UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF MISSISSIPPI

UNITED STATES OF AMERICA, )

)

Plaintiff, )

)

v\. )

)

MISSISSIPPI DEPARTMENT OF ) CIVIL ACTION NO. 3:00CV377BN

PUBLIC SAFETY )

A Department of the )

State of Mississippi, )

)

Defendant. )

)

[UNITED STATES' MEMORANDUM IN OPPOSITION]{.underline}

[TO THE DEFENDANT'S MOTION TO DISMISS]{.underline}

Defendant argues that the holding in [Board of Trustees]{.underline} v.
[Garrett]{.underline}, 121 S. Ct. 955 (2001), renders Title I of the
Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 12101
[et]{.underline} [seq.]{.underline}, facially unconstitutional and
therefore "unenforceable by anyone for any relief." Defendant's
challenge must fail. As Defendant notes, the Court in
[Garrett]{.underline} held that private parties may not sue state
agencies for money damages under Title I's employment discrimination
provisions. [Garrett]{.underline}, 121 S. Ct. at 967-68. The Court also
stated, however, that "\[t\]itle I of the ADA still prescribes standards
applicable to the States" and that "\[t\]hose standards can be enforced
by the United States in actions for money damages." [Id.]{.underline} at
968 n.9. These statements expressly envision the present action. Because
federal jurisdiction for this claim is constitutionally supportable, the
United States' action against Defendant to enforce Title I of the ADA
should properly proceed.

STATEMENT OF THE CASE

Ronnie Collins is a career law enforcement officer who, in 1993, applied
to be a state trooper with the Mississippi Highway Safety Patrol.[^1] Mr
Collins passed the entrance examinations and was accepted into the
trooper training academy after the Safety Patrol\'s medical
examiner\--whom Mr. Collins had told of his insulin dependent
diabetes\--concluded that he was medically qualified to be a state
trooper. Mr. Collins did not ask for accommodations for his diabetes
prior to entering the academy because he did not think any were
necessary. As he became exposed to the routine of the academy, however,
he asked for accommodations at least three times within two days, each
time requesting the opportunity to eat specific additional foods in
order to control his diabetes. Academy officials denied Mr. Collins his
requests. As a result, Mr. Collins experienced, for the first time in
his life, severe hypoglycemia. In this state, he became ill and
therefore temporarily unable to participate in his training classes.
Rather than offering Mr. Collins appropriate medical assistance, his
superiors summarily discharged him from the academy. Mr. Collins then
timely filed a charge with the Equal Employment Opportunity Commission
(EEOC), alleging that Defendant had violated the ADA.

STATUTORY FRAMEWORK

The ADA established a \"comprehensive national mandate for the
elimination of discrimination against individuals with disabilities.\"
42 U.S.C. § 12101(b)(1). Among its

express purposes is the invocation of "the sweep of congressional
authority, including the power to enforce the fourteenth amendment and
to regulate commerce, in order to address the major areas of
discrimination faced day-to-day by people with disabilities,"
[id.]{.underline} at § 12101(b)(4), thereby "bring\[ing\] persons with
disabilities into the economic and social mainstream of American life."
S. Rep. No. 101-116, at 2 (1988); H.R. Rep. No. 101-485(II), at 22
(1990).

Title I of the ADA addresses employment discrimination.[^2] It provides
that \"\[n\]o covered entity shall discriminate against a qualified
individual with a disability because of the disability of such
individual in regard to job application procedures, the hiring,
advancement, or discharge of employees, employee compensation, job
training, and other terms, conditions, and privileges of employment.\"
[Id.]{.underline} at § 12112(a). The term "covered entity" is defined as
"an employer, employment agency, labor organization, or joint
labor-management committee."[^3] [Id.]{.underline} at § 12111(2). An
"employer" is "a person engaged in an industry affecting commerce who
has 15 or more employees." [Id.]{.underline} at § 12111(5). Such
"person\[s\]" may be "one or more individuals, governments, governmental
agencies, \[or\] political subdivisions." 42 U.S.C. § 2000e(a).[^4]
Finally, the term \"industry affecting commerce\" means "any activity,
business, or industry in commerce or in which a labor dispute would
hinder or obstruct commerce or the free flow of commerce . . . and
further includes *any governmental industry, business, or activity*."
[Id.]{.underline} at § 2000e(h) (emphasis added). By incorporating these
definitions into the ADA, Congress intended that all non-federal
government agency employment be regulated by the statute.

SUMMARY OF ARGUMENT

In [Garrett]{.underline}, the Supreme Court held that Congress did not
validly abrogate state sovereign immunity from suit by private
individuals for money damages under Title I of the ADA, because such
application exceeded Congress's Fourteenth Amendment enforcement
authority. Defendant contends that, after [Garrett]{.underline}, *any*
enforcement of Title I against it exceeds Congress's power to enforce
the Fourteenth Amendment. It is unnecessary for this Court to decide
whether Title I is constitutional Fourteenth Amendment legislation,
however, because Title I is a valid exercise of Congress's authority
under the Commerce Clause.[^5] Title I is valid Commerce Clause
legislation because Congress had a rational basis to conclude that
employment and employment discrimination substantially affect interstate
commerce. Title I establishes uniform standards governing the national
labor market, and in so doing regulates economic activity with a
nonattenuated, substantial effect on interstate commerce.

