The Inadequacy of Congruence and Proportionality Analysis

7/29/2019 The Inadequacy of Congruence and Proportionality Analysis

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THE INADEQUACY OF CONGRUENCE AND PROPORTIONALITY ANALYSIS

By

Patrick Heelen

INTRODUCTION

In Tennessee v. Lane1 the Supreme Court misapplied the congruence and proportionality

analysis first used by the Court to strike down the Religious Freedom Restoration Act of 1993

(hereinafter RFRA) in City of Boerne v. Flores.2 Instead of applying this analysis to the

challenged statute as a whole, as it had in Boerne and several other intervening cases, the Court

engaged in an as-applied analysis, construing its congruence and proportionality in the

narrow context of the facts of the case.3The Court examined the statute only as it applied to the

facts inLane, rather than in relation to the broad array of alleged constitutional violation(s) that

initially prompted its enactment. One result of this flawed analysis was to uphold a statute that

should have been struck. Another result was to underscore the inherent weaknesses of the

Courts analysis.

Congruence and proportionality analysis is a three-pronged test used by the Court to

determine the validity of federal legislation enacted pursuant to Congress enforcement powers

under 5 of the Fourteenth Amendment (hereinafter 5).4 Under 5, Congress has the

authority to legislatively enforce those substantive provisions of the Bill of Rights which have

1 Tenn. v. Lane, 541 U.S. 509 (2004).2 City of Boerne v. Flores, 521 U.S. 507, 536 (1997).3See Lane, 541 U.S. 527-29 (providing that the right of access to the courts could be characterized as a species of

public program or service, and that evidence of widespread discrimination against the disabled in that context

constituted a sufficient evidentiary basis with which to justify Congress enactment of Title II of the ADA).4 Bd. of Tr. of Univ. of Ala. v. Garrett, 531 U.S. 356, 365-72 (2001).

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been incorporated by the Fourteenth Amendment and made applicable as against the States.5

Congress may also enact legislation to enforce the substantive rights found in 1 of the

Fourteenth Amendment itself (Privileges and Immunities, Due Process, and Equal Protection of

the Laws).

In passing upon challenged 5 legislation using congruence and proportionality analysis, the

Court first determines the scope of the constitutional right at issue.6 The Court then determines

whether Congress has identified a history and pattern of state discrimination. 7 Lastly, the Court

determines whether the legislation is congruent and proportional to the evil it is intended to

prevent or remedy.

8

As Justice Kennedy stated in Boerne, There must be a congruence and

proportionality between the injury to be prevented or remedied and the means adopted to that

end. Lacking such a connection, legislation may become substantive in operation and effect.9

Thus, in order for legislation to be considered preventive or remedial, and thus a proper exercise

of Congress 5 enforcement power, there must be a degree of proportionality between the

injury and the remedy sufficient to create a discernible nexus between the two.

While misapplication of this test has already been adequately treated in law review articles

and in the dissenting opinions ofLane itself, the inadequacy and malleability of the test itself has

not yet been fully explored. It is the purpose of this Note to address the shortcomings of

congruence and proportionality analysis, and to illustrate that the test could be more clearly

delineated so as to effectively preclude its future misapplication. This is of paramount

importance in that a clear, objectively measurable definition of what constitutes congruence and

5 Palko v. Conn., 302 U.S. 319, 326-27 (1937) (providing that those substantive provisions of the Bill of Rights

deemed to be fundamental have been absorbed by the Fourteenth Amendment).6See Garrett, 531 U.S. at 365.7Id. at 368.8Id. at 372.9 City of Boerne v. Flores, 521 U.S. 507, 519-20 (1997).

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proportionality will make it harder for judges to rule on the basis of their own personal policy

preferences, in contradiction of prior judicial precedent, as they seemingly did in Lane. Such

clarity will serve several purposes. First, it will guide Congress, by providing them with

established principles to follow in crafting legislation enacted pursuant to its 5 enforcement

power. Second, it will lend a measure of predictability, and thus judicial economy to proceedings

in which that legislation is reviewed by the courts. Finally, it will force the judiciary to adhere to

the long established principle of stare decisis when passing upon such legislation by removing

the temptation for judges to substitute their own subjective judgment in favor of prior, binding

precedents.

Part II of this Note will explore the facts behind the Courts decision in Lane, provide a brief

explanation of the nature, origin, and scope of Congress 5 enforcement powers, and discuss

the elements of congruence and proportionality analysis. Part III will compare and contrast the

Courts application of this analysis to RFRA in Boerne, and to Title II of the Americans with

Disabilities Act of 1990 (hereinafter ADA, or Title II) inLane. While RFRA was struck and

Title II of the ADA survived, the Congressional record behind both pieces of legislation is

similarly characterized by a lack of evidence showing a history or pattern of state discrimination.

Moreover, the Courts treatment of the scope of the two pieces of legislation differed greatly,

even though both are similarly broad in terms of their applicability. Part III will explore the

treatment of congruence and proportionality analysis in intervening Supreme Court cases. The

purpose of this part will be two-fold. First, it will illustrate cases in which the Court has properly

applied this analysis, adhering to the precedent set in Boerne. Second, it will provide examples of

legislation found to be congruent and proportional. Certain characteristics of this legislation,

which the Court cited as being indicative of congruence and proportionality, should be

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incorporated into a revised version of this analysis. Incorporation of these characteristics will

provide a more objective means of evaluating challenged 5 legislation in the future. Part IV

will explore the majority opinion in Lane, illustrating the inherent flaws of the Courts as-

applied analysis of Title II, and the susceptibility of congruence and proportionality analysis to

subjective interpretation. Part V will summarize the weaknesses of congruence and

proportionality analysis, and offer a revised test that would incorporate many of the

characteristics upon which the Court has already relied in discerning the appropriate scope of 5

legislation.

PART II: STATEMENT OF FACTS

1. Tennessee v. Lane, 541 U.S. 509 (2004).

Tennessee v. Lane arose from a suit filed by two paraplegics, George Lane and Beverly

Jones, for damages and equitable relief against the state of Tennessee and a number of Tennessee

counties under Title II of the ADA, alleging that they were [D]enied access to, and the services

of the states court system as a result of their disabilities.10Title II provides, Subject to the

provisions of this subchapter, no qualified individual with a disability shall, by reason of such

disability, be excluded from participation in or be denied the benefits of the services, programs,

or activities of a public entity, or be subjected to discrimination byany suchentity.11 Title IIdefines a qualified individual with a disability as:

[A]n individual with a disability who, with or without reasonable modifications to

rules, policies, or practices, the removal of architectural, communication, or

transportation barriers, or the provision of auxiliary aids and services, meets theessential eligibility requirements for the receipt of services or the participation in

programs or activities provided by a public entity.12

10 Tenn. v. Lane, 541 U.S. 509, 513 (2004).11 42 U.S.C. 12132 (1990).12See id. 12132(2).

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Lane was confined to a wheelchair, thus falling within the definition of a qualified individual

for purposes of Title II.13

Lane alleged that he was forced to appear in court to answer criminal charges on the second

floor of a county courthouse that was not equipped with an elevator.14 He alleged that he

consequently had to crawl up a flight of stairs to get to the courtroom. 15 At his second hearing,

Lane refused to crawl up the stairs, or to be carried by officers who were present, and who

offered their assistance, and was subsequently arrested and incarcerated for failure to appear.16

Jones, a certified court reporter, alleged that she had been unable to gain access to a number

of county courthouses, and had consequently suffered economic harm in the form of lost income,

and had been denied the opportunity to participate in the judicial process.17 Like Lane, she was

confined to a wheelchair, and was thus a qualified individual18 for purpose of Title II.

The State moved to dismiss, and the District Court denied the motion.19 The State

subsequently appealed, and the United States intervened to defend Title IIs abrogation of the

States Eleventh Amendment sovereign immunity.20 The Court of Appeals for the Sixth Circuit

held the case in abeyance pending the Supreme Courts decision in Board of Trustees of

University of Alabama v. Garrett.21

In Garrettthe Court held that the Eleventh Amendment bars private suits for money damages

for state violations of the substantive provisions of Title I of the Americans with Disabilities Act

of 1990 (hereinafter ADA, or Title I)22 but left open the possibility that it may allow them

13

See Lane, 541 U.S. at 513.14Id. at 513.15Id. at 514.16Id. at 514.17Id. at 514.18 Tenn. v. Lane, 541 U.S. 509, 513 (2004).19Id. at 514.20Id. at 514.21Id. at 514.22 42 U.S.C. 12111-12117 (1990).

