How Far Does Congresss Power to “Enforce” Reach?
Article I of the Constitution gives Congress the power to make laws — but it is not the only source of Congress’s power to legislate. To the contrary, enforcement clauses such as the one I’ve quoted above have been interpreted to grant the same power. Thus, Congress has relied upon Section 5 of the Fourteenth Amendment to enact, for example, the Voting Rights Act, the ADA, and the Family and Medical Leave Act. In 1997, however, in the landmark case of City of Boerne v. Flores, the Supreme Court limited Congress’s power to enact Section 5 legislation. In Boerne, the Court held that Congress could invoke Section 5 only after satisfying two conditions. First, it has to legislate based on proof that the Fourteenth Amendment indeed was violated. Second, it must demonstrate that its legislation did not go too far, in light of that proof. This test is called the test of “congruence and proportionality.” Since Boerne, the Court has several times held that Congress failed the “congruence and p
