Bagenstos on the New Congress and the ADA

After taking some time off from blogging to do some real law work, Sam Bagenstos (Washington University) has returned to posting pieces on the Disability Law Blog.  Of note, yesterday he posted an insightful take on the impact the new Democratic Congress might have on disability law (which, by extension, may have significant ramifications for employment discrimination law) .

Here is some of what Sam has to say:

Even before the elections last week, the momentum was beginning to shift. In late September, Representative Sensenbrenner (then the Chair of the House Judiciary Committee) introduced a bill, cosponsored by Representatives Conyers and Hoyer, that would reverse the Court's definition-of-disability decisions. And in August Senator DeWine, facing a tough reelection fight, introduced a bill that would reverse the Garrett sovereign immunity decision (a bill that was functionally equivalent to a proposal that had been made by Senator Leahy some years back). And my purely impressionistic sense is that many folks in the disability community who had previously feared reopening the ADA had ultimately come to the conclusion that judicial decisions had so hamstrung the statute that taking that course was now worth the risk.

So the natural question is what effect the change in control of Congress will have on this state of affairs. I think it's now quite a lot more likely that some sort of "ADA Restoration Act" will pass -- which isn't to say that it definitely, or even probably, will pass. It would be smart political strategy for the Democrats in Congress to push issues that hold their party together but that divide the Republicans. Played right, the ADA could be one of those issues. Lots of prominent Republicans are vocal supporters of the ADA (see soon-to-be-former Senator DeWine, above, or Arlen Specter, or the President of the United States), but a lot of the opposition to and criticism of the statute comes from Republicans as well (look at the list of sponsors of the ADA Notification Act). Democrats, by contrast, have been pretty unified on the statute.

The rest of this post goes on to consider specific areas of the disability law that could be modified, including sovereign immunity, attorneys' fees, and the definition of disability.  The whole post is a must-read for anyone who is interested in disability law developments. 

PS