Tennessee v. Lane (2004)
541 U.S. 509 (2004)
[Majority: Stevens O’Connor, Souter, Ginsburg, and Breyer. Concurring: Ginsburg and Breyer. Dissenting: Rehnquist, Kennedy, Scalia and Thomas.]
Justice Stevens delivered the opinion of the Court.
Title II of the Americans with Disabilities Act of 1990 (ADA or Act) provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs or activities of a public entity, or be subjected to discrimination by any such entity.” The question presented in this case is whether Title II exceeds Congress’ power under § 5 of the 14th Amendment.
- In August 1998, respondents George Lane and Beverly Jones filed this action against the State of Tennessee and a number of Tennessee counties, alleging past and ongoing violations of Title II. Respondents, both of whom are paraplegics who use wheelchairs for mobility, claimed that they were denied access to, and the services of, the state court system by reason of their disabilities. Lane alleged that he was compelled to appear to answer a set of criminal charges on the second floor of a county courthouse that had no elevator. At his first appearance, Lane crawled up two flights of stairs to get to the courtroom. When Lane returned to the courthouse for a hearing, he refused to crawl again or to be carried by officers to the courtroom; he consequently was arrested and jailed for failure to appear. Jones, a certified court reporter, alleged that she has not been able to gain access to a number of county courthouses, and, as a result, has lost both work and an opportunity to participate in the judicial process. Respondents sought damages and equitable relief.
The State moved to dismiss the suit on the ground that it was barred by the 11th Amendment. The District Court denied the motion without opinion, and the State appealed. The United States intervened to defend Title II’s abrogation of the States’ 11th Amendment immunity. On April 28, 2000, after the appeal had been briefed and argued, the Court of Appeals for the Sixth Circuit entered an order holding the case in abeyance pending our decision in Board of Trustees of Univ. of Ala. v. Garrett (2001).
In Garrett, we concluded that the 11th Amendment bars private suits seeking money damages for state violations of Title I of the ADA. We left open, however, the question whether the 11th Amendment permits suits for money damages under Title II. . . .
- The ADA was passed by large majorities in both Houses of Congress after decades of deliberation and investigation into the need for comprehensive legislation to address discrimination against persons with disabilities. In the years immediately preceding the ADA’s enactment, Congress held 13 hearings and created a special task force that gathered evidence from every State in the Union. The conclusions Congress drew from this evidence are set forth in the task force and Committee Reports, described in lengthy legislative hearings, and summarized in the preamble to the statute. Central among these conclusions was Congress’ finding that
individuals with disabilities are a discrete and insular minority who have been faced with restrictions and limitations, subjected to a history of purposeful unequal treatment, and relegated to a position of political powerlessness in our society, based on characteristics that are beyond the control of such individuals and resulting from stereotypic assumptions not truly indicative of the individual ability of such individuals to participate in, and contribute to, society.
Invoking “the sweep of congressional authority, including the power to enforce the 14th amendment and to regulate commerce,” the ADA is designed “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” It forbids discrimination against persons with disabilities in three major areas of public life: employment, which is covered by Title I of the statute; public services, programs, and activities, which are the subject of Title II; and public accommodations, which are covered by Title III.
Title II, prohibits any public entity from discriminating against “qualified” persons with disabilities in the provision or operation of public services, programs, or activities. The Act defines the term “public entity” to include state and local governments, as well as their agencies and instrumentalities. Persons with disabilities are “qualified” if they, “with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, mee[t] the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.” Title II’s enforcement provision incorporates by reference § 505 of the Rehabilitation Act of 1973, which authorizes private citizens to bring suits for money damages.
III. The 11th Amendment renders the States immune from “any suit in law or equity, commenced or prosecuted . . . by Citizens of another State, or by Citizens or Subjects of any Foreign State.” Even though the Amendment “by its terms . . . applies only to suits against a State by citizens of another State,” our cases have repeatedly held that this immunity also applies to unconsented suits brought by a State’s own citizens. Garrett. Our cases have also held that Congress may abrogate the State’s 11th Amendment immunity. To determine whether it has done so in any given case, we “must resolve two predicate questions: first, whether Congress unequivocally expressed its intent to abrogate that immunity; and second, if it did, whether Congress acted pursuant to a valid grant of constitutional authority.”
The first question is easily answered in this case. The Act specifically provides: “A State shall not be immune under the 11th amendment to the Constitution of the United States from an action in Federal or State court of competent jurisdiction for a violation of this chapter.” . . .
