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§5 of the 14th Amendment and The Taxing and Spending Clause

Part II of the review session on 4/22/11

Dave Rossi

on 22 April 2011

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Transcript of §5 of the 14th Amendment and The Taxing and Spending Clause

Section 5 of the 14th Amendment 11th amendment TEST Tax and Spend Clause "The Congress shall have power to enforce by appropriate legislaton, the provisions of this article. Civil Rights Cases (1883) No authority under the 13th Amendment because discrimination based on color does not rise to the level of "badges and incidents of slavery." The 14th Amendment only applies to government action and therefore cannot be used by Congress to regulate private behavior Harlan Dissent: Common carriers perform essentially public functions. Jones v. Alfred H. Meyer Co. (1968) Congress can prohibit private discrimination in selling and leasing property under the 13th Amendment "Congress has the power under the 13th Amendment rationally to determine what are the badges and incidents of slavery, and the authority to translate that determination into effective legislation." South Carolina v. Katzenbach (1966) Voting Rights Act upheld because its provisions were a remedy for proven violations of the 15th Amendment. Katzenbach v. Morgan (1966) The purpose of §5 was to give broad powers to Congress to determine what legislation is appropriate to secure the guarantees of the 14th Amendment. City of Boerne v. Flores (1997) Employment Division v. Smith (1990) Facially neutral regulation of conduct that incidentally inhibits a religious practice is not subject to any stringent constitutional standard. In response, Congress passed the Religious Freedom Restoration Act ("RFRA") in 1993. "There must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end" for Congress to exercise power under §5. Here, there was no congressional record of discrimination. United States v. Morrison (2000) VAWA was not authorized by §5 because:
It was not aimed at a state or state action
It was not remedial or corrective Nevada Dept. of Human Resources v. Hibbs (2003) FMLA upheld under §5 because:
Narrowly targeted
Record of unconstitutional participation in gender-based discrimination Tennessee v. Lane (2004) Title II upheld because of astrong record of discrimination supporting the conclusion that it was a "congruent and proportional" response. Northwest Austin Mun. Utility Dist. No One v. Holder (2009) Extension of Voting Rights Act upheld because it was voluntary. Fitzpatrick v. Bitzer (1976) §5 of the 14th Amendment authorizes Congress to abrogate state 11th Amendment sovereign immunity "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by citizens or Subjects of any Foreign State." Seminole Tribe of Florida v. Florida (1996) State immuity from suit is more than a common law doctrine. It is a fundamental constitutional postulate. Alden v. Maine (1999) "The Federal Government retains its own immunity from suit not only in state tribunals but also in its own courts." Kimel v. Florida Board of Regents (2000) Cannot use §5 of the 14th Amendment to abrogate states' immunity from suit when it is "so out of proportion to a supposed remedial or preventaive object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior." Board of Trustees v. Garrett (2001) Congruent and proportional requirement applies to §5 abrogation powers Standard for evaluating whether Congressional exercise of authority under section 5 of the 14th amendment is appropriate: The purpose of §5 was to give broad powers to Congress to determine what legislation is appropriate to secure guarantees of the 14th Amendment
Katzenbach v. Morgan Must be aimed at state action
Civil Rights Cases, Morrison
Perhaps Harlan dissent in Civil Rights Cases? Must be "congruent and proportional to the harm it seeks to remedy" City of Boerne How do you know? Is it of a remedial nature?
Morrison Is there a history of discrimination?
Hibbs, Lane Incidental Impact?
Kimel Section 5 can abrogate state sovereign immunity Fitzpatrick v. Bitzer Congruent and proportional test also applies Garrett Article 1, §8, Clause 1:
"Congress shall have the power to lay and collect taxes, duties, imposts, and excises to pay the debts, and provide for the common defense and general welfare of the United States. Analysis South Dakota v. Dole (1987) Limitations on Congressional authority under the spending clause:
Must be in the pursuit of the general welfare
Condition must be unambiguous
Grants must be reasonably related to the Federal interest
Other constitutional provisions may be an independent bar
Full transcript