To understand why I have posted this page, please read the main page of this site The Hidden Issue of Disability Discrimination in Attorney Licensure first.
As the courts have often said, the government of the United States is a government of "limited powers." Congress may only do what some provision of the Constitution expressly grants it the authority to do. The United States Supreme Court has invalidated a fairly long list of Congressional attempts to create civil rights not enumerated in the Constitution, starting with the invalidation of the public accommodations provisions of the Civil Rights Act of 1875 (see the Civil Rights Cases, 109 U.S. 3 (1883)) and extending to the present (see, e.g., United States v. Morrison, 529 U.S. 598 (2000)). The Rehnquist Court was particularly vigilant to invalidate attempted civil rights legislation that appeared to them to extend beyond the historic scope of civil rights recognized by the courts, and the Roberts Court appears likely to follow in its predecessor’s footsteps. Thus, I suspect that one reason for the paucity of attorney licensure cases discussing the ADA may be a feeling among the state courts that license attorneys that Title II of ADA is itself invalid as attempting to create a "civil right" that Congress has no power to create. However, if this is a part of the explanation, the courts have acted on this feeling silently, without giving any rejected applicant the ability to test that felt holding before the U.S. Supreme Court.
With that said, in the original ADA, as enacted in 1990, Congress expressly stated its intention "to invoke the sweep of congressional authority, including the power to enforce the fourteenth amendment and to regulate commerce, in order to address the major areas of discrimination faced day-to-day by people with disabilities." 42 U.S.C. sec. 12101(b)(4). It supported its invocation of the commerce power with findings regarding the number of persons with disabilities and the economic impact of discrimination against these people, particularly in employment. 42 U.S.C. sec. 12101(a) (1991-2007). It supported its invocation of the Fourteenth Amendment enforcement power with the following findings:
(2) historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem; …
(5) individuals with disabilities continually encounter various forms of discrimination, including outright intentional exclusion, the discriminatory effects of … overprotective rules and policies, failure to make modifications to existing facilities and practices, exclusionary qualification standards and criteria, segregation, and relegation to lesser … opportunities; …
(7) individuals with disabilities are a discrete and insular minority who have been faced with restrictions and limitations, subjected to a history of purposeful unequal treatment, and relegated to a position of political powerlessness in our society, based on characteristics that are beyond the control of such individuals and resulting from stereotypic assumptions not truly indicative of the individual ability of such individuals to participate in, and contribute to, society;
42 U.S.C. § 12101(a) (1991-2007)
In the ADA Amendments Act of 2008, Public Law 110-325, 122 Stat. 3553 (September 25, 2008), Congress removed from the statute paragraph 7 of the findings, quoted above, and the reference to the number of disabled persons in the country, because it found that the Courts had inappropriately (and perversely) used these findings to limit the scope of protection under the ADA to only a few individuals, where Congress had intended the coverage to be broad. See P.L. 110-325, secs. 2(a) and 3. This was explained as follows by the Managers of the Senate bill that became the ADAAA:
First, the bill deletes two findings in the ADA which led the Supreme Court to unduly restrict the meaning and application of the definition of disability. These findings are that there are "some 43,000,000 Americans have one or more physical or mental disabilities" and that "individuals with disabilities are a discrete and insular minority." The Court treated these findings as limitations on how it construed other provisions of the ADA. This conclusion had the effect of interfering with previous judicial precedents holding that, like other civil rights statutes, the ADA must be construed broadly to effectuate its remedial purpose. Deleting these findings removes this barrier to construing and applying the definition of disability more generously…
Given the importance the Court has placed upon findings and purposes particularly in civil rights statutes like the ADA, the ADA Amendments Act contains a detailed Findings and Purposes section that the managers believe gives clear guidance to the courts and that they intend to be applied appropriately and consistently. As described above, the legislation deletes two findings in the ADA that have been interpreted by the Supreme Court to require a narrow definition of disability. We continue to believe that individuals with disabilities "have been faced with restrictions and limitations, subjected to a history of purposeful unequal treatment, and relegated to a position of political powerlessness in our society, based on characteristics that are beyond the control of such individuals and resulting from stereotypic assumptions not truly indicative of the individual ability of such individuals to participate in, and contribute to, society."’