In Fitzpatrick v. Bitzer (1976), we held that Congress can abrogate a State’s sovereign immunity when it does so pursuant to a valid exercise of its power under § 5 of the 14th Amendment to enforce the substantive guarantees of that Amendment. This enforcement power, as we have often acknowledged, is a “broad power indeed.” Mississippi Univ. for Women v. Hogan (1982), citing Ex parte Virginia (1880). It includes “the authority both to remedy and to deter violation of rights guaranteed [by the 14th Amendment] by prohibiting a somewhat broader swath of conduct, including that which is not itself forbidden by the Amendment’s text.” Kimel v. Florida Bd. of Regents (2000). . . . When Congress seeks to remedy or prevent unconstitutional discrimination, § 5 authorizes it to enact prophylactic legislation proscribing practices that are discriminatory in effect, if not in intent, to carry out the basic objectives of the Equal Protection Clause.
Congress’ § 5 power is not, however, unlimited. While Congress must have a wide berth in devising appropriate remedial and preventative measures for unconstitutional actions, those measures may not work a “substantive change in the governing law.” City of Boerne v. Flores (1997). In Boerne, we recognized that the line between remedial legislation and substantive redefinition is “not easy to discern,” and that “Congress must have wide latitude in determining where it lies.” But we also confirmed that “the distinction exists and must be observed,” and set forth a test for so observing it: Section 5 legislation is valid if it exhibits “a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.” . . .
Applying the Boerne test in Garrett, we concluded that Title I of the ADA was not a valid exercise of Congress’ § 5 power to enforce the 14th Amendment’s prohibition on unconstitutional disability discrimination in public employment. As in Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank (1999), we concluded Congress’ exercise of its prophylactic § 5 power was unsupported by a relevant history and pattern of constitutional violations. Although the dissent pointed out that Congress had before it a great deal of evidence of discrimination by the States against persons with disabilities, the Court’s opinion noted that the “overwhelming majority” of that evidence related to “the provision of public services and public accommodations, which areas are addressed in Titles II and III,” rather than Title I. We also noted that neither the ADA’s legislative findings nor its legislative history reflected a concern that the States had been engaging in a pattern of unconstitutional employment discrimination. We emphasized [in Garrett] that the House and Senate Committee Reports on the ADA focused on “‘discrimination [in] . . . employment in the private sector,'” and made no mention of discrimination in public employment. Finally, we concluded that Title I’s broad remedial scheme was insufficiently targeted to remedy or prevent unconstitutional discrimination in public employment. Taken together, the historical record and the broad sweep of the statute suggested that Title I’s true aim was not so much to enforce the 14th Amendment’s prohibitions against disability discrimination in public employment as it was to “rewrite” this Court’s 14th Amendment jurisprudence.
In view of the significant differences between Titles I and II, however, Garrett left open the question whether Title II is a valid exercise of Congress’ § 5 enforcement power. It is to that question that we now turn.
- The first step of the Boerne inquiry requires us to identify the constitutional right or rights that Congress sought to enforce when it enacted Title II. In Garrett we identified Title I’s purpose as enforcement of the 14th Amendment’s command that “all persons similarly situated should be treated alike.” Cleburne v. Cleburne Living Center, Inc. (1985). As we observed, classifications based on disability violate that constitutional command if they lack a rational relationship to a legitimate governmental purpose.
Title II, like Title I, seeks to enforce this prohibition on irrational disability discrimination. But it also seeks to enforce a variety of other basic constitutional guarantees, infringements of which are subject to more searching judicial review. These rights include some, like the right of access to the courts at issue in this case, that are protected by the Due Process Clause of the 14th Amendment. The Due Process Clause and the Confrontation Clause of the 6th Amendment, as applied to the States via the 14th Amendment, both guarantee to a criminal defendant such as respondent Lane the “right to be present at all stages of the trial where his absence might frustrate the fairness of the proceedings.” Faretta v. California (1975). The Due Process Clause also requires the States to afford certain civil litigants a “meaningful opportunity to be heard” by removing obstacles to their full participation in judicial proceedings. Boddie v. Connecticut (1971). We have held that the 6th Amendment guarantees to criminal defendants the right to trial by a jury composed of a fair cross section of the community, noting that the exclusion of “identifiable segments playing major roles in the community cannot be squared with the constitutional concept of jury trial.” Taylor v. Louisiana (1975). And, finally, we have recognized that members of the public have a right of access to criminal proceedings secured by the 1st Amendment. Press-Enterprise Co. v. Superior Court of Cal., County of Riverside (1986).
