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B. Title I of the ADA Proscribes Conduct That Congress Rationally Found Substantially Affects Interstate Commerce, and Thus is Within the Scope of Congress' Commerce Authority
Congressional findings further support the conclusion that Title I is a valid exercise of Congress' commerce powers. The Court has held that in determining whether a federal statute may be sustained as a proper exercise of Congress' Commerce Clause power, courts "must defer to a congressional finding that a regulated activity affects interstate commerce if there is any rational basis for such a finding." Hodel v. Virginia Surface Mining & Reclamation Ass'n Inc., 452 U.S. 264, 276 (1981) (emphasis added). Courts may look to statutory findings, as well as congressional committee findings, to assess the rationality of Congress' conclusions. Lopez, 115 S. Ct. at 1631-1632; Katzenbach v. McClung, 379 U.S. 294, 299, 304 (1964) (noting that Congress is not required to make formal findings). Once the court "find[s] that the legislators, in light of the facts and testimony before them, have a rational basis for finding a chosen regulatory scheme necessary to the protection of commerce, [its] investigation is at an end." McClung, 379 U.S. at 303-304 (cited with approval in Virginia Surface Mining & Reclamation Ass'n, 452 U.S. at 276).

In enacting Title I, Congress specifically found that disability-based discrimination adversely affects the national economy:

(9) the continuing existence of unfair and unnecessary discrimination and prejudice denies people with disabilities the opportunity to compete on an equal basis . . . and costs the United States billions of dollars in unnecessary expenses resulting from dependency and nonproductivity.
42 U.S.C. § 12101(a).

Indeed, the record of the ADA's passage is replete with testimony concerning the specific burdens that disability-based employment discrimination places on interstate commerce. See

S. Rep. No. 116, 101st Cong., 1st Sess. (1989); H.R. Rep. No. 485, 101st Cong. 2d Sess., pt. 2 (1990); H.R. Rep. No. 485, 101st Cong. 2d Sess., pt. 3 (1990); see also 136 Cong. Rec. E1913-01 (daily ed. May 22, 1990)(statement of Rep. Hoyer). This testimony includes the fact that millions of persons with disabilities who want to work and who are able to work have been excluded discriminatorily from the workforce; that even those who do work earn incomes significantly less than those of their non-disabled counterparts; that employment discrimination makes persons with disabilities dependent on social welfare programs and thus costs society billions of dollars annually in support payments; that elimination of employment discrimination will result in increased spending on consumer goods and increased tax revenues; that persons with disabilities comprise a pool of educated and talented workers necessary to offset potential upcoming labor shortages; and that the employment of persons with disabilities is essential if the nation is to remain competitive in the international marketplace. S. Rep. No. 116, 101st Cong., 1st Sess. at 16-18 (1989); H.R. Rep. No. 485, 101st Cong. 2d Sess., pt. 2, at 32-34, 43-45 (1990).

Similar effects on interstate commerce have been upheld by the Supreme Court as legitimate bases for Congress' exercise of its commerce powers. See, e.g., Fry v. United States, 421 U.S. 542, 547 (1975) (increased purchasing power resulting from increased wages); Perez v. United States, 402 U.S. 146, 156 (1971) (loss of income and employment resulting from extortionate credit transactions); Maryland v. Wirtz, 392 U.S. 183, 195 (1968) (changing competitive positions in marketplace resulting from decreased wages and substandard labor conditions), overruled on other grounds, National League of Cities v. Usery, 426 U.S. 833 (1976), overruled by Garcia v. San Antonio Metro. Transit Authority, 469 U.S. 528 (1985); McClung, 379 U.S. at 299 (diminished spending resulting from race discrimination); Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 252-53 (1964) (diminished travel resulting from race discrimination); Wickard v. Filburn, 317 U.S. 111, 128 (1942) (changing market conditions resulting from individual consumption of food products).

Lopez does not change this analysis. At issue in Lopez was the Gun-Free School Zones Act, which forbade the possession of firearms in a school zone, and which the Court ruled exceeded Congress' Commerce Clause power. The Lopez decision, however, specifically reaffirmed the validity of the Court's previous Commerce Clause decisions. Lopez, 115 S. Ct. at 1634. See id. at 1637 (Kennedy, J. and O'Connor, J., concurring)(affirming Commerce Clause precedent in the area of discrimination, and the principle that "Congress can regulate in the commercial sphere on the assumption that we have a single market and a unified purpose to build a stable national economy"). Of particular concern in Lopez was the fact that the School Zones Act was a criminal statute, typically a subject of State and local, not federal legislation, id. at 1631 n.3, 1632, and "by its terms ha[d] nothing to do with 'commerce' or any sort of economic enterprise however broadly one might define those terms." Id. at 1630-31.

By contrast, as explained above, Title I of the ADA deals with commercial actors, public and private employers. Moreover, "the design of the statute ha[s] an evident commercial nexus," id. at 1640; it ensures access to employment, and is designed to ensure equality of opportunity and economic self-sufficiency to a significant sector of the national economy. Thus, in contrast to Lopez, where neither the prohibited conduct (possession of a gun near schools), nor its immediate effect (increase in violence in schools) was commercial, the immediate effect of the prohibited conduct here is a burden to commercial transactions. Prohibition of employment discrimination on the basis of disability is thus well within Congress' power to protect and foster commerce. Lopez, 115 S. Ct. at 1630.22

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