The Supreme Court’s 2022 decision in West Virginia v. EPA, along with other recent cases in which federal courts have grappled with the ongoing climate crisis, offers an opportunity to assess the role of the judiciary in helping the United States adopt effective responses to monumental threats such as the climate crisis. Courts reviewing legislative and executive actions must find ways to enforce constitutional limits without preventing the political branches from implementing effective policy responses to potentially catastrophic problems. Three relatively recent climate cases—West Virginia v. EPA, Utility Air Regulatory Group v. EPA, and Juliana v. United States—illustrate the need for courts to balance their competing obligations. In West Virginia and in Juliana, courts lost their balance, disregarding practical consequences in West Virginia and neglecting institutional limits in Juliana. Utility Air Regulatory Group, despite other shortcomings, emerges as the best example of a court striking the proper balance between its dual responsibilities. The fact that Justice Scalia, an ideologically conservative Justice, could write an opinion that constrained EPA’s regulatory authority without impairing the effectiveness of the agency’s policy supplies some basis for optimism that courts can play a constructive role in supporting the development of practical solutions to pressing problems. West Virginia, by contrast, provides a discouraging cautionary example of a court thoroughly out of balance.
Prosecutorial Authority and Abortion
In the wake of Dobbs, abortion is now unlawful in many states. States that prohibit abortion use their regulatory authority, civil justice systems, and criminal law to do so. Presumably, many of the activists and politicians who have been fighting to ban abortion will want to see that outlawing abortion is effective at reducing the incidence of abortion in fact. Once abortion is unlawful in a state, some pro-life partisans will also want those who perform or assist abortions to be criminally punished.
This Essay identifies a serious procedural obstacle to the use of the criminal law against abortion in a post-Dobbs world: exclusive local authority to bring criminal prosecutions. The obstacle is constitutional in a small number of states, but one of those states, Texas, is the most populous state where abortion is now illegal. In these states, only local, autonomous prosecutors (district attorneys and county attorneys) can pursue indictments or file informations to commence criminal cases. Prosecutorial localism is enshrined in the Texas Constitution.
Inside the borders of states that do not allow their attorneys general to initiate prosecutions, criminal law against abortion will be a dead letter in certain urban and suburban counties as pro-choice electorates pick prosecutors who will not bring abortion prosecutions. For politicians in states like Texas with well-entrenched Republican leadership at the statewide level, the pressure to act forcefully against abortion will be immense, but without changes to jurisdictional laws, Republican attorneys general will be unable to enforce abortion bans through criminal law. At the same time, the pressure on Democratic county and district attorneys not to enforce the abortion laws will be equally immense. The outcome may be highly contentious constitutional litigation to revisit old understandings about the allocation of authority between state and local elected officials, as well as efforts in state legislatures to amend statutes and constitutional provisions that mandate localism in criminal procedure.
This brief Essay adds to the growing literature on criminal procedure in a post-Dobbs world. Those prosecuted for performing or having abortions who have lost the Fourteenth Amendment’s shield for the procedure itself will still be protected by the Fourth, Fifth, and Sixth Amendments, as well as broader common law traditions and workaday rules of criminal trials in their states. For instance, Peter Salib and Guha Krishnamurthi have already pointed out the deterrent effect of jury nullification on abortion prosecutions.1h.D., The University of Texas at Austin, 2018; J.D., with highest honors, The University of Texas School of Law, 2013; A.B., Brown University, 2009.
Visiting Assistant Professor, Chicago Kent College of Law, 2019–2021; Law Clerk to the Honorable Gregg Costa, United States Court of Appeals for the Fifth Circuit, 2016–2017; Law Clerk to the Honorable Michael Massengale, Texas Court of Appeals for the First District, 2013–2014.
The author’s previous work on the criminal law has appeared in Houston Law Review, University of Richmond Law Review, and The Ohio State Journal of Criminal Law.
Associate, Yetter Coleman LLP. The views expressed in this Essay are the author’s own and do not represent the views of his employer.
This Essay closes by recognizing that criminal prosecutions are not the only tool that pro-life leaders at the state level have to promulgate antiabortion policy. The fact that those involved with abortion in some “blue” counties in some “red” states will be safe from criminal prosecution will not restore the pre-Dobbs status quo. Rather, the likely result in these counties is a kind of gray market condition where unlicensed providers of medication abortions will be able to operate while licensed professionals and established clinics will be kept closed by the threat of regulatory fine, license revocation, and civil liability. And of course, this assumes that pro-life politicians and voters do not quickly amend state laws—even state constitutions—to permit attorneys general to prosecute abortion.