Whether Title II validly enforces these constitutional rights is a question that “must be judged with reference to the historical experience which it reflects.” South Carolina v. Katzenbach (1966). While § 5 authorizes Congress to enact reasonably prophylactic remedial legislation, the appropriateness of the remedy depends on the gravity of the harm it seeks to prevent. “Difficult and intractable problems often require powerful remedies,” Kimel, but it is also true that “[s]trong measures appropriate to address one harm may be an unwarranted response to another, lesser one,” Boerne.
It is not difficult to perceive the harm that Title II is designed to address. Congress enacted Title II against a backdrop of pervasive unequal treatment in the administration of state services and programs, including systematic deprivations of fundamental rights. For example, “[a]s of 1979, most States . . . categorically disqualified ‘idiots’ from voting, without regard to individual capacity.” The majority of these laws remain on the books, and have been the subject of legal challenge as recently as 2001. Similarly, a number of States have prohibited and continue to prohibit persons with disabilities from engaging in activities such as marrying and serving as jurors. The historical experience that Title II reflects is also documented in this Court’s cases, which have identified unconstitutional treatment of disabled persons by state agencies in a variety of settings, including unjustified commitment, e.g., Jackson v. Indiana (1972); the abuse and neglect of persons committed to state mental health hospitals, Youngberg v. Romeo (1982); and irrational discrimination in zoning decisions, Cleburne. The decisions of other courts, too, document a pattern of unequal treatment in the administration of a wide range of public services, programs, and activities, including the penal system, public education, and voting. Notably, these decisions also demonstrate a pattern of unconstitutional treatment in the administration of justice.
This pattern of disability discrimination persisted despite several federal and state legislative efforts to address it. . . .
With respect to the particular services at issue in this case, Congress learned that many individuals, in many States across the country, were being excluded from courthouses and court proceedings by reason of their disabilities. A report before Congress showed that some 76% of public services and programs housed in state-owned buildings were inaccessible to and unusable by persons with disabilities, even taking into account the possibility that the services and programs might be restructured or relocated to other parts of the buildings. Congress itself heard testimony from persons with disabilities who described the physical inaccessibility of local courthouses. . . .
Given the sheer volume of evidence demonstrating the nature and extent of unconstitutional discrimination against persons with disabilities in the provision of public services, the dissent’s contention that the record is insufficient to justify Congress’ exercise of its prophylactic power is puzzling, to say the least. Just last Term in Nevada Department of Human Resources v. Hibbs (2003), we approved the family-care leave provision of the FMLA as valid § 5 legislation based primarily on evidence of disparate provision of parenting leave, little of which concerned unconstitutional state conduct. We explained that because the FMLA was targeted at sex-based classifications, which are subject to a heightened standard of judicial scrutiny, “it was easier for Congress to show a pattern of state constitutional violations” than in Garrett or Kimel, both of which concerned legislation that targeted classifications subject to rational-basis review. Title II is aimed at the enforcement of a variety of basic rights, including the right of access to the courts at issue in this case, that call for a standard of judicial review at least as searching, and in some cases more searching, than the standard that applies to sex-based classifications. And in any event, the record of constitutional violations in this case — including judicial findings of unconstitutional state action, and statistical, legislative, and anecdotal evidence of the widespread exclusion of persons with disabilities from the enjoyment of public services — far exceeds the record in Hibbs.
The conclusion that Congress drew from this body of evidence is set forth in the text of the ADA itself: “[D]iscrimination against individuals with disabilities persists in such critical areas as . . . education, transportation, communication, recreation, institutionalization, health services, voting, and access to public services.” This finding, together with the extensive record of disability discrimination that underlies it, makes clear beyond peradventure that inadequate provision of public services and access to public facilities was an appropriate subject for prophylactic legislation.
- The only question that remains is whether Title II is an appropriate response to this history and pattern of unequal treatment. . . . Because we find that Title II unquestionably is valid § 5 legislation as it applies to the class of cases implicating the accessibility of judicial services, we need go no further. See United States v. Raines (1960).
Congress’ chosen remedy for the pattern of exclusion and discrimination described above, Title II’s requirement of program accessibility, is congruent and proportional to its object of enforcing the right of access to the courts. The unequal treatment of disabled persons in the administration of judicial services has a long history, and has persisted despite several legislative efforts to remedy the problem of disability discrimination. Faced with considerable evidence of the shortcomings of previous legislative responses, Congress was justified in concluding that this “difficult and intractable proble[m]” warranted “added prophylactic measures in response.” Hibbs.
