At FrontPage magazine, Ian Smith notes that “The events in Ferguson, Missouri this past week have triggered calls for President Obama to push for an anti-race profiling-bill to prevent police from “disproportionately targeting ethnic minorities for investigation, interrogation and arrest” – Obama has helped pass such legislation when he was a state senator –Senator Ben Cardin (D-Md.) has urged Congress to introduce legislation that would ‘once and for all prohibit racial profiling by law enforcement officials.’

In spite of ‘racial profiling’ more naturally being a state matter (insofar that it’s regulatable), such a power grab by the federal government is entirely possible due to the gradual expansion of the Thirteenth Amendment’s ban on slavery. Although relatively dormant during the first 100 years of its passage, the Thirteenth Amendment’s Section 2 enforcement power, which authorizes Congress to enact “appropriate legislation” to end the “badges and incidents of slavery,” has dramatically widened since the 1960s and could ‘justify’ such a bill.”

A few thoughts: although Smith is correct to note that policies regulating police activity usually are state and local matters, the Equal Protection Clause of the Fourteenth Amendment does come into play here because racial profiling involves classifications on the basis of race. State and local police nonetheless can constitutionally use such racial classifications if they are justified by a compelling governmental interest and the policy is  narrowly tailored to serve that interest. Although national security in wartime  has long been recognized as a compelling interest in this context, it is somewhat less obvious from the case law that keeping domestic law and order in peacetime would also so qualify. Nonetheless, because government has few interests more compelling than protecting the physical security of the governed, I am inclined to think that the police’s interest in keeping order would likely be considered compelling. Of course, the narrow tailoring portion of the test has also been interpreted as representing a high bar for the government to clear and is important here too: are there other public policies that don’t use racial classifications that would permit the police to protect the physical safety of law-abiding persons as well as racial profiling does? The answer to that question will necessarily be highly fact-specific. In any case, it’s far from clear to me that racial profiling as it is often alleged to operate in the real world generally passes strict scrutiny — and for related thoughts, I also refer readers to law professor Nelson Lund’s The Conservative Case Against Racial Profiling published in the Albany Law Review.

But if Congress thinks that Equal Protection lawsuits as described above are insufficient to stop police departments’ use of racial profiling, what powers might it have to correct the problem? Per the Spending Clause, Congress could stop giving federal funds to state and local police departments that use racial profiling. But some police departments might simply choose to forego this funding, meaning that Congress might turn to using its other powers. Indeed, Section 5 of the Fourteenth Amendment gives Congress the power to “enforce, by appropriate legislation” its provision relating to equal protection. But, as Smith notes and as Heriot and Kirsanow note in their amicus brief, courts use a relatively stringent test — the “congruence and proportionality standard” of City of Boerne v. Flores — to assess the constitutionality of Fourteenth Amendment legislation. Or, in essence, if Congress can’t amass a sufficient evidentiary record documenting that racial profiling by police is undermining equal protection, then legislation to stop is unconstitutional.

The Thirteenth Amendment contains a very similar provision permitting Congress to enforce its ban on slavery and involuntary servitude. Yet, as is discussed in Smith’s article and in the Heriot-Kirsanow brief, the “rational basis” test that has been used to assess the constitutionality of Thirteenth Amendment legislation has been interpreted as much more deferential to Congress. It is therefore entirely possible, under current doctrine, that Congress has the power to promulgate the End Racial Profiling Act pursuant to its Thirteenth Amendment powers but not per its Fourteenth Amendment powers.

This is a strange result. Not even the most vociferous critics of racial profiling think that it is actually leading to a resurgence of antebellum slavery. On the other hand, as I have discussed above, there is a real argument that racial profiling will sometimes violate the Fourteenth Amendment. Indeed, commentators often point out that racial profiling unjustly harms Hispanics, an ethnic group that was never enslaved in the United States. This inconsistency illustrates once again the need for a consistent test for review of the constitutionality of legislation passed pursuant to Congress’s powers to enforce all three of the Reconstruction Amendments (Thirteenth, Fourteenth, and Fifteenth alike.)