In recent years, the Supreme Court has repeatedly invalidated congressional legislation enacted pursuant to Section 5 of the Fourteenth Amendment. The Court has severely restricted this avenue for Congress to remedy and prevent discrimination. Soon, the Court may have the opportunity to address this issue again and resolve a circuit split concerning the Family and Medical Leave Act of 1993. In light of this opportunity, this Note examines the evolution and scope of the Section 5 power. The Note traces the history and varied interpretations of the Fourteenth Amendment, as well as Section 5 legislation and Court precedents reviewing that legislation. The Note concludes that when faced with the issue again, the Court should return to its former deference to congressional efforts to remedy and prevent discrimination pursuant to Section 5.
Kimberly E. Dean, In Light of the Evil Presented: What Kind of Prophylactic Antidiscrimination Legislation Can Congress Enact After Garrett, 43 B.C.L. Rev. 697 (2002), https://lawdigitalcommons.bc.edu/bclr/vol43/iss3/3