In the past five years, the Supreme Court has reduced the scope of Congress's powers under the Fourteenth Amendment. The Court's contemporary approach to Congress's authority denies Congress the opportunity to enact civil rights legislation benefiting "non-suspect" minority groups. This jurisprudence raises serious separation of powers concerns and virtually deprives Congress of its power to enact legislation to curb potentially unconstitutional state action.
In contrast to the monumental Supreme Court decision in Board of Trustees of the University of Alabama v. Garrett, this Note argues that extending Title I of the ADA to the states is well within Congress's section 5 authority. This Note further contends that the Supreme Court's recent limiting of Congress's Fourteenth Amendment power is inconsistent with precedent and fundamentally blurs the separation of powers between Congress and the judiciary.
The Erosion of Separation of Powers under the Congruence and Proportionality Test: From Religious Freedom to the ADA,
53 Hastings L.J. 519
Available at: https://repository.uchastings.edu/hastings_law_journal/vol53/iss2/4