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New Groups and Old Doctrine: Rethinking Congressional Power to Enforce the Equal Protection Clause

73 Pages Posted: 26 Aug 2009 Last revised: 25 Oct 2009

William D. Araiza

Brooklyn Law School

Date Written: October 22, 2009


This Article considers the Supreme Court’s current approach to judicial review of federal legislation enforcing the Equal Protection Clause. It starts from the assumption that the Court will not abandon the judicial supremacy principle it expressed in City of Boerne v. Flores; thus, any approach to congressional enforcement power must accommodate that supremacy. The Article begins by critiquing the Court’s current understanding of Boerne, and explaining how new and pending enforcement legislation poses major challenges under that doctrine. It then sketches a theory of the enforcement power in which Congress must abide by judicial statements of constitutional meaning, but where court opinions are read more carefully to distinguish between true statements of constitutional law and sub-constitutional decision rules. Congressional enforcement power must not conflict with the former. In addition, to the extent those statements are vague or general, they nevertheless channel congressional enforcement discretion by pointing to follow-on inquiries that Congress must satisfactorily answer in order for the Court to uphold its legislation. The Article then applies this new approach to three new pieces of equality legislation that are either currently in force or under consideration: the Employment Nondiscrimination Act, employment protection for transgendered people, and the Genetic Information Nondiscrimination Act. This application illustrates the theory in action. It also allows us to draw more general conclusions about the theory’s workability and appropriateness as a tool for reviewing future enforcement legislation, both under the Equal Protection Clause and other components of the Fourteenth Amendment.

Keywords: equal protection, congressional enforcement power, civil rights, con-discrimination, Section 5, employment discrimination, genetic discrimination, gay and lesbian, transgendered

Suggested Citation

Araiza, William D., New Groups and Old Doctrine: Rethinking Congressional Power to Enforce the Equal Protection Clause (October 22, 2009). Florida State University Law Review, Vol. 37, 2010; Brooklyn Law School, Legal Studies Paper No. 159. Available at SSRN:

William D. Araiza (Contact Author)

Brooklyn Law School ( email )

250 Joralemon Street
Brooklyn, NY 11201
United States

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