Amicus Curiae Brief — Pennsylvania Dept. of Corrections v. Yeskey

7,

MAR 3 1996

No. 97-634 CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1997

PENNSYLVANIA DEPARTMENT OF CORRECTIONS, et al.,

Petitioners,

vs.

RONALD R. YESKEY,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals for the Third Circuit

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF PETITIONERS

KENT S. SCHEIDEGGER*

CHRISTINE M. MURPHY

Criminal Justice Legal Fdn.

2131 L Street

Sacramento, CA 95816

Telephone: (916) 446-0345

Attorneys for Amicus Curiae

Criminal Justice Legal Foundation

* Attorney of Record

QUESTION PRESENTED

Does the Americans with Disabilities Act apply to inmates

in state prisons?

(i)

TABLE OF CONTENTS

I is conecabncuvesessnecteéncsacess i

IED nda cccdccodedccseuswesvncenwes iv

SROUOGE OT GUISNS COMERS 2. ccc cccccccccccccseccens l

Summary Of Ghote amd COS... wc ccc cece ccccccccs 2

I cccncéeccueceeceunsecssecudess 3

GEE vo SAS ccd cibecceceecccesneceadbccconceees 4

I

The constitutional issue may properly be considered in

answering the question presented ................... 4

A. Statutory interpretation and constitutionality .... 4

B. Constitutionality per se ........... 0. cece ees 5

II

The ADA is not a valid exercise of Congress’s Fourteenth

Amendment enforcement power ............6.0005: 7

Ill

Application of the ADA to state prisons would not be

within the commerce power .... 1... 666 eee ees 16

IV

Other than the Civil War Amendments, Congress has

no power to regulate the governmental operations of

GD ccc ececcccecceceeeeeseeseseeeecoeceseses 21

iV

TABLE OF AUTHORITIES

Cases

Atascadero State Hospital v. Scanlon, 473 U. S. 234,

87 L. Ed. 2d 17], 105 S. Ct. 3142 (1985) ........... 14

Board of Ed. of Hendrick Hudson Central School Dist. v.

Rowley, 458 U. S. 176, 73 L. Ed. 2d 690, 102 S. Ct. 3034

FPPeeerrrrerrer yy ere 8

Brown v. Allen, 344 U. S. 443, 97 L. Ed. 469, 73 S. Ct. 397

GUE 8 6k oe cnenddecdesedencthssweednnséves 12, 14

California Dept. of Corrections v. Morales, 514 U. S. 499,

131 L. Ed. 2d 588, 115 S. Ct. 1597 (1995) .......... 19

Caspari v. Bohlen, 510 U. S. 383, 127 L. Ed. 2d 236,

BOGE Gk Hee kn 6 cee cccavesescbensnsesvee: 6

City of Boerne v. Flores, 521 U.S. ___, 138 L. Ed. 2d 624,

ice o- 3 .. Pree 7, 9, 12, 13

Cleburne v. Cleburne Living Center, 473 U. S. 432,

87 L. Ed. 2d 313, 105 S. Ct. 3249 (1985) ..... 13, 14, 15

Coleman v. Thompson, 501 U. S. 722, 115 L. Ed. 2d 640,

BSS BG, FED oo bk eveccocscesecscsccessas 6

Coyle v. Smith, 221 U. S. 559, 55 L. Ed. 853, 31 S. Ct. 688

CRDEED - davondéeosweedceckeessusenseecensets 21, 22

Dellmuth v. Muth, 491 U. S. 223, 105 L. Ed. 2d 181,

SE G. Gk Bee Ce hc kbd ccevcesecussdcevcesss 14

Edward J. DeBartolo v. Florida Gulf Coast Bldg. &

Constr. Trades Council, 485 U. S. 568, 99 L. Ed. 2d 645,

108 S. Ct. 1392 (1988)... oc ccc cece eee ce ueeeeees 4

Elder v. Holloway, 510 U. S. 510, 127 L. Ed. 2d 344,

114. Ct. 1019 (1994) ... 20... cece cece ce eeecceee: 5

Employment Div., Dept. of Human Resources of Ore. v.

