court argument in the Voting Rights Act case (Shelby County v. Holder), it appears the decision may well turn on the legal standards to be applied in deciding whether Section 5 of the Act, the preclearance section, has become unconstitutional with the passage of time.
The constitutional questions in the case are fundamental: how much authority does Congress possess to choose the legislative means to combat a national evil (in this case, racial discrimination in voting), and how much authority does the Supreme Court have to overrule Congress’ choice? The answers to those questions involve interpretation of the words “necessary and proper” and “appropriate legislation,” which are in the Constitution, and “congruent and proportional,” which are not in the Constitution but which the Supreme Court has adopted in recent years as aids in interpreting the first group of words.
Misconceptions about the standards are easy to have. The Chief Justice, for one, thought his Court has already applied the “congruent and proportional” test to the Voting Rights Act. Tr. Oral Arg., p. 56. He was mistaken. In the 2009 case that the Chief Justice was recalling (Northwest Austin MUD v. Holder), the “congruence and proportionality” test was put forward by the petitioner but the Court specifically declined to address this issue and decided the case on another ground.
Moreover, as discussed below, the “congruence and proportionality” test, as used in the Court’s cases thus far, has nothing to do with Section 5 of the Voting Rights Act. This is because the Court’s stated purpose for using that test has been solely to identify and weed out laws that go beyond Congress’ enforcement power because they are “substantive” rather than “remedial,” whereas Section 5 of the Voting Rights Act is, and has been repeatedly recognized by the Court, to be remedial.
The debate in the Supreme Court in the Shelby County case was largely framed as a “sufficiency of the evidence” question, as in reviewing a lower court verdict – did Congress in 2006 have a record of enough voting discrimination in the covered jurisdictions to warrant the strong remedy of Section 5 preclearance. Or, as Shelby County’s lawyer put it, “is this killing a fly with a sledgehammer?” Tr. Oral Arg., 28.
This seems to be the wrong question. There is strong Supreme Court precedent – which the City of Boerne line of cases does nothing to disturb – that in this situation the claim of “too much enforcement” is largely for Congress to decide rather than the Supreme Court.
1. The terms “necessary and proper” and “appropriate legislation” are not open-ended invitations or roving commissions to the Supreme Court, but have definitions which are cast in terms of what measures will be effective to carry out the constitutional purpose.
The Voting Rights Act is based on two major sources of congressional power in the Constitution. Article I gives Congress the power to “make all laws which shall be necessary and proper” to carry out all powers “vested by this Constitution in the Government of the United States.” The 14th and 15th amendments give Congress power to enforce those amendments “by appropriate legislation.”
These words have been broadly interpreted in many well-known Supreme Court cases, from McCulloch v. Maryland (1819) to Ex parte Virginia (1880) to South Carolina v. Katzenbach and Katzenbach v. Morgan (1966).
In McCulloch v. Maryland, the Supreme Court said that “necessary and proper” does not mean indispensable, but includes all means suitable for carrying out the power given to Congress, and famously added that if the “end be legitimate,”, then all “appropriate” means, that is, those which are “plainly adapted to that end” may be employed. 4 Wheat at 420-21.
In Ex parte Virginia, the Supreme Court said “appropriate” legislation is whatever legislation is “adapted to carry out the objects the amendments have in view, whatever tends to enforce submission to the prohibitions they contain, and to secure to all persons the enjoyment of perfect equality of civil rights and the equal protection of the laws against State denial or invasion[.]”
Such legislation under the Reconstruction Amendments, continued the Ex parte Virginia Court, “is brought within the domain of congressional power.”
A less well-known but equally important part of that lineup of cases is James Everard’s Breweries v. Day, 265 U.S. 545 (1924), which interpreted the “enforce by appropriate legislation” language of the 18th amendment (Prohibition). The constitutional situation created by Prohibition bore many similarities to the one arising from voting discrimination.
Like the 15th amendment, the 18th or Prohibition amendment was designed to make a fundamental change in the attitudes and behavior of many Americans and its enforcement was bitterly and violently opposed by millions of people. It gave the federal government unprecedented powers that many thought were at odds with the federal structure of the republic. And, like the 14th and 15th amendments, the 18th amendment contained a clause giving Congress power to enforce the amendment “by appropriate legislation.”
These issues came to a head in the Everard’s Breweries case. At issue was a federal law that barred doctors from prescribing beer for medicinal purposes. Because the 18th amendment by its terms dealt only with trafficking in alcohol for “beverage purposes,” it was argued that the prescription ban went beyond Congress’ 18th amendment powers and violated federalism by invading state authority over public health and practice of medicine.
