Topic: Congressional Power
Senator: DeWine
Date: SEPTEMBER 13, 2005
Contents
DEWINE: Judge, let me turn to the area of congressional power. It's been talked about before here. I want to talk about it a little bit more. Really, this has to do with federalism cases.
As you know, the court has handed down a number of cases that have restricted the power of Congress to pass important legislation. The court has struck down portions of the Violence Against Women Act, the Americans with Disabilities Act, the Age Discrimination Employment Act and the Religious Freedom Restoration Act, just to name a few.
In some of these cases, the court restricted Congress's power under the commence clause. In some, it relied on the 11th Amendment. And in some it cited Section 5 of the 14th Amendment.
The particular provision is not that important for this discussion.
DEWINE: Let me be perfectly frank: I think there's some problems with these decisions. I think it is wrong for judges to take on the role of policy-makers.
I realize that, if a statute was blatantly unconstitutional, the judge has to do their duties. But I think -- for the reason I'm going to discuss in a minute -- that was not true in these cases. I
want to cite one example -- just because of time I only can go through one -- and that is the Garrett case: 5-4 decision, Board of Trustees v. Garrett.
As you know, this case involved a woman who said that she had been discriminated against because she was disabled. She was employed by the state of Alabama. She sued the state under the Americans with Disabilities Act. The Supreme Court threw out the suit, holding that there was no evidence that the state discriminated against the disabled in employment decisions.
I think the problem with Garrett is that the court ignored findings by Congress. There were other cases that had been decided where we didn't have findings; you are familiar with those. I understand the court's decision. I might like them or not like them, but I understand them.
This case: We made findings. While we were considering the Americans with Disabilities Act, we held 13 hearings, and we set up a task force; a task force that held hearings in every state and was attended by more than 30,000 individuals.
Based on these hearings, we found 300 examples of disabled individuals being discriminated against in employment decisions. We found that two-thirds of all disabled Americans between the ages of 16 and 64 were not working at all, even though a large majority of them were capable of doing so.
And we found that this discrimination flowed from stereotypic assumptions about the disabled as well as, quote, "purposeful unequal treatment," end of quote.
All findings by this elected Congress of the United States.
Here, however, the court said this was not enough. It rejected our fact-finding, holding that we had not pointed to any evidence that the states discriminated in employment decisions against the disabled.
DEWINE: Judge, you have stressed repeatedly in your writings and your opinions -- and I have a great deal of respect for you and appreciate these writings and opinions -- but you stress the limited role that judges must play in our system of government.
I applaud you for that approach.
It's important for me to ensure that you still hold to this belief.
In your opinion, what role should a judge play when reviewing congressional fact-findings? In your view, how much deference do congressional fact-findings deserve?
I understand you're not going to talk about this case or any of the cases I just cited. I wanted to lay that kind of as a predicate. I wanted to tell you where I'm coming from.
But just talk in general about when you see fact-findings by Congress, when we have held hearings, when we have established the record, how do you approach it, what are the tools that you use, Judge, based on the precedents and based on what you think the role of the judge is?
ROBERTS: Well, again -- and of course, without getting into the particulars, the reason that congressional fact-finding and determination is important in these cases is because the courts recognize that they can't do that.
Courts can't have, as you said -- whatever it was -- the 13 separate hearings before passing particular legislation.
Courts -- the Supreme Court can't sit and hear witness after witness after witness in a particular area and develop that kind of a record.
Courts can't make the policy judgments about what type of legislation is necessary in light of the findings that are made.
So the findings play an important role.
And I think it's correct to say under the law, in this area and others, they're neither necessary nor necessarily sufficient, but I know as a judge that they're extremely helpful when there are findings.
And judges know when they look at those that they're the result of an exhaustive process, of a sort that the court cannot duplicate.
ROBERTS: We simply don't have the institutional expertise or the resources or the authority to engage in that type of a process. So that is sort of the basis for the deference to the fact-finding that is made. It's institutional competence. The courts don't have it, but Congress does. It's constitutional authority. It's not our job. It is your job.
So the deference to congressional finds in this area has a solid basis.
Now in the particular area you are talking about, under Section 5 of the Fourteenth Amendment, the Garrett case -- there are, of course, the more recent cases that you know of, the Tennessee against Lane and the Hibbs case, Nevada against Hibbs, where the court did defer to the fact-finding in those cases, and particularly in the Hibbs case focused on the legislative recognition based on its examination of the factual record developed at hearings about the statute that was at issue there and the particular approach that they were taking to remedy discrimination under the Fourteenth Amendment, which is the authority that Congress has.
