articles dual federalism, constitutional openings, and, Slides of Decision Making

Download articles dual federalism, constitutional openings, and and more Slides Decision Making in PDF only on Docsity! 345 ARTICLES DUAL FEDERALISM, CONSTITUTIONAL OPENINGS, AND THE CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES Benjamin A. Barsky* ABSTRACT The Convention on the Rights of Persons with Disabilities (“CRPD”) represents a historic achievement for the global disability rights movement. Yet, when the U.S. Senate refused to ratify it on December 4, 2012, its influence on American law and policy seemed doomed. The Founders, after all, had conceived of a constitutional vision where the federal government acts as the ultimate arbiter of questions of international policy. Under this vision of “dual federalism”—which dominated how the legal profession understood U.S. involvement in foreign affairs for over a century—only the federal political branches have the power to make and implement international laws like the CRPD. But, as I show in this Article, dual federalism has not endured. “Subnational entities”— cities, counties, and states—have become key decision-makers in areas once dominated by the federal government, such as immigration and international trade. As it turns out, they have also become champions of the CRPD. This Article explains that “foreign affairs federalism” is at the heart of this paradigm shift. This new status quo reveals that the Constitution leaves ample room for subnational entities to engage on issues of international scale. In many cases, it has enabled local and state governments to act antagonistically—or “uncooperatively”—toward the federal government. In others, it has empowered subnational entities and federal actors to work hand-in- hand—or “cooperatively”—to drive national foreign affairs priorities. This Article shows that U.S. subnational entities have implemented the CRPD in accordance with principles of uncooperative and cooperative foreign affairs federalism. From an uncooperative perspective, subnational entities have denounced the Senate’s refusal to ratify the CRPD through resolutions and other expressive policies. From a cooperative perspective, the supported decision-making (“SDM”) movement serves as an exemplar case study. Embedded in Article 12 of the CRPD, SDM represents a shift away from guardianship law and toward the ability of people with disabilities to make life decisions on their own. This Article shows that the ongoing flourishing of SDM laws across the United States is due in large part to alliances between state-level disability rights organizations and the federal executive branch. * Ph.D. Student in Health Policy, Harvard University; J.D., University of Pennsylvania Carey Law School; B.A., Johns Hopkins University. I am particularly indebted to Michael Stein for his guidance, support, and mentorship throughout the preparation of this Article. I am also grateful to Heather Cucolo, David Ferleger, Jean Galbraith, Jayne Huckerby, Michael Perlin, Mindy Roseman, Edward Rubin, Matthew Smith, Charley Ellen Willison, and the participants of the Salzburg Cutler Fellows Program for invaluable feedback on previous drafts. My deepest thanks go to Katherine McKeen and the rest of the University of Pennsylvania Journal of Constitutional Law for a wonderful editorial experience. 346 JOURNAL OF CONSTITUTIONAL LAW [Vol. 24:2 TABLE OF CONTENTS INTRODUCTION ....................................................................................... 347 I. CRPD NON-RATIFICATION IN CONTEXT .......................................... 353 A. A Disability Rights Trailblazer ......................................................... 354 1. Substantive Protections ............................................................... 355 2. The Convention’s Inclusive Negotiation Process ............................. 357 B. The CRPD in the Senate .................................................................. 358 1. The Reasons for Non-Ratification ............................................... 360 a. Domestic Disability Legislation ............................................. 360 b. Policy Explanations ............................................................. 362 II. SUBNATIONAL ENTITIES AS CHAMPIONS OF THE CRPD ................. 365 A. Dual Federalism No Longer ............................................................... 366 B. Uncooperative Expressions of Subnational Support ............................... 371 1. Examples ................................................................................. 371 a. Local Governments ............................................................... 372 b. States ................................................................................. 375 2. An Expressivist Analysis ............................................................ 377 III. SUPPORTED DECISION-MAKING LAWS IN THE UNITED STATES ... 382 A. A Synthesis of Article 12’s Drafting History ........................................ 383 B. SDM in the United States ................................................................. 388 1. Planting the SDM Seed ............................................................. 389 2. Article 12 in Legislation ............................................................ 393 3. Article 12 in Case Law ............................................................. 405 B. SDM and Cooperative Foreign Affairs Federalism ................................ 407 IV. CONCLUSION .................................................................................... 410 April 2022] DUAL FEDERALISM AND THE CRPD 349 Cities and states—such as Philadelphia through its status as a “sanctuary city” and California through its divisive “Save Our State” initiative— became active decision-makers on questions of immigration policy.12 Subnational entities worked to mitigate global warming by forming accountability agreements with foreign entities and even vowed to comply with treaties that the federal government had shunned, such as the Paris Agreement.13 As I show in this Article, moreover, local and state governments have also become champions of the CRPD and international disability rights.14 But what structural issues led to this new paradigm? What, as a legal matter, has justified subnational entities to defy so openly the rules, norms, and expectations of dual federalism? Enter “foreign affairs federalism.”15 This now-prevailing regime is remarkable, and of considerable interest to legal scholars, because it reveals that orthodox understandings of federal constitutional power rested on a fallacy: that the Constitution vests exclusive authority to the federal government on issues of international importance.16 In reality, the Constitution leaves much room for subnational entities to engage on matters 12 See Andrea Silva, How California’s Prop. 187 Is Still Shaping Immigration Policy—25 Years After It Passed, WASH. POST. (Nov. 25, 2019), https://www.washingtonpost.com/politics/2019/11/25/how- californias-prop-is-still-shaping-immigration-policy-years-after-it-passed/ [https://perma.cc/6C58-CR4Y] (explaining that Proposition 187 “denied public, social, educational and health services to undocumented immigrants in California”); David Gambacorta & Kavitha Surana, Even in Philadelphia, One of the Most Determined Sanctuary Cities, Refuge Is Elusive, PROPUBLICA (Oct. 18, 2018, 5:00 AM), https://www.propublica.org/article/even-in- philadelphia-one-of-the-most-determined-sanctuary-cities-refuge-is-elusive [https://perma.cc/ PN7H-AMRK] (writing that Philadelphia has “wore its sanctuary reputation like a badge of honor” and has tried to find “ways to outmaneuver ICE’s enforcement efforts.”). 13 See generally Jean Galbraith, Two Faces of Foreign Affairs Federalism and What They Mean for Climate Change Mitigation, 112 AM. J. INT’L L. UNBOUND 274, 274 (2018); Dana R. Fisher, Understanding the Relationship Between Subnational and National Climate Change Politics in the United States: Toward a Theory of Boomerang Federalism, 31 ENV’T & PLAN. C: GOV’T & POL’Y 769, 771–781 (2012). 14 See infra Part II–III. 15 In this Article, I draw a lot from Michael Glennon and Robert Sloane’s remarkable book on the question of foreign affairs federalism. See generally MICHAEL J. GLENNON & ROBERT D. SLOANE, FOREIGN AFFAIRS FEDERALISM: THE MYTH OF NATIONAL EXCLUSIVITY (2016). But their book is, of course, by no means exhaustive. See generally Peter J. Spiro, Foreign Relations Federalism, 70 U. COLO. L. REV. 1223, 1225–26 (1999); Ernest A. Young, Dual Federalism, Concurrent Jurisdiction, and Foreign Affairs Exception, 69 GEO. WASH. L. REV. 139, 167 (2001); Daniel Abebe & Aziz Z. Huq, Foreign Affairs Federalism: A Revisionist Approach, 66 VAND. L. REV. 723, 768 (2013); Ryan Baasch & Saikrishna Bangalore Prakash, Congress and the Reconstruction of Foreign Affairs Federalism, 115 MICH. L. REV. 47, 52 (2016); Young, supra note 5, at 259. 16 See generally Sarah H. Cleveland, Crosby and the One-Voice Myth in U.S. Foreign Relations, 46 VILL. L. REV. 975 (2001); see also GLENNON & SLOANE, supra note 15, at 31 (“Doubtless the United States constitutionally must, at times, speak with one voice. . . . But [it] does not, in fact, always speak with one voice in foreign relations.”). 350 JOURNAL OF CONSTITUTIONAL LAW [Vol. 24:2 of foreign affairs and human rights.17 From this standpoint, therefore, foreign affairs federalism constitutes the foundation from which subnational entities have promoted the CRPD on U.S. soil. And it is, in the same spirit, the engine that has propelled much human rights advocacy and mobilization across the country. Scholarship has also shown that foreign affairs federalism is a nuanced, multi-flavored doctrine that entails more than mere subnational participation on issues of international dimension. In many instances, it has enabled subnational entities to act antagonistically—or “uncooperatively”— toward the federal government.18 That is, local and state governments have adopted foreign affairs policies that conflict with those adopted by the federal government. In other situations, foreign affairs federalism has empowered subnational entities and federal actors to work hand-in-hand—or “cooperatively”—to drive national foreign affairs priorities.19 This Article draws on original research to show that this pattern of “uncooperative and cooperative foreign affairs federalism” accords with how local and state governments have championed the CRPD.20 From an uncooperative standpoint, many cities and counties have denounced the Senate’s refusal to ratify the CRPD through resolutions and other expressive policies.21 Several states have also enacted measures to push the Senate in the direction of ratification. These expressions of discontent have done little to convince the requisite supermajority of sixty-seven senators to ratify the Convention, to be sure. Despite the spearheading and overwhelmingly bipartisan work on disability rights in the United States—notably through 17 See infra Part II.A. 18 “Uncooperative federalism” commonly refers to Jessica Bulman-Pozen and Heather Gerken’s canonical essay on the question. See generally Jessica Bulman-Pozen & Heather K. Gerken, Uncooperative Federalism, 118 YALE L.J. 1256, 1259 (2009). Scholars have since studied and applied the conception widely. See infra note 126 and accompanying text. And it is not dissimilar from Yishai Blank’s conception of the novel “World-State-Locality” trinity, where, he argues, “local governments can now use international law in their struggle against their states and other localities . . . .” Blank, supra note 10, at 889. 19 “Cooperative federalism” does not, of course, limit itself to questions of foreign affairs. See Erwin Chemerinsky, Jolene Forman, Allen Hopper, & Sam Kamin, Cooperative Federalism and Marijuana Regulation, 62 UCLA L. REV. 74, 116 (2015) (“Cooperative federalism has been described as ‘a partnership between the States and the Federal Government, animated by a shared objective.’”) (quoting Arkansas v. Oklahoma, 503 U.S. 91, 101 (1992)); see also generally Philip J. Weiser, Federal Common Law, Cooperative Federalism, and the Enforcement of the Telecom Act, 76 N.Y.U. L. REV. 1692, 1696 (2001); Heather K. Gerken, Our Federalism(s), 53 WM. & MARY L. REV. 1549, 1557 (2012). 20 See Jean Galbraith, Cooperative and Uncooperative Foreign Affairs Federalism, 130 HARV. L. REV. 2131, 2138–39, n. 24 (2017) (collecting “scholarly work addressing state and local engagement in foreign affairs”). 21 See infra Part II.B. April 2022] DUAL FEDERALISM AND THE CRPD 351 the passage of the landmark Americans with Disabilities Act (“ADA”)22—a stubborn coalition of conservative senators has persistently prevented the country from joining the rest of the world in ratifying the CRPD. Even so, I argue that the subtle resistance on the part of local and state governments has accomplished two expressive purposes.23 The first is to signal to the rest of the world that U.S. subnational entities are committed to the international causes of disability justice and human rights. The second, less obvious purpose serves to reaffirm the role played by subnational entities in the U.S. system of federalism. From a cooperative perspective, the supported decision-making (“SDM”) movement serves as a case in point. During the CRPD negotiations, SDM was a construct that certain key stakeholders, namely DPOs, fervently supported.24 SDM came in response to concerns about guardianship laws, and more specifically, how they had become a mechanism systematically used to usurp the dignity and decision-making ability of people with disabilities.25 Ultimately enshrined in Article 12 of the CRPD, SDM has become a way to empower people with disabilities to make life decisions without having to depend on the approval and decision-making powers of others.26 The adoption of SDM laws began gaining real traction at the end of President Barack Obama’s first term. In October 2012, a roundtable convened under the auspices of the U.S. Administration for Community Living (“ACL”) and the American Bar Association (“ABA”) to find concrete 22 See generally 42 U.S.C. §§ 12101–12213 (2009). 23 See infra Part II.C.2. 24 See infra Part III.A. 25 See id. 26 As Anna Nilsson and Lucy Series remark, that SDM does not appear explicitly in the language of Article 12 is intentional: “Ambiguity was a necessary cost of unity for the advocacy strategy of disability organizations participating in the negotiations of the Convention . . . .” Anna Nilsson & Lucy Series, Article 12 CRPD: Equal Recognition Before the Law, in THE UN CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES: A COMMENTARY 339, 341 (Ilias Bantekas et al. eds., 2018). That said, a consensus exists around the idea that Article 12 was meant, at least in substantial part, to move past a system of substituted decision-making toward one of supported decision-making. See infra Part III.A. See also generally Andrew Peterson, Jason Karlawish & Emily Largent, Supported Decision Making With People at the Margins of Autonomy, AM. J. BIOETHICS, Nov. 2021, at 1–21; Emily A. Largent & Andrew Peterson, Supported Decision-Making in the United States and Abroad, 23 J. HEALTH CARE L. & POL'Y, 271 (2021); but see Nina A. Kohn, Legislating Supported Decision-Making, 58 HARV. J. LEGIS. 