Fifth Cirucuit Court of Appeals issues its en banc decision in the Brackeen #ICWA case. It's 327 pages long, and very complicated....
"an en banc majority agrees that, as a gen'l proposition, Congs had the authority to enact ICWA under Art I...[&] that ICWA’s 'Indian child' classification does not violate equal protection.... The en banc court is equally divided, however, as to whether Plaintiffs prevail on
their equal protection challenge to ICWA’s adoptive placement preference for 'other Indian families' & its foster care placement preference for a licensed 'Indian foster home'... The district court’s ruling that provisions of ICWA...are unconst'l bc they incorporate the 'Indian
child' classification is therefore reversed, but its ruling that § 1915(a)(3) & (b)(iii) violate equal protection is affirmed w/out a precedential opinion. The court’s holdings on Plaintiffs’ various anticommandeering claims are more intricate. An en banc majority holds that
ICWA’s 'active efforts,' expert witness & recordkeeping reqts, unconst'ly commandeer state actors. The district ct’s judgmt declaring those sections unconst'l under the anticommandeering doctrine is therefore affirmed. However, the en banc ct is equally divided on whether the
placement preferences, violate anticommandeering to the extent they direct action by state agencies & officials; on whether the notice provision, unconst'ly commandeers state agencies; & on whether the placement record provision, unconst'ly commandeers state courts. To that
extent, the district ct’s judgmt declaring those
sections unconst'l under the anticommandeering doctrine is affirmed w/out precedential opinion. Furthermore, an en banc majority holds that several challenged ICWA provisions validly preempt state law & so do not commandeer states"
In other words, gotta lot of reading to do, but this looks like a measured but EXTREMELY SIGNIFICANT win for Indian children who deserve the equal legal protection that #ICWA denies them.

And it cries out for Supreme Court review.
For more on #ICWA & how it violates the rights of Native kids and their parents, see:…

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More from @TimothySandefur

20 Dec 20
Lol. She’s actually arguing that Douglass did NOT think the Constitution was anti slavery before the war.

This is a truly radical rereading of Douglass, which is contrary to the man’s own words & to every scholar who’s ever written on the subject, but okay.
Ms. H-J isn’t saying Douglass was wrong abt the Const, or just a liar (tho she said that a couple hrs ago). Now she’s saying that he REALLY thought the Const became anti-slavery only after the war.

Which is the opposite of what FD himself said in countless speeches & articles.
Alas, typical of her approach to such matters.…
Read 4 tweets
20 Dec 20
I should probably screenshot this latest example of NHJ’s intellectual dishonest before she deletes it like she usually does, but here’s the fun part: she’s quoting passages from the speeches Douglass later repudiated after devoting time to studying the Constitution.
Douglass explained in great detail afterwards that he had been wrong to swallow Garrison’s views about the Constitution being evil. After studying the subject himself he realized he’d been in error. One might wish, and futilely, that she would herself study with some care.
FD was of course falsely accused of dishonesty for his change of mind—his white critics said it couldn’t POSSIBLY be a genuinely thought-out position on his part. It just HAD to be an intellectually dishonest political tactic.
Read 14 tweets
17 Oct 20
As this thread indicates, the real scandal here is how the Times & especially @nhannahjones herself, responded to criticisms—evasions, lies, false accusations of racism, &c.
The “true founding” thing is important in another dimension, though. The project’s defenders are taking shelter in saying that they meant the phrase “metaphorically” and “of course” they know the United States’ LEGAL founding was in 1776. But that’s a straw man, because
the subject was never the LEGAL founding. It was always abt the NATION’s founding, and a NATION’s founding is always “metaphorical.”

A state (such as the USA)’s legal founding date is not the same as a NATION’s founding. A nation is an imaginary or hypothetical institution. The
Read 10 tweets
15 Oct 20
Remember when Republicans used to get this?
The idea that you can’t start a competing version of Twitter would be so much more interesting if a bunch of people HADN’T JUST STARTED A COMPETING VERSION OF TWITTER:
Read 5 tweets
15 Oct 20
The “Statutes at Large” are the published laws of the USA. In fact, they take precedence over the United States Code in the event of conflict.…

So, quick question, all you twitter con law geniuses: what appears on page 1 of volume 1 of Statutes at Large?
As Abraham Lincoln said, when debating Stephen Douglas, “
If the Declaration is not the truth, let us get the statute book in which we find it and tear it out. Who is so bold as to do it?”
Read 20 tweets
14 Oct 20
It's astonishing that major figures in public life think things like this are somehow insightful or clever or interesting, let alone that they somehow refute Originalism.
Two generations of con law scholars: “The enacted text shd be interpreted in light of its public understanding at adoption, bc we’re normatively bound by Original meaning & bc as a semantic matter, words mean what they’re understood to mean at the time they are uttered”

Read 4 tweets

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