Enforcement Power Research Articles

Antonin Scalia's jurisprudence: text and tradition

Lionized by the right and demonized by the left, Supreme Court Justice Antonin Scalia is the high court's quintessential conservative. Witty, outspoken, often abrasive, he is widely regarded as the most controversial member of the Court. This book is the first comprehensive, reasoned, and sympathetic analysis of how Scalia has decided cases during his entire twenty-year Supreme Court tenure. Ralph Rossum focuses on Scalia's more than 600 Supreme Court opinions and dissents - carefully wrought, passionately argued, and filled with well-turned phrases - which portray him as an eloquent defender of an original jurisprudence. He also includes analyses of Scalia's Court of Appeals opinions for the D.C. circuit, his major law review articles as a law professor and judge, and his provocative book, A Matter of Interpretation. Rossum reveals Scalia's understanding of key issues confronting today's Court, such as the separation of powers, federalism, the free speech and press and religion clauses of the First Amendment, and the due process and equal protection clauses of the Fourteenth Amendment. He suggests that Scalia displays such a keen interest in defending federalism that he sometimes departs from text and tradition, and reveals that he has disagreed with other justices most often in decisions involving the meaning of the First Amendment's establishment clause. He also analyzes Scalia's positions on the commerce clause and habeas corpus clause of Article I, the take care clause of Article II, the criminal procedural provisions of Amendments Four through Eight, protection of state sovereign immunity in the Eleventh Amendment, and Congress's enforcement power under Section 5 of the Fourteenth Amendment. The first book to fully articulate the contours of Scalia's constitutional philosophy and jurisprudence, Rossum's insightful study ultimately depicts Scalia as a principled, consistent, and intelligent textualist who is fearless and resolute, notwithstanding the controversy he often inspires.

PARTICIPATION IN INTERNATIONAL ENVIRONMENTAL AGREEMENTS: THE ROLE OF TIMING AND REGULATION

ABSTRACT. We analyze the formation of self‐enforcing international environmental agreements under the assumption that countries announce their participation either simultaneously or sequentially. It is shown that a sequential formation process opens up possibilities for strategic behavior of countries that may lead to inferior outcomes in terms of global abatement and welfare. We then analyze whether and under which conditions a regulator like an international organization, even without enforcement power, can improve upon globally suboptimal outcomes through coordination and moderation, given that recommendations must be Pareto‐improving to all parties.

State Sovereign Immunity and Congress's Enforcement Powers

Previous articleNext article No AccessState Sovereign Immunity and Congress's Enforcement PowersJohn HarrisonJohn Harrison Search for more articles by this author PDFPDF PLUSFull Text Add to favoritesDownload CitationTrack CitationsPermissionsReprints Share onFacebookTwitterLinkedInRedditEmail SectionsMoreDetailsFiguresReferencesCited by The Supreme Court Review Volume 20062006 Article DOIhttps://doi.org/10.1086/655183 Views: 22Total views on this site © 2007 by The University of Chicago. All rights reserved.PDF download Crossref reports no articles citing this article.

