An Equal Protection Clause for the States
This is one way of understanding the Court’s decision in Shelby County v. Holder. In other words, the Court is now applying tiers of scrutiny to regulatory statutes that facially discriminate between states. Let me explain what I mean by that, as it will be part of the Article that I’m writing about “Constitutional Realignments.”
We can probably agree that a law exempting one state from its regulatory requirements without any explanation would at least raise questions under rational basis review. (It turns out, apparently, that parts of ERISA do not apply in Hawaii for reasons that I don’t understand.) Shelby County went further than this. The Court held that the record amassed by Congress when the Voting Rights Act was renewed in 2006 was insufficient to justify that facial discrimination between the states. Why was that evidence inadequate? Is there a reason to distinguish Congress’s power pursuant to the Commerce Clause from its powers under the Reconstruction Amendments? Or is there something special about state authority over voting that calls for more demanding judicial scrutiny? Or will the holding of Shelby County be expanded to include all regulatory statutes that facially discriminate between states, as Justice Ginsburg worried about in her dissent?
Another question going forward is whether Shelby County will remain confined to facial state discrimination on regulation. There are not many laws that expressly differentiate between states in this regard (though the sports-betting law than I’ve blogged about before is vulnerable because it lets Nevada do things that most other states cannot). There are more federal laws, though, that intentionally discriminate between states with saying so. I doubt that the Court would want to take its new principle to cover that, but that approach would be a powerful restraint on the authority of Congress.