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

Harper Jean Tobin, National Senior Citizens Law Center

Abstract

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