Congressional Enforcement Powers - Next Generation Bar Exam

1. Under City of Boerne v. Flores, what test governs legislation enacted under Section 5 of the Fourteenth Amendment?

   Congruence and proportionality between the injury to be prevented and the means adopted. Congress must identify a pattern of unconstitutional state conduct that the remedy addresses.

2. On what power, other than Section 5, did the Court uphold the ban on race discrimination in public accommodations?

   The Commerce Clause. Heart of Atlanta Motel upheld Title II of the Civil Rights Act of 1964 as a regulation of commerce.

3. Against whom does the Thirteenth Amendment's prohibition of slavery operate?

   Both government and private persons. Unlike the Fourteenth Amendment, the Thirteenth contains no state-action requirement.

4. What did City of Boerne hold about the Religious Freedom Restoration Act as applied to the states?

   It exceeded Congress's Section 5 power. RFRA was out of proportion to any pattern of unconstitutional state conduct.

5. What kind of Section 5 legislation may prohibit conduct that is not itself unconstitutional?

   Prophylactic legislation congruent and proportional to a documented pattern of state violations. Congress may sweep somewhat beyond the conduct the courts would find unconstitutional, if the fit is close.

6. What did Shelby County v. Holder hold about the Voting Rights Act's coverage formula?

   It was unconstitutional because it relied on decades-old data that no longer justified treating covered states differently. The decision left in place the preclearance provision but without a valid formula to apply it.

7. Invoking Section 5, Congress lets victims of gender-motivated violence sue their private attackers. On what ground is the provision invalid?

   Section 5 does not authorize Congress to regulate purely private conduct. United States v. Morrison held that the Fourteenth Amendment restricts only state action.

8. Under Tennessee v. Lane, which application of Title II of the ADA was valid Section 5 legislation?

   Requiring access to the courts for persons with disabilities. The right of access to the courts is a fundamental right with a history of state violations.

9. What may Congress not do under Section 5 of the Fourteenth Amendment?

   Change the substance of Fourteenth Amendment rights as the courts define them. Section 5 is remedial; it enforces rights but does not redefine them.

10. What does Section 2 of the Thirteenth Amendment permit Congress to do?

    Rationally determine and eliminate the badges and incidents of slavery, including by regulating private conduct. Jones v. Alfred H. Mayer Co. upheld a ban on private racial discrimination in property sales on this basis.

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