September Analysis

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Annice Lindsey
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1 September 2012 Analysis Proposed Reservations, Understandings, and Declarations for the United Nations Convention on the Rights of Persons With Disabilities Michael Farris, JD, LLM 1 Chairman Home School Legal Defense Association Reservations 1. The Federalism Reservation The very concept of a federalism reservation runs counter to the general principles of international law. Normally, when a nation-state enters into a treaty, that nation-state has the obligation to fulfill that treaty and may not justify its failure to implement the treaty s provisions based on the failure to act of any subsidiary unit of government even in a federal system. In Missouri v. Holland, 252 U.S. 416 (1920), the Supreme Court held that Congress may pass implementing legislation in pursuance of a treaty even in that subject matter had heretofore been, by virtue of the 10 th Amendment, within the exclusive legislative competence of the states. Thus, there is no debate that the ratification of a treaty gives Congress all of the power necessary to implement its terms any principle of federalism to the contrary notwithstanding. 1 Farris LLM degree is in Public International Law from the University of London.

2 2 The sole question is whether the proposed Federalism Reservation changes any of this. The proposed Reservation largely follows the language of a similar RUD contained in the United States ratification of the International Covenant on Civil and Political Rights. However, there is one important difference. The UNCRPD federalism reservation contains the following language not found in the parallel provision of the ICCPR: the Federal Government [may take] 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. This Reservation is not a viable Federalism Reservation deserving of that name. It permits the Federal Government to override the states not only if the states violate the ADA, that is existing federal law, but any future federal law on the subject as well. The phrase or other Federal laws is a claim of plenary federal legislative power. We know from Missouri v. Holland that this is no empty claim. This form of a Federalism reservation is a shell game. 2. The Private Conduct Reservation The State Department and the Committee on Foreign Relations recognize that by its terms the Convention can be read to require broad regulation of private conduct. Under the UNCRPD, any discrimination against a disabled person by any person is a violation of the treaty. This means that a home owner who does not have an ADA compliant wheel chair ramp would be in violation of the rights of a door-to-door salesman who wanted to access the home to make a sale. Every home in America would have to become ADA compliant to comply with this treaty. The Reservation, however, contains a gaping hole that is similar to the one found in the federalism reservation. [T]he United States of America does not accept any obligation under the Convention to enact legislation or take other measures with respect to private conduct except as mandated by the Constitution and laws of the United States of America. The ADA has been enacted based on the Commerce Clause power contained in Article I, Sec. 8. The Supreme Court has recognized that Congress does not

3 3 have Commerce Clause power to regulate private homes as such. Jones v. United States, 529 U.S. 848 (2000). The UNCRPD eliminates the need for Congress to claim Commerce Clause power to legislate. And the language of this Private Conduct reservation preserves in full the power of Congress to legislate for the purposes of fulfilling its treaty obligations. Therefore, this Private Conduct reservation is actually a federal power grab which allows Congress to enact legislation vis-à-vis private homes that it could not have done under the Commerce Clause or any other source of federal constitutional authority. Understandings 2. Definition of Disability The second proposed Understanding attempts to grapple with the fact that there is no definition of disability in the treaty. Thus, it is truly impossible to understand the scope of the undertaking of this treaty. The last sentence of this Understanding robs it of any power. Once again, the limitation promised by the Understanding is subject to an exception. Disability rights still will be protected, despite this Understanding insofar as they are recognized and implemented under U.S. Federal law. If this exception was limited to existing U.S. Federal law then we would know the extent of the undertaking. But, since the word existing is missing from the treaty, we are left with an expanding definition of disability that represents a growing extent of federal power over any arguable form of disability that is not currently regulated by the federal government. Moreover, we should point out that this exception is for U.S. Federal law not acts of Congress. This Administration is pushing the boundaries of the power to make federal law via Executive Orders and other forms of administrative action. This exception robs this Understanding of any meaningful limitation on federal power to enforce this treaty. Any future president can simply make an executive order announcing a new, broad definition of disability and the United States would be bound thereby according to the terms of this Understanding. 7. The Abortion Funding Understanding

4 4 This Understanding is solely limited to the provisions of Article 25 of the UNCRPD. Article 25 is not the only section that contains language that impacts government funding of abortions. Article 23(1)(b) also addresses reproductive health services, providing that The right of all persons with disabilities to decide freely and responsibly on the number and spacing of their children and to have access to age-appropriate information, reproductive and family planning education are recognized, and the means necessary to enable them to exercise these rights are provided. According to Article 23, the disabled have a right to make reproductive health and family planning decisions and a right to be educated about those decisions and given the means to carry out those decisions. Simply put, the government must pay for Planned Parenthood styled education and then fully fund all medical services needed for such matters. In the hearing before the Senate Foreign Relations Committee, the Administration admitted that it believed that reproductive services includes abortion services. Article 23 requires educational funding for these purposes and then requires that covered persons are given the means to carry out those decisions. This is an explicit requirement for full funding of abortion services. 8. The Best Interest of the Child Understanding Article 7, Section 2 of the treaty requires that states ensure that In all actions concerning children with disabilities, the best interests of the child shall be a primary consideration. The best interest of the child standard is one used in American family law. Under current law, however, only if a family is broken by a divorce or if a parent is convicted of neglect or abuse can the government substitute its view of what is best for the child for that of the parent. Parental rights are primary the government s judgment is only called upon when it becomes clear that parents are incapable of making decisions for the benefit of their children. In contrast, the UNCRPD enjoins states to ensure that all actions concerning disabled children are made on the basis of the child s best interest. In order for states to live up to their treaty obligations, they must necessarily make judgments about children s best interests continuously. Should the government s assessment of the child s best interests differ from that of the parents, the government gets to make the decision, not the parents. It is true that the Foreign Relations Committee sought to address these concerns with an Understanding that nothing in Article 7 requires a change to existing United States law. However, in context, the term United States law is ambiguous. In normal usage, United States law refers to federal law while state law is described as the laws of the several states. Since this Understanding only addresses United States law the supremacy of the treaty over state law is still unaddressed. Of course, the vast majority of the law concerning the rights of parents over the education of their children is found in state law, not in federal

5 5 law. This Understanding as currently written falls woefully short of providing any assurance to parents that they will remain the primary decision-makers for their children s education. Conclusion I have not addressed any RUD that appears to accomplish its stated objective. However, the RUDs which fall short of that goal are significant: The Federalism Reservation contains a massive loophole. The Private Action Reservation contains a massive loophole. Abortion funding will be required by Article 23, despite the Understanding relative to Article 25. The Best Interest of the Child standard is still dangerous because of faulty wording of the Understanding.

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Article I: Sec 1: Sec 2: Sec 3: Sec 4: Sec 5: Sec 6: Sec 7: Sec 8: Sec 9: Sec. 10: Article II: Sec 1: Sec 2: THE US CONSTITUTION STUDY GUIDE Directions: Read the US Constitution and complete the following questions PART I: THE OVERALL STRUCTURE OF THE CONSTITUTION 1. Read each article of the Constitution. Summarize