Given all the discussion in today’s oral argument about the “congruence and proportionality” test under Boerne for assessing the scope of congressional enforcement power under the Fourteenth and Fifteenth Amendments (an issue I addressed in my first SCOTUSblog post on Callais), it seems to me worth considering whether, as applied to congressional districting (which is what Callais itself involves), the analysis of the Shaw-based constitutional challenge to the district created to avoid a VRA section 2 violation changes at all if one views section 2 in this context as an exercise of Congress’s power under Article I, section 4 to determine the “times, places, and manner” of congressional elections–rather than as an exercise of Congress’s Fourteenth and Fifteenth Amendment enforcement powers.

For one thing, my strong impression is that under the Court’s precedents the Court is supposed to sustain an exercise of congressional power if there is any basis for doing so. Even if Congress lacks the power to enact a law under one source of authority under the Congress, the law must be sustained if it can be considered as a valid exercise of a different source of constitutional authority. Consider, for example, Chief Justice Roberts’s decisive opinion for the Court in National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012), the case that upheld the individual mandate in the major Obamacare law. After Roberts concluded that the individual mandate could not be sustained as an exercise of congressional power under the Interstate Commerce Clause, he went on to consider–and uphold–the individual mandate as a valid exercise of Congress’s Taxing power. He did this even while acknowledging that construing the individual mandate as a tax law, rather than a regulation, was not at all the most natural reading of the statute. I haven’t thought through whether similar reasoning could be employed to sustain the applicability of VRA’s section 2 to congressional districts under Article I, section 4, even if for some reason (with which I don’t agree with, to be clear) it could not be sustained under Boerne‘s congruence and proportionality test for legislation to enforce the Fourteenth and Fifteenth Amendments.

Assuming for sake of consideration that the VRA section 2’s result test applied to congressional districts is an exercise of Article I, section 4 power, what then? The plaintiffs in Callais would still be challenging Louisiana’s second majority-black district as a violation of Shaw v. Reno and its progeny. Here is where it seems especially important to acknowledge just how inconsistent with originalism Shaw v. Reno is (as I discussed in my second SCOTUSblog piece on Callais). In this regard, it is worth recalling that there is no Equal Protection Clause applicable to congressional statutes. To be sure, there are many precedents going back to Bolling v. Sharpe holding that the federal government must be bound by Equal Protection principles to the same extent as states are. But that is an entirely non-originalist exercise of constitutional interpretation, and anytime the Supreme Court is prepared to say that Congress has acted unconstitutionally by violating Equal Protection principles, the justices–especially originalist justices–should pause and ask themselves whether they really should be invalidating what Congress is doing under an exercise of their Marbury v. Madison authority “to say what the law is.” Or is their potential judicial decree to nullify the Act of Congress in question just legislating from the bench when the Court is demanding that Congress obey its conception of Equal Protection?

One can argue whether or not the Shaw doctrine should constrain race-based districting by states that is not required to remedy a VRA section 2 violation. I think Shaw is inconsistent with originalism even if that context. But when a congressional district is drawn because Congress itself has required a remedy for vote dilution, then invalidating that district is to say that Congress cannot undo racially discriminatory vote dilution even with respect to representation in Congress itself. That position seems untenable as an effort to be faithful to what Congress actually did when it sent the Fourteenth Amendment to the states for ratification.