In June 2009 the Supreme Court avoided a decision on the constitutionality of the Voting Rights Act's preclearance requirement, while at the same time managing to foreshadow that provision's ultimate demise. In a separate opinion, Justice Thomas announced that he would have reached the issue and invalidated the preclearance requirement. Conceding that unconstitutional racial discrimination in the administration of elections continued to be an unfortunate reality, he asserted that Congress was not permitted to pursue "perfect compliance" with the Constitution's mandate via the use of "broad prophylactic legislation."
Justice Thomas's statement accurately, though to be sure rather starkly, expressed an assumption underlying the last decade of the Court's case law concerning Congress's power to enforce any of the three Reconstruction Era Amendments. Yet this previously unchallenged assumption is wrong. To the contrary, Congress should enjoy extensive remedial authority, including the power to enact prophylactic legislation, so long as perfect compliance with the promises of the Reconstruction Amendments remains unrealized. Constitutional text, history, and structure all support this broader view of congressional authority. When the question of the Voting Rights Act's preclearance requirement returns to the Court, it should not only sustain the statutory provision but also use the occasion to set its case law governing congressional power to enforce the Reconstruction Amendments on a firmer foundation.
A. Christopher Bryant, The Pursuit of Perfection: Congressional Power to Enforce the Reconstruction Amendments, 47 Hous. L. Rev. 579 (2010)