Part Two: Recent Developments in the Doctrine of Implied Powers
The Court in South Carolina v. Katzenbach cited McCulloch as precedent for construing the Fifteenth Amendment’s enforcement clause:
The basic test to be applied in a case involving [Section] 2 of the Fifteenth Amendment is the same as in all cases concerning the express powers of Congress with relation to the reserved powers of the States. Chief Justice Marshall laid down the classic formulation, 50 years before the Fifteenth Amendment was ratified:
"Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional." McCulloch v. Maryland, 4 Wheat. 316, 421.
The Fifteenth Amendment enforcement clause was construed to mean exactly the same means-end rule announced almost one hundred and fifty years before. So McCulloch lives! But it has been wounded a bit in recent years, and thus we must add a footnote to this story, courtesy of the Rehnquist Court’s efforts to rein in federal powers and relax some of the restrictions on state powers that had been imposed up through the late twentieth century.
The Court in Katzenbach justified the Voting Rights Act on the grounds that it was an appropriate remedy for the proven violations of the Fifteenth Amendment over the years. In other words, Congress acted in response to violations of the Amendment; the Voting Rights Act was not simply a law based upon it. This slight distinction makes a difference.
In a 1997 case, City of Boerne v. Flores, a federal law—the Religious Freedom Restoration Act of 1993 (“RFRA”)—was challenged as exceeding the power of Congress under the enforcement clause of the Fourteenth Amendment, upon which Congress relied for the legislative authority to enact the RFRA. The Act prohibited "government" from "substantially burdening" a person's exercise of religion even if the burden results from a rule of general applicability unless the government can demonstrate the burden "(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that . . . interest."
The Court surprisingly struck down the RFRA, reasoning that under the enforcement clauses of constitutional amendments, Congress has only “remedial” and “preventive” authority. The Court carefully reviewed the opinion in the Katzenbach case and highlighted the references in that case to the problem—to the violations of the Fifteenth Amendment—that Congress was addressing in the Voting Rights Act of 1965. In City of Boerne the Court could find no pattern of violations of the Fourteenth Amendment Due Process Clause that the RFRA was intended to address. Thus, the RFRA was not a remedial but a “substantive” statement of what the Fourteenth Amendment Due Process Clause requires, and this Congress may not do. “The Amendment's design and Section 5’s text are inconsistent with any suggestion that Congress has the power to decree the substance of the Amendment's restrictions on the States.” Thus, the Court established a rule for enforcement clauses that differs slightly, but significantly, from the McCulloch formula. This was the first departure from that famous rule in more than 170 years, but it is presumptively the rule today.
In the National Federation of Independent Business (“NFIB”) case, the Affordable Care Act required individuals to purchase medical insurance—the “individual mandate.” Congress justified this action as an exercise of its Commerce Clause and Necessary and Proper Clause authority. The Commerce Clause, which we shall take up as the next topic, is also a source of broad legislative authority; in the NFIB case, as in many others, it provides the “legitimate end” for which Congress is providing the necessary and proper means in specific legislation. In one of the rare occurrences in constitutional law over the past seventy-five years, the Supreme Court held that the Necessary and Proper Clause did not justify this exercise of Congress’s implied power. The Court held that the legal requirement to buy or obtain medical insurance, while perhaps a necessary means to accomplishing health insurance reform, was not a proper means because it was not “narrow” enough in scope and was not “incidental” to Congress’s regulation of commerce. “The individual mandate, by contrast, vests Congress with the extraordinary ability to create the necessary predicate to the exercise of an enumerated power.” But, as we shall see, there was more than one way to skin that cat.