154 Cong. Rec. S8840 & S8841 (Sep. 16, 2008) (Report of Managers of S. 3406).
Thus, Congress’ 1990 findings supporting its constitutional jurisdiction to enact the ADA under both the Commerce Clause and the Fourteenth Amendment survived the 2008 Amendment to the ADA. Therefore, I will present below arguments under both the Commerce Clause and the Fourteenth Amendment supporting Congress’ power to enact Title II of the ADA, regulating state activities, and the Justice Department’s power to implement Title II, inter alia, by promulgating 28 C.F.R. sec 35.130(b)(6), regulating state licensing and certification programs (including attorney licensure programs). In the discussion that follows, I will discuss only the issue whether Title II of the ADA (specifically 42 U.S.C. sec. 12132) and 28 C.F.R. sec. 35.130(b)(6) represent valid exercises of congressional power as applied to licensure programs generally and attorney licensure in particular. I will assume that 42 U.S.C. sec. 12134 (and the new 42 U.S.C. sec. 12205(a)) delegate sufficient legislative power to the Justice Department to render its regulation valid if the underlying statute is valid.
The validity of Title II of the ADA was in question until 2004. From the outset, it was not really obvious that the range of state and local government activities regulated under Title II is properly regulated as affecting interstate commerce, nor that it fit naturally within the scope of the Fourteenth Amendment, as recently interpreted by the courts. Title II's future became even more murky in 2001, when the Supreme Court decided Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356 (2001). In Garrett, the Court strictly held that Title I of the ADA, regulating employment, does not validly waive the Eleventh Amendment's prohibition upon suits for damages by citizens against state governments. But the grounds on which the Garrett court reached this decision—i.e., that Congress lacked power to make Title I applicable to state governments under the Fourteenth Amendment because it had not made factually supported findings showing that government units systematically discriminated against the disabled in employment—drew the applicability of both Titles I and II to state governments into doubt. However, in 2004, the Court resolved at least most of this doubt about Title II's validity in Tennessee v. Lane, 541 U.S. 509 (2004). In Lane, the Court held that Title II of the ADA was valid Fourteenth Amendment legislation, at least as applied to its requirements for physical accessibility of public buildings, and thus suits for damages are permitted under Title II in this context. In reaching this decision, the Lane court agreed with Congress about some findings that tend to show that Title II may also be valid Fourteenth Amendment legislation as applied to occupational licensing decisions, not just access to public buildings:
Title II, like Title I, seeks to enforce this prohibition on irrational disability discrimination. But it also seeks to enforce a variety of other basic constitutional guarantees, infringements of which are subject to more searching judicial review. See, e.g., Dunn v. Blumstein, 405 U. S. 330, 336.337 (1972); Shapiro v. Thompson, 394 U. S. 618, 634 (1969); Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535, 541 (1942)...
Whether Title II validly enforces these constitutional rights is a question that "must be judged with reference to the historical experience which it reflects". South Carolina v. Katzenbach, 383 U. S. 301, 308 (1966). See also Florida Prepaid, 527 U. S., at 639.640; Boerne, 521 U. S., at 530. While §5 authorizes Congress to enact reasonably prophylactic remedial legislation, the appropriateness of the remedy depends on the gravity of the harm it seeks to prevent. "Difficult and intractable problems often require powerful remedies" Kimel, 528 U. S., at 88, but it is also true that "[s]trong measures appropriate to address one harm may be an unwarranted response to another, lesser one," Boerne, 521 U. S., at 530.
It is not difficult to perceive the harm that Title II is designed to address. Congress enacted Title II against a backdrop of pervasive unequal treatment in the administration of state services and programs, including systematic deprivations of fundamental rights. For example, "[a]s of 1979, most States . . . categorically disqualified 'idiots' from voting, without regard to individual capacity. The majority of these laws remain on the books, and have been the subject of legal challenge as recently as 2001. Similarly, a number of States have prohibited and continue to prohibit persons with disabilities from engaging in activities such as marrying and serving as jurors. The historical experience that Title II reflects is also documented in this Court's cases, which have identified unconstitutional treatment of disabled persons by state agencies in a variety of settings, including unjustified commitment, e.g., Jackson v. Indiana, 406 U. S. 715 (1972); the abuse and neglect of persons committed to state mental health hospitals, Youngberg v. Romeo, 457 U. S. 307 (1982); and irrational discrimination in zoning decisions, Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432 (1985). The decisions of other courts, too, document a pattern of unequal treatment in the administration of a wide range of public services, programs, and activities, including the penal system, public education, and voting. Notably, these decisions also demonstrate a pattern of unconstitutional treatment in the administration of justice.
This pattern of disability discrimination persisted despite several federal and state legislative efforts to address it. In the deliberations that led up to the enactment of the ADA, Congress identified important shortcomings in existing laws that rendered them .inadequate to address the pervasive problems of discrimination that people with disabilities are facing.. S. Rep. No. 101.116, at 18. See also H. R. Rep. No. 101.485, pt. 2, at 47. It also uncovered further evidence of those shortcomings, in the form of hundreds of examples of unequal treatment of persons with disabilities by States and their political subdivisions. See Garrett, 531 U. S., at 379 (BREYER, J., dissenting). See also id., at 391 (App. C to opinion of BREYER, J., dissenting). As the Court's opinion in Garrett observed, the "overwhelming majority" of these examples concerned discrimination in the administration of public programs and services.
