The ADA and the 11th Amendment

Nathan Newman nathan.newman at
Sat Jan 22 11:31:11 PST 2000

> I thought about the notion of that Congress might use the spending power
> rather than the 14th A to enforce disability rights. But what about remedies?
> Congress can say, obey the ADA or lose your funds. But there would be no
> private right of action. You could not sue for reinstatement or back pay
> under the spending power. No, the ADA has no textual ties to the spending
> power. Back in 1990, that didn't seem necessary.

So it may require new laws tying funding for states to their agreeing to waive sovereign immunity or forfeit those funds. Hell, states were forced to raise the drinking age to 21 across the country through threat of losing their highway funds, so states could be required to pass legislation waiving their state immunity (which any state can do) in line with the ADA or any other civil rights act on threat of losing various federal funds. So the feds could force states to create a private right of action through such means.

Between Lopez and Kimel and the other recent cases, most federal laws controlling state action may have to be linked to such threats of suspension of funding, but given the amount of fed-to-state transfers, this should not seriously crimp future federal power - unless Renhquist tries to revisit the line of cases that upheld those kinds of federal conditions as unconstitutional as well.

But you are likely right that ADA could go down on this basis. However, I have read other analyses that argue that age discrimination has a different status under the 14th amendment from disability. Since everyone potentially experiences old age, the elderly are not a "discrete and insular" minority in the parlance of the courts, so there is a lower level of scrutiny for legislation that makes distinctions in the treatment of the elderly versus the non-elderly. The disabled are more likely to be considered such a discrete minority where strict scrutiny is required and the 14th Amendment kicks in.

-- Nathan Newman

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