856 THE GEORGETOWN LAW JOURNAL [Vol. 64:839 reached the same result in the second part of its analysis. Since it perceived a basis, such as hidden prejudice against Spanish-speaking people, upon which Congress might reasonably predicate its judgment that the New York literacy requirement was invidiously discriminatory, the Court was willing to uphold the legislation even if the statute was aimed solely at eliminating such discrimination." If the court in Morgan had limited its rationale to the first conclusion, that Congress may extend the vote to a class of persons injured by discriminatory allocation of government services by a state, Morgan would offer no support for legislation aimed at eliminating court-ordered busing. A court still would retain authority to determine whether discrimination exists and whether the legislative remedy is reasonably related to the proper goal. By suggesting that Congress can legislate to address specific violations of the equal protection clause, however, the Court in Morgan may have conferred on Congress the power to define the reach of equal protection.100 Justice Harlan specifically attacked this portion of the majority's opinion as allowing Congress to define constitutional rights “so as in effect to dilute [the] equal protection and due process decisions of this Court." 99101 Justice Harlan's fears may prove accurate: if congressional opponents of school busing conclude that the fourteenth amendment does not require busing, their finding, if supported by a rational basis, may bind the courts. Opponents of busing might argue, alternatively, that by restricting the courts' authority to order school busing, Congress is implementing other constitutional rights such as the first amendment right to freedom of association.102 That five present Justices of the Supreme Court have explicitly acknowledged and relied on Morgan as the reason to respect congressional accommodations of conflicting rights and powers gives additional support to the critics' arguments." 99. 384 U.S. at 656. 103 100. See id. at 653; Burt, supra note 1, at 133. According to Burt, "Morgan allows a restrained Court, intent perhaps on undoing the work of its active predecessors, [to] permit a graceful and selective retreat limited to those areas where the political branch gives an explicit and contrary judgment." Id. 101. 384 U.S. at 668 (Harlan, J., dissenting). 102. Cf. Green v. County School Bd., 391 U.S. 430, 439-40 (1968) (Court struck down a freedom-of-choice integration plan, but refused to hold all freedom-of-choice plans unconstitutional). It might be argued that the first amendment freedom of association would be furthered by a freedom-of-choice plan. Freedom of association applies to the states through the fourteenth amendment. See NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460-61 (1958). 103. See Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 212 (1972) (White, with Blackmun, & Powell, JJ., concurring) (white tenants given standing under section 8(10)(a) 1976] FEDERAL COURT JURISDICTION 857 In a recent discussion of congressional power to restrict court-ordered busing under the Morgan rationale, Professor Archibald Cox concluded that Congress does have broad power to determine what constitutes a violation of equal protection. Writing in support of legislation to enact a uniform nationwide program of busing, Cox observed that section 5 makes it irrelevant whether the relief for violations of the fourteenth amendment granted under a. legislative enactment is greater or lesser than the courts would order.10 104 Cox concluded that the Morgan rationale requires judicial deference to congressional judgments to limit rights as well as to decisions to extend them.105 Reliance on Morgan to support the position that Congress has the power to restrict court-ordered busing rests on three questionable predicates: that congressional power to override state law under the fourteenth amendment is as broad as an expansive reading of Morgan would suggest; that Morgan authorizes Congress to override not only state actions, but also federal court constructions of the fourteenth amendment that are too restrictive; and that section 5 permits Congress to interpret the equal protection clause not only more broadly than the federal courts, but also more narrowly. Congress can rely on a broad reading of Morgan to prohibit court-ordered busing under section 5 of the fourteenth amendment only if each of these premises is correct. of Civil Rights Act of 1968 despite doubts of case or controversy under article III of Constitution); Welsh v. United States, 398 U.S. 333, 371 (1970) (White, J., with Burger, C.J., & Stewart, J., dissenting) (argument for respecting congressional judgment accommodating right to free exercise of religion with statute for raising armies). 