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Bench Memos

NRO’s home for judicial news and analysis.

Kagan and the ‘Congruent and Proportional’ Test



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Kagan, in response to Senator Specter’s questioning, signals that she might well be willing to throw out this test, which requires that legislation passed by Congress under the enforcement clause of, for example, the Fourteenth Amendment be “congruent and proportional” to the substance of what’s in that amendment. Specter would prefer that Congress be able cite this or that provision of the Constitution, concoct some evidence that the legislation might have something to do with that provision, and then have the Court rubberstamp it under the “rational basis” standard. But a real inquiry into whether there is a connection between a statute and the provision in the Constitution it is supposedly enforcing is essential if Congress is to be limited in any meaningful way to its enumerated powers (and I don’t think Justice Scalia, notwithstanding his criticism of the “congruent and proportional” formulation of this inquiry, would disagree). So Kagan’s wink to Specter here is disturbing.



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