The Volokh Conspiracy

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Professor Barrett Flunks Brackeen's Lawyers

Justice Thomas would place the burden on the government, and follow a presumption of liberty.


I have much to say about Brackeen. I noted in my earlier post that the primary intellectual joust occurred between Justices Gorsuch and Thomas. Here, I'll start with Justice Barrett's majority opinion. In one sense, the majority opinion is underwhelming. The Court does not break any new ground with regard to the Indian Commerce Clause, fails to fully-explain the so-called plenary power doctrine, and adopts a really narrow conception of redressability to avoid tackling the equal protection issue. (Justice Barrett readily cited California v. Texas on that last point.) But if you read between the lines, Justice Barrett seems annoyed that the plaintiffs did not present a better case. It seemed like she was open to ruling in favor of the plaintiffs, but their lawyers didn't make the case.

Here's the tell. Search for the word "Petitioners." Over and over again, Barrett refers not to the actual Petitioners–that is, the families challenging ICWA. Rather, she is referring to counsel for Petitioners, and the arguments they make. Barrett consistently knocks the lawyers, led by the Texas Solicitor General, for failing to present fully-developed arguments. I felt like I was reading a Professor grading a student's paper. And Professor Barrett was not pleased.

Consider a sampling:

  • Petitioners are trying to turn a general observation (that Congress's Article I powers rarely touch state family law) into a constitutional carveout (that family law is wholly exempt from federal regulation). That argument is a nonstarter.

  • Ticking through the various sources of power, petitioners assert that the Constitution does not authorize Congress to regulate custody proceedings for Indian children. Their arguments fail to grapple with our precedent, and because they bear the burden of establishing ICWA's unconstitutionality, we cannot sustain their challenge to the law.

  • Even the judges who otherwise agreed with petitioners below rejected this narrow view of the Indian Commerce Clause as inconsistent with both our cases and "[l]ongstanding patterns of federal legislation." 994 F. 3d, at 374–375 (principal opinion of Duncan, J.). Rather than dealing with this precedent, however, petitioners virtually ignore it. [If only the students at Stanford had read Judge Duncan's opinion!]

  • Once again, petitioners make no argument that takes our cases on their own terms.

  • Presumably recognizing these obstacles, petitioners turnto criticizing our precedent as inconsistent with the Constitution's original meaning. Yet here too, they offer no account of how their argument fits within the landscape of our case law. For instance, they neither ask us to overrule the precedent they criticize nor try to reconcile their approach with it. They are also silent about the potential consequences of their position. Would it undermine established cases and statutes? If so, which ones? Petitioners do not say.

  • We recognize that our case law puts petitioners in a difficult spot. We have often sustained Indian legislation without specifying the source of Congress's power, and we have insisted that Congress's power has limits without saying what they are. Yet petitioners' strategy for dealing with the confusion is not to offer a theory for rationalizing this body of law—that would at least give us something to work with. Instead, they frame their arguments as if the slate were clean. More than two centuries in, it is anything but.

  • If there are arguments that ICWA exceeds Congress's authority as our precedent stands today, petitioners do not make them.

  • If ICWA commandeers state performance of a "core sovereign function," petitioners do not give us the details.

  • When a federal statute applies on its face to both private and state actors, a commandeering argument is a heavy lift—and petitioners have not pulled it off.

  • The individual petitioners do not dispute—or even address—any of this.

And even when Texas tried to reconcile the disparate precedents, Barrett faulted the SG for failing to explain why Congress's powers were so limited:

  • Texas floated a theory for the first time at oral argument. It said that, taken together, our plenary power cases fall into three buckets: (1)those allowing Congress to legislate pursuant to an enumerated power, such as the Indian Commerce Clause or the Treaty Clause; (2) those allowing Congress to regulate the tribes as government entities; and (3) those allowing Congress to enact legislation that applies to federal or tribal land. Tr. of Oral Arg. 55. According to Texas, ICWA is unconstitutional because it does not fall within any of these categories. We have never broken down our cases this way. But even if Texas's theory is descriptively accurate, Texas offers no explanation for why Congress's power is limited to these categories.

Readers may recall that in Lopez, Chief Justice Rehnquist create somewhat arbitrary categories to describe the Court's Commerce Clause precedents. Texas attempting to do much the same. And Justice Barrett did not even attempt to explain why Texas's buckets were wrong.

Throughout the opinion, Justice Barrett placed the burden squarely on the petitioners–and that burden was staggeringly heavy. In dissent, Justice Thomas acknowledged that some of the arguments were lacking:

While I share the majority's frustration with petitioners' limited engagement with the Court's precedents, I would recognize the contexts of those cases and limit the so-called plenary power to those contexts.

But Justice Thomas countered that the majority inverted the burden:

In the normal course, we would say that the Federal Government has no authority to enact any of this. Yet the majority declines to hold that ICWA is unconstitutional, reasoning that the petitioners before us have not borne their burden of showing how Congress exceeded its powers. This gets things backwards. When Congress has so clearly intruded upon a longstanding domain of exclusive state powers, we must ask not whether a constitutional provision prohibits that intrusion, but whether a constitutional provision authorizes it.

The dissent followed a presumption of liberty. The majority hewed to a presumption of constitutionality. Justice Gorsuch, who in every other context places burdens on the federal government, joined Justice Barrett with alacrity.

There is an unfortunate asymmetry on the current Court. Progressive lawyers can present the most half-baked ideas and still cobble together five votes with ease, because legitimacy. It doesn't even have to be baked! A raw kernel of an idea is enough. The Chief chef will cook up a blue-plate special, and Justice Kavanaugh will ladle it out. But to get Justice Barrett's vote, conservative lawyers need to submit the equivalent of a peer-reviewed law review article that fully considers every possible implication of how the theory affects every Supreme Court decision ever written. Short of that, they are going to lose.