1. Lecture 8 The Legislature
Part 4: Legislative Powers:
Amendment Enforcement and Inherent Powers

2. This lecture We are going to cover pages 171-180
Lead case is South Carolina v. Katzenbach
Covering
Authority to enforce amendments
Inherent Powers
Constitutional Interpretation

3. Amendment Enforcing Powers
Seven constitutional amendments have the following language
Congress shall have the power to enforce, by appropriate legislation, the provisions of this article
One was the 15th Amendment which prohibited the denial of the vote based on race
It was meant to constraint states trying to from doing this
1957 Civil Rights Act
However, when one law was struck down, another would pop up
What about preventing future violations?

4. The Voting Rights Act of 1965
Look at Table 3-5
Nonwhites had considerably lower registration rates than whites
But by 2000, these numbers had largely equalized
A key provision was Section 5
This required any covered jurisdiction to preclear any changes to voting or election procedures either by the Justice Department or a three judge D.C. district court panel
It assumed that any law was illegal until found otherwise
Covered jurisdictions were set forward in Section 4(b)
Section 2 applies everywhere

5. South Carolina v. Katzenbach (1966)
Since South Carolina had registration levels of below 50%, it was covered
It is also covered by name as well
South Carolina did not want to submit to coverage
Most northern states sided with the federal government
Question
Did this provision of the Voting Rights Act violate the state’s rights to conduct elections?

6. South Carolina v. Katzenbach- II
Arguments
For South Carolina
It indeterminately sweeps across the rights of South Carolina and its citizen
It covers some places with discrimination, but fails to cover others
Equality of states
It should not create a presumption of violations of the 15th Amendment
For the Justice Department
The 15th Amendment gives Congress authority to enforce the right to vote based on race
The means by which is does so is its choice
The grant of power is delegated in the 15th Amendment
The coverage area was not decided arbitrarily

7. South Carolina v. Katzenbach- II
Chief Justice Warren writes for an 8-1 Court
The Court rules in favor of the Justice Department
Congress created a long legislative record to justify this act and many hearings
The South had long been in violation
Past remedies had been unsuccessful
Congress may use any rational means to effectuate enforcement of the 15th Amendment
The 15th Amendment was made to supersede state authority in this area
By the enforcing language, it was meant for Congress to be the primary enforcer
Past uses have been upheld
The ends are appropriate- the means are as well
Limitations are only those found in the Constitution

8. South Carolina v. Katzenbach- II
Black, J. dissenting
Black was from Alabama
He finds against Sections 5 and 4
Determining in advance what states can or cannot do
Gives federal officials a veto over state laws
In conflict with the Guarantee Clause
Gives the federal government too much power over the states
The Voting Rights Act was a success
See Table 3-5
It greatly expanded the amendment enforcing ability of Congress

9. Does the Amendment Enforcing Power have any limits?
The answer is yes
City of Boerne v. Flores (1997)
This was the case where Congress tried to change how the Court interpreted the First Amendment
They argued that the 14th Amendment enforcement provision gave them that ability
The Court says the enforcement power cannot be used to change interpretations of the First Amendment
Congruent and proportional, between the injury to be prevented and the means adopted to the end
The legislative record in RFRA was weak as to religious discrimination it sought to end

10. Shelby County v. Holder (2013)
VRA was reauthorized several times, including for 25 years in 2006
Shelby County, Alabama said the coverage formula was based on 1965 racial discrimination data and was outdated
They agreed and struck down Section 4 coverage
It was outdated
Some areas had black registration numbers above that of whites
Other offenders not covered
However, the newly freed areas from coverage immediately began passing and implementing laws that were discriminatory
Ginsburg noted the record was replete with instances of the covered areas engaging in intentional discrimination which preclearance stopped

11. Inherent Powers Hamilton called these “resulting powers”
Jurisdiction over a conquered territory
Watkins- Investigatory powers
United States v. Curtiss-Wright (1936)
Congress gave the President authority to prohibit arms sales to warring countries
Panama Refining Company v. Ryan (1935) had struck down a law which delegated power to the President without sufficient guidelines
But was a domestic, not international case
That is why the Court ruled for the government
The federal government enjoys complete authority over foreign relations
The States never had any of this authority to begin with

12. Next time We will start on Chapter 4 on the Executive Pages 183-268
You should have material up to the end of Chapter 4 finished by the end of the second week of class.