Polluters and Collective Action: Theory and Evidence

1. IntroductionThe seminal theory by Olson (1965) predicts that industries with fewer firms have a greater ability to undertake collective action. They organize cooperative political action more easily because greater concentration lowers the cost of political action.1 The empirical evidence is inconclusive, however. Andres (1985), Masters and Keim (1985), Heywood (1988), and Humphries (1991) find positive effects of industry concentration on the probability of making political action committee (PAC) contributions (see also McKeown 1994). Pittman (1976) finds that concentrated industries generate greater contribution levels. Grier, Munger, and Roberts (1991) find an inverted U-shaped relationship between the level of PAC formation and industry concentration, with a maximum political participation rate occurring at a four-firm concentration ratio around 0.45. Esty and Caves (1983) and Zardkoohi (1985) report ambiguous effects of concentration on PAC contributions.2In this paper we suggest an alternative perspective on firms' ability to organize collective action which, to our knowledge, has been ignored so far. The novel argument is that industries that face multiple regulations (a greater number of policy issues) find it easier to overcome collective action problems and sustain lobbying. In particular, we focus on the difference between firms in polluting and clean industry sectors. Using a simple repeated game framework similar to Spagnolo (2000), we argue that firms in industries that are naturally polluting (because of their input requirements), and therefore incur pollution abatement costs, will face an additional policy battle compared with other industries, everything else equal.3 This enables such industries to sustain greater cooperation and lobbying. This is because firms seeking to form a lobby group face a free-riding problem due to a limited amount of "enforcement power" available to punish deviation and ensure cooperation. Firms that face multiple areas of regulation have an advantage in the formation of lobby groups because they have a greater amount of enforcement power available to reallocate between policy issues. When joint lobbying gives large gains in environmental policy, this surplus can be reallocated to trade policy, for example. Free-riding behavior on trade policy lobbying may more easily be disciplined. The prediction that emerges from our theoretical model is that polluting industries are relatively less affected by the free-riding problems involved in organizing political action, and we thus expect the level of political contributions to be higher in these sectors.4We evaluate this prediction using a cross-section data set of U.S. manufacturing industries. Our empirical model builds on a multiple-equation model by Gawande and Bandyopadhyay (2000), who test the well-established theory of Grossman and Helpman (1994) on the pattern of protection (their theory takes lobby group formation as given). We augment Gawande and Bandyopadhyay's model with an additional equation for environmental policy stringency.5 The empirical results lend support to our theory. Industry PAC contributions, and thus the level of lobby group cooperation, are greater in industries with larger pollution abatement costs. This result is robust to several measures of lobby group formation and environmental policy.The present paper contributes to the recent literature on the formation of lobby groups. In the area of pollution taxation, Damania and Fredriksson (2000) argue that collusive industries may more easily form lobby groups that oppose such taxes. Using a related setup, Damania and Fredriksson (2003) discuss the effect of (exogenous) trade liberalization on environmental policy formation when lobby group formation is endogenous. Pecorino (1998) and Mitra (1999) discuss the formation of trade lobby groups.6 Neither of these papers explore the relationship between collective action and the number of policy instruments, however. …

Regulatory requirements for testing the donor blood supply

Abstract Over the last 30 years, there have been tremendous advances made in protecting the nation's blood supply from dangerous pathogens. From serologic testing to antigen detection to the application of nucleic acid testing, developments in technology have contributed to the reduction in the risk of transfusion transmission of hepatitis, human immunodeficiency virus (HIV), and West Nile virus. The Centers of Biologics Research of the Food and Drug Administration (FDA) has legal enforcement power and is responsible for oversight of the collection and manufacture of blood and blood products. The American Association of Blood Banks is a major voluntary standard setting organization that publishes standards, some going beyond the requirements of the FDA, to ensure blood safety. This report will highlight the major topics in blood safety and the regulatory and quality requirements that shape transfusion medicine.

Europe, the euro and the ECB: Monetary success, fiscal failure

This paper considers the debate over reform of the Stability and Growth Pact. While recent reforms are a sensible step in the direction of greater flexibility, ambiguities in their design all but eliminate the possibility that the pact will be effectively enforced. The key problem is that these steps in the direction of greater flexibility are not married with greater enforcement powers for the European Commission. This outcome reflects the limited extent of political integration in Europe, which limits the mechanisms available for holding the Commission accountable for its actions and therefore creates resistance to giving it strong enforcement power over public spending and taxation.

Putting Regulation Before Responsibility: The Limits of Voluntary Corporate Social Responsibility

Globalization of business has heightened concerns regarding corporate conduct in developing countries. Critics have charged that multinational firms in particular have exported social harms involving labor, the environment, bribery, and human rights to jurisdictions outside of their home countries. Opportunities for regulatory arbitrage and the associated collective action problem such opportunities suggest, highlight the need for strong regulatory responses to these issues. Rather than prioritize the strengthening of national or international regulatory actors to address these social harms, voluntary corporate social responsibility initiatives have emerged as a favored response within the international community. This article undertakes a critical examination of the rationale for these initiatives. It argues that the premises on which they are grounded are flawed insofar as they ignore basic research concerning the drivers of regulatory compliance, fail to remedy underlying social harms, contravene broader goals of fostering strong regulatory institutions in developing countries, and undermine economic development to the extent that they erode state capacity in setting economic and regulatory policies. As an alternative to purely voluntaristic measures, this article emphasizes the need to build the capacity of local regulatory authorities. It cites two cases involving the use of domestic regulatory and enforcement power in African states as examples of how the empowerment of state institutions can constitute more effective responses to significant social harms.

