The conventional wisdom is that, in a series of cases beginning with City of Boerne v. Flores, the Supreme Court erected high barriers against Congress's power to enforce fundamental rights under Section 5 of the Fourteenth Amendment and thereby to abrogate a state's Eleventh Amendment Immunity from private lawsuits. This Article shows that the conventional wisdom is inaccurate. The initial applications of the new Section 5 and Eleventh Amendment jurisprudence, which made abrogation dependent on effective Section 5 action, imposed high standards on what evidentiary record might justify enforcement legislation, and placed stringent limits on the remedies that might be "congruent and proportional" to the evils shown by the record. The Court linked the intensity of its review of the record to the deference given state action affecting the rights in question (the "Inverse Relation Principle"). For instance, treating Title I (employment) of the Americans with Disabilities Act as disability discrimination subject to "rational basis" review in University of Alabama v. Garrett led to a severe review of the record and tight constraints on permissible remedies, thus no abrogation of state sovereign immunity. But the inner logic of the earlier cases led to a more relaxed approach. The same principle called for less intensive review of the record when the degree of scrutiny could be raised. Thus, by treating Title II of the ADA in Tennessee v. Lane as involving due process rights, and therefore raising the degree of scrutiny, the Court held the opposite result for disability discrimination in public accommodation than the employment discrimination targeted in Garrett. The result has been a Section 5 and Eleventh Amendment jurisprudence far more amenable to federal anti-discrimination legislation and abrogation of the state's immunity than is widely understood.
Less than Meets the Eye: Antidiscrimination and the Development of Section 5 Enforcement and Eleventh Amendment Abrogation Law since City of Boerne v. Flores,
38 Hastings Bus L.J. 259
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