IN THE UNITED STATES DISTRICT COURT
                         SOUTHERN DISTRICT OF ALABAMA
                              SOUTHERN DIVISION
VIRGIL LANCASTER,                  )
                                   )
                    Plaintiff      )
                                   )
v.                                 )    Civil Action No. 94-1016-BH-C
                                   )
CITY OF MOBILE, ALABAMA,           )
                                   )
                    Defendant      )

                     UNITED STATES' MEMORANDUM OF LAW
                IN SUPPORT OF THE CONSTITUTIONALITY OF THE
                      AMERICANS WITH DISABILITIES ACT

                              INTRODUCTION

     This is an employment discrimination case, brought pursuant
to Title I of the Americans with Disabilities Act ("ADA"), 42
U.S.C. SS 12101-17. Plaintiff Virgil Lancaster alleges that the
City of Mobile ("the City") discriminated against him on the
basis of his learning disability in its job application and
hiring processes. Specifically, Lancaster alleges that the City
failed to provide him with reasonable accommodations during its
written examination for the position of "body/paint mechanic,"
and that the City did not hire Lancaster for this position
because Lancaster failed the written examination.1
     On December 13, 1995, this Court directed the parties to
brief the question of whether the ADA is constitutional under the
Commerce Clause and the Fourteenth Amendment to the Constitution.
This Court subsequently certified the question of the ADA's
constitutionality to the Attorney General pursuant to 28 U.S.C.
S 2403, and granted the United States' motion to intervene as of
right. The United States demonstrates below that Congress
properly exercised its powers, under both the Fourteenth
Amendment and the Commerce Clause, in prohibiting disability
discrimination by local government employers under Title I of the
ADA.2
______________________

     1 Title I of the ADA requires public employers to provide
reasonable accommodations for the known disabilities of job
applicants, including the "appropriate adjustment or
modifications of examinations." 42 U.S.C. SS 12111 (9)(B);
12112 (a); 12112 (5) (A). Providing an oral, rather than written,
examination to an otherwise qualified job applicant with a
learning disability is the type of accommodation required under
the statute unless the employer can show that this would impose
an "undue hardship." 42 U.S.C. S 12112(5)(A). Cf. Stutts v.
Freeman, 694 F.2d 666 (11th Cir. 1983) (suit under Section 504 of
the Rehabilitation Act, 29 U.S.C. S 794) (failure to hire
dyslexic individual for position of heavy equipment operator,
because of applicant's failure to pass written examination,
without provision of alternative oral exam or adjustment of entry
requirements that would have accommodated applicant's dyslexia,
discriminates on the basis of disability).
     2 In order to uphold the constitutionality of Title I, the
Court need not reach the Commerce Clause issue, if it finds the
statute authorized under the Fourteenth Amendment.
                                   -2-
                                 ARGUMENT

I.   THE AMERICANS WITH DISABILITIES ACT

     The Americans with Disabilities Act, 42 U.S.C. S 12101 et
seq., is Congress' most extensive piece of civil rights
legislation since the Civil Rights Act of 1964. Its purpose is
to provide "a clear and comprehensive national mandate for the
elimination of discrimination against individuals with
disabilities." 42 U.S.C. S 12101(b)(1). The ADA's coverage is
accordingly broad -- prohibiting discrimination on the basis of
disability in employment, State and local government programs and
services, transportation systems, telecommunications, commercial
facilities, and the provision of goods and services offered to
the public by private businesses.
     In enacting the ADA, Congress explicitly invoked "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." 42 U.S.C. S 12101(b)(4). This case
concerns Title I of the ADA, 42 U.S.C. SS 12101-17, which
prohibits disability discrimination by private and public
employers. 42 U.S.C. SS 12111(5)(A), 12112(a). Because the
Defendant in this action is a city employer, this memorandum
addresses only the constitutionality of Title I's provisions with
respect to such employers. As set forth below, both the
Fourteenth Amendment and the Commerce Clause provide authority
for Congress to enact these provisions.
                                   -3-
II   TITLE I OF THE ADA IS A VALID EXERCISE OF CONGRESS' POWER TO
     REMEDY DENIALS OF EQUAL PROTECTION PURSUANT TO SECTION 5 OF
     THE FOURTEENTH AMENDMENT