313 (2021) (offering a thought-provoking critique of current SDM statutes laws, including the idea that they may, in fact, disempower individuals with disabilities despite their stated intentions). 354 JOURNAL OF CONSTITUTIONAL LAW [Vol. 24:2 disability rights experts: Did the Senate reject a Convention that was inspired, at least in part, by U.S. disability law and policy?33 As I explain below, the answer is “yes.” A. A Disability Rights Trailblazer The U.N. General Assembly adopted the CRPD and its Optional Protocol in December 2006.34 The CRPD then opened for signature on March 30, 2007. That day, eighty-two states parties signed onto it—the largest ever number of signatories to a U.N. treaty on an opening day.35 On May 3, 2008, the CRPD entered into force after receiving its 20th ratification.36 Today, the CRPD has 164 signatories and 184 states parties.37 The CRPD is a remarkable achievement not least because it is the “most rapidly negotiated”38 human rights treaty ever and “the first comprehensive human rights treaty of the 21st century. . . .”39 It also possesses two qualities that make it a disability policy trailblazer: the substantive protections it affords to people with disabilities and its highly inclusive process of negotiation.40 33 See JOHN R. VAUGHN, FINDING THE GAPS: A COMPARATIVE ANALYSIS OF DISABILITY LAWS IN THE UNITED STATES TO THE UNITED NATIONS CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES (CRPD) (May 12, 2008) (“During the six years of the drafting of the Convention, . . . [t]he U.S. delegation drew on our nation’s prolific experience with disability laws and policies in providing guidance on the foundational principles of the Convention.”). I also offer more support for this point infra Part II.B.1.a. 34 G.A. Res. 61/611 (Dec. 13, 2006). 35 See Convention on the Rights of Persons with Disabilities, U.N., https://www.un.org/development/desa/disabilities/convention-on-the-rights-of-persons-with- disabilities.html [https://perma.cc/JQL4-VUUY] (last visited May 21, 2022). 36 See Entry Into Force, U.N., https://www.un.org/development/desa/disabilities/convention-on-the- rights-of-persons-with-disabilities/entry-into-force.html [https://perma.cc/SMB5-LM4Y] (last visited May 21, 2022); see also CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES: ADVOCACY TOOLKIT, U.N. OFF. OF THE HIGH COMM’R FOR HUM. RTS. I, V (2008), http://www.ohchr.org/Documents/Publications/AdvocacyTool_en.pdf [https://perma.cc/VR L6-STA3] (discussing the development and ratification of the CRPD). 37 Status of Treaties, U.N. TREATY COLLECTION (2008), https://treaties.un.org/Pages/View Details.aspx?src=TREATY&mtdsg_no=IV-15&chapter=4&clang=_en [https://perma.cc/VRL 6-STA3]. 38 Rosemary Kayess & Phillip French, Out of Darkness into Light? Introducing the Convention on the Rights of Persons with Disabilities, 8 HUM. RTS. L. REV. 1, 2 (2008). 39 U.N., supra note 35. 40 See Michael Ashley Stein & Janet E. Lord, Jacobus tenBroek, Participatory Justice, and the UN Convention on the Rights of Persons with Disabilities, 13 TEX. J. C.L. & C.R. 167, 177 (2008) (“Indeed, the physical presence and substantive input of persons with disabilities in the treaty development process cannot be over-emphasized as having affected both the substantive outcomes described above, and the procedural guarantees that followed.”). April 2022] DUAL FEDERALISM AND THE CRPD 355 1. Substantive Protections The CRPD’s protections encompass “the spectrum of life activities of persons with disabilities.”41 They arise from a “purpose” that does not lack in ambition: “to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity.”42 The CRPD’s definition of “persons with disabilities” is similarly comprehensive, covering all “those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.”43 Together, the CRPD’s protections and the breadth of people to whom it applies have created “a great landmark in the struggle to reframe the needs and concerns of persons with disability in terms of human rights.”44 The CRPD’s structure is straightforward. The first nine Articles set out definitions,45 interpretive provisions,46 and general principles that are applicable throughout the Convention’s implementation,47 including those of “non-discrimination,”48 “equality of opportunity,”49 and “equality 41 Michael Ashley Stein, A Quick Overview of the United Nations Convention on the Rights of Persons with Disabilities and Its Implications for Americans with Disabilities, 31 MENTAL & PHYSICAL DISABILITY L. REP. 679, 679 (2007). For an exhaustive analysis of the CRPD’s fifty articles, see generally THE UN CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES: A COMMENTARY (Ilias Bantekas et al. eds., 2018). 42 Convention on the Rights of Persons with Disabilities, May 3, 2008, Art. 1, 2515 U.N.T.S. 3 [hereinafter CRPD]. 43 Id., Art. 1. 44 Kayess & French, supra note 38, at 2. 45 See generally CRPD, Art. 2. The definition of “reasonable accommodation” in the CRPD is highly analogous to the “reasonable accommodation” language in the ADA. Compare CRPD, Art. 2 (“‘Reasonable accommodation’ means necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms.”) with 42 U.S.C. § 12112(b)(5)(A) (2009) (defining discrimination in the workplace as “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability . . . unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity.”). 46 See Kayess & French, supra note 38, at 26 (“Articles 1 and 2 of the CRPD are interpretive. Article 1 sets out the general purpose of the convention . . . . Article 2 defines five key terms used repeatedly throughout the convention.”) 47 See id. at 27–28 (2008) (explaining that Articles 8 and 9 are “undoubtedly two of the greatest challenges to the international community.”). 48 See CRPD, supra note 42, Art. 3. 49 Id., Art. 5. 356 JOURNAL OF CONSTITUTIONAL LAW [Vol. 24:2 between men and women.”50 They also provide benchmarks with which states parties are to comply. For example, states parties must “modify or abolish existing laws, regulations, customs and practices that constitute discrimination against persons with disabilities.”51 Articles 10 through 30 enumerate the “specific human rights and fundamental freedoms” that the Convention protects.52 They include equal recognition before the law (Article 12)—the idea that “persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life”53 to which I will return in much more detail in Part III.54 They also include freedom from torture or cruel, inhuman or degrading treatment or punishment (Article 15); liberty of movement and nationality (Article 18); health (Article 25); habilitation and rehabilitation (Article 26); and participation in political and public life (Article 29). The final twenty Articles—Articles 31 through 50—focus on process. For example, Article 31 requires states parties to amass “statistical and research data” to facilitate proper implementation of the CRPD.55 And Article 33 requires designating “one or more focal points within government for matters relating to the implementation of the present Convention. . . .”56 Articles 34 through 39 also set up the Committee on the Rights of Persons with Disabilities (“CRPD Committee”), a designated body of international experts that monitors the Convention’s implementation progress.57 Under Article 35, states parties have to submit to the CRPD Committee “a comprehensive report on measures taken to give effect to [their] obligations” within two years of entering into the Convention, and they have to do so every four years thereafter.58 After receiving these reports, the CRPD Committee can then make recommendations based on its 50 Id., Art. 7. 51 Id., Art. 4(b). 52 Kayess & French, supra note 38, at 28. 53 CRPD, supra note 42, Art. 12(2). 54 As I will explain in detail infra Part III, Article 12 and the ways in which states parties have interpreted and implemented it in domestic law are largely responsible for the flourishing of supported decision-making laws in the United States. 55 See generally CRPD, supra note 42, Art. 31. 56 Id., Art. 33. 57 See Committee on the Rights of Persons with Disabilities, U.N. OFF. OF HIGH COMM’R FOR HUM. RTS., https://www.ohchr.org/EN/HRBodies/CRPD/Pages/CRPDIndex.aspx [https://perma.cc/W 7EE-57JL] (May 21, 2022). 58 CRPD, supra note 42, Art. 35(1)–(2). April 2022] DUAL FEDERALISM AND THE CRPD 359 toward ratification: transmitting the treaty to the Senate for advice and consent. The advice and consent process began some three months later, with a thorough assessment of the treaty by the Senate’s Committee on Foreign Relations (“SCFR”). After a preliminary hearing on the subject, the SCFR favorably reported the CRPD to the Senate on July 26, 2012, by a vote of thirteen to six.71 But the division along party lines in the SCFR’s vote was a foreshadowing of what was to come on the full Senate floor: No Democrat opposed ratification, while the six dissenting votes came from Republicans.72 Five out of the six minority senators expressed their views in the SCFR report.73 Their text opened with a telling quote from President Thomas Jefferson, principal author of the Declaration of Independence, that appeared to capture the essence of their position: “Peace, commerce, and honest friendship with all nations—entangling alliances with none.”74 American exceptionalism thus emerged, at least in rhetorical form, as a countervailing force against ratification. In reality, however, the dissenters were likely signaling the beginning of a partisan deliberation process, one that may have had less to do with promoting exceptionalism than fulfilling party prerogatives.75 Shortly after the SCFR’s assessment, the ratification vote in the full Senate occurred on December 4, 2012. The Convention received a majority vote of approval,76 but it still fell six votes short of the two-thirds needed to defeat the object and purpose of [the] treaty’ until such time that it has ‘made its intention clear not to become a party to the treaty.’”) (quoting Vienna Convention on the Law of Treaties, art. 18, May 23, 1969, Art. 18, 1155 U.N.T.S. 336.). 71 S. REP. NO. 112-6, at 7 (2012). The SCFR’s report included testimony from senators who had experienced important involvement in the passage of the ADA, including most notably Senator Tom Harkin (D.-Ill.), who received glowing comments from his Democratic colleagues on the SCFR. See id. at 21 (documenting Senator John Kerry lauding Senator Harkin for helping knock down “barriers to employment and Government service” for people with disabilities through his work on the ADA). Throughout his testimony, Senator Harkin emphasized that his and the Senate’s work on the ADA was a precondition for the CRPD’s success across the world. See id. at 26 (“Well, thanks to the ADA and other U.S. laws, America has shown the rest of the world how to honor the basic human rights of children and adults with disabilities.”). 72 Id. at 6. 73 Id. at 17–19. 74 Id. at 17. The quote by President Jefferson came from the President’s first inaugural address on March 4, 1801. See Thomas Jefferson, First Inaugural Address, AVALON PROJECT AT YALE L. SCH., https://avalon.law.yale.edu/19th_century/jefinau1.asp [https://perma.cc/5M2T-VR7T] (last visited May 21, 2022). 75 See generally infra Part I.B.1.b. 76 See S. REP. NO. 112-7, supra note 69. 360 JOURNAL OF CONSTITUTIONAL LAW [Vol. 24:2 ratify an international treaty.77 The vote was once again largely along party lines, with all of the Democrats and eight Republicans voting for ratification, while thirty-eight Republicans voted against.78 After the vote, the Senate returned the CRPD to the SCFR by protocol. Although the SCFR reassessed the Convention two years later, on July 28, 2014—once again recommending that the Senate give its advice and consent to its ratification79—the Senate declined to proceed with a vote.80 The Senate instead referred the CRPD back to the SCFR, where it has lain ever since. The United States thus became, and remains, one of a handful of countries to not ratify the CRPD, and the only permanent member of the U.N. Security Council to have signed but not ratified it.81 1. The Reasons for Non-Ratification Two broad justifications fueled the Senate’s decision to not ratify the CRPD. Before examining them, however, some words of caution are necessary: These justifications are important not because of their merits, which are debatable at best and unfounded at worse, but because they highlight the deep partisanship brought about by the ratification deliberation process. They in turn bring into stronger light the platform that subnational entities later used to champion the CRPD. The first justification was that U.S. disability legislation, and in particular the ADA82, is robust enough to protect the rights of Americans with disabilities. The second was that ratifying the Convention would conflict with objectives of a specific segment of the Republican wing of the Senate, notably on issues of abortion, national sovereignty, and parental rights. a. Domestic Disability Legislation Throughout the ratification debate, both wings of the Senate proudly acknowledged the array of legal protections afforded to people with 77 The two-third vote requirement, along with the signature of the President, are unique to the U.S. legislative system, under obligation from the Constitution. See U.S. Const. art. II (“[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.”). 78 See Roll Call Vote 112th Congress–2nd Session, U.S. SENATE (Dec. 4, 2012), https://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=112&se ssion=2&vote=00219 [https://perma.cc/2K36-YAMB]. 79 S. REP. NO. 113-12, at 8 (2014). 80 S. REP. NO. 112-7, supra note 69. 81 See U.N. TREATY COLLECTION, supra note 37 (listing the signatories and ratifiers of the CRDP). 