The Enforcement Clause

The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

—James C. Phillips

Introduction

Section 5 of the Fourteenth Amendment, also known as the Enforcement Clause, grants to Congress the power to pass legislation directed at effectuating the provisions of Sections 1 through 4 of the amendment. Like the enforcement clauses of the Thirteenth and Fifteenth Amendments, Section 5 constitutes a delegated power granted to Congress in addition to those listed in Article I, Section 8. The scope of what the clause authorizes turns on the meaning of “enforce” and “appropriate.” Earlier decisions suggested that Congress might be able to define and even expand the scope of the rights protected by the Fourteenth Amendment, but the Supreme Court has since rejected that interpretation.

Congress’s Delegated Powers

Article I, Section 8 of the Constitution grants Congress a host of enumerated powers, such as the express powers to lay and collect taxes, regulate commerce, and declare war, but Congress also has the power “[t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.” (See Essay Nos. 39, 44, 56, and 66.) McCulloch v. Maryland (1819) held that the word “necessary” can mean needful, requisite, useful, conducive, or convenient.¹ These authorities are known as implied powers because they are not expressly enumerated. McCulloch gave Congress a broad sweep of implied powers to enforce the other powers enumerated in Article I, Section 8. Under McCulloch, Congress could do whatever is “convenient” in order to execute its other enumerated powers.

Section 1 of the Thirteenth Amendment, ratified in 1865, abolished slavery, and Section 2 granted Congress the “power to enforce this [amendment] by appropriate legislation.” (See Essay No. 191.) This provision delegated to Congress new implied powers, and Congress did not think that authority was limited to the actual abolition of slavery. The Civil Rights Act of 1866 invoked Congress’s powers under Section 2 of the Thirteenth Amendment. This statute prohibited the notorious “Black Codes” that denied blacks certain rights afforded to whites, including the power to make and enforce contracts.² However, there were some doubts about whether Section 2 could support this sweeping law. One of the Fourteenth Amendment’s leading purposes was to ensure that Congress had adequate power to adopt the Civil Rights Act and future similar laws.

Adoption of Section 5

In January 1866, Representative John Bingham of Ohio provided an early glimpse of what became Section 5. He laid out his proposal for a constitutional amendment that would correct the defects of Article IV’s Privileges and Immunities Clause by “provid[ing] for the efficient enforcement, by law, of these ‘equal rights of every man.’”³ If adopted, Bingham’s proposal would ensure that Congress had the authority to enforce it.⁴

In February 1866, the Joint Committee on Reconstruction proposed another forerunner to Section 5: “The Congress shall have power to make all laws which shall be necessary and proper to secure to the citizens of each state all privileges and immunities of citizens in the several states (Art. 4, Sec. 2); and to all persons in the several States equal protection in the rights of life, liberty and property (Fifth Amendment).”⁵ This proposed amendment adopted the phrase “necessary and proper” that appeared in Article I based on a proposal by Bingham.⁶ Critics opposed this provision on federalism grounds,⁷ and the Joint Committee later changed this language to “appropriate” in the proposed Fourteenth Amendment. During the debates, Representative Thaddeus Stevens of Pennsylvania argued that Sections 1 and 5 working in tandem would empower Congress to rectify state laws that were “unjust.”⁸

Section 1 of the Fourteenth Amendment includes the Citizenship Clause, Privileges or Immunities Clause, Due Process Clause, and Equal Protection Clause. (See Essay Nos. 192–196.) Section 5 grants Congress “the power to enforce, by appropriate legislation, the provisions” in Section 1.

The text of Section 5 raises several questions. For example, would the courts as well as Congress enforce the Fourteenth Amendment? The Reconstruction Congress may not have trusted the courts and likely anticipated that Congress would be the principal enforcer of the amendment, but the text and history do not support this Congress-only reading.9 Did Congress have the power both to define the substantive rights protected by Section 1, such as citizenship’s “privileges or immunities,” and to enforce them under Section 5? There is no evidence that those who framed Section 5 had this understanding.⁹ Some thought Section 5 would give Congress the power to remedy violations of the Fourteenth Amendment but not to expand or contract the rights.¹⁰

Early Judicial Precedent

The U.S. Supreme Court interpreted Section 5 in a few early precedents. Ex Parte Virginia (1880) ruled that Congress can use its Section 5 authority to prohibit states from excluding African Americans from juries. Such a law was an “appropriate” means of ensuring the equal protection of the laws.¹¹ The Court took a broad reading of what it means for legislation to be appropriate.

In Strauder v. West Virginia (1880), the Court decided a case in which a black man had been indicted for murder. West Virginia law permitted only white men to serve on juries. Under federal law, a state court case that deprived a person of a constitutional right could be removed to federal court. This removal statute was authorized by Section 5. Strauder argued that a trial with a segregated jury violated the Fourteenth Amendment and tried to remove his case to federal court. The U.S. Supreme Court found that West Virginia’s jury law violated the Equal Protection Clause and that the removal statute could be used to remedy this violation of the Fourteenth Amendment. In other words, Congress had the implied power to enact “appropriate legislation” to “enforce” the “equal protection of the Laws.”