     A. Congress' Section 5 Powers Are Broad

     Section 5 of the Fourteenth Amendment grants Congress the
"power to enforce, by appropriate legislation, the provisions of
the Fourteenth Amendment," including those barring the states
from depriving citizens of "equal protection of the laws." U.S.
Const. Am. 14, S 5. It is well established that Congress'
authority under the Fourteenth Amendment includes the power to
reach the conduct not only of States, but of local governments,
such as the City of Mobile. See, e.g., Lombard v. Louisiana, 373
U.S. 267, 273 (1963); The Civil Rights Cases, 109 U.S. 3 (1883);
Ex Parte Virginia, 100 U.S. 339 (1880).3
     Section 5 authorizes Congress not only to provide remedies
for violations of the Fourteenth Amendment, but also to amplify
its substantive protections. Katzenbach v. Morgan, 384 U.S. 641,
648-49 (1966); cf. City of Richmond v. J.A. Croson Co., 488 U.S.
469, 490 (1989) (O'Connor, J., concurring and
dissenting) (Congress' power to enforce the Fourteenth Amendment
includes "the power to define situations which Congress
determines threaten principles of equality and to adopt
___________________

     3 See also Rotunda & Nowak, Treatise on Constitutional Law:
Substance and Procedure, 2nd ed. S 16.1, at 524:
     . . . actions of any governmental entity give rise to
     state action for the purposes of constitutional
     limitations. Any subdivision of a state, . . .such as
     a city, represents government or state authority to a
     sufficient degree to invoke constitutional restrictions
     on its actions.
                                   -4-
prophylactic rules to deal with those situations"). The Federal
courts, in a variety of contexts, have upheld legislation under
Section 5 that created broader rights than the Constitution
itself mandates.
     For example, in Katzenbach v. Morgan, 384 U.S. 641, the
Supreme Court held that Congress had authority to bar the states
from requiring literacy tests of persons who had attained a sixth
grade education in Puerto Rico, even though the Court had
previously ruled in Lassiter v. Northampton County Bd. of
Elections, 360 U.S. 45, 53-54 (1959), that a state's use of
literacy tests does not deny equal protection. The Court
reasoned that Congress could prohibit such tests to protect
against what Congress found to be a denial of equal protection,
the judiciary's more limited view of equal protection
notwithstanding. Morgan, 384 U.S. at 649, 652. The Court
explained that Section 5 does not "confine the legislative power
. . .to the insignificant role of abrogating only those state
laws that the judicial branch was prepared to adjudge
unconstitutional," id. at 648-649, but rather grants it broad
power to "extend[]" the protections provided by the Constitution.
Id. at 657.4
_________________

     4 See also Flores v. City of Boerne, 73 F.3d 1352, 1358-61
(5th Cir. 1996)(upholding enactment of the Religious Freedom
Restoration Act, 42 U.S.C. S 2000bb et seq., as valid exercise of
Congress' Section 5 powers, despite the Supreme Court's holding
in Employment Div., Dep't of Human Resources v. Smith, 494 U.S.
872 (1990), reh'g denied, 496 U.S. 913 (1990), that the First
Amendment does not bar application of a facially neutral,
generally applicable law to religiously motivated conduct);
Ramirez v. Puerto Rico Fire Service, 715 F.2d 694 (1st Cir. 1983)
                                   -5-
     There is thus no merit to the City's suggestion that Section
5 of the Fourteenth Amendment empowers Congress only to enact
legislation redressing race discrimination. See Defendant's
Supplemental Brief in Support of Summary Judgment at 18. The
Equal Protection Clause itself has never been so narrowly
construed. The Equal Protection Clause is "essentially a
direction that all persons similarly situated should be treated
alike." City of Cleburne v. Cleburne Living Center, 473 U.S.
432, 439 (1985), citing Plyler v. Doe, 457 U.S. 202, 216 (1982).
Indeed, the Supreme Court, using various levels of scrutiny, has
held that the Clause prohibits discrimination on the basis of,
inter alia, sex,5 national origin,6 alienage,7 disability,8
poverty,9 illegitimacy,10 length of residency,11 property
____________________