104. Cox, supra note 2, at 259. 105. Id. at 259-60. Professor Cox's proposal and his rationale for its constitutionality were that: Congress, if it were willing, might do much better [than the Supreme Court] by enacting a uniform nationwide program, possibly one prescribing affirmative action under three heads: (1) Measures ensuring that the geographical lines for neighborhood schools are drawn and new schools are located so as to maximize integration; (2) additional steps, including bussing for a maximum distance or maximum time, wherever necessary to provide within each school district, or combined school district, a stated proportion of racially balanced schools; and (3) machinery by which students in a racially-unbalanced school might elect to transfer to a racially-balanced school or a school unbalanced in the opposite direction. There would seem to be as much reason for judicial deference to congressional findings and judgments with respect to the limits of the duties prescribed as there is with respect to their extension. Only Congress can enact a compromise rule-of-thumb without the need to justify it by the logical application of principle. 858 THE GEORGETOWN LAW JOURNAL [Vol. 64:839 THE PROPER REACH OF MORGAN The broad language in Morgan, cited in support of congressional power to invalidate state laws violating the fourteenth amendment, was unnecessary to the decision of the case. The Court's language appears to be an alternative holding rather than dictum, but subsequent decisions show that the Court has retreated from the more far-reaching implications of Morgan. In Oregon Mitchell106 the Court faced challenges to the constitutionality of provisions of the Voting Rights Act Amendments of 1970,107 which lowered the minimum voting age in state and federal elections from 21 to 18,108 barred the use of literacy tests under certain circumstances, 109 and forbade state imposition of residency requirements for presidential and vice-presidential elections.110 If the Morgan holding granted Congress carte blanche to enact legislation to remedy what Congress regards as denials of equal protection, the Court would have upheld the federal statute on that basis. Instead, the Court, in five separate opinions, struck down the section of the Act that extended the franchise to 18 year-olds in state and local elections. Only three Justices, Brennan, White, and Marshall, maintained that Congress had the power under section 5 to determine equal protection requirements as applied to the voting rights of 18 to 21 year-olds. They argued that since Congress had sufficient evidence to conclude that exclusion of such citizens from the franchise was unnecessary to promote any legitimate state interest, it could properly extend the franchise, regardless of the Court's view of the matter.1 None of the other Justices saw Congress' role as that extensive. Justice Stewart, joined by Chief Justice Burger and Justice Blackmun, found that Congress could not usurp the role of the courts by determining the boundaries of the equal protection clause.13 Rather than reading Morgan as granting Congress power to define the reach of the equal protection clause, Justice Stewart reasoned that the Court in Morgan only accepted an undoubtedly correct congressional conclusion that a state statute denying a racial group the right to vote amounts to invidious 106. 400 U.S. 112 (1970). 112 107. Pub. L. No. 91-285, 84 Stat. 314, amending 42 U.S.C. § 1973 (1970). 108. Id., 42 U.S.C. § 1973bb. 109. Id., 42 U.S.C. § 1973b. 110. Id., 42 U.S.C. § 1973aa. 111. 400 U.S. at 118, 124-31. 112. Id. at 240, 280-81 (Brennan, White, & Marshall, J.J., concurring and dissenting). 113. Id. at 296 (Stewart, J., with Burger, C.J., & Blackmun, J., concurring and dissenting). 1976] FEDERAL COURT JURISDICTION 859 discrimination under the equal protection clause.114 Justice Harlan agreed that Congress could not define the reach of equal protection; he reasoned that constitutional interpretation by the Congress conflicts with the procedures for amending the constitution, particularly because legislative determinations normally are accorded deferential judicial review.115 Justices Black and Douglas disagreed on the validity of the Voting Rights Act Amendments of 1970 because of their differing conceptions of the reach of the equal protection clause, but each assumed that the legal question was for the courts, not Congress, to decide.116 The opinions of the seven Justices who concurred in Mitchell indicate that section 5 