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under Title II.23 The Court granted certiorari to decide whether Title II validly abrogates a states

sovereign immunity.24

After reviewing the legislative record, comprised of various Congressional task force and

Committee Reports detailing a history and pattern of discrimination against the disabled, the

Court accepted Congress findings that the disabled constituted a [D]iscrete and insular

minority, and thus deserved Equal Protection. 25 The Court held that Title II, as it applies to

cases implicating the fundamental right of access to the courts, a right protected by the Due

Process Clause, was a valid exercise of Congress 5 power to enforce the guarantees of the

Fourteenth Amendment.

26

Title II was enacted pursuant to the constitutional grant of enforcement power to Congress

found in 5 of the Fourteenth Amendment, which states, The Congress shall have power to

enforce, by appropriate legislation, the provisions of this article.27 This enforcement power

applies to those individual rights guaranteed by the Bill of Rights that have been found to be

fundamental, and that have been incorporated by the Fourteenth Amendment and made

applicable against the States.28 It also applies directly to the rights set forth in the text of the

Amendment itself.29 Lanes and Jones right to due process was found to have been violated.

Thus, Congress was found to have the power under 5 to [E]nforce the constitutional right of

access to the courts.30

In deciding Lane, the Court focused on the scope of Congress enforcement power by

applying congruence and proportionality analysis to the provisions of Title II. In order to more

23See Lane, 541 U.S. at 514.24Id. at 515.25Id. at 516.26Id. at 533-534.27 U.S. CONST. amend. XIV, 5.28 Palko v. Conn., 302 U.S. 319, 326-27 (1937).29 U.S. CONST. amend. XIV, 5.30 Tenn. v. Lane, 541 U.S. 509, 531 (2004).

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fully understand the contours of this analysis, it is necessary to first understand the scope of this

enforcement power. What is the scope of Congress 5 enforcement power? What may

Congress do to enforce the provisions of the Fourteenth Amendment? What constitutes

appropriate legislation under 5?

2. Scope of Congress 5 Enforcement Power.The scope of Congress 5 enforcement power is not unlimited.31 It has been narrowly

construed so as to preclude Congress from legislatively defining substantive rights. The scope of

this enforcement power was first described inEx Parte Virginia as including:

Whatever legislation is appropriate, that is, adapted to carry out the objects the

amendments have in view, whatever tends to enforce submission to theprohibitions they contain, and to secure to all persons the enjoyment of perfect

equality of civil rights and the equal protection of the laws against State denial orinvasion, if not prohibited, is brought within the domain of congressional power.32

Thus, Congressional legislation enacted pursuant to 5 is appropriate where its purpose is to

enforce the States submission to the substantive provisions of the Fourteenth Amendment.

However, such legislation may only enforce the rights enumerated therein, without touching

upon their substance.

Congress enforcement power derives from the positive grant of legislative enforcement

authority found in 5.33Again, Congress 5 enforcement power is only preventive or remedial

in nature.34 It does not include the power to define the substance of the Fourteenth Amendments

restrictions on the States.35Nor may Congress define or alter the substance of those underlying

constitutional guarantees.36 It is the province of the courts to determine the substance of the

constitutional right or rights at issue.37 In The Civil Rights Cases, the Court said that the

31Id. at 520.32 Ex Parte Commonwealth of Va., 100 U.S. 339, 345-46 (1879).33 Palko v. Conn., 302 U.S. 319, 326 (1937).34 S. Carolina v. Katzenbach, 383 U.S. 301, 326 (1966).35 City of Boerne v. Flores, 521 U.S. 507, 519 (1997).36Id. at 519.37 Marbury v. Madison, 5 U.S. 137, 177 (1803) (stating that the judiciary is the sole arbiter of what the law is).

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Enforcement Clause did not authorize Congress to pass [G]eneral legislation upon the rights of

the citizen, but corrective legislation, that is, such as may be necessary and proper for

counteracting such laws as the States may adopt or enforce, and which, by the amendment, they

are prohibited from making or enforcing . . . .38 The Court went on to state that the power to

legislate generally upon the rights of citizens, as opposed to enacting remedial legislation, is

repugnant to the Constitution.39

Congress has the authority under 5 to enact legislation protecting individual rights where

doing so is a necessary and proper means of attaining an otherwise legitimate goal. 40 This

authority extends to cases in which practices are discriminatory in their effect, regardless of their

purposes.41 Thus, it is no longer a requirement that state discrimination must be purposeful.

Rather, it may be found to be unconstitutional merely because it has the effect of discriminating

against a particular individual or group.

Thus, in order for legislation to be a valid exercise of Congress 5 enforcement power, it

must be preventive or remedial in nature. It may not enlarge upon, or otherwise redefine, the

substantive rights protected by the Fourteenth Amendment.42 The Court developed congruence

and proportionality analysis as a means of discerning the nature and scope of Congressional 5

legislation. Such legislation must be supported by a record demonstrating a history and pattern of

unconstitutional state discrimination to withstand this analysis.43 It must also be remedial or

preventive in nature, and narrowly tailored to address the specific constitutional right(s) at issue.

Provided that all of these elements are present, challenged 5 legislation should be held to be a

constitutional exercise of Congress enforcement power. Conversely, legislation that is either

38 The Civil Rights Cases, 109 U.S. 3, 13-14 (1883).39Id. at 15.40 Corp. of Presiding Bishop of the Church of Jesus Christ of Latter Day-Saints v. Amos, 483 U.S. 327, 339 (1987).41 City of Rome v. U.S., 446 U.S. 156, (1980).42 City of Boerne v. Flores, 521 U.S. 507, 519 (1997).43 Bd. of Tr. of Univ. of Ala. v. Garrett, 531 U.S. 356, 368 (2001).

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unsupported by a record of unconstitutional state discrimination, that seeks to redefine or enlarge

upon the underlying substantive rights at issue, or that is overly broad should not.

3. Congruence and Proportionality Analysis.

Congruence and proportionality analysis is a three-pronged test to determine the

constitutionality of Congressional legislation enacted pursuant to its 5 enforcement powers.44

As Justice Kennedy said in Boerne, There must be a congruence and proportionality between

the injury to be prevented or remedied and the means adopted to that end. Lacking such a

connection, legislation may become substantive in operation and effect.45 Congress may only

enact legislation that is preventive or remedial in nature. Moreover, the scope and reach of that

legislation must be proportional to the constitutional violation(s) to be prevented or remedied.

The degree of proportionality between the injury and the remedy must be such that it establishes

an objectively determinable nexus between the two. That is not to suggest that there is some

predetermined ratio upon which the Court may rely in construing this nexus. Rather, the degree

of proportionality is predicated, in large part, on what the legislation does. Legislation that is not

proportional, that does more than merely prevent or remedy a violation, may be construed as

being substantive, and thus outside the scope of Congress 5 enforcement power.

The first step in congruence and proportionality analysis is to determine the precise scope of

the constitutional right at issue.46 This entails, [I]dentify[ing] the Fourteenth Amendment evil

or wrong that Congress intended to remedy . . . .47 Determining the scope of the right at issue,

and ultimately the propriety of 5 legislation, must be done in the context of the history or

pattern of discrimination which the legislation is designed to correct.48 The Court held in State of

South Carolina v. Katzenbach that, The constitutional propriety of [ 5 legislation] must be

44Id. at 365-72.45See Boerne, 521 U.S.at 519.46See Garrett, 531 U.S. at 365.47 Fla. Prepaid Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S. 627, 639 (1999).48 City of Boerne v. Flores, 521 U.S. 507, 525 (1997).

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judged with reference to the historical experience which it reflects.49 Thus, proper application of

this analysis begins by examining the challenged legislation, and the constitutional right(s) it was

intended to protect, in light of the violations that initially prompted its enactment. The legislation

must be proportional to the historical record, not to the particular right at issue in the case at

hand.

The logic of construing the right and the legislation within the context of the historical record

is readily apparent. Congress properly enacts 5 legislation in response to constitutional

violations already alleged to have occurred. Such legislation is, in this regard, retrospective in

that its object is to remedy those past violations. However, it may also be prospective in that it

seeks to prevent future violations of a similar nature. Even so, it is a logical impossibility, within

the context of this analysis, to posit that Congress may properly enact legislation in response to

constitutional violations yet to occur. Such purely prospective legislation, without a clear

showing of a history or pattern of discrimination justifying its enactment, is not an appropriate

exercise of Congress 5 enforcement power. As Justice Bradley stated in The Civil Rights

Cases:

[U]ntil some state law has been passed, or some state action through its officers or

agents has been taken, adverse to the rights of citizens sought to be protected bythe fourteenth amendment, no legislation of the United States under said

amendment, nor any proceeding under such legislation, can be called into

activity . . . .50

Thus, while 5 legislation may be prospective in its effect, it must be retrospective in that it is

enacted in response to a history of past state discrimination. There must be a series of specific

event triggers that prompt Congress to act. Congress, then, may not legislate solely in

anticipation of future constitutional violations.

