🚨Good Morning!! Pre-Argument 🧵 3 of 3 explaining the constitutional challenges to #ICWA that #SCOTUS will hear today in Haaland v. #Brackeen: Anti-Commandeering. 1/7
This challenge is about state’s power. The idea, from the structure of the Constitution and the 10th Amendment, is that Congress has limited power, & can’t interfere with powers that belong to States. 2/7
Congress can pass laws preempting (trumping) state law, but they can’t make state officials do stuff to enforce federal law. Congress can make it illegal to buy certain kinds of firearms, for example, but they can’t force state officials to run background checks. 3/7
#ICWA requires state courts to apply placement preferences for family members, tribal families, and then Indian families. It also requires state officials to make “active efforts” to implement #ICWA like reaching out to family members or tribes to find an Indian placement. 4/7
The argument here is that these “active efforts” fall into the bucket of forcing state officials to “do stuff” rather than this just being a federal law that trumps state law. 5/7
If #ICWA’s active efforts are unconstitutional on this anti-commandeering ground, then those parts, but maybe not all of #ICWA is unconstitutional. Other parts of the law could stand but there would be a huge drop-off in enforcement. 6/7
However, importantly, it would not undermine the rest of Indian Law!
This is the “best way to lose” this case because its narrower and doesn’t take down the rest of Indian Law. 7/7
This is the “best way to lose” this case because its narrower and doesn’t take down the rest of Indian Law. 7/7
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