(upholding the Age Discrimination in Employment Act, 29 U.S.C. S
626(b), as a valid exercise of Congress' Section 5 powers despite
the Supreme Court's holding in Massachusetts Bd. of Retirement v.
Murgia, 427 U.S. 307 (1976), that a state mandatory retirement
law did not violate the Equal Protection Clause); E.E.O.C. v.
Elrod, 674 F.2d 601, 608-09 n.6 (7th Cir. 1982)(same).
     5 See, e.g., Craig v. Boren, 429 U.S. 190 (1976); Frontiero
v. Richardson, 411 U.S. 677 (1973).
     6 See, e.g., Oyama v. California, 332 U.S. 633 (1948).
     7 See, e.g., Plyler, 457 U.S. 202; Graham v. Richardson,
403 U.S. 365 (1971).
     8 See, e.g., Cleburne, 473 U.S. 432.
     9 See, e.g., Griffin v. Illinois, 351 U.S. 12 (1956).
     10 See, e.g., Mills v. Habluetzel, 456 U.S. 91 (1982);
Matthews v. Lucas, 427 U.S. 495 (1976).
     11 See, e.g., Zobel v. Williams, 457 U.S. 55 (1982).
                                   -6-
ownership, and living in a household of unrelated persons.13
Moreover, as the cases collected in footnote 4, supra,
demonstrate, Congress has power under Section 5 of the Fourteenth
Amendment to enact legislation providing for broader rights than
the Amendment itself secures directly.

     B.   As Applied to State and Local Government Employers,
          Title I of the ADA Is A Valid Exercise Of Congress'
          Section 5 Powers 14

     In examining congressional authority to legislate under
Section 5, the proper focus is on whether the legislation is
"appropriate legislation" under the Amendment, rather than
whether the conduct prohibited in the legislation specifically
violates the Equal Protection Clause or other provisions of the
Amendment. Morgan, 384 U.S. at 648-9. In determining whether a
statute is properly within Congress' power, judicial review is
limited to determining "whether [the statute] may be regarded as
an enactment to enforce the Equal Protection Clause, whether it
is 'plainly adapted to that end' and whether it is not prohibited
by but is consistent with 'the letter and spirit of the
constitution.'" Id. at 651 (quoting McCulloch v. Maryland, 17
U.S. (4 Wheat.) 316, 421 (1819) (footnote omitted)).
___________________

     12 See, e.g., Quinn v. Millsap, 491 U.S. 95 (1989).
     13 See, e.g., United States Dep't of Agriculture v. Moreno,
413 U.S. 528 (1973).
     14 The only question before this Court is whether Congress
has the authority to reach the discriminatory conduct of public
-- not private -- employers under Title I of the ADA.
                                   -7-
          1.   As Applied to State and Local Government
               Employers, Title I of the ADA is "Appropriate
               Legislation" to Enforce the Fourteenth Amendment

     As applied to public employers, Title I of the ADA is
unquestionably "appropriate legislation" to enforce the Equal
Protection Clause. First, Title I certainly "may be regarded as
an enactment to enforce the Equal Protection Clause." Indeed, in
enacting Title I, Congress specifically invoked its "power to
enforce the fourteenth amendment." 42 U.S.C. S 12101(b) (4).
Congress also formally found, inter alia, that:
     . . .(2) historically, society has tended to isolate and
     segregate individuals with disabilities, and, despite some
     improvements, such forms of discrimination against
     individuals with disabilities continue to be a serious and
     pervasive social problem;
          (3) discrimination against individuals with
     disabilities persists in such critical areas as employment,
     . . . ;
          (4) unlike individuals who have experienced
     discrimination on the basis of race, color, sex, national
     origin, religion, or age, individuals who have experienced
     discrimination on the basis of disability have often had no
     legal recourse to redress such discrimination; . . .
          (7) individuals with disabilities are a discrete and
     insular minority who have been faced with restrictions and
     limitations, subjected to a history of purposeful unequal
     treatment, and relegated to a position of political
     powerlessness in our society, based on characteristics that
     are beyond the control of such individuals and resulting
     from stereotypic assumptions not truly indicative of the
     individual ability of such individuals to participate in,
     and contribute to, society;
          (8) the Nation's proper goals regarding individuals
     with disabilities are to assure equality of opportunity,
     full participation, independent living, and economic self-
     sufficiency for such individuals. . . .
42 U.S.C. S 12101(a). As applied to public employers, the
prohibition of arbitrary, discriminatory employment decisions,
                                   -8-
based not on an individual's ability to perform a job, but on
misperceptions and stereotypic assumptions concerning what
members of a class can and cannot do, is the very essence of
equal protection guarantees.15
     Second, title I of the ADA is "plainly adapted" to
furthering the aims of the Equal Protection Clause. Title I
ensures that persons with disabilities are provided equal
employment opportunities and are protected from discriminatory
government conduct. The statute specifically prohibits
discrimination by public employers against qualified individuals
with disabilities in job application procedures; the hiring or
discharge of employees; employee compensation; advancement; job
training; and other terms, conditions, and privileges of
employment. 42 U.S.C. S 12112(a).16
     Finally, Title I "is not prohibited by but is consistent
with the 'letter and spirit of the constitution.'" Title I
protects a class of individuals vulnerable to disparate and
adverse treatment by State and local government employment
____________________