A unanimous Supreme Court rejected this constitutional argument and affirmed Congress’ broad power to make the 18th amendment work. The Court began by disposing of any restraint based on state authority:
“It is clear that if the Act is within the authority delegated to Congress by the Eighteenth Amendment, its validity is not impaired by reason of any power reserved to the States. And if the Act is within the power confided to Congress, the Tenth Amendment, by its very terms, has no application, since it only reserves to the States ‘powers not delegated to the United States by the Constitution.’ SeeMcCulloch v. Maryland, 4 Wheat. 316, 406; Lottery Case, 188 U. S. 321, 357.”
Then, noting that the purpose of the amendment was to suppress the “entire” targeted traffic, the Court said:
“By its terms the Amendment prohibits the manufacture, sale or transportation of intoxicating liquors for beverage purposes, and grants to Congress the power to enforce this prohibition ‘by appropriate legislation.’ Its purpose is to suppress the entire traffic in intoxicating liquor as a beverage.
Referring to the “necessary and proper” clause (augmented here by the “appropriate legislation” clause), the Court said:
“In the exercise of such non-enumerated or ‘implied’ powers it has long been settled that Congress is not limited to such measures as are indispensably necessary to give effect to its express powers, but in the exercise of its discretion as to the means of carrying them into execution may adopt any means, appearing to it most eligible and appropriate, which are adapted to the end to be accomplished and consistent with the letter and spirit of the Constitution. [citing 10 cases, and also referring to the enforcement power conferred by the 18th amendment itself].”
Finally, the Court made clear where the Constitution draws the line between legislative and judicial authority when the question is the degree of the problem and the choice of the remedy:
“It is likewise well settled that where the means adopted by Congress are not prohibited and are calculated to effect the object intrusted to it, this Court may not inquire into the degree of their necessity; as this would be to pass the line which circumscribes the judicial department and to tread upon legislative ground. [citing cases]. Nor may it enquire as to the wisdom of the legislation. [citing cases]. What it may consider is whether that which has been done by Congress has gone beyond the constitutional limits upon its legislative discretion.”
“It is clear that Congress, under its express power to enforce by appropriate legislation the prohibition of traffic in intoxicating liquors for beverage purposes, may adopt any eligible and appropriate means to make that prohibition effective. The possible abuse of a power is not an argument against its existence.”
The continuing vitality of James Everard’s Breweries v. Day has never been questioned. Indeed, it was cited in South Carolina v. Katzenbach and Katzenbach v. Morgan, as well as in City of Boerne v. Flores, to be discussed below.
2. The “congruent and proportional” test has never been applied except to distinguish “remedial” statutes which Congress is authorized to enact under the 14th amendment from “substantive” statutes which it is not.
Fifteen years ago, the Supreme Court began a line of cases limiting Congress’ power under the 14th amendment where the Court found a statutory remedy enacted by Congress’ was not “congruent and proportional” to the evil it was purportedly aimed at. The cases began with City of Boerne v. Flores, 521 U.S. 507 (1997), and has included five more cases since then which have held specific congressional enactments to be unjustified by the equal protection clause or due process clause.
The words “congruent and proportional” are not in the Constitution but were adopted as a gloss for the constitutional words “appropriate legislation.” The Court was careful to explain that “appropriate legislation” under the 14th amendment must be faithful to the “remedial” nature of the amendment. The amendment gives Congress power to enforce its protections – equal protection and due process – but not to define those protections. To define the protections would be a substantive function, and that is for the judiciary alone:
“Congress’ power under Section 5, however, extends only to ‘enforc[ing]’ the provisions of the Fourteenth Amendment. This Court has described this power as ‘remedial.’ South Carolina v. Katzenbach. . . . Congress does not enforce a constitutional right by changing what the right is. It has been given the power ‘to enforce,’ not the power to determine what constitutes a constitutional violation.” Boerne, 521 U.S. at 519.
The distinction between remedial statutes (permissible) and substantive statutes (forbidden) was not new. It had been the basis of the Civil Rights Cases, 109 U.S. 3 (1883), where the Supreme Court said the 14th amendment, by authorizing Congress to “enforce” the amendment, had limited Congress’ power to “corrective” laws.
It was against this background that the Court adopted its “congruent and proportional” test, not as a free-ranging inquiry into Congress’ work-product or process, but solely as a prophylactic to guard against congressional slipping from the permissible “remedial” law to the impermissible “substantive” law. The Court made this limited purpose and application of its new test clear from the start:
“There must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end. Lacking such a connection, legislation may become substantive in operation and effect.” Boerne, 521 U.S. at 520 (emphasis added).
