учебный год 2023 / The power of Congress over the rules of precedent

can be tricky.That is especiallyso because Congresshas the power, says the Court, to adopt prophylacticrules that forbid both actual violations of Section 1 and otherwiseinnocent state action that may

be difficultto distinguishfrom actualviolations.'14In responseto this problem, the Court has enunciateda special form of the M'Culloch means-end analysis,one in which it carefullyexamines the proportionality between the problem Congress is ostensibly solving by adopting a supposed prophylacticrule and the proposed solution.1"5 City of Boerne thus provides a doctrinalmodel for examinationof rules of precedent.Such rules must be proportionedto the doctrineneutral,systemicconsiderationson which they may legitimatelyrest, andnot to the impermissiblepurposeof affectingresults.

Finally, the courts' close acquaintancewith stare decisis should reinforcetheir abilityto separatethe trulysystemicfrom the ad hoc. Judgesappearto have no difficultyin concludingthat a supposedrule of staredecisishas been trumpedup for the occasionin orderto produce a resultandnot for the reasonsnormallyassociatedwith rulesof precedent. "The Court'sreliance upon stare decisis can best be described as contrived,"Justice Scalia wrote in Casey,16 and in case anyonesomehowmissedthe point he went on to chargethat the principle the majoritywas standingby "is not a principleof law... but a principleof Realpolitick.""'7The more a congressionalrule of precedent appears to be designed for this day and train only, the more likely the courtswill be to regardit as an impermissibleintrusionon their authority.Certainlya statutethat dealt with a particularsubject matter would be very carefully examined in order to determine whetherit rested on an impermissiblepurpose.The courtsshouldbe quitecapableof protectingthemselvesfromcongressionalincursion.

In short, under the Necessaryand ProperClause, Congressmay consult the criteriathe courts consult in formulatingrules of precedent and may adopt any rule a court reasonably could adopt. It

114.Seeid.at 518.

115.Under Cityof Boeme, prophylacticrules adoptedby Congresspursuantto Section5 mustbe congruentwith,andproportionalto, the aimof implementingSection1. Thatinquiryis designedto ensurethatCongressis genuinelyenforcing,andnot rewriting,the substantiveprovisions.The Cityof Boernetest appearsto be morestringentthanthe ordinaryrulesregarding

means-endfit underM'Cullochand its successors.The Courtthus seems to be especiallyvigi- lant in guardingits own institutionalrole againstcongressionalincursionsand no doubtwould bringthatvigilanceto the examinationof legislativerulesof staredecisis.

116.PlannedParenthoodof SoutheasternPa. v. Casey,505 U.S. 833,933 (1992) (Scalia,J., dissenting).

117.Id. at 998(Scalia,J., dissenting).