82 See generally 42 U.S.C. §§ 12101–12213 (2009). April 2022] DUAL FEDERALISM AND THE CRPD 361 disabilities, including most notably the overwhelmingly bipartisan ADA. For example, Senator John Kerry (D-Mass.), one of the authors of the first SCFR report, recognized that the United States has “a comprehensive network of existing federal and state disability laws and enforcement mechanisms,” enumerating some thirteen statutes to this effect.83 The minority senators affirmed much of the same sentiment, stating that the country “has already set the highest standard for treatment of and assistance to the disabled; so much so that the drafters of this Convention used U.S. laws and regulations to build its framework.”84 Furthermore, the Obama Administration even proposed,85 and the SCFR adopted,86 a reservation to the CRPD that made “clear that the United States will limit its obligations under the Convention to exclude the narrow circumstances in which implementation of the Convention could otherwise implicate federalism or private conduct concerns.”87 The reason for this reservation was that “[i]n the large majority of cases, existing federal and state law meets or exceeds the requirements of the Convention,” so no new “implementing legislation” is needed to fulfill the treaty’s mandates.88 Accordingly, the disagreement between Democrats and Republicans did not center on the CRPD’s effect on domestic disability rights policy. Both parties agreed that the ADA had set the gold standard, and that pre-existing laws already fulfilled the Convention’s demands. Instead, their disagreement centered on the utility of ratifying a Convention that was, on one hand, no better than useless at home and, on the other, of questionable value abroad. In the second SCFR report, Senator Jeff Flake (R-Ariz.) concisely made this point: As the United States is the leader on disabilities policy in the world, I’m not certain higher ground is even a possibility. The [ADA] has been the law of the land since 1990 and is recognized as the gold standard. In fact, it serves as the basis for much of this treaty. In addition, the United States Agency for International Development already administers programs across the globe aimed at helping the disabled.89 83 See S. REP. NO. 112-6, supra note 71, at 6. Senator Kerry also noted that “disability nondiscrimination provisions have been integrated into statutes of general applicability to federal policies and programs.” Id. 84 Id. at 18. 85 S. REP. NO. 112-7, supra note 69, at 1. 86 See S. REP. NO. 112-6, supra note 71, at 7. 87 Id. at 6–7. 88 Id. 89 S. REP. NO. 113-12, supra note 79, at 37. 364 JOURNAL OF CONSTITUTIONAL LAW [Vol. 24:2 self-executing, meaning that the CRPD Committee by itself would have no ability to provide enforceable rights to Americans.99 Parental Rights. A third policy concern was that ratifying the CRPD would usurp parental autonomy by empowering the state to make education and health care decisions for children with disabilities.100 Article 7 requires that in state actions “concerning children with disabilities, the best interests of the child shall be a primary consideration.”101 According to Senator Richard John Santorum (R-Pa.), this Article would have “put the government, acting under U.N. authority, in the position to determine for all children with disabilities what is best for them.”102 Yet, again in the resolution of advice and consent, the SCFR stated that “nothing in Article 7 requires a change to existing United States law,”103 thereby undercutting the argument that the CRPD would usurp parental decision-making on issues of child development. These policy issues represent only a snapshot of those raised during the ratification debate, but they nonetheless illustrate the political opposition that the CRPD elicited. As I explain below, however, local and state governments picked up where the Senate left off in varying ways—some concrete and others symbolic—and their championing of the CRPD continues to this very day. 99 See S. REP. NO. 112-6, supra note 71, at 14. 100 Homeschooling advocates, in particular, had cited this concern to support their opposition to ratification. See, e.g., Maggie Severns, Bob Dole Battles Home-Schoolers, POLITICO (July 22, 2014, 12:17 AM), https://www.politico.com/story/2014/07/bob-dole-home-school-legal-defense-109201 [https://perma.cc/4YDQ-ZNU6] (stating that the president of the Homeschool Legal Defense Association said that the CRPD “could infringe on the rights of parents whose children have disabilities”). 101 CRPD, supra note 42, Art. 7(2). 102 Rick Santorum, This Treaty Crushes U.S. Sovereignty, WND (Dec. 2, 2012, 8:43 PM), https://www.wnd.com/2012/12/this-treaty-crushes-u-s-sovereignty/ [https://perma.cc/5LU8- 89R3]. Senator Santorum’s position was not without opposition. See, e.g., Dana Millbank, Opinion, Santorum’s New Cause: Opposing the Disabled, WASH. POST (Nov. 26, 2012), https://www.washingtonpost.com/opinions/santorums-new-cause-opposing-the-disabled/2012 /11/26/9ab0605a-3829-11e2-b01f-5f55b193f58f_story.html [https://perma.cc/449D-BBQ8] (“The treaty requires virtually nothing of the United States.”). 103 S. REP. NO. 112-6, supra note 71, at 14. Senator Chris Coons (D.-Conn.) reaffirmed this point the day of the ratification vote, saying that the CRPD “does nothing to empower an international convention of bureaucrats to direct the schooling of children in Delaware, West Virginia, Indiana, or in Massachusetts.” 158 CONG. REC. S7370 (2012). April 2022] DUAL FEDERALISM AND THE CRPD 365 II. SUBNATIONAL ENTITIES AS CHAMPIONS OF THE CRPD This Part and the next make up the heart of this Article. They examine subnational efforts to uphold the CRPD within U.S. borders. For the skeptical reader, what follows may appear unremarkable. Subnational entities have, after all, a long history of championing human rights treaties when the Senate has failed to ratify them.104 So what makes the CRPD an interesting case? My answer is two-fold. First, I use original research to show how local and state governments have exercised their constitutional autonomy to support the CRPD through expressive means. This discussion contributes to an underdeveloped literature using expressivism as a theoretical framework to examine subnational involvement in human rights and other issues of global importance. Second, I analyze the flourishing of SDM laws across the country. Because SDM derives from Article 12 of the CRPD,105 these laws constitute a unique case study to understand the Convention’s impact on U.S. disability law and policy. But, before I proceed with these matters, I will bring to the fore two necessary threshold issues: What as a matter of law empowers local and state governments to participate in foreign affairs policy? And beyond the 104 Glennon and Sloane have made this point concisely: Human rights have been another common concern [for local governments]. The United States declined to ratify the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). But that did not deter San Francisco from adopting local ordinances to implement portions of it. San Francisco’s efforts, in turn, prompted other states and cities to call for regulations and implementation. Coalitions in Chicago, Los Angeles, and Atlanta have urged federal legislators to approve CEDAW. Similarly, the federal government’s recalcitrance in implementing the Convention on the Elimination of All Forms of Racial Discrimination, which the United States ratified but declared non- self-executing, did not deter local officials in Iowa, California, and New York from enacting local implementing legislation. GLENNON & SLOANE, supra note 15, at 63–64 (footnotes omitted); see also COLUM. L. SCH., HUM. RTS. INST., BRINGING HUMAN RIGHTS HOME: HOW STATE AND LOCAL GOVERNMENTS CAN USE HUMAN RIGHTS TO ADVANCE LOCAL POLICY 10 (2012) (discussing local cities and states that have passed resolutions on the Convention on the Rights of the Child); Galbraith, supra note 20, at 2151 (“Sometimes state and local government activity in relation to foreign affairs occurs against a backdrop of federal inaction, as is the case with the incorporation of unratified human rights treaties into the municipal law of progressive cities.”). 105 I will cover this topic in far more specificity infra Part III. But several works, at this juncture in this Article, can serve as primers on the relationship between supported decision-making laws and Article 12. See, e.g., Kristin Booth Glen, Changing Paradigms: Mental Capacity, Legal Capacity, Guardianship, and Beyond, 44 COLUM. HUM. RTS. L. REV. 92 (2012); Kristin Booth Glen, Piloting Personhood: Reflections from the First Year of a Supported Decision-Making Project, 39 CARDOZO L. REV. 495 (2017); Nina A. Kohn, Jeremy A. Blumenthal & Amy T. Campbell, Supported Decision-Making: A Viable Alternative to Guardianship?, 117 PENN ST. L. REV. 1111 (2013). 366 JOURNAL OF CONSTITUTIONAL LAW [Vol. 24:2 question of legality, what are the normative implications of such involvement? A. Dual Federalism No Longer Debates among legal scholars about the legality of subnational involvement in foreign affairs have a long history.106 But current consensus suggests that, as a general rule, subnational entities are entitled to issue policies that adhere to unratified international law instruments like the CRPD. This consensus explains why in recent years cities and states have complied with international agreements that the federal government has shunned, including in the areas of climate policy,107 gender equality and women’s rights,108 and immigration.109 Two core premises—one constitutional, the other normative—appear to underpin this still-developing trend. The Constitutional Premise. As Jean Galbraith explains, the Constitution “bestows a cornucopia of foreign affairs powers upon the federal government and explicitly limits the powers of the states.”110 Article I authorizes 106 See Goldsmith, supra note 4, at 1622 (arguing that “it is no longer true, if it ever was, that the national political branches prefer federal regulation of all (or even most) issues that can be characterized as involving foreign relations.”); Young, supra note 15, at 167 (arguing against the Supreme Court’s “attempt to define and police a subject matter boundary—here, ‘foreign’ versus ‘domestic’—that is increasingly under pressure from forces of economic, technological, and political integration.”); Galbraith, supra note 13, at 274 (discussing subnational involvement in the area of climate change policy during the Trump Administration). 107 See, e.g., Robinson Meyer, Dozens of States Want to Keep America’s Broken Climate Promise, THE ATLANTIC (Dec. 9, 2019), https://www.theatlantic.com/science/archive/2019/12/24-states-are-still-paris- theyre-also-cutting-emissions/603250/ [https://perma.cc/C29K-D3JF] (showing how states have committed themselves to Paris Accord principles); Rebecca Bromley-Trujillo, Despite Trump, Many Cities and States are Fighting Climate Change. Including Pittsburgh., WA. PO. (June 6, 2017), https://www.washingtonpost.com/news/monkey-cage/wp/2017/06/06/despite-trump- pittsburghs-working-on-slowing-climate-change-so-are-many-other-cities-and-states/?nid [https://perma.cc/H4BM-UVEF] (explaining how American cities pronounced their support for the Paris climate accord). 108 See, e.g., Background, CITIES FOR CEDAW, http://citiesforcedaw.org/background/ [https://perma.cc/7XEX-5TRZ] (last visited May 21, 2022) (“Cities for CEDAW is a campaign to protect the rights of women and girls by passing ordinances establishing the principles of CEDAW in cities and towns across the United States.”). 109 See, e.g., Bethany Allen-Ebrahimian, U.S. Cities Want to Join U.N. Migration Talks that Trump Boycotted, FOREIGN POL’Y (Dec. 5, 2017, 5:22 PM), https://foreignpolicy.com/2017/12/05/u-s-cities-want- to-join-u-n-migration-talks-that-trump-boycotted/ [https://perma.cc/9CPZ-EMT3] (“Cities in the United States are petitioning for formal inclusion in a U.N. global compact on migration just days after the White House withdrew from the accord.”). 110 Galbraith, supra note 20, at 2131; see also Goldsmith, supra note 4, at 1619 (describing the “four means” by which the Constitution bestows plenary, not exclusive, foreign affairs power to the federal government). April 2022] DUAL FEDERALISM AND THE CRPD 369 The Normative Premise. Scholars have also argued that subnational involvement in foreign affairs policy is normatively desirable.125 One part of this argument is that cities and states have increasingly succumbed and, in turn, responded to the pressures of globalization—what Yishai Blank defines as the “dissemination, transmission, and dispersal of goods, persons, images, and ideas across national boundaries”126—which increases their stakes in transnational developments.127 Furthermore, as Glennon and Sloane have suggested, “the conflicting incentives and trends generated by globalization—at once local and global—partially explain the paralysis that increasingly characterizes the federal government’s efforts (or lack thereof ) to resolve the problems caused by globalization.”128 Another part of the argument is that subnational entities have deep interests in internalizing certain transnational norms in general and human rights standards in particular. According to a study by Columbia Law School’s Human Rights Institute, local and state officials have suggested that human rights “empowers and elevates public service by affirming the essential connection between government actors and the constituents they serve and accentuating the human values that motivate public service.”129 “Localizing human rights,” to borrow Gaby Oré Aguilar’s phrase, thus becomes a vehicle through which subnational entities can find a voice in a space traditionally dominated by national governments and non-local institutions like the U.N. and other nongovernmental organizations.130 As a result, as Blank notes, “[o]ne of the most lucid manifestations of the internalization of international norms and of global legal ideas” has occurred locally rather than at the national level.131 Scholars are not unanimous about the utility of local internationalism, to be sure. For example, Ryan Baasch and Saikrishna Prakash have argued 125 Glennon and Sloane identify three factors that account for this phenomenon. See GLENNON & SLOANE, supra note 15, at 35–60 (identifying globalization, federal incapacity, and state capacity as three driving factors for local internationalism prominence). 126 Blank, supra note 10, at 882. 127 See Galbraith, supra note 20, at 2134 (“[T]he increasingly transnational nature of our society has done much more than raise the likelihood of state and local involvement in transnational issues.”). 128 GLENNON & SLOANE, supra note 15, at 38. 129 COLUM. L. SCH., HUM. RTS. INST., BRINGING HUMAN RIGHTS HOME: HOW STATE AND LOCAL GOVERNMENTS CAN USE HUMAN RIGHTS TO ADVANCE LOCAL POLICY 5 (2012), https://web.law.columbia.edu/sites/default/files/microsites/human-rights-institute/files/ Bringing%20Human%20Rights%20Home.pdf [https://perma.cc/43C3-3GGS]. 130 See generally Gaby Oré Aguilar, The Local Relevance of Human Rights: A Methodological Approach, in THE LOCAL RELEVANCE OF HUMAN RIGHTS INSTITUTE OF DEVELOPMENT POLICY AND MANAGEMENT (Koen De Feyter et al. eds., 2011). 131 Blank, supra note 10, at 922. 