Furthermore, application of Title I's provisions to the Defendant does
not encroach impermissibly upon state sovereignty. Title I is a valid
law, enacted pursuant to Congress's affirmative commerce power, that is
generally applicable to both public and private entity employers.

ARGUMENT

I. TITLE I OF THE ADA IS A VALID EXERCISE OF CONGRESS'S AUTHORITY UNDER
THE COMMERCE CLAUSE

"The Constitution creates a Federal Government of enumerated powers."
[United States]{.underline} v. [Lopez]{.underline}, 514 U.S. 549, 552
(1995). Among these powers is the authority "\[t\]o regulate commerce .
. . among the several States." U.S. Const. art. I, § 8, cl. 3.
Congress's power to regulate activities affecting interstate commerce is
plenary: "\[t\]his power, like all others vested in congress, is
complete in itself, may be exercised to its utmost extent, and
acknowledges no limitations, other than are prescribed in the
constitution." [Gibbons]{.underline} v. [Ogden]{.underline}, 9 Wheat. 1,
189-90 (1824). Nevertheless, "\[t\]he enumeration \[of commerce powers\]
presupposes something not enumerated." [Gibbons]{.underline}, 9 Wheat.
at 195. "\[S\]imply because Congress may conclude that a particular
activity substantially affects interstate commerce does not necessarily
make it so." [Hodel]{.underline} v. [Virginia Surface Mining and
Reclamation Assoc., Inc.]{.underline}, 452 U.S. 264, 311 (1981)
(Rehnquist, J., concurring). The federal courts define the limits to
Congress's commerce power, [see]{.underline}, [e.g.]{.underline},
[United States]{.underline} v. [Morrison]{.underline}, 529 U.S. 598, 614
(2000), beginning, however, with "the time-honored presumption that
\[every statute\] is a 'constitutional exercise of legislative power.'"
[Reno]{.underline} v. [Condon]{.underline}, 120 S. Ct. 666, 670 (2000)
(Rehnquist, J.) (quoting [Close]{.underline} v. [Glenwood
Cemetery]{.underline}, 107 U.S. 466, 475 (1883)).

The Supreme Court has identified three broad categories of activity that
Congress may regulate under its Commerce Clause power, including "the
power to regulate those activities having a substantial relation to
interstate commerce, . . . i.e., those activities that substantially
affect interstate commerce."[^6] [Lopez]{.underline}, 514 U.S. at 558-59
(citing [NLRB]{.underline} v. [Jones & Laughlin Steel
Corp.]{.underline}, 301 U.S. 1, 37 (1937) and [Maryland]{.underline} v.
[Wirtz]{.underline}, 392 U.S. 183, 196 n.27 (1968)). Courts review
federal statutes regulating activities affecting commerce for
rationality: "whether Congress could have had a rational basis to
conclude that its enactment . . . was a valid exercise of its commerce
power." [United States]{.underline} v. [Knutson]{.underline}, 113 F.3d
27, 29 (5^th^ Cir. 1997) (citing [Lopez]{.underline}, 514 U.S. at
557-58) (emphasis omitted); [see also]{.underline} [United
States]{.underline} v. [Hickman]{.underline}, 179 F.3d 230, 232-33
(5^th^ Cir. 1999) (equally divided en banc) (Higginbotham, J.,
dissenting). In [Lopez]{.underline} and [Morrison]{.underline}, the
Supreme Court directed lower courts to consider, as part of this review,
whether the statute in question regulates activity that might be
considered *economic* activity; whether it contains an express
jurisdictional element that might restrict its application to only those
activities that have an explicit connection with or effect on interstate
commerce; whether congressional findings support Congress's judgment
that the regulated activity has a substantial effect on interstate
commerce; and whether the link between the regulated activity and a
substantial effect on interstate commerce is attenuated.
[See]{.underline} [Morrison]{.underline}, 529 U.S. at 609-13 (discussing
[Lopez]{.underline}, 514 U.S. at 559-67). The Fifth Circuit has adopted
this framework for analyzing challenges to statutes purported to be
valid exercises of Congress's commerce power. [See]{.underline} [United
States]{.underline} v. [Kallestad]{.underline}, 236 F.3d 225, 227-28
(5^th^ Cir. 2000); [Groome Resources Ltd.]{.underline} v. [Parish of
Jefferson]{.underline}, 234 F.3d 192, 205-15 (5^th^ Cir. 2000). Not all
of these elements need to be present, however, in order for a statute to
be deemed constitutional Commerce Clause legislation. [See]{.underline},
[e.g.]{.underline}, [Groome]{.underline}, 234 F.3d at 211 (5^th^ Cir.
2000). Furthermore, individual instances of even purely intrastate
activity may be aggregated in order to ascertain a substantial effect on
interstate commerce. [See]{.underline} [Lopez]{.underline}, 514 U.S. at
556-61 (citing [Wickard]{.underline} v. [Filburn]{.underline}, 317 U.S.
111, 127-28)); [Kallestad]{.underline}, 236 F.3d at 228 & n.21.