Smith, 494 U. S. 872, 108 L. Ed. 2d 876, 110 S. Ct. 1595

DiNiauchidey ddeneuasenhssecadbeunacsons ued 12

Ex parte Virginia, 100 U. S. 339, 25 L. Ed. 676 (1880) ... 9

Garcia v. San Antonio Metropolitan Transit Authority,

469 U. S. 528, 83 L. Ed. 2d 1016, 105 S. Ct. 1005

"TTS See RENEE Aa 21

Gregory v. Ashcroft, 501 U. S. 452, 115 L. Ed. 2d 410,

cc duccicdueende 22

Hayburn’s Case, 2 Dall. (2 U. S.) 408, 1 L. Ed. 436

CNR epee x

Heck v. Humphrey, 512 U. S. 477, 129 L. Ed. 2d 383,

114 S. Ct. 2364 (1994) 0... cece cece c ccc eeee. 7

Houston, E. & W. Texas Ry. Co. v. United States,

234 U. S. 342, 58 L. Ed. 1341, 34S. Ct. 833 (1914) ... 20

Katzenbach v. McClung, 379 U. S. 294, 13 L. Ed. 2d 290,

ne a 16, 18, 22

Katzenbach v. Morgan, 384 U. S. 641, 16 L. Ed. 2d 828,

Ge, BIN onc diccccdcccassccnvccces 9

Lane County v. Oregon, 7 Wall. (74 U. S.) 71, 19 L. Ed. 101

ee ree en coe Be oe 22

Liparota v. United States, 471 U. S. 419, 85 L. Ed. 2d 434,

105 S. Ct. 2084 (1985) 2... oe cee cece cecccueee 9

Marbury v. Madison, 1 Cranch (5 U. S.) 137, 2 L. Ed. 60

a ssathuncts 5

Marks v. United States, 430 U. S. 188, 51 L. Ed. 2d 260,

97 S. Ct. 990 (1977) oo. cee cee cc cecceueccuuces 10

Mitchell v. Forsyth, 472 U. S. 511, 86 L. Ed. 2d 411,

ee ee ED op pecseevcescssasUuaceasécsés 6

vi

National League of Cities v. Usery, 426 U. S. 833,

49 L. Ed. 2d 245, 96 S. Ct. 2465 (1976) ............ 21

New York v. United States, 505 U. S. 144, 120 L. Ed. 2d 120,

SES GS. Ga Be 0 oe sbecsceccsvccesecess 21-23

Oregon v. Mitchell, 400 U. S. 112, 27 L. Ed. 2d 272,

OS BD Ga Bee hc bee dicecccccnctccesecess 10, 11

Plyler v. Doe, 457 U. S. 202, 72 L. Ed. 2d 786,

SEG Ge, BEE hk n oe ce cdcdcecdateccecsces 15

Preiser v. Rodriguez, 411 U.S. 475, 36 L. Ed. 2d 439,

SOE Ch Tr ee bs orice ccccccodccenndadcca 2,19

Printz v. United States, 521 U.S.__, 138 L. Ed. 2d 914,

SEF Ge I on ccccccdsccéccunsac 21, 23, 24

Saint Francis College v. Al-Khazraji, 481 U. S. 604,

95 L. Ed. 2d 582, 107 S. Ct. 2022 (1987) ............ 9

Sandin v. Conner, 515 U. S. 472, 132 L. Ed. 2d 418,

SE GR, BE ccd ncassccaccudbsecsencose 19

Sherbert v. Verner, 374 U. S. 398, 10 L. Ed. 2d 965,

BP Ge, SHED 6 o's cece ccenecndvcccssocass 12

Smith v. Robinson, 468 U. S. 992, 82 L. Ed. 2d 746,

SOS GE, Gh FE Cee ceecceccccesccccssccsccees 14

South Carolina v. Katzenbach, 383 U. S. 301,

15 L. Ed. 2d 769, 86 S. Ct. 803 (1966) ............. 22

South Dakota v. Dole, 483 U. S. 203, 97 L. Ed. 2d 171,

SF BR Gk Fee ee vc cv ctecncascncdtcccovcees: 8

Strauder v. West Virginia, 100 U. S. 303, 25 L. Ed. 664

SREEED < cccevenecccccccccestenceceeccoecssceses 9

Taylor v. Freeland & Kronz, 503 U. S. 638,

118 L. Ed. 2d 280, 112 S. Ct. 1644 (1992) ........... 6

Vii

Texas v. White, 7 Wall. (74 U. S.) 700, 19 L. Ed. 227

PE SS bandndecdeeeentectsdebesoodsoeusedees< 7

United States v. Darby, 312 U. S. 100, 85 L. Ed. 609,

Se ED 5. oneenetsusdbiewosdcdeseses- 16

United States v. Lopez, 514 U. S. 549, 131 L. Ed. 2d 626,

Fee ah ED os dberececeteovecercsues 16-20

University of Texas v. Camenisch, 451 U. S. 390,

68 L. Ed. 2d 175, 101 S. Ct. 1830 (1981) ..... 13, 14, 24

Wickard v. Filburn, 317 U. S. 111, 87 L. Ed. 122,

SP EE oh bededebesdnnbevaetecesewens 18

Yeskey v. Pennsylvania Dept. of Corrections, 118 F. 3d 168

Pee POPU ein scbacdsenntsduaneeduecedeciccas 2,3

Rule of Court

Supreme Court Rule 14.1(a) ............000 0000 cc ueee 5

United States Constitution

U. S$. Const., Art. 1, $8, cl.3 ............. acwee were 16

vs CA ME EO BD cancccccccasccevcseens 15

United States Statutes

SPERMINE 4 6 SG5cKdb6aneobnnevdesosesesenies 9

DE Mi dbabeHavacncdedsesecessceunns 18

Pe Oi Gr POURED pocccvesevevcesessvcsees 14

Sy ED cacvtccdsenctncatdovsncudesous 14

ie scp averesccussecevesccese’ 15

Se ee ED cn tvccccncccencsedvacesnss 18

Viii

TGS, Ci Se 6 bn heck ce vesdivedinss seens 8

Te Oe Oe es EEE 6 06 baled oe ccccccsccewsensent 20

Te es a OE ba ccnvecndéccenéesageaescecaeus 13

i ie ee ED On Kn. 0ee6n60cse ee casedsicreas 21

Se Oe Ge EEE cn vcescscedecedncsdensalieas 15

Ge Gs Oe UE ‘pb edcecciccteneshsnseastaas 15, 21

SE Ws ih Ge Fe CO TPEEED oS cK cccvrcensovcccsintee 20

Gs Oh ee UE. 649 best cedencessedesevdadennes 20

Prison Litigation Reform Act of 1996, Pub. L. No. 104-134,

§§ 801-810, 110 Stat. 1321-1366 .............0045. 19

Pub. L. No. 101-476, 104 Stat. 1103 (1990) ........... 14

Pub. L. No. 99-506, 100 Stat. 1807 (1986) ............ 14

State Statutes

61 Pa. Stat. Ann. § 1123 (Purdon Supp. 1997) .......... 2

61 Pa. Stat. Ann. § 1126(d) (Purdon Supp. 1997) ........ 2

~ Treatises

3 R. Rotunda & J. Nowak, Treatise on Constitutional Law

Se CUE c ke bvonnsndedachanceinecnencsss ont 10

L. Rothstein, Disabilities and the Law (1997) .......... 13

Miscellaneous

SE EN ivcccocwsadeevessdeedeessncwssbas 13

The Federalist No. 22 (C. Rossiter ed. 1961)

PPP Te TT ToT Ur rr rrT TT? 7

Mackenzie, et al., Boot Camp Prisons and Recidivism in

Eight States, 33 Criminology 327 (1995)............ 20

Mathlas & Mathews, The Boot Camp Program for Offenders:

Does the Shoe Fit? 35 Int’! J. of Offender Therapy &

Comp. Criminology 322 (1991) ................45. 20

IN THE

Supreme Court of the United States

OCTOBER TERM, 1997

PENNSYLVANIA DEPARTMENT OF CORRECTIONS, et al.,

Petitioners,

vs.

RONALD R. YESKEY,

Respondent.

33.°0—0OS—S=SaoOoO“OoOoOoOmWOOmnmwOao

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF THE PETITIONERS

e68ueG—aeo_—SoaoO0O0OwWwOWWwowOoOOOOOOOOeeeeeeee——————————————

INTEREST OF AMICUS CURIAE

The Criminal Justice Legal Foundation (CJLF)' is a non-

profit California corporation organized to participate in litiga-

tion relating to the criminal justice system as it affects the

public interest. CJLF seeks to bring the due process protection

of the accused into balance with the rights of the victim and of

society to rapid, efficient and reliable determination of guilt and

swift execution of punishment.

In the 1960s and early 1970s, lax punishment policies were

followed by a sharp increase in crime rates. In the 1980s and

1990s, larger sentences were followed by a sharp drop in crime.

1. Rule 37.6 Statement: This brief was written entirely by counsel for amicus, as

listed on the cover, and not by counsel for any party. No outside contributions

were made to the preparation or submission of this brief.

Both parties have given written consent to the filing of this brief.

om

OE _—_—_ ee Se

This greater protection of law-abiding people from violent

criminals comes at a cost, however. As the prison population

rises, the cost brings calls to repeat the mistakes the of the past

and once again let criminals off with short sentences. This

problem is aggravated by requirements that unnecessarily drive

p the cost of running prisons.

Application of the Americans with Disabilities Act to state

prisons would drive up the cost with its vague requirements and

extensive litigation. By increasing the financial pressure to turn

criminals loose, it would be contrary to the interests of law-

abiding people and victims of crime which CJLF was formed to

protect.

