Blaming Federalism, Part Two

Blaming Federalism, Part Two

December 1, 2014
Human Rights at Home Blog
Alexandra Tate (3L) and Elise Meyer (2L)

In part two of this post, University of Chicago  Human Rights Clinic students Alexandra Tate and Elise Meyer continue their discusion of the recent Lenahan hearing held at the Inter-American Commission on Human Rights. They write:

At the October, 2014 hearing, Ms. Lenahan's team stressed the U.S.’s obligation to protect domestic violence victims and provide a remedy to Ms. Lenahan. Rashida Manjoo discussed the international human right standard on due diligence in responding to violence against women and criticized the lack of U.S. federal protections for domestic violence victims. She stressed that the U.S. must not only enact new legislation to protect victims, but address structural causes, like eliminating gender stereotypes, misogyny, institutional inequalities, and gender-bias, that lead to violence against women. And, in an emotional turn of events, Ms. Lenahan discarded her prepared remarks and made a heartfelt plea to the U.S. to investigate the deaths of her daughters. “The outcome of today could really put my life at peace. And it’s time to get this done…I’m tired and I shouldn’t have to carry this burden,” Ms. Lenahan told the government.

Despite the passion of Ms. Lenahan’s testimony, the U.S. responded by simply recounted statistics regarding funding and new programs for domestic violence victims. Although the statistics were somewhat encouraging, the U.S. claimed to be powerless to provide Ms. Lenahan justice due to the constraints of federalism, a doctrine that grants independent power and responsibilities to state governments. “The Special Litigation Section [of the U.S. Department of Justice] does not have the authority to conduct a civil investigation into discriminatory conduct by law enforcement effecting an individual,” Carmen Lomellin, U.S. Ambassador to the Organization of American States, told the Commission. That power, she contended, is reserved for the State of Colorado. At the closing of the hearing, the Commission reiterated its plan to continue monitoring U.S. compliance with Ms. Lenahan’s case.

 The State of Colorado has repeatedly refused to investigate the tragic and unresolved deaths of Ms. Lenahan’s children. If the federal government is purportedly unable to provide justice to Ms. Lenahan and the State of Colorado is unwilling to do so, then where can Ms. Lenahan and other victims of domestic violence turn?

 Ultimately, the federal government is responsible for safeguarding the human rights of its people and cannot use the doctrine of federalism to escape this responsibility. As Elizabeth Abi-Mershed, the IACHR Executive Assistant Secretary, pointed out at the hearing, many other federalist countries have overcome these problems—a point that has been addressed in scholarship. As our Professor, Caroline Bettinger-Lopez, underscored at the hearing, federalism should be viewed as an opportunity to creatively collaborate with states on problems, and not as an obstacle to overcome.

The article is available here.