> A. [Title I Is Constitutional Because Employment Is Indisputably
> Economic Activity.]{.underline}

In determining whether activity regulated by purportedly valid Commerce
Clause legislation is economic in nature, the term "economic" is to be
given a broad construction. [See]{.underline} [Morrison]{.underline},
529 U.S. at 610 (describing test as whether statute has anything to do
"with 'commerce' or any sort of economic activity, *however broadly one
might define those terms*") (emphasis added); [Gibbons]{.underline}, 9
Wheat. at 189-90; [Groome]{.underline}, 234 F.3d at 208-09;
[cf.]{.underline} [United States]{.underline} v. [Gregg]{.underline},
226 F.3d 253, 262 (3d Cir. 2000); [Gibbs]{.underline} v.
[Babbitt]{.underline}, 214 F.3d 483, 492 (4^th^ Cir. 2000). The Supreme
Court has regularly upheld federal legislation regulating employment,
identifying employment relationships as economic activity which, in
*toto*, substantially affects interstate commerce. [See]{.underline},
[e.g.]{.underline}, [EEOC]{.underline} v. [Wyoming]{.underline}, 460
U.S. 226, 248 (1983) (Stevens, J., concurring) (concurring in judgment
upholding Age Discrimination in Employment Act under Commerce Clause and
stating that "\[t\]oday, there should be universal agreement on the
proposition that Congress has ample power to regulate the terms and
conditions of employment throughout the economy"); [Wirtz]{.underline},
392 U.S. at 190-93 (upholding Fair Labor Standards Act under Commerce
Clause), overruled on other grounds by [National League of
Cities]{.underline} v. [Usery]{.underline}, 426 U.S. 833 (1976),
overruled by [Garcia]{.underline} v. [San Antonio Metropolitan Transit
Authority]{.underline}, 469 U.S. 528 (1985); [United States]{.underline}
v. [Darby]{.underline}, 312 U.S. 100, 112-23 (1941) (upholding Fair
Labor Standards Act); [Jones & Laughlin Steel Corp.]{.underline}, 301
U.S. at 33-43 (upholding National Labor Relations Act); [Texas & New
Orleans R.R. Co.]{.underline} v. [Brotherhood of Ry. and S.S.
Clerks,]{.underline} 281 U.S. 548, 570-71 (1930) (upholding Railway
Labor Act). As the Court noted recently, in *all* of the cases where it
has sustained federal regulation, even of admittedly intrastate
activity, based upon the activity's substantial effects on interstate
commerce, "the activity in question has been some sort of economic
endeavor." [Morrison]{.underline}, 529 U.S. at 611; [see
also]{.underline} [id.]{.underline} at 615 (recognizing "interstate
commerce" to include "*employment*, production, transit, or
consumption") (emphasis added). Most recently, the Court reiterated that
employment contracts containing arbitration provisions may be regulated
under the Federal Arbitration Act because they are "contract\[s\]
evidencing a transaction involving commerce" and thus covered by the
Act.[^7] [See]{.underline} [Circuit City Stores, Inc.,]{.underline} v.
[Adams]{.underline}, 121 S. Ct. 1302, 1307-11 (2001).

The import of these cases is clear: federal employment regulation,
including that contained in Title I of the ADA, is unquestionably
regulation of *economic* activity. Employment is, at its core, the
exchange of services for salary and other compensation.
[See]{.underline} [United States]{.underline} v. [Bailey]{.underline},
115 F.3d 1222, 1236 (Smith, J., dissenting) (calling a *quid pro quo*
"the defining characteristic of a commercial transaction"). The
aggregate of every individual employee-employer relationship is the
national labor market. [See]{.underline} [Lopez]{.underline}, 514 U.S.
at 574 (Kennedy, J., concurring) ("Congress can regulate in the
commercial sphere on the assumption that we have a single market and a
unified purpose to build a stable national economy."). In today's
economy, most employees are fungible, in that their services may be
replaced by those of other qualified workers. Employees are also
portable: each year, millions of American workers cross state lines to
offer their services to new employers. [See]{.underline} United States
Department of Commerce, U.S. Census Bureau, General Mobility of Employed
Civilians 16 Years and Over, by Sex, Age, and Major Occupation Group,
[at]{.underline}
http://www.census.gov/population/socdemo/migration/p20-531/tab09.txt.
Job seekers may use the Internet to find and apply for jobs across the
country. [See]{.underline}, [e.g.]{.underline}, http://www.monster.com;
[cf.]{.underline} [Pensacola Tel. Co.]{.underline} v. [Western Union
Tel. Co.]{.underline}, 96 U.S. 1, 11 (1877) (holding that transmission
of information over interstate telegraph lines was interstate commerce).

