STEVEN WAYNE FISH; DONNA BUCCI; CHARLES STRICKER; THOMAS J. BOYNTON; DOUGLAS HUTCHINSON; LEAGUE OF WOMEN VOTERS OF KANSAS, Plaintiffs - Appellees,
KRIS W. KOBACH, in his official capacity as Secretary of State for the State of Kansas, Defendant-Appellant, and NICK JORDAN, Defendant. ENGLISH FIRST FOUNDATION; ENGLISH FIRST; U.S. JUSTICE FOUNDATION; PUBLIC ADVOCATE OF THE UNITED STATES; GUN OWNERS FOUNDATION; GUN OWNERS OF AMERICA; CONSERVATIVE LEGAL DEFENSE AND EDUCATION FUND; U.S. BORDER CONTROL FOUNDATION; POLICY ANALYSIS CENTER; and COMMON CAUSE, Amici Curiae.
from the United States District Court for the District of
Kansas (D.C. No. 2:16-CV-02105-JAR-JPO)
Ho (Rodkangyil Orion Danjuma and Sophia Lin Lakin, American
Civil Liberties Union Foundation, Inc., New York, New York;
Stephen Douglas Bonney, ACLU of Kansas and Western Missouri,
Overland Park, Kansas; Neil A. Steiner and Rebecca Kahan
Waldman, Dechert LLP, New York, New York; Angela M. Liu,
Dechert LLP, Chicago, Illinois, with him on the briefs),
American Civil Liberties Union, New York, New York for
W. Kobach, Secretary of State of Kansas (Garrett R. Roe,
Kansas Secretary of State's Office, Topeka, Kansas, with
him on the brief), Kansas Secretary of State's Office,
Topeka, Kansas, for Defendant-Appellant.
Herbert W. Titus of William J. Olson, P.C. (William J. Olson,
Jeremiah L. Morgan, John S. Miles, and Robert J. Olson,
William J. Olson, P.C., Vienna, Virginia; Marc A. Powell,
Powell Law Office, Wichita, Kansas; Michael Connelly, U.S.
Justice Foundation, Ramona, California, with him on the
brief), filed an amicus curiae brief for the English First
Foundation, English First, the U.S. Justice Foundation,
Public Advocate of the United States, the Gun Owners
Foundation, the Gun Owners of America, the Conservative Legal
Defense and Education Fund, the U.S. Border Control
Foundation, and the Policy Analysis Center, in support of
P. Adegbile of Wilmer Cutler Pickering Hale and Dorr LLP, New
York, New York (Jason D. Hirsch, Wilmer Cutler Pickering Hale
and Dorr LLP, New York, New York; Joshua M. Koppel, Tyeesha
Dixon, and Derek A. Woodman, Wilmer Cutler Pickering Hale and
Dorr LLP, Washington, District of Columbia, with him on the
brief), filed an amicus curiae brief for Common Cause in
support of Plaintiffs-Appellees.
BRISCOE, HOLMES, and McHUGH Circuit Judges.
HOLMES, Circuit Judge.
case, we must resolve whether section 5 of the National Voter
Registration Act (the "NVRA"), 52 U.S.C. §
20504, preempts a Kansas law requiring documentary proof of
citizenship ("DPOC") for voter registration, Kan.
Stat. Ann. § 25-2309(l), as applied to the
federally mandated voter-registration form that must be a
part of any application to obtain or renew a driver's
license (the "motor voter" process). Section 5 of the
NVRA mandates that states include a voter-registration form
as part of the application for a driver's license, and
provides that this voter-registration form "may require
only the minimum amount of information necessary
to" prevent duplicate registrations and to
"enable State election officials to assess the
eligibility of the applicant and to administer voter
registration and other parts of the election
process." 52 U.S.C. § 20504(c)(2)(B). Section 5
further mandates that motor voter forms include the
following: a statement of the criteria for eligibility,
"including citizenship"; an attestation that the
applicant meets those criteria; and the applicant's
signature "under penalty of perjury." §
a motion for a preliminary injunction against enforcement of
Kansas's DPOC requirements, the U.S. District Court for
the District of Kansas held that the Plaintiffs-Appellees had
made a strong showing that Kansas's DPOC law was
preempted by NVRA section 5, insofar as DPOC was more than
the "minimum amount of information necessary" to
achieve the purposes set forth by the statute.
