Congressional power of enforcement
Encyclopedia
A Congressional power of enforcement is included in a number of amendments to the United States Constitution
. The language "The Congress
shall have power to enforce this article by appropriate legislation" is used, with slight variations, in Amendments XIII
, XIV
, XV
, XVIII
, XIX
, XXIII
, XXIV
, and XXVI
. The variations in the pertinent language are as follows: the Thirteenth Amendment
leaves out the word "the", the Fourteenth Amendment
states "The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article." and the Eighteenth Amendment
states "The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.
and protect the rights of the newly emancipated African-Americans. The enforcement provisions contained in these amendments extend the powers of Congress originally enumerated in Article One, Section 8 of the Constitution, and have the effect of increasing the power of Congress and diminishing that of the individual states
. They led to the "Enforcement Acts
" of 1870 and 1871.
Early on, in the so-called Civil Rights Cases
decided in 1883, the Supreme Court concluded that the Congressional enforcement power in Section 5 of the Fourteenth Amendment did not authorize Congress use the Privileges or Immunities Clause
of that amendment to ban racial discrimination
in public accommodations operated by private persons, such as inns and theaters. The Court stated that since the Fourteenth Amendment only restricted state action, Congress lacked power under this amendment to forbid discrimination that was not sponsored by the state. This ruling has not been overturned, however, in modern times, similar civil rights
legislation has been upheld under Congress's power to regulate interstate commerce under Article One, Section 8 of the Constitution. See Civil Rights Act of 1964
.
In the Katzenbach v. Morgan
case, decided in 1966, the Supreme Court concluded that Congress can forbid practices that are not themselves unconstitutional, if the law is aimed at preventing or remedying constitutional violations. On that basis, the Court upheld a provision of the Voting Rights Act
that prevented states
from using English language
literacy test
s as qualifications for voting
. The Court decided that the law was a valid exercise of Congress's enforcement power under the Equal Protections Clause of Fourteenth Amendment, because it was aimed at remedying state-sponsored discrimination
, despite an earlier court finding that a literacy test was not in and of itself a violation of the 14th Amendment.
In 1970, however, in Oregon v. Mitchell
, the Court held that Congress had exceeded its power by attempting to require the states to reduce the voting age
to 18. This led to adoption of the Twenty-Sixth Amendment to the Constitution in 1971, which provided that the states could not set a minimum voting age higher than 18.
In the 1997 case of City of Boerne v. Flores
, the Court again took a narrow view of the Congressional power of enforcement, striking down a provision of the Religious Freedom Restoration Act
(RFRA) that sought to forbid the states from placing burdens on religious practice in the absence of a compelling state interest in doing so. In enacting RFRA, Congress had sought to overturn the 1988 Supreme Court decision in Employment Division v. Smith
, which had held that the Constitution does not require states to recognize religious exemptions to laws of general applicability. In the Boerne case, the Supreme Court decided that RFRA overstepped Congress's authority, because the statute was not sufficiently connected to the goal of remedying a constitutional violation, but instead created new rights that are not guaranteed by the Constitution. Some observers have suggested that the Supreme Court saw RFRA as a threat to the Court's institutional power and an incursion on its role as final arbiter of the meaning of the Constitution, because that statute was aimed specifically at overturning the Employment Division v. Smith decision. However, the effect of Boerne lasted beyond Boerne itself. The standard announced in that case—that all legislation enacted under section 5 of the Fourteenth Amendment must be "congruent and proportional" to the unconstitutional harm it seeks to remedy—has been followed by every post-Boerne decision on legislation that sought to abrogate the states' sovereign immunity
.
United States v. Morrison
, decided in 2000, is one controversial successor case. In that case, the Supreme Court, applying the congruent-and-proportional Boerne test, overturned provisions of the Violence Against Women Act
(VAWA), which criminalized gender-based violence. The Court held that Congress did not have power to forbid discrimination against women in the absence of a connection to state action or interstate commerce. But see Tennessee v. Lane
and Nevada Department of Human Resources v. Hibbs
.