     15 Cf. Ramirez v. Puerto Rico Fire Service, 715 F.2d 694,
699-700 (1st Cir. 1983) (Age Discrimination in Employment Act may
be regarded as an enactment to enforce the Equal Protection
Clause); E.E.O.C. v. County of Calumet, 686 F.2d 1249, 1252-53
(7th Cir. 1982) (same); Scott v. City of Anniston, 597 F.2d 897,
900 (5th Cir. 1979) (Title VII of the 1964 Civil Rights Act may
be regarded as an enactment to enforce the Equal Protection
Clause), cert. denied, 446 U.S. 917 (1980); United States v. New
Hampshire, 539 F.2d 277, 280-81 (1st Cir. 1976) (same), cert.
denied, 429 U.S. 1023 (1976).
     16 Cf. Ramirez, 715 F.2d at 699-70; County of Calumet, 686
F.2d at 1252-53; Scott, 597 F.2d at 900; New Hampshire, 539 F.2d
at 280-81.
                                   -9-
practices, while not requiring employers to hire individuals who
are not "otherwise qualified," i.e., those who cannot perform the
"essential functions of the job," 42 U.S.C. SS 12111(8),
12112(a), 12112(b)(5)(A), or those who pose a "significant risk
to the health or safety of others." 42 U.S.C. SS 12111(3),
12113(a), 12113(b). As such, the Act is tailored to the
traditional Equal Protection goal of protecting a discrete class
of individuals from arbitrary and capricious action by the State,
and thus is a valid exercise of Congress' Section 5 powers.17

     2.   Case Law Regarding Earlier Civil Rights Statutes
          Further Supports the Conclusion that Congress had
          the Authority to Enact Title I Under the
          Fourteenth Amendment

     To the best of the government's knowledge, this is the first
case in which the constitutionality of Title I has been drawn
into question.18 With respect to Title I, case law under earlier
civil rights statutes supports the argument that Congress
__________________