Additionally, courts have held that the presence of a national
regulatory scheme, which could be undercut unless economic activity is
regulated, is further evidence of the activity's substantial effect on
interstate commerce. [See]{.underline} [Morrison]{.underline}, 529 U.S.
at 611( citing [Lopez]{.underline}, 514 U.S. at 573-74 (Kennedy, J.,
concurring)); [Lopez]{.underline}, 514 U.S. at 561; [Hodel]{.underline}
v. [Indiana]{.underline}, 452 U.S. 314, 329 n.17 (1981);
[Groome]{.underline}, 234 F.3d at 209-11; [Gibbs]{.underline}, 214 F.3d
at 497-99. Like the National Labor Relations Act and the Fair Labor
Standards Act, Title I of the ADA creates a comprehensive federal scheme
to regulate the national labor market, in this instance by establishing
uniform standards for ending disability discrimination in the market.
The ADA lists among its purposes providing "clear, strong, consistent,
enforceable standards addressing discrimination against individuals with
disabilities," and ensuring that "the Federal Government plays a central
role in enforcing \[these\] standards." 42 U.S.C. § 12101(b)(2), (3).
Title I designates the EEOC and the Department of Justice as the federal
agencies charged with implementing and enforcing these standards.
[See]{.underline} [id.]{.underline} at § 12117(a); [cf.]{.underline}
[United States]{.underline} v. [Bird]{.underline}, 124 F.3d 667, 688-89
(5^th^ Cir. 1997) (DeMoss, J., concurring in part and dissenting in
part) (finding no federal regulatory scheme where no federal
administrative agency designated to regulate abortion industry). In
addition to enforcement and mediation efforts, both the EEOC and the
Department are directed by statute to provide technical assistance to
employers as to the content of the ADA's anti-discrimination standards.
[See]{.underline} 42 U.S.C. § 12206; [see also]{.underline}
http://www.eeoc.gov/qs-employers.html;
http://www.usdoj.gov/crt/ada/adahom1.htm.

> B. [Although Title I Does Not Contain an Express Jurisdictional
> Element, Such an Element Is Unnecessary Because Employment Is Economic
> Activity.]{.underline}

A statutory jurisdictional element "may establish that \[an\] enactment
is in pursuance of Congress' regulation of interstate commerce,"
[Morrison]{.underline}, 529 U.S. at 612, by providing for case-by-case
evaluation of the regulated activity's effect on commerce.
[See]{.underline}, [e.g.]{.underline}, [Lopez]{.underline}, 514 U.S. at
561-62 (discussing United [States]{.underline} v. [Bass]{.underline},
404 U.S. 336, 347-50 (1971)); [United States]{.underline} v.
[Luna]{.underline}, 165 F.3d 316, 320-21 (5^th^ Cir. 1999). Just as the
presence of such an element does not necessarily render a statute
constitutional, however, [see]{.underline} [Kallestad]{.underline}, 236
F.3d at 229, neither does the absence of a jurisdictional element
necessarily make a commerce-regulating statute invalid.
[See]{.underline}, [e.g.]{.underline}, [Katzenbach]{.underline} v.
[McClung]{.underline}, 379 U.S. 294, 302-03 (1964) (citing
[Darby]{.underline}, 312 U.S. at 120-21); [Groome]{.underline}, 234 F.3d
at 211; [Bird]{.underline}, 124 F.3d at 675 (stating that "a
jurisdictional element . . . is only one method, and not *always* a
necessary one," by which Congress may ensure that statutes regulate
activities substantially affecting interstate commerce). In
[Groome]{.underline}, for example, in which the Fifth Circuit upheld the
constitutionality of the Fair Housing Act Amendments (FHAA), the court
held that the explicit economic nature of commercial rental housing made
the presence of an express jurisdictional element within the statute
unnecessary. [See]{.underline} [Groome]{.underline}, 234 F.3d at 211.
"\[T\]he requirement of a jurisdictional element . . . is relevant only
\[where there is\] no obvious interstate economic connection."
[Id.]{.underline}

Like the FHAA, Title I of the ADA does not contain an express
jurisdictional element, or at least no such element addressing
government employment.[^8] As discussed above, however, like the FHAA
Title I regulates a national market in a core economic activity, here
employment. Because the economic nature of the activity regulated by
Title I is so obvious, in this case the absence of a jurisdictional
element is not dispositive to the Commerce Clause analysis.

> C. [Congress Made Substantial Findings Regarding Effects Of Employment
> Discrimination On The Economy.]{.underline}

"Congress normally is not required to make formal findings as to the
substantial burdens that an activity has on interstate commerce."
[Lopez]{.underline}, 514 U.S. at 562. In enacting Title I of the ADA,
however, Congress did make such findings describing the effect of
employment discrimination on the national labor market and interstate
commerce. Specifically, Congress found that such discrimination excludes
persons with disabilities from the nation's workforce, which in turn
results in decreased national productivity and increased dependence upon
government benefit programs. These findings appear in the statute itself
and are grounded in its legislative history, both of which may be used
to "evaluate the legislative judgment that \[employment discrimination\]
substantially affected interstate commerce." [Id.]{.underline} at
562-63; [see also]{.underline} [Bird]{.underline}, 124 F.3d at 678 &
n.14. The ADA's formal findings state that "discrimination against
individuals with disabilities persists in such critical areas as
employment," 42 U.S.C. § 12101(a)(3); that "people with disabilities, as
a group, occupy an inferior status in our society, and are severely
disadvantaged . . . vocationally \[and\] economically,"
[id.]{.underline} at § 12101(a)(6); and that "the continuing existence
of unfair and unnecessary discrimination and prejudice . . . costs the
United States billions of dollars in unnecessary expenses resulting from
dependency and nonproductivity." [Id.]{.underline} at § 12101(a)(9).