On the Authority of the Supreme Court
As a governmental institution, the Supreme Court claims and attempts to exercise authority not just over other courts,1awrence A. Jegen III Professor of Law, Indiana University Robert H. McKinney School of Law. My thanks go to Mary Theresa Mullin Wright. branches of federal government,2See, e.g., Marbury v. Madison, 5 U.S. 137, 177–78 (1803). and the states,3See, e.g., Cooper v. Aaron, 358 U.S. 1, 18 (1958). but over the general public as well.4As in, merely for example, upholding or striking down vaccine mandates, as seen in the case of National Federation of Independent Business v. OSHA, 142 S. Ct. 661 (2022). Without any such authority, the Court as an institution would be unrecognizable.
The Supreme Court’s authority comprises a positive, or broadly sociological, element as well as a normative element that focuses on a possible moral obligation to defer to Supreme Court decisions. While these positive and normative elements are not entirely separable, some useful distinctions can be drawn. Thus, at any given point, the Court might effectively exercise what is popularly thought to be morally binding, legitimate authority, even if no genuinely sufficient argument for such authority can be made. And even if the underlying genuine normative authority of the Court remains constant, at whatever level, public respect for and deference to the Court as an institution may trend up or down.5See, e.g., Jeffrey M. Jones, Confidence in U.S. Supreme Court Sinks to Historic Low, Gallup (June 23, 2022), http://news.gallup.com/poll/394103/confidence-supreme-court-sinks-historic-low.aspx [http://perma.cc/5JFG-F5HF].
Of late, the Court itself has both defended its own moral authority and also presented grounds for questioning that moral authority. Neither these defenses nor these critical assessments are confined to any Supreme Court political grouping. This debate within the Court itself as to its own morally binding authority very roughly corresponds to parallel debates among the public as well as among jurisprudentially oriented writers.6See infra Parts II, III.
If there is any simply stated bottom line, it is that, as discussed below, the Court may well not hold much genuinely binding moral authority, and the general public may itself be ambivalent on that question. On the other hand, the Court may not actually need much genuine, or much publicly perceived, moral authority in order to perform most of its work.7For a sampling of recent discussions of judicial supremacy and judicial review in the American context, see Nikolas Bowie & Daphna Renan, The Supreme Court Is Not Supposed to Have This Much Power, Atlantic (June 8, 2022), http://www.theatlantic.com/ideas/archive/2022/06/supreme-court-power-overrule-congress/661212 [http://perma.cc/RT8M-Q2PE]; Erwin Chemerinsky, In Defense of Judicial Review: A Reply to Professor Kramer, 92 Calif. L. Rev. 1013, 1019 (2004) (“Empowering state and local governments to disregard Supreme Court decisions is a truly frightening notion, as disobedience to unpopular rulings would be inevitable.”); Richard H. Fallon, Jr., The Core of an Uneasy Case for Judicial Review, 121 Harv. L. Rev. 1693, 1704 (2008) (focusing on the problem of underenforcement of rights where it is assumed that no contrary right claims are also at stake); Larry D. Kramer, Judicial Supremacy and the End of Judicial Restraint, 100 Calif. L. Rev. 621, 634 (2012) (“[P]eople’s reactions to judicial review are not solely a product of whether they agree or disagree with the Court’s results. They are also affected by people’s sense of how much authority the Court is supposed to have.”); David Landau & Rosalind Dixon, Abusive Judicial Review: Courts Against Democracy, 53 U.C. Davis L. Rev. 1313, 1313 (2020) (“[I]t is not uncommon for judges to issue decisions that intentionally attack the core of electoral democracy.”); Mark Tushnet, Against Judicial Review 15 (Harv. L. Sch. Pub. L. & Legal Theory Working Paper, Paper No. 09-20, 2009), http://ssrn.com/abstract=1368857 [http://perma.cc/AJ2V-ZLUE] (“Perhaps popular ‘acceptance’ of judicial review is more a sign of resignation to the fact that democratic majorities have been unable to eliminate a practice favored by political elites than of positive support for the practice.”); Jeremy Waldron, The Core of the Case Against Judicial Review, 115 Yale L.J. 1346, 1352 (2006) (opposing judicial review generally, while granting that “[i]t may still be the case that judicial review is necessary as a protective measure against legislative pathologies relating to sex, race, or religion in particular countries”); W.J. Waluchow, Judicial Review, 2 Phil. Compass 258 (2007); Keith E. Whittington, Give “The People” What They Want?, 81 Chi.-Kent L. Rev. 911, 922 (2006) (“Judicial supremacy . . . has more often than not been embraced by the people themselves.”). The classic judicial citation is to Marbury v. Madison, 5 U.S. 137, 177 (1803) (“It is emphatically the province and duty of the judicial department to say what the law is.”), as quoted in the desegregation case of Cooper v. Aaron, 358 U.S. 1, 18 (1958).
