Federal Agency Flip-Flops on UN Treaty, Previous Problems Now Ignored

By Stefano Gennarini, J.D. | 2014

NEW YORK, June 27 (C-FAM) A federal agency is urging U.S. Senators to ratify a U.N. treaty while denying its own previous findings that ratification would require substantial changes in U.S. law.

According to a paper issued by the National Council for Disabilities in 2008, ratification would require “more rigorous implementation and additional actions by Congress” on 20 distinct provisions in the treaty. Once the treaty becomes binding it would require “careful review of existing law” and “legal reform,” the paper found.

Earlier this month, however, the same agency fell into line with the Obama administration and now says “no new legislation is required” by the convention if the Senate were to ratify it.

The agency now says ratifying the convention would benefit Americans at home and abroad. It has held this new position on the U.N. treaty since 2012 when the treaty first came up for ratification in the U.S. Senate and failed.

When President Bush was in the White House the agency’s position was more nuanced.

The 2008 paper did not urge ratification of the treaty, and actually cautions against it. It pointed to the serious legal implications of doing so, and suggested that merely signing the treaty, instead of ratifying it, would allow the U.S. to show support for the principles in the treaty without being bound by its provisions. President Obama signed the treaty in 2009.

Gaps between the treaty and U.S. law are not the only issue that the agency no longer sees as an obstacle.

The 2008 paper highlights inherent difficulties presented by the U.S. federal system to implementing the convention. The treaty deals with many subjects, like family law, and public health for which states are responsible under the U.S. Constitution, not the federal government.

Senators raised similar concerns during Senate hearings last fall in light of U.S. Supreme Court precedent that gives the President and Senate the power to expand federal authority beyond that entrusted to them by the Constitution through international treaties.

Under that precedent, ratification of the treaty could authorize Congress to enact laws on matters it currently could not lawfully touch. More worrying to some, the executive branch could issue orders and regulations touching on matters covered by the convention, but not by current U.S. disability laws.

The U.N. disabilities treaty is of particular concern because of its breadth of scope and its provisions are considered vague. Proponents of the treaty argue this allows the U.S. to claim it is already in compliance with the treaty. Others worry this could give the federal government more power.

A recent case before the Supreme Court offered the justices an opportunity to overrule that precedent, but the Court did not. Even so, the agency claims that the court removed “one of the stated obstacles” to the disabilities treaty.

The National Council on Disabilities advises the U.S. federal government on laws and policies affecting disabled persons. It is considered an independent federal agency, though all its 15 members are presidential appointees. The agency did not respond to requests for clarification from C-fam, publisher of the Friday Fax.

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