The ADA's legislative history supports these Congressional findings on
the effects upon commerce of disability discrimination in the national
labor market. Committee reports include surveys indicating that, at the
time of the law's enactment, over sixty-five percent of adults with
disabilities, or as many as 12 million persons, were not working, and
that fifty percent of such adults had household incomes of \$15,000 or
less. [See]{.underline} S. Rep. No. 101-116, at 9 (1989) (reporting
results of Lou Harris poll). Testimony given in hearings and cited in
the reports invoked a rationale for the law based on the need for
increased national productivity.[^9] [See]{.underline},
[e.g.]{.underline}, H.R. Rep. No. 101-485, at 45 (statement of Robert
Mosbacher, Jr.) ("If we are to remain competitive as a nation in the
international marketplace, we must have a well trained, well educated
and highly motivated workforce. Millions of disabled Americans . . . are
well educated and can be easily trained. . . . \[and\] are some of the
most highly motivated people in our society today."); Hearings on S. 933
Before the Senate Comm. on Labor and Human Resources, 101^st^ Cong.
196-97 (1989) \[hereinafter Senate ADA Hearings\] (statement of Attorney
General Thornburgh) ("I think it is fair to say . . . if one were to
even take a look at this in a cold-hearted accounting sense, that the
availability of an increased work force and the greater productivity
that can ensue from our economy as a whole through opening up these
kinds of opportunity, provides reason in and of itself to pursue
this.").

Examination of the legislative history reveals similar evidence as to
the positive effect of Title I on markets in goods and services.
Legislators heard testimony stating that, although it was difficult to
quantify the exact economic cost or benefit of the legislation, ending
workplace disability discrimination would result in more persons with
disabilities working, in increased earnings, and in increased spending
on consumer goods. [See]{.underline} Senate ADA Hearings at 208-09
(testimony of Attorney General Thornburgh); [see also]{.underline} H.R.
Rep. No. 101-485(II), at 45 (1990) (statement of Jay Rochlin, Executive
Director, President's Committee on Employment of People with
Disabilities) ("Consider the economic impact of that simple
accommodation \[modification in employment policy\]. It enables Tina to
have a job which pays well. She owns both a home and a car and supports
her mother in addition to herself."). Congressional committees also
received testimony as to the billions of dollars spent annually by
federal, state, and local governments on disability benefits, lost
income tax revenues that could also presumably be spent in purchasing
interstate goods and services. [See]{.underline}, [e.g.]{.underline}, S.
Rep. 101-116, at 17 (1989) (statement of President George H.W. Bush).
Activity connected with employment relationships and so affecting the
production and consumption of goods to be sold in the marketplace may
clearly be regulated by Congress acting pursuant to its Commerce Clause
power.[^10] [See]{.underline}, [e.g.]{.underline}, [Darby]{.underline},
312 U.S. at 122-23; [Jones & Laughlin Steel]{.underline}, 301 U.S. at
38-40.

"Congressional findings, even if not explicitly reiterated in each
incarnation of the legislation, 'clearly subsist in the cumulative
memory of Congress.'" [Groome]{.underline}, 234 F.3d at 212 (quoting
[Knutson]{.underline}, 113 F.3d at 30). Here this collective memory
includes the accounting of the economic effects of employment
discrimination rendered not only in the ADA and its legislative history,
but also as part of the testimony given during enactment of Title VII of
the Civil Rights Act of 1964, which prohibited employment discrimination
based on race, sex, color, religion, and national origin.
[See]{.underline} [id.]{.underline} at 212-13 (discussing legislative
history of Fair Housing Act in context of upholding Fair Housing
Amendments Act under Commerce Clause); [cf.]{.underline}
[Wirtz]{.underline}, 392 U.S. at 189 (examining findings from
legislative history for Fair Labor Standards Act in upholding later
amendments to Act extending coverage under "enterprise" theory);
[Luna]{.underline}, 165 F.3d at 321. In hearings before the Senate
Subcommittee considering fair employment legislation in 1963, a Labor
Department official stated that the Gross National Product could rise by
2.5 percent, or \$17 billion, if the educational achievements of
nonwhite workers were fully utilized by prohibiting employment
discrimination. [See]{.underline} Equal Employment Opportunity: Hearings
on S. 773, S. 1210, S. 1211, and S. 1937 Before the Subcomm. on
Employment and Manpower of the Senate Comm. on Labor and Public Welfare,
88^th^ Cong. 116 (statement of Under Secretary of Labor John F.
Henning). Also included in the legislative record is a memorandum from
the Department of Labor on Title VII's constitutionality under the
Commerce Clause. [See]{.underline} [id.]{.underline} at 127. The
memorandum reviewed applicable Supreme Court labor law precedent and
concluded: "Since Congress, in the exercise of its power over interstate
commerce, can make it unlawful to discriminate because of union
membership and because of filing complaints or giving testimony under
the foregoing labor laws, it is clear that the Congress also has power
to prevent discrimination on the basis of race, color, religion, or
national origin."[^11] [Id.]{.underline} at 131.