Defendant-Appellant Kansas Secretary of State Kris Kobach
appeals from the district court's entry of the
preliminary injunction, which required him to register to
vote any applicants previously unable to produce DPOC and to
cease enforcement of Kansas's DPOC requirement with
respect to individuals who apply to register to vote at the
Kansas Department of Motor Vehicles ("DMV") through
the motor voter process.
jurisdiction pursuant to 28 U.S.C. § 1292,
hold that the district court did not abuse its discretion in
granting the preliminary injunction because the NVRA preempts
Kansas's DPOC law as enforced against those applying to
vote while obtaining or renewing a driver's license.
Specifically, section 5 of the NVRA provides, as most
relevant here, that the state motor voter form "may
require only the minimum amount of information necessary to .
. . enable State election officials to assess the eligibility
of the applicant and to administer voter registration and
other parts of the election process." 52 U.S.C. §
20504(c)(2)(B)(ii). Section 5 also requires motor voter forms
to include a signed attestation under penalty of perjury that
the applicant meets the state's eligibility criteria,
including citizenship. § 20504(c)(2)(C). We hold that
this attestation under penalty of perjury is the
presumptive minimum amount of information necessary
for state election officials to carry out their
eligibility-assessment and registration duties. As it
pertains to the citizenship requirement, the presumption
ordinarily can be rebutted (i.e., overcome) only by a factual
showing that substantial numbers of noncitizens have
successfully registered to vote under the NVRA's
attestation requirement. Having determined that Secretary
Kobach has failed to make this showing, we conclude that the
DPOC required by Kansas law is more than the minimum amount
of information necessary and, therefore, is preempted by the
NVRA. We affirm the grant of a preliminary
Kansas's DPOC Requirement and Prior Litigation
in Kansas, only citizens may vote in state and federal
elections. Kan. Const. art. V, § 1. The Kansas
Constitution also requires the legislature to "provide
by law for proper proofs of the right to suffrage."
Id. art. V, § 4. Kansas adopted its DPOC
requirement for voter registration on April 18, 2011. Secure
and Fair Elections ("SAFE") Act, ch. 56, §
8(l), 2011 Kan. Sess. Laws 795, 806, 809-11
(codified at Kan. Stat. Ann. § 25-2309(l)). The
requirement took effect January 1, 2013. Id. at
§ 8(u), 2011 Kan. Sess. Laws at 812. The SAFE Act
(1) The county election officer or secretary of state's
office shall accept any completed application for
registration, but an applicant shall not be registered until
the applicant has provided satisfactory evidence of United
States citizenship. Evidence of United States citizenship as
required in this section will be satisfied by presenting one
of the documents listed . . . in person at the time of filing
the application for registration or by including a photocopy
of one of the following documents with a mailed registration
application. After a person has submitted satisfactory
evidence of citizenship, the county election officer shall
indicate this information in the person's permanent voter
Stat. Ann. § 25-2309(l). The statute then lists
thirteen forms of documentation acceptable to prove U.S.
citizenship, including a birth certificate or passport.
See § 25- 2309(l)(1)-(13). For
citizens unable to present DPOC, subsection (m) provides an
alternate means to prove citizenship by the submission of
evidence to the state election board followed by a hearing.
See § 25-2309(m). The state election board is
composed of "the lieutenant governor, the secretary of
state and the attorney general." § 25-2203(a).
Kobach promulgated regulations for the DPOC requirement on
October 2, 2015. Kan. Admin. Regs. § 7-23-15 (the
"90-day regulation"). Those regulations provide
that applications unaccompanied by DPOC are deemed to be
"incomplete." § 7-23-15(a). Once an
application is designated as incomplete, a voter has ninety
days to provide DPOC or else the application is canceled and
a new voter-registration application is required to register.
See § 7-23-15(b)-(c).
believe that it will provide useful context for our
subsequent discussion of the procedural history of the
present case for us to briefly refer to Kansas's prior
litigation before our court involving the DPOC issue. Some
groundwork must be laid first, however. In 2013, an Arizona
DPOC requirement was challenged as running afoul of sections
6 and 9 of the NVRA. Arizona v. Inter Tribal Council of
Ariz., Inc. (Inter Tribal), ___ U.S. ___, 133 S.Ct.
