March 1, 2022

It might still be snowing in some parts of the country, but things are warming up for the Goldwater Institute’s American Freedom Network (AFN) members and for our allied organizations.

This month’s update includes:

  • Supreme Court to review Indian Child Welfare Act’s constitutionality
  • Kirkland lends a helping hand in research
  • In other news…

Supreme Court to review Indian Child Welfare Act’s constitutionality

On Monday, the U.S. Supreme Court announced that it will review a case challenging the constitutionality of the Indian Child Welfare Act (ICWA), the federal law that imposes race-based barriers against the protection of Native American kids who are at risk. For more than five years now, the Goldwater Institute’s Equal Protection for Indian Children project has focused on righting the injustices of ICWA—and has succeeded largely thanks to our many friends in the American Freedom Network, who have volunteered their time to help us litigate for the rights of these children in courts across the country. You can learn more about this law and the many ICWA cases we’ve worked on here.

Fittingly, only days before the Supreme Court acted, Goldwater’s Timothy Sandefur testified before the Alyce Spotted Bear and Walter Soboleff Commission on Native Children, which was established to study the treatment of Native American children in the United States. Sandefur’s testimony—which you can read here—focused on the harms ICWA inflicts on Native children and the adults who love them. 

We’re grateful to our AFN partners who have helped us in many ICWA cases across the country, from Alaska to Minnesota to Texas. We’re encouraged that the Court has decided to review this case, and look forward to the opportunity to help vindicate the right of Native kids to the same legal protections that kids of other races enjoy.

Kirkland lends a helping hand in research

There’s no substitute for quality research when you’re litigating—or trying to change the law for the better through state legislatures. That’s why we’re grateful for our AFN members at Kirkland & Ellis who recently put together an extraordinary 50 state survey of state courts, focusing especially on how they address the question of administrative deference.

Although the power of the Administrative State has become a hot topic in recent years, most discussions of the power of these bureaucracies tend to focus on federal agencies. And it’s true: federal bureaucrats have extraordinary power to basically write and enforce their own “laws” with minimal democratic oversight. Worse, courts tend to defer to these agencies so much that there are rarely any meaningful judicial checks and balances against them. But what’s less appreciated is that state agencies are just as powerful, and in some ways more so, given that they receive relatively little public attention. And the sad fact is that although state courts aren’t bound by federal legal theories when reviewing the actions of their state agencies—they frequently just parrot the doctrines created by federal courts. The most notorious of these, of course, is “Chevron deference,” which says that bureaucrats who are interpreting the scope of their own powers are allowed basically to do whatever is “reasonable.” The federal version of Chevron has been heavily criticized in recent years. But it’s also used at the state level, to maximize the power of state agencies.

The report Kirkland & Ellis’s lawyers put together for us examines every state from Alabama—where judges typically embrace the Chevron doctrine—to Wyoming, where courts typically reject deference, and decide questions about agency power for themselves. (Good for the Equality State!)

This kind of research is invaluable when planning a legal strategy to challenge the legal basis for these deference doctrines—and that’s important, given that bureaucratic agencies exercise extraordinary power over our lives, and do so with shockingly little oversight from our elected officials. President Ronald Reagan used to say that the first rule of bureaucracy is, protect the bureaucracy—but it’s equally true that bureaucracies are always eager to expand their powers whenever possible, over more and more of our lives. As these agencies aggressively seek to expand their power, it becomes all the more important for the courts to exercise their power as our checks-and-balances system was intended.

In other news…

Our colleagues at the Wisconsin Institute for Law and Liberty won an important victory when the Milwaukee Public School Board voted to change its policy in response to a First Amendment case that WILL brought against the Board for forcing public school employees to subsidize the political speech of the teacher unions. The Board had previously used “leave”—also known as “release time”—to force the public sector employees to subsidize political activities by union representatives. Since people have a First Amendment right not to be forced to subsidize political speech they disagree with, WILL filed a lawsuit—and the school board changed its rule to say that “union-related activities for which release time may be offered only include activities that are politically and ideologically ‘viewpoint neutral.’”

Almost a year ago, we were contacted by a property owner in the Phoenix area who had been cited by County officials for “improper lighting”—without giving her an opportunity to cross examine witnesses against her. It’s just an other example of the ways government agencies often proceed without following the basic principles of our legal system. We’re grateful that AFN member Steven Simon was able to step up and take her case. Steve recently secured an initial victory when the court denied the County’s motion to dismiss. The litigation now continues. 

Our friends at the Institute for Free Speech recently filed suit in Colorado challenging the constitutionality of state laws restricting people’s right to donate to candidates they support. These kinds of restrictions don’t just violate the constitutional right to express your political opinions—they also tend to expand the power of incumbents and to restrict the ability of newcomers to challenge them.

Next month…

We have some exciting news coming soon from the Goldwater Institute’s American Freedom Network. Can’t wait to share it with you!

If you know anyone whose rights may be implicated by these cases or others, or if you have any questions about the Goldwater Institute’s litigation work or about the American Freedom Network, please reach out to Kelly Day at kday@goldwaterinstitute.org. And if you are an attorney in private practice interested in supporting the work of liberty, of if you know someone who is, please consider joining Goldwater’s American Freedom Network here.

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