Tennessee v. Lane, 541 U.S. 509 (2004).
Even before Lane, I believe Title II in its application to occupational licenses could have been defended under either section 5 of the Fourteenth Amendment or Congress' Commerce Clause power, for the reasons explained below (which I present more or less as "backup" arguments).But Lane by itself pretty well proves my point.
The most obvious weakness of the Commerce Clause approach to Title II of the ADA is that many state and local government activities have traditionally been regarded as matters of purely local concern having no bearing on interstate commerce. Occupational licensure may be one of these activities. This is in contrast to state governments as employers, which have long been to be subject to Congressional regulation under Title VII of the Civil Rights Act of 1964, pure Commerce Clause legislation incorporating a presumption that any employer that employs more than 15 employees affects interstate commerce. States as employers have also been held subject to regulation under Title I of the ADA, which also incorporates a presumption of effect on commerce based on a numerosity threshold. However, there are reasonable arguments in favor of the coverage under Title II of many state activities, including licensing activities, as affecting interstate commerce.
In 1937, as a part of the famous "switch in time that saved nine" justices, the U.S. Supreme Court overruled a line of precedents that limited congressional power under the Commerce Clause and upheld one of the key components of the New Deal, the National Labor Relations Act. Ntional Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937). The NLRA regulated activities—local employment by private employers and the employer-union relationship—which had theretofore been thought to be of purely local concern. The NLRA asserted federal regulatory jurisdiction over this formerly local activity through the statutory presumption that the employment decisions of any employer engaged in interstate commerce, or larger than a certain specified size, must also affect interstate commerce. The Court upheld this assertion of congressional jurisdiction under a rational basis analysis. Since then, a long and fairly strong line of Supreme Court opinions has likewise applied a rational basis analysis to legislation enacted under the Commerce Clause, upholding such legislation if there is any reasonable basis for believing that the total effect of the regulated activity, aggregated across the entire economy, would have a significant effect upon interstate commerce. See, e.g., Wickard v. Filburn, 317 U.S. 111 (1942); Heart of Atlanta Motel, Inc. v. U.S., 379 U.S. 241, 252-253 (1964); Katzenbach v. McClung, 379 U.S. 294, 299-301 (1964); Hodel v. Surface Mining & Reclamation Assn., Inc., 452 U.S. 264, 276-280 (1981); Gonzales v. Raich, 545 U.S. 1 (2005).
Under this broad, rational basis analysis, it is clear that many activities of state government are subject to regulation by Congress under the Commerce Clause. Some state activities—for instance, the activities of state transportation or highway departments with regard to purely intrastate highways—would be subject to regulation simply because their sheer size and use of volumes of goods that move in commerce makes it almost certain that they have a significant effect on interstate commerce. Others, such as occupational and professional licensing activities, would be subject to regulation, under a pure rational basis analysis because they determine who is permitted to provide certain services in interstate commerce, an activity which, in the aggregate, certainly affects the flow of commerce.
However, some language used by the Court in two fairly recent cases , U>S. v. Lopez, 514 U.S. 549 (1995) and U.S. v. Morrison, 529 U.S. 598 (2000), has called into question the vitality of the pure rational basis analysis. Lopez invalidated the criminal provisions of the Gun Free School Zones Act, and can be read merely as holding that Congress failed to demonstrate any rational basis for believing that mere possession of a gun in a school building has any effect on interstate commerce. Likewise, Morrison, which invalidated the Violence Against Women Act, can be read as holding nothing more than that Congress had failed to demonstrate any rational basis for believing that mere local assault crimes can affect interstate commerce. However, in both cases, the justices in the majority criticized the pure rational basis approach, suggesting that something more than a mere rational basis was required. Therefore, stronger arguments may be needed to uphold the regulation of licensing and certification activities under Title II of the ADA.
This would be an extension of the first argument, to show that state occupational licensing and certification requirements, when taken in the aggregate, actually DO affect interstate commerce. Rational basis for this conclusion could be shown by merely observing that licensees in many licensed occupations can and frequently do work for clients, general contractors or employers in more than one state. This would be easiest to show for professions like architecture, engineering or accounting, or for licensed or certified occupations in the building trades. But if more than a rational basis is needed, there my be statistics available (though I haven’t looked for them yet), showing the economic impact of the interstate practice of these licensed professions and trades. Obviously, state decisions to exclude what could be a fairly large proportion of the population (see Congress’ findings in the original ADA) from one of these occupations or professions for an irrationally discriminatory reason like a disability would also, in the aggregate, significantly affect commerce if the economic impact of interstate practice is large enough.
