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Indian Commerce Clause in the Supreme Court

By on July 1, 2013 7:43 pm in Child Protection, Commerce Clause, Constitutional History, Constitutional Law, Federalism, Racial Discrimination, Supreme Court

Among the cases decided during final week of the Supreme Court term was Adoptive Couple v. Baby Girl (Scotusblog summary here.) Justice Alito’s opinion for a 5-4 majority begins:

This case is about a little girl (Baby Girl) who is classified as an Indian because she is 1.2% (3/256) Cherokee. Because Baby Girl is classified in this way, the South Carolina Supreme Court held that certain provisions of the federal Indian Child Welfare Act of 1978 required her to be taken, at the age of 27 months, from the only parents she had ever known and handed over to her biological father, who had attempted to relinquish his parental rights and who had no prior contact with the child. The provisions of the federal statute at issue here do not demand this result.

The majority opinion is about statutory interpretation. Justice Thomas joined the majority opinion, and also wrote a concurrence. His concurrence explained that the doctrine of constitutional avoidance was the reason that he joined the majority on statutory interpretation, thus finding that South Carolina’s adoption laws had not been preempted by the Indian Child Welfare Act. As Justice Thomas’s concurrence points out, the Constitution grants Congress the power “To regulate Commerce…with the Indian tribes.” Some persons have over-read the Indian Commerce Clause as a grant to Congress of plenary authority over anything involving Indians. Justice Thomas points out the error: the Indian Commerce Clause is about commercial relations with tribes. It is a not a grant of plenary congressional power over every Indian anywhere in the United States. Thus, Congress has no constitutional power to displace state adoption laws simply because a child has a drop of Indian blood.

Cited 9 times in the Thomas opinion is The Original Understanding of the Indian Commerce Clause, [...]

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When Ordinary Parenting Practices Can Land You in Court

By on February 18, 2012 5:39 pm in Child Protection, Parental Rights

Law professor David Pimentel has an interesting article detailing the ways in which law and social norms have evolved to the point where perfectly ordinary parenting practices can land you in prison or at least subject you to an expensive lawsuit or prolonged official harrasment [HT: Bryan Caplan and Katherine Mangu-Ward]. As Pimentel points out, this is often a result of vague statutes and regulations that are interpreted by courts and administrative agencies to require extremely overprotective parenting. Pimentel notes that many such overprotective practices are influenced by media sensationalism and have little or no support in the actual data on child safety and some might even harm children more than they benefit them.

I will leave the specific legal issues to those more expert in these matters than I am, such as co-blogger Eugene Volokh. But one example from the text was particularly striking to me, based on personal experience:

Even one generation ago, the norms were different for determining the age at which a child no longer needed a babysitter. The expected minimum age for babysitters has gone up as well, although in the few states that have legislated specific ages, the thresholds vary widely. In Illinois, it is illegal to leave a child under 14 unsupervised for an “unreasonable period of time”; in Maryland, in contrast, a 13-year-old is considered old enough not only to care for himself, but to babysit infants. The days when 11- and 12-year-old neighborhood kids were considered competent babysitters appear to be long gone. This development is all the more marked considering that mobile phones have created a virtually instant line of communication between the sitter and the parents, something unheard of in earlier eras, when younger sitters were considered acceptable.

I worked as a babysitter when I was twelve, back [...]

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Brown v. EMA casts doubt on the “weapons effect” justification for gun control

By on June 27, 2011 9:38 pm in Child Protection, Constitutional Law, Expert Evidence, First Amendment, Freedom of Speech, Guns, Supreme Court
The State’s evidence is not compelling. California relies primarily on the research of Dr. Craig Anderson and a few other research psychologists whose studies purport toshow a connection between exposure to violent video games and harmful effects on children. These studies have been rejected by every court to consider them,6 and with good reason: They do not prove that violent video
6See Video Software Dealers Assn. v. Schwarzenegger, 556 F. 3d 950, 963–964 (CA9 2009); Interactive Digital Software Assn. v. St. Louis County, 329 F. 3d 954 (CA8 2003); American Amusement Machine Assn.
v. Kendrick, 244 F. 3d 572, 578–579 (CA7 2001); Entertainment Soft-ware Assn. v. Foti, 451 F. Supp. 2d 823, 832–833 (MD La. 2006); Enter-tainment Software Assn. v. Hatch, 443 F. Supp. 2d 1065, 1070 (Minn. 2006), aff ’d, 519 F. 3d 768 (CA8 2008); Entertainment Software Assn. v. Granholm, 426 F. Supp. 2d 646, 653 (ED Mich. 2006); Entertainment Software Assn. v. Blagojevich, 404 F. Supp. 2d 1051, 1063 (ND Ill. 2005), aff ’d, 469 F. 3d 641 (CA7 2006).
games cause minors to act aggressively (which would at least be a beginning). Instead, “[n]early all of the researchis based on correlation, not evidence of causation, and most of the studies suffer from significant, admitted flaws in methodology.” Video Software Dealers Assn. 556 F. 3d, at 964. They show at best some correlation between expo-sure to violent entertainment and minuscule real-world effects, such as children’s feeling more aggressive or mak-ing louder noises in the few minutes after playing a vio-lent game than after playing a nonviolent game.7
—————— 7One study, for example, found that children who had just finishedplaying violent video games were more likely to fill in the blank letter in “explo_e” with a “d” (so that it reads “explode”) than with an “r” (“explore”). App.
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Freedom is not Enough: The Moynihan Report and America’s Struggle over Black Family Life–from LBJ to Obama

