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Section 5 heightened scrutiny proportionality
Posted: Sun Apr 21, 2013 12:07 pm
by laxbrah420
so heightened scrutiny for section 5 abrogation means congress can be less congruent --they don't need to actually be responding to something real (Hibbs)..but do they still need to be just as narrowly tailored (proportional) in how they purport to solve the problem? In other words how is the substantive analysis of congressional laws authorizing 11th amendment bypass affected by heightened scrutiny?
Re: Section 5 heightened scrutiny proportionality
Posted: Sun Apr 21, 2013 1:08 pm
by jkpolk
laxbrah420 wrote:so heightened scrutiny for section 5 abrogation means congress can be less congruent --they don't need to actually be responding to something real (Hibbs)..but do they still need to be just as narrowly tailored (proportional) in how they purport to solve the problem? In other words how is the substantive analysis of congressional laws authorizing 11th amendment bypass affected by heightened scrutiny?
A remedy generally has to be narrowly tailored to a violation. A constitutional law that creates a cause of action against a state will be able to justify broader remedies when there is heightened scrutiny because state action, which substantively triggers heightened scrutiny, is probably pretty bad.
It all depends on the facts- but rule of thumb, as the violation gets more racial/gender-y and less retard/methadone-y the permissible remedy/ability to abrogate 11th amendment protection broadens.