Does the ADA just enforce existing rights for prisoners?

Linda Greenhouse reports on the oral argument in a key federalism case -- United States v. Georgia -- about whether prisoners can sue the states for damages for violations of the Americans With Disabilities Act. This is another one of those cases where the question is whether Congress has successfully abrogated sovereign immunity. The answer depends on whether the statute fits the Fourteenth Amendment power -- that is, whether the law is a remedy for the violation of Fourteenth Amendment rights (as opposed to the creation of new rights).

The man in the case is a paraplegic confined to a 12 feet by 3 feet cell 23 to 24 hours a day, where he can't turn the wheelchair around and lacks adequate bathroom facilities. He says "that guards leave him sitting in his own waste rather than assist him."

Greenhouse observes that the Justices seemed to think that the ADA in this situation dealt with mistreatment that would also violate constitutional rights, so providing for suits for damages would be properly characterized as an appropriate Fourteenth Amendment remedy.

Chief Justice Roberts posed one of the first questions. "Are you suggesting that the A.D.A. just tracks the Constitution and doesn't add to the burden on state officials?" he asked [Solicitor General Paul] Clement.

There was at most a "narrow band" of actions that the law would require but that the Constitution did not demand, Mr. Clement replied. "The prophylactic gap here is not large," he added....

Samuel R. Bagenstos, a law professor at Washington University in St. Louis and a specialist in disability rights, represented the inmate and shared the government's side of the argument with Mr. Clement. Chief Justice Roberts addressed the same question to him, adding, "I'm just wondering if that's a reasonable reading of the A.D.A., which I had always understood to change the rights of the disabled."

Mr. Bagenstos replied that there was little difference in the specific context of prisons because "this is one of the few areas where the government has an affirmative constitutional duty."

Gregory A. Castanias, a Washington lawyer arguing for Georgia, said the inmate's claims in this case went well beyond constitutional requirements. Several justices then suggested that the law might be interpreted to apply only to constitutional violations. Justice Scalia asked, "To the extent that it includes constitutional violations, why isn't that lawsuit perfectly O.K.?"

This looks like a rather easy case, though Greenhouse portrays it as a big test of where the Roberts Court will go on federalism cases. It's very much like Tennessee v. Lane, the recent ADA case about access to courtrooms. Congress is beefing up remedies for existing rights, permitting lawsuits for damages. The reference to the "prophylactic gap" -- which must mystify laypersons -- is about proscribing behavior that the constitutional alone would permit. To some extent, defining additional violations is not really the creation of new rights, but is genuinely remedial of existing rights.

In the classic case, as characterized in later cases, the Voting Rights Act of 1965 proscribed various practices but did so as a way of controlling race discrimination, which, of course, violates the Fourteenth Amendment. So the rights prisoners have under the ADA may be more extensive than the Constitution alone gives them, but they could still be viewed as a way to enforce constitutional rights. Complicated, but it looks as though the prisoner will win.