SUMMARY OF FACTS AND CASE

Ronald Yeskey, a Pennsylvania prison inmate, was denied

admission to a motivational boot camp program run by the

state’s Department of Corrections. Yeskey v. Pennsylvania

Dept. of Corrections, 118 F. 3d 168, 169 (CA3 1997). The boot

camp requires rigorous physical activity from its participants.

Id., at 169, n. 1; see also 61 Pa. Stat. Ann. §§ 1123, 1126(d)

(Purdon Supp. 1997). Yeskey, who has a history of hyperten-

sion, was found to be medically ineligible for the program by

the Department of Corrections. See Pet. for Cert. 3.

Yeskey filed suit, claiming that by refusing to place him in

the program, the Department of Corrections violated the

Americans with Disabilities Act (“ADA”). He sought “dam-

ages and declaratory and injunctive relief, including an injunc-

tion requiring the defendant to release plaintiff from confine-

ment on the date he would have been released if he had been

allowed into the boot camp program.” App. to Pet. for Cert.

15a.” The District Court dismissed the complaint, finding the

——-

tv

Apparently, neither the District Court nor the Court of Appeals noticed that it

lacked subject matter jurisdiction to order early release. Habeas corpus is the

exclusive remedy. See Preiser v. Rodriguez, 411 U. S. 475, 500 (1973).

ADA inapplicable to state prisons. /d., at 18a-19a. The Court

of Appeals reversed. Yeskey, 118 F. 3d, at 170-172: Pet. for

Cert. 3. The Commonwealth of Pennsylvania petitioned this

Court for a writ of certiorari. Pet. for Cert. 13. The petition

was granted on January 23, 1998.

SUMMARY OF ARGUMENT

The constitutional question of whether the ADA could

validly apply to state prisons is properly before this Court. The

question is whether the Act does apply, not merely whether it

was intended to apply. In addition, a constitutionally doubtful

construction should not be adopted if that can be avoided.

Application of the ADA to state prisons would not be a

valid exercise of Congress’s enforcement power under the

Fourteenth Amendment. Such application would prohibit large

amounts of constitutional state action, far out of proportion to

any actual equal protection violations. Under City of Boerne v.

Flores and Oregon v. Mitchell, such laws are not within the

enforcement power.

Application of the ADA to state prisons is not within the

commerce power. Prisons are not commercial activities.

Applying the ADA to them would not enhance or protect any

interstate market to any appreciable degree. The arguments that

might be made for such application are precisely those rejected

in United States v. Lopez.

Outside of enforcing the Civil War Amendments, Congress

has no authority to regulate the states as states. Cases allowing

laws of general applicability to apply to states are inapposite

here, even assuming they have survived more recent cases. The

section in question attempts to commandeer state resources to

carry out Congressional policy directives. Application of this

section to a core government function such as prisons would

violate the doctrine of New York v. United States and Printz v.

United States.

ARGUMENT

I. The constitutional issue may properly be considered in

answering the question presented.

The question-presented in the present case is “Does the

Americans with Disabilities Act apply to inmates in state

prisons?” Pet. for Cert. i. Respondent contends that “the

question of the constitutionality of applying the ADA to state

prisons is not properly before this Court” and urges a restriction

of the question to statutory interpretation. Brief in Opposition

19.

There are two reasons why the question should not be so

restricted. First, the constitutional issue is not cleanly severable

from the interpretation issue. Second, a decision that Congress

intended the ADA to apply, without deciding whether it

constitutionally could, would fail to resolve the ultimate issue.

A. Statutory Interpretation and Constitutionality.

Many times over many years, this Court has stated a basic

rule of interpretation of statutes. If the statute has two plausible

interpretations, one clearly constitutional and the other doubtful,

the clearly constitutional interpretation should be adopted. See,

e.g., Edward J. DeBartolo v. Florida Gulf Coast Bldg. &

Constr. Trades Council, 485 U. S. 568, 575 (1988). To apply

this rule, the constitutional issue must be considered before the

statutory interpretation question is definitively answered. That

is, the question of whether respondent’s interpretation of the

statute (i.e., the ADA applies to state prisoners) would be

constitutional must be investigated before that interpretation can

be accepted as correct. If the Court were to ignore constitu-

tional considerations while settling on this interpretation, it

would then be faced in the next case with a constitutional

question that might have been avoided by choosing petitioners’

interpretation.

Respondent states that petitioners did not raise the constitu-

tional issue in the Court of Appeals, and hence that it was not

decided there. Brief in Opposition 18. Petitioners’ argument,

though, is new authority for a consistent position and not a new

position. That is, petitioners contend that the ADA does not

apply to state prisons; and the argument that the contrary

construction would be unconstitutional, and hence should be

avoided, is a new argument, supported by new authority, for

that consistent position. The interpretation of the statute is a

question of law to be “resolved de novo on appeal.” Elder v.

Holloway, 510 U. S. 510, 516 (1994). A court resolving a

question of law “should therefore use its ‘full knowledge of its

own [and other relevant] precedents.’ ” /bid. (quoting Davis v.

Scherer, 468 U.S. 183, 192, n. 9 (1984)).

The argument that respondent’s interpretation of the statute

would be unconstitutional can, and indeed must, be considered

as an essential part of the interpretation process.

B. Constitutionality Per Se.

If the Court adopts respondent’s interpretation of the statute

despite its doubtful constitutionality, the question would then

arise whether the Court should definitively resolve whether the

statute, as so construed, was within the power of Congress to

enact. In that event, there are two potential arguments against

the Court addressing the question, both of which are weak, and

one strong argument for resolving it.

One potential argument would be that the constitutionality

of the ADA as applied to state prisons is not “fairly included”

in the question presented. See Supreme Court Rule 14.1(a).

Although amicus CJLF does not understand respondent’s Brief

in Opposition to make such an argument, a few words about

why the issue is “fairly included” are in order.

The question of whether an Act of Congress applies toa

particular situation necessarily includes both the interpretation

question of whether it was intended to apply and the constitu-

tional question of whether it could apply. See, e. g., Marbury v.

Madison, | Cranch 137, 173 (1803).

The fair inclusion of the question is much more clear in this

case than it was in Caspari v. Bohlen, 510 U. S. 383 (1994). In

that case, the stated question was “ ‘[w]hether the Double

Jeopardy Clause . . . should apply to successive non-capital

sentence enhancement proceedings.’ ” /d., at 389 (quoting

certiorari petition). The question actually decided by Bohlen

was that an affirmative answer would be a new rule which could

not be created on habeas corpus. /d., at 396-397. The latter

question was not “subsidiary” on the face of the question

presented; the “threshold” nature of the Teagve inquiry was

based on the law of habeas corpus, which was not mentioned in

the question.

