Scalia disavows Boerne
marty.lederman at comcast.net
Mon May 17 19:49:51 PDT 2004
Well, I agree that Justice Scalia's disavowal of the Boerne "proportionality and congruence" test -- and his proposal to further eviscerate section 5 in all but race-discrimination cases -- is interesting, in a "how low can he go?" sort of way. But it's hardly the most important news of the day, or even the most important news about constitutional law emanating from the Supreme Court. No other Justice joined Scalia's opinion, and I think it's a fairly safe bet that none of us will live to see the day when the Court adopts its reasoning. On the other hand, in addition to the momentous constitutional developments that are breaking daily with respect to the Executive's unilaterally imposed detention and interrogation policies and practices, there were several truly important federalism-related developments at the Court today, including the following:
-- The Court upheld Congress's power to enact title II of the ADA as applied to access to judicial proceedings -- which is especially important because a contrary ruling would have resulted not only in invalidation of the abrogation of sovereign immunity (as in Florida Prepaid, Garrett and Kimel), but almost certainly would also have led to invalidation of the states' underlying substantive obligations of title II, as well (as in Boerne). (It would be very difficult to defend title II on Commerce Clause grounds before this Court.)
-- The Court strongly reaffirmed Hibbs, leaving Garrett and Kimel on very uncertain and shifting doctrinal footing. (Scalia certainly is correct about one thing -- namely, that the Boerne test is extremely malleable, which in terms of the present Court means that it has whatever content Justice O'Connor deigns to attribute to it in a particular case.) In particular, the Court reaffirmed the understanding in Hibbs that nonstate governmental conduct, such as the conduct of city and county actors, can form part of (indeed, almost all of) the evidentiary predicate for congressional section 5 legislation (see pages 15-17 & note 16).
-- The Court in Lane stated categorically and unequivocally (page 8) that "[w]hen Congress seeks to remedy or prevent unconstitutional discrimination, section 5 authorizes it to enact prophylactic legislation proscribing practices that are discriminatory in effect, if not in intent, to carry out the basic objectives of the Equal Protection Clause" -- a statement that would (along with Hibbs) appear to settle the question -- ominously raised in Garrett -- of the constitutionality of abrogating immunity for state violations of title VII's disparate impact prohibition.
-- In Sabri, eight Justices of the Court easily turned aside a challenge to Congress's power to enact the bribery prohibition in 18 U.S.C. 666 under the Spending and Necessary & Proper Clauses. Many had thought that section 666 would (or should) be the opening salvo in a movement by the Court to impose significant new constraints on Congress's Spending power. (See, e.g., recent articles by George Brown, Rick Garnett, Peter Henning.) The Sabri decision is very good news for the constitutionality of the Spending conditions imposed in statutes such as title VI, title IX, section 504 of the Rehab Act, and RLUIPA, each of which applies to all of the operations of a state agency if he agency receives any federal funds.
-- In Sabri, eight Justices held (much to Justice Thomas's chagrin) that the McCulloch v. Maryland test for "necessary and proper" legislation is, in essence, coterminous with the exceedingly deferential rational-basis standard of review -- and that the N&P test is easily met in the case of a condition imposed on receipt of funds designed to ensure that funds are used properly (and are not put to disfavored ends), because, inter alia, "money is fungible."
-- As I posted at the time of oral argument, many Justices on the Sabri Court (including Scalia, O'Connor and Kennedy) expressed the view that in light of Perez, section 666 was obviously valid Commerce Clause legislation, even without proof of a federal nexus in each case, because it regulates bribes, which are economic transactions; and in his separate concurrence today, even Justice Thomas concedes that that is so (although he hints that he would overrule Perez, if he could find four votes to join him).