Three years later, the Court decided the Civil Rights Cases (1883).¹² This decision held that the prohibitions of Section 1 reached only actions committed by the state or its agents, which meant that Congress lacked the power to criminalize the discriminatory actions of private individuals. Thus, Section 5 gives Congress no authority to legislate with respect to the private sector. This principle became known as the state-action doctrine and still prevails today. (See Essay No. 193.)

Modern Judicial Precedent

Katzenbach v. Morgan (1966) held that Section 5 gives Congress the power to “remedy or prevent unconstitutional actions.”¹³ Katzenbach analogized “appropriate” in Section 5 to “necessary and proper” as interpreted by McCulloch v. Maryland.¹⁴ This reading would give Congress a very broad sweep of power. Katzenbach also suggested that Section 5 allows Congress to expand the meaning of Section 1.

Three decades later, the Court expressly rejected this suggestion. City of Boerne v. Flores (1997) considered the constitutionality of the Religious Freedom Restoration Act (RFRA) as applied to the states. This federal law permitted people to sue states for substantially burdening the free exercise of religion. (See Essay No. 160.) Congress purported to expand the free exercise right as interpreted by the Supreme Court in Employment Division v. Smith (1990). Boerne, however, held that Congress lacked this power. The Court ruled that Congress can use its Section 5 powers only to “remedy” constitutional violations of Section 1 as interpreted by the Court; Congress cannot change the scope of the amendment. That holding has been both heavily criticized and defended in scholarship on originalist grounds.16 The Boerne Court also declared that there must be a “proportionality” and “congruence” between the statute “and the legitimate end to be achieved.” The Court found that RFRA failed this test because Congress did not show evidence of a harm equal to the measure it enacted.17 Boerne rejected the suggestion that Section 5 should be read as the Necessary and Proper Clause is read. The test for the former provision is far more demanding.

The Court would apply the Boerne test in several cases. Could Congress use its Section 5 powers to permit a suit against a state for violating the Americans with Disabilities Act? Board of Trustees of the University of Alabama v. Garrett (2001) held that the answer was no.¹⁵ Section 5 only grants Congress authority to ban irrational state employment discrimination against the disabled, and because the disabled are not “a suspect classification” under the Equal Protection Clause, state discrimination against them is not “irrational.” However, Tennessee v. Lane (2004) permitted suits against the states when a court denied access to disabled people.¹⁶ United States v. Morrison (2000) considered the constitutionality of the Violence Against Women Act (VAWA), which provided federal remedies for women who suffered private acts of gender-motivated violence.¹⁷ The Court ruled that this statute exceeded Congress’s Section 5 authority.

Congress does have another pretext for enacting enforcement legislation. Oregon v. Mitchell (1970) recognized that Congress may prophylactically ban state actions that it has found to be generally violative of the Fourteenth Amendment even if they might not be in some instances.¹⁸ For example, a state could impose a literacy test for voting in a constitutional manner. However, Congress determined that these tests were so commonly abused that they should be banned across the board, and the Court upheld this ban. Critically, however, this federal law was aimed at preventing actual and potential violations of the Constitution; it did not change the Constitution’s substantive meaning and guarantees.

Open Questions

• To what degree can Congress invoke its Section 5 powers to alter the original Constitution? The Court has allowed Congress, acting under Section 5, to abrogate state sovereign immunity under the Eleventh Amendment.¹⁹ What other provisions of the Constitution could Congress waive?

1. 17 U.S. 316 (1819). ↩︎
2. Michael W. McConnell, Originalism and the Desegregation Decisions, 81 Va. L. Rev. 947, 957–58 (1995). ↩︎
3. Cong. Globe, 39th Cong., 1st Sess. 157–58 (1866). ↩︎
4. Earl M. Maltz, The Fourteenth Amendment as a Reconstruction Measure, at 19 (forthcoming Tulsa L. Rev.). ↩︎
5. Benjamin B. Kendrick, The Journal of the Joint Committee of Fifteen on Reconstruction 60–61 (1914). ↩︎
6. Jaocobus tenBroek, The Antislavery Origins of the Fourteenth Amendment 187–90 (1951); Maltz, supra at 36. ↩︎
7. Maltz, supra at 37–40. ↩︎
8. Maltz, supra at 62. ↩︎
9. McConnell, supra at 1110–15. ↩︎
10. Id. at 1115–17. ↩︎
11. 100 U.S. 339 (1880). ↩︎
12. 109 U.S. 3 (1833). ↩︎
13. 384 U.S. 641 (1966). ↩︎
14. Katzenbach, 384 U.S. at 650 (citing McCulloch v. Maryland, 17 U.S. 316, 421 (1819)); Ex parte Va., 100 U.S. 339, 345–46 (1879). ↩︎
15. 531 U.S. 356 (2001). ↩︎
16. 541 U.S. 509. ↩︎
17. 529 U.S. 598, 627 (2000). ↩︎
18. 400 U.S. 112 (1970). ↩︎
19. Nev. Dep’t of Human Res. v. Hibbs, 538 U.S. 721 (2003); Tennessee v. Lane, 541 U.S. 509 (2004); United States v. Georgia, 546 U.S. 151 (2006). ↩︎