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
. The language "The Congress
United States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....
shall have power to enforce this article by appropriate legislation" is used, with slight variations, in Amendments XIII
Thirteenth Amendment to the United States Constitution
The Thirteenth Amendment to the United States Constitution officially abolished and continues to prohibit slavery and involuntary servitude, except as punishment for a crime. It was passed by the Senate on April 8, 1864, passed by the House on January 31, 1865, and adopted on December 6, 1865. On...
, XIV
Fourteenth Amendment to the United States Constitution
The Fourteenth Amendment to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments.Its Citizenship Clause provides a broad definition of citizenship that overruled the Dred Scott v...
, XV
Fifteenth Amendment to the United States Constitution
The Fifteenth Amendment to the United States Constitution prohibits each government in the United States from denying a citizen the right to vote based on that citizen's "race, color, or previous condition of servitude"...
, XVIII
Eighteenth Amendment to the United States Constitution
The Eighteenth Amendment of the United States Constitution established Prohibition in the United States. The separate Volstead Act set down methods of enforcing the Eighteenth Amendment, and defined which "intoxicating liquors" were prohibited, and which were excluded from prohibition...
, XIX
Nineteenth Amendment to the United States Constitution
The Nineteenth Amendment to the United States Constitution prohibits any United States citizen to be denied the right to vote based on sex. It was ratified on August 18, 1920....
, XXIII
Twenty-third Amendment to the United States Constitution
The Twenty-third Amendment to the United States Constitution permits citizens in the District of Columbia to vote for Electors for President and Vice President. The amendment was proposed by Congress on June 17, 1960, and ratified by the states on March 29, 1961...
, XXIV
Twenty-fourth Amendment to the United States Constitution
The Twenty-fourth Amendment prohibits both Congress and the states from conditioning the right to vote in federal elections on payment of a poll tax or other types of tax...
, and XXVI
Twenty-sixth Amendment to the United States Constitution
The Twenty-sixth Amendment to the United States Constitution limited the minimum voting age to no more than 18. It was adopted in response to student activism against the Vietnam War and to partially overrule the Supreme Court's decision in Oregon v. Mitchell...
. The variations in the pertinent language are as follows: the Thirteenth Amendment
Thirteenth Amendment to the United States Constitution
The Thirteenth Amendment to the United States Constitution officially abolished and continues to prohibit slavery and involuntary servitude, except as punishment for a crime. It was passed by the Senate on April 8, 1864, passed by the House on January 31, 1865, and adopted on December 6, 1865. On...
leaves out the word "the", the Fourteenth Amendment
Fourteenth Amendment to the United States Constitution
The Fourteenth Amendment to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments.Its Citizenship Clause provides a broad definition of citizenship that overruled the Dred Scott v...
states "The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article." and the Eighteenth Amendment
Eighteenth Amendment to the United States Constitution
The Eighteenth Amendment of the United States Constitution established Prohibition in the United States. The separate Volstead Act set down methods of enforcing the Eighteenth Amendment, and defined which "intoxicating liquors" were prohibited, and which were excluded from prohibition...
states "The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.
Initial creation and use
These provisions made their first appearance in the Thirteenth, Fourteenth and Fifteenth Amendments, which were adopted during the Reconstruction period primarily to abolish slaverySlavery
Slavery is a system under which people are treated as property to be bought and sold, and are forced to work. Slaves can be held against their will from the time of their capture, purchase or birth, and deprived of the right to leave, to refuse to work, or to demand compensation...
and protect the rights of the newly emancipated African-Americans. The enforcement provisions contained in these amendments extend the powers of Congress originally enumerated in Article One, Section 8 of the Constitution, and have the effect of increasing the power of Congress and diminishing that of the individual states
U.S. state
A U.S. state is any one of the 50 federated states of the United States of America that share sovereignty with the federal government. Because of this shared sovereignty, an American is a citizen both of the federal entity and of his or her state of domicile. Four states use the official title of...
. They led to the "Enforcement Acts
Enforcement Acts
The Enforcement Acts in the United States were four acts passed from 1870 to 1871 that were meant to protect rights of all blacks following ratification of the Fourteenth Amendment to the United States Constitution as part of Reconstruction, which entitled freedmen and all others born in the United...
" of 1870 and 1871.