Now the legal requirement that the court has articulated there came, of course, from the City of Boerne case -- the remedial approach has to be congruent and proportional.
Justice Scalia signed on to that approach in the City of Boerne case. In the Lane case, he said he'd changed his mind and he no longer agreed with that.
Any area of the law where Justice Scalia is changing his mind has got to be one that's particularly difficult, and one that I think is appropriately regarded as still evolving and emerging.
And so I don't know if the more recent cases in Lane and Hibbs represent a swinging of the pendulum away from cases like Garrett and Kimmel on the other side, or if it's simply part of the process of the court trying to come to rest with an approach in this area.
But it is an area that the court has found difficult. And just as a general matter, I think when you get to the point of reweighing congressional finding that starts to look more like a legislative function, and the courts need to be very careful as they get into that area to make sure that they're interpreting the law and not making it.
DEWINE: Well, Judge, I appreciate your answer. And I'm going to move on, but I would just say that, one of the more disturbing things to me about Garrett is that the dissent and majority opinion got into a dispute -- verbal dispute -- about what the facts were.
And, you know, their dispute about the facts, that seems to me that's not usually what the Supreme Court gets involved in. And it seems if there's a dispute in the facts, you would normally defer to the fact-finder, Congress.
Let me take off on Garrett and maybe talk about another way to get at this. Rather than focus on the problem caused by Garrett, maybe there's another way to solve some of the problems that would be raised by this. Congress still has the power to protect the disabled under the spending clause of the Constitution. We have the power of the purse.
In South Dakota v. Dole, we wanted to establish a national drinking age of 21. You're well aware of that. It was upheld by the court. We did it through the power of the purse in the Dole case. I just wonder if Congress might be able to use this approach to require the states to weigh their immunity from suit under statutes like the Americans with Disabilities Act.
It seems to me that under the spending clause, we have at our disposal the power to protect the disabled, to protect other groups and effectively overturn cases like Garrett and these other cases that limit legislative power. You seem to take that approach in a case entitled Barbour v. Washington Metropolitan Area Transit Authority.
That case concerned a disabled person who was suing a state entity under the Rehabilitation Act. In that case, you held that the suit could go forward even though the state entity was immune from suit under the Eleventh Amendment. In your view, the state entity had agreed to waive its immunity in exchange for receiving federal mass transit dollars.
DEWINE: I think this case is important. It's important to me, at least, Judge. It seems to show us what you think about Congress' power under the spending clause, and also it gives us a model, I think, for how we might be able to protect those who are discriminated against under the Americans with Disabilities Act.
So if you'll just take a moment -- I've got two minutes left. Will you take a moment and tell us about the issue in the Barbour case and what was your reasoning for permitting a disabled person to sue in federal court for discrimination in that case?
ROBERTS: Certainly.
DEWINE: It's your case. You were involved in the case. You were in the majority opinion.
ROBERTS: Yes. It was a divided decision.
DEWINE: Right.
ROBERTS: The argument was whether Congress had the authority under the spending clause, as a condition of the receipt of federal funds, that WMATA, the Metro here in D.C., receives, that they waive their sovereign immunity to suit under the disability provisions.
And the argument was that Congress lacked that authority, that they could not impose a waiver of sovereign immunity as a condition for the receipt of federal funds to allow an individual alleging discrimination on the basis of disability to sue.
There was no issue about whether there was sovereign immunity in the absence of a waiver, and the WMATA governing body was opposing the suit on the ground that it had not waived immunity. And they were arguing that Congress lacked the authority to condition the receipt of funds on a waiver of the immunity.
It was a divided decision. Two to one vote. The dissenter argued that this was an inappropriate exercise of the spending clause power.
The majority concluded that, no, this was within Congress' authority. It could condition the receipt of federal funds on a waiver of sovereign immunity that allowed an individual alleging he was discriminated against in employment because of his disability to proceed with the suit.
The arguments we rejected were arguments of germaneness. The idea was the funds were for transportation, not for employment. And so it wasn't a germane condition.
The majority rejected those arguments. The dissent would have ruled the other way.
DEWINE: Judge, thank you very much.
Thank you, Mr. Chairman.
ROBERTS: Thank you, Senator.
SPECTER: Thank you, Senator DeWine.
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