At the Federalist Society Blog, Rob Natelson: The Supreme Court’s Confused Decision in Haaland v. Brackeen. From the introduction:
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.
On the majority 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.
…
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.”
And on Justice Gorsuch's 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. …
He like Justice Thomas' dissent though.
(Thanks to Andrew Hyman for the pointer.)
Posted at 6:34 AM