-- Perhaps most importantly, in both Sabri and Lane, the Court reaffirmed the doctrine of U.S. v. Raines, under which facial challenges to exercises of Congress' enumerated powers are disfavored -- a doctrine that permits courts to hold that certain applications of statutes are within Congress's power, without having to reach the question whether Congress went "too far" in crafting the scope of the statute as a whole. In Sabri (and in Salinas) this means that a defendant whose bribe does have a nexus to federal funds (albeit not a nexus that the jury ever determined) will not be heard to complain that the statute might reach defendants whose bribes lack such a nexus. And in Lane, it means that the Court can examine and uphold certain applications unspecified in the statute itself -- in this case, title II as applied to courthouse access -- without having to decide whether the entire enactment (or even, in the case of the ADA, the entire "title" of the statute) is sufficiently "proportional and congruent" to pass Boerne muster. This is a tactic that Justice Stevens unsuccessfully urged in dissent in Florida Prepaid (he argued that the Court could and should have upheld the Patent Act abrogation as applied to willful, and thus unconstitutional, patent infringements). The Chief Justice, dissenting in Lane, understandably complains that the "as applied" maneuver, and the holding in Raines, is inconsistent with decisions such as Boerne and Florida Prepaid, but to no avail. Similarly, in his concurrence in Sabri, Justice Kennedy points out that in cases such as Lopez and Morrison, the Court did not ask whether the statute was constitutional "as applied" to the defendant or conduct in question (e.g., did not question whether Lopez's gun had crossed state lines). But after Sabri, Salinas and Lane, perhaps such arguments are now available to the SG. At the very least, the Court has breathed new life into the notion of "as applied" validation of statutes when they are challenged as going beyond one of Congress's enumerated powers. The best treatment of the question remains Professor Fallon's 2000 article in the Harvard Law Review (cited on page 9 of Sabri), although in certain important respects today's decisions only serve to reopen, rather than to settle, the questions that Fallon examined.
----- Original Message -----
From: "Stuart BUCK" <stuartbuck at msn.com>
To: <religionlaw at lists.ucla.edu>
Sent: Monday, May 17, 2004 9:11 PM
Subject: Scalia disavows Boerne
> The most important news of the day is Scalia's disavowal of the test
> invented in Boerne. I suspect that his replacement is even less consistent
> with the original intent of Section 5 , which certainly wasn't to bind
> Congress to every substantive interpretation of the Supreme Court; but
> that's another issue. Anyway, from his dissent in Tennessee v. Lane:
> I joined the Court's opinion in Boerne with some misgiving. I have
> generally rejected tests based on such malleable standards as
> "proportionality," because they have a way of turning into vehicles for the
> implementation of individual judges' policy preferences. [Citations]
> Even so, I signed on to the "congruence and proportionality" test in Boerne
> . . . . [More discussion of intervening cases]
> I yield to the lessons of experience. The "congruence and proportionality"
> standard, like all such flabby tests, is a standing invitation to judicial
> arbitrariness and policydriven decisionmaking. Worse still, it casts this
> Court in the role of Congress's taskmaster. Under it, the courts (and
> ultimately this Court) must regularly check Congress's homework to make sure
> that it has identified sufficient constitutional violations to make its
> remedy congruent and proportional. As a general matter, we are
> ill advised to adopt or adhere to constitutional rules that bring us into
> constant conflict with a coequal branch of Government. And when conflict is
> unavoidable, we should not come to do battle with the United States Congress
> armed only with a test ("congruence and proportionality")
> that has no demonstrable basis in the text of the Constitution and cannot
> objectively be shown to have been met or failed. As I wrote for the Court in
> an earlier case, "low walls and vague distinctions will not be judicially
> defensible in the heat of interbranch conflict." Plaut v. Spendthrift
> Farm, Inc., 514 U. S. 211, 239 (1995).
> I would replace "congruence and proportionality" with another test: one that
> provides a clear, enforceable limitation supported by the text of §5.
> Section 5 grants Congress the power "to enforce, by appropriate
> legislation," the other provisions of the Fourteenth Amendment. U. S.
> Const., Amdt. 14 (emphasis added). Morgan notwithstanding, one does not,
> within any normal meaning of the term, "enforce" a prohibition by issuing a
> still broader prohibition directed to the same end. One does not, for
> example, "enforce" a 55-mile-per-hour speed limit by imposing a
> 45-mile-per-hour speed limit --even though that is indeed directed to the
> same end of automotive
> safety and will undoubtedly result in many fewer violations of the
> 55-mile-per-hour limit.
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