Is ENDA Congruent and Proportional?
Under the Court s post-City of Boerne v. Flores jurisprudence, congruence and proportionality require that there be some relationship between the statute justified under the Section 5 power and the underlying constitutional violation. While this concept is not particularly novel,237 cases starting with City of Boerne have required a tighter fit between the statute and the violation.238 In Kimel, Florida Prepaid v. College Savings Bank, and Garrett, the Court struck down the statutes because they swept too broadly in relation to the constitutional violation that Congress was assertedly enforcing, prohibiting too much state conduct that was in fact constitutional without a showing that states were engaging in significant amounts of unconstitutional conduct.239 In two of the modern cases, the Court contrasted the statutes at issue with provisions of the Voting Rights Act that were upheld because of their limited scope in South Carolina v. Katzenbach.240 These modern [*PG42]cases stand in