     17 Cf. Ramirez, 715 F.2d at 699-70; County of Calumet, 686
F.2d at 1252-53; Scott, 597 F.2d at 900; New Hampshire, 539 F.2d
at 280-81.
     18 Three courts have rejected constitutional challenges to
Title III of the Act, 42 U.S.C. SS 12181-89, which prohibits
disability discrimination in privately owned places of public
accommodation and commercial facilities. See Abbott v. Bragdon,
912 F. Supp. 580, 592-94 (1995) (upholding Title III's
application to a private dental practice); United States v.
Morvant, 898 F. Supp. 1157, 1167 (E.D. La. 1995)(same); Pinnock
v. International House of Pancakes Franchisee, 844 F. Supp. 574,
579 (S.D.Cal. 1993)(upholding Title III's application to a
restaurant), cert. denied, 114 S. Ct. 2726 (1994). Title III was
enacted pursuant to Congress' power under the Commerce Clause.
Abbott specifically considered and rejected the argument that
Title III exceeded Congress' authority under the Commerce Clause.
under the standards set forth in United States v. Lopez, 115 S.
Ct. 1624 (1995). Abbott, 912 F. Supp. at 592-94.
                                   - 10 -
properly invoked its authority under the Fourteenth Amendment to
prohibit disability-based employment discrimination by State and
local governments.
     It is well established that the 1972 amendments to Title
VII, which extended that statute's coverage to State and local
government employers, are properly grounded in Section 5.
Fitzpatrick v. Bitzer, 427 U.S. 445, 453-56, & 453 n.9 (1976).
See also Freeman v. Michigan Dep't of State, 808 F.2d 1174, 1177
(6th Cir. 1987); Scott v. City of Anniston, 597 F.2d 897, 900
(5th Cir. 1979), cert. denied, 446 U.S. 917 (1980); United States
v. Gregory, 818 F.2d 1114, 1119 (4th Cir. 1987), cert. denied 484
U.S. 847 (1987); Shawer v. Indiana University of Pennsylvania,
602 F.2d 1161, 1163-64 (3d Cir. 1979); United States v. New
Hampshire, 539 F.2d 277, 280-81 (1st Cir. 1976), cert. denied,
429 U.S. 1023 (1976). Just as Title VII's coverage of State and
local governments is a valid exercise of Congress' Section 5
powers, so too is Title I's, whose enforcement provisions are
directly patterned after Title VII. See H.R. Rep. No. 485, 101st
Cong., 2d Sess., pt. 3 at 31, 48 (1990).19
     A similar analysis was considered and adopted by the courts
in determining whether the Age Discrimination in Employment Act
(ADEA), 29 U.S.C. SS 521 et seq., was a valid exercise of
Congress' Section 5 powers in prohibiting discrimination by
____________________

     19 Indeed, in discussing Title I's enforcement provisions,
Congress stated that the ADA's prohibitions are "designed to
provide civil rights protections for persons with disabilities
parallel to those available to minorities and women." H.R. Rep.
No. 485, 101st Cong., 2d Sess., pt. 3 at 48 (1990).
                                   - 11 -
public employers. The courts noted ADEA's similarities to Title
VII and found that prior rulings upholding Title VII's
constitutionality were persuasive authority for upholding ADEA as
well. See Ramirez v. Puerto Rico Fire Service, 715 F.2d 694, 700
(1st Cir. 1983); E.E.O.C. v. County of Calumet, 686 F.2d 1249,
1253 (7th Cir. 1982); E.E.O.C. v. Elrod, 674 F.2d 601, 607 (7th
Cir. 1982); Arritt v. Grisell, 567 F.2d 1267, 1270-71 (4th Cir.
1977). As the First Circuit stated: "The striking substantive
similarity between the two acts militates strongly in favor of
the conclusion that the identical reservoir of congressional
power was the well-spring for both." Ramirez, 715 F.2d at 700.
     Further support for Title I's constitutionality can be found
in the constitutionality of Section 504 of the Rehabilitation Act
("Section 504"), 29 U.S.C. S 794, which prohibits discrimination
on the basis of disability by programs and activities receiving
federal financial assistance. The substantive provisions of
Title I are modeled after Section 504. H.R. Rep. No. 485, 101st
Cong., 2d Sess., pt. 3 at 31 (1990). The Supreme Court has noted
that Section 504 also was enacted pursuant to Congress'
enforcement authority under the Fourteenth Amendment. See Welch
v. Texas Dep't of Highways & Public Transp., 483 U.S. 468, 472
n.2 (1987), citing Atascadero State Hosp. v. Scanlon, 473 U.S.
234, 244 n.4 (1985).
                                   - 12 -
III  TITLE I OF THE ADA IS A VALID EXERCISE OF CONGRESS' POWER TO
     REGULATE COMMERCE

     In enacting Title I, Congress also invoked its authority
under the Commerce Clause. 42 U.S.C. S 12101(b)(4). Because
Title I's coverage of State and local governments falls well
within Congress' power to enforce the Fourteenth Amendment, it is
unnecessary for this Court to address the question of whether
Title I is also a constitutional exercise of Congress' power to
regulate commerce. Cf. E.E.O.C. v. Wyoming, 460 U.S. 226, 243
(1983). The Supreme Court, however, has held that the Commerce
Clause affords Congress independent authority to prohibit
discriminatory conduct by public employers. Wyoming, 460 U.S. at
243 (application of ADEA to State and local government employers
is valid exercise of Congress' commerce powers and does not
violate Tenth Amendment; no need to determine whether ADEA is
also valid exercise of Congress' Section 5 powers).20
_____________________

