Use of Enforcement Clause Power Beyond Harms of Racial Discrimination

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Congress shall have power to enforce this article by appropriate legislation.

The scope of Congress’s power to enforce the Thirteenth Amendment to combat harms beyond racial discrimination is unclear.1 Questions about the scope of Congress’s Thirteenth Amendment enforcement power arose when the 111th Congress enacted the Hate Crimes Prevention Act of 2009. The Act criminalized conduct that willfully caused, or attempted to cause, bodily injury to individuals because of their actual or perceived race, color, religion, or national origin.2 The prohibition did not require that such criminal offenses involve state action or have a nexus to interstate commerce, prompting questions as to whether Congress’s Thirteenth Amendment enforcement power authorized its criminalization of privately inflicted harms.3

Although the Supreme Court has not yet considered the 2009 Act’s constitutionality, the Department of Justice’s Office of Legal Counsel (OLC) opined that Congress could rely on its Thirteenth Amendment enforcement power to enact the legislation. The OLC advised that the Act was constitutional at least “insofar as the violence is directed at members of those religions or national origins that would have been considered races at the time of the adoption of the Thirteenth Amendment.” 4 The OLC reasoned that Congress could punish private, racially motivated violence “as part of a reasonable legislative effort to extinguish the relics, badges and incidents of slavery.” 5 The OLC noted that race-based violence had been used in the past to maintain slavery and involuntary servitude.6 In determining that Congress’s Thirteenth Amendment enforcement power authorized legislation protecting certain religious and national origin groups, the OLC relied on a series of Supreme Court opinions holding that such groups would have been considered races at the time that Congress debated, and the states ratified, the Thirteenth Amendment.7

Uncertainty over whether the Thirteenth Amendment authorizes legislation prohibiting private forms of violence against certain groups illustrates that much remains unclear about the scope of Congress’s enforcement power. One major unresolved question involves the extent to which Congress, when enacting legislation to enforce the Thirteenth Amendment, has the power to define the specific forms of government or private action that the Amendment prohibits.8

1: Some commentators have argued that the Thirteenth Amendment prohibits practices that do not involve racial discrimination but are allegedly comparable to slavery or involuntary servitude. For example, some scholars have argued that the Amendment prohibits parents from abusing their children or prevents the government from banning abortion. See, e.g., Akhil Reed Amar & Daniel Widawsky, Child Abuse as Slavery: A Thirteenth Amendment Response to DeShaney, 105 Harv. L. Rev. 1359, 1365–66 (1992) (contending that the Thirteenth Amendment prohibits certain forms of child abuse); Andrew Koppelman, Forced Labor: A Thirteenth Amendment Defense of Abortion, 84 Nw. U.L. Rev. 480, 484 (1990) ( “When women are compelled to carry and bear children, they are subjected to ‘involuntary servitude’ in violation of the thirteenth amendment.” ). The Supreme Court has never applied the Prohibition Clause in Section 1 of the Thirteenth Amendment to child abuse or abortion bans. Moreover, the Court has not addressed whether Congress could use its Section 2 enforcement power to address these issues. See generally George Rutherglen, State Action, Private Action, and the Thirteenth Amendment, 94 Va. L. Rev. 1367, 1403 (2008) ( “Congress, unlike the courts, has the capacity to select the elements associated with slavery for prohibition or regulation and to reflect the political support necessary to curtail or eliminate those elements of servitude. By contrast, under Section 1, the judiciary can only go so far in finding that otherwise justifiable relationships, such as that between parent and child, can be regulated when they take on pathological forms equivalent to involuntary servitude.” ).
2: 18 U.S.C. § 249(a)(1).
3: See Constitutionality of the Matthew Shepard Hate Crimes Prevention Act, 33 Op. O.L.C. 240 (2009), https://www.justice.gov/olc/file/2009-06-16-hate-crimes/download. Another section of the Hate Crimes Prevention Act prohibits offenses committed because of a person’s actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability. See 18 U.S.C. § 249(a)(2). However, this prohibition requires a nexus between the offense and interstate commerce. See id. Thus, Congress’s Commerce Clause power arguably provided the requisite authority for the criminal prohibition.
4: 33 Op. O.L.C. 240 (2009). The OLC did not evaluate whether Congress’s Commerce Clause power or Fourteenth Amendment enforcement power might authorize the law. See id. at 242 n.3.
5: Id. at 242.
6: Id.
7: Id. at 242–43. See also Shaare Tefila Congregation v. Cobb, 481 U.S. 615, 617–18 (1987) (suggesting that Jews are a race in this context); Saint Francis Coll. v. Al-Khazraji, 481 U.S. 604, 610–13 (1987) (holding that Arabs were considered a racial group at the time the states ratified the Thirteenth Amendment); Hodges v. United States, 203 U.S. 1, 17 (1906) ( “Slavery or involuntary servitude of the Chinese, of the Italian, of the Anglo-Saxon are as much within its compass as slavery or involuntary servitude of the African.” ). The OLC suggested that Congress’s authority to protect other groups under the legislation could derive from its Commerce Clause power. See Constitutionality of the Matthew Shepard Hate Crimes Prevention Act, 33 Op. O.L.C. 240 (2009), https://www.justice.gov/olc/file/2009-06-16-hate-crimes/download.
8: See G. Sidney Buchanan, The Thirteenth Amendment and the Badge of Slavery Concept: A Projection of Congressional Power, 12 Hous. L. Rev. 1070, 1070 (1975); Rutherglen, supra note 1, at 1403–04.