Since 1997, a sharply divided Supreme Court has decreed that all laws enacted by Congress in exercise of its enforcement powers under the Fourteenth Amendment must pass a newly-minted test of "congruence and proportionality." The Court insisted that the test is necessary to restrain Congress from enacting "substantive" legislation that transgresses its "remedial" powers and unconstitutionally intrudes upon the domain of state sovereignty. Every enforcement legislation that subsequently came up for the Court's scrutiny was held unconstitutional for failure to satisfy the proportionality test. The most heartwrenching casualty of the test is the American with Disabilities Act, which the Court ruled unenforceable against the States.
In this Article, Professor Pillai demonstrates that "proportionality" is an amorphous and indeterminate standard long discarded by its judicial adherents as unobjective and unworkable in multiple contexts under the Eighth and Fifth Amendments. He compares the Court's merciless acquiescence to State discrimination against the disabled with its uncompromising enforcement with little or no regard for state sovereignty of strict anti-discrimination rules against interstate commercial discrimination. The Court has, in effect, fashioned two sets of anti-discrimination rules - one somewhat insensitive to human values and the other overly protective of commercial interests. Professor Pillai argues that there is no warrant in the Constitution or in relevant judicial precedents for imposing the inherently undefinable and inarticulate standard of proportionality on Congress and that it should be expunged from the Fourteenth Amendment jurisprudence.
K. G. Jan Pillai,
29 Hastings Const. L.Q. 645
Available at: https://repository.uchastings.edu/hastings_constitutional_law_quaterly/vol29/iss4/2