49 S. Carolina v. Katzenbach, 383 U.S. 301, 308 (1966) (holding that the Voting Rights Act of 1965, when examined

in light of the history of discrimination it was intended to prevent or remedy, was a proper exercise of Congress

Fifteenth Amendment enforcement power).50 The Civil Rights Cases, 109 U.S. 3, 13 (1883).

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The second step in the analysis, as explained by the Court in Garrett is, [To] examine

whether Congress [has] identified a history and pattern of unconstitutional . . . discrimination by

the States . . . .51 Properly construing the relevance and scope of this history is critical, in that it

forms the proverbial baseline of the entire analysis. If the underlying facts comprising the history

and pattern of discrimination are relevant, they may properly be considered by the Court in

construing the congruence and proportionality of the legislative remedy. Their relevance is

predicated upon the nature of the constitutional rights the legislation seeks to protect. Thus, if the

legislation seeks to protect Free Exercise Rights, as in the case of RFRA, the facts comprising

the history and pattern of discrimination must show that those particular rights were infringed.

The legislation must be congruent with the injury to be prevented or remedied, as evidenced in

the record. That is, there must be a connection between the type of constitutional violations

contained in the legislative record, and the purpose of the legislative remedy. The scope of this

history and pattern must also be sufficient to justify the reach of the provisions of the challenged

legislation. That is, Congress response must be proportional to the amount, type, and degree

of unconstitutional discrimination contained in the record.

The third and final step is to determine whether the legislative remedy imposed by Congress

is congruent and proportional to the constitutional violation(s) it seeks to correct. 52 The purpose

of this prong of the analysis is to distinguish between that which is truly remedial in nature, and

that which is substantive.53 Legislation that is out of all proportion to the legislative record of

discrimination may be found to be an enlargement of the substantive provisions of the underlying

constitutional guarantee, rather than a legislative remedy intended to enforce those pre-existing

51See Garrett,531 U.S. at 368.52Id. at 372.53See The Civil Rights Cases, 109 U.S. at 13-14, 15.

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substantive rights.54 Remedial or corrective legislation, on the other hand, is defined as

legislation:

[S]uch as may be necessary and proper for counteracting such laws as the states

may adopt or enforce, and which by the amendment they are prohibited frommaking or enforcing, or such acts and proceedings as the states may commit or

take, and which by the amendment they are prohibited from committing or

taking.55

Thus, state action that is prohibited by the substantive provisions of the Fourteenth Amendment

is a necessary prerequisite to a valid exercise of Congress 5 enforcement power.

Remedial legislation must be narrowly tailored if it is to be construed as being proportional.

In the words of Justice Bradley, it must, [B]e adapted to the mischief and wrong which the

[Fourteenth] amendment was intended to provide against.56 Conversely, legislation that is

sufficiently broad to encompass, [T]he whole domain of rights appertaining to life, liberty, and

property, defining them and providing for their vindication,57 represents substantive legislation,

and thus an unconstitutional intrusion into the legislative sphere of the States.58 Thus, under the

holding in The Civil Rights Cases, substance and remedy may be distinguished on the basis of

whether there exists a pre-existing condition necessitating remedial legislation (unconstitutional

state discrimination), and on whether the scope of that legislation is narrowly tailored to address

the specific constitutional violations alleged to have occurred.

While congruence and proportionality analysis has been properly applied by the Court in a

number of cases to determine the constitutional validity of Congressional legislation, the

decision in Lane is notable in that it exposes the inherent weaknesses in that analysis. An

examination of the factors considered by the Court inLane in upholding Title II, when contrasted

54 City of Boerne v. Flores, 521 U.S. 507, 519 (1997).55See The Civil Rights Cases, 109 U.S. at 13-14.56Id. at 13.57Id. at 13.58Id. at 13.

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with those considered by the Court in other cases, illustrates that congruence and proportionality

analysis is sufficiently amorphous to allow individual judges to decide cases based more on their

own personal policy preferences, rather than on the facts presented in the historical record, and

the relationship of those facts to the specific provisions of the challenged legislation. Such an

open-ended test has the potential to allow the courts to improperly intrude into the legislative

sphere by undercutting the judiciarys traditional deference to legislative intent, and is contrary

to the principle of stare decisis.

Boerne, the first case in which the Court utilized this analysis, illustrates its proper

application. The following discussion of the case presents a clear example of 5 legislation that

was wholly unsupported by a Congressional record demonstrating a history or pattern of state

discrimination. Moreover, the legislation was out of all proportion to the constitutional right(s) at

issue.

PART II:BOERNEv.LANE

1. Congruence and Proportionality Analysis inBoerne.

Congress enacted RFRA in response to the Courts holding in Employment Div., Dept. ofHuman Resources of Oregon v. Smith that a generally applicable criminal law is automatically

enforceable regardless of the severity or degree of the burden it places on an individuals

religious beliefs.59 Smith arose out of a suit filed by two members of the Native American Church

who were fired from their jobs at a private drug rehabilitation organization for ingesting peyote

for sacramental purposes.60 Peyote is a Schedule I hallucinogen the use of which is prohibited by

59 City of Boerne v. Flores, 521 U.S. 507, 519 (1997).60 Employment Div., Dept. of Human Resources of Or. v. Smith, 494 U.S. 872, 874 (1990).

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the laws of the state of Oregon, and is punishable as a Class B felony. 61 Respondents were found

to be ineligible for unemployment benefits because they had been discharged for work-related

misconduct.62

In reaching its holding, the Smith Court declined to apply the balancing test used in prior

cases involving laws of general applicability that incidentally burdened free exercise rights.63

This balancing test, first used in Sherbert v. Verner,64 sought to determine whether the law in

question substantially burdened a religious practice, and if so, whether that burden was justified

by a compelling government interest.65 The Court reasoned that application of this test, [W]ould

have produced an anomaly in the law, a constitutional right to ignore neutral laws of general

applicability.66 The Court dispensed with the balancing test, holding that respondents use of

peyote, which was prohibited by a religiously neutral law of general applicability, was not

protected by the Free Exercise Clause, and that the law was therefore constitutional.67

Congress, alarmed at the implications of Smith, enacted RFRA for the purpose of,

[R]estor[ing] the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963)

and Wisconsin v. Yoder, 406 U.S. 205 (1972) and to guarantee its application in all cases where

free exercise of religion is substantially burdened . . . .68Thus, one of the stated purposes of

RFRA was to require the Court to apply the so-called Sherberttest to all cases involving a free

exercise claim. The other purpose was, [T]o provide a claim or defense to persons whose

religious exercise is substantially burdened by government.69 The Boerne Court held these

61Id. at 874.62

Id. at 874.63See Flores, 521 U.S. at 513.64 Sherbert v. Verner, 374 U.S. 398 (1963) (holding that the State of South Carolina could not apply provisions of itsunemployment compensation statute containing eligibility requirements so as to unconstitutionally deny benefits to a

claimant who had refused Saturday employment because of her Sabbatarian beliefs).65Id. at 513.66 Employment Div., Dept. of Human Resources of Or. v. Smith, 494 U.S. 872, 887 (1990).67Id. at 890.68 42 U.S.C. 2000bb(b)(1) (1993).69See id. 2000bb(b)(2).

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purposes to be beyond the scope of Congress 5 power in that they expanded upon the

substantive rights of the Free Exercise Clause, and were thus not preventive or remedial in

nature.70

The constitutional right at issue was properly construed as the right to free exercise of

religion, as made applicable against the States by the Due Process Clause of the Fourteenth

Amendment.71 Congress has the power to enforce all rights guaranteed by the Due Process

Clause of the Fourteenth Amendment.72 Congress enforcement authority extends to the Free

Exercise Clause of the First Amendment, as incorporated by the Fourteenth Amendment. 73 Thus,

the right at issue fell well within the scope of Congress 5 enforcement powers, and was

therefore a proper subject for appropriate preventive or remedial legislation.