The remedy Congress chose is nevertheless a limited one. Recognizing that failure to accommodate persons with disabilities will often have the same practical effect as outright exclusion, Congress required the States to take reasonable measures to remove architectural and other barriers to accessibility. But Title II does not require States to employ any and all means to make judicial services accessible to persons with disabilities, and it does not require States to compromise their essential eligibility criteria for public programs. It requires only “reasonable modifications” that would not fundamentally alter the nature of the service provided, and only when the individual seeking modification is otherwise eligible for the service. . . . And in no event is the entity required to undertake measures that would impose an undue financial or administrative burden, threaten historic preservation interests, or effect a fundamental alteration in the nature of the service.
This duty to accommodate is perfectly consistent with the well-established due process principle that, “within the limits of practicability, a State must afford to all individuals a meaningful opportunity to be heard” in its courts. Boddie. Our cases have recognized a number of affirmative obligations that flow from this principle: the duty to waive filing fees in certain family-law and criminal cases, the duty to provide transcripts to criminal defendants seeking review of their convictions, and the duty to provide counsel to certain criminal defendants. Each of these cases makes clear that ordinary considerations of cost and convenience alone cannot justify a State’s failure to provide individuals with a meaningful right of access to the courts. Judged against this backdrop, Title II’s affirmative obligation to accommodate persons with disabilities in the administration of Justice cannot be said to be “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.” It is, rather, a reasonable prophylactic measure, reasonably targeted to a legitimate end.
For these reasons, we conclude that Title II, as it applies to the class of cases implicating the fundamental right of access to the courts, constitutes a valid exercise of Congress’ § 5 authority to enforce the guarantees of the 14th Amendment. The judgment of the Court of Appeals is therefore affirmed. It is so ordered.
Justice Souter, with whom Justice Ginsburg joins, concurring. [Omitted.]
Justice Ginsburg, with whom Justice Souter and Justice Breyer join, concurring.[Omitted.]
Chief Justice Rehnquist, with whom Justice Kennedy and Justice Thomas join, dissenting.
In Board of Trustees of Univ. of Ala. v. Garrett (2001), we held that Congress did not validly abrogate States’ 11th Amendment immunity when it enacted Title I of the Americans with Disabilities Act of 1990 (ADA). Today, the Court concludes that Title II of that Act, does validly abrogate that immunity, at least insofar “as it applies to the class of cases implicating the fundamental right of access to the courts.” Because today’s decision is irreconcilable with Garrett and the well-established principles it embodies, I dissent.
The 11th Amendment bars private lawsuits in federal court against an unconsenting State. E.g., Nevada Dept. of Human Resources v. Hibbs (2003). Congress may overcome States’ sovereign immunity and authorize such suits only if it unmistakably expresses its intent to do so, and only if it “acts pursuant to a valid exercise of its power under § 5 of the 14th Amendment.” Hibbs. While the Court correctly holds that Congress satisfied the first prerequisite, I disagree with its conclusion that Title II is valid § 5 enforcement legislation. . . .
The first step is to “identify with some precision the scope of the constitutional right at issue.” Garrett. This task was easy in Garrett, Hibbs, Kimel v. Florida Bd. of Regents (2000), and City of Boerne v. Flores (1997), because the statutes in those cases sought to enforce only one constitutional right. . . .
In this case, the task of identifying the scope of the relevant constitutional protection is more difficult because Title II purports to enforce a panoply of constitutional rights of disabled persons: not only the equal protection right against irrational discrimination, but also certain rights protected by the Due Process Clause. However, because the Court ultimately upholds Title II “as it applies to the class of cases implicating the fundamental right of access to the courts,” the proper inquiry focuses on the scope of those due process rights. The Court cites four access-to-the-courts rights that Title II purportedly enforces: (1) the right of the criminal defendant to be present at all critical stages of the trial, Faretta v. California (1975); (2) the right of litigants to have a “meaningful opportunity to be heard” in judicial proceedings, Boddie v. Connecticut (1971); (3) the right of the criminal defendant to trial by a jury composed of a fair cross section of the community, Taylor v. Louisiana (1975); and (4) the public right of access to criminal proceedings, Press-Enterprise Co. v. Superior Court of Cal., County of Riverside (1986).
