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        

The CRPD, the Final Leg of the Journey

 As I predicted last night, this morning the Supreme Court issued its opinion in the case, Bond versus the United States. Common sense as well as judicial caution prevailed. The Justices all agreed that the Federal government had no business using a statute enacted to implement a chemical weapons ban treaty to prosecute and convict a woman who poisoned her husband's lover. Amen to that. Justices also wisely elected not do any creative rearranging of our federalism system as outlined in the Constitution.

Everyone who supports the ratification of the Convention on the Rights of Persons with Disabilities (CRPD), including Senators Harkin and Menendez, are ready to proceed to markup and a Senate floor vote. Hallelujah.

The way the Justices acted has removed one of the major arguments of the opposition for not ratifying the CRPD. The opposition contended that CRPD ratification, and I suspect ratification of  any treaty, would undo the balance of power between the state and federal governments. The ruling in the Bond case reflected unequivocally this is not going to happen under the Roberts' court. John Roberts is the Chief Justice of the Supreme Court. He is a relatively young person.

Being the optimist that I am, I hope that some Senators, especially those who have objected to the ratification of the CRPD on sovereignty grounds, will now sit down and talk to Senator Menendez and help develop a bipartisan resolution to get the CRPD passed by a wide margin.

Perhaps finally we can get a tally on where each Senator stands on the CRPD. Who has language to put in a resolution to address their concerns? Who wants to wait and see a final draft? Who will never support a resolution on a treaty regardless of what is in the text. We need six more Senators to support treaty ratification to get a CRPD resolution passed. The magic number is 67 votes . I think we can get more than the six we need to hit 67.

Here's what we each need to do.

Contact our Senators and  ask where they stand, and report what we learn back to Eileen Dombrowski at USICD.
Encourage our friends family, and colleagues to do the same.
Encourage veterans to contact their Senators as well.
Encourage business people to contact their Senators too.

We know the drill. The end is in sight. Now let's get ratification done.

Thank you.
Common Grounder

The CRPD and Bond vs. the United States

Any day now we should hear about the Supreme Court's decision in the Bond case. The case involved a woman who tried to poison her husband's lover. You would think that a case like that would be left to the state in which it transpired, but it was not. The U.S. government became involved using implementing legislation enacted to fulfill and describe how we would comply with an international chemical weapons treaty. Huh? What's this pending decision have to do with the Convention on the Rights of Persons with Disabilities (CRPD)?

Everyone is on pins and needles and full of suspense. Because -- the court decision in this case could change or leave unchanged how the Supreme Court views U.S. sovereignty as spelled out in the Constitution. In the Constitution sovereignty deals with which powers are held by the federal government and which powers are held by the states. If the Supreme Court rules that the federal government took enforcement action under the law related to the international chemical weapons treaty on unconstitutional grounds, it would be saying that state law can't be undone or ignored in the name of an international treaty. Or, if it rules the other way, it would be saying that the federal government can intervene and take action under a law passed related to an international treaty, basically trumping state law.

With regard to the CRPD, no new laws are required so I can't see how a Supreme Court decision in the Bond case would apply to it. However, those in opposition to CRPD ratification have been trying to link it to the pending Bond decision. Since opponents to the CRPD see it as something all powerful -- that will undo the division of power between the federal and state governments; make the federal government the final authority on all things related to disability rights; and make the words in the CRPD the basis for all legal interpretations -- they are waiting and hoping for a decision that will let them say, "We told you so." With that, they think they will be able to kill any chance of ratification of the CRPD. They think all Senators sitting on the sidelines would agree with anti-CRPD forces.

We could get the Supreme Court's ruling on Monday, June 2nd.

Thank you.
Common Grounder