370 JOURNAL OF CONSTITUTIONAL LAW [Vol. 24:2 “that the supposed benefits of many voices in foreign affairs are illusory.”132 But, to date, this position has not gained much traction. One critique is that it cherry-picks disadvantages rather than making a comprehensive benefit- cost assessment. Local internationalism, and the tension-filled interactions between subnational entities and the federal government it provokes, are fluid and multifaceted: These interactions are often cooperative ones, with one or both political branches of the federal government providing support for the state or local action through expressions of approval, the provision of funds, or regulatory delegations. At other times, the interactions are far less amiable, involving disagreement between levels of government about particular policies or resistance by state and local governments to federal pressure to undertake certain actions.133 On this account, local internationalism is not necessarily desirable because it brings about optimal policymaking. As Baasch and Prakash have pointed out, local and state governments are not immune to diplomacy failures.134 Its desirability lies instead in its dynamism: the constant dueling between cooperative and uncooperative foreign affairs federalism that has elevated subnational entities from observer to participant in areas of international concern.135 In the area of disability policy, this dynamism has concretized in the form of both government initiatives in favor of the CRPD and SDM statutes. Furthermore, and more conceptually, it has gradually emerged from an ethos of foreign affairs federalism that invites, or perhaps depends on, a practice of local internationalism that is at once “spontaneous” and responsive to local needs.136 As Judith Resnik puts it, “American federalism has served as a major route through which ‘foreign’ law becomes domesticated.”137 132 See Baasch & Prakash, supra note 15, at 52. The authors, in fact, continue by stating that “[t]he states should stand deaf and mute in the foreign arena because they lack the expertise and knowledge necessary to engage in that arena.” Id. at 50. 133 Galbraith, supra note 20, at 2141. 134 See Baasch & Prakash, supra note 15, at 48–49, n.5 (listing numerous intrusions into foreign affairs issues such as New York Mayor Rudolph Giuliani expelling Yasser Arafat, Chairman of the Palestinian Liberation Organization, from a concert at Lincoln Center, and New York and New Jersey refusing to allow Soviet emissaries to land in their airports during the Cold War). 135 I must here acknowledge the depth of scholarship on cooperative and uncooperative foreign affairs federalism that have informed this Article. See generally Bulman-Pozen & Gerken, supra note 18; Galbraith, supra note 13; Galbraith, supra note 20; Jonathan Remy Nash, Doubly Uncooperative Federalism and the Challenge of U.S. Treaty Compliance, 55 COL. J. OF TRANSNAT’L L. 3 (2016); Judith Resnik, Foreign as Domestic Affairs: Rethinking Horizontal Federalism and Foreign Affairs Preemption in Light of Translocal Internationalism, 57 EMORY L.J. 31 (2007). 136 GLENNON & SLOANE, supra note 15, at 76. 137 Resnik, supra note 135, at 34. April 2022] DUAL FEDERALISM AND THE CRPD 371 B. Uncooperative Expressions of Subnational Support I now turn to an exploration of how foreign affairs federalism has enabled subnational entities to champion the CRPD here at home. I first provide examples of local and state governments affirming their support for the CRPD through resolutions and other policy initiatives. I then argue that when subnational entities champion unratified treaties through such policies, expressivism serves as a compelling framework for understanding their significance. 1. Examples Local and state support for the CRPD has consistently clashed with the federal government’s stance on ratification. Expressive policies on the part of local and state governments have become at once symbolic gestures of commitment and concrete means to denounce federal opposition to ratification.138 They are, as a result, canonical illustrations of uncooperative federalism—what Jessica Bulman-Pozen and Heather Gerken have described as subnational efforts “to contest and alter national policy.”139 138 According to Johnathan Nash, the types of subnational initiatives described in this sub-Part would fall squarely under the category of uncooperative foreign affairs federalism. Nash, supra note 135, at 12 (describing the “[t]ypology of federal and state government actions with respect to a treaty regime”). In fact, for the reader’s convenience, I replicate here the visual matrix created by Nash that typifies subnational involvement in areas traditionally governed by international treaties like the CRPD: State Dissonant Consonant Federal Dissonant 1. No ratified treaty; no voluntarystate compliance. Result: Nocompliance 2. Uncooperative Federalism: No ratified treaty; state voluntarily acts in line with treaty. Result: State over-compliance Consonant 3. Doubly Uncooperative Federalism: Ratified treaty; state acts inconsistently with treaty. Result: State undercompliance 4. Cooperative Federalism: Ratified treaty; state acts to ensure compliance. Result: Full compliance. 139 Bulman-Pozen & Gerken, supra note 18, at 1272. 374 JOURNAL OF CONSTITUTIONAL LAW [Vol. 24:2 Convention, it expressed support for “principles of inclusion for individuals with autism and other special needs” and urged “action by national, state, and local governments, businesses, and residential communities consistent with these principles.”156 Others. Cities and at least one county outside of California and Florida also issued resolutions supportive of the CRPD. The Chicago City Council adopted in 2007 a resolution affirming the city’s commitment to Convention principles and urged the Senate to ratify the Convention.157 The Council also mandated that copies be provided to the U.N. Secretary-General and the Deputy Permanent United States Representative to the U.N. “as a sign of Chicago’s commitment to the importance of the issues raised in the treaty.”158 The Board of County Commissioners of Multnomah County, Oregon— the seat of which is Portland—also resolved to support the CRPD in 2007,159 declaring “it is in the best interests of the entire county to support the United Nations Convention on the Rights of Persons with Disabilities.”160 Similar to the Chicago example, the Board set out to communicate the county’s support to the U.N. Secretary-General and the Deputy Permanent United States Representative to the U.N.161 And years later, on International Day of Persons with Disabilities 2016, New York City Mayor Bill de Blasio affirmed its “commitment to ensuring every person can access the tools they need to live a full, productive and happy life.”162 He noted that New Yorkers wished to take the opportunity “to honor the 10th anniversary of the adoption of the Convention on the Rights of Persons with Disabilities, and look forward to celebrating the day it is ratified in the U.S.”163 156 Id. 157 See generally Chicago City Council Passes Resolution Urging U.S. to Sign on to Treaty on the Rights of Persons with Disabilities, CITY OF CHICAGO MAYOR’S OFFICE FOR PEOPLE WITH DISABILITIES (Nov. 15, 2007), http://old.g3ict.org/press/press_releases/press_release/p/id_40 [https://perma.cc/PKB3- JH9E]. 158 Id. 159 Resolution No. 07-185 Supporting the United Nations Convention on the Rights of Persons with Disabilities, MULTNOMAH CNTY. (Dec. 6, 2007), https://multco.us/file/13621/download [https://perma.cc /FS4P-YZ84]. 160 Id. 161 Id. 162 Statement from Mayor Bill de Blasio on International Day of Persons with Disabilities, N.Y.C. (Dec. 2, 2016), https://www1.nyc.gov/office-of-the-mayor/news/921-16/statement-mayor-bill-de-blasio- international-day-persons-disabilities [https://perma.cc/Q7XA-U3R9]. 163 Id. April 2022] DUAL FEDERALISM AND THE CRPD 375 b. States Hawaii. On three occasions, the Hawaii state legislature affirmed the state’s support for the CRPD. In 2010, Hawaii’s House of Representatives and Senate issued a joint resolution urging the federal government to ratify the CRPD.164 One year later, Hawaii reignited its advocacy, this time explicitly criticizing the federal government’s sluggishness in taking up the Convention for consideration.165 And finally, in 2013, the legislature once again issued a joint resolution urging the Senate to ratify the CRPD and certified copies of the resolution to U.N. and federal government officials.166 Puerto Rico. The Legislative Assembly of Puerto Rico amended a law in 2012 authorizing the appropriation of money for scholarships to families with children in elementary and middle school. The Puerto Rico legislature tailored the amendment to expand “the personal, professional, and labor horizons of people with special needs or with disabilities.”167 It explicitly invoked the CRPD’s recognition that “due to their lack of accessibility to basic services and to the development of their aspirations [people with disabilities] do not enjoy the same opportunities as other persons.”168 The Legislative Assembly declared full support for the Convention and found it “necessary to establish a special scholarship for students with disabilities or special conditions who attend self-contained classrooms.”169 Pennsylvania. The Pennsylvania Senate designated December 3, 2013, as International Day of Persons with Disabilities. The state senators acknowledged that “the international disability movement achieved an extraordinary advance in 2006” when the CRPD was adopted.170 And so, in the Convention’s spirit, the Senate resolved “to raise awareness of the goal of full and equal enjoyment of human rights and participation in society by persons with disabilities.”171 New Jersey. The General Assembly and Senate of New Jersey issued identical resolutions in 2014 describing the Convention as “a vital framework for creating legislation and policies around the world that 164 See H. Con. Res. 76, 2010 Leg., 25th Sess. (Haw. 2010). 165 See H. Con. Res. 231, 2011 Leg., 26th Sess. (Haw. 2011) (“[A]lthough the United States is a signatory to the Convention . . . , it has not yet undertaken legal rights and obligations contained in the Convention.”). 166 See S. Con. Res. 157, 2013 Leg., 28th Sess. (Haw. 2013). 167 2012 PR S.B. 2005. 168 Id. 169 Id. 170 S. Res. 269, 2013 Leg. (Penn. 2013). 171 Id. 376 JOURNAL OF CONSTITUTIONAL LAW [Vol. 24:2 embrace the rights and dignity of all persons with disabilities.”172 The legislature denounced the federal government’s unwillingness to ratify the CRPD “notwithstanding bipartisan support in Congress,” joining the chorus of subnational entities imploring that the Convention be ratified.173 The resolutions also required their transmission to the Senate’s majority and minority leaders as well as the Chairman of the Committee on Foreign Relations.174 California. In 2019, the California legislature joined the U.N. General Assembly in designating April 2 as World Autism Awareness Day.175 The legislature cited the resolution adopted by the U.N. General Assembly, which invoked in turn the CRPD’s commitment “that children with disabilities should enjoy a full and decent life, in conditions that ensure dignity, promote self-reliance, and ensure the full enjoyment of all human rights and fundamental freedoms on an equal basis with other children without disabilities.”176 * * * In short, cities, counties, and states across the country have affirmed their support for the CRPD, with many forcefully denouncing the federal government’s unwillingness to ratify the Convention. These initiatives came from subnational governments that represent the interests of millions of people with disabilities.177 But these numbers alone, although indicative of the far-reaching subnational advocacy in favor of the CRPD, do not paint the full picture. As I explain below, an expressive analysis of these initiatives gives them more nuance, both from the standpoints of federalism and human rights. 172 A. Res. 75, 2014 Leg., 216th Sess. (N.J. 2014); S. Res. 69, 2014 Leg., 216th Sess. (N.J. 2014). 173 Id. 174 Id. 175 A. Con. Res. 188, 2020 Leg. (Cal. 2020). 176 G.A. Res 62/139 (Dec. 18, 2007). 177 Well over one million people with disabilities reside in Hawaii, New Jersey, and Puerto Rico alone. See generally YANG-TAN INSTITUTE ON EMPLOYMENT AND DISABILITY AT THE CORNELL UNIVERSITY ILR SCHOOL, 2017 DISABILITY STATUS REPORT HAWAII (2017); YANG-TAN INSTITUTE ON EMPLOYMENT AND DISABILITY AT THE CORNELL UNIVERSITY ILR SCHOOL, 2017 DISABILITY STATUS REPORT NEW JERSEY (2017); YANG-TAN INSTITUTE ON EMPLOYMENT AND DISABILITY AT THE CORNELL UNIVERSITY ILR SCHOOL, 2017 DISABILITY STATUS REPORT PUERTO RICO (2017). April 2022] DUAL FEDERALISM AND THE CRPD 379 entities worldwide.”189 The aspirational purpose embodied by resolutions is thus without boundaries: They are amicable gestures of solidarity that occur in spite and not because of U.S.-centric policy tensions, and they reveal their potentiality only when observed in concert with one another. The Federalist Purpose. Resolutions also offer a time-tested mechanism for subnational entities to reaffirm their role in the American system of federalism. As Justice Anthony Kennedy noted in Cook v. Gralike, “when the Constitution was enacted, respectful petitions to legislators were an accepted mode of urging legislative action.”190 “From the earliest days of our Republic to the present time,” Justice Kennedy continued, “States have done so in the context of federal legislation.”191 And at least since the country declined to ratify the CEDAW, local and state governments have extended this tradition to the realm of treaty ratification. Dave Fagundes has also observed that although “states have not used their communicative abilities to check the federal government in the robust way that the framers intended, they have taken a more modest role in this respect, using legislative resolutions to urge and to criticize federal action.”192 Fagundes extended this observation to local governments, implying that municipal and county resolutions can become ways for non-federal actors to elbow their way into national policy discourse.193 But I would go one step further and argue that resolutions promote certain federalist values that acquire particular salience when the federal government refuses to join the world in a specific human rights cause. Consider first the principle of “tyranny prevention,” which describes how local and state governments “can serve as and foster political counterweights to the incumbent powers within the federal government.”194 What follows is that subnational units “can be the voice of their citizens’ discontent” and use their “political infrastructures to alert their citizens when the federal government adopts policies inconsistent with their citizens’ preferences or best interests.”195 189 Id. at 422. 