Travis Crum: “The Curious Disappearance of Shelby County”

The following is a guest post from Travis Crum:

Earlier this week, the Supreme Court issued a decision that could have significant consequences for the constitutionality of the Voting Rights Act and other civil rights legislation applied against the States. The Court’s opinion in Allen v. Cooper is not your typical blockbuster, but it is the first time the Court has addressed Congress’s Reconstruction Amendment enforcement authority since its 2013 decision in Shelby County v. Holder invalidating the VRA’s coverage formula.

Even though the Court did not do so explicitly, Allen helps reconcile Shelby County’s equal sovereignty principle and Boerne’s congruence and proportionality test. Allen establishes that laws need not pass muster under both Shelby County and Boerne. Coverage formulas are governed by Shelby County, and nationwide statutes enacted pursuant to Congress’s Fourteenth Amendment enforcement authority are controlled by Boerne.

Let’s start with Allen. In 1990, Congress passed the Copyright Remedy Clarification Act, and, in so doing, relied on its enforcement authority under Section Five of the Fourteenth Amendment to abrogate state sovereign immunity in copyright suits. In Allen, the Court concluded that Congress failed to amass a sufficient legislative record to abrogate state sovereign immunity for copyright infringement. Most relevant here, the Court relied heavily on Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, a progeny of Boerne holding that Congress had not validly abrogated state sovereign immunity for patent infringement suits. As Justice Kagan’s majority opinion wryly observed, “Florida Prepaid all but prewrote our decision today.”

If Shelby County changed the standard of review for statutes enacted pursuant to Congress’s Reconstruction Amendment enforcement authority, Allen would not be a sequel to Florida Prepaid. Thus, what’s noteworthy about Allen is that it straightforwardly applies Boerne’s congruence and proportionality test even though it post-dates Shelby County. In fact, Allen does not even cite Shelby County. In many ways, Allen is the doppelgänger of Shelby County, where, as Rick Hasen has pointed out, the Court glaringly omitted any reference to Boerne.

As such, Allen is strong evidence that Shelby County’s equal sovereignty principle is an example of “freestanding federalism” rather than a specific limitation on Congress’s Reconstruction Amendment enforcement authority. I have previously argued this point (see here, here, and here), as have Leah Litman and Thomas Colby, so I will not belabor it here. Rather, I want to focus on the consequences of Shelby County being cabined to statutes that differentiate between the States. And here, a few hypotheticals are illuminating.

Imagine that a future Congress enacts a nationwide statute that prohibits States from discriminating on the basis of sexual orientation in certain realms, such as employment or adoption services. And to enforce that statute, Congress abrogates state sovereign immunity. As Allen makes plain, Shelby County’s equal sovereignty principle has nothing to say about that nationwide statute.

Now envision the inverse situation. Suppose Congress passes a statute under the Commerce Clause that expressly singles out a State for special treatment, say, a requirement that Illinois—and only Illinois—obtain federal pre-approval to make changes to its public employee pension fund. If the equal sovereignty principle is an example of freestanding federalism, then the statute would have to satisfy Shelby County. But if the equal sovereignty principle is tied to the Reconstruction Amendments, then it would not. In light of Allen, the Court would probably apply Shelby County, as the statute would impugn Illinois’s sovereignty alone.

These two hypotheticals address Shelby County’s concern with equal sovereignty, but what about its language that a statute’s “current burdens” must be justified by “current needs”? Suppose ten years from now a State seeks to overturn Nevada v. Hibbs, a 2003 decision upholding the FMLA’s family-care provision and its abrogation of state sovereign immunity. The State may argue that Congress’s findings were based on data from the 1990s and earlier—in other words, the FMLA has a constitutional shelf life.

The hypothetical State’s argument would seem like an ill fit for a permanent statute. After all, as the Shelby County Court repeatedly reminded us, Congress reauthorized the VRA in 2006 for twenty-five years but relied on the same data from the 1964, 1968, and 1972 elections as triggers for coverage. By contrast, Congress’s decision to abrogate every States’ sovereign immunity in the FMLA was intended to be not only nationwide but also permanent. The hypothetical State’s argument would also run counter to stare decisis: the Hibbs Court expressly followed Boerne and upheld the FMLA’s family-care provisions notwithstanding the lack of a termination date. Even assuming a future Court were concerned about outdated data, it would be difficult to square this concern with precedent. Put simply, if Shelby County were limited to coverage formulas, then its “current burdens” and “current needs” requirement could not be invoked to overturn precedent or challenge older, nationwide statutes.

To be clear, I am not here to celebrate Boerne. The congruence and proportionality test is no paper tiger, and the Court has invoked it to invalidate numerous civil rights provisions as applied to the States. Rather, my point is to demonstrate that Allen helps resolve the doctrinal mess left in Shelby County’s wake and makes clear that the equal sovereignty principle does not apply to nationwide provisions of the VRA like Sections 2 and 3(c). And because the Court has never held that Boerne applies to Congress’s Fifteenth Amendment enforcement authority, those provisions can still be defended under Katzenbach’s rationality standard.

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