Amendment 14 — Modern Doctrine On Enforcement Clause

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Fourteenth Amendment , Section 5:

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

City of Boerne v. Flores[1](https://www.law.cornell.edu/constitution-conan/amendment-14/modern-doctrine-on-enforcement-clause#fn1amd14 " 521 U.S. 507 (1997). ") illustrates that the Court will not always defer to Congress’s determination as to what legislation is appropriate to “enforce” the provisions of the Fourteenth Amendment . In Flores, the Court held that the Religious Freedom Restoration Act,[2](https://www.law.cornell.edu/constitution-conan/amendment-14/modern-doctrine-on-enforcement-clause#fn2amd14 " Pub. L. No.

, 107 Stat. 1488 (codified as amended at 42 U.S.C. §§ 2000bb et seq.). ")

103-141

, 107 Stat. 1488 (codified as amended at 42 U.S.C. §§ 2000bb et seq.). which expressly overturned the Court’s narrowing of religious protections under Employment Division v. Smith,[3](https://www.law.cornell.edu/constitution-conan/amendment-14/modern-doctrine-on-enforcement-clause#fn3amd14 " 494 U.S. 872 (1990). ") exceeded congressional power under Section of the Fourteenth Amendment . Although the Court allowed that Congress’s power to legislate to deter or remedy constitutional violations may include prohibitions on conduct that is not itself unconstitutional, the Court also held that there must be “a congruence and proportionality” between the means adopted and the injury to be remedied.[4](https://www.law.cornell.edu/constitution-conan/amendment-14/modern-doctrine-on-enforcement-clause#fn4amd14 " 521 U.S. at 533. ") Unlike the pervasive suppression of the African American vote in the South that led to the passage of the Voting Rights Act, there was no similar history of religious persecution constituting an “egregious predicate” for the far-reaching provision of the Religious Freedom Restoration Act. Also, unlike the Voting Rights Act, the Religious Freedom Restoration Act contained no geographic restrictions or termination dates.[5](https://www.law.cornell.edu/constitution-conan/amendment-14/modern-doctrine-on-enforcement-clause#fn5amd14 " Id. at 532–33. The Court found that the Religious Freedom Restoration Act was “so far out of proportion to a supposed remedial or preventive object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior.” Id. ")

A reinvigorated Eleventh Amendment jurisprudence has led to a spate of decisions applying the principles the Court set forth in Boerne, as litigants precluded from arguing that a state’s sovereign immunity has been abrogated under Article I congressional powers[6](https://www.law.cornell.edu/constitution-conan/amendment-14/modern-doctrine-on-enforcement-clause#fn6amd14 " Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996) (Article I powers may not be used to abrogate a state’s Eleventh Amendment immunity, but Fitzpatrick v. Bitzer, 427 U.S. 445 (1976), holding that Congress may abrogate Eleventh Amendment immunity in exercise of Fourteenth Amendment enforcement power, remains good law). ") seek alternative legislative authority in Section 5. For instance, in Florida Prepaid Postsecondary Educ. Expense Board v. College Savings Bank,[7](https://www.law.cornell.edu/constitution-conan/amendment-14/modern-doctrine-on-enforcement-clause#fn7amd14 " 527 U.S. 627 (1999). ") a bank that had patented a financial method designed to guarantee investors sufficient funds to cover the costs of college tuition sued the State of Florida for administering a similar program, arguing that the state’s sovereign immunity had been abrogated by Congress in exercise of its Fourteenth Amendment enforcement power. The Court, however, held that application of the federal patent law to the states was not properly tailored to remedy or prevent due process violations. The Court noted that Congress had identified no pattern of patent infringement by the states, nor a systematic denial of state remedy for such violations such as would constitute a deprivation of property without due process.[8](https://www.law.cornell.edu/constitution-conan/amendment-14/modern-doctrine-on-enforcement-clause#fn8amd14 " Id. at 639–46; see also Allen v. Cooper, 140 S. Ct. 994, 1005–07 (2020) (holding that evidence of unconstitutional state-copyright infringement was not materially different than the record for state-patent infringement at issue in Florida Prepaid); cf. Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 673–75 (1999) (concluding that Congress, by subjecting states to suits for false advertisement, exceeded its powers under the Fourteenth Amendment because the statute did not implicate property interests protected by the Due Process Clause). ")