does not confer unlimited power on Congress to determine the meaning of equal protection. Although the fragmented Court does not provide a precise guide to the proper limitations, a majority did reject the contention that section 5 authorizes Congress to define the substantive boundaries of the equal protection clause by invalidating state legislation."1 117 APPLICATION OF SECTION 5 TO FEDERAL COURT DETERMINATIONS Prior to Mitchell, those advocating broad congressional power under section 5 believed that the section gave Congress power, concurrent with the courts, to invalidate state legislation. Even if that reading of Morgan was not undercut by Mitchell, Morgan does not support a statutory prohibition of busing orders designed to remedy equal protection violations. The statute upheld in Morgan and the statute partially struck down in Mitchell were addressed to certain actions by the states. Antibusing proposals have a wholly different aim, to limit the equitable powers of the federal courts. Whatever the reach of section 5 as a vehicle for augmenting the power of Congress to regulate matters otherwise left to the states, it provides no authority for Congress to interfere with the execution or enforcement of federal court judgments or to overturn federal judicial determinations of the requirements of the fourteenth amendment. The 114. Id. at 295-96. 115. Id. at 205 (Harlan, J., concurring and dissenting). 116. Id. at 117-35 (Black, J., announcing judgments of the Court); id. at 135-52 (Douglas, J., separate opinion). 117. See Cox, The Supreme Court 1965 Term — Foreword: Constitutional Adjudication and the Promotion of Human Rights, 80 HARV. L. REV. 91, 106-07 (1966). See generally Engdahl, Constitutionality of the Voting Age Statute, 39 GEO. WASH. L. REV. 1 (1970). Cox does not appear to have been persuaded that the Mitchell case should be read to constrict the broad language of Morgan. See Cox, supra note 2, at 244-61. 860 THE GEORGETOWN LAW JOURNAL [Vol. 64:839 entire fourteenth amendment increased congressional power at the expense of the states, not of the federal courts. Consideration of the history of section 5 shows that it affects only the relationship between Congress and the states, not that between Congress and the federal courts. The framers of section 5 considered it a tool to enable "Congress, in case the States shall enact laws in conflict with the principles of the amendment, to correct that legislation by a formal congressional enactment."118 Senator Trumbull of Illinois viewed section 5 as the means of "destroy[ing] all these discriminations in civil rights [by the states] against the black man....' 99119 Other participants in the debates added that the purpose of the proposed section was to give Congress a means to enforce the fourteenth amendment,' ,120 to see that it "was carried out in good faith, and for [no] other [purpose] ...."121 Nothing in the legislative history intimates that the section would give Congress the power to overrule the federal courts. In fact, the framers apparently believed that the final wording of section 5 would avoid that possibility. The original draft of section 1 of the fourteenth amendment provided that "Congress shall have power to make all laws...to secure... to all persons... equal protection ...,"122 but the framers of the amendment rejected that formulation because it failed to secure the stated guarantees against a future unsympathetic Congress.' 123 The amendment as adopted secures these rights to all persons by placing Congress in the ancillary role of enforcer. The early cases arising under section 5 focused initially on the new relationship between Congress and the states and later on the role of the courts in determining violations of equal protection. In 1879 the Supreme Court in Ex parte Virginia 124 described the new federalism: The prohibitions of the Fourteenth Amendment are directed to the States, and they are to a degree restrictions of State power. It is these which Congress is empowered to enforce, and to enforce against State action. ... Such enforcement is no invasion of State sovereignty.... [T]he constitutional amendment was ordained for a purpose.' 125 118. CONG. GLOBE, 39th Cong., 1st Sess. 2768 (1866) (remarks of Senator Howard, who reported the amendment to the Senate from the Joint Committee on Reconstruction). 119. Id. at 322 (debate on Freedom's Bureau bill). 120. See CONG. GLOBE, 39th Cong., 1st Sess. 41 (1865) (remarks of Senator Wilson). 121. See id. at 43 (remarks of Senator Trumbull). 122. CONG. GLOBE, 39th Cong., 1st Sess. 1033-34 (1866). 123. See Burt, supra note 1, at 92-93. 124. 100 U.S. 339 (1879). 125. Id. at 346-47. |