Even If Congress Pretends H.R. 1 Is Constitutional, The Supreme Court Can’t

Even If Congress Pretends H.R. 1 Is Constitutional, The Supreme Court Can’t

If Congress were to enact such a sweeping law – replacing election laws in all states – it would be doomed by a constitutional principle even the most liberal justices have recently endorsed.
Nathan Lewin
By

The Democrat House majority has approved H.R. 1, an almost 800-page law with a 15-page table of contents and a final section reaching five digits. The law is designed, it says, “to protect the right to vote, to regulate elections for Federal office, to prevent and remedy discrimination in voting, and to defend the Nation’s democratic process.” It’s titled the “For the People Act of 2021.”

A neutral observer might be surprised to learn there is not a single congressional hearing nor legislative factual finding demonstrating the need for any of the hundreds of provisions in this all-encompassing legislation. The full text of the bill was first introduced on January 3, 2019, and it was passed by the House barely two months later, with no consideration by any committee, in a strict party-line vote of 234-193. It went nowhere in the Republican-controlled Senate.

After the 2020 election, the House passed it again on March 3, 2021, this time by a closer 220-210 vote, but still with no committee consideration or legislative finding. Its supporters call it “the most comprehensive anti-corruption reform since Watergate,” and the Senate’s Democrat leadership is threatening to end the established filibuster rule requiring bipartisan support for legislation so it can pass H.R. 1 before the 2022 election.

If Congress were to enact such a sweeping law – replacing election laws in all states – it would be doomed by a constitutional principle even the most liberal justices of the Supreme Court have recently endorsed.

Copyright law provides the most recent precedent for invalidating H.R. 1. In 2019, the Supreme Court heard a challenge to a 1990 law eliminating the sovereign-immunity defense states had invoked if they were sued for copyright infringement. A photographer whose videos had been used by North Carolina without his permission sued the state, claiming the 1990 law removed its claim that it could not be held accountable in court for infringement.

A unanimous Supreme Court – including the late Justice Ruth Bader Ginsburg – found the 1990 law unconstitutional because it was too broad. Justice Elena Kagan’s opinion in Allen v. Cooper, issued on March 23, 2020, said the law violated the “congruence and proportionality” principle by which the Supreme Court has uniformly measured congressional legislation. The law “swept too far,” she said, and its “indiscriminate scope” was “out of proportion” to any problem Congress was seeking to address.

Unlike H.R. 1, the 1990 copyright law was the subject of a congressional report, which the court still found inadequate to sustain the law because it cited “just two examples of patent infringement suits against the States.”

“Congruence and proportionality” mean a law cannot be indiscriminately broad unless there is evidence such sweeping coverage is necessary. Congress may not displace a large area of local legislation, but must selectively address specific ills shown through legislative hearings and committee findings.

This “congruence and proportionality” standard was also the basis for a ruling in 2000 upholding state immunity from lawsuits under the Americans with Disabilities Act in Board of Trustees of the University of Alabama v. Garrett. The justices who dissented in the Garrett case agreed “congruence and proportionality” were essential, but they would have upheld the law because of a “vast legislative record” in 13 congressional hearings that found discriminatory treatment “throughout society in general.”

The most compelling precedent showing the unconstitutionality of H.R. 1 is the Supreme Court’s invalidation of provisions of the Religious Freedom Restoration Act (RFRA). RFRA authorized lawsuits against state and local governments for imposing burdens on religious rights. The Court ruled in City of Boerne v. Flores in 1997 that RFRA – passed by an almost-unanimous bipartisan Congress – “reflect[ed] a lack of proportionality or congruence between the means adopted and the legitimate end to be achieved.”

Congress then held hearings “spanning three years” on religious discrimination in local prisons and in the application of local zoning laws. They resulted in the Religious Land Use and Institutionalized Persons Act (“RLUIPA”) which was upheld in 2005 with a unanimous opinion by Justice Ruth Bader Ginsburg in Cutter v. Wilkinson.

The City of Boerne decision addressed whether RFRA qualified under Section 5 of the Fourteenth Amendment, which authorizes the amendment’s enforcement by “appropriate legislation.” H.R. 1 invokes not only Section 5 of the Fourteenth Amendment but also the Constitution’s “Elections Clause” in Article I, Section 4, Clause 2.

This general congressional authorization to “make or alter regulations” enacted by state legislatures is, however, no broader than Congress’ power under the Intellectual Property Clause (Section 8, Clause 8) to grant copyrights and patents. And in her 2020 Allen v. Cooper opinion, Justice Kagan ruled the Intellectual Property Clause did not abrogate states’ sovereign immunity.

The limited “make or alter” power granted Congress in a subsidiary clause does not entitle it to enact a sweeping law that is neither “congruent” nor “proportional.” H.R. 1 would replace the authority explicitly assigned by the same constitutional section to “each State by the Legislature thereof.” If H.R. 1 is now enacted, it is a dead man walking to certain execution under binding Supreme Court precedent.

Nathan Lewin is a Washington lawyer who has argued 28 cases in the Supreme Court and has taught at Columbia, Harvard, Georgetown, and University of Chicago Law Schools.

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