Tuesday, August 12, 2014

The CRPD: The Last Dance and Federalism


The Government Printing Office has printed the Committee Report on the Convention on the Rights of Persons with Disabilities  (Treaty Doc. 112-7) (Executive Report 113-12). Here’s the link: http://www.gpo.gov/fdsys/pkg/CRPT-113erpt12/pdf/CRPT-113erpt12.pdf. It includes statements, written testimony, and oral exchanges between Senators and witnesses from the hearings held on November 5 and 21, 2013. It includes letters sent to the Committee and an exhaustive list of organizations that support ratification. It includes, most importantly the text of the resolution, committee comments and recommendations, and two sets of minority views.

I have written about federalism in earlier posts, most recently June 4, 2014. Federalism deals with the division of power between the federal and state governments as laid out in the Constitution. Many opponents of the CRPD argue that ratification of the CRPD will up end that division of power. I see a strong, clear reservation on federalism as one of the essential components that must be in place, in order for us to secure the necessary 67 votes needed for ratification. That is why I was surprised when the Committee made no change in the reservation on federalism in the resolution voted out of committee, 12-6, on July 22, 2014. With a slight change in punctuation and an addition of a legal citation, it is word-for-word the same text it passed out of committee on December 4, 2012. You can read the exact words below, as well as alternative text on a federalism provision offered by a conservative legal scholar, Curtis Bradley


Text of Resolution of Advice and Consent to Ratification, 12/04/12

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.
Text of Resolution of Advice and Consent to Ratification, 07/22/14

The 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 (42 U.S.C. 12101 et seq.), or other Federal laws, with the ultimate objective of fully implementing the Convention.


Curtis Bradley, a legal scholar from Duke University, in his testimony given to the Senate Foreign Relations Committee on 11/21/13
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.

In their analysis of the federalism reservation in their minority views in the report Senators Corker, Risch, Rubio and Johnson say –

By first stating that the Convention ‘‘shall be implemented . . . by state and local governments,’’ and then by limiting our obligations in those areas where state and local governments exercise jurisdiction ‘‘to the Federal Government’s taking measures appropriate to the Federal system,’’ it is unclear whether the Administration seeks to limit the scope of our obligations under the treaty, or only the means by which our obligations will be fully implemented. (p. 29)

…by failing to clearly limit the scope of our obligations under the Convention in the federalism reservation while noting potential concerns about state level compliance, the United States risks the perception (and potential reality) of being in violation of our international legal obligations on a human rights treaty. This can harm our standing with those who share our values, and it can frustrate our efforts to encourage those who don’t. (p. 30)

Senators Corker, Risch, Rubio and Johnson make valid points. We need a stronger, clearer reservation on federalism than the one in the committee report.

How’s this –

The Federal Government of the United States of America shall implement the Convention applying the federal-state structure spelled out in the Constitution. In doing so, the United States of America recognizes and will respect that a combination of federal and state laws will be the basis upon which it complies with the Convention. 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. The United States does not intend to alter the existing scope of Federal authority. It assumes no 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 states of the Federal Union with respect to any matters recognized under the United States Constitution as being within the reserved powers of the states.

This is one possibility. Surely there are others. If bipartisan consensus could be achieved on a federalism reservation, the value, clarity, and strength of provisions related to parents’ rights and access to health care would be enhanced as well. I urge everyone who has the power and influence to do so, to take one more look at the federalism reservation. If we are serious about ratification, this is the move that will get us there.

Thank you.
Common Grounder  



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