In the present case, by contrast, the constitutional issue is

presented on the face of the question. The question is not

whether Congress intended the ADA to apply to state prisons

but whether it does apply. It does not apply if its application

would be unconstitutional. Indeed, respondent's attempted

modification of the question, see Brief in Opposition i, 19,

effectively acknowledges this.

Respondent argues that the issue of constitutionality was not

raised in or decided by the Court of Appeals. /d., at 18. Unlike

the consideration of constitutionality in the interpretation

process, see supra, at 4-5, this point has some weight as applied

to constitutionality per se. As a general rule, questions not

considered below are not considered in this Court. Taylor v.

Freeland & Kronz, 503 U. S. 638, 646 (1992).

General rules, though, have exceptions, as does this one. A

“purely legal question” may be “ ‘appropriate for [this Court's]

immediate resolution’ notwithstanding that it was not addressed

by the Court of Appeals.” Mitchell v. Forsyth, 472 U.S. 511,

530 (1985) (quoting Nixon v. Fitzgerald, 457 U.S. 731, 743, n.

23 (1982)). The constitutional question here involves no

findings of fact and is appropriate for immediate resolution.

Courts generally exist to resolve concrete disputes and not

to opine on abstract questions. See Coleman v. Thompson, 501

U. S. 722, 729 (1991) (no advisory opinions). This Court, in

particular, exists to settle finally questions of national impor-

tance. Sec The Federalist No. 22, p. 150 (C. Rossiter ed. 1961)

(A. Hamilton). If this Court were to decide that the ADA was

intended to apply to state prisons, yet disclaim any opinion on

whether it validly may apply, what would that settle? Arguably,

it could settle Mr. Yeskey’s individual claim on a theory of

procedural default of the constitutional question. For that

reason, amicus does not contend that there is an Article III

imperative to resolve the constitutional question. But this Court

does not grant certiorari to settle individual claims on case-

specific points. See, e.g., Heck v. Humphrey, 512 U. S. 477,

480, n. 2 (1994) (noting Court did not take the case to review a

fact-bound issue).

- he great question which prison administrators and state

budget planners wait to have answered is whether they are

bound by law to comply with the ADA. The possible complete

answers are: (1) no, because the ADA, properly construed, does

not apply to state prisons; (2) no, because the ADA, as so

applied, is unconstitutional; or (3) yes, because the ADA is both

applicable and constitutional. Any less complete answer will

leave the prison administrators in legal limbo.

Il. The ADA is not a valid exercise of Congress’s Four-

teenth Amendment enforcement power.

Section 5 of the Fourteenth Amendment confers upon

Congress the power to enforce the Amendment by appropriate

legislation. That section did not authorize the destruction of the

federal system and its replacement by a unitary government,

with the state as mere departments. See City of Boerne v.

Flores, 521 U.S. ___, 138 L. Ed. 2d 624, 639-641, 117S. Ct.

2157, 2164-2166 (1997). When the ink was barely dry on the

Amendment’s ratification, this Court declared, “The Constitu-

tion, in all its provisions, looks to an indestructible Union,

composed of indestructible States.” Texas v. White, 7 Wall.

700, 725 (1869), overruled on other grounds, Morgan v. United

States, 113 U.S. 479, 496 (1885). Section 5 of the Fourteenth

Amendment did not change that.

Everyone can agree that the accommodation of disabled

persons and their access to government programs is a desirable

goal. The worthiness of the goal, however, does not justify the

means. Indeed, the first statute ever declared unconstitutional

by federal judges was a highly commendable act for the relief

of disabled veterans of the American Revolution and the

widows and orphans of those who had fallen. Understandably,

the judges were somewhat embarrassed in announcing their

decision that Congress had violated the separation of powers in

its choice of means to implement this salutary law, but an-

nounce it they did. Hayburn’s Case, 2 Dall. 409, 410, n.

(1792).

So it is in this case. If Congress had really intended to give

disabled prisoners full access to all prison “programs,” as

respondent contends, it could unquestionably have done so

under the spending power by providing the necessary funds and

conditioning receipt on compliance with certain standards. See

South Dakota vy. Dole, 483 U. S. 203, 212 (1987) (constitution-

ality of such statutes); Board of Ed. of Hendrick Hudson

Central School Dist. v. Rowley, 458 U. S. 176, 179 (1982)

(describing Education of the Handicapped Act). Instead, the

ADA invokes the Fourteenth Amendment and the commerce

power. 42 U. S. C. §12101(b)(4). Neither of these powers

supports the application of the ADA to state prisons.’ Amicus

will address the Fourteenth Amendment in this part and the

commerce power in the next part.

The most straightforward, and least controversial, use of the

Fourteenth Amendment enforcement power is to provide

remedies to give practical effect to the substantive guarantees.

3. The lack of constitutional support, combined with the conspicuous absence of

prisons and prisoners from the comprehensive lists in subdivision (a) of the

same section, ts further evidence Congress did not intend for the ADA to apply

to state prisoners

For example, the Fourteenth Amendment, by its own force,

forbids racial discrimination in selecting juries, see Strauder v.

West Virginia, 100 U. S. 303, 308 (1880), but only Congress

can make such discrimination a crime and punish it. See 18

U. S. C. §243; Ex parte Virginia, 100 U. S. 339, 345-346

(1880); cf. Liparota v. United States, 471 U.S. 419, 424 (1985)

(no federal common law crimes). The difficult question arises

when Congress purports to prohibit a state government practice

which does not violate the Fourteenth Amendment.

Katzenbach v. Morgan, 384 U. S. 641 (1966) was once

thought to stand for the proposition that Congress could expand

the protections of the Fourteenth Amendment beyond the

substantive reach of the Amendment itself. That case involved

a Statute in which Congress had provided that persons educated

in “American-flag schools” in languages other than English

could vote, notwithstanding state English-literacy requirements.

Id., at 643.

The Court upheld the statute, thereby permitting Puerto

Ricans to register to vote in New York, even if they could not

read English. This result was reached without overruling a

precedent that had upheld literary tests as a general matter. /d.,

at 649. On its facts, this seems an unobjectionable result. The

act involved the right to vote on a ground related to ethnicity.

While literacy tests may be generally valid, the judgment of

Congress that in this limited situation those laws operated in

practice to disenfranchise an ethnic group in violation of the

Fifteenth Amendment‘ was not necessarily inconsistent with

that general rule.

The Morgan majority, however, used sweeping language

“which could be interpreted as acknowledging a power in

Congress to enact legislation that expands the rights contained

in § 1 of the Fourteenth Amendment.” City of Boerne, supra,

4. Puerto Ricans are, of course, not a “race” as that term is used today. In the

Reconstruction era, though, the word “race” was used to mean smaller groups

See Saint Francis College v. Al-Khazraji, 481 U. S. 604, 610-611 (1987).

10

138 L. Ed. 2d, at 643-644, 117 S. Ct., at 2168. Subsequent

cases have not followed that interpretation of Morgan.’

