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
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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.
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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.
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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.
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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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