Having traced the “metes and bounds” of the constitutional rights at issue, the next step in the congruence-and-proportionality inquiry requires us to examine whether Congress “identified a history and pattern” of violations of these constitutional rights by the States with respect to the disabled. Garrett. This step is crucial to determining whether Title II is a legitimate attempt to remedy or prevent actual constitutional violations by the States or an illegitimate attempt to rewrite the constitutional provisions it purports to enforce. Indeed, “Congress’ § 5 power is appropriately exercised only in response to state transgressions.” But the majority identifies nothing in the legislative record that shows Congress was responding to widespread violations of the due process rights of disabled persons.
Rather than limiting its discussion of constitutional violations to the due process rights on which it ultimately relies, the majority sets out on a wide-ranging account of societal discrimination against the disabled. . . .
Most of the brief anecdotes do not involve States at all, and those that do are not sufficiently detailed to determine whether the instances of “unequal treatment” were irrational, and thus unconstitutional under our decision in Cleburne. Garrett. Therefore, even outside the “access to the courts” context, the Court identifies few, if any, constitutional violations perpetrated by the States against disabled persons.
With respect to the due process “access to the courts” rights on which the Court ultimately relies, Congress’ failure to identify a pattern of actual constitutional violations by the States is even more striking. Indeed, there is nothing in the legislative record or statutory findings to indicate that disabled persons were systematically denied the right to be present at criminal trials, denied the meaningful opportunity to be heard in civil cases, unconstitutionally excluded from jury service, or denied the right to attend criminal trials. . . .
Lacking any real evidence that Congress was responding to actual due process violations, the majority relies primarily on three items to justify its decision: (1) a 1983 U. S. Civil Rights Commission Report showing that 76% of “public services and programs housed in state-owned buildings were inaccessible” to persons with disabilities; (2) testimony before a House subcommittee regarding the “physical inaccessibility” of local courthouses; and (3) evidence submitted to Congress’ designated ADA task force that purportedly contains “numerous examples of the exclusion of persons with disabilities from state judicial services and programs.”
On closer examination, however, the Civil Rights Commission’s finding consists of a single conclusory sentence in its report, and it is far from clear that its finding even includes courthouses. The House subcommittee report, for its part, contains the testimony of two witnesses, neither of whom reported being denied the right to be present at constitutionally protected court proceedings. Indeed, the witnesses’ testimony, like the U. S. Civil Rights Commission Report, concerns only physical barriers to access, and does not address whether States either provided means to overcome those barriers or alternative locations for proceedings involving disabled persons. . . .
The near-total lack of actual constitutional violations in the congressional record is reminiscent of Garrett, wherein we found that the same type of minimal anecdotal evidence “f[e]ll far short of even suggesting the pattern of unconstitutional [state action] on which § 5 legislation must be based.” See also Kimel (“Congress’ failure to uncover any significant pattern of unconstitutional discrimination here confirms that Congress had no reason to believe that broad prophylactic legislation was necessary”); Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank (1999) (“The legislative record thus suggests that the Patent Remedy Act did not respond to a history of ‘widespread and persisting deprivation of constitutional rights’ of the sort Congress has faced in enacting proper prophylactic § 5 legislation.”) . . .
The third step of our congruence-and-proportionality inquiry removes any doubt as to whether Title II is valid § 5 legislation. At this stage, we ask whether the rights and remedies created by Title II are congruent and proportional to the constitutional rights it purports to enforce and the record of constitutional violations adduced by Congress.
Title II provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” A disabled person is considered “qualified” if he meets the essential eligibility requirements” for the receipt of the entity’s services or participation in the entity’s programs, “with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services.” The ADA’s findings make clear that Congress believed it was attacking “discrimination” in all areas of public services, as well as the “discriminatory effect” of “architectural, transportation, and communication barriers.” In sum, Title II requires, on pain of money damages, special accommodations for disabled persons in virtually every interaction they have with the State.
“Despite subjecting States to this expansive liability,” the broad terms of Title II “d[o] nothing to limit the coverage of the Act to cases involving arguable constitutional violations.” Florida Prepaid. By requiring special accommodation and the elimination of programs that have a disparate impact on the disabled, Title II prohibits far more state conduct than does the equal protection ban on irrational discrimination. We invalidated Title I’s similar requirements in Garrett, observing that “[i]f special accommodations for the disabled are to be required, they have to come from positive law and not through the Equal Protection Clause.” Title II fails for the same reason. Like Title I, Title II may be laudable public policy, but it cannot be seriously disputed that it is also an attempt to legislatively “redefine the States’ legal obligations” under the 14th Amendment. Kimel.