This crucial distinction has been maintained and been the basis for the holding of unconstitutionality in every one of the five post-Boerne cases which have struck down laws for failing the “congruent and proportional” test. Every one of these cases cited the City of Boerne case as the basis for using the test, and each case went on to make the specific purpose clear in its own words:
In Kimel, the Court said the question was whether the ADEA was “an appropriate remedy or merely an attempt to substantively redefine” the states’ constitutional obligations. 528 U.S. at 88. In Garrett, “to uphold the ADA’s application to the states would allow Congress to rewrite the Fourteenth Amendment.” 531 U.S. at 356. In Coleman, the task was “to insure Congress’ enforcement powers under § 5 remain enforcement powers, as envisioned by the drafters of the Amendment, rather than powers to redefine the scope of section 1.” 132 S.Ct. at 1333. In Florida Prepaid, the Court said the question was whether the Patent Remedy Act could be viewed as a proper remedial or preventive act, 527 U.S. at 639; and in Morrison, the Violence Against Women Act was condemned as not being “corrective in its character.” 529 U.S. at 625-26.
Turning to Section 5 of the Voting Rights Act, there is no doubt that it is remedial in nature than substantive, then and now. Its language and operation are remedial. The Supreme Court itself has repeatedly cited the Act as the classic remedial statute, including in the Boerne decision itself. The 2006 extension of Section 5 continues to apply as it has in the past, with the same judicially fashioned substantive law. If there is no question as to the remedial nature of the law, there is no basis in Supreme Court precedent for applying the “congruent and proportional” test to it.
3. Selective rather than nationwide application is a hallmark of remedial legislation.
A related constitutional question is also raised in the Shelby County case – the law applies only in some jurisdictions but not throughout the Nation. However, this fact of selective application has itself been described by the Supreme Court as a hallmark of permissible remedial legislation. Thus, in United States v. Morrison, the Court said one sign that the law was not remedial was that it applied nationwide rather than being limited to places where a record showed a need for it. 529 U.S. at 626-27.
This was an echo of the Civil Rights Cases, where the Supreme Court pointed to the nationwide application of the Civil Rights Act of 1875 as an indication that it was not “corrective” in nature:
“It applies equally to cases arising in states which have the justest laws respecting the personal rights of citizens, and whose authorities are ever ready to enforce such laws as to those which arise in states that may have violated the prohibition of the amendment.” 109 U.S. at 13.
4. A reduction in the level of voting discrimination does not warrant loosening up the remedy.
There are suggestions that a diminution of egregious voting discrimination in the covered jurisdictions is a cause for loosening up the remedy. The Supreme Court has repeatedly stated that in dealing with the Nation’s greatest evil, racial discrimination, the goal is not partial success. Congress is empowered and obligated to do more, and the courts are likewise empowered and obligated to do more.
In Ex parte Virginia, the Supreme Court explicitly described the purpose of the Civil War amendments, to secure “perfect equality of civil rights.”
In Oregon v. Mitchell, the Court said:
“[T]he Civil War amendments were unquestionably designed to condemn and forbid every distinction, however, trifling, on account of race.”
And in Louisiana v. United States, the Supreme Court said:
“”We bear in mind that the court has not merely the power but the duty to render a decree which will so far as possible eliminate the discriminatory effects of the past as well as bar like discrimination in the future.” 380 U.S. 145, 154 (1965).
During the oral argument in the Shelby County case, Shelby County’s lawyer said that while Congress may examine the issue of racially discriminatory voting in our nation, and can assemble a record on that subject, it was up to the Supreme Court to decide “whether the problem [of racial discrimination in voting] indeed has been solved[.]” Tr. Oral Arg., p. 66. That answer startled Justice Kagen, who immediately asked: “Well, that’s a big, new power that you are giving us, that we have the power now to decide whether racial discrimination has been solved? I did not think that that fell within our bailiwick.” She was right, of course, as it’s been within the “domain of congressional power” since the Civil War Amendments were added to our Constitution.
 City of Boerne v. Flores, 521 U.S. 507 (1997); Florida Prepaid Postsecondary Educ. Exp. Bd. v. College Sav. Bank, 527 U.S. 627 (1999); Kimel v. Florida Bd. of Regents, 528 U.S. 62 (2000); U.S. v. Morrison, 529 U.S. 598 (2000); Board of Trustees of University of Alabama v. Garrett, 531 U.S. 356 (2001); Coleman v. Court of Appeals of Maryland, 132 S.Ct. 1327 (2012).
 These cases are consistent with earlier cases striking down statutes sought to be justified by the 14th amendment. All these cases held that the statutes did not “enforce” the 14th amendment but rather sought to create and protect “rights” that the Supreme Court held the amendment did not create. Oregon v. Mitchell, 400 U.S. 112 (1970). See also cases invalidating Reconstruction-era laws. United States v. Reese, 92 U.S. 214 (1876); United States v. Harris, 106 U.S. 629 (1883);Civil Rights Cases, 109 U.S. 3 (1883); Baldwin v.Ffranks,120 U.S. 678 (1887);James v. Bowman, 190 U.S. 127 (1903); Hodges v. United States, 206 U.S. 1 (1906).