Separation anxiety: Congress, the courts, and the Constitution

Georgetown Law Journal, Jan 2003 by Clinton, Hillary Rodham, Liu, Goodwin

33. More broadly, the Supreme Court has invalidated over twenty-six federal laws since 1995, a remarkable number in light of the fact that the Court struck down only 127 federal laws during the first 200 years after ratification of the Constitution. See Seth P. Waxman, Defending Congress, 79 N.C. L. REV. 1073, 1074 (2001).

34. See United States v. Lopez, 514 U.S. 549, 551 (1995).

35. See City of Boerne v. Flores, 521 U.S. 507, 511 (1997).

36. See Printz v. United States, 521 U.S. 898, 933 (1997); see also id. at 926 (relying on New York v. United States, 505 U.S. 144 (1992)).

37. See Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 691 (1999); Fla. Prepaid Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S. 627, 630 (1999).

38. See Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 67 (2000).

39. See United States v. Morrison, 529 U.S. 598, 602 (2000).

40. See Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 360 (2001).

41. See Lopez, 514 U.S. at 567 ("The possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce.").

42. Id. at 567-68.

43. See Morrison, 529 U.S. at 627 ("Petitioner Brzonkala's complaint alleges that she was the victim of a brutal assault. But Congress' effort . . . to provide a federal civil remedy can be sustained neither under the Commerce Clause nor under [sec] 5 of the Fourteenth Amendment.").

44. See Kimel, 528 U.S. at 82-83 ("[W]e conclude that the [Age Discrimination in Employment Act] is not 'appropriate legislation' under [sec] 5 of the Fourteenth Amendment.").

45. See Garrett, 531 U.S. at 374 ("[T]o uphold the [Americans with Disabilities] Act's application to the States would allow Congress to rewrite the Fourteenth Amendment law laid down by this Court . . . .").

46. See Post & Siegel, supra note 21, at 443.

47. See Hibbs v. Dep't of Human Res., 273 F.3d 844, 858-59 (9th Cir. 2001) (holding that Family and Medical Leave Act of 1993 was enacted pursuant to valid exercise of Congress's power to remedy continuing effects of past unconstitutional gender discrimination), cert. granted sub nom. Nev. Dep't of Human Resources v. Hibbs, 122 S. Ct. 2618 (2002) (argued Jan. 15, 2003).

48. Cf. Linda Greenhouse, Will the Court Reassert National Authority?, N.Y. TIMES, Sept. 30, 2001, at D14.

49. See 136 CONG. REC. H13,296 (Oct. 27, 1990); 136 CONG. REC. S17,595-607 (Oct. 27, 1990).

50. See 139 CONG. REC. H10,404-05 (Nov. 20, 1993); 139 CONG. REC. S16,301 (Nov. 19, 1993).

51. See 137 CONG. REC. H9557 (Nov. 7, 1991); 137 CONG. REC. S15,445-512 (Oct. 30, 1991).

52. See 136 CONG. REC. H2599, H2638 (May 22, 1990); 135 CONG. REC. S10,732, S10,803 (Sept. 7, 1989). A telling barometer of the bipartisan support for the ADA is the fact that President George Bush filed an amicus brief in Garrett in favor of upholding the ADA's full applicability to the states. See Charles Lane, Court Limits Scope of ADA; Decision Curtails Disabled State Employees' Ability to Sue, WASH. POST, Feb. 22, 2001, at A8.