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Applying Section 5: Tennessee v. Lane and Judicial Conditions on the Congressional Enforcement Power |
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Kevin S. Schwartz [View as PDF]
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114 Yale L.J. 1133 (2005)
Section 5 of the Fourteenth Amendment grants Congress the "power to enforce, by appropriate legislation," the Equal Protection and Due Process Clauses. Yet in the past seven years the Supreme Court has invalidated five different laws--including three landmark civil rights laws--as exceeding Congress's power to enforce the Fourteenth Amendment. This Note reveals changes in the Court's review of the Section 5 power by examining its ruling last Term in Tennessee v. Lane, in which it upheld for the first time Congress's effort to enforce the Due Process Clause. The Note contends that while Lane affirms the Court's claim to exclusive interpretive authority, the Court applied its tests for valid enforcement legislation in important new ways that vindicate a more expansive Section 5 power for Congress.
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