Dual Federalism, Constitutional Openings, and the Convention on the Rights of Persons with Disabilities
Benjamin A. Barsky * | 24.2 | Article | Citation: Benjamin A. Barsky, Dual Federalism, Constitutional Openings, and the Conventions on the Rights of Persons with Disabilities, 24 U. Pa. J. Const. L. 345 (2022).
The Convention on the Rights of Persons with Disabilities (“CRPD”) represents a historic achievement for the global disability rights movement. Yet, when the U.S. Senate refused to ratify it on December 4, 2012, its influence on American law and policy seemed doomed. The Founders, after all, had conceived of a constitutional vision where the federal government acts as the ultimate arbiter of questions of international policy. Under this vision of “dual federalism”—which dominated how the legal profession understood U.S. involvement in foreign affairs for over a century—only the federal political branches have the power to make and implement international laws like the CRPD. But, as I show in this Article, dual federalism has not endured. “Subnational entities”—cities, counties, and states—have become key decision-makers in areas once dominated by the federal government, such as immigration and international trade. As it turns out, they have also become champions of the CRPD.
This Article explains that “foreign affairs federalism” is at the heart of this paradigm shift. This new status quo reveals that the Constitution leaves ample room for subnational entities to engage on issues of international scale. In many cases, it has enabled local and state governments to act antagonistically—or “uncooperatively”—toward the federal government. In others, it has empowered subnational entities and federal actors to work hand-inhand—or “cooperatively”—to drive national foreign affairs priorities. This Article shows that U.S. subnational entities have implemented the CRPD in accordance with principles of uncooperative and cooperative foreign affairs federalism. From an uncooperative perspective, subnational entities have denounced the Senate’s refusal to ratify the CRPD through resolutions and other expressive policies. From a cooperative perspective, the supported decision-making (“SDM”) movement serves as an exemplar case study. Embedded in Article 12 of the CRPD, SDM represents a shift away from guardianship law and toward the ability of people with disabilities to make life decisions on their own. This Article shows that the ongoing flourishing of SDM laws across the United States is due in large part to alliances between state-level disability rights organizations and the federal executive branch.
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* Ph.D. Student in Health Policy, Harvard University; J.D., University of Pennsylvania Carey Law School; B.A., Johns Hopkins University. I am particularly indebted to Michael Stein for his guidance, support, and mentorship throughout the preparation of this Article. I am also grateful to Heather Cucolo, David Ferleger, Jean Galbraith, Jayne Huckerby, Michael Perlin, Mindy Roseman, Edward Rubin, Matthew Smith, Charley Ellen Willison, and the participants of the Salzburg Cutler Fellows Program for invaluable feedback on previous drafts. My deepest thanks go to Katherine McKeen and the rest of the University of Pennsylvania Journal of Constitutional Law for a wonderful editorial experience.