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The Balance Between the Commerce Clause and the 14th Amendment in Protecting Individual Rights
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This creates the anomaly that courts struggle to justify (or delight in attacking) statutes on commerce grounds even if their purpose has little to do with commerce. Here are some recent examples:
● In United States v. Bird, the Fifth Circuit relied on an earlier decision that the Freedom of Access to Clinic Entrances Act (FACE) is a valid regulation of the national commercial market in abortion-related services. The dissent argued that driving a van through a Planned Parenthood clinic is not economic or commercial activity, and Congress does not have the authority to criminalize “private acts that are intended to interfere with another person’s exercise of some constitutional right.”
● In McCarthy v. Hawkins, Judge Emilo Garza argued in dissent that Congress does not have the power under the Americans with Disabilities Act (ADA) to prohibit states from discriminating in entitlement programs like Medicaid, or in any public services that do not compete with the private market and thus are not commercial activity.
● In 1997, the Supreme Court struck down the Religious Freedom Restoration Act, which applied strict scrutiny to governmental actions that burden religion, as outside of Congress’s 14th Amendment powers. In response, relying on its commerce and spending powers, Congress passed the Religious Land Use and Institutionalized Persons Act, which applies to prisons and land use activities that receive federal funding or “affect” interstate commerce. Several RLUIPA cases are working their way through the courts.
That is, absurdly, legislation that Congress passed to protect the constitutional rights to privacy, to equal protection, and to freedom of religion may survive or fail depending on whether it can be justified as a regulation of interstate commerce.
This Term the Supreme Court may revisit the scope of the commerce power in two cases, involving the question whether federal drug laws trump state laws on medical marijuana and assisted suicide. Lower court Commerce Clause decisions involving FACE, the ADA, RLUIPA or other federal laws might yet reach the Supreme Court.
As the Court debates the extent of Congress’s power to regulate interstate commerce, it is important that the Commerce Clause not be viewed in isolation from other constitutional grants of power. The Court should not drastically reduce the breadth of Congress’s commerce power unless it is prepared to reinvigorate Congress’s 14th Amendment power to protect individuals.
It may surprise some to learn that Congress has no power under the 13th or 14th Amendments to address racially discriminatory actions by private persons. In United States v. Cruikshank, the Court held that Congress cannot prohibit private racial violence even when it is committed for the purpose of depriving individuals of constitutional rights such as the right to vote or to assemble. In The Civil Rights Cases, the Court relied on Cruikshank to strike down the Civil Rights Act of 1875, which prohibited racial discrimination in public accommodations like hotels, railroads and theatres. In both cases, the fact that states were condoning the violence and that only the federal government was prepared to protect African Americans did not matter.
These decisions were the product of anti-Reconstruction justices who interpreted the 13th and 14th Amendments narrowly to gut Congress’s power to protect Southern blacks. As described in a new article by the Brennan Center on Law and Justice, the Supreme Court in Cruikshank and The Civil Rights Cases ignored historic precedent concerning the breadth of Congress’s power under the similarly worded Fugitive Slave Clause. The Court also ignored the views of the Congress that wrote and passed the 13th and 14th Amendments and believed that they authorized the civil rights laws enacted by the same Congress. Justice Harlan lamented in dissent: “Constitutional provisions, adopted in the interest of liberty, and for the purpose of securing, through national legislation, if need be, rights inhering in a state of freedom, and belonging to American citizenship, have been so construed as to defeat the ends the people desired to accomplish, which they attempted to accomplish, and which they supposed they had accomplished by changes in their fundamental law.”
Nearly a century later, when the Supreme Court upheld the ban on racial discrimination in employment, restaurants and hotels in the Civil Rights Act of 1964, it did so by justifying the Act as a regulation of interstate commerce. The Court did not reverse The Civil Rights Cases or Cruikshank, but instead sidestepped them. The Court followed the lead of Congress, which relied on the commerce power rather than the 14th Amendment in light of prevailing caselaw interpreting the former broadly and the latter narrowly. That is the regime that, by and large, prevails today. Congress still has no power to protect civil rights for their own sake in nongovernmental settings, even in areas that go to the heart of the 14th Amendment’s equal protection guarantees. While “no modern Court would ever cite Dred Scott or Plessy approvingly, hardly anyone noticed” when Chief Justice Rehnquist relied on Cruikshank and The Civil Rights Cases to justify striking down the Violence Against Women Act. The Court found that VAWA was aimed at private violence and therefore outside of Congress’s 14th Amendment powers. The majority was not persuaded by the 36 state officials who supported the law and argued that it was needed to protect women from private gender-based violence. The Court deferred to the judgment of the 19th Century judges “who all had intimate knowledge and familiarity with the events surrounding the Amendment's adoption.”