     20 In its recent decision in Seminole Tribe of Florida v.
Florida, 116 S.Ct. 1114 (1996), the Supreme Court indicated that
Congress enjoys greater power under the Fourteenth Amendment vis-
a-vis States than it does under the Commerce Clause. Id. at
1125, 1128, 1131. The Court, citing Fitzpatrick, recognized
Congress' power under the Fourteenth Amendment to abrogate the
States' Eleventh Amendment immunity, but expressly overruled
Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989), in which a
plurality had ruled that Congress could also abrogate Eleventh
Amendment immunity of the States in Commerce Clause legislation.
Id. at 1128. Seminole has no application in this case, however,
because cities do not enjoy Eleventh Amendment immunity. Mt.
Healthy City School District Bd. of Educ. v. Doyle, 429 U.S. 274,
280 (1977).
                                   - 13 -
     A.   Title I of the ADA Reaches Only Those Employers that
          are Engaged in Industries Affecting Commerce and Thus
          is Within the Scope of Congress' Commerce Authority

     As the Supreme Court recently reaffirmed in United States v.
Lopez, 115 S. Ct. 1624 (1995), the Commerce Clause, U.S. Const.,
Art. I, S 8, cl. 3, empowers Congress to: (1) regulate the use of
the channels of interstate commerce; (2) "regulate and protect
the instrumentalities of interstate commerce, or persons or
things in interstate commerce;" and (3) regulate or prohibit
"activities that substantially affect interstate commerce."
115 S. Ct. at 1629-30. "Where economic activity substantially
affects interstate commerce, legislation regulating that activity
will be sustained." Id. at 1630 (citations omitted).
     The jurisdictional provisions of Title I ensure that the
statute reaches only those activities that substantially affect
interstate commerce. Specifically, application of Title I is
limited to those employers "engaged in an industry affecting
commerce." 42 U.S.C. S 12111(5)(A). Title I incorporates the
definitions of "commerce" and "affecting commerce" found in Title
VII of the 1964 Civil Rights Act. 42 U.S.C. S 12111(7).21
_______________________

     21 See 42 U.S.C. SS 2000e(g), 2000e(h):
          The term "commerce" means trade, traffic,
     commerce, transportation, transmission, or
     communication among the several States; or between a
     State and any place outside thereof; or within the
     District of Columbia, or a possession of the United
     States; or between points in the same State but through
     a point outside thereof.
          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
                                   - 14 -
     After considering similar jurisdictional language in the
National Labor Relations Act, 29 U.S.C. S 151 et seq., the
Supreme Court held that that statute was a valid exercise of
Congress' Commerce Clause powers. NLRB v. Jones & Laughlin Steel
Corp., 301 U.S. 1, 31 (1937). Specifically, the Court held that
the authority granted to the National Labor Relations Board --
namely, the authority to prevent unfair labor practices that
"affect commerce":
     reach[es] only what may be deemed to burden or obstruct that
     commerce and, thus qualified, it must be construed as
     contemplating the exercise of control within constitutional
     bounds. It is a familiar principle that acts which directly
     burden or obstruct interstate or foreign commerce, or its
     free flow, are within the reach of congressional power.
Id.
     The Court in Lopez cited with approbation Jones & Laughlin
Steel Corp., as well as other cases upholding the validity of
statutes containing jurisdictional requirements such as
Title I's. Lopez, 115 S. Ct. at 1628-29, 1631. As the Court
noted, such jurisdictional elements "ensure, through case-by-case
inquiry, that the [activity] in question affects interstate
commerce." Id. at 1631.
_________________________

