Editing Congressional power of enforcement

{{Short description|Aspect of US legal history}}{{More citations needed|date=February 2024}}

A '''Congressional power of enforcement''' is included in a number of amendments to the [[United States Constitution]]. The language "''The [[United States Congress|Congress]] shall have power to enforce this article by appropriate legislation''" is used, with slight variations, in Amendments [[Thirteenth Amendment to the United States Constitution|XIII]], [[Fourteenth Amendment to the United States Constitution|XIV]], [[Fifteenth Amendment to the United States Constitution|XV]], [[Nineteenth Amendment to the United States Constitution|XIX]], [[Twenty-third Amendment to the United States Constitution|XXIII]], [[Twenty-fourth Amendment to the United States Constitution|XXIV]], and [[Twenty-sixth Amendment to the United States Constitution|XXVI]]. 

The variations in the pertinent language are as follows: 

* The [[Fourteenth Amendment to the United States Constitution|Fourteenth Amendment]] states "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."  
* The [[Eighteenth Amendment to the United States Constitution|Eighteenth Amendment]] states "The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation."

==Initial creation and use==
These provisions made their first appearance in the Thirteenth, Fourteenth and Fifteenth Amendments, which were adopted during the [[Reconstruction era of the United States|Reconstruction]] period primarily to abolish [[slavery]] and protect the rights of the newly emancipated [[African-American]]s. The enforcement provisions contained in these amendments extend the powers of Congress originally enumerated in [[United States Constitution/Article One|Article One]], Section 8 of the Constitution, and have the effect of increasing the power of Congress and diminishing that of the individual [[U.S. state|states]]. They led to the "[[Enforcement Acts]]" of 1870 and 1871. Congress had only that power delegated (granted, given) to it by the Constitution.

==Use in the courts==
Interpretation of the Fourteenth Amendment's enforcement provision has been the subject of several important Supreme Court cases, which reflect the tension between the Courts' role of interpreting the Constitution and Congress's power of adopting legislation to enforce specific Constitutional amendments.

Early on, in the ''[[Civil Rights Cases]]'' decided in 1883, the Supreme Court concluded that the Congressional enforcement power in Section 5 of the Fourteenth Amendment did not authorize Congress to use the [[Privileges or Immunities Clause]] of that amendment to ban racial [[discrimination]] in public accommodations operated by private persons, such as inns and theaters. The Court stated that since the Fourteenth Amendment only restricted [[state action (United States constitutional law)|state action]], Congress lacked power under this amendment to forbid discrimination that was not sponsored by the state. This ruling has not been overturned, although in modern times, similar [[civil rights]] legislation has been upheld under Congress's power to regulate [[interstate commerce]] under Article One, Section 8 of the Constitution. See [[Civil Rights Act of 1964]].

In the ''[[Katzenbach v. Morgan]]'' case, decided in 1966, the Supreme Court concluded that Congress can forbid practices that are not themselves unconstitutional, if the law is aimed at preventing or remedying constitutional violations. On that basis, the Court upheld a provision of the [[Voting Rights Act]] that prevented [[U.S. state|states]] from using [[English language]] [[literacy test]]s as qualifications for [[voting]]. The Court decided that the law was a valid exercise of Congress's enforcement power under the [[Equal Protection Clause]] of the Fourteenth Amendment, because it was aimed at remedying state-sponsored [[discrimination]], despite an earlier court finding that a literacy test was not in and of itself a violation of the 14th Amendment.

In 1970, however, in ''[[Oregon v. Mitchell]]'', the Court held that Congress had exceeded its power by attempting to require the states to reduce the [[voting age]] to 18. This led to adoption of the [[United States Constitution/Amendment Twenty-six|Twenty-Sixth Amendment]] to the Constitution in 1971, which provided that the states could not set a minimum voting age higher than 18.

In the 1997 case of ''[[City of Boerne v. Flores]]'', the Court again took a narrow view of the Congressional power of enforcement, striking down a provision of the [[Religious Freedom Restoration Act]] (RFRA) that sought to forbid the states from placing burdens on religious practice in the absence of a compelling state interest in doing so. In enacting RFRA, Congress had sought to overturn the 1988 Supreme Court decision in ''[[Employment Division v. Smith]]'', which had held that the Constitution does not require states to recognize religious exemptions to laws of general applicability. In the ''Boerne'' case, the Supreme Court decided that RFRA overstepped Congress's authority, because the statute was not sufficiently connected to the goal of remedying a constitutional violation, but instead created new rights that are not guaranteed by the Constitution. Some observers have suggested that the Supreme Court saw RFRA as a threat to the Court's institutional power and an incursion on its role as final arbiter of the meaning of the Constitution, because that statute was aimed specifically at overturning the ''Employment Division v. Smith'' decision. However, the effect of ''Boerne'' lasted beyond ''Boerne'' itself. The standard announced in that case—that all legislation enacted under Section 5 of the Fourteenth Amendment must be "congruent and proportional" to the unconstitutional harm it seeks to remedy—has been followed by every post-''Boerne'' decision on legislation that sought to abrogate the states' [[sovereign immunity]]. 

''[[United States v. Morrison]]'', decided in 2000, is one controversial successor case. In that case, the Supreme Court, applying the congruent-and-proportional ''Boerne'' test, overturned provisions of the [[Violence Against Women Act]] (VAWA), which created federal civil jurisdiction over gender-based violence.{{Citation needed|date=February 2024}} The Court held that Congress did not have the power to enact a remedy targeting private action rather than state action, and that it could not enact a Section 5 remedy without findings of national, or near-national, harm.<ref>{{Cite journal |last=Rosen |first=Erin |date=March 2002 |title=An Occasion for a More Thorough Analysis: The New Findings Requirement and Congressional Power under Section 5 of the Fourteenth Amendment after United States v. Morrison |url=https://www.jstor.org/stable/3481285 |journal=California Law Review |volume=90 |issue=2 |pages=573–610 |doi=10.2307/3481285 |jstor=3481285}}</ref>

==References==
{{reflist}}

{{US Constitution}}
{{USCongress}}

[[Category:Legislative branch of the United States government|Enforcement]]
[[Category:United States constitutional law]]
[[Category:Legal history of the United States]]
[[Category:Fourteenth Amendment to the United States Constitution]]