> D. [The Effect Of Employment Discrimination On The Economy Is
> Nonattenuated.]{.underline}

"The existence of congressional findings is not sufficient, by itself,
to sustain the constitutionality of Commerce Clause legislation."
[Morrison]{.underline}, 529 U.S. at 614. Such findings are no
replacement for a rational conclusion by Congress that it needs to reach
economic conduct, even such conduct occurring intrastate, in order to
regulate an interstate market. [Kallestad]{.underline}, 236 F.3d at 229.
As discussed above, in this case Congress rationally concluded that
regulation of employment discrimination was necessary in order to
regulate the national markets in employment. When employers fail to
reasonably accommodate disabled employees, those employees have fewer,
and perhaps more geographically disparate, opportunities for gainful
employment. In turn, as the ADA findings cited above suggest, unemployed
persons with disabilities have less disposable income with which to
purchase goods and services moving through the interstate economy. The
substantial effects upon interstate commerce of the bar to participation
in the economy caused by employment discrimination are clear; it is
unnecessary to "pile inference upon inference" to see those effects, as
is the case with the prohibition of the possession of a firearm within a
school zone at issue in [Lopez]{.underline}, or regulation of
gender-related violence at issue in [Morrison]{.underline}, both
arguably noneconomic activities falling within the states' general
police power. [Compare]{.underline} [Groome]{.underline}, 234 F.3d at
214, [with]{.underline} [Lopez]{.underline}, 514 U.S. at 567,
[and]{.underline} Morrison, 529 U.S. at 615-17.

Courts may invalidate legislative enactments as exceeding the limits of
the affirmative commerce power only upon a plain showing that Congress
has exceeded its constitutional bounds. [See]{.underline}
[Morrison]{.underline}, 529 U.S. at 607. The analysis limned above
demonstrates clearly that Title I is valid Commerce Clause legislation.
In enacting these provisions of the ADA, Congress rationally concluded
that regulation of employment discrimination was necessary to advance
the national interest in the interstate and, indeed, international
markets in employment and in consumer goods and services. That this
economic regulation also has the goal of undermining discriminatory
social norms should not defeat its constitutionality. [See]{.underline}
[Hickman]{.underline}, 179 F.3d 230, 235-36 (Higginbotham, J.,
dissenting) (discussing [Heart of Atlanta Motel, Inc.]{.underline}, v.
[United States]{.underline}, 379 U.S. 241, 258 (1964)). This Court
should join those other courts that have found Title I to be valid
Commerce Clause legislation. [See]{.underline}, [e.g.]{.underline},
[Erickson]{.underline} v. [Board of Governors]{.underline}, 207 F.3d
945, 952 (7^th^ Cir. 2000); [State Police for Automatic Retirement
Assoc.]{.underline} v. [DiFava]{.underline}, No. CIV. A. 01-10053-PBS,
2001 WL 360549 at \*3 (D. Mass. Mar. 28, 2001).

II\. APPLICATION OF TITLE I TO THE DEFENDANT DOES NOT VIOLATE THE

TENTH AMENDMENT

Despite the Supreme Court's statement in [Garrett]{.underline} that
"Title I of the ADA . . . prescribes standards applicable to the
States," [see]{.underline} [Garrett]{.underline}, 121 S. Ct. at 968 n.9,
Defendant also raises a challenge to Title I based in the Tenth
Amendment. [See]{.underline} Def.'s Br. at 4, 6, 7 n.7. The Tenth
Amendment provides that \"\[t\]he powers not delegated to the United
States by the Constitution, nor prohibited by it to the States, are
reserved to the States respectively, or to the people.\" U.S. Const.
amend. X. "\[It\] confirms that the power of the Federal Government is
subject to limits that may, in a given instance, reserve power to the
States." [New York v. United States]{.underline}, 505 U.S. 144, 157
(1992). In this instance, Defendant apparently argues that application
of Title I to its employment of state troopers falls outside the outer
limits of the federal commerce power.

This argument must also fail. Congress may subject state governments to
federal laws applicable generally to both public and private entities,
[see]{.underline} [Condon]{.underline}, 528 U.S. at 151 (2000),
including laws governing employment relationships. [See]{.underline}
[Garcia]{.underline}, 469 U.S. at 554-57 (upholding application of Fair
Labor Standards Act to municipal agency); [cf.]{.underline}
[EEOC]{.underline} v. [Wyoming]{.underline}, 460 U.S. at 243 (reaching
same result regarding Age Discrimination in Employment Act). Title I of
the ADA is such a generally applicable law: it prohibits disability
discrimination in the employment practices of public and private
employers alike. Title I does not commandeer state legislatures to enact
its regulatory scheme. [Cf.]{.underline} [New York]{.underline}, 505
U.S. at 174-177; [ACORN v. Edwards]{.underline}, 81 F.3d 1387, 1392-94
(5^th^ Cir. 1996). Nor does it compel states "to assist in the
enforcement of federal statutes regulating private individuals."
[Condon]{.underline}, 528 U.S. at 151; [cf.]{.underline} [Printz v.
United States]{.underline}, 521 U.S. 898, 935 (1997). Application of the
ADA here is therefore consistent with the Tenth Amendment.

