York Daily Record from York, Pennsylvania • 6

tx YORK DAILY RECORD THURSDAY.OCTOBER 12, 2000 High court takes on battle of Congress vs. the states The case also could give states ammunition to attack suits under other federal statutes. Vf, ASSOCIATED PRESS South Africas Deputy Minister of Environmental Affairs and Tourism Joyce Mabudafhasl, left, releases a group of cleaned African Penguins back into the wild in Cape Town, South Africa, Wednesday. The group of 13 birds are the last of the seabirds affected by an oil spill in June. Penguins begin swim home The last penguins rehabilitated after an oil spill off South Africas coast were set free.

about eight hours up the coast to the town of Port Elizabeth and released to swim home, which gave authorities time to clean up the spill. Officials hailed the rescue as a resounding success. This is in the many of them spend long periods at sea fishing once they are released, said Estelle van der Merwe, a foundation official. About 40 percent of the worlds African penguins, which live only off the coast of southern Africa, at risk the The court has focused on that last exception in recent years, as did Wednesdays disabilities law case. The case Involves two separate lawsuits against state entities in Alabama.

In the first, a registered nurse sued the Bound of Trustees of the University of Alabama after she allegedly was demoted from her position when her employer learned she hil breast cancer. In the second, a man sued the Alabama Department of Youth Services because the agency allegedly failed to enforce its np-smoking policy and, as a result, did not accommodate his disability of chronic asthma. He also asked the department to repair its cars that emitted carbon mon oxide fumes. The lower courts did not ad dress the merits of the case, but instead asked whether the law would apply at all. A federal appeals court in Atlanta ruled last year that Congress had authority to subject states to lawsuits under the ADA.

The court said the authority stemmed from the Constitutions 14th Amendment. The 14th Amendment guarantees due process and prohibits states from treating similarly situated people differently. It specifically authorizes Congress to pass laws to enforce it. Michael Gottesman, a lawyer for the two people who sued the state of Alabama, said Congress was acting to stop well-documented discrimination by states against the disabled. He pointed to numerous examples of discrimination by states, as well as studies that showed the law would not overregulate the states.

But Jeffrey Sutton, who argued on behalf of Alabama, questioned those examples, arguing that states didnt discriminate and that state laws were sufficient to protect the disabled Congress had authority under the 14th Amendment, 'he said, only to correct conduct that violated the Constitution. Bv JAN CRAWFORD GREENBURG Chicago Tntxine WASHINGTON Taking up a high-stakes battle that goes to the heart of federal power over the states, Supreme Court justices struggled Wednesday with whether Congress can authorize private lawsuits against states for violating a federal law that prohibits discrimination against the disabled. During hour-long arguments, the justices grappled with whether Congress exceeded its authority under the Constitution when it said the Americans with Disabilities Act applied to the states. The case does not question Congress power to pass the historic disabilities law but it does ask whether states can be immune from private lawsuits seeking money in damages under the ADA. The issues in the case are complex, but in the end, the case is about power Congress power over the states, as well as Congress power to interpret the Constitution and redress constitutional violations.

The case also could give states ammunition to attack lawsuits under other federal statutes, such as fair housing laws and other anti-discrimination laws, particularly those that allow suits over actions that have a discriminatory effect but may not be intentional discrimination. The case is similar to one the justices considered last term, when they ruled that Congress could not subject states to private lawsuits for violating federal age discrimination law. But several justices suggested Wednesday that the disabilities law is different. Justice Sandra Day OConnor, who wrote last terms age discrimination decision, suggested that Congress might have more justification for stepping in to redress disability discrimination, particularly in light of evidence that states had discriminated against the disabled. Her vote is critical in the case, because the court is narrowly divided, 54, on similar issues of federal power.

The scope of federal authority has captivated the court in recent years, as the justices have slowly and steadily scaled back federal power vis-a-vis the states. It once was assumed that Congress could legislate on virtually any important question, but the court has begun imposing restrictions, emphasizing that the Constitution gives Congress limited powers. As a result, in recent terms the court has said Congress cant bully state officers into implementing federal programs. It said Congress cant always legislate under its power to regulate interstate commerce when non-commercial subjects are at stake, such as violence against women or guns near school zones. And it said states have the right to be sued on their own terms, in their own courts.

It has set aside congressional efforts to authorize lawsuits against states for violating federal patent and trademark laws, wage laws and, in last terms case, age discrimination laws. The states right to be free of these lawsuits is grounded in the Constitutions 11th Amendment, which prevents private, federal lawsuits against states. To protect the national interest, however, the 11th Amendment has had a number of exceptions: States can waive their immunity and consent to suits; state officials can be sued to stop future violations of the law; and Congress, in some cases, can override that immunity and authorize private lawsuits against the states. 4l 1 L. history making, Joyce Mabudafhasi, the deputy environment minister, said Wednesday.

In 1994, when South Africa suffered its last major oil spill, nearly half the captured birds died, she said. The death rate this time was 10.3 percent, she said, making this the most successful and biggest rescue operation ever. Some 43,000 volunteers helped care for the penguins, which were hand-fed 400 tons of fish, according to the Southern African National Foundation for the Conservation of Coastal Birds. Many rehabilitated birds are returning to their colonies, but it will take some time before we determine the exact rate, since were placed by spill. There are estimated to be between 150,000 and 180,000 90 percent fewer than 100 years ago.

Rehabilitated birds have begun breeding very quickly, penguin expert Tony Williams said, but their ability to recover completely will depend on food supply. The big problem is that insufficient numbers of young birds are surviving to become adults, he said. It is likely that seals are killing and eating increasing numbers of young birds. Authorities estimate the cost of cleaning up the spill at about $7 million, about $1.2 million of which was spent on rehabilitating the birds. The ships insurers have been billed for the cost.

hv tit-1 fiM" I Tt- 1 1 i ill i tHM it J1 liiiiiiiiiiltti Mill- ifclMis- By MIKE COHEN Associated Press CAPE TOWN, South Africa -After pausing briefly on a Cape Town beach, 15 newly released African penguins plunged into the chilly Atlantic Ocean on Wednesday, their dives marking the end of the worlds largest penguin rescue operation. The 15 birds were the last of 19,000 penguins smeared by oil spilled from a tanker that sank June 23 off Cape Towns coast. Volunteers and experts cleaned and fed the birds until they gained enough strength to return home. A further 19,500 unsoiled penguins were captured, driven 6.25 investment? ARE NOT FDIC-INSUREDARE NOT On iht FDIC-lnsural ceh portion ihtCAPAssa Miiugrrntm i Bills take aim at violence! The bills would raise funds for programs fighting domestic violence. By JACKIE KOSZCZUK and TRACY VAN SLYKE Knight Ridder Newspapers WASHINGTON Congress sent President Clinton twin proposals to boost funding for programs that combat domestic violence and crack down on shadowy international sex and forced labor rings.

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