Minimal impact of Garrett

[lweinberg]

If it is minimal impact when states and localities, often the largest
single employers in the state, can fire their employees for being sick, why
should we accept Chief Justice Rehnquist's argument that his decision will
save taxpayers money?  If it is only minimal money, why not permit Congress
to act?

At 01:41 PM 2/25/01 , you wrote:
>I think it is quite clear in Boerne and its successors that there is no
>requirement of a one violation-to-one-remedy formula.  What that analysis
>misses in my view is that the existence of a pattern of state
>unconstitutional conduct is a *threshold* inquiry to the
>proportionality/congruence standard.  If there is widespread and persisting
>state unconstitutional conduct, Congress may act pursuant to Sec. 5.  If not,
>the inquiry stops altogether. (Boerne, Florida Prepaid)
>
>If the threshold requirement (widespread and persisting violations) is
>proved, then the remedy must be proportional (reasonably related) and
>congruent to (directed at) the constitutional harm (Boerne), but that does
>not mean the remedy may *only* encompass unconstitutional actions.  If it is
>necessary for Congress to make state actions that are otherwise
>constitutionally legal to forestall unconstitutional state action, the Court
>will approve that.
>
>The fringe of permissible possible regulation beyond outlawing
>unconstitutional conduct, does not include, however, Congressional power to
>regulate *private* individuals to remedy the states' unconstitutional
>actions.  (VAWA)
>
>On Sandy's gracious point about the real impact of ADA, I think the majority
>opinion is correct as well as sincere in explaining the small impact of the
>decision.  As with all of the Court's post-Garcia federalism decisions, the
>incursion on congressional power is so minimal in fact that the strong
>reactions the decisions elicit in the newspapers and the academy seem
>disproportional.
>
>Marci