Congruence, Proportionality, and the ADA

[Parry, John]

If Michael, Marty, and John are correct, my answer to my student was at
least partly wrong.  But I'm not fully convinced.  Here's where my thinking
is going:

1) a) If congress were to legislate a damages remedy for violations of a
broader-than-Miranda statute, the 11th amendment would be triggered and
abrogation would be appropriate only under section 5, which in turn would be
appopriate only if the remedy is congruent and proportional (and I think the
answer to that one is pretty clear).

        b) To the extent the court continues to deny 11th amendment immunity
to localities and there is a damages claim, none of this matters when the
violation of the federal statutory right was committed by local law
enforcement, so long as the law is otherwise valid under some enumerated
power.  However, if congress relied on the section 5 power, doesn't the
congruence and proportionality test kick in even at the sub-11th amendment
level?  In Boerne it was the city that violated RFRA, and it still got to
argue that Congress went beyond the section 5 power when the claim was not
for damages.  I assume that means a city could raise section 5 claims when
sued for damages even if not immune under the 11th amendment -- so the
congruence and proportionality test does apply.

        How long before localities start litigating for 11th amendment
protection?

2) Injunctive relief sought by the private party (subject to Lyons, I
suppose -- but the power of Congress to get around Lyons is yet another
thread) and a damages or injunction claim by the feds on behalf of the
injured person are both fine (for now) if the federal law is otherwise
valid.

        a) If the enumerated power is commerce, then we are fine so long as
Garcia stands -- any bets?

        b) But in the hypos presented in my first posting (a statute that
goes beyond Miranda) and in Susan's posting (a statute that goes beyond
Strickland), aren't we required to deal with the section 5 power (as Myron
suggests)?  Where is the commerce when dealing with custodial interrogations
or assistance of counsel (although at least w/ counsel there is an economic
transaction btw state and lawyer)?  So as Evan points out, we are back to
Boerne even though we aren't dealing with damages.  After all, RFRA was not
about damages but just restraints on state action.  (Is there a prospective
/ retrospective distinction here?  I don't see a coherent way to do it.)

Confused but seeking enlightenment,

John Parry

-----Original Message-----
From: Michael MASINTER [mailto:masinter at NOVA.EDU]
Sent: Tuesday, March 13, 2001 10:50 PM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: Congruence, Proportionality, and the ADA


I agree, subject to what would seem the inevitable reconsideration of
Garcia and resurrection of National League of Cities.

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

On Tue, 13 Mar 2001 LoAndEd at AOL.COM wrote:

> Title I of the ADA is permissible Commerce Clause legislation regulating
the
> employment relationship, even if (per Garrett) it isn't permissible
section 5
> legislation.  Accordingly, the substantive obligations of title I remain
in
> effect even as to the States, and may be enforced by means other than
private
> suits against the States.
>
> Marty Lederman
>
> John Noble writes:
>
> <<
>  If it isn't the abrogation of immunity that triggers the congruence
>  and proportionality test, then doesn't federal enforcement fall with
>  private enforcement in Garrett.
>   >>
>
>