A Duke University law professor says the Senate should set carefully written implementation rules for a disability rights pact, to keep Congress from using the treaty to meddle in fields normally handled by the states.
The professor, Curtis Bradley, said the Senate should develop an implementation statement, or “reservation,” that keeps Congress from using the treaty as a reason to get involved with fields normally handled by the states.
The Senate has added similar reservations when it has approved other agreements, Bradley said.
Bradley made that case Thursday at a Senate Foreign Relations Committee hearing on the United Convention on the Rights of Persons with Disabilities.
One part of the pact, Article 25(e), seems to prohibit discrimination against people with disabilities in the area of life insurance and health insurance.
Debate about Senate ratification of the pact has focused mainly on how the treaty could affect state rules in areas such as education and housing.
Insurance groups have not been active in public efforts to oppose the pact, and some have said that Obama administration “reservations,” implementation rules, would keep the Article 25(e) insurance rules from interfering with U.S. insurance underwriting.
The existing reservations state that the administration would not be required to take action against states as a result of the disability convention, Bradley said.
But “they in no way prevent the government from doing that,” Bradley said.
Jeremy Rabkin, a George Mason University law professor, also testified about concerns about the pact.
Some say the pact would not require the United States to do anything, but “we are often enough surprised by what our own judges tell us is in our own Constitution,” Rabkin said. “Who knew, before last year, that our Constitution prohibited the federal government from forcing people to buy health insurance — unless the forcing was implemented by something which judges could categorize as a tax?”
Rabkin noted, for example, that the pact does not exempt journalistic institutions.
One section “admonishes states to adopt ‘measures … encouraging all organs of the media to portray persons with disabilities in a manner consistent with the purpose of the convention,” Rabkin said.
The point is not necessarily that signing the convention would lead to absurd consequences, but that many provisions are open to interpretation, Rabkin said.