     the free flow of commerce and includes any activity or
     industry "affecting commerce" within the meaning of the
     Labor-Management Reporting and Disclosure Act of 1959,
     and further includes any governmental industry,
     business or activity.
See also Polish Nat'l Alliance of the United States of North
America v. NLRB, 322 U.S. 643, 647 (1944) (when Congress "wants
to bring aspects of commerce within the full sweep of its
constitutional authority, it manifests its purpose by regulating
not only 'commerce' but also matters which 'affect,' interrupt,'
or 'promote' interstate commerce").
                                   - 15 -
     Moreover, the Eleventh Circuit has recognized that cities,
such as the City of Mobile, are "engaged in [industries]
affecting commerce." See, e.g., Williams v. City of Montgomery,
742 F.2d 586, 588-89 (11th Cir. 1984)(City of Montgomery is an
"employer" within the meaning of Title VII), cert. denied, 470
U.S. 1053 (1985); Dumas v. Town of Mt. Vernon, Alabama, 612 F.2d
974, 979 (5th Cir. 1980) (Town of Mt. Vernon is an "employer"
within the meaning of Title VII). Thus, Title I of the ADA, like
the National Labor Relations Act, is a valid exercise of
Congress' Commerce Clause powers, both on its face and as applied
to the facts of this case.

     B.   Title I of the ADA Proscribes Conduct That Congress
          Rationally Found Substantially Affects Interstate
          Commerce, and Thus is Within the Scope of Congress'
          Commerce Authority

     Congressional findings further support the conclusion that
Title I is a valid exercise of Congress' commerce powers. The
Court has held that in determining whether a federal statute may
be sustained as a proper exercise of Congress' Commerce Clause
power, courts "must defer to a congressional finding that a
regulated activity affects interstate commerce if there is any
rational basis for such a finding." Hodel v. Virginia Surface
Mining & Reclamation Ass'n Inc., 452 U.S. 264, 276 (1981)
(emphasis added). Courts may look to statutory findings, as well
as congressional committee findings, to assess the rationality of
Congress' conclusions. Lopez, 115 S. Ct. at 1631-1632;
Katzenbach v. McClung, 379 U.S. 294, 299, 304 (1964) (noting that
Congress is not required to make formal findings). Once the
                                   - 16 -
court "find[s] that the legislators, in light of the facts and
testimony before them, have a rational basis for finding a chosen
regulatory scheme necessary to the protection of commerce, [its]
investigation is at an end." McClung, 379 U.S. at 303-304 (cited
with approval in Virginia Surface Mining & Reclamation Ass'n, 452
U.S. at 276).
     In enacting Title I, Congress specifically found that
disability-based discrimination adversely affects the national
economy:
          (9) the continuing existence of unfair and unnecessary
     discrimination and prejudice denies people with disabilities
     the opportunity to compete on an equal basis . . . and costs
     the United States billions of dollars in unnecessary
     expenses resulting from dependency and nonproductivity.
42 U.S.C. S 12101(a).
     Indeed, the record of the ADA's passage is replete with
testimony concerning the specific burdens that disability-based
employment discrimination places on interstate commerce. See
S. Rep. No. 116, 101st Cong., 1st Sess. (1989); H.R. Rep. No.
485, 101st Cong. 2d Sess., pt. 2 (1990); H.R. Rep. No. 485, 101st
Cong. 2d Sess., pt. 3 (1990); see also 136 Cong. Rec. E1913-01
(daily ed. May 22, 1990) (statement of Rep. Hoyer). This
testimony includes the fact that millions of persons with
disabilities who want to work and who are able to work have been
excluded discriminatorily from the workforce; that even those who
do work earn incomes significantly less than those of their non-
disabled counterparts; that employment discrimination makes
persons with disabilities dependent on social welfare programs
                                   - 17 -
and thus costs society billions of dollars annually in support
payments; that elimination of employment discrimination will
result in increased spending on consumer goods and increased tax
revenues; that persons with disabilities comprise a pool of
educated and talented workers necessary to offset potential
upcoming labor shortages; and that the employment of persons with
disabilities is essential if the nation is to remain competitive
in the international marketplace. S. Rep. No. 116, 101st Cong.,
1st Sess. at 16-18 (1989); H.R. Rep. No. 485, 101st Cong. 2d
Sess., pt. 2, at 32-34, 43-45 (1990).
     Similar effects on interstate commerce have been upheld by
the Supreme Court as legitimate bases for Congress' exercise of
its commerce powers. See, e.g., Fry v. United States, 421 U.S.
542, 547 (1975) (increased purchasing power resulting from
increased wages); Perez v. United States, 402 U.S. 146, 156
(1971) (loss of income and employment resulting from extortionate
credit transactions); Maryland v. Wirtz, 392 U.S. 183, 195 (1968)
(changing competitive positions in marketplace resulting from
decreased wages and substandard labor conditions), overruled on
other grounds, National League of Cities v. Usery, 426 U.S. 833
(1976), overruled by Garcia v. San Antonio Metro. Transit
Authority, 469 U.S. 528 (1985); McClung, 379 U.S. at 299
(diminished spending resulting from race discrimination); Heart
of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 252-53
(1964) (diminished travel resulting from race discrimination);
Wickard v. Filburn, 317 U.S. 111, 128 (1942) (changing market
                                   - 18 -
conditions resulting from individual consumption of food
products).
     Lopez does not change this analysis. At issue in Lopez was
the Gun-Free School Zones Act, which forbade the possession of
firearms in a school zone, and which the Court ruled exceeded
Congress' Commerce Clause power. The Lopez decision, however,
specifically reaffirmed the validity of the Court's previous
Commerce Clause decisions. Lopez, 115 S. Ct. at 1634. See id. at
1637 (Kennedy, J. and O'Connor, J., concurring)(affirming
Commerce Clause precedent in the area of discrimination, and the
principle that "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"). Of particular concern in
Lopez was the fact that the School Zones Act was a criminal
statute, typically a subject of State and local, not federal
legislation, id. at 1631 n.3, 1632, and "by its terms ha[d]
nothing to do with 'commerce' or any sort of economic enterprise
however broadly one might define those terms." Id. at 1630-31.
     By contrast, as explained above, Title I of the ADA deals
with commercial actors, public and private employers. Moreover,
"the design of the statute ha[s] an evident commercial nexus,"
id. at 1640; it ensures access to employment, and is designed to
ensure equality of opportunity and economic self-sufficiency to a
significant sector of the national economy. Thus, in contrast to
Lopez, where neither the prohibited conduct (possession of a gun
near schools), nor its immediate effect (increase in violence in
                                   - 19 -
schools) was commercial, the immediate effect of the prohibited
conduct here is a burden to commercial transactions. Prohibition
of employment discrimination on the basis of disability is thus
well within Congress' power to protect and foster commerce.
Lopez, 115 S. Ct. at 1630.22