At its simplest, “[a]uthority on the part of those who give orders and make regulations is: a right to be obeyed.”8G.E.M. Anscombe, On the Source of the Authority of the State, in Authority 142, 144 (Joseph Raz ed., 1990). But cf. Hannah Arendt, What Was Authority?, in Authority 81, 82 (Carl J. Friedrich ed., 1958) (“[W]e are no longer in a position to know what authority really is.”). Authority, as discussed herein, relates in some fashion to the idea of legitimacy.9See Seymour Martin Lipset, Political Man: The Social Bases of Politics 77 (1960) (“Legitimacy involves the capacity of the system to engender and maintain the belief that the existing political institutions are the most appropriate ones for the society.”). On one view, legitimacy is at least one, if not the sole, basis on which governmental authority rests. See Charles Larmore, What Is Political Philosophy? 4, 41–43, 69 (2020); see also Daniel Bell, The Cultural Contradictions of Capitalism 180 (1976) (“The key question for any political system . . . is the legitimacy of the system.”). We can begin to clarify the idea of authority by noticing that there is a difference between merely conforming to an authority’s dictate and actually complying with that dictate.10See Scott Hershovitz, The Authority of Law, in The Routledge Companion to Philosophy of Law 65, 69 (Andre Marmor ed., 2015) (citing Joseph Raz, Authority and Justification, in Authority 115, 121 (Joseph Raz ed. 1990)).
Thus, for example, one might wear a mask in a pandemic not because a court so decrees, but because of one’s preexisting reasoned judgment in favor of wearing a mask.11Or else, at least in part, because epistemic authorities such as epidemiologists, but not legal authorities, have so recommended. A court’s authority is most clearly on display when persons wear a mask largely because a court has so decreed, even if the public’s own independent reasoning, on the merits, does not favor wearing a mask. Authority is, thus, most conspicuous when we obey, despite our own continuing best judgment on the underlying merits.12See, e.g., Larry Kramer, Response, 81 Chi.-Kent L. Rev. 1173, 1181 (2006). Otherwise put, authorities, including institutional legal authorities such as the Supreme Court, have, within limits, “a right to err, or to make mistakes”13Daniel Viehoff, Legitimacy as a Right to Err, in Political Legitimacy 174, 174 (Jack Knight & Melissa Schwartzberg eds., 2019). without thereby flinging the door open to mass disobedience.
The institutional authority of the Supreme Court fits best within Max Weber’s ideal type of rational-legal authority,14See Max Weber, The Theory of Social and Economic Organization 328 (A.M. Henderson & Talcott Parsons trans., 1964) (1947). as distinct from authority that is based primarily on tradition and history,15See id. or on some form of charismatic authority.16See id. To some degree, though, the Supreme Court may indeed draw as well on history and tradition, as in its costumes, ceremonies, trappings, formalities, and rituals in maintaining its authority.17For a sense of the broad underlying logic, see Edward Shils & Michael Young, The Meaning of the Coronation, 1 Socio. Rev. 63 (1953); see also Walter Bagehot, The English Constitution 7 (Paul Smith ed., Cambridge Univ. Press 2001) (1867) (on the role of “dignified” elements of the English Constitution).
Useful for our purposes is Professor Richard Fallon’s distinctions among legal legitimacy, sociological legitimacy, and moral legitimacy,18See Richard H. Fallon, Jr., Legitimacy and the Constitution, 118 Harv. L. Rev. 1789, 1789 (2005). and their possible tradeoffs. The Supreme Court’s authority depends, to one degree or another, on what we might call its pedigree, lineage, or institutional derivation. There may well be cases in which members of the Court are inclined, perhaps subconsciously, to sacrifice a bit of their legal or methodological legitimacy for the sake of greater sociological legitimacy, as measured by public compliance, Court popularity, or the Court’s institutional prestige.19For an interesting counterexample, see West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943) (showing wartime Pledge of Allegiance case overruling the recent Minersville School District v. Gobitis, 310 U.S. 586 (1940)). Finally, the Court may exercise sociological legitimacy in obtaining widespread popular obedience and may be widely thought to be institutionally authoritative, even when the jurisprudential arguments for a genuine moral obligation of obedience to the Court’s dictates are weak.20See infra notes 67–125 and accompanying text.