Oregon v. Mitchell, 400 U. S. 112 (1970) sounded the

retreat. The Court was badly splintered, and only Justice Black

concurred in all four of the Court’s separate holdings. The issue

most pertinent to the present question was Congress’s attempt

to lower the voting age to 18 in state elections, as well as

federal, thus invading the traditional power of the state to

regulate its own elections.

Justice Black interpreted the Fourteenth Amendment as

giving Congress authority to regulate in this area only to prevent

racial discrimination. /d., at 130. Justice Harlan expressly

rejected the “notion of deference to congressional interpretation

of the Constitution, which the Court promulgated in

Morgan ....” Id., at 209 (opinion concurring in part and

dissenting in part). The provision’s “validity therefore must rest

on congressional power to lower the voting age as a means of

preventing invidious discrimination that is within the purview

of [the Equal Protection] clause.” Id., at 212 (emphasis added).

Justice Stewart, joined by Chief Justice Burger and Justice

Blackmun, took a narrower view of Morgan. They understood

that it had merely upheld Congress’s determination that there

had been actual discrimination against Puerto Ricans in New

York, an Equal Protection violation by any standard, and that

the extension of the vote was the remedy for this violation. /d.,

at 295-296 (opinion concurring in part and dissenting in part).

Viewed through the retrospective lens of Marks v. United

States, 430 U.S. 188, 193 (1977), the opinion concurring on the

“narrowest grounds” is probably Justice Stewart's. Congress

has the power “to provide the means of eradicating situations

5. “The broad language in Morgan, purporting to give Congress power to define

equal protection, was unnecessary to the decision of the case. The Court's

language appears to be an alternative holding rather than dictum, but

subsequent decisions show that the Court has retreated from the more

farreaching implications of Morgan.” 3 R. Rotunda & J. Nowak, Treatise on

Constitutional Law § 19.3, p. $29 (2d ed. 1992).

that amount to a violation of the Equal Protection Clause . . . .”

Mitchell, 400 U. S., at 296. It does not have the power “to

determine as a matter of substantive constitutional law what

situations fall within the ambit of the clause ....” /bid. To the

extent Morgan may have been contrary, it did not survive

Mitchell.

The other relevant holding of Mitchell involved Congress’ s

temporary suspension of all literacy tests for voting nationwide.

Given the sorry history of the racially discriminatory use of

these tests to violate the very core of the Fifteenth Amendment,

the Court had little trouble in agreeing unanimously that this

was a proper exercise of Congress’s enforcement power under

that amendment. /d., at 118, 132 (opinion of Black, J.). This

included the Morgan dissenters. /d., at 216 (opinion of Harlan,

J.);, id., at 282-283 (Stewart, J., concurring in the judgment).

Taken together, these opinions indicate that before the

enforcement power of Congress can apply there must first be a

violation of the substantive requirements of the Fourteenth or

Fifteenth Amendments. Where there are substantial violations,

a remedy that sweeps in some nonviolations may be necessary.

The problem of literacy tests provides a good example.

Litigating each application of the tests to determine if it is

discriminatory would be impractical, leaving the choice

between tolerating large-scale violations of the Fifteenth

Amendment or sweeping out some good-faith, nondiscrimina-

tory uses of the tests along with the bad-faith uses.

The voting age question provides a clear counterexample.

The 21-year-old voting age did not serve as an instrument for

evading the Constitution. These clearly constitutional, if

possibly unwise, statutes did not produce de facto constitutional

violations on a large scale by burdening people deprived of their

rights with case-by-case litigation. If these laws produced any

constitutional violations at all, which is doubtful, the “remedy”

included within its sweep vastly more constitutional applica-

tions than unconstitutional applications.

12

Twenty-seven years later, the question that fractured the

Court in Mitchell produced not a single dissent in City of

Boerne v. Flores, 521 U.S. ___, 138 L. Ed. 2d 624, 1175. Ct.

2157 (1997). The question was whether Congress had the

authority to forbid actions of state and local government that

were constitutional under the Free Exercise Clause as construed

in Employment Div., Dept. of Human Resources of Ore. v.

Smith, 494 U. S. 872 (1990), but which would have violated the

rule of Sherbert v. Verner, 374 U. S. 398 (1963), abandoned in

Smith.° The only dissents were on the ground that Smith should

be reconsidered. City of Boerne, 138 L. Ed. 2d, at 654, 117

S. Ct., at 2176 (O’Connor, J., dissenting); id., at 667, 117 S. Ct.,

at 2186 (Souter, J., dissenting); id., at 668, 117 S. Ct., at 2186

(Breyer, J., dissenting). Justice O’Connor largely agreed with

the majority on the Congressional power question, id., at 655,

117 S. Ct., at 2176, and Justice Breyer agreed in part. /d., at

668, 117 S. Ct., at 2186. Justice Souter took no position on the

point. /d., at 667-668, 117 S. Ct., at 2185-2186.

City of Boerne confirmed, in a coherent majority opinion,

the same conclusion that must be extracted from the splintered

opinions in Oregon v. Mitchell. The power of Congress is

remedial, not substantive. /d., at 643, 117 S. Ct., at 2167.

“While preventive rules are sometimes appropriate remedial

measures, there must be a congruence between the means used

and the ends to be achieved.” J/d., at 645, 117 S. Ct., at 2169.

Congress cannot throw out a whole nursery full of babies to

dispose of a few ounces of bath water.

Assuming Smith to be correct, as we must unless and until!

this Court overrules it,’ the act in question was “so out of

proportion to a supposed remedial or preventive object that it

6. Congress's Fourteenth Amendment enforcement power is involved because the

Free Exercise Clause is deemed to be incorporated in the Due Process Clause.

See City of Boerne, 138 L. Ed. 2d, at 637, 117 S. Ct., at 2163.

7. See Brown v. Allen, 344 U. S. 443, 540 (1953) (Jackson, J. concurring in the

judgment)

ae

13

cannot be understood as responsive to, or designed to prevent,

unconstitutional behavior.” /d., at 646, 117 S. Ct., at 2170.

“Sweeping coverage ensures its intrusion at every level of

government, displacing laws and prohibiting official actions of

almost every description and regardless of subject matter.”

Ibid.

These words could just as easily have been written about the

Americans with Disabilities Act, if it is construed as broadly as

respondent and the Court of Appeals construe it. Every agency

at every level of government must reexamine every program

and decide whether to make modifications and provide the

necessary “auxiliary aids and services” to accommodate a wide

variety of disabilities. See 42 U. S. C. § 12131. If they cannot

afford to do so, then they must terminate the program. In the

case of prisons, where programs to benefit prisoners are under

heavy assault already,* termination may very often be the

choice.

