Southern district of alabama southern division

A. Congress' Section 5 Powers Are Broad

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A. Congress' Section 5 Powers Are Broad

Section 5 of the Fourteenth Amendment grants Congress the "power to enforce, by appropriate legislation, the provisions of the Fourteenth Amendment," including those barring the states from depriving citizens of "equal protection of the laws." U.S. Const. Am. 14, § 5. It is well established that Congress' authority under the Fourteenth Amendment includes the power to reach the conduct not only of States, but of local governments, such as the City of Mobile. See, e.g., Lombard v. Louisiana, 373 U.S. 267, 273 (1963); The Civil Rights Cases, 109 U.S. 3 (1883); Ex Parte Virginia, 100 U.S. 339 (1880).3

Section 5 authorizes Congress not only to provide remedies for violations of the Fourteenth Amendment, but also to amplify its substantive protections. Katzenbach v. Morgan, 384 U.S. 641, 648-49 (1966); cf. City of Richmond v. J.A. Croson Co., 488 U.S. 469, 490 (1989) (O'Connor, J., concurring and dissenting)(Congress' power to enforce the Fourteenth Amendment includes "the power to define situations which Congress determines threaten principles of equality and to adopt prophylactic rules to deal with those situations"). The Federal courts, in a variety of contexts, have upheld legislation under Section 5 that created broader rights than the Constitution itself mandates.

For example, in Katzenbach v. Morgan, 384 U.S. 641, the Supreme Court held that Congress had authority to bar the states from requiring literacy tests of persons who had attained a sixth grade education in Puerto Rico, even though the Court had previously ruled in Lassiter v. Northampton County Bd. of Elections, 360 U.S. 45, 53-54 (1959), that a state's use of literacy tests does not deny equal protection. The Court reasoned that Congress could prohibit such tests to protect against what Congress found to be a denial of equal protection, the judiciary's more limited view of equal protection notwithstanding. Morgan, 384 U.S. at 649, 652. The Court explained that Section 5 does not "confine the legislative power . . . to the insignificant role of abrogating only those state laws that the judicial branch was prepared to adjudge unconstitutional," id. at 648-649, but rather grants it broad power to "extend[]" the protections provided by the Constitution. Id. at 657.4

There is thus no merit to the City's suggestion that Section 5 of the Fourteenth Amendment empowers Congress only to enact legislation redressing race discrimination. See Defendant's Supplemental Brief in Support of Summary Judgment at 18. The Equal Protection Clause itself has never been so narrowly construed. The Equal Protection Clause is "essentially a direction that all persons similarly situated should be treated alike." City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985), citing Plyler v. Doe, 457 U.S. 202, 216 (1982). Indeed, the Supreme Court, using various levels of scrutiny, has held that the Clause prohibits discrimination on the basis of, inter alia, sex,5 national origin,6 alienage,7 disability,8 poverty,9 illegitimacy,10 length of residency,11 property ownership,12 and living in a household of unrelated persons.13 Moreover, as the cases collected in footnote 4, supra, demonstrate, Congress has power under Section 5 of the Fourteenth Amendment to enact legislation providing for broader rights than the Amendment itself secures directly.

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