However, RFRA failed the second prong of the analysis. The Court found that its legislative

record [L]ack[ed] examples of modern instances of generally applicable laws passed because of

religious bigotry.74The record contained no examples of religious persecution in this country

within the past forty years,75 focusing instead on neutral laws of general applicability that only

incidentally burdened the free exercise of religion.76 Finally, RFRA was found to be out of all

proportion to a supposed remedial or preventive objective.77 It applied to federal, state and local

government at every level.78 It applied to all federal and state law, whether statutory or common

law, and was both prospective and retrospective in its application.79It had no termination date, or

termination mechanism whereby it could be phased out.80 Nor were there any geographical

70 City of Boerne v. Flores, 521 U.S. 507, 532 (1997).71

Id. at 519.72 U.S. v. Price, 383 U.S. 787, 789 (1966).73 Cantwell v. Conn., 310 U.S. 296, 303 (1940).74See Flores, 521 U.S. at 530.75Id. at 530.76Id. at 530.7774Id. at 532.78 42 U.S.C. 2000bb-2(1) (1993).79 City of Boerne v. Flores, 521 U.S. 507, 532 (1997).80Id. at 532.

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restrictions confining its applicability to those states shown to have engaged in unconstitutional

religious discrimination.81 RFRA represented a shotgun approach to a problem whose very

existence was not borne out by the legislative record. Its breadth was grossly disproportionate

when viewed in the context of the problem it sought to correct. Thus, it was not congruent and

proportional, and was therefore an improper exercise of Congress 5 enforcement power.

Not only was the Courts decision sound, it is instructive in that it clearly illustrates a number

of factors the Court may consider in evaluating the congruence and proportionality of challenged

5 legislation. These factors include: (1) the reach of the statute in terms of its effect on various

levels of government;

82

(2) the scope of its applicability in terms of which laws it affects;

83

(3)

whether the statute applies prospectively, retrospectively, or both;84 (4) whether the statue has a

termination date, or a termination mechanism whereby it could be phased out once its intended

objective has been achieved;85 and (5) whether there are any geographical limitations on the

statute.86

RFRA represented an extreme example of Congressional over-reaching. Thus, not much was

left open for subjective interpretation. Moreover, the individual elements of the test, particularly

the factors used to evaluate RFRAs congruence and proportionality, were clearly enunciated.

Viewed in the context ofBoerne, congruence and proportionality analysis seems to be a fairly

straightforward, objective means of evaluating 5 legislation. However, its inherent

susceptibility to judicial manipulation is apparent in the Courts treatment of Title II of the ADA

inLane.

2. Congruence and Proportionality Analysis inLane.

81Id. at 533.82Id. at 532.83Id. at 532.84See Flores, 521 U.S. at 532.85Id. at 532.86Id. at 533.

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The Courts holding in Lane revealed that, ultimately, the inherent weaknesses of the test

used by the Court inBoerne were to be found in the proportionality prong of the analysis. While

it has been correctly argued that the Court misconstrued the legislative record presented in

Lane,87 demanding a more precise evaluation of that record is only a partial solution. Properly

defining the meaning and scope of proportionality, in conjunction with a contextually proper

evaluation of the legislative record, would have prevented the Courts erroneous holding in Lane.

An examination of the case bears this out.

The first step in congruence and proportionality analysis is to determine which right(s) Title

II sought to protect.88 The Court found that Title II, much like Title I in Garrett, was enacted for

the purpose of prohibiting irrational state discrimination against the disabled.89 The Court found

that Title II also sought to enforce several other basic constitutional guarantees, including: the

right to access to the courts, the right of a criminal defendant to be present at all stages of their

trail where their absence could have an adverse impact on the fairness of the proceedings, the

right of civil litigants to an opportunity to be heard, the right of a criminal defendant to confront

witnesses, the right of a criminal defendant to a trial by jury, and a First Amendment right to

access to criminal proceedings.90 The Court cites a number of rights, in addition to that of access

to the courts, which implicate the Due Process Clause of the Fourteenth Amendment.91 Thus, the

scope of the constitutional rights the ADA sought to protect was quite broad.

In evaluating the legislative record, the Court characterized the judicial proceedings at issue

in Lane as a species of public services or programs.92 Justice Stevens, writing for the majority,

87 Tenn. v. Lane, 541 U.S. 509, 541-42 (2004) (Rehnquist, J., dissenting).88Id. at 522.89Id. at 522.90Id. at 522-23.91Id. at 523.92 Tenn. v. Lane, 541 U.S. 509, 527 (2004).

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cited a Congressional report, [S]how[ing] that some 76% of public services and programs

housed in state-owned buildings were inaccessible to and unusable by persons with disabilities,

even taking into account the possibility that the services and programs might be restructured or

relocated to other parts of the buildings.93 He went on to cite other examples purportedly

showing a history and pattern of state discrimination against the disabled in the context of access

to courtrooms, and to state judicial services and programs. 94 Based on this legislative record, the

Court held that Title II, [A]s it applies to the class of cases implicating the fundamental right of

access to the courts, constitutes a valid exercise of Congress' 5 authority to enforce the

guarantees of the Fourteenth Amendment.

95

Thus, in upholding Title II, the Court neglected to

consider the statute as a whole, focusing instead on its applicability to the facts of the case at

hand.

However, this as applied analysis rendered much of the evidence in the Congressional

record irrelevant in that it no longer directly related to the constitutional rights at issue. This was

because the Court declined to examine the legislative record in light of the broad array of

constitutional rights which it sought to protect. Instead, the Court narrowed its focus to those

rights protected by the Due Process Clause. That is, the Court improperly substituted that

category of rights at issue in the case itself for the full array of rights the legislation initially

sought to protect. By examining the legislative record through the narrow prism of the rights at

issue in Lane, the Court skewed its evaluation of the historical record. The logic of such an

analytical format strains credulity. Viewed in this context, the broad reach of Title II could not be

said to be congruent and proportional to the constitutional violations it was intended to remedy.

Its broad reach went far beyond what was necessary to protect the right of access to the courts.

93Id. at 527.94Id. at 527.95Id. at 533.

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Justice Rehnquist, in his dissent, noted that this would not have been the case were Title II

evaluated as a whole.96 Had the statute been evaluated in its entirety, much of the evidence in the

legislative record could have been rightly considered as being demonstrative of a pattern of

discrimination. However, while the legislative record includes numerous examples of

discrimination against the disabled in a variety of contexts,97 much of that evidence does not

involve unconstitutional state action.98

The Congressional findings enunciated in the text of the ADA itself best illustrate the vast scope

of the history of discrimination cited by the Court in the legislative record. Congress found

discrimination against the disabled at every turn, noting that:

[I]ndividuals with disabilities continually encounter various forms ofdiscrimination, including outright intentional exclusion, the discriminatory effects

of architectural, transportation, and communication barriers, overprotective rules

and policies, failure to make modifications to existing facilities and practices,exclusionary qualification standards and criteria, segregation, and relegation to

lesser services, programs, activities, benefits, jobs, or other opportunities . . . .99

Much of the discrimination upon which Congress relied in enacting Title II was not

discrimination per se. Rather, it was an amalgam of the cumulative effects of modern, daily life

on the disabled. In many instances, the discrimination used by the Court to justify Congress

enactment of Title II was not intentional, irrational, or state-sponsored. The Fourteenth

Amendment does not require the States, [T]o make special accommodations for the disabled, so

long as their actions toward such individuals are rational. 100 Given that unconstitutional state

action is a necessary prerequisite to remedial legislation, 101 Title II should have been found to be

an unconstitutional exercise of Congress 5 enforcement power, in that it represented a

96Id. at 541 (Rehnquist, J., dissenting).97Tenn. v. Lane, 541 U.S. 509, 541 (2004).98Id. at 541.99 42 U.S.C. 12101(5) (1990).100 Bd. of Tr. of Univ. of Ala. v. Garrett, 531 U.S. 356, 367 (2001).101 The Civil Rights Cases, 109 U.S. 3, 13 (1883).

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substantive enlargement of the rights of the disabled. Congress found that the disabled have a

right to, equality of opportunity, full participation, independent living, and economic self-

sufficiency . . . .102 This clearly represents an unconstitutional enlargement of the substantive

rights conferred by the Fourteenth Amendment. The text of that amendment nowhere mentions a

right to independent living, or a right to economic self-sufficiency. While these are undoubtedly

worthy goals that society should strive to implement, it is outside the scope of Congress 5

enforcement power to do so via remedial legislation. That is not to say that a legislative remedy

at another level would be inappropriate. Only that Congress was not justified by the legislative

record in enacting a remedy of its own.

