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Less Than Meets The Eye: Anti-Discrimination and the Development of Section 5 Enforcement and Eleventh Amendment Abrogation Law Since City of Boerne v. Flores
38 HASTINGS CONST. L. QUART. (2011)
  • Justin Schwartz
Abstract

The conventional wisdom is that the Supreme Court's interpretation of the Eleventh Amendment since City of Boerne has raised the bar for Congress to pass anti discrimination legislation and made it far more difficult for plaintiffs to sue the states and state agencies. I show, by close analysis of the Court's case law on state sovereign immunity and Congress' Section 5 power to abrogate that immunity, that this is a misreading.

As the jurisprudence developed from Boerne, Kimel (age discrimination) and Garrett (disability discrimination in employment) to Hibbs (sex discrimination) and Lane (disability discrimination in public accommodations), the Court has availed itself of a variety of resources that have had the effect of making it easier than is usually thought for Congress to pass anti-discrimination legislation over the Eleventh Amendment immunity or a plaintiff to prosecute a case against the state using such legislation. The Court has adopted an "inverse relation" principle, heightening the intensity of review of whether Congress has legitimately used its Section 5 enforcement powers when the standard of review for the underlying right is lower, e.g., rational basis, and vice versa, lowering the intensity of that review when the standard of review for the underlying right is heightened.

This has allowed the the Court to reframe cases as involving heightened review, thus easier abrogation. Combined with an increasingly relaxed attitude over time about what evidence the Court will allow to show the existence of a constitutional violation that triggers Section 5, necessary for abrogation, the upshot is that while the Boerne line of Eleventh Amendment cases as somewhat heightened the standard for a private suit against the state, it has also laid out a road map of how to meet that standard in a way that is not nearly as burdensome as the earlier cases might have suggested.

Keywords
  • Eleventh Amendment,
  • State Sovereign Immunity,
  • Section 5 Enforcement Powers,
  • Federal Jurisdiction,
  • Congressional Power
Publication Date
Winter 2011
Citation Information
Justin Schwartz. "Less Than Meets The Eye: Anti-Discrimination and the Development of Section 5 Enforcement and Eleventh Amendment Abrogation Law Since City of Boerne v. Flores" 38 HASTINGS CONST. L. QUART. Vol. 38 (2011)
Available at: http://works.bepress.com/justin_schwartz/2/