                              CONCLUSION

     For the reasons set forth above, Title I of the ADA should
be sustained as a valid exercise of Congress' powers under the
Fourteenth Amendment and the Commerce Clause.

                                        Respectfully submitted,

J. DON FOSTER                           DEVAL L. PATRICK
United States Attorney                  Assistant Attorney General
Southern District of Alabama            Civil Rights Division


                                        (Signature)
                                        JOHN L. WODATCH
                                        JOAN A. MAGAGNA
                                        SHARON N. PERLEY
                                        Attorneys
                                        Disability Rights Section
                                        Civil Rights Division
                                        U.S. Department of Justice
                                        P.O. Box 66738
                                        Washington, D.C. 20035-6738
                                        (202) 514-6016

__________________________

     22The Eleventh Circuit recently rejected a Lopez challenge
to the Freedom of Access to Clinic Entrances Act ("Access Act"),
18 U.S.C. S 248. Cheffer v. Reno, 55 F.3d 1517 (11th Cir. 1995).
The Court held that even after Lopez, Congress' findings "provide
a rational basis for concluding that the Access Act regulates
activity [the provision of reproductive health services] which
'substantially affects' interstate commerce," and that "the
Access Act is a constitutional exercise of Congress' power under
the Commerce Clause." Id. at 1521.
                                   - 20 -
                            CERTIFICATE OF SERVICE

     I, the undersigned, attorney for the United States of
America, do hereby certify that I have served upon all counsel in
this matter, by first class mail on May 16, 1996, a true and
correct copy of the foregoing United States' Memorandum of Law in
Support of the Constitutionality of the Americans with
Disabilities Act.

SO CERTIFIED this 16th day of May, 1996.


                                        (Signature)
                                        SHARON N. PERLEY
                                        United States Department of Justice
                                        Civil Rights Division
                                        Disability Rights Section
                                        P.O. Box 66738
                                        Washington, D.C. 20035-6738
                                        (202) 514-6016