DeWine is Conflicted

In yesterday's opening statements in the Alito confirmation hearing, Sen. DeWine mentioned University of Alabama v. Garrett, a case about a state's ability to be sued under the Americans With Disabilities Act (ADA).

DeWine was complaining that the SCOTUS had somehow usurped power from Congress, but that is exactly what ADA did. Michael Meckler reminds us, DeWine voted for ADA...

Rehnquist explicitly pointed out in his decision the supremacy of Congress in determining the answers to public issues of contention. Yet far from entrusting authority in democratic bodies, ADA actually shifted authority to the federal courts to overturn state government policies set by elected officials. In reality, ADA has promoted the "unchecked rule of judges" DeWine complained about yesterday in his opening statement. While Congress was fully within its authority to impose such "unchecked rule of judges" on private parties, Rehnquist noted that it did not have such authority over the states:

Congress is the final authority as to desirable public policy, but in order to authorize private individuals to recover money damages against the States, there must be a pattern of discrimination by the States which violates the Fourteenth Amendment, and the remedy imposed by Congress must be congruent and proportional to the targeted violation. Those requirements are not met here, and to uphold the Act's application to the States would allow Congress to rewrite the Fourteenth Amendment law laid down by this Court in Cleburne [Cleburne v. Cleburne Living Center, from 1985]. Section 5 does not so broadly enlarge congressional authority.

The inconsistencies in DeWine's arguments from yesterday's opening statement will, of course, have no effect whatsoever on the senator's re-election bid. And, short of an Anita Hill moment, the confirmation hearings on Alito are not expected to create controversial episodes that will dog the senator this fall on the campaign trail. But DeWine's opponents on the right and on the left are certainly paying as much attention to the senator's words as those of the Supreme Court nominee he will be questioning.

Couldn't have said it better myself...

DISCLOSURE: I am the blog administrator for Pierce for Senate, a primary challenger for the Republican nomination.

Mark's Remarks

You know, Mike sounds more delusional each and every day. He must be a liberal, as they are delusional all the time. How can a law that Congress itself passed usurp power from Congress?!?! Anyone? Anyone? I mean, that amounts to abdictation, not usurptation, so to speak. If Mike was this concerned about the ADA, he should have, I dunno, thought about the long term implications a bit more before doing the politically expedient thing.

DISCLOSURE: While not the blog administrator for Pierce for Senate, I am the unofficial mascot of the Pierce for Senate blog office staff, as well as a clandestine supporter and advocate for Mr. Pierce.