Lane v. Tennessee
marty.lederman at comcast.net
Fri May 28 06:55:22 PDT 2004
On the "merits" of the Commerce Clause question, my colleague Tom Goldstein (who also was on Lane's brief, with Sam) notes that even this Court almost certainly would find that title II is permissible Commerce Clause legislation as to some of its applications (i.e., at the very least as to those applications in which the state is acting as a "market participant"; cf. also Condon v. Reno). Assuming that's correct (and I think it is), then perhaps the Court would uphold all of title II under the Commerce Clause on the theory that a sufficient percentage of applications are within the Commerce power. But even if the Court were to engage in "as-applied" invalidation of certain applications of statutes under its Commerce Clause doctrine -- and, btw, whether or not it should ever do so is the principal uestion raised in the current petition from the Ninth Circuit's holding in the medical marijuana case -- Tom points out that the applications of title II that are least likely to survive section 5 review (e.g., the now-infamous hockey-rink example) are precisely those that are most likely to fall within the Commerce power. Which might, in turn, explain why SOC is comfortable upholding certain applications of title II under section 5, but not others -- namely, that she'll uphold applications (only?) where necessary to sustain Congress's power to impose substantive obligations, i.e., where the Commerce Clause would be unavailing.
----- Original Message -----
From: Marty Lederman
To: Law & Religion issues for Law Academics ; conlawprof at lists.ucla.edu ; Samuel Bagenstos
Sent: Friday, May 28, 2004 9:18 AM
Subject: Re: Lane v. Tennessee
Sorry, I hadn't meant to suggest that Sam overlooked this point. Indeed, I had intended (but simply forgot) to link to Sam's brief, in which this message was sent to SOC loud and clear. See also pages 11-12 of the SG's brief (http://www.usdoj.gov/osg/briefs/2003/3mer/2mer/2002-1667.mer.aa.pdf):
Third, unlike Kimel and Garrett, this case implicates concerns beyond abrogation and the ability of individuals to sue the States for money damages. Because both Kimel and Garrett targeted employment discrimination, those decisions only invalidated the statutes' abrogation provisions; the substantive prohibitions of those laws remain applicable to the States pursuant to Congress's undoubted power to regulate employment under its Commerce Clause authority, and they can be enforced against state officials under Ex parte Young, 209 U.S. 123 (1908). See Garrett, 531 U.S. at 374 n.9; EEOC v. Wyoming, 460 U.S. 226, 235-243 (1983). While petitioner concedes (Br. 16) that Title II's substantive provisions are valid Commerce Clause legislation, its state amici (Br. 22, 25) and a number of other States pointedly do not [citing briefs]. Accordingly, unless Title II is appropriate Commerce Clause legislation, the issue presented here draws into question the power of Congress to require both States and local governments, whether through private damages actions, private injunctive actions, or suits by the United States itself, to make their buildings, programs, and public life accessible to a historically marginalized population.
----- Original Message -----
From: Samuel Bagenstos
To: Marty Lederman ; Law & Religion issues for Law Academics ; conlawprof at lists.ucla.edu
Sent: Friday, May 28, 2004 9:07 AM
Subject: Re: Lane v. Tennessee
I think there is more to it than Marty says -- I do think this was a clear case of prophylaxis, for many of the same reasons Vik Amar marshalls. But I certainly wouldn't ignore the notion that Justice O'Connor was afraid that the substantive obligations of Title II would go down if the Court ruled against the plaintiffs on the immunity question. As Marty knows, I was one of the lawyers who represented Lane, and in the introduction to the argument section of our brief before the Court we played up this very angle. To quote the key paragraph:
Both the state and its amici reassure the Court that their position does not call into question the ultimate constitutionality of Title II; all that supposedly is at issue is whether Congress can properly impose a damages remedy on states that have violated the statute. See Pet. Br. 15-16; Ala. Br. 25-26. But the reassurances of the state and its amici ring hollow. If this Court rules that Title II cannot be supported by a sufficient Fourteenth Amendment predicate, the statute will provide no basis for any relief--damages or an injunction--unless it can be upheld under Congress's Article I commerce power. In their brief before this Court, the State's amici pointedly refuse to concede that the commerce power supports Title II. See Ala. Br. 5 (noting that an injunctive remedy exists for Title II violations only "assuming [Title II] is a valid exercise of Congress's Article I power"); id. 22, 25 (same). And a number of states have recently challenged the Commerce Clause basis for the statute. See Thompson v. Colorado, 278 F.3d 1020, 1025 n.2 (10th Cir. 2001), cert. denied, 535 U.S. 1077 (2002); State v. Rendon, 832 So. 2d 141, 146 n.5 (Fla. Dist. Ct. App. 2002), rvw. denied, 851 So. 2d 729 (Fla. 2003); Meyers v. Texas, No. 02-50452 (5th Cir.) (pending); Doe v. Regier, No. 03-2794 (Fla. Dist. Ct. App.) (pending); McCarthy v. Hale, No. 03-50608 (5th Cir.) (pending). Of particular importance, the applications of Title II that come closest to the core of Congress's Fourteenth Amendment power--those guaranteeing participation in such quintessential activities of self-government as voting, jury service, and the like--are precisely those that are least likely to be sustained under the Commerce Clause. For all intents and purposes, then, petitioner is mounting a facial challenge to the basic constitutionality of Title II.
A ruling that Title II exceeds Congress's authority would invalidate the very " 'milestone on the path to a more decent, tolerant, progressive society' " that the State purports to endorse. Pet. Br. 15-16 (quoting Garrett, 531 U.S. at 375 *12 (Kennedy, J., concurring)). Fortunately, Title II fully meets the state's constitutional challenge. * * *.
At 08:35 AM 5/28/2004 -0400, Marty Lederman wrote:
In addition to Sam's post below, Vik Amar and Michael Rappaport have now posted theories on why Justice O'Connor switched from Garrett to Lane.
While there is much to be said for all of these (and other) explanations of the decision, I'm surprised that no one has yet mentioned what was, in my view, the pink elephant sitting in the middle of the room -- namely, that if SOC decided that title II could not be enacted pursuant to section 5, that holding would not simply lead to invalidation of Congress's abrogation of state sovereign immunity (as in Garrett, Kimel and Florida Prepaid), but would also almost certainly mean invalidation of the substantive obligations that title II imposes on the states, because it is extremely unlike that this Court (including SOC) would hold that title II is defensible under the Commerce Clause. SOC cares about preserving the state fisc against what she sees as onerous litigation burdens; but I suspect she's not hostile to the underlying obligations imposed on states in any of the titles of the ADA.
Samuel R. Bagenstos
Assistant Professor of Law
Harvard Law School
1545 Massachusetts Ave.
Cambridge, MA 02138
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