Titanic Overreach

Kerry Howley | June 6, 2005

After delivering a fuck you to pot smokers in pain, The Supremes follow up with one for the entire world, or at least any country with a cruise line. Apparently the American Disabilities Act is so broad that it extends to foreign ships -- which means that if you're a Honduran vessel hoping to pick up some Americans in U.S. waters, you'd better make sure your litigation-prone American passengers deem the swimming pool sufficiently accessible. In his dissent Scalia points out that it's delusional to think this was the intention of Congress, and the ruling could create a situation where ships face conflicting requirements everywhere they dock.

Brian Doherty navigates this particular sea of litigation here.

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|6.6.05 @ 1:42PM|#

The Supremes have lost their godamn minds. Stand by for New London v. Kelo. That loss will be truly painful.

|6.6.05 @ 1:49PM|#

Since when do foreign-owned companies doing business in the US get exemptions from our laws?

|6.6.05 @ 1:52PM|#

Maritime law works differently, Joe. Or, it used to anyway. That's why vessels choose to register in different nations.

|6.6.05 @ 2:03PM|#

Don't we make foreign airlines conform to US standards/security?

How do 'air' vessels differ from 'ocean' vessels? Is there a difference legally?

|6.6.05 @ 2:20PM|#

Setting aside the fact that maritime law is in a separate category, it seems appropriate for a state to require all vessels (foreign/ domestic, air/sea/land) to comply with safe operations rules, like driving on the proper side and not throwing matches at fuel tankers. ADA is about accessibility and convenience for individuals, not the safety and security of the public-at-large. I'll have to read the opinions now, since this sure does seems like a goofy ruling.

|6.6.05 @ 2:35PM|#

joe..c'mon..

These ships only spend a very short period of time on American waters. So what you're saying is that these ships should be totally retrofitted for 1% of the patrons who will spend 5% time in American jurisdiction?

|6.6.05 @ 2:40PM|#

"You're very clever, young man, very clever, but it's kangaroos all the way down."

|6.6.05 @ 2:42PM|#

I'm assuming that retrofitting some bathrooms and such for most of these vessels will not reach the tipping point of "sorry, we don't want your business anymore".

Hmm, tipping point. Allow me to tie things together with a Leon Klinghoffer riff... (sorry... no offense to any Klinghoffers lurking about. I too dislike terrorists)

|6.6.05 @ 2:43PM|#

ADA is a stupid and costly law, and it doesn't matter where it's being applied---local mom-n-pop, or foreign cruise ships.

|6.6.05 @ 2:47PM|#

They should retrofit the cruiseliners and then make the cripples "roll the plank"

BITCHES!!

|6.6.05 @ 2:53PM|#

MNG,

Let's say Saudi Arabia passed a law forbidding their corporations from enterring into contracts with Jews.

If the crew of the good ship King Fahd refused to let any Jewish passengers board, even after they paid for the trip, would those passengers be ineligible to sue Saudi Cruise Lines in a federal court?

|6.6.05 @ 2:55PM|#

Let's leave aside the obvious drawbacks of these 2 rulings (ADA and medical pot) and ask a more fundamental question about judicial activism:

If one defines "judicial activism" (quotes used since I'm defining a term, not for scare or sarcasm effect) as "any ruling that violates the Constitution in favor of the Justices' preferences" then one could make a strong argument that these rulings are judicial activism since they flout the notion of enumerated powers. Fair enough.

If, however, one defines "judicial activism" as "courts substituting their own judgement for that of the legislature on controversial matters" then it's hard to argue that either ruling constitutes judicial activism. In both cases the Supremes came down in favor of wide-ranging authority for Congress.

That's my biggest problem with complaints about judicial activism: They ignore the elephant in the room to focus on a dusty shelf. Sure, there are cases where courts do things that are constitutionally dubious and might arguably be better left to the legislative branch. But such cases are far out-numbered by those in which the courts come down in favor of Congress far exceeding its enumerated powers.

This is why I'm skeptical of Congressional Republicans who complain about "judicial activism" (now I am using the quotes for scare effect): I somehow doubt that they're truly interested in making sure each branch of the government adheres to its Constitutional role. Mostly they seem upset about the handful of cases where courts have ruled against Congress over-stepping its bounds. And while those rulings might very well involve dubious legal reasoning, I wonder why the Congressmen and Senators aren't equally upset when the courts use dubious legal reasoning to rule in favor of Congress exercising unenumerated powers.

|6.6.05 @ 3:03PM|#

thoreau: I've got similar skepticism, but it is the righty justices who tend toward originalist interpretation, being anti-"activist" by your first definition. It is my hope and expectation that if the Republicans get the judges they ask for, those same judges will end up not giving Repubs all the legislative and executive power they seek.