The Courts flawed analysis inLane, and thus of congruence and proportionality analysis

by way of extension, underscores the inherent weaknesses of the test itself. The majority inLane

bucked both common sense and prior precedent in order to uphold a piece of legislation that was

wholly unjustified by a history or pattern of irrational state discrimination against the disabled.

This disparate treatment of RFRA and Title II can be traced directly to the Lane Courts

misapplication of congruence and proportionality analysis. The Boerne Court was correct in

striking RFRA, in that it was not narrowly tailored to prevent or remediate the constitutional

violation(s) alleged to have occurred. Lacking a demonstrably proportional nexus between the

legislative record and the scope of its provisions, it was found to be a substantive enlargement of

free exercise rights, and thus unconstitutional.103 Not only was there a lack of proportionality

between the evil and the remedy, there was scant evidence in the legislative record of a history or

pattern of irrational state discrimination sufficient to justify RFRAs enactment in the first place.

Thus, it was not congruent and proportional.

102 42 U.S.C. 12101(8) (1990).103 City of Boerne v. Flores, 521 U.S. 507, 532 (1997).

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Similarly, the legislative record behind Title II, while compelling on an emotional level, was

notably devoid of a history or pattern of irrational state discrimination against the disabled such

as would justify 5 remedial legislation. Even if there had been such a demonstrable record, the

scope of its provisions were overly broad, in that they applied to government at all levels, much

like the provisions of RFRA. The substantive provisions of Title II provide that, [N]o qualified

individual with a disability shall, by reason of such disability, be excluded from participation in

or be denied the benefits of the services, programs, or activities of a public entity, or be subjected

to discrimination by any such entity.104 For purposes of Title II, public entity is defined as,

[A]ny State or local government . . . any department, agency, special purpose district, or other

instrumentality of a State or States or local government; and . . . the National Railroad Passenger

Corporation, and any commuter authority . . . .105 Thus, Title II, like RFRA, applies to all

government agencies at all levels, federal, state, and local. This is in spite of the fact that much of

the record of discrimination used by Congress to justify its enactment, and by the Lane Court in

upholding it, presents no demonstrative nexus between the actions or omissions of these entities

and discrimination against the disabled.

Title II, like RFRA, also lacks geographical specificity in that its application is not confined

to states shown to have engaged in discrimination against the disabled. The stated purpose of the

ADA is, [T]o provide a clear and comprehensive national mandate for the elimination of

discrimination against individuals with disabilities.106 It applies to, [E]ach of the several States,

the District of Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa, the

Virgin Islands, the Trust Territory of the Pacific Islands, and the Commonwealth of the Northern

Marian Islands.107 RFRA, by way of comparison, applies to, [B]ranch[es], department[s],

104 42 U.S.C. 12132 (1990).105See id. 12131(1).106 42 U.S.C. 12101(b)(1) (1990).107see id. 12102(3).

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agenc[ies], instrumentalit[ies], and official[s] (or other person acting under color of law) of the

United States, or of . . . the District of Columbia, the Commonwealth of Puerto Rico, and each

territory and possession of the United States . . . .108 Hence, the geographic scope of both Title II

and RFRA is precisely the same. This lack of geographical specificity was one of the factors the

Court considered in striking RFRA.109TheLane Court, however, failed to consider it in reaching

its decision.

The similarities between RFRA and Title II are significant. The respective legislative records

upon which both are based lack the type of evidentiary showing required by the Court to

demonstrate a history or pattern of state discrimination sufficient to justify Congress exercise of

its 5 enforcement powers. RFRA and Title II are similarly broad, in that they both apply to

government at all levels. Nor do they have any geographic limitations. They both apply to all

fifty States, and to every territory, principality, and possession of the United States. Nor do they

have a termination date or mechanism whereby they could be phased out once the Congressional

object had been achieved.

That two such similar pieces of legislation could be treated by the same Court so differently

raises serious questions about the suitability of the Courts analysis. The holdings in Boerne and

Lane may be thought of as more than two extreme examples of the Courts application of

congruence and proportionality analysis. They are, in a very real sense, conceptual brackets

punctuating the Courts recent 5 jurisprudence. Boerne represents the first application of the

test in its purest form. The legislative record was clearly lacking, and the remedy was out of all

proportion to the evil it was designed to correct. Lane, on the other hand, represents the most

108 42 U.S.C. 2000bb-2(1), (2) (1993).109 City of Boerne v. Flores, 521 U.S. 507, 532 (1997) (distinguishing the nationwide scope and reach of RFRA with

Congressional enforcement legislation enacted in response to discriminatory state voting laws the applicability of

which was limited to those regions where discrimination had been most egregious).

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recent application of congruence and proportionality analysis, and illustrates the fact that the test

is sufficiently malleable to allow for diametrically opposed results under strikingly similar

circumstances. An examination of the Courts intervening 5 jurisprudence reveals several

examples of legislation sufficiently narrowly tailored to survive congruence and proportionality

analysis, and further underscores those factors the Court should consider in examining such

legislation under this analysis in the future.

PART III: BETWEENBOERNEANDLANE

InFlorida Prepaid Postsecondary Education Expense Board v. College Savings Bank110the

Court applied congruence and proportionality analysis to provisions of the Patent and Plant

Variety Protection Remedy Clarification Act (hereinafter Patent Act)111 that amended the

patent laws so as to expressly abrogate the States Eleventh Amendment sovereign immunity.112

The Court identified the underlying constitutional evil or wrong that Congress intended

to remedy as state infringement of patents, and the use of sovereign immunity to deny patent

owners just compensation for the infringement of their patent rights.113 Judging the propriety of

the challenged 5 legislation in light of the historical record it reflects, 114 the Court found that

the legislative record contained scant evidence of, [I]nfringing conduct on the part of the

States.115

The scope of the Patent Act was found to be out of all proportion to the legislative record.

Justice Rehnquist noted that:

110 Fla. Prepaid Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S. 627 (1999).111

35 U.S.C. 271(h) (1992) (providing that the term whoever, which was included in the original statutorylanguage, should be defined so as to expressly include any State or instrumentality thereof, and any officer or

employee of a State or instrumentality acting in their official capacity).112see id. 296(a) (providing that, Any State, any instrumentality of a State, and any officer or employee of a State

or instrumentality of a State acting in his official capacity, shall not be immune, under the eleventh amendment of

the Constitution of the United States or under any other doctrine of sovereign immunity, from suit in Federal court

by any person ... for infringement of a patent under section 271, or for any other violation under this title.").113See Fla. Prepaid, 527 U.S. at 640.114 City of Boerne v. Flores, 521 U.S. 507, 525 (1997).115See Fla. Prepaid, 527 U.S. at 640.

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Despite subjecting States to this expansive liability, Congress did nothing to limit

the coverage of the Act to cases involving arguable constitutional violations, such

as where a State refuses to offer any state-court remedy for patent owners whosepatents it had infringed. Nor did it make any attempt to confine the reach of the

Act by limiting the remedy to certain types of infringement, such as nonnegligent

infringement or infringement authorized pursuant to state policy; or providing forsuits only against States with questionable remedies or a high incidence of

infringement.116

Thus, the Patent Act was found to be disproportionate primarily because it failed to include

limiting factors that would have narrowed its scope to arguably constitutional violations, and that

would have limited the types of patent infringement falling within its purview. This lack of

specificity drastically increased the States liability exposure, which was another factor the Court

considered in reaching its decision.117 Finally, the Patent Act was found to be without

geographical limitations.118 Its applicability was not confined to those states found to have,

[Q]uestionable remedies or a high incidence of infringement.119The Patent Act, then, was not

narrowly tailored to prevent or remedy the constitutional violations alleged to have occurred.

In deciding Florida Prepaid, the Courtadhered to the precedent set in Boerne. The Court

properly judged the legislative remedy in light of the history and pattern of discrimination it was

designed to address. Due to the lack of evidence contained in the legislative record, the

provisions of the Patent Act were properly construed as being so out of proportion to the

supposed remedial objective that they could not be properly, [U]nderstood as responsive to, or

designed to prevent, unconstitutional behavior.120 Rather, the Court found the purpose of the

legislation to be, [T]o provide a uniform remedy for patent infringement and to place States on

the same footing as private parties under that regime.121 In so deciding, the Court underscored

116Id. at 646-47.117Id. at 646.118Id. at 647.119Id. at 647.120 City of Boerne v. Flores, 521 U.S. 507, 532 (1997).121 Fla. Prepaid Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S. 647-48 (1999).