The Supreme Court's statements in [Garrett]{.underline} that Title I
prescribes standards applicable to the States, and that those standards
may be enforced by the United States in civil actions, suggest that it
has considered Defendant's Tenth Amendment argument and rejected it.
This Court should accordingly do the same.

CONCLUSION

For all of the reasons stated above, the United States submits that this
action should properly proceed.

Respectfully submitted,

JOHN ASHCROFT

Attorney General of the United States

JAMES B. TUCKER WILLIAM R. YEOMANS

United States Attorney Acting Assistant Attorney General

Southern District of Mississippi Civil Rights Division

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

CYNTHIA L. ELDRIDGE JOHN L. WODATCH, Chief

Assistant United States Attorney L. IRENE BOWEN, Deputy Chief

Office of the U.S. Attorney PHILIP L. BREEN, Special Legal Counsel

188 East Capitol Street, Suite 500 ALYSE S. BASS

Jackson, Mississippi 39201 LEWIS BOSSING

Attorneys

Disability Rights Section,

Civil Rights Division,

U.S. Department of Justice

P.O. Box 66738

Washington, D.C. 20035-6738

\(202\) 616-9511

June \_\_\_, 2001

[Certificate of Service]{.underline}

Notice is hereby given that the United States has served true and
correct copies of UNITED STATES' RESPONSE IN OPPOSITION TO THE
DEFENDANT'S MOTION TO DISMISS and UNITED STATES' MEMORANDUM IN
OPPOSITION TO THE DEFENDANT'S MOTION TO DISMISS by express mail upon
Defendant:

Mr. Rickey T. Moore

Office of the Attorney General

P.O. Box 220

Jackson, Mississippi 39205

Cynthia L. Eldridge, AUSA John L. Wodatch, Chief

Office of the U.S. Attorney L. Irene Bowen, Deputy Chief

188 East Capitol Street, Suite 500 Philip L. Breen, Special Legal
Counsel

Jackson, Mississippi 39201 Alyse S. Bass

Lewis Bossing

Attorneys

Disability Rights Section,

Civil Rights Division,

U.S. Department of Justice

P.O. Box 66738

Washington, D.C. 20035-6738

\(202\) 616-9511

June \_\_\_, 2001

[^1]: Mr. Collins has been in law enforcement for over twenty years. In
    1978, he joined the United States Army Reserves. In 1980, he became
    a corrections officer at the Mississippi State Penitentiary in
    Parchman, Mississippi. In 1988, he was employed as a police officer
    by the City of Drew, Mississippi. Mr. Collins currently works as an
    internal affairs investigator at the State Penitentiary.

[^2]: Although Defendant's Supplemental Memorandum In Support of Its
    Motion to Dismiss \[hereinafter Def.'s Mot.\] acknowledges that the
    present action is "brought pursuant to Title I of the Americans with
    Disabilities Act," [see]{.underline} Def.'s Mot. at 1, it also
    "submits that this Court should hold the ADA unconstitutional . . .
    in its entirety," [see]{.underline} [id.]{.underline} at 6, and
    cites cases expressly deciding only whether a regulation
    implementing Title II of the ADA properly abrogates state sovereign
    immunity. [See]{.underline} [id.]{.underline} at 4-5 (discussing
    [Brown]{.underline} v. [North Carolina Div. of Motor
    Vehicles]{.underline}, 166 F.3d 698 (4^th^ Cir. 1999) (deciding
    whether ADA regulation prohibiting public entities from charging fee
    for issuance of parking placards constitutionally abrogated state
    sovereign immunity), and [Neinast]{.underline} v. [State of
    Texas]{.underline}, 217 F.3d 275 (5^th^ Cir. 2000) (same)). Although
    it is an open question in the Fifth Circuit whether Title II of the
    ADA also covers employment discrimination, [see]{.underline}
    [Eber]{.underline} v. [Harris County Hosp. Dist.]{.underline}, 130
    F. Supp.2d 847, 851 n.1 (S.D. Tex. 2001) (citing
    [Decker]{.underline} v. [Univ. of Houston]{.underline}, 159 F.3d
    1355 (5^th^ Cir. 1998) (unpublished)), this Memorandum will address
    the only claim raised in the present action thus far, the United
    States' claim of employment discrimination pursuant to Title I.

[^3]: State and local governments are "covered entities."
    [See]{.underline} 42 U.S.C. § 12111(2), (5)(A), (7);
    [cf.]{.underline} [Fitzpatrick]{.underline} v. [Bitzer]{.underline},
    427 U.S. 445, 449 & n.2 (1976). [See also]{.underline}
    [infra]{.underline} note 8.

[^4]: Title I's definitions of the terms \"person\" and \"industry
    affecting commerce\" are taken from Title VII of the Civil Rights
    Act of 1964, 42 U.S.C. §§ 2000e [et]{.underline} [seq.]{.underline},
    which prohibits employment discrimination on the basis of race,
    color, religion, national origin, or sex. [See]{.underline} 42
    U.S.C. § 12111(7).