By on May 17, 2010 9:11 pm in Child Protection, Civil Rights, History

I interviewed Brown University history professor James T. Patterson about his book examining the tragic rise of illegitimacy rates, and the American political elite’s refusal to address the problem for decades. MP3, 50 minutes. During the course of our discussion, I mentioned my own writing about successful early intervention programs for at-risk children; that writing is contained in this Barry Law Review article, text at notes 214-28. (A much more detailed analysis is contained in my book Guns: Who Should Have Them?). [...]

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Appeals Court Sets Aside Order Barring Parents Who Gave Up Child from Talking About Child’s Medical Condition

By on December 8, 2009 12:31 pm in Child Protection, Freedom of Speech

The case is In re T.T., decided today by the Nebraska Court of Appeals. A few relevant passages:

This appeal involves a 17-year-old youth, T.T., who was left by his parents at a Lincoln, Nebraska, hospital under a previous version of Nebraska’s “Safe Haven” law. The mother and stepfather, S.Q. and A.Q., respectively, whom we generally reference throughout as “the parents,” appeal from the decision of the separate juvenile court of Lancaster County prohibiting them from disclosing to the public specified information concerning T.T., his medical condition, and his treatment (the gag order), as well as from the court’s order that they participate in a pretreatment assessment. We conclude that the gag order cannot survive constitutional scrutiny …….

[T]he juvenile court ordered:

There will be no further public disclosure by the parents of [T.T.’s] private medical information: [T.T.’s] full, legal name; [T.T.’s] date of birth; his social security number; any specific diagnosis that he has been given; any medication he has been prescribed; names of any providers of treatment to [T.T.] and type of treatment provided.

… [W]e can surmise … that the November 26 gag order arose from the publication of an article in the Wall Street Journal about T.T. and Nebraska’s then-existing Safe Haven law….

We do not disagree with the juvenile court’s conclusion that further disclosure of T.T.’s private medical information is not in T.T.’s best interests, because we think the evidence recited above [omitted in this excerpt -EV] makes that conclusion inescapable. However, the fundamental difficulty is that the child’s best interests are not the standard, nor does the juvenile court’s rationale for the entry of the gag order comport with the established law allowing the lawful entry of a judicial order imposing a prior restraint on speech.

The law is clear that our obligation

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The Latest in the Rifqa Bary Case

By on December 2, 2009 4:14 pm in Child Protection, Parental Rights, Religious Freedom

This is the case I blogged about a few months ago, in which a 17-year-old girl from a Muslim family ran away from home, claiming her father had threatened to “hurt her, kill her or send her back to Sri Lanka” because she had converted to Christianity. A police investigation apparently concluded that the girl’s charges were unfounded, though obviously there’s still a factual dispute between the girls and the parents on this. Now here’s the latest, from the AP:

[Bary and her family] must listen to each other’s views about religion if they are to reunite, a possibility that appears in jeopardy since the girl continues to refuse any contact with her parents or siblings, a caseworker says.

A case-management plan filed Monday said Rifqa Bary and her parents should hear what each has to say about Islam and Christianity as a step toward a possible reunification. But the plan, written by a government caseworker, also said “severe differences” exist between the 17-year-old girl and her parents over what led Rifqa to run away to Florida over the summer….

Bary’s parents, Mohamed and Aysha Bary, agree with their daughter being in foster care for the moment, but are concerned about her and would like a family relationship with her again, according to the plan….

Thanks to Religion Clause for the pointer. [...]

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