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the continued importance of construing the scope of Congress 5 enforcement power narrowly,

so as to preclude it from legislatively enlarging upon pre-existing, substantive rights.

InKimel v. Florida Board of Regents,122 the Court concluded that the Age Discrimination in

Employment Act of 1967 (hereinafter ADEA)123 was not appropriate 5 legislation.124 The

ADEA made it illegal for an employer, including a State, [T]o fail or refuse to hire or to

discharge any individual or otherwise discriminate against any individual . . . because of such

individual's age.125 The Court held that the substantive provisions the ADEA imposed on State

and local governments were disproportionate to, [A]ny unconstitutional conduct that

conceivably could be targeted by the Act.

126

In so holding, the Court relied, in part, on the

nature of the constitutional right at issue. The alleged right(s) at issue was the right to be

protected from age discrimination in the context of employment decisions.127

Kimelis significant in that it clearly illustrates the impact the nature and scope of the alleged

constitutional right at issue can have on the outcome of the Courts application of congruence

and proportionality analysis. The contours of this right will necessarily affect the Courts

evaluation of the legislative record, as it provides the conceptual framework with which that

record is examined. For example, age is not a suspect classification protected by the Equal

Protection Clause,128 and thus does not demand strict scrutiny, the most stringent standard of

review applied by the Court. In the case ofKimel, this meant that the state discrimination alleged

to have occurred was reviewed under the much less stringent rational basis standard.129 As Justice

122 Kimel v. Fla. Bd. of Regents, 528 U.S. 62 (2000).123 29 U.S.C. 623(a)(1) (1967).124See Kimel, 528 U.S. at 82-83.125 29 U.S.C. 623(a)(1) (1967).126See Kimel, 528 U.S. at 83.127Id. at 66.128 Gregory v. Ashcroft, 501 U.S. 452, 470 (1991); Vance v. Bradley, 440 U.S. 93, 99 (1979); Mass. Bd. of

Retirement v. Murgia, 427 U.S. 307, 313-14 (1976).129See Kimel, 528 U.S. at 83.

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OConnor noted, States may discriminate on the basis of age without offending the Fourteenth

Amendment if the age classification in question is rationally related to a legitimate state

interest.130 The application of this standard of review served to legitimize state action in the

legislative record that could otherwise have been considered to be indicative of a history or

pattern of unconstitutional discrimination, were the circumstances such as would justify

application of a more stringent standard of review.131

The effect of properly characterizing the nature and scope of the right(s) at issue inKimelon

the Courts review of the legislative record cannot be understated. Classifications based on age,

in contrast to those based on race or gender, are frequently relevant to a legitimate state interest,

and are therefore not indicative of [P]rejudice or antipathy.132 Thus, there is a direct

relationship between the nature of the rights at issue and the nature of the legislative record. The

nature and scope of those rights determines the standard of review applied by the Court, which in

turn, affects the nature of the alleged constitutional violations found in the legislative record. The

ultimate quality of the Courts analysis, then, logically depends upon properly construing the

nature of the Fourteenth Amendment violations alleged to have occurred.

The Court held the ADEA to be an invalid exercise of Congress 5 enforcement power, In

light of the indiscriminate scope of the Act's substantive requirements, and the lack of evidence

of widespread and unconstitutional age discrimination by the States.133 The characterization of

the scope of the right(s) at issue was such that it rendered much of the evidence in the legislative

record irrelevant. This was so because the right at issue was reviewed under the less stringent

rational basis standard of review. By applying this standard to the evidence presented in the

legislative record, much of that evidence was deemed to be constitutional because it was

130Id. at 83.131Id. at 84.132 Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985).133See Kimel, 528 U.S. at 91.

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rationally related to a legitimate state interest. Consequently, the scope of the remedial

legislation was found to be overbroad.

In U.S. v. Morrison, the Court held the Violence Against Women Act (hereinafter

VAWA)134 to be outside the scope of Congress 5 enforcement power.135 In striking VAWA,

the Court relied, in part,136 on congruence and proportionality analysis, finding that it was not

remedial or preventive in that it applied to private individuals, rather than to the States. 137

Unconstitutional state action is a necessary prerequisite to a proper exercise of Congress 5

enforcement power.138 Thus, the reach of the legislation was disproportionate in that it was not

predicated upon unconstitutional state discrimination. Moreover, under the circumstances of the

case, VAWA had no affect on any Virginia public officials. 139 Thus, it was overbroad in its

applicability. Nor was it geographically limited in any way.140

The Courts holding in Morrison is significant in that it underscores the continued need for

unconstitutional state action as a condition precedent to appropriate 5 legislation. It also stands

for the proposition that such legislation must be directed at States or state actors.141 In this regard,

Morrison represents an instance in which the Court sought to limit Congress 5 enforcement

power in accordance with prior precedent.142

In Garrett, the Court held that: (1) the States are not required to make special

accommodations for the disabled;143 (2) the legislative record underlying enactment of Title I of

the ADA failed to show a history and pattern of irrational state discrimination in employment

134

42 U.S.C. 13981 (1994).135 U.S. v. Morrison, 529 U.S. 598, 627 (2000).136Id. at 627 (holding that VAWA was not a proper exercise of Congress Commerce Clause power).137Id. at 626.138 The Civil Rights Cases, 109 U.S. 3, 13 (1883).139See Morrison, 529 U.S. at 626.140Id. at 626.141Id. at 626.142See The Civil Rights Cases, 529 U.S. at 15.143 Bd. of Tr. of Univ. of Ala. v. Garrett, 531 U.S. 356, 367 (2001).

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against the disabled;144(3) Congress may exercise its 5 enforcement power only in response to

unconstitutional state action, and not to constitutional violations by local governments;145 and (4)

the substantive provisions of Title I of the ADA146 created rights and remedies that were

disproportionate to the injury alleged to have occurred.147 As Justice Rehnquist stated, [T]o

uphold the Act's application to the States would allow Congress to rewrite the Fourteenth

Amendment law laid down by this Court in Cleburne.148 The outcome of the Courts analysis in

Garrett, much like that in Kimel, hinged on the nature and scope of the constitutional right at

issue, and on the corresponding standard of review employed by the Court. Employing the

rational basis standard of review, the Court found that the legislative record failed to show a

history or pattern of state discrimination sufficient to justify Congress exercise of its 5

enforcement power.149

Garrettis significant in that it provides a clear example of legislation that unconstitutionally

redefines or enlarges upon the underlying substantive right(s) at issue.150 The Court noted that,

[W]hereas it would be entirely rational (and therefore constitutional) for a state employer to

conserve scarce financial resources by hiring employees who are able to use existing facilities,

the ADA requires employers to mak[e] existing facilities used by employees readily accessible

to and usable by individuals with disabilities.151 This represents an enlargement of the

underlying constitutional rights at issue in that it overturns the rule enunciated in Cleburne that

144Id. at 368.145Id. at 357.146 42 U.S.C. 12111-12117 (1990).147See Garrett, 531 U.S. at 374.148Id. at 374.149Id. at 370.150Id. at 372-73.151Id. at 372.

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the Fourteenth Amendment does not require the States to make special accommodations for the

disabled, as long as there is a rational basis for their failure to do so.152

The Court went on to explain that, even though Title I contains an exception to the newly-

created duty to accommodate the disabled where the employer can demonstrate that doing so

would create an undue hardship, the duty to accommodate, [F]ar exceeds what is

constitutionally required in that it makes unlawful a range of alternative responses that would be

reasonable but would fall short of imposing an undue burden upon the employer.153Thus, Title

I represented an unconstitutional exercise of Congress 5 enforcement power because it

enlarged upon the underlying constitutional rights at issue, even though it also contained an

exception in cases of undue hardship. Garrett, then, stands for the proposition that appropriate

5 legislation must be purely remedial or preventive in nature. That such legislation contains an

exception to the general rule is no excuse where that general rule represents an unconstitutional

enlargement of the underlying rights at issue.

Eldred v. Ashcroft154 is notable in that the holding limits the applicability of congruence and

proportionality analysis to Congressional legislation enacted pursuant to its 5 enforcement

power.155 Justice Ginsburg stated that congruence and proportionality analysis, [D]oes not hold

sway for judicial review of legislation enacted, as copyright laws are, pursuant to Article I

authorization.156 Thus, proper application of congruence and proportionality analysis is limited

to cases in which the Court is examining the constitutionality of challenged 5 legislation.

