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Last Term, the Supreme Court sent ominous signals about the future of federal antidiscrimination law. The Court twice ruled that Congress lacked power under Section 5 of the Fourteenth Amendment to enact laws prohibiting discrimination. In Kimel v. Florida Board of Regents, the Court concluded that Section 5 did not give Congress the power to abrogate state Eleventh Amendment immunity for suits under the Age Discrimination in Employment Act of 1967, and in United States v. Morrison, the Court held that Congress was without power under either the Commerce Clause or Section 5 to enact a provision of the Violence Against Women Act of 1994 (VAWA) creating a federal civil remedy for victims of gender-motivated violence.
Both Kimel and Morrison are written in forceful and broad strokes that threaten large stretches of congressional authority under Section 5. Yet the Court's Section 5 holdings were rendered without dissent. Although in Kimel there were four Justices prepared to disagree strenuously with the decision's liberal interpretation of Eleventh Amendment immunity, and although in Morrison there were four Justices prepared to disagree strenuously with the decision's restrictive interpretation of federal Commerce Clause power, not a single Justice in either case was ready to vote to sustain congressional power under Section 5, even as Justice Breyer identified key deficiencies in Morrison's justification for its Section 5 holding.
This silence is remarkable, yet explicable. Since the New Deal, the Commerce Clause has shaped core understandings of the contours of national power. In the early 1960s, the Supreme Court took the consequential step of upholding the public accommodations provisions of the Civil Rights Act of 1964 on Commerce Clause grounds alone, despite the fact that Congress had asserted authority to enact the legislation under both the Commerce Clause and Section 5 of the Fourteenth Amendment. We have ever since grown habituated to the use of Commerce Clause power to sustain federal antidiscrimination law, never definitively resolving the shape and reach of Section 5 authority.
What might be called the "jurisdictional" compromise of the 1960s was forged at a time when the Commerce Clause seemed to offer boundless support for Congress's authority to enact antidiscrimination laws. But this no longer appears to be the case. Given the Court's current determination to impose limits on Congress's authority to enact antidiscrimination legislation under the Commerce Clause, the time has come to examine thoroughly, at long last, a question that the Court has now rendered inescapable: the extent of Congress's power to enact antidiscrimination legislation under Section 5 of the Fourteenth Amendment.
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