Amicus Brief: Haaland, et al. v. Brackeen, et al.
AMICUS BRIEF SUMMARY
Under the Constitution, courts have a duty “to say what the law is.” NCLA believes that courts shirk that duty when they defer to a federal agency’s interpretation of the law—under a judge-made rule known as “Chevron deference.” In this case, a three-judge panel of the Fifth Circuit determined that several provisions of the Indian Child Welfare Act (ICWA) were ambiguous and then deferred to a federal agency’s interpretation of those provisions. NCLA responded by filing a brief urging the Fifth Circuit to rehear the case en banc (that is, a rehearing before all judges sitting on the Fifth Circuit). In a victory for NCLA, the court agreed to do so. NCLA then filed a second brief, arguing that judges should stop deferring to others’ interpretation of the law and instead should rely on their own best judgment when construing federal statutes. The Fifth Circuit’s eventual ruling was a partial victory for NCLA. The court refused to defer to the Bureau of Indian Affairs’ (BIA) interpretation of one ICWA provision and struck down BIA’s interpretive regulation, but it applied Chevron deference to uphold a second BIA regulation.
In February 2022, the U.S. Supreme Court agreed to review the case to determine whether certain provisions of the ICWA are unconstitutional. But the Supreme Court will not be addressing the Chevron deference issues decided by the Fifth Circuit.
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COURT: 1) U.S. Court of Appeals for the Fifth Circuit; 2) U.S. Court of Appeals for the Fifth Circuit; 3) U.S. Supreme Court
DOCUMENT: 1) 18-11479; 2) 18-11479; 3) 21-376, 21-377, 21-378, 21-380
ATTORNEYS FOR AMICUS CURIAE: 1) Philip Hamburger, Mark Chenoweth, Peggy Little, Adi Dynar; 2) Philip Hamburger, Mark Chenoweth, Peggy Little, Adi Dynar; 3) Richard Samp, Brian Rosner, Mark Chenoweth
FILED: 1) October 8, 2019; 2) January 7, 2020
June 2, 2022 | Brief Amicus Curiae of the New Civil Liberties Alliance in Support of Petitioner in No. 21-378
April 6, 2021 | Decision of the U.S. of Appeals for the Fifth Circuit
January 7, 2020 | Brief of Amicus Curiae New Civil Liberties Alliance in Support of the Plaintiffs-Appellees on Rehearing En Banc
October 10, 2019 | Brief of Amicus Curiae New Civil Liberties Alliance in Support of the Plaintiffs-Appellees’ Petition for Rehearing En Banc
June 3, 2022 | NCLA Amicus Brief Tells Supreme Court that the ICWA Wrongly Divests Legislative Power
Washington, DC (June 3, 2022) – The New Civil Liberties Alliance, a nonpartisan, nonprofit civil liberties group, has filed an amicus brief with the U.S. Supreme Court in the cases consolidated with Haaland, et al. v. Brackeen, et al. NCLA is urging the Supreme Court to declare that the Indian Child Welfare Act (ICWA) divests Congress’s lawmaking function to an entity outside of the federal government (i.e., Indian tribes), which Article I, Sec. 1 of the U.S. Constitution forbids.
The ICWA is a federal law that regulates state foster-care and adoption proceedings involving Indian children. The act purports to delegate authority to Indian tribes to re-write legislative default rules governing adoptive placement of Indian children, which would unlawfully divest Congress’s legislative powers. NCLA strongly supports judicial enforcement of the Vesting Clause’s constitutional mandate that “[a]ll legislative powers … shall be vested in a Congress.” The ICWA violates this mandate.
The States of Texas, Louisiana, and Indiana filed suit in district court, seeking a declaration that the ICWA violates the Vesting Clause. The district court granted the States’ motions for summary judgment, accurately stating that “an Indian tribe, like a private entity, is not part of the federal Government at all” and therefore that “Article I does not permit Congress to delegate its inherent authority to the tribes.” A divided en banc Fifth Circuit reversed the district court’s ruling, holding that the ICWA does not violate the nondelegation doctrine.