A similar result was reached regarding the application of the Age Discrimination in Employment Act (ADEA) to state agencies in Kimel v. Florida Bd. of Regents.[9](https://www.law.cornell.edu/constitution-conan/amendment-14/modern-doctrine-on-enforcement-clause#fn9amd14 " 528 U.S. 62 (2000). Again, the issue of the Congress’s power under Section 5 of the Fourteenth Amendment arose because sovereign immunity prevents private actions against states from being authorized under Article I powers such as the Commerce Clause. ") In determining that the Act did not meet the “congruence and proportionality” test, the Court focused not just on whether state agencies had engaged in age discrimination, but on whether states had engaged in unconstitutional age discrimination. This was a particularly difficult test to meet, as the Court has generally rejected constitutional challenges to age discrimination by states, finding that there is a rational basis for states to use age as a proxy for other qualities, abilities, and characteristics.[10](https://www.law.cornell.edu/constitution-conan/amendment-14/modern-doctrine-on-enforcement-clause#fn10amd14 " See, e.g., Gregory v. Ashcroft, 501 U.S. 452 (1991) (applying rational basis test to uphold mandatory retirement age of seventy for state judges). ") Noting the lack of a sufficient legislative record establishing broad and unconstitutional state discrimination based on age, the Court found that the ADEA, as applied to the states, was “so out of proportion to a supposed remedial or preventive object that it cannot be understood as responsive to or designed to prevent unconstitutional behavior.” [11](https://www.law.cornell.edu/constitution-conan/amendment-14/modern-doctrine-on-enforcement-clause#fn11amd14 " 528 U.S. at 86, quoting City of Boerne, 521 U.S. at 532. ")

Despite what was considered by many to be a better developed legislative record, the Court in Board of Trustees of Univ. of Ala. v. Garrett[12](https://www.law.cornell.edu/constitution-conan/amendment-14/modern-doctrine-on-enforcement-clause#fn12amd14 " 531 U.S. 356 (2001). ") also rejected the recovery of money damages against states, this time under of the Americans with Disabilities Act of 1990 (ADA).[13](https://www.law.cornell.edu/constitution-conan/amendment-14/modern-doctrine-on-enforcement-clause#fn13amd14 " 42 U.S.C. §§ 12111–12117. ") Title I of the ADA prohibits employers, including states, from “discriminating against a qualified individual with a disability” [14](https://www.law.cornell.edu/constitution-conan/amendment-14/modern-doctrine-on-enforcement-clause#fn14amd14 " 42 U.S.C. § 12112(a). ") and requires employers to “make reasonable accommodations [for] . . . physical or mental limitations . . . . unless [to do so]. . . would impose an undue hardship on the . . . business.” [15](https://www.law.cornell.edu/constitution-conan/amendment-14/modern-doctrine-on-enforcement-clause#fn15amd14 " 42 U.S.C. § 12112(b)(5)(A). ") Although the Court had previously overturned discriminatory legislative classifications based on disability in City of Cleburne v. Cleburne Living Center,[16](https://www.law.cornell.edu/constitution-conan/amendment-14/modern-doctrine-on-enforcement-clause#fn16amd14 " 473 U.S. 432 (1985). ") the Court had held that determinations of when states had violated the Equal Protection Clause in such cases were to be made under the relatively deferential standard of rational basis review. Thus, failure of an employer to provide the kind of “reasonable accommodations” required under the ADA would not generally rise to the level of a violation of the Fourteenth Amendment , and instances of such failures did not qualify as a “history and pattern of unconstitutional employment discrimination.” [17](https://www.law.cornell.edu/constitution-conan/amendment-14/modern-doctrine-on-enforcement-clause#fn17amd14 " 531 U.S. at 368. ") Thus, according to the Court, not only did the legislative history developed by the Congress not establish a pattern of unconstitutional discrimination against the disabled by states,[18](https://www.law.cornell.edu/constitution-conan/amendment-14/modern-doctrine-on-enforcement-clause#fn18amd14 " As Justice Stephen Breyer pointed out in the dissent, however, the Court seemed determined to accord Congress a degree of deference more commensurate with review of an agency action, discounting portions of the legislative history as based on secondary source materials, unsupported by evidence and not relevant to the inquiry at hand. ") but the requirements of the ADA would be out of proportion to the alleged offenses.

The Court’s more recent decisions in this area, however, seem to de-emphasize the need for a substantial legislative record when the class being discriminated against is protected by heightened scrutiny of the government’s action. In Nevada Department of Human Resources v. Hibbs,[19](https://www.law.cornell.edu/constitution-conan/amendment-14/modern-doctrine-on-enforcement-clause#fn19amd14 " 538 U.S. 721 (2003). ") the Court considered the recovery of monetary damages against states under the Family and Medical Leave Act. This Act provides, among other things, that both male and female employees may take up to twelve weeks of unpaid “family care” leave to care for a close relative with a serious health condition. Noting that Section 5 could be used to justify prophylactic legislation, the Court accepted the argument that the Act was intended to prevent gender-based discrimination in the workplace tracing to the historic stereotype that women are the primary caregivers. Congress had documented historical instances of discrimination against women by state governments, and had found that women were provided maternity leave more often than were men.

Although there was a relative absence of proof that states were still engaged in wholesale gender discrimination in employment, the Court distinguished Garrett and Kimel, which had held Congress to a high standard for justifying legislation attempting to remedy classifications subject