2247, 2252-53 (2013). Section 9 provides for a universal
mail-in form for voter registration for federal elections
(the "Federal Form") and entrusts the creation and
administration of that form to the Election Assistance
Commission (the "EAC") in consultation with the
chief election officers of the states. See 52 U.S.C.
§ 20508(a). Section 6 provides that "[e]ach State
shall accept and use the mail voter registration application
form prescribed by . . . Section 20508(a)(2)." §
20505(a)(1). The case came before the U.S. Supreme Court,
which was faced with the question of whether the federal
statutory requirement that states "accept and use"
the Federal Form preempted Arizona's law requiring
officials to reject Federal Form applications unaccompanied
by DPOC. See Inter Tribal, 133 S.Ct. at 2253. The
Court held that the NVRA did require Arizona to accept
Federal Forms unaccompanied by DPOC but also stated that
Arizona could petition the EAC to add a state-specific
instruction requiring DPOC and, in the case of its refusal to
add it, the state could obtain judicial review of the EAC
decision. Id. at 2259-60. The court further held
that to raise a constitutional doubt under the Qualifications
Clause (i.e., U.S. Const. art. I, § 2, cl. 1), the state
would have had to show that the law precluded it "from
obtaining information necessary for enforcement" of the
state's voter qualifications. Id. at 2259.
Bennet, then Secretary of State of Arizona, together with
Secretary Kobach, subsequently requested that the EAC add
state-specific instructions for Arizona and Kansas requiring
DPOC. Rebuffed by the EAC, they filed suit in the District of
Kansas attempting to force the EAC to grant their request to
add Arizona- and Kansas-specific DPOC instructions to the
Federal Form or to obtain a judgment that the NVRA was
unconstitutional as applied. Kobach v. U.S. Election
Assistance Comm'n (EAC), 772 F.3d 1183,
1187-88 (10th Cir. 2014). They prevailed in district court,
but we reversed on appeal. Specifically, we rejected their
challenge and held that the EAC's refusal was in
accordance with the NVRA and the Administrative Procedure Act
and that no Qualifications Clause issue had been raised.
See id. at 1199. Now we proceed to the procedural
circumstances of this case.
Wayne Fish, Donna Bucci, Charles Stricker, Thomas J. Boynton,
and Douglas Hutchinson (together with the League of Women
Voters of Kansas,  the "Plaintiffs-Appellees")
filed their initial complaint in the U.S. District Court for
the District of Kansas on February 18, 2016. The individual
Plaintiffs-Appellees are U.S. citizens eligible to vote who
claim that they have been prevented from registering to vote
by Kansas's DPOC requirement. Bringing suit under the
private right of action established by the NVRA, 52 U.S.C.
§ 20510(b), and 42 U.S.C. § 1983,
Plaintiffs-Appellees allege that Kansas's DPOC
requirement and the 90-day regulation are preempted by the
NVRA and are unconstitutional under both the Elections Clause
(i.e., U.S. Const. art. I, § 4, cl. 1) and the
Privileges and Immunities Clause (i.e., U.S. Const. art. IV,
§2, cl. 1). After Plaintiffs-Appellees filed their
motion for a preliminary injunction on February 25, 2016,
limited and expedited discovery ensued. In response to the
preliminary injunction motion, Secretary Kobach argued that
the NVRA did not speak to or preempt state DPOC requirements
and, to so interpret the statute, would raise a doubt as to
whether the NVRA was constitutional because it would bring
the statute into conflict with the states' power under
the Qualifications Clause. The district court disagreed,
issuing a memorandum and order on May 17.
order granted in part and denied in part the
Plaintiffs-Appellees' motion for a preliminary
injunction. The court denied the motion as to enjoining
enforcement of the 90-day regulation, holding that the
Plaintiffs-Appellees were unlikely to prevail on their claim
that the regulation was preempted by Section 8 of the NVRA.