152 Bd. of Tr. of Univ. of Ala. v. Garrett, 531 U.S. 356, 367 (2001).153Id. at 372.154 Eldred v. Ashcroft, 537 U.S. 186 (2003).155Id. at 218.156Id. at 218.

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InNevada Dept. of Human Resources v. Hibbs,157 the Court held that Congress enactment of

the family care provisions of the Family Medical Leave Act (hereinafter FMLA)158 was

justified by a legislative record demonstrating significant evidence of a long and extensive

history of sex discrimination with respect to the administration of leave benefits by the States. 159

In contrast to the classifications at issue in Kimel, and Garrett, the state classification at issue in

Hibbs, gender, is considered to be quasi-suspect, thus necessitating the application of a more

stringent, heightened scrutiny standard of review. Because this standard of review is more

demanding, it was easier for Congress to demonstrate a pattern of unconstitutional state

violations,

160

because fewer of the state actions comprising that pattern were able to withstand

heightened scrutiny. It was not enough that gender-based classifications be rationally related to a

legitimate state interest. Rather, such classifications had to be substantially related to an

important government objective. The natural result of applying heightened scrutiny to the

legislative record was for more of the state actions used by Congress to justify enactment of the

FMLA to fall outside the ambit of constitutionally permissible, gender-based classification.

Moreover, the Court found the FMLA to be, [N]arrowly targeted at the fault line between

work and family--precisely where sex-based overgeneralization has been and remains strongest--

and affects only one aspect of the employment relationship.161The Court found significant the

fact that Congress placed a number of limitations on the scope of the FMLA. 162 By way of

example, the Court noted that:

[T]he FMLA requires only unpaid leave . . . applies only to employees who haveworked for the employer for at least one year and provided 1,250 hours of service

within the last 12 months . . . and does not apply to employees in high-ranking or

157 Nev. Dept. of Human Res. v. Hibbs, 538 U.S. 721 (2003).158 29 U.S.C. 2612(a)(1)(C) (1993).159See Hibbs, 538 U.S. at 729-35.160Id. at 736.161Id. at 738.162Id. at 738.

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sensitive positions, including state elected officials, their staffs, and appointed

policymakers.163

Significantly, the cause of action under the FMLA is a limited one.164Recoverable damages are

both defined and measured by actual monetary losses, and the accrual period for backpay is

limited to the FMLAs two year statue of limitations.165 Thus, the FMLA is a narrowly tailored

legislative response to a history and pattern of unconstitutional state discrimination borne out by

the legislative record.

In all of these cases, the Court properly applied congruence and proportionality analysis.

Interestingly, there is little evidence of a progressive diminution of the importance of the various

factors to the Court that it considers in applying this analysis to be found in this series of cases,

with the possible exception of the dissent inHibbs.166

In this regard, then, Tennessee v. Lane represents an anomalous holding in which the Court,

while purporting to adhere to the strictures of congruence and proportionality analysis, actually

substituted it own judgment in order to reach a result in line with its own policy preferences. This

was achieved by manipulating the elements of congruence and proportionality analysis to yield

the desired result. This was possible because the test, in its current form, is sufficiently malleable

to allow for judicial manipulation. That is not to say that it is not a workable test. The line of

cases from Boerne to Hibbs illustrates that it is, and that it is capable of yielding consistent

results when properly applied. Nor is it to suggest that it should be so precisely delineated as to

require a quantifiably measurable degree of congruence and proportionality between the

legislative record and the legislative remedy. Such statistical exactitude is contrary to the very

163Id. at 739.164Id. at 740.165 Nev. Dept. of Human Res. v. Hibbs, 538 U.S. 721, 740 (2003).166Id. at 745 (J. Kennedy, dissenting) (concluding that the Court was unable to show a Congressional record of

unlawful state discrimination which warrants the remedy of allowing private suits against the States, and that the

federal remedy is not, in fact, a remedy, but a benefits program).

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nature of judicial deliberation, and would unnecessarily hamper judges ability to judge 5

legislation on the merits, taking into account the underlying circumstances of each case.

A brief examination of the Courts rationale in Lane will illustrate the manner in which that

Court manipulated its analysis, and the underlying facts of the case, to arrive at the result it

desired. It will also reveal the weaknesses that inhere in the analysis. A proper understanding of

those weaknesses will form the basis for formulating a proper solution.

PART IV: MISAPPLYING THE ANALYSIS INLANE

In Lane, the Court upheld Title II of the ADA as an appropriate, and thus constitutional

exercise of Congress 5 enforcement power. It arrived at this result by: (1) construing the scope

of the constitutional rights at issue as implicating several fundamental rights, most notably

those rights protected by the Due Process Clause, that demanded application of a more stringent

standard of review;167 (2) characterizing the right of access to the courts, one of the rights

protected by the Due Process Clause, as a type of state service or program, thus bringing it

within the competency of Title II;168 (3) finding relevant to its inquiry a broad array of state

discrimination against the disabled, including discrimination in the areas of voting, marriage,

jury duty, unjustified commitment to institutions, abuse and neglect of the disabled in mental

hospitals, irrational discrimination in zoning decisions, in the penal system, and in the

administration of justice;169and (4) examining the propriety of the legislation as it applies to one

category of rights, rather than as an undifferentiated whole.170

The Court properly construed the scope of the constitutional rights at issue as including,

among others, those protected by the Due Process Clause. That Title II sought to protect such a

broad array of rights meant that its enactment would have to be supported by a more extensive

167 Tenn. v. Lane, 541 U.S. 509, 522-23 (2004).168Id. at 524.169Id. at 524-25.170Id. at 530-31.

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evidentiary record of state discrimination against the disabled. The propriety of 5 legislation is

reviewed in light of the historical record.171

The Courts examination of the legislative record was flawed for several reasons. First, much

of the discrimination cited by the Court was not state discrimination, 172 and unconstitutional state

action is a necessary prerequisite to appropriate 5 legislation.173 Second, by focusing solely on

those rights protected by the Due Process Clause, to the exclusion of all of the others protected

by Title II, the Court rendered much of the evidence in the record irrelevant. This was because

much of that evidence did not pertain to Due Process Rights. Therefore, the legislative record

was insufficient to justify Congress enactment of the broad provisions of Title II. The Courts

reliance on largely irrelevant evidence enabled it to uphold Title II in spite of its lack of

congruence or proportionality. The Courts misapprehension of the nature and relevance of the

evidentiary record represents a misapplication of the second prong of the analysis. This,

naturally, affected the third prong.

As a result of this as-applied analysis, in which it viewed the underlying legislative record,

and the propriety of the legislative remedy, through the narrow prism of just one category of

rights, rather than as a whole, the Court misconstrued that remedy as being congruent and

proportional to the record. Ignoring the sweeping breadth of Title II, the Court, [C]onclude[d]

that Title II, as it applies to the class of cases implicating the fundamental right of access to the

courts, constitutes a valid exercise of Congress' 5 authority to enforce the guarantees of the

Fourteenth Amendment.174 Implicit in this holding is the fact that the constitutionality of Title

II, as it applies to other classes of cases implicating other rights protected by its provisions, has

171 S. Carolina v. Katzenbach, 383 U.S. 301, 308 (1966).172See Lane, 541 U.S. at 541.173 The Civil Rights Cases, 109 U.S. 3, 13 (1883).

174 Tenn. v. Lane, 541 U.S. 509, 533-34 (2004).

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yet to be determined. Essentially, the Court is saying is that, while it is possible that Title II, as a

whole, is an unconstitutional exercise of Congress 5 enforcement power, it is constitutional

within the narrow context of cases implicating Due Process Rights. Applying this logic, the

constitutionality of 5 legislation depends, in large part, on the underlying circumstances of the

case in which it is challenged, rather than on the relationship between the legislative record and

the legislative remedy. Clearly, this line of reasoning does not comport with the Courts prior

rulings applying congruence and proportionality analysis.