The dynamic Constitution: an introduction to American constitutional law

Preface Prologue: Bush v. Gore 1. The dynamic constitution 2. Freedom of speech 3. Freedom of religion 4. Protection of economic liberties 5. Rights to fair procedures 6. Equal protection of the laws 7. Fundamental rights 8. The powers of congress 9. Executive power 10. Judicial power 11. Elections, political democracy and the constitution 12. Structural limits on state power and resulting individual rights 13. The constitution in war and emergency 14. The reach of the constitution and Congress's enforcement power 15. Conclusion.

State Sovereign Immunity and Congress' Enforcement Power

According to the Supreme Court's current doctrine, Congress generally may not create private causes of action against unconsenting States. It may do so, however, when it uses its power under Section 5 of the Fourteenth Amendment to enforce the amendment's substantive provisions. That principle, announced in Fitzpatrick v. Bitzer, has survived the reinvigoration of state sovereign immunity in recent cases like Seminole Tribe of Florida v. Florida and Alden v. Maine, and the Court has not considered whether Fitzpatrick is consistent with the approach taken in the more recent cases. This article addresses that question, giving attention to the understanding of the enforcement powers that prevailed during Reconstruction, the legal context in which those powers were created, and the structural reasoning underlying Seminole Tribe and Alden as it applies to the enforcement powers. Its principal conclusions are that the framers of the Fourteenth Amendment probably did not expect that it would give Congress power to create private causes of action against unconsenting States, and that, for that reason and others, if the current sovereign immunity cases are correct then Fitzpatrick was not.

Participation in International Environmental Agreements: The Role of Timing and Regulation

We analyze the formation of self-enforcing international environmental agreements under the assumption that countries announce their participation either simultaneously or sequentially. It is shown that a sequential formation process opens up possibilities for strategic behavior of countries that may lead to inferior outcomes in terms of global abatement and welfare. We then analyze whether and under which conditions a regulator like an international organization, even without enforcement power, can improve upon globally suboptimal outcomes through coordination and moderation, given that recommendations must be Pareto-improving to all parties.

Science at the Borders: Immigrant Medical Inspection and the Shaping of the Modern Industrial Labor Force (review)

Reviewed by: Science at the Borders: Immigrant Medical Inspection and the Shaping of the Modern Industrial Labor Force John Parascandola Amy L. Fairchild . Science at the Borders: Immigrant Medical Inspection and the Shaping of the Modern Industrial Labor Force. Baltimore: Johns Hopkins University Press, 2003. xiii + 385 pp. Ill. $48.00 (0-8018-7080-1). Amy Fairchild's book is a welcome addition to the literature on medicine and immigration. She goes beyond earlier works on the subject by providing much more detail about and analysis of the medical examination of immigrants arriving in the United States, and by devoting substantial attention to immigration at ports other than New York. Since Ellis Island was by far the largest immigration depot, and its history is relatively well documented, it is not surprising that it has received the lion's share of attention from scholars. Fairchild helps to redress the balance by discussing in some detail the medical examination of immigrants at the Canadian border, the Mexican border, the Gulf Coast, and the West Coast. The period covered, roughly from 1890 to 1930, was one of mass immigration to the United States. Fairchild's main thesis in Science at the Borders is a novel one, namely, that "the immigrant medical examination was shaped by an industrial imperative to discipline the laboring force in accordance with industrial expectations" (p. 16). The medical examination, conducted by physicians of the Public Health Service, was subjected to various pressures, with tension always present between those (e.g., labor and nativists) emphasizing exclusion and those (e.g., industrialists) emphasizing inclusion in the immigration process. Capitalism required the immigrants for the labor force, and industrial interests saw the medical examination as a new technique to discipline arriving workers. Fairchild argues that in general the examination was meant to promote the adoption of core industrial values and to create a cadre of good industrial citizens. According to Fairchild, the discipline involved in the process "represented immersion in a particular, routinized, ordered set of exercises or motions: waiting in line, moving in unison, stepping up to the medical inspector, moving forward, stepping up to the immigrant inspector, answering questions" (p. 66). The public nature of the examination, and the fact that it represented the power of enforcement because a certain number of immigrants were denied admission into the country, also played a role in communicating industrial values and norms. The immigrants were thus "taught the rules, the repetitive, monotonous habits of industrial order" (p. 67). Although there is certainly merit in this [End Page 913] argument, the question remains of how much socialization into the industrial order could have been accomplished in the course of an examination that for many took place in a matter of seconds, especially at Ellis Island. More research is needed to fully assess Fairchild's claim about the purpose of the medical examination. The author herself argues that the examination was sometimes used for purposes of exclusion rather than discipline, and the second part of her book is devoted to this subject. This was particularly true in the case of Asian immigrants, the majority of whom arrived on the West Coast. The use of the medical examination in this context was tied to American racial attitudes toward Asians: "The function of the exam along the Pacific Coast was not discipline. Rather, consistent with other federal legislation, the goal was exclusion of a group of immigrants deemed wholly unsuited for either civic or industrial citizenship" (p. 134). Asian immigrants arriving on the West Coast, regardless of class, were generally subjected to primary physical examinations and the testing of stool samples for parasitic diseases. Parasitic infections, which were not even tested for at most immigration stations, were the major cause of exclusion on the Pacific Coast, whereas immigrants on the East Coast were usually excluded for conditions affecting economic potential (e.g., eye diseases, hernia, heart conditions). Fairchild admits that the Public Health Service doctors did not explicitly articulate discipline as a primary purpose of the medical examination, but saw themselves as excluding dangerous diseases and undesirable immigrants. One would like to know whether these doctors, and the immigration inspectors, were to some extent specifically aware of...