The majority, however, claims that Title II also vindicates fundamental rights protected by the Due Process Clause — in addition to access to the courts — that are subject to heightened 14th Amendment scrutiny. But Title II is not tailored to provide prophylactic protection of these rights; instead, it applies to any service, program, or activity provided by any entity. Its provisions affect transportation, health, education, and recreation programs, among many others, all of which are accorded only rational-basis scrutiny under the Equal Protection Clause. . . .
The majority concludes that Title II’s massive overbreadth can be cured by considering the statute only “as it applies to the class of cases implicating the accessibility of judicial services.” I have grave doubts about importing an “as applied” approach into the § 5 context. While the majority is of course correct that this Court normally only considers the application of a statute to a particular case, the proper inquiry under City of Boerne and its progeny is somewhat different. In applying the congruence-and-proportionality test, we ask whether Congress has attempted to statutorily redefine the constitutional rights protected by the 14th Amendment. This question can only be answered by measuring the breadth of a statute’s coverage against the scope of the constitutional rights it purports to enforce and the record of violations it purports to remedy.
In conducting its as-applied analysis, however, the majority posits a hypothetical statute, never enacted by Congress, that applies only to courthouses. The effect is to rig the congruence-and-proportionality test by artificially constricting the scope of the statute to closely mirror a recognized constitutional right. . . .
Moreover, even in the courthouse-access context, Title II requires substantially more than the Due Process Clause. Title II subjects States to private lawsuits if, inter alia, they fail to make “reasonable modifications” to facilities, such as removing “architectural . . . barriers.” Yet the statute is not limited to occasions when the failure to modify results, or will likely result, in an actual due process violation — i.e., the inability of a disabled person to participate in a judicial proceeding. Indeed, liability is triggered if an inaccessible building results in a disabled person being “subjected to discrimination” — a term that presumably encompasses any sort of inconvenience in accessing the facility, for whatever purpose. . . .
Justice Scalia, dissenting.
Section 5 of the 14th Amendment provides that Congress “shall have power to enforce, by appropriate legislation, the provisions” of that Amendment — including, of course, the Amendment’s Equal Protection and Due Process Clauses. In Katzenbach v. Morgan (1966), we decided that Congress could, under this provision, forbid English literacy tests for Puerto Rican voters in New York State who met certain educational criteria. Though those tests were not themselves in violation of the 14th Amendment, we held that § 5 authorizes prophylactic legislation — that is, “legislation that proscribes facially constitutional conduct,” Nevada Dept. of Human Resources v. Hibbs (2003), when Congress determines such proscription is desirable “‘to make the amendments fully effective,'” Morgan (quoting Ex parte Virginia (1880)). We said that “the measure of what constitutes ‘appropriate legislation’ under § 5 of the 14th Amendment” is the flexible “necessary and proper” standard of McCulloch v. Maryland (1819). Morgan. We described § 5 as “a positive grant of legislative power authorizing Congress to exercise its discretion in determining whether and what legislation is needed to secure the guarantees of the 14th Amendment.” . . .
In City of Boerne v. Flores (1997), we confronted Congress’s inevitable expansion of the 14th Amendment, as interpreted in Morgan, beyond the field of racial discrimination. There Congress had sought, in the Religious Freedom Restoration Act of 1993, to impose upon the States an interpretation of the 1st Amendment’s Free Exercise Clause that this Court had explicitly rejected. To avoid placing in congressional hands effective power to rewrite the Bill of Rights through the medium of § 5, we formulated the “congruence and proportionality” test for determining what legislation is “appropriate.” When Congress enacts prophylactic legislation, we said, there must be “proportionality or congruence between the means adopted and the legitimate end to be achieved.”
I joined the Court’s opinion in Boerne with some misgiving. I have generally rejected tests based on such malleable standards as “proportionality,” because they have a way of turning into vehicles for the implementation of individual judges’ policy preferences. See, e.g., Ewing v. California (2003) (Scalia, J., concurring in judgment) (declining to apply a “proportionality” test to the 8th Amendment’s ban on cruel and unusual punishment); Stenberg v. Carhart (2000) (Scalia, J., dissenting) (declining to apply the “undue burden” standard of Planned Parenthood of Southeastern Pa. v. Casey (1992)); BMW of North America, Inc. v. Gore (1996) (Scalia, J., dissenting) (declining to apply a “reasonableness” test to punitive damages under the Due Process Clause). Even so, I signed on to the “congruence and proportionality” test in Boerne, and adhered to it in later cases. . . .