Cleburne v. Cleburne Living Center, 473 U. S. 432 (1985)

established that mental retardation is not a “quasi-suspect

classification” for the purpose of equal protection analysis. /d.,

at 446. The test for differential treatment is therefore whether

the distinction is “rationally related to a legitimate government

purpose.” /bid. For the reasons stated in Cleburne, the same

rule should apply to the disabled generally.’

First, unlike race, disability is often relevant. Cf. id., at 442-

443. The most common reason for a refusal to make an

accommodation is simply an unwillingness to spend the extra

money required. See, e.g., University of Texas v. Camenisch,

8. For example, H. R. 667 § 401, passed by the House in the 104th Congress,

would have removed all strength-training activities from federal prisons. It is

not difficult to see how a lawsuit demanding accommodation in such a program.

and the attendant expense, would be the last straw.

9. The author of a treatise on the subject, who generally takes an expansive view

of rights of the disabled, concurs with this assessment. See L. Rothstein,

Disabilities and the Law § 1.02, pp. 9-10 (1997).

14

451 U. S. 390, 392 (1981); id., at 398-399 (Burger, C.J.,

concurring) (issue was not whether Camenisch could attend, but

merely who would pay the additional expense). Expense would

only be irrelevant in a program with unlimited resources. In the

real world, expense is always relevant.

Second, the steady stream of legislation to benefit the

disabled negates any notion that the disabled are the kind of

politically powerless minority in special need of judicial

protection from legislative animosity. Cf. Cleburne, 473 U. S.,

at 443-445.'° Indeed, the disabled seem to have a unique

capacity to get Congress to act swiftly in reaction to any adverse

decision from this Court. Smith v. Robinson, 468 U. S. 992,

1021 (1984), which denied attorney’s fees under the Education

of the Handicapped Act (EHA), was abrogated only two years

later. See 20 U.S. C. § 1415(e)(4)(B). Dellmuth v. Muth, 491

U. §. 223, 232 (1989) held, as a matter of statutory construction,

that Congress had not intended to abrogate Eleventh Amend-

ment immunity in the EHA. Congress abrogated the specific

holding of De//muth the next year. Pub. L. No. 101-476, 104

Stat. 1103, 1106 (1990).'' Atascadero State Hospital v.

Scanlon, 473 U.S. 234 (1985) met the same fate on the same

point regarding the Rehabilitation Act. Pub. L. No. 99-506, 100

Stat. 1807 (1986)."”

Other groups can only look at this astonishing record of

legislative triumph with envy. It took victims of crime 43 years

to correct the misinterpretation of the federal habeas corpus

statute. Compare Brown v. Allen, 344 U. S. 443, 499 (1953)

(Frankfurter, J., concurring) with 28 U. S. C. §2254(d).

10. This point combines the Cleburne Court's second and third points.

11. Whether Congress actually had the authority to abrogate is another question.

Although the state asserted Eleventh Amendment immunity in the District

Court, App. to Pet. for Cert. 16a, it has not pressed that point here. The issue

is presented in Wilson v. Armstrong, No. 97-686, certiorari pending.

12. There are many other statutes benefitting the disabled, of course. The history

is described in Rothstein, supra, at 3-19.

15

Congress’s declaration that the disabled are “relegated to a

position of political powerlessness,” 42 U.S. C. § 12101(a)(7),

is far from self-validating. Indeed, it is close to self-negating.

Any group with enough clout to convince Congress to declare

it “powerless,” in an obvious attempt to overturn one of this

Cou.«’s precedents, is powerful indeed.

Cleburne’s final point was that if the mentally retarded were

accorded “quasi-suspect” status, a wide variety of other groups

would be as well. 473 U. S., at 445-446. The Cleburne Court

stated it was unwilling to do so. /d., at 446. The obvious

reason is that such a step would vastly increase judicial scrutiny

of legislative decisions, with a corresponding abridgment of the

people's right of self-government.

Applying the rational basis test, saving money is always a

legitimate state interest. If more money is spent on a program,

it must be either cut from another program, drained from the

general economy through a tax increase, or borrowed so as to

encumber the future.'? Of course, a state cannot save money by

arbitrarily cutting off a disfavored group which is not distin-

guishable on any basis relevant to that goal. See P/yler v. Doe,

457 U. S. 202, 229 (1982) (exclusion of “undocumented”

children from school). Where the higher cost of including a

particular person is the very essence of the classification,

though, it cannot be seriously contended that the distinction is

not rationally related to the legitimate purpose.

Obviously, the requirement to modify practices and provide

“auxiliary aids and services,” 42 U. S. C. §12131(2); id.,

§ 12132, sweens vastly further than the Equal Protection Clause.

Under City of Boerne, this statute cannot be an exercise of

Congress's enforcement power under the Fourteenth Amend-

ment.

Unlike the Religious Freedom Restoration Act, though, this

statute does not fall, at least not in its entirety, when the

13. The federal government has a fourth option: print paper money. The states do

not. U.S. Const., Art. 1, § 10, cl. 1.

16

Fourteenth Amendment support crumbles. As we will describe

in the next section, most of the statute in most of its applica-

tions is a valid exercise of the commerce power.

Ill. Application of the ADA to state prisons would not be

within the commerce power.

Since 1937, the power of Congress to regulate interstate

commerce, U. S. Const., Art. I, § 8, cl. 3, has been understood

to give Congress sweeping authority over commercial activity,

even local businesses with only indirect effects on interstate

commerce. This power includes a minimum wage law for

employees of businesses which affect, but do not engage in,

interstate commerce. United States v. Darby, 312 U. S. 100,

117 (1941). The power extends to a prohibition against racial

discrimination by “Ollie’s Barbecue,” a local restaurant which

purchases food that has moved in interstate commerce. Katzen-

bach v. McClung, 379 U. S. 294, 296-297, 305 (1964).

Whatever the validity of this expansive interpretation as an

original matter, it is now too deeply ingrained in the national

fabric to overturn. See United States v. Lopez, 514 U.S. 549,

$74 (1995) (Kennedy, J., concurring); id., at 601 (Thomas, J.,

concurring) (“wholesale abandonment” not required).

With each expansion of the commerce power, the Court

reiterated that there were limits, and that the limits would be

enforced. See id., at 557-558 (collecting cases). Yet until

Lopez one could legitimately wonder whether the limits were

rainbows that invariably vanished when approached.

Congress finally hit the wall in Lopez. That case involved

a federal criminal statute prohibiting possession of a firearm in

a school zone. /d., at 551. “The Act neither regulates a

commercial activity nor contains a requirement that the posses-

sion be in any way related to interstate commerce.” /bid.

Congress had exceeded its commerce power. /bid. The present

case is very closely analogous.

17

After tracing the history of the Commerce Clause cases,

Lopez concluded that there are “three broad categories of

activity that Congress may regulate under its commerce power.”

Id., at 558.