Trade, Tragedy, and the Commons

We develop a theory of resource management where the degree to which countries escape the tragedy of the commons, and hence the de facto property rights regime, is endogenously determined. Three forces determine success or failure in resource management: the regulator's enforcement power, the extent of harvesting capacity, and the ability of the resource to generate competitive returns without being extinguished. The model can explain heterogeneity across countries and resources in the effectiveness of resource management, and it predicts that changes in prices, population, and technology can cause transitions to better or worse management regimes. (JEL P14, Q21, Q22, Q23, Q32)

Congressional Power to Renew the Preclearance Provisions of the Voting Rights Act after Tennessee V. Lane

This article considers a single question: does Congress have the power to renew the Voting Rights Act's preclearance provisions, set to expire in 2007? Beginning with South Carolina v. Katzenbach (1966), the United States Supreme Court has upheld preclearance as a permissible exercise of congressional enforcement power. These cases, however, mostly predate the Supreme Court's New Federalism revolution. As part of that revolution, the Court, in a series of recent cases has greatly restricted the ability of Congress to pass laws regulating conduct of the states under its enforcement powers granted in Section Five of the Fourteenth Amendment, which the Court has read as coextensive with its enforcement powers under the Fifteenth Amendment. Moreover, in Board of Trustees v. Garrett (2001), the Court made clear that it will search for an adequate evidentiary record to support a congressional determination that states are engaging in unconstitutional conduct so as to justify congressional regulation of the states. Some of that clarity on the evidentiary question disappeared in the Court's 2003 decision, Nevada v. Hibbs, and even greater uncertainty has been created by the Court's 2004 decision, Tennessee v. Lane.Part I of this article surveys the legal landscape through the developments in Garrett facing those who wish to defend renewed preclearance as an appropriate exercise of congressional power under the Fourteenth or Fifteenth Amendments. Part II then turns to the Bull Connor is Dead problem: Most of the original racist elected officials are out of power, and those who remain in power (along with any new elected officials who either intend to discriminate on the basis of race or who otherwise would care less about a discriminatory effect in a change in voting practices or procedures on a protected minority group) have for the most part been deterred by preclearance. Thus, there is not much of a record of recent state-driven discrimination that Congress could point to supporting renewal. The question of how much racial discrimination in voting practices there would be today if we suddenly eliminated preclearance is almost too speculative to answer. It is difficult to see how Congress may prove that preclearance remains necessary under the Garrett evidentiary standard.Part III then then explains how in two recent cases on Congressional power, Nevada v. Hibbs and Tennessee v. Lane, the Supreme Court appears to have backed away from the strict evidentiary standard imposed in Garrett. These cases increase the chances that the Court would hold that Congress has the power to reenact section 5's preclearance provisions, particularly given Justice Scalia's separate opinion in Lane in which he indicated his new position that Congress has broad latitude to pass legislation aimed at combating racial discrimination. In addition, the Supreme Court's recent opinion in Georgia v. Ashcroft, construing the statutory standard for granting preclearance, takes more pressure off constitutional challenges to a renewed preclearance provision.Part IV concludes in a more speculative vein with a look at an alternative basis for congressional power to reenact preclearance: the Guarantee Clause.