But these cases were soon followed by Nevada Dept. of Human Resources v. Hibbs, in which the Court held that the Family and Medical Leave Act of 1993, which required States to provide their employees up to 12 work weeks of unpaid leave (for various purposes) annually, was “congruent and proportional to its remedial object [of preventing sex discrimination], and can be understood as responsive to, or designed to prevent, unconstitutional behavior.” I joined Justice Kennedy’s dissent, which established (conclusively, I thought) that Congress had identified no unconstitutional state action to which the statute could conceivably be a proportional response. And now we have today’s decision, holding that Title II of the ADA is congruent and proportional to the remediation of constitutional violations, in the face of what seems to me a compelling demonstration of the opposite by The Chief Justice’s dissent.
I yield to the lessons of experience. The “congruence and proportionality” standard, like all such flabby tests, is a standing invitation to judicial arbitrariness and policy-driven decisionmaking. Worse still, it casts this Court in the role of Congress’s taskmaster. Under it, the courts (and ultimately this Court) must regularly check Congress’s homework to make sure that it has identified sufficient constitutional violations to make its remedy congruent and proportional. As a general matter, we are ill advised to adopt or adhere to constitutional rules that bring us into constant conflict with a coequal branch of Government. And when conflict is unavoidable, we should not come to do battle with the United States Congress armed only with a test (“congruence and proportionality”) that has no demonstrable basis in the text of the Constitution and cannot objectively be shown to have been met or failed. . . .
I would replace “congruence and proportionality” with another test — one that provides a clear, enforceable limitation supported by the text of § 5. Section 5 grants Congress the power “to enforce, by appropriate legislation,” the other provisions of the 14th Amendment. Morgan notwithstanding, one does not, within any normal meaning of the term, “enforce” a prohibition by issuing a still broader prohibition directed to the same end. One does not, for example, “enforce” a 55-mile-per-hour speed limit by imposing a 45-mile-per-hour speed limit — even though that is indeed directed to the same end of automotive safety and will undoubtedly result in many fewer violations of the 55-mile-per-hour limit. And one does not “enforce” the right of access to the courts at issue in this case, by requiring that disabled persons be provided access to all of the “services, programs, or activities” furnished or conducted by the State. That is simply not what the power to enforce means — or ever meant. The 1860 edition of Noah Webster’s American Dictionary of the English Language, current when the 14th Amendment was adopted, defined “enforce” as: “To put in execution; to cause to take effect; as, to enforce the laws.” Nothing in § 5 allows Congress to go beyond the provisions of the 14th Amendment to proscribe, prevent, or “remedy” conduct that does not itself violate any provision of the 14th Amendment. So-called “prophylactic legislation” is reinforcement rather than enforcement.
Morgan asserted that this commonsense interpretation “would confine the legislative power . . . to the insignificant role of abrogating only those state laws that the judicial branch was prepared to adjudge unconstitutional, or of merely informing the judgment of the judiciary by particularizing the ‘majestic generalities’ of § 1 of the Amendment.” That is not so. One must remember “that in 1866 the lower federal courts had no general jurisdiction of cases alleging a deprivation of rights secured by the Constitution.” If, just after the 14th Amendment was ratified, a State had enacted a law imposing racially discriminatory literacy tests (different questions for different races) a citizen prejudiced by such a test would have had no means of asserting his constitutional right to be free of it. Section 5 authorizes Congress to create a cause of action through which the citizen may vindicate his 14th Amendment rights. One of the first pieces of legislation passed under Congress’s § 5 power was the Ku Klux Klan Act of April 20, 1871, entitled “An Act to enforce the Provisions of the 14th Amendment to the Constitution of the United States, and for other Purposes.” Section 1 of that Act, later codified as Rev. Stat. § 1979, 42 U. S. C. § 1983, authorized a cause of action against “any person who, under color of any law, statute, ordinance, regulation, custom, or usage of any State, shall subject, or cause to be subjected, any person within the jurisdiction of the United States to the deprivation of any rights, privileges, or immunities secured by the Constitution of the United States.” Section 5 would also authorize measures that do not restrict the States’ substantive scope of action but impose requirements directly related to the facilitation of “enforcement” — for example, reporting requirements that would enable violations of the 14th Amendment to be identified. But what § 5 does not authorize is so-called “prophylactic” measures, prohibiting primary conduct that is itself not forbidden by the 14th Amendment.
