The Yale Law Journal
Craig Konnoth, Comment, Section 5 Constraints on Congress Through the Lens of Article III and the Constitutionality of the Employment Non-Discrimination Act, 120 Yale L.J. 1263 (2011), available at https://scholar.law.colorado.edu/faculty-articles/447.
The Employment Non-Discrimination Act (ENDA) that will (hopefully) soon prohibit discrimination against LGB, and ideally, T, individuals, allows state employees to sue states for this discrimination. Scholars and activists fear that these provisions will be struck down as violative of state sovereign immunity, using the Court's recent jurisprudence on Section 5 of the Fourteenth Amendment. This jurisprudence requires Congress to put forth evidence of past state violations of a defined constitutional right before it can subject states to suit. This Congress has done.
However, this Comment suggests that a new requirement of Section 5 legislation is in the works. Key Justices have hinted that Congress cannot make the state liable for constitutional violations for which states already provide remedies. This is ENDA's Achilles' heel as many states *do* putatively provide remedies for LGB discrimination.
I suggest that the Court's rationale for this is similar to the rationale behind the mootness doctrine: constitutional actors must behave in a time-bounded way, acting on problems only as long as they are before them, rather than acting anticipatorily. I point out however, that just as mootness doctrine requires a court to intervene in certain situations even when the controversy is at an end, so too does the problem that ENDA is solving require Congress to intervene to fully solve the problem of LGBT discrimination.
The Comment is the start of a broader research project on the temporal limits of action by constitutional actors and will also contribute to an independent project on Congress-Court relationship.
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