190 Cook v. Gralike, 531 U.S. 510, 529 (2001) 191 Id. 192 Dave Fagundes, State Actors as First Amendment Speakers, 100 NW. U. L. REV. 1637, 1686 (2006) (footnotes omitted). 193 See id. (“[T]he expressive capacities of state and local governments may become a particularly important way for these entities to assert their institutional identities and opinions vis-à-vis the federal government.”) (emphasis added). 194 Cox, supra note 180, at 1324. 195 Id. at 1325. 380 JOURNAL OF CONSTITUTIONAL LAW [Vol. 24:2 Subnational support for the CRPD, and particularly the resolutions denouncing the federal government’s inaction like those issued by San Francisco and Hawaii, are cases in point. They both call out the Senate’s decision not to export American wisdom on disability law and policy abroad.196 As such, they are acts of resistance, albeit “restrained,” which are memorialized as part of the country’s broader history of subnational opposition to federal policy.197 Consider then the principle of autonomy, which Bullman-Pozen and Gerken describe as follows: Autonomy prevents the federal government from quashing the opposition or playing its lawmaking trump card. It creates zones of policymaking independence where states can experiment and depart from federal norms. It gives states the freedom to speak against an overweening federal government. It even allows states to check the national government by holding federal officials accountable for abusing their power.198 One plausible account under this view is that resolutions help demarcate an area where local and state governments can make pronouncements on issues traditionally dominated by the federal government. For instance, by certifying resolution copies to U.N. officials, which cities (e.g., the City of Berkeley) and states (e.g., New Jersey) have done, the intention is to create alliances between subnational entities and important international players. Local and state officials can then make their voices heard on issues of global importance, and although the force of their voices pales in comparison to those of sovereign nations, the mere act of taking a normative stance can become a symbol of autonomy. Resolutions are also politically efficient means of promoting perceptions of subnational autonomy,199 and of attracting the support of ordinary 196 I think here specifically of an op-ed written by Daniel W. Drezner that puts this idea in far stronger, and facetious, language: Unlike Law of the Sea, not ratifying [the CRPD] doesn’t appreciably harm U.S. interests. It does, however, make the United States look pretty dysfunctional. In essence, the U.S. Senate just rejected a treaty on protecting the disabled that would have globalized the status quo in U.S. law on this issue. To use the parlance of international relations scholars, this is dumber than a bag of hammers. Daniel W. Drezner, Praised Be the Glorious Sovereigntists who Protect the U.S.A. from . . . from . . . Wait, What?, FOREIGN POL’Y (Dec. 5, 2012, 1:33 AM), https://foreignpolicy.com/2012/12/05/ praised-be-the-glorious-sovereigntists-who-protect-the-u-s-a-from-from-wait-what/ [https://perma.cc/X5A9-WTVD]. 197 Id. 198 Bulman-Pozen & Gerken, supra note 18, at 1265 (footnote omitted). 199 See Cox, supra note 180, at 1329. April 2022] DUAL FEDERALISM AND THE CRPD 381 citizens.200 According to Todd Pettys, if subnational units and the federal government “are genuinely to compete for the people’s affection, each must enjoy a broad measure of freedom to select those avenues by which it will try to earn that affection . . . .”201 From this perspective, then, localities and states will tend to exploit policy initiatives that not only show their uniqueness as compared to other states, but that can also fill policy vacuums left by federal inertia. This idea strongly applies here, where those who support the CRPD will be more “affectionate” toward equally supportive subnational entities than toward the less supportive federal government. * * * In short, expressivism offers a powerful framework for analyzing the utility of subnational resolutions. For one, although resolutions appear to be no more than “soft law”—international law parlance used to denote non- binding yet normatively influential policy202—they are tools that local and state governments have employed to proclaim support for the CRPD, among other human rights treaties. They also buttress traditional principles of federalism, specifically those of tyranny prevention and promotion of subnational autonomy. This dual purpose, along with the amalgamation of local and state promotion efforts outlined above, illustrate the strong support that subnational entities have shown for the CRPD. But the Convention’s influence on subnational policy does not stop there. States across the country have enacted SDM statutes, materializing Article 12’s commitment to recognizing “that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.”203 These statutes thus offer a spacious window through which to observe and appreciate foreign affairs federalism in practice. 200 See generally, Todd E. Pettys, Competing for People’s Affection: Federalism’s Forgotten Marketplace, 56 VAND. L. REV. 329 (2003). 201 Id. at 359. 202 Of course, soft law is the subject of much definitional debates between international law scholars in which I do not wish to partake. See, e.g., C.M. Chinkin, The Challenge of Soft Law: Development and Change in International Law, 38 INT’L & COMP. L. Q. 850 (1989) (“There is a wide diversity in the instruments of so-called soft law which makes the generic term a misleading simplification.”); A. E. Boyle, Some Reflections on the Relationship of Treaties and Soft Law, 48 INT’L & COMP. L. Q. 901, 901–2 (1999) (discussing different features of soft law). My intention here is to pin resolutions within a lexicon that is easily understood by the reader. 203 United Nations Convention on the Rights of Persons with Disabilities (CRPD), Art. 12(2), https://www.ohchr.org/EN/HRBodies/CRPD/Pages/ConventionRightsPersonsWithDisabiliti es.aspx [https://perma.cc/J3GB-BU5J] (last visited May 21, 2022). 384 JOURNAL OF CONSTITUTIONAL LAW [Vol. 24:2 “legal capacity” of people with disabilities?214 Throughout the CRPD’s negotiations, which spanned eight sessions of an Ad Hoc Committee between 2002 and 2006, this question divided the Convention’s drafters.215 And although a comprehensive exposition of the process would defy the scope of this work, I nevertheless extract some key insights here. On one side of the debate were many nations that advocated for a conception of equal recognition that allowed for guardianship. For example, in an early foundational draft crafted in 2003 during a regional workshop in Bangkok, guardianship was the chosen model for regulating the administration of property. Article 25 stated that “[w]here a person with intellectual disability is not able to exercise this right, the legal guardian of that person shall be entitled to exercise the right on behalf of, and in the interests of, that person.”216 In another draft submitted by representatives from India, guardianship also appeared in the context of protecting the right to work and social security.217 With these drafts thus re-emerged the assumption that certain people with disabilities, particularly those with mental and psychosocial disabilities, lack the ability to make decisions for themselves. This assumption has a long history, from the time of Cicero through the medieval period and right up to modern times.218 In Ancient Rome, guardianship laws empowered the state to limit the decision-making capacity of people considered “incompetent,” including slaves, women, children, and foreigners.219 Still today, countries in all populated continents 214 Nilsson and Series define legal personality as “the ability to bear rights and duties under law” and legal capacity as “whether and how one can exercise, claim, or defend those rights.” Nilsson & Series, supra note 26, at 340. 215 Id. at 343. 216 Chair’s Draft Elements of a Comprehensive and Integral International Convention on Protection and Promotion of the Rights and Dignity of Persons with Disabilities, U.N. ENABLE (Dec. 2003), https://www.un.org/esa/socdev/enable/rights/wgcontrib-chair1.htm [https://perma.cc/2FJ9- AUAE]. 217 Draft Convention–India, U.N. ENABLE, https://www.un.org/esa/socdev/enable/rights/wgcontrib- india.htm [https://perma.cc/V94A-ZMNU] (last visited May 21, 2022) (encouraging financial institutions to support the self-employment of “parents/guardians” and ensuring that people with disabilities have “access to legal guardianship for the protection of their person as well as of their property”). 218 Peter M. Horstman, Protective Services for the Elderly: The Limits of Parens Patriae, 40 MO. L. REV. 215, 218–19 (1975) (discussing the history of guardianship while focusing the historical analysis on medieval England). 219 See ARLENE S. KANTER, THE DEVELOPMENT OF DISABILITY RIGHTS UNDER INTERNATIONAL LAW: FROM CHARITY TO HUMAN RIGHTS 238–39 (2015) (discussing the origins of guardianship laws); see also Arlene S. Kanter & Yotam Tolub, The Fight for Personhood, Legal Capacity, and Equal Recognition Under Law for People with Disabilities in Israel and Beyond, 39 CARDOZO L. REV. 557, 561 (2017) (“Under Roman law, guardianship limited the legal capacity of slaves, women, children, and foreign nationals.”). April 2022] DUAL FEDERALISM AND THE CRPD 385 of the world have guardianship laws, while in the United States, all 50 states and the District of Columbia have enacted such statutes.220 Nevertheless, despite the pervasiveness of guardianship laws at the time of the negotiations, DPOs fervently opposed enshrining guardianship in the treaty’s text. In their view, any textual recognition of guardianship would contradict the right to self-determination that the Convention was designed to protect and uphold. Inclusion International, for example, affirmed that “traditional guardianship laws are used to control people’s lives and to deny people the right to make decisions on their own behalf.”221 The World Network of Users and Survivors of Psychiatry similarly held that “[a]utonomy and self-determination are dependent on having sufficient access to resources so that economic and social coercion do not lead to decision-making that does not reflect the person’s own values and feelings.”222 Although differences between both sides were palpable, not all was lost. The working group, which the Ad Hoc Committee had convened during the second session to produce a draft of the treaty, prepared a first version of the CRPD that strategically blurred the distinction between guardianship and SDM—a first step toward what Amita Dhanda has called a “variegated approach” to the question of legal capacity.223 It laid out the general principle that “persons with disabilities have full legal capacity on an equal basis as others, including in financial matters . . . .”224 But it went a step further, creating a safeguard mechanism where people with disabilities could delegate decision-making to others, but only in specific circumstances.225 220 See Guardianship, WORLD HEALTH ORG., http://www.mindbank.info/search? search_text=%22guardianship%22&page=1 [https://perma.cc/4YNX-ZSTG] (last visited May 21, 2022) (showing that countries like Japan, China, Sweden, United Kingdom, Canada, Finland, Australia, Malta, and Uzbekistan all have guardianship laws); Leslie Salzman, Rethinking Guardianship (Again): Substituted Decision Making as a Violation of the Integration Mandated of Title II of the Americans with Disabilities Act, 81 U. COLO. L. REV. 157, 176 (2010). 221 Id. 222 Contribution by World Network of Users and Survivors of Psychiatry (WNUSP), U.N. ENABLE (Dec. 30–31, 2003, & Jan. 5, 2004), https://www.un.org/esa/socdev/enable/rights/wgcontrib-wnusp.htm [https://perma.cc/F25P-NXG9]. 223 See Dhanda, supra note 212, at 440. 224 Draft Article 9, Equal Recognition as a Person Before the Law, U.N. ENABLE, https://www.un.org/esa/socdev/enable/rights/ahcwgreporta9.htm [https://perma.cc/DCN8- 4P7R] (May 21, 2022). 225 To this effect the text contained the following language: States Parties shall[] ensure that where assistance is necessary to exercise that legal capacity[,] the assistance is proportional to the degree of assistance required by the person concerned and tailored to their circumstances, and does not interfere with the legal 386 JOURNAL OF CONSTITUTIONAL LAW [Vol. 24:2 This provision gave nations substantial discretion in determining the correct balance between promoting autonomy and preserving areas for substituted decision-making. Because of this considerable discretion, however, DPOs remained leery of the working group’s proposal. In a footnote to the draft, they clarified “that where others are exercising legal capacity for a person with disabilities, those decisions should not interfere with the rights and freedoms of the person concerned.”226 According to Dhanda, that footnote was textual proof of the latent tension between the negotiating coalitions— an “opposition that had to be addressed before the final draft text for ‘legal capacity’ in the Convention could be accepted.”227 From that point forward, the stakeholders continued to debate the merits of guardianship versus SDM.228 Two years after the working group submitted its first draft, the negotiations appeared to have reached a decisive juncture. The European Union (E.U.), with the support of Canada, Australia, Norway, Liechtenstein, Costa Rica, and the United States, submitted a draft of Article 12 that tried to bring together “safeguards required for guardianship with some of the standards desired for supported decision-making.”229 One critical clause read as follows: States Parties shall ensure that all legislative or other measures which relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person’s circumstances, apply for the shortest time possible and are subject to periodic impartial and independent judicial review. The capacity, rights and freedoms of the person; [and] relevant decisions are taken only in accordance with a procedure established by law and with the application of relevant legal safeguards. Id. (footnote omitted). 226 Id. 227 Dhanda, supra note 212, at 441. 228 As Nilsson and Series explain: The records of the Ad Hoc Committee discussions show that early on many participating states expressed confusion or disagreement about the meaning of ‘legal capacity’. Some states distinguished between the ‘capacity to hold and bear rights’ and the ‘capacity to act’, arguing that whilst the former could not be limited the latter could be. In part this disagreement mirrored different understandings of legal capacity in the various legal systems. This distinction was strongly opposed by the IDC, as the ‘capacity to act’ was deemed vital for self-determination. Nilsson & Series, supra note 26, at 345 (footnote omitted). 