(Sure, they'll get some unenumerated powers affirmed. But, it would have been worse under Kerry) :-)

|6.6.05 @ 3:06PM|#

Following up on thoreu's comments (I guess.)
It's as if the Supremes are at war with Congress, and the nation is just collateral damage.

|6.6.05 @ 3:13PM|#

joe: Your counterexample is too vague. If a jew knowingly buys a ticket to a ride he will not be permitted on, there's no crime, just a foolish jew. If the MV Fahd doesn't explain it's no-jew restriction while accepting jewish money, the crime is fraud, and actionable. An extension of the argument might be to sue MV Fahd for not hiring jews, or paying them an unequal wage, if all USA law is applicable to all vessels which call on her ports.

|6.6.05 @ 3:14PM|#

Wouldn't it be smart business practice to have had these accomodations in place to begin with? People with physical handicaps spend money, too.

|6.6.05 @ 3:15PM|#

joe:

The way I look at it, instead of crying to Big Mommy/Daddy (the courts), it would be much more satisfying if the people (in your example) went to the ADL and totally roast these assholes in public protests and boycotts. Disabled people have the same option.

And I disagree with the notion that it's not a big deal to fix a few bathrooms and such. Space on ships is at a very high premium. It's quite a feat that they can fit so many people in such a small area and not have them knife each other at the buffett (not that the thought ever crossed my mind) ;)

|6.6.05 @ 3:18PM|#

Dynamist,

"If the MV Fahd doesn't explain it's no-jew restriction while accepting jewish money, the crime is fraud, and actionable." So you believe that violations of American laws by cruise lines that dock in American ports are within the jurisdiction of American courts? Me too.

|6.6.05 @ 3:47PM|#

SPD asks, "Wouldn't it be smart business practice to have had these accomodations in place to begin with? People with physical handicaps spend money, too."

Simple economics tells us that the only way to find out is through experimentation. Maybe I'm wrong, but surely there are foreign lines that do run accessible ships? The question is, is the undoubtedly massive investment in making an entire cruise ship handicap-accessible, really worth the return that they're going to get from the very small percentage of handicapped people that actually want to spend a week or two wheeling their Hover-round back and forth on the deck of cruiseship?

If it is, indeed, a wise investment, then any smart cruise liner operator will do it. If it's not a good investment to upgrade a whole fleet, then perhaps certain cruise lines will "specialize" in handicapped-accessible vessels, and concentrate on that market ("Cripple Cruise Company"). But, the problem inherent in government-forced accessibility legislation is that it does not allow these market forces to work their magic. It simply says, "awww, look at the poor cripples. Awww. They need our help. Let's help them at everyone else's vast expense!"

|6.6.05 @ 3:59PM|#

Joe,

"Fraud" laws transcend many legal borders, as they should. Nanny-state laws like this one, that force any businessman to spend their hard-earned money catering to a specific clientele, are reprehensible. Consensus on the wrongness of fraud is pretty universal---the same can't even remotely be said about laws forcing you to spend thousands of dollars catering to a tiny portion of your clientele.

gaius marius|6.6.05 @ 4:18PM|#

In both cases the Supremes came down in favor of wide-ranging authority for Congress.

exactly, mr thoreau. the court is avoiding its responsibility to enforce the law and instead bending to majoritarianism.

Mike|6.6.05 @ 4:19PM|#

Nanny-state laws like this one, that force any businessman to spend their hard-earned money catering to a specific clientele, are reprehensible.

Joe has been setting up a very obvious argument which you seem to have missed: it's perfectly reasonable to disagree about which laws are good and which are bad, but to allow foreign ships operating in American waters to ignore them is not.

|6.6.05 @ 4:27PM|#

Fraud is actionable under maritime law, separate from USA law. It usually a fraud of cargo, but incidents of misrepresentation of agency and carrier identity arise.

