Wednesday, July 23, 2014

The CRPD and Michael Farris

Today in the Federalist Michael Farris, Founder of the Home School Legal Defense Fund, has an opinion piece -- What I Wish Bob Dole Understood about UN Treaties

He frames his arguments on two fundamental principles of international law. They may well be, but the logic he applies in his piece is tangled.

The first principle is -- "rules must be kept". That means, if you sign and ratify a treaty, you agree with it. The second principle is -- "equality of nations".  Michael Farris says this means, "Every nation decides for itself whether to enter into any international commitment." How else could it be?

Michael Farris then makes these points:

U.S. ratification means that the United States is committing itself to adhere to the treaty... U.S. ratification does not have any direct effect on the law in any other nation.... The idea that our ratification will not cause legal changes in the United States but will result in real changes in other nations manages to violate both of the most fundamental principles of international law.

Huh? Whether U.S. action has "any direct effect" on another nation depends on when and where you look. Right now other nations are watching what we do about the CRPD and wondering why we are stalling on ratification. Words matter. Actions matter more. If we ratify the CRPD they will include us, reach out to us, and consider us when they make or revise policies and implement them. If we don't, you better believe they will be less likely to include us, reach out to us, and consider us when how persons with disabilities are treated is the issue. What Michael Farris sets aside so quickly is that we are all in this together, so we better join hands.

With regard to impact on our laws -- multiple federal agencies did a legal analysis of our laws and said we are in good shape and need no new laws in order to comply with the CRPD. This analysis did not say we will NEVER need to enact another law with regard to persons with disabilities.

Then he makes these observations about some of the reservations, understandings, and declarations (RUDs) the Senate Committee on Foreign Relations voted on and passed yesterday. I'll have to take his word for it, because I have not seen the text yet.

First, there is the non-self-executing declaration. This only means Congress has the duty to pass legislation to implement the treaty rather than allowing courts to directly enforce its provisions. This does not change our legal duty to comply; it only changes the agency in charge of enforcing compliance.

I must be honest. I don't understand this point. We need no new laws to comply with the CRPD. As I understand "non-self-executing", which is a condition in other treaties the U.S. has ratified, a person cannot use text in a treaty to take a matter to court. The person can only use U.S. law to do that.

Second, there is the federalism declaration. All this means is that legislative authority on disability issues will not change merely because of the ratification. This declaration does not relieve our nation from its duty to comply. And, in any event, the power of Congress to legislate under the General Welfare Clause is essentially unlimited, as the Supreme Court confirmed in the Affordable Care Act litigation. Congress will have all of the power it needs to implement the treaty.

I must be honest. I don't understand this point either. As other nations that have ratified the CRPD have done, we will include text in the resolution on the CRPD that describes HOW we will comply. If the text on federalism that was accepted yesterday is not strong enough or clear enough, then why not offer an amendment on the Senate floor to improve it? Curtis Bradley, a conservative legal scholar, has already provided testimony to do that.

Next Michael Farris brings up the case of the Romeike family, a German family who emigrated here, so they could home school their children. Although the family faced multiple legal challenges in their efforts to remain here, Michael Farris fails to point out, the family is able to REMAIN here idefinitely. All legal challenges are over. So, the U.S. system WORKED. Again, if there is objection to the parents' rights/best interests of the child declaration accepted yesterday in committee, then offer an amendment on the Senate floor to improve it.

The CRPD means something. The U.S. if it decides to ratify the CRPD, as other countries have done, has the right to say HOW not IF it will comply with it. Michael Farris fails to acknowledge that distinction.

Thank you.
Patricia Morrissey
Ph.D. in special education from the Pennsylvania State University

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