Abstract

http://ssrn.com/abstract=1375684
 
 

Citations (1)



 
 

Footnotes (198)



 


 



The Genetic Information Nondiscrimination Act of 2008: A Case Study of the Need for Better Congressional Responses to Federalism Jurisprudence


Harper Jean Tobin


National Senior Citizens Law Center

April 9, 2009

Journal of Legislation, Forthcoming

Abstract:     
The Genetic Information Nondiscrimination Act of 2008 (GINA) is the first new civil rights statute enacted since the “federalism revolution” of 1995-2001, in which the Supreme Court announced new limitations on congressional authority. Among other things, these decisions invalidated civil rights remedies against states, declaring that Congress had failed to amass sufficient evidence of the need for legislation. Although passed in the shadow of these decisions, GINA’s limited legislative history makes it vulnerable to attack – potentially limiting its protections for millions of state employees. States will likely attack GINA on two grounds: first, that Congress relied only on its commerce power, and not its Fourteenth Amendment remedial power; and second, that Congress failed to identify a sufficient threat to constitutional rights to justify subjecting states to suit. While there are strong grounds for rejecting these challenges, that outcome is far from certain. The risk of invalidation might have been minimized had Congress developed the rationale for GINA’s extension to the states more thoroughly, or alternatively, required states to waive their immunity as a condition of federal grants. These strategies are illustrated by recent proposed civil rights legislation addressing sexual orientation discrimination and racial profiling, as well as by the Voting Rights Act Reauthorization Act of 2006, which is currently before the Supreme Court. To ensure the efficacy of future civil rights legislation, Congress should consistently tailor laws to withstand federalism challenges. Future laws should expressly invoke Congress’s authority and intent to create remedies against states; be accompanied by a strong and targeted legislative record; expressly require waiver of state immunity; and specifically enumerate remedies.

Number of Pages in PDF File: 48

Accepted Paper Series





Download This Paper

Date posted: April 9, 2009 ; Last revised: May 7, 2009

Suggested Citation

Tobin, Harper Jean, The Genetic Information Nondiscrimination Act of 2008: A Case Study of the Need for Better Congressional Responses to Federalism Jurisprudence (April 9, 2009). Journal of Legislation, Forthcoming. Available at SSRN: http://ssrn.com/abstract=1375684

Contact Information

Harper Jean Tobin (Contact Author)
National Senior Citizens Law Center ( email )
1444 I St. NW
Suite 1100
Washington, DC 20005
United States
Feedback to SSRN


Paper statistics
Abstract Views: 1,148
Downloads: 133
Download Rank: 129,188
Citations:  1
Footnotes:  198

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo1 in 0.281 seconds