Section 5 Question

[Ann Althouse]

on 1/17/01 4:26 PM, Shubha Ghosh at lawsg at LANGATE.GSU.EDU wrote:

> thanks to prof althouse for the clarification.  i see that congress can
> abrogate 11th amendment immunity if acting under its section5 power and the
> standard is the boerne one.
>
> but i understood prf. segall's question to be: what is the standard for proper
> exercise of section 5 powers? the boerne standard is congruence and
> proportionality, but to what? the court's reading of the constitution?  is the
> court's interpretation a ceiling and a floor? how about areas where the court
> has not entered, such as with gay rights and 2nd amendemtn claims?

I assume the answer is that Congress can try to predict what the SCt would
say about a particular right and be "congruent and proportional" to that.
Then, when the courts review the statute, they do their independent
analysis of what rights are. The statute is then upheld if Congress, well...
guessed right. That must be it, don't you think?


> as far as prf segall's hypothetical statute: if congress passed a statute that
> required that states use the same admissions standards for all applicants,
> then i think it has exceeded its section 5 powers since bakke permits race to
> be used as a factor.  congress cannot expand constitutional rights beyond what
> the court has found. or at least that's how i understand boerne.

But what if Congress were to develop the fact about what universities have
been doing and ascertain that they were using these programs as a device to
achieve some sort of discrimination: then it would be like the 1965 Voting
Rights Act that outlawed literacy tests that the court had previously
upheld, because Congress developed the facts and found that the remedy of
outlawing the tests was a proper remedial response, even though the tests
didn't themselves violate the law. It's not an expansion of the right if it
can pass as a remedy for the court's idea of what the right is.

Ann Althouse