Use in the courts
Interpretation of the Fourteenth Amendment's enforcement provision has been the subject of several important Supreme Court cases, which reflect the tension between the Courts' role of interpreting the Constitution and Congress's power of adopting legislation to enforce specific Constitutional amendments.Early on, in the so-called Civil Rights Cases
Civil Rights Cases
The Civil Rights Cases, 109 U.S. 3 , were a group of five similar cases consolidated into one issue for the United States Supreme Court to review...
decided in 1883, the Supreme Court concluded that the Congressional enforcement power in Section 5 of the Fourteenth Amendment did not authorize Congress use the Privileges or Immunities Clause
Privileges or Immunities Clause
The Privileges or Immunities Clause is Amendment XIV, Section 1, Clause 2 of the United States Constitution. It states:Along with the rest of the Fourteenth Amendment, this clause became part of the Constitution on July 9, 1868....
of that amendment to ban racial discrimination
Discrimination
Discrimination is the prejudicial treatment of an individual based on their membership in a certain group or category. It involves the actual behaviors towards groups such as excluding or restricting members of one group from opportunities that are available to another group. The term began to be...
in public accommodations operated by private persons, such as inns and theaters. The Court stated that since the Fourteenth Amendment only restricted state action, Congress lacked power under this amendment to forbid discrimination that was not sponsored by the state. This ruling has not been overturned, however, in modern times, similar civil rights
Civil rights
Civil and political rights are a class of rights that protect individuals' freedom from unwarranted infringement by governments and private organizations, and ensure one's ability to participate in the civil and political life of the state without discrimination or repression.Civil rights include...
legislation has been upheld under Congress's power to regulate interstate commerce under Article One, Section 8 of the Constitution. See Civil Rights Act of 1964
Civil Rights Act of 1964
The Civil Rights Act of 1964 was a landmark piece of legislation in the United States that outlawed major forms of discrimination against African Americans and women, including racial segregation...
.
In the Katzenbach v. Morgan
Katzenbach v. Morgan
Katzenbach v. Morgan, 384 U.S. 641 , was a United States Supreme Court case regarding the power of Congress, pursuant to Section 5 of the Fourteenth Amendment, to enact laws which enforce and interpret provisions of the Constitution.- Facts :...
case, decided in 1966, the Supreme Court concluded that Congress can forbid practices that are not themselves unconstitutional, if the law is aimed at preventing or remedying constitutional violations. On that basis, the Court upheld a provision of the Voting Rights Act
Voting Rights Act
The Voting Rights Act of 1965 is a landmark piece of national legislation in the United States that outlawed discriminatory voting practices that had been responsible for the widespread disenfranchisement of African Americans in the U.S....
that prevented states
U.S. state
A U.S. state is any one of the 50 federated states of the United States of America that share sovereignty with the federal government. Because of this shared sovereignty, an American is a citizen both of the federal entity and of his or her state of domicile. Four states use the official title of...
from using English language
English language
English is a West Germanic language that arose in the Anglo-Saxon kingdoms of England and spread into what was to become south-east Scotland under the influence of the Anglian medieval kingdom of Northumbria...
literacy test
Literacy test
A literacy test, in the context of United States political history, refers to the government practice of testing the literacy of potential citizens at the federal level, and potential voters at the state level. The federal government first employed literacy tests as part of the immigration process...
s as qualifications for voting
Voting
Voting is a method for a group such as a meeting or an electorate to make a decision or express an opinion—often following discussions, debates, or election campaigns. It is often found in democracies and republics.- Reasons for voting :...
. The Court decided that the law was a valid exercise of Congress's enforcement power under the Equal Protections Clause of Fourteenth Amendment, because it was aimed at remedying state-sponsored discrimination
Discrimination
Discrimination is the prejudicial treatment of an individual based on their membership in a certain group or category. It involves the actual behaviors towards groups such as excluding or restricting members of one group from opportunities that are available to another group. The term began to be...
, despite an earlier court finding that a literacy test was not in and of itself a violation of the 14th Amendment.
In 1970, however, in Oregon v. Mitchell
Oregon v. Mitchell
Oregon v. Mitchell, 400 U.S. 112 , was a case in the USA in which the Supreme Court of the United States held that states could set their own age limits for state elections....
