Garrett

[Arthur D. Wolf]

        With regard to the comments of Michael M. and others, the reach of the
Commerce Clause regarding Title II of the ADA is challenging since it
covers all "services, programs, and activities" of state and local
government.  First, the Court's decisions in Reno v. Condon and S.C. v.
Baker involved products or goods that had or would move in interstate
commerce so similar state and local activities would be reachable.
Government owned or sponsored transportation facilities would also seem
well within reach.  Other "services, programs, or activities" might be
considered "local" and thus be upheld only if they  "substantially" affect
commerce.  Imposing ADA requirments on local school boards, for example,
might prove problematical under Lopez.  Some activities or programs may be
non-economic, thus raising the Lopez and Morrison issue (non-economic
activities are beyond the reach of the commerce clause).  As in Kimel and
Garrett, the evidence in the congressional hearing record will be critical
in determining the validity of Title II.

        Second, since Congress is regulating the activities of the states
themselves, the Tenth Amendment, at least in its "commandeering" aspects,
would be inapplicable as the Court held in Condon and Baker.  I do not read
Title II as requiring the states to regulate private activity.  I don't
know that the Court has expanded the reach of the Tenth Amendment beyond
the "commandeering" doctrine.

        Third, the idea floated in Condon regarding a requirement of equal
application of a federal statute to governmental and private entities is
intriguing.  First, I am not certain of the source of such a requirement.
The reference in Condon was very off-hand and casual.  I would like to know
why Congress could not regulate only state governments if it chooses not to
regulate the private sector.  Second, Congress has regulated the private
sector under the ADA, even though not in Title II.  It would border on
silly for the Court to view Title II in isolation from other parts of the
statute, at least for the discrimination point.

        Fourth, considering all the funds that Congress has contributed to the
operation of state and local governments over the years, I wonder if
Congress could, on that basis alone, "regulate" at least some aspects of
governmental operations, perhaps regarding access to state and local
facilities, transportation, and jobs.  While the Spending Clause authorizes
conditions on state funding programs (at least if they are non-coercive),
such as in S.D. v. Dole, I would suggest that such "conditions" could be
applied retroactively.  In any event, states receiving federal funds since
1973 probably have been under similar obligations (as in Title II)
regarding persons with disabilities by virtue of the Rehabilitation Act of
1973 and other statutes.


                                Art Wolf
                                Western New England College




At 03:12 PM 2/21/2001 -0500, you wrote:
>Some thoughts on today's decision in Garrett:
>
>Garrett seems simulataneously narrow and broad in its holding that
>Congress lacked section five power to strip states of sovereign immunity
>under Title One of the ADA.
>
>Garrett is narrow because:  1) the Court begins by exempting claims under
>Title Two of the ADA from its decision, and 2) it ends by reiterating that
>Title One remains enforceable against the states both by the federal
>government, which can sue for damages on behalf of the victims of
>employment discrimination, and by private citizens seeking injunctive
>relief under ex parte Young; Rehnquist's last footnote expressly approves
>ex parte Young suits, a question I would have thought left open after
>Kimel (which does not say the ADEA is enforceable under ex parte Young)
>since the claim would seek only to enforce a statutory right, and there
>have been suggestions that ex parte Young should be limited to
>constitutional claims.
>
>Garrett is broad because its reasoning, both in requiring a legislative
>record of widespread state violations and in holding that the statutory
>reasonable accommodation requirement would not be congruent and
>proportional even were there such a record, seems fully applicable to
>Title Two, and would seem to foreshadow a similar result in a Title Two
>damage claim against the state.
>
>That led me to wonder whether the exclusion of Title Two from
>consideration is an invitation to challenge congressional power to enact
>the statute.
>
>After Garrett, Title One of the ADA still presumably is a constitutional
>regulation of states as employers an exercise of congressional power to
>regulate interstate commerce per EEOC v. Wyoming.  Because Title One is
>clearly valid commerce clause legislation, it follows that, per the last
>footnote in Garrett, private citizens can sue to enforce it under ex parte
>Young, and that the U.S. can sue states directly to recover damages.
>
>Title Two is a different kind of statute; it does not regulate states only
>incidentally to its regulation of private entities and individuals; by its
>terms it only applies to state and local governments.  For that reason,
>the exclusion of Title Two from the scope of the decision may reflect a
>concern that it is not a permissible exercise of the power to regulate
>interstate commerce as limited by the tenth amendment.  The Court has so
>far upheld the power to regulate states and, apparently local governments,
>under the commerce clause only when the regulation falls on public and
>private entities alike, most recently in Reno v. Condon.  Whether Congress
>can regulate the behavior of governments alone under the commerce clause
>seems an open and critical question.  If the answer is no, then Title Two
>is constitutional only if it is a permissible exercise of section five
>power under the fourteenth amendment.  Garrett held that section five
>power does not extend to Title One, and its reasoning may support the same
>conclusion re Title Two.  If that is so, then ex parte Young would be no
>help, for there would be no valid basis for Title Two either under the
>commerce clause as limited by the tenth amendment or section five, and it
>therefore would be unconstitutional, either altogether, or applied to
>states if the legislative record of local government abuse is sufficient
>to sustain it as a permissible exercise of section five remedial power to
>regulate their behavior.  If that is what Garrett portends, then it is
>considerably more important than its narrow focus would suggest.
>
>
>Michael R. Masinter                     3305 College Avenue
>Nova Southeastern University            Fort Lauderdale, Fl. 33314
>Shepard Broad Law Center                (954) 262-6151
>masinter at nova.edu                       Chair, ACLU of Florida Legal Panel
>