The Fifth Circuit majority further asserted that Congress may freely delegate to Indian tribes its legislative authority on any subject matter that Congress is authorized to regulate pursuant to the Indian Commerce Clause. But the flawed logic underlying that broad assertion would undo the vesting of “all” legislative power in Congress. If Congress were entitled to divest the powers it possesses under the Indian Commerce Clause, it follows that Congress would be permitted to divest its powers under other Article I provisions—e.g., the taxing power, the spending power, and the power to regulate interstate commerce. But Congress would then hardly have all legislative power. In fact, it would have hardly any left.
The Fifth Circuit stated that Indian tribes are exempt from the nondelegation doctrine—that tribes possess sovereign authority and that the Vesting Clause does not bar Congress from adopting as federal law the laws of another sovereign. This premise and its conclusion are both flawed. Congress cannot adopt another sovereign’s future laws sight unseen without unlawfully divesting its legislative power. The Supreme Court should enforce the Vesting Clause of Article I, Sec. 1 and reverse the decision below.
NCLA released the following statement:
“The Indian Child Welfare Act delegates to Indian tribes the authority to re-write Congressional rules governing the placement of Indian children for adoption. That delegation violates the Vesting Clause of Article I that vests such power solely in Congress. Such improper divesting must not be permitted to stand.”
— Brian Rosner, Senior Litigation Counsel, NCLA
For more information visit the amicus page here.
NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.
January 7, 2020 | NCLA Asks Court to Not Abandon Its Duty of Independent Judgment in BIA Case Under Chevron Deference
Washington, DC (January 7, 2019) – The New Civil Liberties Alliance filed an amicus brief today with the Fifth Circuit U.S. Court of Appeals in support of plaintiffs-appellees in the case of Brackeen v. Bernhardt. NCLA is urging the full Fifth Circuit to call out the constitutional defects inherent in the Chevron judicial deference doctrine. Specifically, NCLA points out that judges violate Article III of the Constitution and their judicial oaths when they give Chevron deference instead of providing their independent judgment. Furthermore, judges violate the Due Process Clause when they favor a government litigant’s interpretation of the law over the interpretation of the other party in the case. In other words, Chad Brackeen and the other plaintiffs-appellees are denied a fair trial if the judge hearing their case employs Chevron deference in favor of the government.
In this case, Congress gave the federal agency (the Bureau of Indian Affairs) a 180-day window to issue regulations, but that was 36 years ago. Now the BIA thinks it can make law as it pleases, when it pleases. NCLA calls on the en banc Fifth Circuit to resist the siren song of Chevron.
NCLA released the following statements:
“Under the Chevron deference doctrine, three judges of the Fifth Circuit concluded that BIA’s decision to issue lame-duck regulations in 2016 some four decades too late was “reasonable.” That conclusion, which is hard to reconcile with logic or grammar, was possible only because of Chevron—a doctrine that requires judges to abandon their duty of independent judgment and acquiesce in the decisions of executive-branch agencies. We urge the full Fifth Circuit, which is rehearing the case en banc, to silence the panel’s out-of-tune paean to Chevron.” —Adi Dynar, NCLA Litigation Counsel
“This case presents a perfect opportunity for the Fifth Circuit to repudiate Chevron deference, a doctrine so ill-advised and violative of due process that it has been construed by courts and agencies to permit the Bureau of Indian Affairs (BIA) latitude to write itself its own permission slip to issue regulations four decades after Congress’s grant of such authority lapsed. By repudiating Chevron, the Court will uphold its integrity as an independent and unbiased third branch of government ensuring that Americans enjoy due process of law.”
—Peggy Little, NCLA Senior Litigation Counsel
NCLA is a nonprofit civil rights organization founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.