In his dissent in Lane, Justice Scalia argues that congruence and proportionalitys

malleability is such that it constitutes, [A]a standing invitation to judicial arbitrariness and

policy-driven decisionmaking [sic],175 and that it should therefore be discarded in favor of a

more objective test.176 However, Justice Scalia fails to offer a suitable alternative. Rather, he

states that he would apply the more permissive, necessary and proper test used in McCulloch

v. Maryland177 to 5 legislation, [D]esigned to remedy racial discrimination by the States.178

He goes on to state that he will continue to require that prophylactic legislation be geographically

limited to those States found to have engaged in such discrimination.179Finally, he states that he

will not subject 5 legislation that is not directed at racial discrimination to congruence and

proportionality analysis, relying instead on a broad, but not unlimited reading of the term

enforcement as it is understood in the context of the Courts Fourteenth Amendment

jurisprudence.180 This is no solution at all. Dispensing with a test that has proven to be workable

175Id. at 557-58.176Id. at 558.177 MCulloch v. State, 17 U.S. 316, 421 (1819) (stating, Let the end be legitimate, let it be within the scope of the

constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited,

but consist with the letter and spirit of the constitution, are constitutional.).178See Lane, 541 U.S. at 564.179Id. at 564.180Id. at 565.

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in a number of cases simply because it fails to yield consistent results in one seems to be more of

a knee-jerk reaction than a well-reasoned response.

Congruence and proportionality can be made to be a workable test. Its susceptibility to

judicial manipulation in order to implement predetermined policy preferences can be eradicated

by restructuring the test so as to incorporate those elements upon which the Court has already

relied in its 5 jurisprudence. The Court must also ensure that its own review of the legislative

record is proportional to the legislative remedy. In other words, the Courts application of

congruence and proportionality analysis must itself be congruent and proportional. This can only

be achieved by dispensing with the as-applied analysis used in Lane, and judging the

legislative remedy as an undifferentiated whole.

PART V: CONCLUSION

The Courts novel application of congruence and proportionality analysis in Lane revealed

the tests inherent weaknesses. While the basic structure of the test is sound, its individual

elements must be more clearly delineated. Specifically, the Court must be able to consistently

differentiate between State and non-State actors, and between State and non-State discrimination,

with a greater degree of precision than it did in Lane. The Courts failure to do so yielded results

inconsistent with prior applications of this analysis. Additionally, the Court must clearly define

what it means by congruence and proportionality. Delineating these terms with sufficient clarity

to preclude their future misapplication is the key to improving the utility of the analysis.

The first prong of congruence and proportionality analysis, determining the precise scope of

the constitutional right at issue,181 is fundamentally sound. All that is required of the Court is that

181 Bd. of Tr. of Univ. of Ala. v. Garrett, 531 U.S. 356, 365 (2001).

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it properly construe the right or rights at issue.182 This entails nothing more involved than,

[I]dentify[ing] the Fourteenth Amendment evil or wrong that Congress intended to

remedy . . . .183 This evil or wrong must have been perpetrated by the States.184 State action

remains a necessary prerequisite to an appropriate exercise of Congress 5 enforcement

power.185

In spite of this last requirement, the majority inLane considered much of the evidence in the

legislative record to be indicative of a history and pattern of unconstitutional discrimination

against the disabled, even though much of it was not perpetrated by the States.186 The problem

here is not so much a reflection of an inherent flaw in the second prong of the analysis,

examining [W]hether Congress [has] identified a history and pattern of unconstitutional . . .

discrimination by the States,187 as it is a reflection of the Courts failure to adhere to its own

precedents. By improperly construing the Fourteenth Amendment evil to be remedied as

including numerous instances of what could best be termed non-State, or incidental

discrimination, the Court accorded much of the evidence in the record undue consideration. This

result could have been avoided had the Court either: (a) followed precedent; or (b) had at its

disposal a working definition of what constitutes non-State, or incidental discrimination.

Non-State, or incidental discrimination could be defined as, discrimination, the effects

of which are not the result, directly or indirectly, of any objectively demonstrable policy of

[A]ny State or local government . . . any department, agency, special purpose district, or other

182 S. Carolina v. Katzenbach, 383 U.S. 301, 308 (1966).183 Fla. Prepaid Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S. 627, 639 (1999).184 The Civil Rights Cases, 109 U.S. 3, 13 (1883).185Id. at 13.186 Tenn. v. Lane, 541 U.S. 509, 541 (2004).187 Bd. of Tr. of Univ. of Ala. v. Garrett, 531 U.S. 356, 368 (2001).

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instrumentality of a State or States or local government . . . .188 This definition, which borrows

heavily from the language of the ADA, serves two important purposes. First, it excludes, by

negative implication, those entities that do not fall within the definition of a State or state actor.

Thus, any actor that is not a State or local government, or a department, agency, special purpose

district, or other instrumentality of a State or local government is, by definition, a private actor

whose actions may not be considered for evidentiary purposes when examining the legislative

record.

Second, the requirement that the policy be objectively demonstrable in cases involving State

discrimination would protect the States by undercutting the Courts, and Congress, ability to

consider such ethereal notions as architectural discrimination189 in construing a history and

pattern of discrimination. It would be difficult, indeed, to show the existence of any policy basis

behind a States decision to equip its buildings with stairs, or to install thresholds on the doors.

Requiring such a showing would limit the States liability by further clarifying those actions

which could be considered as part of the evidentiary record. Moreover, this requirement retains

the requisite degree of flexibility necessary to evaluate State policy using different standards of

review, depending upon the nature of the underlying constitutional right at issue. This is

achieved by leaving out any sort of rationality standard. The only requirement is that the policy

be objectively demonstrable. It is left to the Court to apply the appropriate standard of review.

The final prong of the analysis is the most problematic. What is meant by congruence and

proportionality remains somewhat ephemeral. This is due, in part, to a lack of definitional clarity.

Another contributing factor is the apparent tendency to lump the two terms together into one

undifferentiated whole. In Lane, the qualitative aspects of congruence were subsumed by an

188 42 U.S.C. 12131(1) (1990).189 Tenn. v. Lane, 541 U.S. 509, 527 (2004).

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inordinate focus on the quantitative aspects of proportionality. That is, the Court seems to have

focused almost exclusively on the degree of proportionality between the injury and the remedy.

The Courts failure to address the lack of congruence between the two, that is the qualitative

similarities between the injury and the remedy, facilitated the application of the majoritys as-

applied analysis.

Historically, the Court has treated congruence as referring to a qualitative relationship

between two things.190 Congruence, then, describes the degree of similarity, or the lack thereof,

between two things. That the qualitative aspects of this relationship seem to have been lost on the

Court in Lane is illustrated by the majoritys failure to recognize that its as-applied analysis

rendered much of the evidence in the record irrelevant. The Court evaluated the proportionality

of Title II by weighing evidence of alleged constitutional violations of one type against a

legislative remedy designed to remedy violations of another type. A proper definition of

congruence, focusing on the qualitative aspects of the relationship between the injury and the

remedy, could have prevented this misapplication of the analysis.

Congruence should be defined as, the qualitative relationship between the Fourteenth

Amendment injury to be prevented or remedied, and the legislative provisions adopted for that

purpose. To be congruent, legislative provisions designed to protect one category of rights must

be supported by evidence in the legislative record of a history and pattern of discrimination

which infringes on that same category of rights. Evidence of discrimination infringing on a

category of rights different from that at which the legislation is directed shall not be considered

in construing the congruence of legislation enacted pursuant to Congress 5 enforcement

power under the Fourteenth Amendment. UsingLane as an example, under this definition the

congruence of legislation aimed at protecting rights implicating the Due Process Clause could

190 Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 224 (1995).

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only be substantiated by evidence in the legislative record of unconstitutional infringement of

rights implicating the Due Process Clause. Such a clear and unambiguous definition would have

prevented the majority in Lane from finding much of the evidence in the legislative record

relevant. Demanding an objectively demonstrable degree of similarity between the injury and the

remedy will result in what may be termed a proportional application of the final prong of the

analysis, in that the proportionality is being construed in a qualitative framework that is not

susceptible to judicial manipulation or misinterpretation. That is, the empirical quality of the

analysis is directly proportional to the degree of similarity between the two factors being

weighed.

Lastly, the Court should incorporate those factors it has already considered in construing the

proportionality of challenged 5 legislation into a revised form of the analysis. These include:

(1) the reach of the statute in terms of its effect on various levels of government;191 (2) the scope

of its applicability in terms of which laws it affects;192 (3) whether the statute applies

prospectively, retrospectively, or both;193 (4) whether the statue has a termination date, or a

termination mechanism whereby it could be phased out once its intended objective has been

achieved;194 and (5) whether there are any geographical limitations on the statute.195

Incorporating these elements into a formal, five-step analysis would ensure their consistent

application in future cases.

In conclusion, it is imperative that the Court devise a more objective means of evaluating

the propriety of remedial legislation enacted p

The Inadequacy of Congruence and Proportionality Analysis

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