229 Dhanda, supra note 212, at 450. April 2022] DUAL FEDERALISM AND THE CRPD 389 particularity—that is, the dynamic role that these national entities have played in prompting state action on the issue of SDM—is thus important for understanding the interplay between foreign affairs federalism and Article 12’s implementation on American soil. 1. Planting the SDM Seed In October 2012, two months before the Senate voted against the CRPD, disability rights advocates and organizations held a roundtable in New York City “to discuss the rights of people with intellectual disabilities to make their own decisions, including the impact of the [CRPD].”239 Organized by the ABA and a sub-agency of the ACL, the meeting entitled Beyond Guardianship: Supported Decision-Making by Individuals with Intellectual Disabilities had one goal: “to explore concrete ways to move from a model of substituted decision- making, like guardianship, to one of supported decision-making, consistent with the human right of legal capacity.”240 Scholars have described this roundtable as a turning point,241 including Judge Kristin Booth Glen who observed that the meeting was an acknowledgment of “the need for some central entity to gather and disseminate information on SDM.”242 Until then, efforts to promote autonomous decision-making among persons with disabilities had occurred haphazardly. Researchers during the 1990s had tried to find ways to promote self-determination for youth, in part because they had not achieved 239 Roundtable, supra note 27. 240 Id. 241 See Glen, supra note 106, at 501 (“Perhaps the first major meeting in the United States specifically directed at legal capacity and SDM was [the] interdisciplinary roundtable held in New York City in 2012.”); Peter Blanck & Jonathan G. Martinis, “The Right to Make Choices”: The National Resource Center for Supported Decision-Making, 3 AM. ASS’N ON INT. & DEV. DISABILITIES 24, 27 (2015) (making clear that the roundtable was one of the earliest concerted efforts to advocate broadly for SDM in the United States); Dilip V. Jeste et al., Supported Decision Making in Serious Mental Illness, 81 PSYCHIATRY 28, 33 (listing the 2012 roundtable as an important development regarding SDM policy in the United States); Dohn Hoyle, Reflections on Autonomy, THE ARC (Oct. 11, 2017), https://arcmi.org/resource-center/documents/reflections-on-autonomy/ [https://perma.cc/A433-35NH] (explaining that the roundtable “meeting was not only affirmation that a number of people had moved ‘beyond guardianship’ but were also committed to doing something about it.”); Resolution, Am. Bar Ass’n 10 (Aug. 2017), https://health.ucdavis.edu/mindinstitute/centers/cedd/pdf/sdm-aba-resolution.pdf [https://perma.cc/8D6V-LKJZ] (describing the roundtable as the first of its kind on a national scale). 242 Glen, supra note 106, at 501. 390 JOURNAL OF CONSTITUTIONAL LAW [Vol. 24:2 similar economic and social outcomes as their peers without disabilities.243 Later, in 2009, the Texas legislature created “a pilot program to promote the provision of supported decision-making services to persons with intellectual and developmental disabilities and persons with other cognitive disabilities who live in the community.”244 But, according to Glen, the Texas pilot program had produced disappointing results, and on the whole, self- determination policies until the 2012 roundtable had lacked the type of unified, human rights-oriented vision that the CRPD had inspired.245 The roundtable was also a way to form consensus around the failures of guardianship as a way of protecting the interests of people with disabilities.246 One argument was that guardianship arrangements had become overused and misapplied, too often usurping the principle that they should be “designed as a last resort, applied only when an individual lacks capacity to make decisions.”247 Another problem was that plenary guardianship orders—where guardians have full decision-making capacity over their wards—were far more common than limited guardianship orders.248 According to a national survey conducted by Pamela Teaster and her colleagues, “there were eleven times more plenary than limited guardianships of property and four times more plenary than limited guardianships of the person.”249 Guardianship orders had in effect become blunt instruments that judges would employ reflexively and with little regard to the needs of the wards. A second argument was that guardianship routinely led wards to feelings of isolation, helplessness, and loneliness.250 These effects undermined the 243 See, e.g., Janis Chadsey Rusch, Frank R. Rusch & Mark F. O’Reilly, Transition from School to Integrated Communities, 12 REMEDIAL & SPECIAL EDUC. 23 (1991); Michael Wehmeyer & Michelle Schwartz, Self-Determination and Positive Adult Outcomes: A Follow-Up Study of Youth with Mental Retardation or Learning Disabilities, 63 EXCEPTIONAL CHILDREN 245 (1997). 244 TEX. GOV’T CODE ANN. § 531.02446 (2009) (expired on Sept. 1, 2013). 245 Glen, supra note 106, at 508 n.75 (“Although [the pilot program] was able to educate and train a number of volunteers on the principles of SDM, it only established one [SDM agreement].”). 246 See Roundtable, supra note 27 (“The Roundtable included conversation about legal and other reforms needed in this country around decision-making, and changes that might lead to the end of guardianship as we know it today.”). 247 Kohn, Blumenthal & Campbell, supra note 105, at 1117. 248 See Lawrence A. Frolik, Guardianship Reform: When the Best is the Enemy of the Good, 9 STAN. L. & POL’Y REV. 347, 354 (1998) (“Plenary guardianship continues to be used despite the statutory alternative of limited guardianship.”). 249 Pamela B. Teaster et al., Wards of the State: A National Study of Public Guardianship, 37 STETSON L. REV. 193, 233 (2007). 250 See Kohn, Blumenthal & Campbell, supra note 105, at 1119–1120 (summarizing studies that indicated that guardianship leads to isolation loneliness and contributes to undermining “wards’ physical and psychological well-being by reducing their sense of control over their own lives.”). April 2022] DUAL FEDERALISM AND THE CRPD 391 idea that guardianship operated in favor of wards’ best interests, and they raised the concern that the initiation of guardianship was in no way tethered to benevolence and concern. Jennifer Wright found to this effect that “the overwhelming majority of guardianships are initiated by someone other than the proposed ward,” serving the needs of other, often uninvolved parties.251 A third argument was that guardianship ran the risk of contravening Title II of the ADA and its community integration mandate, which Justice Ruth Bader Ginsburg famously elucidated in Olmstead v. L.C.252 By curtailing someone’s right to decision-making, the argument goes, the state fails to account for less restrictive alternatives like SDM arrangements, presumptively violating the ADA.253 On these views, the upshot of the 2012 roundtable was the need to formalize a path forward for the development of nationwide SDM efforts.254 The ACL took the lead by creating a grant in 2014 for the creation of a “first- of-its-kind” hub called the National Resource Center for Supported Decision-Making (“NRC-SDM”), which aimed to conduct and disseminate 251 Jennifer L. Wright, Guardianship for Your Own Good: Improving the Well-Being of Respondents and Wards in the USA, 33 INT’L J. L. & PSYCHIATRY 350, 353 (2010). 252 See generally Leslie Salzman, Rethinking Guardianship (Again): Substituted Decision Making as a Violation of the Integration Mandated of Title II of the Americans with Disabilities Act, 81 U. COLO. L. REV. 157 (2010). The ADA’s community inclusion mandate requires states to forego institutional treatment only “when the State’s treatment professionals determine that such placement is appropriate, the affected persons do not oppose such treatment, and the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities.” Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 607 (1999). 253 Title II of the ADA prohibits discrimination of people with disabilities in areas of state and government services, providing that people with disabilities cannot “be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132 (1990). As Salzman explains, “when the state appoints a guardian and restricts an individual from making his or her own decisions, the individual loses crucial opportunities for interacting with others.” Salzman, supra note 252, at 194. Guardianship thus results in a type of segregation “that parallels the isolation of institutional confinement,” violating Title II’s integration mandate as interpreted in Olmstead. Id. 254 The roundtable also occurred a few months both the case of Margaret “Jenny” Hatch made national headlines. Called a “hero to the disabled,” Ms. Hatch defeated in Virginia state court an attempt to being placed under plenary guardianship. Theresa Vargas, Virginia Woman with Down Syndrome Becomes Hero to the Disabled, WASH. POST (Aug. 17, 2013), https://www.washingtonpost.com/local/virginia-woman-with-down-syndrome-becomes-hero- to-the-disabled/2013/08/17/0da21766-062e-11e3-a07f-49ddc7417125_story.html [https://perma.cc/N4DA-SHQ7]. Ms. Hatch’s case inspired the creation of the Jenny Hatch Justice Project, which continues to valiantly advocate for self-determination for people with disabilities. See generally THE JENNY HATCH JUSTICE PROJECT, http://www.jennyhatchjustice project.org/ [https://perma.cc/ZEZ2-SMJ5] (last visited May 21, 2022). 394 JOURNAL OF CONSTITUTIONAL LAW [Vol. 24:2 Texas. Texas enacted the Supported Decision-Making Agreement Act in 2015,262 the first of its kind in the country. But it has no explicitly discernible roots in Article 12 jurisprudence. As Theodorou has found, the Texas legislature’s interest in SDM “predates the CRPD’s entrance into force” and passed the statute largely in response to the “nationwide concern about the ability of state courts to process and monitor the enormous influx of guardianship cases predicted to accompany the aging of the population.”263 Propelling the statute’s enactment was “the traditionally conservative belief that family and private charity, not the state, should provide support to those who need assistance.”264 The Texas SDM statute thus “shows that at least some forms of supported decision-making can have broad appeal in conservative legislatures where lawmakers may be skeptical” of international human rights developments.265 Delaware. Delaware followed suit in 2016.266 Before the Delaware legislature enacted its SDM statute, the Delaware Developmental Disabilities Council (“DDDC”) received a grant sponsored by the NRC- SDM, which played a catalyzing role in driving SDM awareness-raising in the state.267 As part of the deliverables associated with the grant, the DDDC partnered with the Autistic Self Advocacy Network (“ASAN”)—a national disability rights organization with a strong record of support for the CRPD268—to assist with the drafting of the SDM bill that eventually became law.269 262 TEX. EST. CODE ANN. § 1357.002 (2015). 263 Theodorou, supra note 238, at 979–80, 987. 264 Id. at 980. 265 Id. at 1012. 266 DEL. CODE ANN. tit. 16 §§ 9401a–9410a (2016). 267 See generally NAT’L RES. CTR. FOR SUPPORTED DECISION-MAKING, FINAL REPORT 2016 DELAWARE 1 (2016), http://www.supporteddecisionmaking.org/sites/default/files/sdm-cop- 2016-delaware.pdf [https://perma.cc/6LZA-4KVA]. 268 See, e.g., The Right to Make Choices: International Laws and Decision-Making by People with Disabilities, AUTISTIC SELF ADV. NETWORK, THE RIGHT TO MAKE CHOICES: INTERNATIONAL LAWS AND DECISION-MAKING BY PEOPLE WITH DISABILITIES, https://autisticadvocacy.org/wp- content/uploads/2016/02/Easy-Read-OSF-For-Families-v3.pdf [https://perma.cc/67MS- SP3V] (last visited May 21, 2022); AUTISTIC SELF ADV. NETWORK, ASAN’S INTERNATIONAL SUMMIT ON SUPPORTED DECISION-MAKING AND TRANSITION TO THE COMMUNITY: CONCLUSIONS AND RECOMMENDATIONS (2016), https://autisticadvocacy.org/wp- content/uploads/2018/06/SDM-Summit-Conclusions-and-Recommendations.pdf [https://perma.cc/GK5A-CXQU]; White House Celebration of Disability Rights, AUTISTIC SELF ADV. NETWORK (July 26, 2009), https://autisticadvocacy.org/2009/07/white-house-celebration-of- disability-rights/ [https://perma.cc/KR64-JUY2]. 269 See NAT’L RES. CTR. FOR SUPPORTED DECISION-MAKING, supra note 267, at 3 (explaining that the DDDC reviewed model legislation provided by ASAN before introducing a draft bill before the Delaware Senate on April 14, 2016). April 2022] DUAL FEDERALISM AND THE CRPD 395 Wisconsin. The next state to pass an SDM statute was Wisconsin in 2018.270 The statute stemmed from advocacy efforts by many disability rights organizations,271 including the Wisconsin Board for People with Developmental Disabilities (“BPDD”), which, like the DDDC, received a grant from the NRC-SDM.272 Part of the BPDD’s engagement efforts was to craft a draft statute to offer to state legislators.273 During legislative hearings, the BPDD highlighted the nationwide impact that the NRC-SDM and the CRPD had had on SDM policy.274 District of Columbia. Mere days after Wisconsin enacted its SDM statute, the District of Columbia enacted the Disability Services Reform Amendment Act of 2018, formally authorizing the creation of SDM agreements.275 Unlike the Delaware and Wisconsin SDM statutes, the District of Columbia law did not stem from NRC-SDM grant funding.276 But several features of the statute’s history highlight how the CRPD provided inspiration for its enactment. First, several members of the coalition responsible for the law’s passage had spoken publicly about their support for the CRPD.277 Second, stakeholders during hearings on the bill, including 270 Assemb. 655, 2017 Leg. (Wis. 2017). 271 The Wisconsin legislature’s Legislative Council collected documents as part of hearings on the SDM statute, including testimonials by The Arc Wisconsin, Disability Rights Wisconsin, the Greater Wisconsin Agency on Aging Resources, Inc., the Wisconsin Aging Advocacy Network, the Wisconsin Board for People with Developmental Disabilities, and AARP Wisconsin. See Hearing on Assemb. 655 Before the Assemb. Comm. on Family Law, 2017 Leg. (Wis. 2017) (statement of Kathy Bernier, State Representative). 272 See generally NAT’L RES. CTR. FOR SUPPORTED DECISION-MAKING, ANNUAL REPORT–2016 WISCONSIN 1 (2016), http://www.supporteddecisionmaking.org/sites/default/files/sdm-cop- 2016-wisconsin.pdf [https://perma.cc/2W6V-SLU3]. 273 Id. 274 Hearing on Assemb. 655 Before the Assemb. Comm. on Family Law, 2017 Leg. (Wis. 2017), supra note 271 (“Nationally, disability organizations, attorneys, courts, and state legislatures are recognizing the value of SDM as an alternative to guardianship. SDM has been endorsed by the [the ACL], which funds the [SDM-NRC], and has gained international recognition, notably in the [CRPD].”). 