Morelli v. Cedel: Ignoring Jurisdictional Limits and Outflanking Congress Towards the Internationalization of the ADEA

Throughout the Twentieth Century, legislatures at all levels of American government have sought admirably to protect workers from a host of economic and societal ills by enacting broad-based remedial legislation. At times, these same legislatures have abdicated responsibility to the executive bureaucracy for further regulatory development. Without ensuring the attendant transfer of political accountability commensurate with the authority of the regulatory state, the delicate balance of powers crafted by the founders becomes skewed. Armed with the combined might of legislative fiat and unfettered enforcement power, the heavy hand of an over-zealous executive bureaucracy extends itself beyond the bounds initially established by the legislature in what is known as “mission creep.” And, in the modern economy, the ramifications of mission creep are global.

Introducing a new currency: Government policy and prices

The aim of this article is to study the introduction of a new fiat currency within a dual-currency divisible goods search model. The government (using price control or legal tender laws) can affect the equilibrium price levels of two domestic currencies, with the goal of driving the old currency out of circulation and replacing it with a new one. It is shown that some equilibrium solutions that exist in a laissez-faire environment disappear with government monitoring. Additionally, when the old currency is made illegal, its equilibrium value is affected differently by public measures such as conversion, tax and redistribution policies. Finally, if the enforcement power of legal tender laws is strong enough, the old currency cannot be more valuable than the new one, and the probability that it changes hands in trade, when introducing lotteries, cannot be smaller than one.

Pari Passu and a Distressed Sovereign's Rational Choices

This Article interrogates the possibility that pari passu clauses in sovereign debt contracts legitimately can be read broadly so as to require pro rata payments to foreign creditors by sovereigns in default and forbid payments to favored classes of creditors. Many subscribe to a narrow interpretation, under which the clauses cover only contractual and legal priorities and do not regulate payments. The narrow interpretation makes sovereign debt compositions easier to conclude by depriving holdout creditors of a disruptive enforcement tool, arguably benefiting the bondholders as a group. This Article highlights benefits for the bondholders as a group under the broad reading, shifting to an ex ante time perspective and situating the clause in the economic context of sovereign lending. Debt contracts benefit sovereign bondholders in three ways when they create frictions that retard later compositions. First, the contracts diminish the likelihood of default by opportunistic sovereigns seeking to externalize the effects of economic reverses. Second, assuming severe financial distress, they make it less likely that the defaulting sovereign will attempt to impose the burden of restructuring on the particular class of bonds. Third, assuming a restructuring, they improve the bondholders' bargaining position. More generally, the pari passu clause, read broadly, constrains the distressed sovereign's range of choices, enhancing the enforcement power of the bonds, and arguably lowering the long run cost of sovereign debt capital. The Article depicts sovereign debt as a world of tradeoffs and contradictions, where a contract that makes the bondholders better off means one thing on the day it is executed and delivered and another thing in the event of severe distress later on. With private debt, such contradictions are surmounted through the intervention of the bankruptcy regime. With sovereign debt there is no bankruptcy, forcing the parties to paper over the tensions between ex ante and ex post by drafting vaguely. Intractable questions of interpretation arise in consequence. From this perspective, judicial attachment of the broad reading can be justified without being dictated and without the narrow reading being rendered implausible or illegitimate. The interpreting court must choose between the readings under uncertainty.

Contracts, Fairness, and Incentives

We show experimentally that fairness concerns may have a decisive impact on both the actual and the optimal choice of contracts in a moral hazard context. Explicit incentive contracts that are optimal according to self-interest theory become inferior when some agents value fairness. Conversely, implicit bonus contracts that are doomed to fail among purely selfish actors provide powerful incentives and become superior when there are some fair-minded players. The principals understand this and predominantly choose the bonus contracts, even preferring a pure bonus contract over a contract that combines the enforcement power of explicit and implicit incentives. This contract preference is associated with the fact that explicit incentives weaken the enforcement power of implicit bonus incentives significantly. Our results are largely consistent with recently developed theories of fairness, which also offer interesting new insights into the interaction of contract choices, fairness and incentives.