“First, Congress may regulate the use of the channels of

interstate commerce. See, e.g, Darby, 312 U. S., at 114:

Heart of Atlanta Motel, supra, at 256 (‘ “{T]}he authority of

Congress to keep the channels of interstate commerce free

from immoral and injurious uses has been frequently

sustained, and is no longer open to question” * (quoting

Caminetti v. United States, 242 U. S. 470, 491 (1917))).

Second, Congress is empowered to regulate and protect the

instrumentalities of interstate commerce, or persons or

things in interstate commerce, even though the threat may

come only from intrastate activities. See, e.g., Shreveport

Rate Cases, 234 U. S. 342 (1914); Southern R. Co. v.

United States, 222 U. S. 20 (1911) (upholding amendments

to Safety Appliance Act as applied to vehicles used in

intrastate commerce); Perez, supra, at 150 (*[F]or example,

the destruction of an aircraft (18 U. S. C. § 32), or. . . thefts

from interstate shipments (18 U. S. C. §659)’). Finally,

Congress’ commerce authority includes the power to

regulate those activities having a substantial relation to

interstate commerce, Jones & Laughlin Steel, 301 U. S.., at

37, i.e., those activities that substantially affect interstate

commerce, Wirtz, supra, at 196, n. 27.” Id., at 558-559.

For the final category, Lopez clarified that the effect on

interstate commerce must be substantial. /d., at 559.

In the present case, as in Lopez, the first two categories are

easily dismissed. Prisons are not, by any stretch of the imagina-

tion, channels of interstate commerce. Nor is any instrumental-

ity of commerce or person or thing in commerce endangered

here. If application of the ADA to prisons could be sustained

under the commerce power, it could only be under the “sub-

stantially affects” branch. Cf. ibid.

18

Among cases upholding the exercise of the commerce

power, the most tenuous effect on interstate commerce can be

found in AfcClung. The theory there was that discrimination

reduced the amount of meat sold interstate and led to less

interstate travel. 379 U. S., at 300. The thinness of this theory

is offset by the fact that McClung was engaged in a purely

commercial activity. He bought tangible goods in an interstate

market and resold them. The least commercial activity, on the

other hand, can be found in Wickard v. Filburn, 317 U.S. 111

(1942). While Filburn did not buy or sell wheat, his production

of wheat for consumption on his own farm directly reduced the

demand for wheat in the market. His activity, therefore,

affected the commerce that was the central purpose of the

statute, see id., at 128, and not merely a peg on which to hang

a law enacted for other reasons.

A state prison is typically not engaged in any commercial

activity other than buying goods to be consumed there."

Application of the ADA might result in an increase in the level

of expense in running a prison, but that would not be likely to

have any appreciable effect on interstate commerce, especially

if the state compensated for the increased cost of some pro-

grams by cutting others. Application of the ADA to prisons “is

not an essential part of a larger regulation of economic

activity ....” Lopez, 514 U.S., at 561.

The one finding in the statute that would support a connec-

tion between prisons, disabled persons, and commerce, is that

“dependency and nonproductivity” impose costs on society.

See 42 U.S. C. § 12101(a)(9). Conceivably, the inability of a

prisoner to participate in a truly rehabilitative program could

reduce his chances of being economically self-sufficient upon

release, and thus a drag on the economy. This is indistinguish-

able from the “effect on classroom learning” rejected as

insufficient in Lopez. 514 U. S., at 565; cf. id., at 623 (Breyer,

14. A prison which made goods for sale in the market would be different. Congress

can undoubtedly regulate the interstate shipment of prison-made goods. See 18

U.S.C. § 1761.

19

J., dissenting). Similarly, an argument that prisons might be on

“the commercial side of the line” based on the magnitude of

their consumption or because, ideally, they would equip

prisoners with the skills to “go straight” is no different from the

argument rejected as to schools. Compare id., at 565 (majority)

with id., at 629-630 (dissent).

For prisons, as for schools, any rationale that would serve to

uphold application of the ADA under the commerce power

would serve to justify federal regulation of every detail of

running the prisons. The federal judiciary has been backing

away from “micromanagement” of state prisons in recent years.

See California Dept. of Corrections v. Morales, 514 U.S. 499,

508 (1995). Congress has recently added a big push in the same

direction. See generally, Prison Litigation Reform Act of 1996,

Pub. L. No. 104-134, §§801-810, 110 Stat. 1321-1366.

Allowing litigation such as the present case would “run counter

to the view expressed in several of [this Court's] cases that

federal courts ought to afford appropriate deference and

flexibility to state officials trying to manage a volatile environ-

ment.” Sandin v. Conner, 515 U.S. 472, 482 (1995). Indeed,

precisely the claim at issue here, participation in a prison “boot

camp” program, was cited in Sandin as the kind of litigation

“squandering judicial resources with little offsetting benefit to

anyone.” /d., at 482-483.

The management of state prisons is a core function of state

government. Decisions as to what programs to establish in

them, how much to spend on them, and who ought to participate

in them are the kinds of decisions that go to the essence of

governmental discretion. If the ADA applied to state prisons,

it would “foreclose[] the States from experimenting and

exercising their own judgment in an area to which states lay

claim by right of history and expertise,'* and it [would do] so by

regulating an activity beyond the realm of commerce in the

15. Cf. Preiser v. Rodriguez, 411 U.S. 475, 492 (1973).

20

ordinary and usual sense of that term.” Lopez, 514 U. S., at 583

(Kennedy, J., concurring).

The particular program at issue here illustrates the impor-

tance of state variety and experimentation. Boot camps as

correctional programs are controversial, with many expressing

doubts whether they work. See Mathlas & Mathews, The Boot

Camp Program for Offenders: Does the Shoe Fit? 35 Int’! J. of

Offender Therapy & Comp. Criminology 322, 323, 326 (1991);

Mackenzie, et al., Boot Camp Prisons and Recidivism in Eight

States, 33 Criminology 327, 328, 353-354 (1995). The only

way to know for certain is to try different variations and see

which, if any, lower the rate of recidivism. See Mackenzie,

supra, 33 Criminology, at 353-354. If all programs nationwide

must be modified to accommodate a wide variety of disabilities,

and if they fail, we will never know if the unmodified programs

would have worked.

Nearly all of the Americans with Disabilities Act is within

the commerce power. The employment title applies to employ-

ers “engaged in an industry affecting commerce... .” 42

U.S.C. § 12111(5). The public accommodations title is limited

to private entities affecting interstate or international commerce.

42 U.S.C. § 12181(1), (6), (7). The bulk of Title II, regarding

public services, is addressed to transportation. 42 U. S. C.

§§ 12141-12161. Even before 1937, a state-operated railroad

was subject to regulation under the commerce power, Houston,

E. & W. Texas Ry. Co. v. United States, 234 U. S. 342, 350

(1914), and similar services would fall under the same rule.