But the court granted the motion to enjoin Kansas from
enforcing the DPOC requirement and further enjoined Secretary
Kobach to register each person whose application had been
suspended or cancelled for failure to provide
DPOC. The court did so on the grounds that the
minimum-information principle of NVRA section 5 preempted
Kansas's DPOC requirements and, in that regard, Secretary
Kobach had failed to show that the statute's attestation
requirement did not meet this statutory principle or to raise
a constitutional doubt under the Qualifications Clause.
reach this conclusion, the court first interpreted the term
"minimum" in NVRA section 5 to bear its plain
meaning. Accordingly, under the minimum-information
principle, a "State may require only the least possible
amount of information necessary to enable State election
officials to assess whether the applicant is a United States
Citizen." Fish v. Kobach, ___ F.Supp.3d ___,
2016 WL 2866195, at *16 (D. Kan. 2016). Next the court
determined that DPOC was quite burdensome whereas attestation
was less burdensome and had successfully prevented all but a
very few noncitizens from registering to vote. DPOC was
therefore adjudged to be greater than the least amount of
information necessary and preempted by the NVRA, while
attestation met the statutory minimum-information principle.
Lastly, the court rejected Secretary Kobach's
Qualifications Clause challenge to preemption under the NVRA.
Guided by Inter Tribal and EAC, the court
held that, because Kansas had failed to show that the
statutory attestation requirement resulted in a
"significant number of noncitizens voting, " the
NVRA's preemption of Kansas's DPOC requirement did
not preclude the state from enforcing its citizenship
qualification in contravention of the Qualification Clause.
Id. at *23.
the court issued its preliminary injunction, Secretary Kobach
timely appealed, arguing that the district court erred in its
interpretation of the NVRA, that the Plaintiffs-Appellees had
failed to meet the irreparable-harm standard, and that the
balance of harms was improperly weighed.
Statutory Background: The National Voter Registration
General Purposes and Structure
pursuant to the Elections Clause,  Congress crafted and passed
the NVRA against a backdrop of lackluster voter registration
and political participation. Congress found that
"discriminatory and unfair registration laws and
procedures can have a direct and damaging effect on voter
participation in elections for Federal office and
disproportionately harm voter participation by various
groups, including racial minorities." 52 U.S.C. §
20501(a)(3). In crafting the NVRA, Congress had four
(1) to establish procedures that will increase the number of
eligible citizens who register to vote in elections for
(2) to make it possible for Federal, State, and local
governments to implement this chapter in a manner that
enhances the participation of eligible citizens as voters in
elections for Federal office;
(3) to protect the integrity of the electoral process; and
(4) to ensure that accurate and current voter registration
rolls are maintained.
achieve these purposes, the NVRA creates three federally
mandated voter-registration mechanisms, two of which are
implemented almost entirely by the states. Section 4 provides
the basic outlines of the statute's requirements:
[N]otwithstanding any other Federal or State law, in addition
to any other method of voter registration provided for under
State law, each State shall establish procedures to register
to vote in elections for Federal office-
(1) by application made simultaneously with an application
for a motor vehicle driver's license pursuant to section
20504 of this title;
(2) by mail application pursuant to section 20505 of this
(3) by application in person-
. . . .
(B) at a Federal, State, or nongovernmental office designated
under section 20506 of this title.
§ 20503(a). Together, these mechanisms ensure that,
whatever else the states do, simple means are available to
register for federal elections and those means are actively
presented to voters by the states. The NVRA thus mandates
both the means by which registration is achieved and where
and how those means will be presented to potential voters.
NVRA sets requirements for the contents of both the Federal
Form and any state forms used in the motor voter or agency
registration processes. The contents of the mail-in Federal
Form of sections 6 and 9 (the subject of both Inter
Tribal and EAC) are prescribed partly by
statute, § 20508(b), and otherwise entrusted to the
administrative judgment of the EAC, a federal agency.
See § 20508(a); EAC, 772 F.3d at
1195-96. While states are permitted to create their own
mail-in forms, § 20505(a)(2), they must nevertheless
accept and use the Federal Form, see §
20505(a)(1)-(2); Inter Tribal, 133 S.Ct. at 2247.
Similarly, in the context of Section 7's agency
provisions, state agencies must either distribute the Federal
Form or use "the office's own form if it is
equivalent to the form described in section 20508(a)(2),
" i.e. the Federal Form.
contrast, section 5's motor voter provisions require
states to develop a form for use in tandem with applications
to obtain or renew a driver's license. See
§ 20504(c). But the NVRA does not give states a free
hand to determine the contents of their motor voter forms.
