Part Two: Recent Developments in the Doctrine of Implied
Powers
The
Court in South Carolina v. Katzenbach cited McCulloch
as precedent for construing the Fifteenth Amendment’s enforcement clause:
The basic test to be applied in a case
involving [Section] 2 of the Fifteenth Amendment is the same as in all cases
concerning the express powers of Congress with relation to the reserved powers
of the States. Chief Justice Marshall laid down the classic formulation, 50
years before the Fifteenth Amendment was ratified:
"Let the end be legitimate, let it
be within the scope of the constitution, and all means which are appropriate,
which are plainly adapted to that end, which are not prohibited, but consist
with the letter and spirit of the constitution, are constitutional."
McCulloch v. Maryland, 4 Wheat. 316,
421.
The
Fifteenth Amendment enforcement clause was construed to mean exactly the same
means-end rule announced almost one hundred and fifty years before. So McCulloch lives! But it has been wounded
a bit in recent years, and thus we must add a footnote to this story, courtesy
of the Rehnquist Court’s efforts to rein in federal powers and relax some of
the restrictions on state powers that had been imposed up through the late
twentieth century.
The
Court in Katzenbach
justified the Voting Rights Act on the grounds that it was an appropriate
remedy for the proven violations of the Fifteenth Amendment over the years. In
other words, Congress acted in response to violations of the Amendment; the Voting
Rights Act was not simply a law based upon it. This slight distinction makes a
difference.
In
a 1997 case, City of Boerne v. Flores,
a federal law—the Religious Freedom Restoration Act of 1993 (“RFRA”)—was
challenged as exceeding the power of Congress under the enforcement clause of
the Fourteenth
Amendment, upon which Congress relied for the legislative authority to
enact the RFRA. The Act prohibited "government" from
"substantially burdening" a person's exercise of religion even if the
burden results from a rule of general applicability unless the government can
demonstrate the burden "(1) is in furtherance of a compelling governmental
interest; and (2) is the least restrictive means of furthering that . . .
interest."
The
Court surprisingly struck down the RFRA, reasoning that under the enforcement
clauses of constitutional amendments, Congress has only “remedial” and
“preventive” authority. The Court carefully reviewed the opinion in the Katzenbach case
and highlighted the references in that case to the problem—to the violations of
the Fifteenth Amendment—that Congress was addressing in the Voting Rights Act
of 1965. In City of Boerne the Court
could find no pattern of violations of the Fourteenth Amendment Due Process
Clause that the RFRA was intended to address. Thus, the RFRA was not a remedial but a “substantive” statement of
what the Fourteenth Amendment Due Process Clause requires, and this Congress
may not do. “The Amendment's design and Section 5’s text are inconsistent with
any suggestion that Congress has the power to decree the substance of the
Amendment's restrictions on the States.” Thus, the Court established a rule for
enforcement clauses that differs slightly, but significantly, from the McCulloch formula. This was the first
departure from that famous rule in more than 170 years, but it is presumptively
the rule today.
In
the National Federation of Independent
Business (“NFIB”) case, the Affordable Care Act required individuals to purchase
medical insurance—the “individual mandate.” Congress justified this action as
an exercise of its Commerce Clause and Necessary and Proper Clause authority.
The Commerce Clause, which we shall take up as the next topic, is also a source
of broad legislative authority; in the NFIB case, as in many others, it
provides the “legitimate end” for which Congress is providing the necessary and
proper means in specific legislation. In one of the rare occurrences in
constitutional law over the past seventy-five years, the Supreme Court held
that the Necessary and Proper Clause did not justify this exercise of
Congress’s implied power. The Court held that the legal requirement to buy or
obtain medical insurance, while perhaps a necessary
means to accomplishing health insurance reform, was not a proper means because it was not “narrow” enough in scope and was
not “incidental” to Congress’s regulation of commerce. “The individual mandate,
by contrast, vests Congress with the extraordinary ability to create the necessary
predicate to the exercise of an enumerated power.” But, as we shall see, there
was more than one way to skin that cat.