Curtis Bradley, a legal scholar from Duke University, handed us a gift, in his testimony on the Convention on the Rights of Persons with Disabilities (CRPD) before the Senate Foreign Relations Committee on November 21, 2013. I urge everyone to read it. It is not that long, eight pages, and it is very understandable.
His gift, suggested text for a reservation pertaining to sovereignty and protecting the balance of power distributed between federal and state governments as spelled out in the Constitution. He contends his suggestion is stronger and clearer than the reservation on federalism that was included in the 2012 Senate resolution to advise and consent on the CRPD, which failed to pass by five votes on December 4th.
2012 reservation on federalism
(1) This Convention shall be implemented by the Federal Government of the United States of America to the extent that it exercises legislative and judicial jurisdiction over the matters covered therein, and otherwise by the state and local governments; to the extent that state and local governments exercise jurisdiction over such matters, the obligations of the United States of America under the Convention are limited to the Federal Government’s taking measures appropriate to the Federal system, which may include enforcement action against state and local actions that are inconsistent with the Constitution, the Americans with Disabilities Act, or other Federal laws, with the ultimate objective of fully implementing the Convention.
Bradley offers in his written testimony – “The federalism reservation (above) refers vaguely to ‘measures appropriate to the Federal system,’ but that might include measures allowed under Missouri v. Holland, and the reservation specifically states that the federal government can take enforcement measures against state and local actions that are inconsistent with 'other Federal laws,' which might include laws that Congress enacts in the future under the authority conferred by Missouri v. Holland.”
Bradley’s point addresses three issues raised by opponents of the CRPD: (1) the CRPD immediately undoing state laws, (2) future Congresses using a treaty to undo state laws, and (3) the impact of the Bond case pending before the Supreme Court.
Bradley’s suggested reservation would provide fixes for these concerns.
Bradley’s suggested text on federalism
The Federal government has substantial authority to regulate issues relating to the rights of persons with disabilities, and it has exercised this authority in connection with a number of important statutes, including the Americans with Disabilities Act. The Federal government’s authority is not unlimited, however, and some matters that relate to the Convention would typically be addressed by state and local law. The United States expects that the combination of existing Federal law and state and local laws will be sufficient to meet or exceed the obligations of the United States under the Convention as ratified by the United States. Because the United States does not intend to alter the existing scope of Federal authority, it is not assuming obligations under this Convention that would exceed the constitutional authority that the Federal government would have in the absence of the Convention, notwithstanding Article 4(5) of the Convention. Furthermore, nothing in the Convention shall be considered as conferring on the Congress of the United States the authority to enact legislation that would fall outside of the authority that it would otherwise have in the absence of the Convention, or as limiting the powers of the several states of the Federal Union with respect to any matters recognized under the United States Constitution as being within the reserved powers of the several states.
Bradley’s proposed text would not only keep the CRPD from being a legal argument for expanding federal power to areas reserved by the Constitution for the states, it would preserve the status quo unless a state legislature or Congress changes existing law – changes either is allowed to make under the Constitution. In plain English this means parents’ rights to home school their children and access to health services of any kind in each and any state are what they are and would not be changed by ratification of the CRPD.
Adoption of Bradley’s text means we would not need separate reservations, understandings, or declarations (RUDs) pertaining to best interests of the child (Article 7 in the CRPD) or health care (Article 25). And, we would not need to wait for a Supreme Court decision in Bond and its potential effect on Missouri v. Holland. Bottom line – with Bradley’s reservation we take care of tough issues that divide us.
In his testimony Bradley offers other fixes as well. Again, I urge everyone to read his full testimony. We are so close. Embracing Bradley’s suggestions will save us time, present us with credible solutions, and give us the opportunity to do the right thing before the holidays so we can enjoy them. After you read Bradley’s testimony, if you agree with me, let the members of the Foreign Relations Committee know how you feel.