Indeed, the Rehnquist Court has narrowed Congress’s power under the 14th Amendment even further. Congress now has little power even to subject states to legislation to promote equal protection, religious liberties, and other values embodied in the Bill of Rights and the 14th Amendment, beyond the minimal, redundant protections already in the Constitution.
Recent Supreme Court decisions have found that Congress exceeded its 14th Amendment powers when it passed the Age Discrimination in Employment Act, the employment discrimination provisions of the ADA, and the Religious Freedom Restoration Act. For example, the Court found that Congress has little power under the 14th Amendment to prevent disability discrimination because the Constitution gives scant protection to the disabled. With no acknowledgement of the irony, the Court stated that if “special accommodations for the disabled are to be required, they have to come from positive law and not through the Equal Protection Clause” – positive law that the Court struck down a few paragraphs later because it went beyond the Constitution.
Although outnumbered right now on these issues, the conservative justices argue that the 14th Amendment gives Congress no power to make courthouses accessible to the disabled or to fight stereotypes about female workers by giving all employees unpaid leave to take care of sick family members. Most lower courts have interpreted the Supreme Court’s recent rulings to prevent state employees from enforcing the personal sick leave provisions of the Family and Medical Leave Act.
Nevertheless, the Court’s narrow reading of the 14th Amendment is not a significant impediment to Congress’s ability to protect individuals as long as the Court reads the Commerce Clause broadly. It matters little to victims of discrimination whether the Court upholds the Civil Rights Act of 1964 on Commerce Clause grounds or 14th Amendment grounds. Similarly, the ADA overall has been upheld under the Commerce Clause even though the ban on state and private employment discrimination exceeds Congress’s 14th Amendment powers.
But the Supreme Court, in a series of 5-4 decisions, has already begun to restrict the commerce power in ways that affect individuals. In 1995, in United States v. Lopez, the Court struck down the Gun-Free Schools Zone Act as beyond the government’s power to regulate interstate commerce. That decision was the first time that the Court found a statute outside the commerce power since the 1937 “switch in time that saved nine” that ended the Court’s period of invalidating New Deal legislation. Relying on Lopez, in 2000, in United States v. Morrison, the Court struck down the Violence Against Women Act as too tangentially related to interstate commerce. Both decisions hinged in part on the fact that violence and education are not commercial or economic activities.
In 1996, the Court held that Congress does not have the power under the Commerce Clause to make states liable for damages when they violate federal law. Thus, under the Court’s subsequent decisions, when states violate federal minimum wage laws, overtime laws, the ADA or the FMLA, courts can enter injunctions prohibiting future violations, but those laws violate the Commerce Clause when they make states responsible for back pay or damages.
If the Court builds on Lopez and Morrison and further restricts Congress’s ability to justify legislation under its commerce power, individual rights under federal law could suffer. The most serious challenges to progressive federal legislation will not come from the cases before the Court this Term, which involve the Controlled Substances Act and put conservatives on the side of federal power. Rather, lower court cases that have yet to reach the Supreme Court, like those involving FACE and applications of the ADA in specific situations, illustrate the potential dangers ahead if the Court further restricts the commerce power without compensating by expanding Congress’s 14th Amendment powers.
As these examples demonstrate, there is a delicate balance between Congress’s powers under the Commerce Clause and under the 14th Amendment. Looking at the Commerce Clause alone, one can make a plausible argument that it has been read too broadly. Yet that is in part to compensate for overly restrictive readings of the 14th Amendment. The Court should not upset the settled understanding that Congress can use its commerce powers beyond strictly economic or commercial matters unless it is prepared also to revisit the anti-Reconstruction decisions to restore Congress’s power to protect individual rights. If the Commerce Clause is viewed in isolation, the integrity of the Constitution as a whole and its concern for individual rights and freedoms will suffer.