This would be an extension of the first and second arguments to the practice of law, specifically. Rational basis for congressional power would be shown by making two observations: 1) Even in many apparently local matters, attorneys represent entities in interstate commerce in ways that affect the flow of commerce. This is clearest, perhaps, in fields like commercial law, intellectual property, civil rights, labor law, securities and the rapidly-growing product liability tort field, but is also true in traditionally local fields like real estate law (there were attorneys involved in some way nearly every deal that led to the collapse of the real estate market last year!). 2) Pro hac vice representation is fairly common, particularly in fields of commercial, intellectual, securities and tort law in which major national or international firms and entities are involved. Obviously, state licensure of attorneys directly determines who may participate in this commerce as an attorney.
Before Lane was decided, the most obvious weakness of section 5 of the Fourteenth Amendment as a source of congressional power supporting Title II of the ADA is that the Supreme Court has never recognized disability as a suspect or quasi-suspect class under the Fourteenth Amendment. Indeed, the Court has expressly refused to do so. City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985). The Court has also held that Congress has no power to create new rights under section 5, but only the power to enforce rights that are already there (as declared by the courts). City of Boerne v. Flores, 521 U.S. 507 (1997).
As already noted, the Lane decision found Title II to be valid Fourteenth Amendment legislation, not on the grounds that disability is a suspect classification, but on the grounds that Congress had found ample evidence of systematic irrational discrimination against persons with minorities in the provision of government programs and services as basic as voting, access to the courts and education—and in many other fields of state activity as well. Thus, Congress found, and the Court agreed, that much of the official discrimination against the disabled which was enshrined in state laws and regulations failed to meet even the most lenient, "rational basis," test under the Equal Protection clause. Thi finding gave Congress the power to enact even a remedy as broad as Title II of the ADA.
Even before Lane, a relatively weak Eual protection argument was available to me under the rationale explined by the Seventh Circuit in Miller v. Carter, 547 F.2d 1314 (7th Cir. 1977), aff'd per curiam sub nom. Carter v. Miller, 434 U.S. 356 (1978). The Miller court held, inter alia, that a licensing regime which absolutely disqualifies applicants for reasons which would not necessarily disqualify an existing license holder create an irrational classification contrary to the Equal Protection clause of the Fourteenth Amendment. This argment was available to me because Kansas disqualified me from the practice of law on the basis of a diagnosis of bipolar disorder, but did not invariably disbar license attorneys who developed symptoms of bipolarity after their admission to the Bar. This argument might also have supported application of Title II of ADA to licensing generally, as harsher treatment of applicants' disabilities than similar disabilities of licensees may be widespread (and, in fact, appears to be a concern similar to some of the concerns listed in the quotation from Lane, above).
Even before Lane, I also had a weak Fourteenth Amendment agument based on the "right of personal privacy in therapy for physical or psychological disorders" recognized by theKansas Supreme Court in State v. Hughes, 246 Kan. 607, Court's Syl. 2 and at 617-619, 792 P.2d 1023 (1990). The right recognized by the Kansas courts in Hughes is merely the positive aspect of the liberty interest in refusing treatment recognized by the U.S. Supreme Court in a line of cases including Vitek v. Jones, 445 U.S. 480, 494 (1980) and Washington v. Harper, 494 U.S. 210, 221-22 (1990) and explained in Cruzan v. Director, Missouri Department of Health, 497 U.S. 261, 278-79 (1990) and Washington v. Glucksberg, 521 U.S. 702, 720-721, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997). While the liberty interest in refusing compelled treatment, though clearly recognized, may under some circumstances need to be balanced against state interests in providing the treatment (as Glucksberg and Cruzan teach), no published case has ever seriously questioned a person's right to seek lawful, needed treatment from a properly licensed medical provider without being penalized for seeking or receiving it. Likewise, no opinion has ever seriously questioned a person's right to comply with his or her medical provider's lawful treatment advice without being penalized for not doing more or other than that provider prescribes or advises. The right to voluntarily receive needed treament without penalty would appear to be solidly within the rights nearly everyone traditionally expects to enjoy. Yet the continuing need for treatment, or the presumed dangers of that treatment, are often the excuses cited for paternalistic discrimination against persons with disabilities, as shown by some of the examples out of the Congressional committee reports discussed in the quotation from Tennessee v. Lane, above. I also note that Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535, 541 (1942), a case cited by the Lane court as illustrating one of the "variety of other basic constitutional guarantees" that Congress intended the ADA to enforce, involved the right not to be compelled to undergo a medical procedure (castration, in that case).
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