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18 U. Pa. J. Const. L. Online 1 (2015-2016)

handle is hein.journals/jclon18 and id is 1 raw text is: THE ENFORCEMENT POWER IN CRISIS William D. Araiza* 1. THE PROBLEM It may seem hyperbolic to declare the enforcement power to be in cri- sis. But developments over the last decade have raised serious questions about the coherence and credibility of judicial scrutiny of enforcement legislation. At the same time, the results of that scrutiny-most notably, the Supreme Court's 2013 decision in Shelby County v. Holder'-threaten the legacy of the Second Reconstruction. If we recognize that enforce- ment power scrutiny appears analytically incoherent, lacking in compe- tence-based credibility, and destructive of one of the crown jewels of the modern civil rights movement, it becomes less shrill to use the word cri- sis to describe the current state of affairs. Two developments have caused much of the problem. First, the Court has created both analytical confusion and practical dead-ends by focusing its enforcement power analysis on judicially created doctrine, rather than core constitutional meaning. Most notably, its congruence and propor- tionality review of equal protection enforcement legislation has em- ployed as its focal point the tiered scrutiny level a group enjoys. I have ar- gued elsewhere that this approach misconceives the proper inquiry, by examining whether enforcement legislation is congruent and proportional to that judge-created decisional heuristic, rather than to any core equal protection requirements the challenged legislation seeks to enforce.2 This analytical mistake has become a high-stakes matter. The Court's seeming abandonment of serious suspect class analysis, in favor of a more particularized, case-by-case inquiry into whether the challenged action re- flects irrationality, or more frequently, animus, threatens to destabilize * Professor, Brooklyn Law School. Thanks to my fellow participants on the AALS annual meeting panel on the enforcement power for thought-provoking presentations. Thanks especially to Derek Muller for creating the panel and managing the program. 1 133 S. Ct. 2612, 2631 (2013) (striking down the formula governing the geographic scope of the Voting Rights Act's preclearance provisions). 2 See, e.g., William D. Araiza, New Groups and Old Doctrine: Rethinking Congressional Power to Enforce the Equal Protection Clause, 37 FLA. ST. U. L. REV. 451, 453 (2010); William D. Araiza, The Section 5 Power and the Rational Basis Standard of Equal Protection, 79 TUL. L. REV. 519, 524 (2005); see also WILLIAM D. ARAIZA, ENFORCING THE EQUAL PROTECTION CLAUSE: CONGRESSIONAL POWER, JUDICIAL DOCTRINE, AND CONSTITUTIONAL LAW (NYU Press, 2015). 1

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