A Nation of Vague Laws

Another small step on the long road to figuring out what the Americans with Disabilities Act means

The Supreme Court this week, in the case of Tennessee v. Lane, decided that Title II of the Americans with Disabilities Act gives private citizens the ability to sue a state or state entity for violating their right to public access to the courts. (The decision does not necessarily apply to denial of access by states to private citizens in all contexts—Title II's language refers generically to "services, programs, and activities of a public entity," but this case only concerned rights to court access.)

Studying the language and reasoning of the decisions, concurrences, and dissents in Tennessee v. Lane shines a light on a weird constitutional alchemy whereby citizen's rights morph into government powers—as long as those powers are exercised in supposed furtherance of those rights. Even in Chief Justice William Rehnquist's dissent—largely involving whether or not Congress itself stated a defensible past pattern of abuses involving disabled access to courts and other technical questions—there is no sign of constitutional interpretation within a context of a government whose powers are meant to be restricted to those specified, not extending to any aid and comfort Congress can think to give to a protected class against other private citizens.

The case turned on the definition and application of the words "proportional and congruent." Precedent had it that Congress has the power to abrogate the state's 11th Amendment right not to be sued if it does so in protection of 14th Amendment rights to equal treatment under the law, but only if the laws it passes to do so are "proportional and congruent" to the right allegedly violated. Reasoning based on such vagueness is bound to seem more like guessing than like interpreting law—this can be seen by the fact that nine of the wisest and most perceptive legal minds in our nation split on the question, 5-4. As Justice Antonin Scalia perceptively notes in his Tennessee dissent, "malleable standards [such] as 'proportionality'…have a way of turning into vehicles for the implementation of individual judges' policy preferences."

Laws are valuable human institutions inasmuch as they provide us with predictable regularity, delimit in a clear and understandable way the boundaries of permissible behavior, and treat everyone under them as individuals with equal rights and obligations—not special classes to whom all others, whether or not they would choose to be in a special relationship with them, owe special treatment. A nation with laws like the ADA doesn't really respect anyone's right to free association (or lack of association) or right to control one's own property short of causing direct, identifiable harm to others.

Predictability, simplicity, equality—all these virtues of a useful, just legal system—are absent from the ADA and its enforcement. The ADA demands special treatment, up to a certain loosely defined point ("reasonable accommodations" that are not an "undue burden"), of a special class of loosely defined people.

For the Supreme Court to bring up those overarching problems with ADA in the context of the Tennessee case would be overreaching the specific circumstance at issue, which merely concerned paraplegics who claimed that they were denied full access to the legal system by multi-storied courthouses without elevators or ramps. (Being carried into the courtroom was not a satisfactory solution to one plaintiff.) That question the Court considered worthy of its consideration. (It is worth noting, to show the level of minute particularity the Court loves to consider, that three years ago, in Board of Trustees of University of Alabama v. Garrett, the Supreme Court decided that the ADA's Title I—regarding employment, a less core constitutional right than access to the courts—did not supercede the 11th Amendment and allow for private actions against states for violations thereof.)

Reason Contributing Editor Walter Olson has done heroic work in keeping track of the quiet, background, frequently non-headline-making ways in which this jumble of a law has fallen out. As predicted in my Reason cover story about the ADA way back in 1995, its vagueness and overreach has made it a weapon of legal extortion, ably documented by Olson in a recent issue of City Journal. His article tells tales of a handful of ambitious lawyers making a healthy living forcing small businesses into settlements on mass-produced and often-shaky ADA lawsuits—including a Florida attorney who sued for access on behalf of a 12-year-old girl to such establishments as a liquor store, a pawn shop, and a swimming pool supply store, although the girl had no pool in her household.

Such results were baked into the ADA cake from the beginning. It's a paradigm case of impossibly sloppy and vague feel-good law, dedicated to solving one identifiable group's problems by creating problems for everyone else, allowing Congress to assert purity of heart while tossing private businesses and other government entities in a messy, unnavigable morass of confusion and lawsuits.

Despite the Supreme Court's efforts to mark a path through the morass, including attempts by nine old lawyers to decide whether or not asymptomatic HIV infection, correctable myopia, and medicated high blood pressure qualify as protected disabilities under the law, it remains a mess. (The answers in those three cases, by the way, were yes, no, and no.) And it's a mess that we'll be all be left to try to clean up as long as Old Glory waves.

I would love to see the Supreme Court consider a case that struck a constitutional challenge to the ADA based not on whether an aspect of the ADA gave a citizen the power to sue a governmental entity, but whether the ADA in all its particulars as it applies to private entities oversteps limited congressional powers. But so long as dissents regarding ADA extensions are made on grounds similar to Tennessee v. Lane's, focusing more on procedural minutia and state's rights than the rights of private citizens to free association and control of their property, that's not likely to happen.