The Section 5 Power After Tennessee v. Lane

Abstract

This Article considers the important moves by the Court and individual justices in Lane. After introducing the case, it begins its analysis in Part I with an examination of how the Court characterized the constitutional violation Congress sought to remedy in Title II of the ADA. Part II then considers how the Court construed the evidence of such constitutional violations. Part III considers the problem posed by the breadth of the statute in relation to the constitutional violations the Court focused on. These first three parts reflect the standard Section 5 analysis the Court has engaged in under Boerne: determining the scope of the constitutional violation targeted by the legislation, considering any evidence suggesting that the problem was worse than what was indicated by the Court's own jurisprudence, and then comparing the result to the statute to determine whether the latter is "congruent and proportional. These first three Parts examine whether Lane suggests a different Court approach to these issues. Part IV considers the Court's and Justice Scalia's approaches in light of their potential effect on other likely future Section 5 issues. The Article concludes in Part V by evaluating Lane's place in the Court's unsteadily evolving Section 5 jurisprudence.