> -----Original Message-----
> From: owner-lbo-talk at lists.panix.com
> [mailto:owner-lbo-talk at lists.panix.com]On Behalf Of JKSCHW at aol.com
> But there's the unconstitutional conditions doctrine,w hich says
> you can't be forced to waivea constitutional right. Drinking ages don't
raise
> that issue. It hasn't been applied to the states, as far as I know, but
if I were a
> state's attorney facing those laws I'd try it.
Okay- and here's the response if Congress wants to keep the law in place (which is always an issue on the second round, but for sake of argument), Congress creates a right of private action to sue the federal government for illegal state discrimination, which in turn deducts whatever judgements are made from transfers to the state in question.
The point is almost by definition, you can get around constitutional issues if you have these fund transfers. The old "power to tax is the power to destroy" idea has a lot of truth there.
The real question as folks noted is the political will to use these tools, but that is a separate issue. On the other hand, if the Rehnquist-Scalia Court actually strikes down the ADA on state rights ground, there are a lot of independents and even moderate Republicans who will suddenly be thinking twice about electing a President Bush who has said that he most admires Scalia and Thomas (shudder) as his role models for Supreme Court Justices.
-- Nathan Newman