, the Court held that Congress had exceeded its power by attempting to require the states to reduce the voting age
Voting age
A voting age is a minimum age established by law that a person must attain to be eligible to vote in a public election.The vast majority of countries in the world have established a voting age. Most governments consider that those of any age lower than the chosen threshold lack the necessary...
to 18. This led to adoption of the Twenty-Sixth Amendment to the Constitution in 1971, which provided that the states could not set a minimum voting age higher than 18.
In the 1997 case of City of Boerne v. Flores
City of Boerne v. Flores
City of Boerne v. Flores, 521 U.S. 507 , was a Supreme Court case concerning the scope of Congress's enforcement power under the fifth section of the Fourteenth Amendment...
, the Court again took a narrow view of the Congressional power of enforcement, striking down a provision of the Religious Freedom Restoration Act
Religious Freedom Restoration Act
The Religious Freedom Restoration Act of 1993, Pub. L. No. 103-141, 107 Stat. 1488 , codified at through , is a 1993 United States federal law aimed at preventing laws that substantially burden a person's free exercise of their religion. The bill was introduced by Howard McKeon of California and...
(RFRA) that sought to forbid the states from placing burdens on religious practice in the absence of a compelling state interest in doing so. In enacting RFRA, Congress had sought to overturn the 1988 Supreme Court decision in Employment Division v. Smith
Employment Division v. Smith
Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 , is a United States Supreme Court case that determined that the state could deny unemployment benefits to a person fired for violating a state prohibition on the use of peyote, even though the use of the drug was...
, which had held that the Constitution does not require states to recognize religious exemptions to laws of general applicability. In the Boerne case, the Supreme Court decided that RFRA overstepped Congress's authority, because the statute was not sufficiently connected to the goal of remedying a constitutional violation, but instead created new rights that are not guaranteed by the Constitution. Some observers have suggested that the Supreme Court saw RFRA as a threat to the Court's institutional power and an incursion on its role as final arbiter of the meaning of the Constitution, because that statute was aimed specifically at overturning the Employment Division v. Smith decision. However, the effect of Boerne lasted beyond Boerne itself. The standard announced in that case—that all legislation enacted under section 5 of the Fourteenth Amendment must be "congruent and proportional" to the unconstitutional harm it seeks to remedy—has been followed by every post-Boerne decision on legislation that sought to abrogate the states' sovereign immunity
Sovereign immunity
Sovereign immunity, or crown immunity, is a legal doctrine by which the sovereign or state cannot commit a legal wrong and is immune from civil suit or criminal prosecution....
.
United States v. Morrison
United States v. Morrison
United States v. Morrison, is a United States Supreme Court decision which held that parts of the Violence Against Women Act of 1994 were unconstitutional because they exceeded congressional power under the Commerce Clause and under section 5 of the Fourteenth Amendment to the Constitution.-...
, decided in 2000, is one controversial successor case. In that case, the Supreme Court, applying the congruent-and-proportional Boerne test, overturned provisions of the Violence Against Women Act
Violence Against Women Act
The Violence Against Women Act of 1994 is a United States federal law. It was passed as Title IV, sec. 40001-40703 of the Violent Crime Control and Law Enforcement Act of 1994, , and signed as by President Bill Clinton on September 13, 1994...
(VAWA), which criminalized gender-based violence. The Court held that Congress did not have power to forbid discrimination against women in the absence of a connection to state action or interstate commerce. But see Tennessee v. Lane
Tennessee v. Lane
Tennessee v. Lane, 541 U.S. 509 , was a case in the Supreme Court of the United States involving Congress's enforcement powers under section 5 of the Fourteenth Amendment....
and Nevada Department of Human Resources v. Hibbs
Nevada Department of Human Resources v. Hibbs
Nevada Department of Human Resources v. Hibbs, 538 U.S. 721 , was a United States Supreme Court case which held that the Family and Medical Leave Act of 1993 was "narrowly targeted" at "sex-based overgeneralization" and was thus a "valid exercise of its power under Section 5 of the Fourteenth...
.