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.
Happy Thanksgiving.
Common Grounder