Calling the Shots: Multistate Challenges to Federal Vaccine Mandates
Multistate litigation brought by state attorneys general (“AGs”) frustrated the Biden administration’s efforts to combat the COVID-19 pandemic by vaccinating workers. Nationwide injunctions played an important role in halting the implementation of vaccine mandates in multistate actions. State challenges to vaccine mandates are consistent with AG lawsuit trends against recent presidential administrations.1See Elysa M. Dishman, Generals of the Resistance: Multistate Actions and Nationwide Injunctions, 59 Ariz. St. L.J. 359, 365–66 (2022); Paul Nolette & Colin Provost, Change and Continuity in the Role of State Attorneys General in the Obama and Trump Administrations, 48 Publius: J. Federalism 469, 469 (2018). These challenges also reveal new emerging patterns that shed light on the future of multistate litigation and nationwide injunctions. State vaccine mandate lawsuits have continued to raise criticisms of nationwide injunctions and, at the same time, provide insights on pathways forward for reform.
Familial Searches, the Fourth Amendment, and Genomic Control
In recent years, police have increasingly made use of consumer genomic databases to solve a variety of crimes, from long-cold serial killings to assaults. They do so frequently without judicial oversight per the Fourth Amendment’s warrant requirement by using consumer genomic platforms, which store hundreds of thousands or millions of user genomic profiles and enable law enforcement to infer the identity of distant genomic relatives who may be criminal suspects. This Essay puts this practice into context given recent legal and technological developments. As for the law, the Supreme Court in United States v. Carpenter has suggested that technologically driven and expansive datasets may be entitled to the full suite of Fourth Amendment protections. As for technology, we describe here the development of a novel technology that allows users to engage in genomic analysis in a secured environment without making such information available to a third party. Taken together, we present a possible technological solution to ensuring Fourth Amendment protections for direct-to-consumer genomic data.
A Review of Empirical Literature in Information Security
Information security breaches have hit the headlines frequently in recent years because of their potential impact on organizations and the public. For example, Equifax announced a data breach in September 2017, which affected about 147 million people.1John McCrank & Jim Finkle, Equifax Breach Could Be Most Costly in Corporate History, Reuters (Mar. 2, 2018, 7:05 A.M.), https://www.reuters.com/article/us-equifax-cyber/equifax-breach-could-be-most-costly-in-corporate-history-idUSKCN1GE257 [https://perma.cc/4DJH-SAQL]. Its business value, estimated by stock prices, dropped four billion dollars in the first week of the breach. The cost associated with the breach was already $439 million2Ryan Erskine, Protecting Your Reputation from Cyberattacks Isn’t Impossible If You Do These 3 Things, Forbes (Nov. 28, 2018, 7:40 A.M.), https://www.forbes.com/sites/ryanerskine/2018/
11/28/protecting-your-reputation-from-cyberattacks-isnt-impossible-if-you-do-these-3-things/?sh=2005
6dc224a6 [https://perma.cc/NYU9-DFDT]. before a $425 million settlement was announced in 2020.3Equifax Data Breach Settlement, Fed. Trade Comm’n (Feb. 2022), https://www.ftc.gov/
enforcement/cases-proceedings/refunds/equifax-data-breach-settlement [https://perma.cc/FJ83-DZTD]. The trend of data breaches does not show an optimistic future. According to IBM, the average total cost of a data breach was about $4.24 million, but it took, on average, 287 days to identify and contain a data breach.4IBM, Cost of a Data Breach Report 2021, at 4, 6 (2021).
The seriousness of information security breaches has also attracted attention from the regulators. For example, the U.S. Securities and Exchange Commission (“SEC”) has issued guidance and interpretive guidance in 2011 and 2018, respectively, regarding the disclosures of cybersecurity related risks, which has led to more enforcement actions.5Kenneth M. Breen, Phara A. Guberman & Sachin Bansal, SEC Actions Up the Ante for Cybersecurity Disclosures, Bloomberg Law (Sept. 14, 2021, 1:01 A.M.), https://news.bloomberglaw.
