On September 21, 2011, District Court Judge John D. Bates issued a long opinion in the case of Shelby County v. Holder. Shelby County challenged the reauthorization of Section 5 of the Voting Rights Act. In essence, this case is a modern day South Carolina v. Katzenbach.
The issues remain the same. Did Congress exceed its power when reauthorizing the Voting Rights Act? Can Congress interfere with state sovereignty by demanding preclearance of new voting laws in jurisdictions that have a history of discrimination at the polls? Despite the factual and issue similarities, however, the context surrounding this case and the others coming up through the federal court system challenging Section 5 is very different. The Warren Court decided South Carolina v. Katzenbach in 1966. The New Deal expanded congressional power in terms of economic regulation and the Great Society pushed congressional and federal power into larger areas of social regulation. The Warren Court aided this effort by broadly interpreting the commerce power, the necessary and proper clause, and the amendment enforcing powers of Congress.
The current cases may ‘stand on all fours’ with Katzenbach, but the judicial context has changed dramatically. In the shadow of Lopez and Morrison, Congress overreach is examined more carefully. The commerce clause combined with the necessary and proper clause is no a longer blank check. The current Roberts Court, along with its more recent predecessor, seem to be quite unwilling to use the elastic clause and commerce power to expand the reach of Congress and force the legislature to justify further extensions. The opinion by Judge Bates suggests that this scrutiny may travel to Congress’ amendment enforcing powers as well.
In his opinion, Judge Bates takes a good deal of time discussing whether Section 5 has worked too well to allow reauthorization. He concludes that his examination of the lengthy record shows that Congress has justified the continuation of Section 5. “Based on the evidence contained the 15,000-page legislative record, this Court concludes that Congress did just that.” In other words, Congress compiled a large enough record of continuing discrimination in voting to allow the broad federal powers exerted under Section 5 to continue.
Several questions come to mind in the wake of this decision. First, if this reauthorization had occurred before the decisions in Lopez and Morrison, would a District Court judge require the depth and breadth of support from Congress before upholding the reauthorization? Second, has Congress changed its behavior in the aftermath of Morrison to ensure that the record is sufficient to withstand the scrutiny of the new judicial federalism? Third, when this issue is presented before to the Supreme Court, how will the justices respond? Will they defer to the legislative record and congressional power as Judge Bates did? Or will they ignore that record and use the same scalpel on the scope of amendment enforcing powers as they have done in other cases dealing with the commerce clause power?