Since there is no sovereign over nations, admiralty law tends to work toward libertarian ideals, with agreement to enforce through treaty.

|6.6.05 @ 4:31PM|#

Mike: Good law or bad, ships become subject to them only when their flag nation agrees. It might be a violation of a prior treaty for the USA to enact a restrictive law not relating to safe operation which applies to foreign-flag vessels. Even if the Supremes are correct within the Constitution, the decision and the contradictions it creates might highlight an issue which must be worked out internationally.

|6.6.05 @ 4:32PM|#

Evan,

Bzzt. The question of a court's jurisdiction has nothing to do with whether you consider a law to be overly "nanny-statist." Either the court has jurisdication in this place, or it doesn't.

Dynamist, I agree with you that maritime courts would have jurisdication. But that wasn't the question - do US civil and criminal courts have jurisdiction as well?

|6.6.05 @ 5:18PM|#

"But that wasn't the question - do US civil and criminal courts have jurisdiction as well?"

My gut tells me that they shouldn't. I don't know if they in fact do or not. Maritime law is different for a reason, and conflicting civil law in each port seems like it might be one of those reasons.

Also, I don't buy that the stupidity of the law is irrelevant to the case. I think drug laws are stupid and costly, so I am fine if someone wants to carve out a medical exception to the horrific norm, even though that exception may look unfair to others. ADA is a stupid law, and any exceptions whatsoever should be encouraged.

|6.6.05 @ 5:59PM|#

If there was ever a "nanny state" decision I could roll with, its this one.

This inconveiences some poor buisnessman? That is pretty bad, almost as bad as say, being born without the use of your legs.

Charles Hueter|6.6.05 @ 6:17PM|#

Jared, you find it clever to compare the troubles a legless man might have with the troubles a businessman might have with federal regulatory compliance? As if the businessman ought to be forced over backwards to accomodate the crippled to fix an injustice for which the businessman had utterly zero responsibility?

|6.6.05 @ 6:27PM|#

Jared,

Last I knew, the ADA had not yet given back to anyone the use of their legs.

|6.6.05 @ 6:29PM|#

The cruise industry lobby spokesman didn't seem too unhappy with the way the decision was written when they had his audio clip on NPR.

It's not like the majority of these cruise ships are actually used to take a person from Port A to Port B. They're typically pleasure round trips from the US and back to the same port. And the average of someone taking a cruise is is pretty up there so 'reasonable accomodation' also seems like good business sense. In the case Norwegian Cruise lines was sued for selling 'handicap accessible' staterooms but not making the suitable accomodations for the handicapped person to actually reach them. So maybe a bit of false advertising (or less than honest :-) on Norwegian's part?

At the same time, it's probably better to have a uniform US standard than have each state set their own policy. :-)

|6.6.05 @ 6:30PM|#

Jared: If you're so compassionate for the disabled, donate your own goddam money to accomodate them. Spending other people's money ain't charity.

|6.6.05 @ 10:22PM|#

Damn, crimethink, you really don't know dick about what's been going on with the ADA.

There are certain rubber meets road issues that come up, that separate the libertoids who love human freedom from the libertoids who are just cheap bastards.

ADA makes many millions of people free who would otherwise be in chains.

|6.6.05 @ 10:32PM|#

Or, ADA forces millions to carry the chains to which fate has shackled the disabled. Even if there was no money cost, or any cost at all to the uncrippled, I think it is wrong to force person A to assist person B.

|6.6.05 @ 11:56PM|#

Writing as a plumbing designer, retrofitting an existing restroom space to meet code for both ADA requirements, and number of fixtures can be a challenge. Unless you can expand the total restroom area, these code requirements conflict with each other. Expanding the existing space can be cost prohibitive, and logistically difficult, depending on what kind of rooms surround the restrooms and how the building was intially constructed. I imagine these issues are even more difficult to deal with when redesigning a ship. Those who think these issues are no big deal have not had to design such a retrofit, or pay for one. Also, these codes are not a stationary target, they change with some frequency.

|6.7.05 @ 5:57AM|#

Somebody should ram a pound of dope up Renquist's ass.

|6.7.05 @ 6:44AM|#

Oops, sorry. Just realized that he was in dissent on the maryjane case.

Shouldn't do this when I'm tired, I guess.

|6.7.05 @ 8:09AM|#

Yeah, Jennifer, I was thinking the same thing. When are they going to make sky diving schools accessible? Scuba diving? Bungy jumping?