The governance mechanism of Russian firms: its self-enforcing nature and limitations

The legal form of business enterprises in contemporary Russia is diversified to almost the same extent as those in major advanced countries. Joint-stock companies are now the most common form of incorporation among leading industrial enterprises. The law on joint-stock companies in Russia provides for the governance mechanism of joint-stock companies, in order to implement the concept of a ‘self-enforcing’ organisation in which the legal code of business management should be observed voluntarily by managers and large stockholders. This fundamental idea is embodied in many aspects of the current system, including the mechanism of management and supervision characterised as ‘diarchial leadership’, the balance of power between stockholders and corporate officers, and the internal audit system. However, the self-enforcing nature of the Russian enterprise has been undermined by a number of factors, including the overwhelming expansion of closed joint-stock companies, the predominance of insider ownership, the short history of internal auditing and the lack of legal enforcement power. As a result, breaches of company law are rampant in Russia today. This raises serious problems for the Russian corporate system, along with the legal peculiarity of privatised firms and people's enterprises, which complicates the system of joint-stock companies and deprives it of transparency.

The Roles of Recidivism and Liability in Regulation: The Case of Environmental Law

This analysis examines civil and criminal actions against companies and their employees. Using data on all EPA federal regulatory actions against US companies for violations of environmental law from 1970 to 1997, a nonparametric approach is employed to estimate recidivism probabilities and impacts of various types of regulatory actions. The analysis suggests that, at current monetary fine levels, civil lawsuits against firms are not more effective at reducing repeat offenses (recidivism) than administrative actions which carry much lower fines. In contrast, criminal lawsuits signifcantly reduce recidivism. There is also evidence of a dynamic liability effect where civil lawsuits against companies with one or more priors carry higher fines and signifcantly reduce recidivism. Since traditional models are not equipped to address such issues, a model of company behavior under regulation is presented. Downward pressure on the level of the regulated activity emerge due to; risk asymmetry between owner and manager, legal liability, and limited contracting. In particular, limits on owners' ability to contract with employees in the event of criminal action may serve as an explanation for the apparent power of such enforcement over future company behavior. Several models of regulator behavior and their implications for regulatory effectiveness are also considered.

Congressional Power to Reenact Section 5 of the Voting Rights Act: The Evidentiary Quandary

Much of the current debate over the preclearance provisions contained in section 5 of the Voting Rights Act concerns the important policy question whether Congress should renew it. This paper turns to a question in the debate that logically precedes but in practical terms would follow (though court challenge) a congressional decision to reenact section 5: does Congress have the power to do so?Beginning with South Carolina v. Katzenbach (1966), the United States Supreme Court has repeatedly upheld section 5 and other provisions of the Act as permissible exercises of congressional enforcement power. These cases, however, predate the Supreme Court's New Federalism revolution. As part of that revolution, the Court, in a series of recent cases has greatly restricted the ability of Congress to pass laws regulating conduct of the states under its enforcement powers granted in Section Five of the Fourteenth Amendment, which the Court has read as coextensive with its enforcement powers under the Fifteenth Amendment. Moreover, in Board of Trustees v. Garrett (2001), the Court made clear that it will search for an adequate evidentiary record to support a congressional determination that states are engaging in unconstitutional conduct so as to justify congressional regulation of the states. Some of that clarity on the evidentiary question disappeared in the Court's 2003 decision, Nevada v. Hibbs.Part I of this chapter surveys the background legal landscape facing those who wish to defend anticipated preclearance reenactment as an appropriate exercise of congressional power under the Fourteenth or Fifteenth Amendments. Part II then turns to application of the new federalism cases to the question of congressional power to reenact the preclearance provisions. The evidentiary requirement imposed in these new federalism cases creates significant hurdles for a court to uphold a reenacted section 5, even though, under the recent Hibbs case, the evidentiary burden on Congress will be slightly alleviated because a renewed section 5 would combat racial discrimination. In 1965 and even in 1982 Congress could point to significant acts of intentional racial discrimination by covered states to support preclearance provisions. Today, Congress would be hard-pressed to find widespread evidence of such discrimination. Some commentators have looked to Department of Justice preclearance statistics to find sufficient evidence of a potential for constitutional violations to support section 5 reenactment by Congress. A closer look at the DOJ preclearance statistics, however, offers little support for those who wish to build an evidentiary record to support reenactment of section 5. Other commentators have looked to private acts of discrimination as supporting congressional power to reenact preclearance provisions. The argument, though creative, probably cannot bear the weight that commentators have put on it. Part III concludes in a more speculative vein with a look at an alternative basis for congressional power to reenact preclearance: the Guarantee Clause. Article IV of the Constitution provides that the United States shall guarantee to each state a Republican form of government. It is an open question whether Congress could reenact the preclearance provisions under the Guarantee Clause and, more provocatively, by doing so insulate the provisions from challenge in the courts under the theory that Guarantee Clause cases raise non-justiciable political questions.