The major impediment to the approach I have suggested is stare decisis. . . .
However, South Carolina v. Katzenbach (1966) and Morgan, all of our later cases except Hibbs that give an expansive meaning to “enforce” in § 5 of the 14th Amendment, and all of our earlier cases that even suggest such an expansive meaning in dicta, involved congressional measures that were directed exclusively against, or were used in the particular case to remedy, racial discrimination. . . .
Giving § 5 more expansive scope with regard to measures directed against racial discrimination by the States accords to practices that are distinctively violative of the principal purpose of the 14th Amendment a priority of attention that this Court envisioned from the beginning, and that has repeatedly been reflected in our opinions. In the Slaughter-House Cases (1873), the Court’s first confrontation with the 14th Amendment, we said the following with respect to the Equal Protection Clause:
We doubt very much whether any action of a State not directed by way of discrimination against the negroes as a class, or on account of their race, will ever be held to come within the purview of this provision. It is so clearly a provision for that race and that emergency, that a strong case would be necessary for its application to any other.
Racial discrimination was the practice at issue in the early cases (cited in Morgan) that gave such an expansive description of the effects of § 5. In those early days, bear in mind, the guarantee of equal protection had not been extended beyond race to sex, age, and the many other categories it now covers. Also still to be developed were the incorporation doctrine (which holds that the 14th Amendment incorporates and applies against the States the Bill of Rights, see Duncan v. Louisiana (1968)) and the doctrine of so-called “substantive due process” (which holds that the 14th Amendment’s Due Process Clause protects unenumerated liberties, see generally Lawrence v. Texas (2003); Planned Parenthood of Southeastern Pa. v. Casey (1992)). Thus, the 14th Amendment did not include the many guarantees that it now provides. In such a seemingly limited context, it did not appear to be a massive expansion of congressional power to interpret § 5 broadly. Broad interpretation was particularly appropriate with regard to racial discrimination, since that was the principal evil against which the Equal Protection Clause was directed, and the principal constitutional prohibition that some of the States stubbornly ignored. The former is still true, and the latter remained true at least as late as Morgan.
When congressional regulation has not been targeted at racial discrimination, we have given narrower scope to § 5. . . .
Thus, principally for reasons of stare decisis, I shall henceforth apply the permissive McCulloch standard to congressional measures designed to remedy racial discrimination by the States. I would not, however, abandon the requirement that Congress may impose prophylactic § 5 legislation only upon those particular States in which there has been an identified history of relevant constitutional violations. I would also adhere to the requirement that the prophylactic remedy predicated upon such state violations must be directed against the States or state actors rather than the public at large. And I would not, of course, permit any congressional measures that violate other provisions of the Constitution. When those requirements have been met, however, I shall leave it to Congress, under constraints no tighter than those of the Necessary and Proper Clause, to decide what measures are appropriate under § 5 to prevent or remedy racial discrimination by the States.
I shall also not subject to “congruence and proportionality” analysis congressional action under § 5 that is not directed to racial discrimination. Rather, I shall give full effect to that action when it consists of “enforcement” of the provisions of the 14th Amendment, within the broad but not unlimited meaning of that term I have described above. When it goes beyond enforcement to prophylaxis, however, I shall consider it ultra vires. The present legislation is plainly of the latter sort. . . .
Requiring access for disabled persons to all public buildings cannot remotely be considered a means of “enforcing” the 14th Amendment. The considerations of long accepted practice and of policy that sanctioned such distortion of language where state racial discrimination is at issue do not apply in this field of social policy far removed from the principal object of the Civil War Amendments. . . .
Justice Thomas, dissenting.[Omitted.]
Note: United States v. Georgia
In United States v. Georgia (2006), the Court held that a prisoner’s cause of action could lie against the state under the Americans With Disabilities Act if the plaintiff’s alleged violations would violate the 8th Amendment. In this case, a prisoner who was confined to a wheelchair was kept in a room too small to allow him to maneuver his wheelchair. He was consequently unable to use the toilet and alleged that he frequently sat in his own waste for extended periods. In such a case, consistent with Tennessee v. Lane (2004), the source of congressional power to regulate such conduct is Section 5 of the 14th Amendment rather than the Commerce Clause.