MARY REICHARD, HOST: It’s Monday morning and the start of a new work week for The World and Everything in It! Today is December 5th. Good morning! I’m Mary Reichard.
NICK EICHER, HOST: And I’m Nick Eicher. It’s time for Legal Docket.
Two cases today and they concern two vulnerable groups of people: children and the elderly.
Legal reporter Jenny Rough covered the arguments and she has our report this week.
JENNY ROUGH, REPORTER: I start today with the child custody case, which is four cases consolidated into a single legal argument.
The federal law at issue here is known as the Indian Child Welfare Act. Now, I’ll refer to it a lot, so I’ll use the acronym that you’ll hear the lawyers use in the case. It is spelled ICWA and pronounced as the acronym IC-WA—again the Indian Child Welfare Act.
The question, then, is whether IC-WA’s goal of upholding Native American nations amounts to unconstitutional racial discrimination.
Specifically, IC-WA governs Indian children entering foster care or an adoptive home. The law prioritizes keeping the child with their tribes, rather than placing them with non-Indian families.
The case at the Supreme Court is called Haaland v. Bracken. Seven individuals and the state of Texas sued the federal government. And they brought a bunch of lawsuits to argue that IC-WA is unconstitutional.
Let me start with the seven individuals, among them a white couple named Chad and Jennifer Brackeen.
The Brackeens want to adopt an Indian child they fostered and bonded with. And the child’s biological mother also wants the Brackeens to adopt her child.
But the Navajo Nation opposes that and wants the child placed with a member of the tribe. At the Supreme Court, attorney Matthew McGill argued on behalf of the Brackeens.
MCGILL: According to the federal government, in 2020 there were more than 11,000 Native American children in state foster care. The problem is that there are less than 2,000 Native American foster homes.
The Brackeens argue that IC-WA’s requirement that their foster child be placed with an Indian family instead of with them amounts to racial discrimination.
But defenders of ICWA say the nature of the law is not about racial classification. Rather, it is about political classification.
Justice Elena Kagan made that point.
KAGAN: Congress is very clear in this statute that it thinks this statute is critical to the survival of the tribe as a political entity. And that is, in fact, one of the reasons why it adopts this statute is that the political entity itself is threatened because of the way decisions are made about the placement of children.
Congress passed IC-WA with the stated purpose of helping tribal communities thrive and prosper. But McGill argued that despite the laudable goal, Congress cannot violate the equal protection clause of the Constitution to achieve it.
MCGILL: There was a real problem that Congress was trying to address. We do not deny the existence of a problem. But the means chosen by Congress are impermissible. Two wrongs don’t make a right here.
Judd Stone argued for the State of Texas.
He addressed questions about the 10th amendment. It is in the bill of rights to explain the relationship between the federal and state governments. It prevents the federal government from issuing orders to the states. In law, we know this as the anti-commandeering rule.
In an exchange with attorney Stone, Judge Amy Coney Barrett asked whether IC-WA, the federal statute, compels the states to act here. Justice Barrett notes that the federal government argues that IC-WA does not command here because—
BARRETT: The state could just choose, could essentially walk away. How would that work? Can Texas walk away? You know, if you had a child who was a member of a tribe and was in a situation where the child was in danger or, you know, like the Brackeen children here. Can the Texas agency choose not to intervene or seek a foster care placement for the child?
STONE: It would be very strange for the federal government to say it’s not commandeering, because you can always just stop. I have no idea how Texas can do that as a practical matter.
Another line of questioning centered on the Indian Commerce Clause in Article 1 of the Constitution. It says that Congress has the power to regulate trade with Indian tribes. Congress used that clause as its main justification for enacting IC-WA.
Here’s Stone again, arguing for Texas.
STONE: Child adoptions are not trafficking. They simply aren’t.
Several justices have pointed out that Congress’s power under the Commerce Clause is broad. It goes beyond goods or what one might normally think of as trade.
And Justice Neil Gorsuch mentioned that other federal laws fall into the sphere of family law.
GORSUCH: The federal government often plays a role in mediating disputes between sovereigns in the family law area, whether it’s the Hague Convention internationally or the Parental Abduction Act domestically. So why would it be uncomfortable to think that Congress could exercise a similar authority over disagreements between state sovereigns and tribal sovereigns?
On behalf of the Indian tribes is attorney Ian Gershengorn.
GERSHENGORN: Congress enacted ICWA because Indian children were torn from their families and tribes by the operation of state family law in state courts. ICWA protects the best interests of children. It works to keep families, keep children with their families and communities. Therefore, ICWA is considered the gold standard.
The best interests of children.
At one point, Gershengorn mentioned the damage to the tribal community from the removal of Indian children. And Justice Kagan turned back on it.
KAGAN: I think some of the strong feelings on this matter come from a sense of, yes, but what about the children? I mean, you do harm the political community, but are you saying that the political community is more important than the welfare of the children? That’s the thing I think people go, whoa.
GERSHENGORN: I’m glad you asked that, Your Honor. Congress found that ICWA was in the best interest of the children, right? And what ICWA realizes is that these children were taken from their communities too soon. Why? Well, sometimes there was abuse at home, wasn’t there? But what ICWA says is many times that is recoverable. It’s drug abuse, right? It’s the ability, if you can get the child out of the home, get the care from the parents, then the child will actually thrive when the child is returned to the home and community.
Now about the second case. Care of the elderly. This case centers on a man named Gorgi Talevski. He suffered from dementia, so his family placed him in a publicly run nursing home. After they did, his health rapidly deteriorated.
The family claimed the nursing home overmedicated him. And then transferred against his will to another facility.
The Federal Nursing Home Reform Act says patients have the right to refuse medications and transfers.
Through his wife, Talevski sued the hospital corporation that oversees the nursing home. He sued under 42 USC section 1983. It allows a private individual to sue government actors for violating the laws of the United States.
But the hospital corporation argues that this particular federal statute does not permit a party to bring a Section 1983 claim.
Here’s Lawrence Robbins arguing on behalf of the hospital corporation in an altercation with Judge Brett Kavanaugh.
ROBBINS: At common law, third parties generally could not sue to enforce government contract rights unless the contract clearly specified that the breaching party would be liable to injured third parties. Because the Federal Nursing Home Reform Act does not contain such a clear statement, it should not give rise to Section 1983 liability. The individual patient is not the unambiguous focus of this statute
KAVANAUGH: It says rights. I mean, it says rights. It is a very uncomfortable fact for you that the statute says rights over and over again. Resident rights too.
And that’s this week’s Legal Document. I’m Jenny Rough.
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