On a more serious note, what about historical buildings/vessels? Should they be ripped up and re-formed to make them compliant? One example that comes to mind is a WW2 sub that is docked in Baltimore.. how the fuck do they make that accessible?

|6.7.05 @ 8:47AM|#

Mr. Nice Guy--
The reason I brought that up is because my boyfriend and I were researching some New York caverns about two or three hours away from us, trying to choose one to visit; one of them said something like "We are subject to nature's whims; no strollers, walkers or wheelchairs allowed." I'm sure that sooner or later some wheelchair-bound person will sue to either expand the caverns or close them.

Remember in old melodramatic movies when the villain loses control of a person or building or valuable piece of jewelry and then tries to destroy it, saying "If *I* can't have this, then NOBODY can! Bwa ha ha!" I'd like to know: when did the philosophy "If I can't do this nobody can" switch from an evil narcissistic selfish villain to fucking NATIONAL POLICY?!?

|6.7.05 @ 9:17AM|#

Jennifer:

This makes me think of a playground analogy. There's a pretty ball that all the kids covet. The bigger kids monopolize it, and the small kids go whining and crying to the playground Mom. Playground Mom cuts the ball up in small pieces and gives a piece to every child.

|6.7.05 @ 9:41AM|#

Playground Mom needs to realize that nobody would have admired Solomon if he'd actually cut the baby in half.

|6.7.05 @ 9:45AM|#

Joe brought up the example of Saudi Arabia. I wonder--if he thinks that foreign ships that stop in American ports should obey all American laws (as opposed to worldwide laws forbidding fraud and murder and the like), would he also agree that airlines and cruise ships that do business in Saudi Arabia should obey Saudi law, and fire all the Jews and women they have working for them? I highly doubt he'd say yes, but what's the difference?

|6.7.05 @ 10:00AM|#

"There are certain rubber meets road issues that come up, that separate the libertoids who love human freedom from the libertoids who are just cheap bastards."

There are certain rubber meets the road issues that separate the liberal view of human freedom from the libertarian view of human freedom. I'm sure that's what you meant.

|6.7.05 @ 10:14AM|#

Does anybody here actually do any work in the morning?

|6.7.05 @ 10:24AM|#

Doug-
Turned in all my assignments, waiting for client feedback, nothing to do in the meantime.

|6.7.05 @ 11:14AM|#

Jennifer,

People who actually get to "take a walk" around the block in their chairs for the first time in years because the sidewalks now have ramps are perfectly aware that their legs don't work. Perhaps you should get clued into the radical idea that our society is better when people like your father don't have to spend the rest of their lives as shut-ins.

Jennifer, MNG, ADA doesn't require the retrofitting of existing recreational facilities, just accessible design on new projects. I know, I know, there I go again, ruining a perfectly good Two Minute Hate...

|6.7.05 @ 11:16AM|#

Jennifer,

Good question about the Saudi laws. I think there's a legitimate distinction between actual transportation services - airlines that fly from Saudi Arabia to New York and back - and floating hotels to nowhere.

|6.7.05 @ 11:20AM|#

Joe-
Putting ramps on sidewalks is one thing--I fully buy the argument that disabled people pay taxes too, so facilities built with their tax dollars should accomodate them. (Also, putting a ramp on a curb is a very minor bit of engineering, unlike refitting an entire ship.) Cruise ships, however, are a private business trying to make a profit.

And you didn't answer my former question--if America can require all the world's ships that come into port here to comply with our own idiosyncratic rules, why shouldn't shipping companies that go to Arabia be required to fire its Jewish or female employees?

As for requiring new facilities to accomodate everybody--what happens if I buy property, discover a gorgeous limestone cave underneath it, and try to open this cavern to the public? Should I have to make it wheelchair-accessable?

|6.7.05 @ 11:21AM|#

Joe-
I made my last post before I saw yours about Saudi.

|6.7.05 @ 11:22AM|#

Actually, Jason, you're phrasing works, too. The liberal definition is about what people can do in their lives, while the libertarian definition is about the government. Some libertarians are such because they believe it is better for people to have fewer limitation and more opportunities - they are motivated by the liberal (both classical and modern) definition. Others are libertarians because they are concerned with only those limitations imposed by the government, and consider other limitations to be the godly/natural way of organizing the universe.

|6.7.05 @ 11:24AM|#

Jennifer,

Your last question, about the caves - I believe there is a waiver provision for exactly that type of situation. I don't know how broad its discretion is, or how difficult the permitting process. Though, being federal, I can guess...

|6.7.05 @ 11:35AM|#

Joe-
Even requiring new facilities to be handicap-accessible is a problem, because making things handicap-accessible costs MONEY. Maybe I've got enough cash to buy a regular cruise ship, but not enough for one that's wheelchair-compliant. So now, since the small percentage of the population that's in a wheelchair can't go on Jennifer Cruises, NOBODY can. And my would-be employees better look somewhere else for a job.