Prisons, though, are different. They are not commerce, and

they are a core function of state government. Congress should

not be deemed to have authorized, under the commerce power,

pervasive regulation and litigation of a core function of state

government with only the most tenuous connection to interstate

commerce. If it did, it has exceeded its power, and the statute

is unconstitutional as so applied.

21

1V. Other than the Civil War Amendments,

Congress has no power to regulate the governmental

operations of states.

“(T]}he Framers explicitly chose a Constitution that confers

upon Congress the power to regulate individuals, not States.”

New York v. United States, 505 U.S. 144, 166 (1992); Printz v.

United States, 521 U.S. __, 138 L. Ed. 2d 914, 935, 117 S. Ct.

2365, 2377 (1997). If this Court meant what it said in New

York and Printz, the ADA cannot apply to state prisons.

Cases involving regulation of states by the federal govern-

ment fall into two groups. Most of the cases involve the

application to the states of laws t!.at apply equally to the private

sector. National League of Cities v. Usery, 426 U. S. 833

(1976) and Garcia v. San Antonio Metropolitan Transit

Authority, 469 U. S. 528 (1985), which overruled National

League, fall into this group. See New York, 505 U. S., at 160

(collecting cases). A smaller group, including New York and

Printz, involves Congressional commands directed specifically

to state and local government.

The present case falls on the New York/Printz side of this

line. Title Il, Subtitle A of the ADA, the only part at issue, is

directed only to “public entities.” See 42 U. S. C. § 12132.

“Public entity” means only state and local governments, their

departments, and certain passenger rail entities. 42 U. S. C.

§ 12131(1). Thus, while the statute at issue is part of a large

package, much of which is directed to the private sector, the

specific requirement is not a “generally applicable law[{]” as

New York uses that term. Cf. 505 U. S., at 160. Therefore,

assuming Garcia survives New York and Printz, this case is

governed by New York and Printz and not by Garcia.

Coyle v. Smith, 221 U. S. 559 (1911) appears to be the first

case to squarely confront the question of direct regulation of a

22

state by Congress.'® Coyle held that Congress could not direct

the State of Oklahoma where to locate its capital. /d., at 579-

580.

What would be the result if the facts of Coyle were to come

up today, in the post-1937 era of the vastly expanded commerce

power? Certainly it would have a substantial effect on interstate

commerce if Congress were to order the Commonwealth of

Virginia to move its capital from Richmond to Arlington. Not

only the government itself would move, but also the lobbyists,

law firms, and other businesses that invariably accumulate

around a government. Supplying the government and ancillary

businesses would create a market for goods more accessible to

merchants in Maryland and the District of Columbia, thus

increasing interstate commerce to a considerably greater degree

than the marginal increase in meat sales at Ollie’s Barbecue.

Cf. Katzenbach v. McClung, 379 U. S. 294, 300-301 (1964).

According to Coyle, the idea that Congress could issue this

order “would not be for a moment entertained.” 221 U. S., at

565. It would be no less absurd today. The conclusion inevita-

bly follows that Congress’s power to regulate under the

Commerce Clause is less extensive than its power to regulate

private businesses. The difference, as New York v. United

States explains, is that the plan of the Constitution is for the

federal and state governments to each regulate individuals, and

not for the federal to regulate the state. See 505 U. S., at 164.

The original plan was, of course, greatly modified by the

Fourteenth and Fifteenth Amendments. To insure that states

obey the command of those amendments against racial discrimi-

nation, Congress has resorted to such intrusive measures as the

requirement to “preclear” election changes with ihe Attorney

General. See South Carolina v. Katzenbach, 383 U.S. 301, 327

16. Lane County v. Oregon, 7 Wall. 71, 77-78 (1869) avoided the constitutional

question by construing the legal tender statute not to apply to state taxes,

presaging the plain statement rule of Gregory v. Ashcroft, 501 U. S. 452, 460-

461 (1991)

23

(1966). In part II, supra, we explained why the ADA cannot be

sustained as an exercise of the Fourteenth Amendment enforce-

ment power, and no other amendment is relevant. The amend-

ments to the original constitutional plan, therefore, do not alter

the conclusion.

In New York v. United States, the State of New York was

forced to “a ‘choice’ of either accepting ownership of [nuclear]

waste or regulating according to the instructions of Congress.”

505 U. S., at 175. Each of these would be unconstitutional

standing alone, so the forced choice was unconstitutional. /d.,

at 176. The “take title” provision, standing alone, “would in

principle be no different than a congressionally compelled

subsidy from state governments to radioactive waste produc-

ers.” /d., at 175. This “would ‘commandeer’ state governments

into the service of federal regulatory purposes, and would for

this reason be inconsistent with the Constitution’s division of

authority between federal and state governments.” /bid.

If a forced subsidy violates the anti-commandeering

principle, then a requirement to provide “auxiliary aids and

services” does as well. The reason goes to the heart of political

accountability. Cf. id., at 168-169. Government programs

benefitting individuals are, by and large, popular. The taxes to

pay for these programs, or the budget deficits when taxes are

insufficient, are just as widely unpopular. To have any kind of

political accountability and budget discipline, taxing and

spending need to go together. Nothing would be more corrosive

than for Congress to enact a popular but expensive program and

impose the cost on the states.

Printz recognizes the same principle. “By forcing state

governments to absorb the financial burden of implementing a

federal regulatory program, Members of Congress can take

credit for ‘solving’ problems without having to ask their

constituents to pay for the solutions with higher federal taxes.”

138 L. Ed. 2d, at 941, 117 S. Ct., at 2382. The state officials or

legislators are the ones who must handle the downside. They

must either raise state taxes or cut other programs, and they

24

must face the wrath of voters who will not always make the

connection.

Setting priorities in spending lies at the heart of the discre-

tion of governing. Even the most casual observer of the

political scene knows that the budget bill is frequently the most

hotly contested legislation of the year. Accommodating the

disabled often costs money. See University of Texas v. Came-

nisch, 451 U. S. 390, 392 (1981). While this is a worthy goal,

many other worthy goals also clamor for the state’s money. In

the American federal system, the places to resolve these

competing demands are the state legislature and the elections

for that legislature. Allocating the state budget is not a power

of Congress. Cf. Printz, 138 L. Ed. 2d, at 970, 117 S. Ct., at

2404 (Souter, J., dissenting) (Congress cannot require adminis-

trative support without paying for it).

Application of the ADA to state prisons would be a direct

regulation of the states by Congress, in an area outside the

Fourteenth and Fifteenth Amendments. It would be a regulation

of a core government function, not a commercial operation that

happens to be run by a government. It would force the state to

reallocate its own resources to meet federal policy priorities in

preference to the priorities of the elected officials of the state.

Such an application of this act is beyond the power of Congress.

CONCLUSION

The decision of the Court of Appeals for the Third Circuit

should be reversed.

March, 1998

Respectfully submitted,

KENT S. SCHEIDEGGER

Attorney for Amicus Curiae

Criminal Justice Legal Foundation