Comment: Nevada Department of Human Resources v. Hibbs
October 1, 2003Michael S. Fried
In a Term that has laid to rest the exaggerated claim that the Rehnquist Court is “conservative,” perhaps the most surprising decision was in the arena of federalism, one area in which this Court has genuinely made some strides toward restoring the balance between federal and state power contemplated by the Constitution. Nevada Department of Human Resources v. Hibbs did not merely refuse to extend the Court’s recent Enforcement Clause case law in areas involving heightened constitutional scrutiny. Instead, it marked a significant expansion of congressional power even over the outer bounds recognized in the Voting Rights Act cases (which involved racial discrimination, subject to the highest level of scrutiny) and introduced several innovations in the Section 5 analysis that could allow for a far greater latitude for congressional Enforcement Clause power in a wide variety of areas.