by Mitch Kokai
Senior Political Analyst, John Locke Foundation
If Congress manages to approve the sweeping federal election takeover envisioned in H.R. 1, the U.S. Supreme Court should respond. Nathan Lewin explains why in a Federalist column.
If Congress were to enact such a sweeping law – replacing election laws in all states – it would be doomed by a constitutional principle even the most liberal justices of the Supreme Court have recently endorsed.
Copyright law provides the most recent precedent for invalidating H.R. 1. In 2019, the Supreme Court heard a challenge to a 1990 law eliminating the sovereign-immunity defense states had invoked if they were sued for copyright infringement. A photographer whose videos had been used by North Carolina without his permission sued the state, claiming the 1990 law removed its claim that it could not be held accountable in court for infringement.
A unanimous Supreme Court – including the late Justice Ruth Bader Ginsburg – found the 1990 law unconstitutional because it was too broad. Justice Elena Kagan’s opinion in Allen v. Cooper, issued on March 23, 2020, said the law violated the “congruence and proportionality” principle by which the Supreme Court has uniformly measured congressional legislation. The law “swept too far,” she said, and its “indiscriminate scope” was “out of proportion” to any problem Congress was seeking to address.
Unlike H.R. 1, the 1990 copyright law was the subject of a congressional report, which the court still found inadequate to sustain the law because it cited “just two examples of patent infringement suits against the States.”
“Congruence and proportionality” mean a law cannot be indiscriminately broad unless there is evidence such sweeping coverage is necessary. Congress may not displace a large area of local legislation, but must selectively address specific ills shown through legislative hearings and committee findings.
This “congruence and proportionality” standard was also the basis for a ruling in 2000 upholding state immunity from lawsuits under the Americans with Disabilities Act in Board of Trustees of the University of Alabama v. Garrett.