275 Disability Services Reform Amendment Act, 65.12. D.C. Reg. 002823-46 (Mar. 12, 2018). 276 District of Columbia: Guardianship Laws, NAT’L RES. CTR. FOR SUPPORTED DECISION-MAKING, http://supporteddecisionmaking.org/state-review/district-columbia [https://perma.cc/Z6ED- CM4Q] (last visited May 21, 2022). 277 Six organizations along with Robert D. Dinerstein formed the coalition that drove the D.C. SDM law’s enactment. See generally Landmark Law Advances the Rights of D.C. Residents with Disabilities, QUALITY TR., https://www.dcqualitytrust.org/2018dclaw/ [https://perma.cc/TB9T-K2D3] (last visited May 21, 2022). Among the organizations was Quality Trust for Individuals with Disabilities, which has demonstrated a record of support for the CRPD. See, e.g., Symposium, Cathy Ficker Terrill, Tina Campanella, & Kerri Melda, Supported Decision-Making: An Agenda for Action, COUNCIL ON QUALITY & LEADERSHIP (Jan. 2014), https://www.c-q-l.org/wp- content/uploads/2019/12/CQL-Supported-Decision-Making-Agenda-For-Action-2015.pdf 396 JOURNAL OF CONSTITUTIONAL LAW [Vol. 24:2 Disability Rights D.C. and leading disability rights advocate Robert Dinerstein, linked the importance of the bill with the CRPD.278 Third, the Committee on Human Services, which the D.C. Council charged to review the bill, referred to Dinerstein’s scholarship on the CRPD in assessing whether the bill conformed to basic implementation guidelines.279 Maine. The Maine legislature reformed the Maine Uniform Probate Code law in April 2018, recognizing SDM agreements as a less restrictive alternative to guardianship.280 The legislature brought changes to the statute about one year later, although it largely kept in place the parameters that it had set out to ensure the availability of SDM.281 Behind the scenes, Disability Rights Maine (“DRM”)—recipient of two NRC-SDM grants282—spearheaded statewide SDM advocacy efforts. Through its first NRC-SDM grant, DRM helped form a coalition of disability rights organizations dedicated to reforming the guardianship status quo.283 DRM’s outreach and mobilization efforts led it to receive an invitation to a Joint Standing Committee on Judiciary work session to discuss SDM.284 This discussion influenced the Joint Committee to ask the Maine Probate and Trust Law Advisory Commission to write a report on the feasibility and wisdom of adopting SDM in the Maine Probate Code. That [https://perma.cc/3CY4-SPQ2] (associating SDM with the enactment of the CRPD). Dinerstein has also demonstrated clear support for the CRPD through his scholarship. See, e.g., Robert D. Dinerstein, Implementing Legal Capacity Under Article 12 of the UN Convention on the Rights of Persons with Disabilities: The Difficult Road from Guardianship to Supported Decision-Making, 19 HUM. RTS. BRIEF 1 (2012). 278 See Citizens with Intellectual Disabilities Civil Rights Restoration Act of 2017: Hearing on B. 22-154 Before the Comm. on Hum. Services, 2017 Council (D.C. 2017), (including testimonial documents by Disability Rights D.C. and Dinerstein). 279 See generally COUNCIL OF THE D.C. COMM. ON HUM. SERVICES, REPORT ON BILL 22-0154, THE DISABILITY SERVICES AND REFORM ACT, B. 22-0154 (citing scholarship by Dinerstein on how to implement Article 12 of the CRPD). 280 See H.R. 123, 128th Me. Leg., First Reg. Sess. (2017) 281 See An Act to Correct Errors and inconsistencies Related to the Maine Uniform Probate Code and to Make Other Substantive Changes, H.R. Rep. No. 1535, 1st Sess. (Me. 2019); Maine Uniform Guardianship, Conservatorship and Protective Proceedings Act, ME. REV. STAT. tit. 18-C, §§ 5- 101–963 (2019). 282 See Disability Rights Maine Symposium, Supported Decision-Making in Maine, SUPPORT MY DECISION (2019) (describing that the DRM received grants by SDM-NRC in 2015 and 2017). 283 See generally STATE GRANT REPORT: DISABILITY RIGHTS MAINE, NAT’L RES. CTR. FOR SUPPORTED DECISION-MAKING, http://www.supporteddecisionmaking.org/sites/default/files/ sdm-cop-2016-maine.pdf [https://perma.cc/5CRV-9Y6C] (last visited May 21, 2022). 284 See id at 9. (“On January 28, 2016, DRM was invited to speak on Supported Decision-Making during a work session in which the Judiciary Committee considered the adoption of the [Uniform Probate Codate].”). April 2022] DUAL FEDERALISM AND THE CRPD 399 legislature has carved out SDM agreements as “a less restrictive alternative.”299 The Missouri Developmental Disabilities Council (“MDDC”) has played a key role in advocating for these arrangements. How the MDDC used the CRPD as a basis for its advocacy philosophy is unclear. On different occasions, however, it has used scholarship on Article 12 to justify its support for SDM arrangements.300 At a minimum, therefore, Article 12 principles appear to have inspired at least some action on the part of grassroots disability advocates in the state. Nevada. The SDM statute in Nevada came into effect in May 2019.301 Unlike other states that have largely relied on disability rights organizations to promote and raise awareness on SDM, Nevada saw much of its advocacy performed by judges on the state’s Second Judicial District Court, including most notably Judge Frances Doherty.302 In fact, to my knowledge, the Second Judicial District Court was the first judicial entity to receive a grant from the NRC-SDM.303 This grant paved the way for a statewide outreach event in November 2017, which invited representatives of the NRC-SDM, the ABA, and the Quality Trust for Individuals with Disabilities to share SDM developments with disability rights stakeholders.304 Judge Egan K. Walker of the Second 299 Id. 300 See, e.g., DEV. DISABILITIES COUNCIL, THE RIGHT TO MAKE CHOICES, https://moddcouncil.org/wp-content/uploads/2019/07/MODDC-Supported-Decision- Making-Brochure.pdf [https://perma.cc/H7LZ-HK3R] (last visited May 21, 2022) (citing Dinerstein’s scholarship on Article 12 implementation); Self-Determination and Guardianship, MISSOURI DEVELOPMENTAL DISABILITIES COUNCIL, https://moddcouncil.org/wp- content/uploads/2019/04/SES-Missouri-DD-Council-Guardianship-Paper-FINAL.pdf [https://perma.cc/8KPL-RG9U] (last visited May 21, 2022) (citing scholarship by Peter Blanck and Jonathan Martinis linking SDM developments with the advent of the CRPD). 301 See NEV. REV. STAT. ANN. §§ 162C.010–330 (2019). 302 See Darcy Spears, Dignity and Choice Sought in Guardianship Alternative in Nevada, KTNV L.V. (July 17, 2017, 6:00 PM), https://www.ktnv.com/news/contact-13/dignity-and-choice-sought-in- guardianship-alternative [https://perma.cc/8TS4-6F25] (describing the role of the Second Judicial District Court and Judge Doherty in “spearheading the effort to fulfill a fundamental promise: the right to make choices in our own lives with the support of trusted family and friends.”). 303 See generally Media Release, Washoe County, Second Judicial District Court Leads Statewide Event: Supported Decision-Making as an Alternative to Guardianship—a Nevada Conversation, WASHOE CNTY. (2017), https://www.washoecourts.com/OtherDocs/Outreach/SDMALasVegasPressReleaseRevisedFi nal.pdf?t=6/6/2020%202:29:07%20PM [https://perma.cc/DG2X-CJ5R]. 304 The presentation given during the November 28, 2017, event also makes mention of the CRPD. See Supported Decision-Making As an Alternative to Guardianship, SECOND JUD. DIST. CT. STATE NEV. CNTY. WASHOE (Nov. 28, 2017), https://www.washoecourts.com/OtherDocs/Adult Guardianship/SDMASurveys/November28SDMAPresentationMaterials.pdf [https://perma.cc /8MX8-YNFK] (recognizing, in the PRACTICAL Resource Guide section, the role that Article 12 played in catalyzing SDM policy). 400 JOURNAL OF CONSTITUTIONAL LAW [Vol. 24:2 Judicial District Court along with Judge Doherty went on to testify before the Nevada legislature in support of the SDM bill.305 Judge Doherty went so far as to stating on the record that “[s]ince [the Convention’s] passage, jurisdictions throughout the United States and world have advanced formal and informal protocols to expand accessibility of [SDM] for persons with disabilities,” thereby indicating strong support for Article 12 policy.306 Washington. The Washington legislature also enacted a statute enabling SDM arrangements in May 2019.307 The statute appears to originate from advocacy work performed by a WINGS committee that the NGN helped fund through a 2015 grant.308 That said, the NGN—unlike the ABA, which has a record of funding WINGS committees committed to implementing Article 12 principles—has largely stayed away from publicly endorsing the CRPD. As Theodorou has explained, the NGN funded a WINGS initiative in Texas that paved the way for the Lone Star State to enact its own statute. Thus, except for evidence that shows that some members of the Washington WINGS committee have supported the CRPD in the past, such as Disability Rights Washington,309 little appears to show that the SDM law there stems from pro-CRPD advocacy. Rhode Island. The last SDM statute to pass through a state legislature in 2019 was in Rhode Island.310 Public information on the statute is scarce. What is available, however, shows that a coalition of eight disability rights 305 See generally Hearing on A.B. 480, 2019 Leg. 80th Sess. (Nev. 2019) (statement of the Honorable Judge Egan Walker, Second Judicial District Court of Washoe County, Nev.); Hearing on A.B. 480 Before the S. Jud., 2019 Leg. 80th Sess. (Nev. 2019) (testimony of Presiding Judge Frances M. Doherty, Presiding Judge, Department Twelve, Family Division). 306 Hearing on A.B. 480 Before the S. Jud. Comm., 2019 Leg., 80th Sess. (Nev. 2019) (testimony of the Judge Frances M. Doherty), supra note 305. 307 See WASH. REV. CODE §§ 11.130.010–915 (2021). 308 In the WINGS report, the committee frames the need for SDM in terms of being able to provide “decisional-support” for people with disabilities. NAT’L GUARDIANSHIP NETWORK, WASHINGTON STATE WINGS REPORT 1 (2016), http://naela.informz.net/NAELA/data/images/PDFs/2015%20washington%20WINGS%20fi nal%20report%20no%20appendices.pdf [https://perma.cc/5NJG-W9XN]. In one of the legislative reports on the bill, the WINGS’s work on guardianship reform initiatives was used to spot limitations to the bill. See H.R. Rep. 2SSB 5604, Leg. Reg. Sess., at 8 (Wash. 2019), http://lawfilesext.leg.wa.gov/biennium/2019-20/Pdf/Bill%20Reports/House/5604- S2%20HBR%20APH2%2019.pdf?q=20200609100931 [https://perma.cc/77HH-2E75] (“This bill is not what would have come out of the WINGS Project. There are some limitations to the act.”). 309 See S. REP. NO. 113-12, supra note 79, at 14 (listing Disability Rights Washington as an organization in favor of ratifying the CRPD). 310 See 42 R.I. GEN. LAWS §§ 42-66.13-1–10 (2019). April 2022] DUAL FEDERALISM AND THE CRPD 401 organizations came into existence to promote SDM across the state.311 The mobilization effort appears to have been influenced, at least in part, by legislative developments in other states, as well as the pro-SDM initiatives formulated by the ACL and ABA.312 Minnesota. Minnesota passed its SDM statute in May 2020.313 The law appears to stem from a confluence of advocacy efforts. First, the NGN helped fund a WINGS committee in 2015, which helped galvanize “stakeholder engagement” on SDM.314 Second, the ACL provided a large grant to Volunteers of America Minnesota and Wisconsin (“VOA”) to open the Center for Excellence in Supported Decision Making, which is dedicated to developing “a replicable statewide model based on supported decision- making to provide alternatives to guardianship and conservatorship in Minnesota.”315 Third, VOA received another grant in 2018, but this time from the NRC-SDM to expand its outreach capacities.316 Together, these efforts led Minnesota State Representative Kelly Moller to sponsor the bill enabling SDM agreements, which eventually passed the Minnesota legislature in less than six months.317 311 See Supported Decision-Making, DISABILITY RTS. R.I., https://ripin.org/ripin/wp- content/uploads/2020/08/HANDOUT-Supported-Decision-Making.pdf [https://perma.cc/ 85WE-3WDP] (last visited May 21, 2022) (“[Disability Rights Rhode Island has] formed a coalition, including Advocates in Action, the Alliance for Better Long Term Care, CPN‐RI, the Developmental Disabilities Council, the Disability Law Center, RIPIN, and the Sherlock Center, to promote using SDM for RI.”). 312 See generally Fact Sheet, Rhode Island’s Supported Decision-Making Legislation, DISABILITY RTS. R.I., http://riddc.org/wp-content/uploads/2019/10/SDM-Fact-Sheet.pdf [https://perma.cc/2TBK -T76A] (last visited May 21, 2022). 313 MINN. STAT. §§ 252A.01–21 (2019). 314 REPORT ON ACTIVITIES AND PROGRESS OF MINNESOTA WINGS, MINN. WINGS, http://naela.informz.net/NAELA/data/images/PDFs/MN-Wings%20Report%20Draft% 203.docx [https://perma.cc/MW4M-MX6J] (last visited May 21, 2022); see also State WINGS Groups in Action, NAT’L GUARDIANSHIP NETWORK, https://www.naela.org/NGN_PUBLIC/NGN_PUBLIC/Wings_States.aspx [https://perma.cc/ 4WRE-7TPG] (last visited May 21, 2022) (listing Minnesota as an NGN grantee). 315 Center for Excellence in Supporting Decision Making, VOLUNTEERS FOR AM., https://www.voamnwi.org/cesdm [https://perma.cc/KB7E-PY5X] (last visited May 21, 2022). The Center for Excellence in Supported Decision Making prepared a report to reflect its work on SDM. See generally CESDM GUIDE TO SUPPORTED DECISION MAKING IN MINNESOTA, VOLUNTEERS FOR AM. (2019), http://supporteddecisionmaking.org/sites/default/ files/ Attachment-3.pdf [https://perma.cc/VD5P-TPBV]. 316 See generally NAT’L RES. CTR. FOR SUPPORTED DECISION MAKING SUBAWARD: FINAL REPORT, VOLUNTEERS FOR AM. (2019), http://supporteddecisionmaking.org/sites/default/ files/Attachment-2.pdf [https://perma.cc/J6YZ-NQ96]. 317 Representative Moller’s testimony praising the work of the disability rights coalition behind the SDM movement in Minnesota is available on YouTube. MNHouseInfo, Changes to Guardianship, 404 JOURNAL OF CONSTITUTIONAL LAW [Vol. 24:2 support for the bill during deliberations.330 Not only has DRC-NH expressed support for the CRPD, but it is also one of fifty-seven Protection and Advocacy agencies governed by the ACL, which are scattered across the country to offer legal and policy assistance to people with disabilities.331 What is more, the legislature noted in its statement of findings that supported decision-making “has been promoted as an alternative to guardianship by . . . the [ABA].”332 These findings show that stakeholders with documented support for the CRPD in general and Article 12 in particular were influential forces behind SDM advocacy in New Hampshire. Illinois. The last state to pass an SDM statute as of this writing is Illinois, where Governor J.B. Pritzker signed the Supported Decision–Making Agreement Act into law on August 27, 2021.333 Public information reveals that the Illinois Guardianship and Advocacy Commission, an organization with no obvious record of support for the CRPD, helped drive advocacy for the law.334 Still, several CRPD-embracing organizations also appear to have supported the measure during legislative hearings, including the Illinois Council on Developmental Disabilities, Equip for Equality, and The Arc of Illinois.335 Beyond the eighteen states listed above and the District of Columbia, many other SDM bills remain in the legislative process. States where bills are pending appear to include Connecticut, Kentucky, Massachusetts, New 330 HB-540, Relative to Supported Decision-Making As an Alternative to Guardianship: Hearing Before the S. Jud. Comm., 2021 Leg. Sess. 2 (N.H. 2021), https://www.gencourt.state.nh.us/bill_status/pdf. aspx?id=4017&q=HearingRpt [https://perma.cc/RF8X-7E9B] (statement of Michael Skibbie, Disability Rights Center-New Hampshire). 