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This post first appeared in the June 21, 2023 Federalist Society blog
On June 15, the Supreme Court issued Haaland v. Brackeen. Among other issues, the Court addressed the scope of the Constitution’s Commerce Clause. Specifically, it upheld the federal Indian Child Welfare Act (ICWA) as within Congress’ power to “regulate Commerce . . . with the Indian Tribes.”
The Commerce Clause part of the decision is a mess. There is no more polite way to describe it.
With two exceptions in favor of the states, the Articles of Confederation (1781-1789) gave Congress broad power over all Indian “affairs.” When writing the Constitution, some framers wanted to give the new federal Congress complete authority over Indian “affairs,” but without the exceptions.
The Constitutional Convention rejected that idea. Instead, the final Constitution conferred discrete powers on different branches of the new federal government, with the states retaining whatever was left over. Specifically:
The Constitution gave Congress authority over “Commerce” with the tribes;
it also gave Congress general authority over any residents (including Indians) living in federal territories;
it empowered Congress to define domestic application of “the Law of Nations,” including relationships with tribal non-citizens;
it granted the President authority over military operations, including Indian wars; and
it bestowed upon the President-and-Senate the power to make treaties with Indian nations.
Over time, most of these powers have become less important. Relatively few Native Americans now live within federal territories. Almost all are American citizens. There are no more Indian wars. And the government no longer makes treaties with the tribes (although existing treaties remain in effect).
The most significant remaining federal power is Congress’s commission to “regulate Commerce . . . with the Indian Tribes.” When Congress passed the ICWA, it claimed to be doing this.
There is a lot of confused writing on the meaning of “regulate Commerce . . . with the Indian Tribes.” However, the meaning of the clause becomes quite clear if you know what to look for. The phrase “regulating commerce” was a well-defined legal term. We also have examples of early American statutes regulating commerce with the tribes. And we have a mass of other reliable evidence.
Admittedly, not everything about “regulating Commerce with the Indian Tribes” is 100 percent certain. But it is certain that “regulating Commerce” does not include intervening in child placement decisions.
The Court’s Opinion
Justice Amy Coney Barrett wrote the Court’s majority opinion. There are three contradictions at the core of the opinion, which make it unusually incoherent for the normally careful Justice.
First: She admitted that any congressional power “must derive from the Constitution, not the atmosphere,” because “Article I gives Congress a series of enumerated powers, not a series of blank checks.” But she then found congressional authority in sources outside the Constitution, including “pre-constitutional powers” and a “trust relationship.”
Second: She claimed that Congress’s Indian power is “plenary,” a word that means “absolute.” But then she said that the Indian affairs power “is not absolute.”
Third: She wrote that Congress’s authority under the Indian Commerce Clause is not absolute because it has boundaries. But then she expanded those boundaries beyond the orbit of the planet Saturn: “Congress’s power under the Indian Commerce Clause encompasses not only trade but also ‘Indian affairs.’”
Recall that giving Congress unlimited “Indian affairs” authority was precisely what the framers rejected. Instead, they gave targeted powers to Congress, the President, and the Senate—and left the rest to the states.
Justice Barrett claimed congressional power was “exclusive” of state responsibility. In other words, she claimed the states have no role in Indian affairs. But that contention is disproved by the Ninth and Tenth Amendments. It also is contrary to more than 200 years of practice. In real life, Native Americans become subject to state law all the time: When they drive on state roads, they must obey state traffic laws. When they vote, they do so mostly under state regulations. And so forth.
At some level, I think Justice Barrett understood the weaknesses in her argument. This is because her principal reliance was on case precedents rather than on independent reasoning. But these precedents aren’t worth much as constitutional analysis. In his dissent, Justice Clarence Thomas accurately described them as “judicial ipse dixit.” In other words, they merely pronounce, “It’s so because we say so.”
Tellingly, Justice Barrett never actually ruled that the ICWA is constitutional. She wrote that the plaintiffs had not proved it is unconstitutional and “We therefore decline to disturb the Fifth Circuit’s conclusion.”
The Gorsuch Concurrence
I found Justice Neil Gorsuch’s concurrence even more disappointing, because I expected much more from this brilliant jurist.
The first third of his opinion was consumed by a list of prior injustices—as if shame were a valid constitutional argument. After that, he slipped on his own contradictions.
For example, he acknowledged that congressional power under the Indian Commerce Clause is not plenary. “Instead of a free-floating Indian-affairs power,” he wrote, “the framers opted for a bundle of federal authorities tailored to ‘the regulation of [the Nation’s] intercourse with the Indians.’”
But he seemed to forget this when he wrote that, under the Commerce Clause, “Congress has the authority to manage ‘all interactions or affairs . . . with the Indian [T]ribes’ and foreign sovereigns—wherever those interactions or affairs may occur.” He relied on an article that argued that the Commerce Clause grants Congress authority to regulate all human relationships. Of course, history rebuts that notion.
Justice Gorsuch then pointed out that during the administration of President George Washington, the federal government assumed broad authority over Indian affairs. He cited the 1790 Indian Intercourse Act and several other early congressional statutes.
But in doing so, he overlooked his earlier acknowledgment that the federal government was then operating under a “bundle” of powers, not under the Commerce Clause alone. The early Indian intercourse laws were also supported by Congress’s authority to regulate territories, the law of nations, and its power to carry out treaties. All of these are irrelevant to the ICWA.
Like Justice Barrett, Justice Gorsuch implausibly dismissed the reserved state role preserved in Indian affairs. After noting the “bundle” of federal powers, he wrote that “the Constitution came with no indication that States had any similar sort of power.”
Of course, he forgot the Ninth and Tenth Amendments—and the fact that it was the purpose of the Constitution to enumerate only federal powers, not state powers.
There are three silver linings in this case.
First: In 2004, Justice Thomas began to encourage the court to rationalize its Indian law precedents, and in this case, he contributed to the cause with a brilliant dissent. In my view, it fairly well punctured the court’s reasoning. Justice Thomas relies in part on my published research in his opinion.
Second: Justice Samuel Alito also dissented. Heretofore, he has avoided questioning Congress’s excessive Commerce Power pretentions, except when Congress has improperly “commandeered” state legislatures and executives. Perhaps Justice Alito has become more resistant to Congress’ disregard of constitutional limits.
Third: Poorly-reasoned decisions often don’t last over the long term. Later courts frequently narrow them, overrule them, or punch holes in them. If we are fortunate, that will happen to Haaland v. Brackeen.