Garrett

[Marci Hamilton]

As David Schoenbrod and I have argued, the proportionality and congruence
test that I advocated at oral argument in Boerne and  that then appeared in
the case has a long pedigree in the law of remedies.   It is grounded in the
certainly credible understanding of Sec. 5 as a remedial provision, which
does not include the power to substantively change the meaning of the
Constitution and does not permit amendment without Art. V procedures (both
aspects addressed in Boerne).

As to Cleburne, I think the press and some on this list are overreading
Garrett when they assume that rationality review in this context is the
lowest level of rationality review.  Cleburne remains good law and there will
be circumstances like the one in Cleburne where there was invidious
discrimination on the basis of disability that will constitute constitutional
violations the Congress has broad latitude to redress.

Marci