com/securities-law/sec-actions-up-the-ante-for-cybersecurity-disclosures [https://perma.cc/9PMQ-HYZS]; see Robert J. Jackson, Jr., Commissioner, SEC, Speech: Corporate Governance: On the Front Lines of America’s Cyber War (Mar. 15, 2018). The Public Company Accounting Oversight Board included an assessment and understanding of cyber and information security risks in its 2020–2024 strategic plan.6See generally Pub. Co. Acct. Oversight Bd., Strategic Plan 2020–2024 (2020). The Federal Trade Commission (“FTC”) has also started to propose changes to its Safeguards Rule and the Privacy Rule under the Gramm-Leach-Bliley Act.7FTC Seeks Comment on Proposed Amendments to Safeguards and Privacy Rules, Fed. Trade Comm’n (Mar. 5, 2019), https://www.ftc.gov/news-events/press-releases/2019/03/ftc-seeks-comment-proposed-amendments-safeguards-privacy-rules [https://perma.cc/AE82-WTVY].
Given the huge impact of data breaches on organizations and individuals, the business research community has attempted to better understand information security from various angles, from threat and disclosures to impact and responses.8See generally Chirantan Chatterjee & D. Daniel Sokol, Data Security, Data Breaches, and Compliance, in The Cambridge Handbook of Compliance (2021); Diane J. Janvrin & Tawei Wang, Implications of Cybersecurity on Accounting Information, 33 J. Info. Sys. A1 (2019). In this study, we will provide a review of prior empirical studies to help readers better understand this stream of literature. The review will be organized based on a summary of the terminologies discussed in International Organization for Standardization (“ISO”)/International Electrotechnical Commission (“IEC”) 27032:2012 as illustrated in Figure 1.9Int’l Org. for Standardization, ISO/IEC 27032:2012 Information Technology— Security Techniques— Guidelines for Cybersecurity (2012). This framework captures the components that are commonly discussed in assessing information security risks as mentioned in the ISO/IEC 27000 series. Specifically, in the framework, threat agents give rise to threats to specific assets in an organization. The threat may exploit the vulnerabilities that can lead to risks. The shareholders would like to reduce the risks by imposing various governance mechanisms (for example, controls) that can also reduce the vulnerabilities. When the risk is realized, it becomes a breach event, which can affect the breached organization. Actions may be taken in response to the security breaches. Accordingly, Figure 1 provides a structure for us to understand information security, from identification of threats and vulnerabilities; risk assessment and management strategies; and potential consequences and responses.
Figure 1. Framework for the Review
Based on the framework illustrated in Figure 1, the following literature review is organized into three major groups: (1) threats and vulnerabilities; (2) risks and governance mechanisms; and (3) impacts and responses.
Fintech and Financial Inclusion: A Review of the Empirical Literature
The financial technology industry, or “fintech,” has experienced rapid growth within recent years. Between 2015 and 2019, global fintech adoption among consumers rose from 16% to 64%.1Sharon Cheng & Doina Chiselita, Ernst & Young LLP, Global FinTech Adoption Index 2019 6 (2019), http://assets.ey.com/content/dam/ey-sites/ey-com/en_gl/topics/banking-and-capital-markets/ey-global-fintech-adoption-index.pdf [http://perma.cc/BYD8-X6CX]. Adoption of fintech services has continued to rise and further accelerated during the COVID-19 pandemic.2Jonathan Fu & Mrinal Mishra, Fintech in the Time of COVID–19: Technological Adoption During Crises, J. Fin. Intermediation, Apr. 2022, at 1, 17.
An emerging field of research highlights the important role that fintech can play in promoting financial inclusion—the availability and equality of opportunities to access financial services. The 2017 Global Findex Database noted that 1.7 billion adults worldwide are unbanked, meaning they lack an account with a financial institution or mobile money provider; nearly all unbanked adults live in the developing world.3Asli Demirgüç-Kunt, Leora Klapper, Dorothe Singer, Saniya Ansar & Jake Hess, World Bank Grp., The Global Findex Database 2017: Measuring Financial Inclusion and the Fintech Revolution 4 (2018), https://documents1.worldbank.org/curated/en/3328815258731
82837/pdf/126033-PUB-PUBLIC-pubdate-4-19-2018.pdf [https://perma.cc/3HFP-EV3Y].
Access to financial services is a key enabler for financial inclusion and, on a broader scale, reducing worldwide poverty. Financial accounts encourage personal savings and investment, provide insurance against risks and shocks, and promote economic mobility.4See id. at 1–14. Thus, the importance of bringing financial services to the unbanked has captured the attention of many researchers.
