January 24, 2020
By Timothy Sandefur

Wednesday’s arguments in Brackeen, the case challenging the constitutionality of the Indian Child Welfare Act (ICWA), focused largely on the way ICWA imposes its unjust burdens on children who fit a single genetic profile—that is, who qualify for membership in an Indian tribe, which depends exclusively on biological characteristics. But even aside from the question of whether that violates the U.S. Constitution’s prohibition on race-based laws, ICWA also violates other constitutional standards, particularly those that differentiate between state and federal powers.

Protecting at-risk kids is a job for states, not the feds. Not only does the Constitution give Congress no power to regulate things like foster care and adoption, but federal courts will even refuse to hear cases involving those questions, regardless of whether they have jurisdiction. And courts have often struck down federal laws that interfere with state family law. For example, in United States v. Windsor, the Supreme Court held that the Defense of Marriage Act was unconstitutional because it required states to discriminate against same-sex couples, when the states would have preferred not to.

ICWA doesn’t just override state child welfare law, though. It does something truly bizarre—something no other federal law does: It dictates to state court judges how they may apply state laws. ICWA sets the procedural rules and the standards of evidence that state judges must employ when applying state, not federal laws. That’s different from what usually happens when Congress creates a federal law and then requires courts to follow certain procedures when applying that federal law. For example, the Fair and Accurate Credit Transactions Act (FACTA) makes it illegal to print a person’s credit card number on a receipt—and people can sue in state court if a cashier violates that law. The state judge must follow FACTA’s rules when applying FACTA.

But ICWA does something different: It says that state judges may use state procedures when applying state laws—but when the child is “Indian,” the state judge has to follow federal procedures when applying state laws. One major question in the Brackeen case is whether that violates the rule against “commandeering”—which bars Congress from forcing state officers to enforce federal laws if they prefer not to. No Supreme Court case has addressed that specific point, but in the 1997 Printz case, the Court said that state executive branch officials can’t be compelled to enforce federal law, and that state judicial officers can be required to follow federal rules when enforcing federal laws. Whether Congress can change the procedures or the evidentiary rules of state laws, however—as it did in ICWA—remains an open question.

Of course, ICWA also overrides the authority of state executive officers in ways that more obviously violate the rule against commandeering. It forces state child protection services—executive agencies overseen by governors and state attorneys general—to take certain steps and to keep certain records, which Printz quite clearly said is unconstitutional.

And ICWA intrudes on state authority in other, even more unusual ways. Before Wednesday’s oral argument, the judges issued an order specifically asking the attorneys to discuss whether ICWA violates the Constitution’s Presentment Clause. Oddly, that question never actually came up during the argument itself, but the answer is plainly yes.

The Presentment Clause requires that any “law” be passed by both houses of Congress and “presented” to the President for his signature or veto. The Clause was at issue in some complicated cases such as INS v. Chadha and the 1991 Airports case. But the precedent that comes closest is actually Clinton v. New York, the 1996 decision that held the line-item veto unconstitutional. The Court explained that when the President “line-item vetoed” a law that had already been adopted by Congress and signed by the President, the result was a new law—one missing the vetoed provisions—which had never been passed by Congress or signed by the President. That violated the Presentment Clause. Congress couldn’t create a procedure whereby a law could be passed in the ordinary way—and then partly repealed by the President acting alone.

Yet that’s just what ICWA does. Section 1915(c) allows tribal governments to write rules governing which adults should take custody of “Indian” foster children (who do not live on tribal lands and might not be tribal members at all). These rules then override not only the state law that would apply if the kids where white, black, Asian, or Hispanic—but also override ICWA itself, which contains its own provisions governing the placement of foster kids. In other words, ICWA contains a provision that allows tribal governments to “line-item veto” the placement rules contained in the Act itself. But Congress never passes, and the President never signs, those placement rules. Once a tribe adopts them, state officials are required—by federal law—to follow them.

Of course, that also violates the rule against “delegation,” which forbids Congress from giving its lawmaking powers to anyone else. The trial judge in the Brackeen case ruled that ICWA was unconstitutional because it delegated powers to tribes in that way. But even if that weren’t the case, the Clinton v. New York decision makes clear that ICWA also violates the Presentment Clause.

Defenders of the status quo claim that ICWA is just an ordinary exercise of Congress’s power to regulate “commerce…with the Indian tribes.” But that’s absurd. The Supreme Court has made clear that the word “commerce” does not include things like this; for example, in the 2000 Morrison case, it struck down the Violence Against Women Act on the grounds that violence against women—horrible as it is—just isn’t commercial activity. It’s criminal activity, which is already against the law in all 50 states, and is a job for state law. Tribal lawyers argue that the Morrison case was decided under the “Interstate Commerce Clause,” and that the “Indian Commerce Clause” is different—but no, they’re the same Clause, and the word doesn’t change meanings.

Tribal lawyers also argue that since tribes are sovereign, Indian children are basically like foreigners, and that Congress can allow foreign governments to control how foreign children are treated in the United States. But Indian children are not foreigners. They’re citizens of the United States and of the state where they reside, and Congress cannot deprive them of their rights even under a treaty. ICWA isn’t a treaty, but even if it were, it would be unconstitutional. In Reid v. Covert, the Supreme Court held that Congress can’t make a treaty that subjects American citizens to a separate legal system that lacks the constitutional protections that govern ordinary civil courts. But ICWA does just that—forcing Indian children and the adults who love them into tribal courts that aren’t required to follow the Constitution.

One interesting moment during the oral argument made the point clear enough. Asked whether Congress could pass a law that just adopted the law of a foreign government, the attorney for the state of Texas answered, “Your Honor, that’s exactly the problem. If Congress were to pass a law giving Her Royal Highness the Queen of England the power to write rules that govern divorce proceedings here in Orleans Parish, Louisiana, it would be declared unconstitutional in the blink of an eye.”

There are many other ways in which ICWA intrudes on the autonomy of states—detailed in this article—but these alone are reasons enough to declare it unconstitutional. Whatever power Congress might have over tribal members, or people who reside on reservations, it has no authority to do what ICWA does: to override how states administer their own child welfare laws for kids who live not on reservation but in ordinary cities and towns, and who may not even be tribal members—but who simply qualify for membership based on their genetic ancestry.

Timothy Sandefur is the Vice President for Litigation at the Goldwater Institute.

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