The statute sets out requirements for the contents of state
motor voter forms in terms that largely mirror the
requirements for the Federal Form-but that also differ in
important ways. Compare § 20504(c)(2) (motor
voter form requirements), with § 20508(b)
(Federal Form requirements).
addition to mandating and regulating the means of voter
registration, the NVRA requires that states actively present
voters with those means. Alongside the motor voter regime,
section 7's agency provisions require state public
assistance agencies and other offices designated by the state
(as well as armed forces recruitment offices) to distribute
with their applications for services either the Federal Form
or an "equivalent" state form and to accept
completed forms for transmittal to state election officials.
§ 20506(a)(1)-(4), (6); see also §
20506(c) (military recruitment office provision). Congress
intended with this provision to reach potential voters who
would otherwise not be reached by the motor voter program.
See H.R. Rep. No. 103-66, at 19 (1993) (Conf. Rep.)
("If a State does not include either public assistance,
agencies serving persons with disabilities, or unemployment
compensation offices in its agency program, it will exclude a
segment of its population from those for whom registration
will be convenient and readily available-the poor and persons
with disabilities who do not have driver's licenses and
will not come into contact with the other principle [sic]
place to register under this Act. . . . The only way to
assure that no State can create an agency registration
program that discriminates against a distinct portion of its
population is to require that the agencies designated in each
State include an agency that has regular contact with those
who do not have driver's licenses."), as
reprinted in 1993 U.S.C.C.A.N. 140, 144.
motor voter provision assures that all persons who drive will
sooner or later be presented with an opportunity to register
Each State motor vehicle driver's license application
(including any renewal application) submitted to the
appropriate State motor vehicle authority under State law
shall serve as an application for voter registration with
respect to elections for Federal office unless the applicant
fails to sign the voter registration application.
§ 20504(a)(1). Once a valid motor voter registration
form is submitted to a state, the state is required to ensure
registration so long as the form is submitted within the
lesser of thirty days before the election date or the period
provided by state law. See § 20507(a)(1)(A).
Indeed, section 8 requires that whenever any "valid
voter registration form" mandated by the statute is
submitted, the state must ensure registration to vote in an
election so long as the form was submitted within the
requisite time period. § 20507(a)(1)(A)-(C). In other
words, when an eligible voter avails herself of one of the
mandated means of registration and submits to the state a
valid form, ordinarily the state must register that person.
See Inter Tribal, 133 S.Ct. at 2255.
The Motor Voter Provisions
present case, only the motor voter provisions are at
issue-specifically, the requirements for the contents of
motor voter forms. Subsection (c) of section 5 both sets out
specific requirements for the motor voter form and
establishes an overarching principle that restrains the
discretion of states to require additional information in
carrying out their eligibility-assessment and registration
duties. The relevant statutory language reads:
(2) The voter registration application portion of an
application for a State motor vehicle driver's license-
(A) may not require any information that duplicates
information required in the driver's license portion of
the form (other than a second signature or other information
necessary under subparagraph (C));
(B) may require only the minimum amount of information
(i) prevent duplicate voter registrations; and
(ii) enable state election officials to assess the
eligibility of the applicant and to administer voter
registration and other parts of the election process;
(C) shall include a statement that-
(i) states each eligibility requirement (including
(ii) contains an attestation that the applicant meets each
such requirement; and
(iii) requires the signature of the applicant, under penalty
§ 20504(c)(2)(A)-(C) (emphasis added). Thus, under
subparagraph (A), no duplicate information may be required,
§ 20504(c)(2)(A); under subparagraph (B), while states
may require more than what is expressly required by the NVRA,
such discretion is restricted by the principle that the
states not require more than "the minimum amount of
information necessary to" prevent duplicate
registrations and to carry out their eligibility-assessment
and registration duties, § 20504(c)(2)(B); and under
subparagraph (C) the application must include a list of
eligibility requirements, "including citizenship, "
and a signed attestation under penalty of perjury that the
applicant meets those requirements, § 20504(c)(2)(C).
stating our standard of review, we begin by recalling the
elements of the preliminary injunction standard. We then
discuss each prong of the preliminary injunction standard,
beginning with the likelihood of success on the merits. In
determining whether the district court erred in holding that
the Plaintiffs-Appellees were likely to succeed on the
merits, we consider first the nature of Congress's power
under the Elections Clause and Congress's role in
regulating elections vis-à-vis the states. We next
consider preemption questions and the nature of statutory
interpretation under the Elections Clause. Under the
Elections Clause, we apply ordinary tools of statutory
interpretation and any conflicting state provision is
we interpret the meaning of the NVRA's requirements for
state motor voter forms and hold that the NVRA attestation
requirement presumptively meets the minimum-information
principle; it therefore preempts Kansas's DPOC
requirement absent a factual showing that the attestation
requirement is insufficient on these facts to satisfy that
principle. Next we examine whether Secretary Kobach has
succeeded in showing that attestation is insufficient under
the statutory minimum-information principle and hold that he
has not. Last, we turn to Secretary Kobach's
Qualifications Clause arguments and the remaining prongs of
the preliminary injunction standard.