[^5]: [See]{.underline}, [e.g.]{.underline}, [Heart of Atlanta Motel,
    Inc.]{.underline} v. [United States]{.underline}, 379 U.S. 241, 250
    (1964) (holding Title II of Civil Rights Act of 1964 to be
    constitutional Commerce Clause legislation and stating that "we have
    therefore not considered the other grounds relied upon. This is not
    to say that the remaining authority upon which \[Congress\] acted
    was not adequate . . . but merely that since the commerce power is
    sufficient for our decision here we have considered it alone").

[^6]: Congress may also regulate the use of the channels of interstate
    commerce, and the instrumentalities of interstate commerce.
    [See]{.underline} [Morrison]{.underline}, 529 U.S. at 608-09.

[^7]: The Federal Arbitration Act is also a valid Commerce Clause
    enactment. [See]{.underline} [Prima Paint Corp.]{.underline} v.
    [Flood & Conklin Mfg. Co.]{.underline}, 388 U.S. 395, 405 (1967).

[^8]: To clarify: Title I prohibits disability discrimination in
    employment by employers having 15 or more employees, 42 U.S.C. §
    12111(2), (5)(A), and further defines employers as "person\[s\]
    engaged in an industry affecting commerce." [Id.]{.underline} at §
    12111(5)(A). But although the words "affecting commerce" have been
    called "jurisdictional words of art," [United States]{.underline} v.
    [Pierson]{.underline}, 139 F.3d 501, 503 (5^th^ Cir. 1998), the
    phrase "industry affecting commerce," as part of Title I's
    definition of "employer," does not provide for individualized
    analysis by a court of whether any particular government employer
    substantially affects commerce. Title I defines "person" to include
    governments and governmental agencies. [See]{.underline} 42 U.S.C. §
    12111(7) (citing 42 U.S.C. § 2000e(a)). It defines "industry
    affecting commerce" as "any activity, business, or industry in
    commerce or in which a labor dispute would hinder or obstruct
    commerce or the free flow of commerce . . . and further includes
    *any governmental industry, business, or activity*."
    [Id.]{.underline} at § 12111(7) (citing 42 U.S.C. §2000e(h))
    (emphasis added). Congress's incorporation of these terms into the
    definition of "employer" thus signals its intent to reach *all*
    government employers with 15 or more employees. Because the term
    "employer," so defined, does not provide for an individualized
    analysis of substantial effect on commerce, it does not function as
    a jurisdictional element of the sort described in
    [Lopez]{.underline}, [Bass]{.underline}, and [Luna]{.underline}.

[^9]: Although the Court in [Lopez]{.underline} rejected a "national
    productivity" rationale for federal regulation of gun possession in
    a school zone, it did so because it found the connection between
    such gun possession and economic activity to be too attenuated.
    [See]{.underline} [Lopez]{.underline}, 514 U.S. at 564. Because
    employment is itself economic activity, Title I's regulation of
    employment relationships is more clearly supported by arguments
    based on predicted increased national productivity.
    [See]{.underline} Part I.D. [infra]{.underline}.

[^10]: Furthermore, the ADA legislative history also contains arguments
    addressing the economic concerns of employers fearful of the high
    cost of providing reasonable accommodations, [see]{.underline} H.R.
    Rep. No.101-485 at 33-34 (statement of Jay Rochlin), suggesting that
    the discriminatory conduct the ADA seeks to prohibit is itself often
    directly motivated by commercial concerns. [Cf.]{.underline}
    [Gregg]{.underline}, 226 F.3d at 262. Were the ADA's federal
    regulatory scheme not in place, employers who could save money by
    not offering employees reasonable accommodations might possess an
    advantage over employers in neighboring states subject to disability
    discrimination laws; this is yet another potential substantial
    effect of employment discrimination upon interstate commerce.
    [Cf.]{.underline} [Darby]{.underline}, 312 U.S. at 122-23.

[^11]: Similarly, the legislative history of the Rehabilitation Act of
    1973, which contains a provision prohibiting discrimination on the
    basis of disability in programs or activities receiving federal
    financial assistance, [see]{.underline} 29 U.S.C. § 794, also
    includes testimony as to the effect on the economy of employment
    discrimination. [See]{.underline} Hearing on H.R. 17 before the
    Select Subcomm. on Education of the House Comm. on Education and
    Labor, 93^rd^ Cong. 77 (1973) (statement of John F. Nagle, Chief of
    the Washington Office, National Federation of the Blind) (applauding
    anti-discrimination provision as a means for disabled people "to
    attain a normal, productive and fulfilling life"); [id.]{.underline}
    at 37-38 (testimony of Stephen Kurtzman, Assistant Secretary for
    Legislation, U.S. Dep't of Health, Education, and Welfare) (noting
    that "resources invested today in preventing or reducing dependency
    can yield major long-term economies" because disabled person who
    might receive \$100,000 in public assistance payments over lifetime
    could, if working, pay taxes totaling \$42,000 over lifetime).