The Volokh Conspiracy

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En Banc Fifth Circuit Issues Badly-Fractured 325-Page Decision in ICWA Case

Chief Judge Owen and Judge Southwick largely joined Judge Dennis's majority opinion to form a mostly-controlling opinion.


Today, the En Banc 5th Circuit issued a 325-page decision in Brackeen v. Haaland. This case concern the constitutionality of the Indian Child Welfare Act. The opinion is badly, badly fractured. Indeed, there is a seven-page per curiam opinion that explains the votes.

Judge Dennis wrote the majority opinion in most regards. You may ask, how could it be that in the Fifth Circuit, Judge Dennis controls an en banc court? Simple. Judge Ho recused, and Judge Wilson joined the court after the case was submitted, and did not participate. Plus, Chief Judge Owen and Judge Southwick largely joined the majority. With those circumstances, Judge Dennis can control the en banc court.

Based on my quick read, there are some issues for which Judge Duncan commanded a majority. Let's see if you can make sense of this sentence.

The court's holdings on Plaintiffs' various anticommandeering claims are more intricate. An en banc majority holds that ICWA's "active efforts," § 1912(d), expert witness, § 1912(e) and (f), and recordkeeping requirements, § 1915(e), unconstitutionally commandeer state actors.FN5 The district court's judgment declaring those sections unconstitutional under the anticommandeering doctrine is therefore affirmed.

FN5: Parts III(B)(1)(a)(i), (ii), (iv); III(B)(1)(b); and III(B)(2)(b) (insofar as it addresses §§ 1912(d)–(f) and 1915(e)) of Judge Duncan's opinion are the en banc majority opinion on these issues.

I pity the clerk who has to write this cert pool memo.