Online platforms have an important role to play in financial inclusion. Numerous studies have demonstrated that fintech services, such as mobile money, digital payment solutions, and digital lending platforms, have the potential to enable account ownership among the unbanked.5See, e.g., Cambridge Ctr. for Alt. Fin., World Bank Grp. & World Econ. F., The Global Covid-19 Fintech Market Rapid Assessment Study 8 (2020), https://www3.weforum.org/
docs/WEF_The_Global_Covid19_FinTech_Market_Rapid_Assessment_Study_2020.pdf [https://perma.
cc/M8HN-GXFP]. Further research has shown that countrywide fintech adoption can decrease income inequality by up to 23%.6See Ayse Demir, Vanesa Pesqué-Cela, Yener Altunbas & Victor Murinde, Fintech, Financial Inclusion, and Income Inequality: A Quantile Regression Approach, 28 Eur. J. Fin. 86, 95 (2020). Overall, research points to the fact that fintech can have a positive impact on financial inclusion, yet the magnitude of its effects are dependent on relevant infrastructure and policies.7See Purva Khera, Stephanie Ng, Sumiko Ogawa & Ratna Sahay, Measuring Digital Financial Inclusion in Emerging Market and Developing Economies: A New Index 16–17 (Int’l Monetary Fund, Working Paper No. 21/90, 2021).
Recently, governments and global organizations have begun to recognize the need for harnessing the power of fintech to promote financial inclusion. For example, the Group of Twenty (“G20”) High-Level Principles for Digital Financial Inclusion emphasize the importance of utilizing fintech to achieve financial inclusion and reduce global income inequality.8Glob. P’ship for Fin. Inclusion (“GPFI”), G20 High-Level Principles for Digital Financial Inclusion (2016), http://www.gpfi.org/sites/gpfi/files/documents/G20-HLP-Summary_
0.pdf [http://perma.cc/UY3D-HC28]. Additionally, the United Nations (“U.N.”) 2030 Agenda for Sustainable Development calls for innovation and development of fintech to spur economic growth among emerging and developing countries.9U.N. Inter-Agency Task Force on Fin. for Dev., United Nations Secretary General’s Roadmap for Financing the 2030 Agenda for Sustainable Development 2019–2021, at 9 (2020), http://www.
un.org/sustainabledevelopment/wp-content/uploads/2019/07/EXEC.SUM_SG-Roadmap-Financing-SDGs-
July-2019.pdf [http://perma.cc/GJ66-CCRF].
This research commentary surveys key research related to fintech and its implications for global financial inclusion. Specifically, it provides an overview of studies regarding digital lending, digital payment, and mobile money platforms and how these services can bridge the financial gap for traditionally unbanked and underserved communities. In terms of the legal role through public and private law, it also identifies common concerns and challenges associated with the adoption of fintech, as well as relevant policies to mitigate these concerns and foster financial inclusion.
Renovating Federal Housing Law to Help Protect Tenants with Disabilities
Many individuals with disabilities contact landlords to inquire about rental housing only to learn that the landlord’s dwelling units are inaccessible. And federal anti-discrimination laws applicable to private rentals are often unhelpful. First, Title III of the Americans with Disabilities Act (“ADA”) applies to only the public areas of rental housing complexes and does not extend to dwelling units. Second, the Fair Housing Act (“FHA”) requires persons with disabilities, who have a median household income far below the national average, to pay for any structural modifications needed to facilitate their use of housing even though such retrofitting costs several thousand dollars on average. Third, it is often unclear whether landlords or their properties receive federal financial assistance that subjects them to the Vocational Rehabilitation Act of 1973 (“Rehab Act”), so individuals with disabilities may find it difficult to enforce landlords’ obligation to implement and pay for reasonable modifications under this statute. People with disabilities thus lack equal access to rental housing and cannot fully participate in American society. But the ADA, FHA, and Rehab Act were all enacted with the goal of integrating those with disabilities into public life.
Congress can address this persistent housing inequality by renovating the ADA, FHA, and Rehab Act to eliminate their coverage gaps. These incremental changes to federal law make sense as a policy matter because they will shift the cost of accessible rental dwellings from individuals with disabilities—who tend to have low incomes—to wealthy corporate property managers that can better absorb such expenses. And freeing people with disabilities from the economic constraints of their disability will help them live independently and in turn facilitate their development of a personal identity and full integration into their communities. This increased visibility of individuals with disabilities in everyday life will enhance the diversity of the American social fabric, which is an important step in reducing anti-disability attitudes and prejudices that too often impact interactions between people with disabilities and their nondisabled peers.