331 S. REP. NO. 112-6, supra note 71; see also ADMIN. FOR CMTY. LIVING, State Protection & Advocacy Systems (June 28, 2021), https://acl.gov/programs/aging-and-disability-networks/state-protection- advocacy-systems [https://perma.cc/PP34-UFQ2] (featuring DRC-NH on the drop-down list under “Find your P&A Agency”). 332 H.B. 540, 2021 Reg. Sess. (N.H. 2021). 333 2021 Ill. Legis. Serv. P.A. 102-614 (H.B. 3849) 334 Several representatives from the Illinois Guardianship and Advocacy Commission offered oral testimony in favor of the law during hearings on the measure. See Illinois 102nd General Assembly Witness Slip Information for HB3849, ILL. GEN. ASSEM. (May 18, 2021), https://my.ilga.gov/Hearing/WitnessSlipInfo/132930?hearingId=18556&legislationdocumentid =166477&printerfriendly=True [https://perma.cc/C2V8-WGCN]. Plus, a close alliance appears to have formed between the bill's main sponsor, Representative Lindsey LaPointe, and the commission. See generally Ill. State Rep. Lindsey LaPointe, A Conversation on the Supported Decision Making Act, FACEBOOK (Aug. 27, 2020) https://www.facebook.com/watch/live/?ref= watch_permalink &v=3000072983455245 [https://perma.cc/E8JU-6D7Z]. 335 See S. Rep. No. 112-6, supra note 71, at 10 (mentioning Equip for Equality as a CRPD supporter); S. Rep. No. 113-12, supra note 79 (listing the Illinois Council on Development Disabilities and The Arc of Illinois as CRPD supporters). April 2022] DUAL FEDERALISM AND THE CRPD 405 Mexico, New York, Oregon, Virginia, and West Virginia.336 Another notable mention is Tennessee, another NRC-SDM grant recipient, which makes no specific mention of SDM in its guardianship reform law but included “techniques and processes that preserve as many decision-making rights as practical under the particular circumstances for the person with a disability” as least restrictive alternatives to guardianship.337 * * * I now turn to a brief account of case law that has integrated CRPD jurisprudence in their reasoning.338 I seek to open a field of discussion about the implications of invoking the CRPD and Article 12 as persuasive authority in guardianship cases, an issue that could gain in importance as states continue to legislate SDM. 3. Article 12 in Case Law Judges on New York Surrogate’s Court have incorporated Article 12 principles in guardianship cases on at least five occasions.339 To be clear, these cases are drops in the ocean. In New York City alone, there were more than 2,000 dispositions in guardianship cases in just 2018.340 These cases are also unique because New York, as of this writing, has not enacted an SDM statute. Rather, they rely on Article 12 as persuasive authority to make certain legal determinations, such as avoiding imposing guardianships, requiring the appointment of counsel, or demanding periodic reporting and review of a guardianship appointment. Still, these cases remain notable for two reasons. First, they illustrate how the CRPD has seeped into guardianship jurisprudence at the state court level. Second, they may become the seeds from which a more robust jurisprudence starts flourishing across the country, especially as states continue to codify SDM and by 336 The interested reader can follow the progression of these bills on the SDM-NRC website, which has an updated database of SDM bills. See generally In Your State, NAT’L RES. CTR. FOR SUPPORTED DECISION-MAKING, http://supporteddecisionmaking.org/states [https://perma.cc/2ZY7- QCXJ] (last visited May 21, 2022). 337 TENN. CODE ANN. § 34-1-101(11) (2019). 338 Based on the discussion above, evidence shows that those states that received at least some form of influence from the ACL, the NRC-SDM, or the ABA include Delaware, Wisconsin, the District of Columbia, Maine, Alaska, Indiana, Nevada, and Minnesota. 339 See In re Mark C.H., 906 N.Y.S.2d 419, 433 (Sur. 2010); In re Dameris L., 956 N.Y.S.2d 848, 855 (Sur. 2012); In re Michelle M., 41 N.Y.S.3d 719, at *4, 2016 WL 3981204 (N.Y. Sur. July 22, 2016); In re Zhuo, 42 N.Y.S.3d 530, 532-33 (N.Y. Sur. 2016); Proceeding for the Appointment of a Guardian for Leon Pursuant to SCPA Article 17-A, 43 N.Y.S.3d 769, at *1 (N.Y. Sur. 2016). 340 N.Y. STATE UNIFIED CT. SYS., 2018 ANNUAL REPORT 44 (2018) (listing the number of dispositions in New York City at 2,204 for guardianship cases). 406 JOURNAL OF CONSTITUTIONAL LAW [Vol. 24:2 consequence task judges to decide when such arrangements are preferable to guardianship. One important and often-cited case decided by Judge Glen in 2012 concerned a petition to revoke guardianship of an individual with “mild to moderate mental retardation.”341 Leaning on the fact that the individual had developed a “system of supported decision making”—including neighbors, family members, an active social worker, and a loving partner— Judge Glen terminated the guardianship arrangement that was in place.342 The “persuasive weight” commanded by the CRPD made clear that the individual no longer needed guardianship.343 In Judge Glen’s words, “[t]erminating the guardianship recognize[d] and affirm[ed] [the individual’s] constitutional rights and human rights . . . .”344 This case, along with the four others decided by New York Surrogate’s Court, are congruous insofar as they interpret the CRPD as persuasive but non-binding authority.345 This use of human rights treaties as persuasive authority appears to be consistent across other state courts that have used different non-ratified international human rights treaties to inform decisions on controversial issues, such as same-sex marriage, juvenile death penalty, and the treatment of incarcerated individuals.346 Johanna Kalb has even noted that the use of non-ratified human rights treaties has gained more traction among state courts than their ratified treaties, such as the International Covenant on Civil and Political Rights and the International Convention on the Elimination of All Forms of Racial Discrimination.347 This counterintuitive finding has led Kalb to argue that “advocates should continue to raise alternative soft law uses for international human rights treaties in state courts.”348 341 In re Dameris L., 956 N.Y.S.2d 848, 849 (2012). 342 Id. at 853. 343 Id. at 855–56. 344 Id. at 856. 345 See id. at 855. (“While the CRPD does not directly affect New York's guardianship laws, international adoption of a guarantee of legal capacity for all persons, a guarantee that includes and embraces supported decision making, is entitled to ‘persuasive weight’ in interpreting our own laws and constitutional protections . . . .”). 346 See Johanna Kalb, Human Rights Treaties in State Courts: The International Prospects of State Constitutionalism After Medellín, 115 PENN ST. L. REV. 1051, 1059 (2011) (discussing when state courts have applied international human rights cases to controversial cases). 347 See id. at 1072 (“Despite the fact that many of the norms embodied in the UDHR are found in the ICCPR and in CERD, two treaties that the United States has ratified, arguments based on their persuasive value (as well as the persuasive value of the UDHR) seem to have gained more traction with state courts.”). 348 Id. April 2022] DUAL FEDERALISM AND THE CRPD 409 Finally, the role that the ACL has played in catalyzing state-based advocacy aligns with Galbraith’s insights on cooperative foreign affairs federalism, where “one or both political branches of the federal government provid[e] support for the state or local action through expressions of approval, the provision of funds, or regulatory delegations.”358 The ACL was a key player in the creation of the NRC-SDM, which continues to this day to advocate fervently for broad implementation of Article 12 principles.359 It also, with help from the ABA, provided funds to expand WINGS committees in several states, including Alabama, Alaska, Florida, Idaho, Indiana, Oregon, and Utah.360 One insight emerges from these findings, namely that the ACL has successfully engaged with state-based advocates to implement SDM policy through a host of mediating entities, notably the NRC-SDM and the ABA. This kind of federal–state engagement is standard under a contemporary understanding of foreign affairs federalism. As Davis has explained, state adoption of international standards endorsed by the executive branch is one way that subnational entities have historically engaged in foreign affairs.361 Thus understood, SDM stems from “a more cooperative model that seeks to locate areas in which federal and state governments can, as they already do in many areas, work together on issues of mutual concern.”362 The ACL’s role in pushing broad implementation of SDM also reveals another, more perplexing structural facet of foreign affairs federalism. If the executive branch, through its grantmaking powers, can unilaterally pursue certain treaty mandates eschewed by Congress, then the President gains the privilege of avoiding the constitutionally mandated advice and consent process while concurrently pushing forward partisan foreign affairs policy objectives.363 Sure, SDM is one among a broad swath of policy prescriptions governed by the CRPD. But the implication remains that the executive branch is in effect free to cherry-pick desirable treaty provisions, as the ACL 358 Galbraith, supra note 20, at 2141 (emphasis added). 359 See generally Part III.B.1. 360 See State Wings, AM. BAR ASS’N (Nov. 30, 2021), https://www.americanbar.org/ groups/law_aging/resources/wings-court-stakeholder-partnerships0/state-wings/ [https://perma.cc/manage/create?folder=7380] (listing ACL-funded WINGS). 361 See Davis, supra note 186, at 259 (explaining that “local adoption and implementation of international standards . . . that may or may not have been endorsed by the federal government” is one way that subnational entities have engaged in foreign affairs). 362 GLENNON & SLOANE, supra note 15, at 305. 363 President Obama was unequivocal about his support for the CRPD. See generally Part II.B. 410 JOURNAL OF CONSTITUTIONAL LAW [Vol. 24:2 has done with Article 12, and implement them through traditional administrative processes. From the standpoint of domestic federalism, this result poses no novel problem. According to Bulman-Pozen, “from healthcare to marijuana to climate change, federal and state executives negotiate without Congress” on a continuous basis.364 By contrast, from the standpoint of foreign affairs federalism, this same phenomenon raises tougher questions about the necessity and scope of the advice and consent process itself. At a minimum, the SDM case study shows that the Senate’s decision not to ratify a treaty has not prevented the federal government from carrying out at least a key component of that same treaty without structural impediments blocking its path. This kind of backdoor treaty implementation complexifies the binary formulation of cooperative and uncooperative federalism.365 On one hand, state-based organizations have freely engaged with the federal government to advocate and push for SDM legislation.366 On the other, the federal government has done so without clear congressional approval.367 This arrangement, however, might neither be a bug nor a feature. It might simply reflect the “spontaneous ordering” that federal–state relations have taken in the realm of foreign affairs since the founding, nudging it back to “federalism’s early days—an era in which the states played a much larger role internationally.”368 IV. CONCLUSION Despite the Senate’s refusal to ratify the CRPD, subnational entities across the United States have helped champion and implement CRPD policy here at home. How they have done so is emblematic of foreign affairs federalism—this dynamic regime in which local and state governments exploit constitutional openings to participate on issues of international importance. One way in which cities, counties, and states alike have affirmed their support for the CRPD is through expressive means—namely. resolutions. These policies have enabled local and state governments to take an 364 Jessica Bulman-Pozen, Executive Federalism Comes to America, 102 VA. L. REV. 953, 955 (2016). 365 See generally Galbraith, supra note 20, at 215260. 366 See generally Part III.B.2. 367 See generally Part II.B. 368 GLENNON & SLOANE, supra note 15, at 76, 354. April 2022] DUAL FEDERALISM AND THE CRPD 411 oppositional stance toward the federal government, empowering them to signal support for the causes of international disability justice and human rights, and to reaffirm their role in the U.S. system of federalism. Another way in which subnational entities have come to implement the CRPD is through SDM legislation. Enshrined in Article 12 of the Convention, SDM was meant to provide an alternative to guardianship by putting people with disabilities “at the center of the discourse,”369 empowering them to decide who cares for them and how they should be cared for.370 I have shown that SDM laws represent, in important and often-overlooked ways, a product of federal–state collaboration. The ACL, for example, was a catalyst for grassroots SDM advocacy. Among those subnational governments that passed SDM laws, at least ten—Delaware, Wisconsin, the District of Columbia, Maine, Alaska, Indiana, Nevada, Minnesota, Colorado, and New Hampshire—received some form of help from the ACL. These findings show that cooperative and uncooperative foreign affairs federalism serve as a compelling model for understanding how local and state governments have come to integrate the CRPD within their respective policy agendas. But, more importantly, they also make clear that even without the CRPD’s ratification, many of the treaty’s central tenets can continue to resonate—and become an example of how human rights can influence law and policy, sometimes in surprising ways. 369 Daily Summary of Discussion at the Seventh Session 18 January 2006, U.N. ENABLE (Jan. 18, 2006), https://www.un.org/esa/socdev/enable/rights/ahc7sum18jan.htm [https://perma.cc/99GD- JXDL]. 370 Series & Nilsson, supra note 26, at 366.