Wednesday, June 4, 2014

This CRPD and Federalism

The momentum is picking up in favor of ratification of the Convention on the Rights of Persons with Disabilities (CRPD). The Bond decision, rendered by the Supreme Court on June 2, 2014, said that the Federal government should not have pursued a prosecution that, under the Constitution, should have been left to the state (Pennsylvania). Now important voices are speaking publicly about the importance of a speedy ratification of the CRPD  -- Senator Menendez, Chairman of the Senate Foreign Relations Committee, Senator Harkin, Chairman of the Senate Health, Education, Labor, and Pensions Committee, Senators Dole, Kirk, McCain, Barrasso, and Ayotte, the Business Leadership Network, and the U.S. International Council on Disabilities among others.

The Federal government used implementing legislation for an international treaty on chemical weapons to bring the prosecution of a woman who tried to poison her husband's lover. Opponents of the CRPD are concerned that, if ratified, the CRPD would expand the power of the Federal government to areas which, under the Constitution, are under the jurisdiction of states. The Supreme Court decision in the Bond case cleared the air. The relationship between the Federal government and states with regard to, which has power over what, remains unchanged. The Senate resolution to advise and consent on the CRPD needs to include a reservation that reaffirms this point.

We have two possibilities on the "public table". One is in the resolution to advise and consent on the CRPD that failed to pass in the Senate by five votes on December 4, 2012.

Here's the text --

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.

The phrasing that is troubling to some in this reservation is -- "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". People, who object, think it is a vague and open-ended phrase, not specific or strong enough to reaffirm and be consistent with the relevant provisions in the Constitution.

Curtis Bradley, a legal scholar from Duke University, in his testimony given to the Senate Foreign Relations Committee on November 21, 2013 suggested different text for a reservation on federalism (i.e. the relationship between the federal and state governments as spelled out in the Constitution).

Here's the text --

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.

So the Senate Committee on Foreign Relations has these two known options and probably others with which to work. If the Committee can achieve consensus on a reservation on federalism, I believe other concerns will be quickly resolved.

Please urge the Committee to get to work and have a vote soon, so we can have a vote on the Senate floor quickly. Wouldn't it be nice if the Committee could finish its work by July 4th, Independence Day?

Thank you.

Common Grounder        

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