Standard of Review
appeal, we review a district court's decision to grant a
preliminary injunction for abuse of discretion. See,
e.g., Heideman v. S. Salt Lake City, 348 F.3d
1182, 1188 (10th Cir. 2003). An abuse of discretion occurs
where a decision is premised "on an erroneous conclusion
of law or where there is no rational basis in the evidence
for the ruling." Awad v. Ziriax, 670 F.3d 1111,
1125 (10th Cir. 2012) (quoting Wilderness Workshop v.
U.S. Bureau of Land Mgmt., 531 F.3d 1220, 1223-24 (10th
Cir. 2008)). Thus, we review the district court's factual
findings for clear error and its conclusions of law de novo.
Heideman, 348 F.3d at 1188.
Preliminary Injunction Standard
factors must be shown by the movant to obtain a preliminary
injunction: (1) the movant "is substantially likely to
succeed on the merits; (2) [the movant] will suffer
irreparable injury if the injunction is denied; (3) [the
movant's] threatened injury outweighs the injury the
opposing party will suffer under the injunction; and (4) the
injunction would not be adverse to the public interest."
Beltronics USA, Inc. v. Midwest Inventory Distrib.,
LLC, 562 F.3d 1067, 1070 (10th Cir. 2009).
some preliminary injunctions are disfavored and require a
stronger showing by the movant-viz., movants must
satisfy a heightened standard. They are "(1) preliminary
injunctions that alter the status quo; (2) mandatory
preliminary injunctions; and (3) preliminary injunctions that
afford the movant all the relief that it could recover at the
conclusion of a full trial on the merits."
Awad, 670 F.3d at 1125 (quoting Summum v.
Pleasant Grove City, 483 F.3d 1044, 1048-49 (10th Cir.
2007), rev'd on other grounds, 555 U.S. 460
(2009)). In seeking such an injunction, the movant must
"make a strong showing both with regard to the
likelihood of success on the merits and with regard to the
balance of harms." Beltronics, 562 F.3d at 1071
(quoting O Centro Espirita Beneficiente Uniao Do Vegetal
v. Ashcroft, 389 F.3d 973, 976 (10th Cir. 2004) (en
banc)). The parties dispute whether the injunction requested
here falls under one or more of these categories. The
district court did not reach the question because it held
that the Plaintiffs-Appellees had made a sufficiently strong
showing to meet the heightened standard. Similarly, we
decline to reach the question of whether the heightened
standard for disfavored preliminary injunctions applies and
hold that, even assuming arguendo that the
heightened standard applies, the Plaintiffs-Appellees meet
Likelihood of Success on the Merits
first examine the text of the Elections Clause and the
Supreme Court's jurisprudence concerning statutory
interpretation and preemption under that clause. We next
interpret the NVRA's requirements for the contents of
state motor voter forms and apply that interpretation to the
facts as found by the district court. Last, we address
Secretary Kobach's arguments regarding constitutional
doubt under the Qualifications Clause.
The Elections Clause
Elections Clause states:
The Times, Places and Manner of holding Elections for
Senators and Representatives, shall be prescribed in each
State by the Legislature thereof; but the Congress may at any
time by Law make or alter such Regulations, except as to the
Places of chusing Senators.
U.S. Const. art. I, § 4, cl. 1. The plain text of the
clause requires the states to provide for the regulation of
congressional elections. See Inter Tribal, 133 S.Ct.
at 2253; Foster v.Love, 522 U.S. 67, 69
(1997). The text makes equally clear, however, that Congress
can step in, either making its own regulations that wholly
displace state regulations or else modifying existing state
regulations. See Inter Tribal, 133 S.Ct. at 2253
("The Clause empowers Congress to ...