Bear in mind: a cruise ship is a LUXURY. I'm all for making necessities handicap-accessible (I remember about a year ago Hit and Run posted an anti-ADA thread about a second-floor courtroom in Tennessee that required a paraplegic to either leave his wheelchair and crawl up the stairs, or be imprisoned for missing court. How any libertarian can say the government should have the right to order paraplegics to crawl or face jailtime is beyond me), but luxuries are another matter. Hell, I can't go to certain nightclubs or planetarium laser shows because I can't handle strobe lights; that sucks, but I'm not going to forbid these shows to those who CAN handle them just because I can't.

|6.7.05 @ 11:43AM|#

"Others are libertarians because they are concerned with only those limitations imposed by the government, and consider other limitations to be the godly/natural way of organizing the universe."

I'm almost in agreement with you here. There are just a few modifications I'd make to your statement:

It isn't just government, it is man lording over man. The libertarian thought process deals with a liberty that is the opposite of the state of being coerced. Nature doesn't coerce.

Other limitations can be overcome, but not generally at the cost of introducing coercion.

|6.7.05 @ 12:37PM|#

I'm with Jennifer on the luxury vs. necessity distinction. On a practical level, I'd be much less upset about ADA if it were about necessities and public buildings. Yes, I know, on a philosophical level it would still be wrong, but I prioritize my outrage based on real world consequences.

But when it is used for luxuries like cruise ships, well, sorry, but I don't have much sympathy.

Phil|6.7.05 @ 12:41PM|#

I remember about a year ago Hit and Run posted an anti-ADA thread about a second-floor courtroom in Tennessee that required a paraplegic to either leave his wheelchair and crawl up the stairs, or be imprisoned for missing court. How any libertarian can say the government should have the right to order paraplegics to crawl or face jailtime is beyond me

They also offered him the option of being carried as well. I'm not saying it's not damaging to one's pride or the best of all possible worlds, but the option was offered to him.

|6.7.05 @ 1:01PM|#

Phil-
Still a loss of dignity, not to mention dangerous. Being dropped down a stairwell can turn a paraplegic into a corpse; damned if *I* would trust my life to some Tennessee courtroom flunky. Hell, if this was a poor county that couldn't afford to revamp its courtroom for one single paraplegic then they could hold the trial somewhere else. So yes, make government buildings accessible, but not private property unless the owners choose to do so.

|6.7.05 @ 2:19PM|#

Jason,

If your distinction was actually drawn based on the offense of man lording over man, you'd share some of your outrage for mall cops, racist shopowners, farmland owners who decide they can make more money by kicking their tenants off, and dirty-mouthed bosses. Yet your definition of freedom compels you to come down on the side of the bullies in every one of those cases.

There are massive holes in your position that you just want to free people from coercion - you just want the coercion to go in a certain direction.

As for "nature doesn't coerce," I think that's a distinction without a difference. Nature doesn't have the consciousness and moral agency to be responsible for coercing someone, but so what? What matters is opportunity and limitations experienced by people living their lives.

|6.7.05 @ 6:00PM|#

"Yet your definition of freedom compels you to come down on the side of the bullies in every one of those cases."

Not really. I identify the bully differently than you, is all. The bully is the guy who gets a mob together to force a private business owner to transact with him. That should be the prerogative of each party and not the mob. The farm land owner who is losing money is not a bully for wanting to turn land he owns to productive use. The impact to the laborer is unfortunate, but it is not unfair or coerced. The foul mouthed employer is an ass, but I feel that his ability to speak his mind is pretty important. I fully respect that someone may not want to work for him. That is a choice.

Often, this discussion returns to the employer employee relationship. I only see a contract between two people. That is all. To note that employers have more bargaining power than employees is interesting but completely unimportant to the notion of what any job really is ... a voluntary agreement between parties. When you look at a job, you see a bunch of other stuff. There is some notion of a needy employee and a greedy employer and so forth. I just don't see any of that.

"As for "nature doesn't coerce," I think that's a distinction without a difference."

I know you feel that way. It is what makes you a liberal. Increasing man's coercion over man to rectify natural differences in ability seems lunatic to me. That is what makes me a libertarian.