Legal scholars say the Senate-passed bill reauthorizating the Violence Against Women Act contains provisions that violate the First Amendment and Articles II and III of the Constitution. The bill's expansion of Indian tribal court jurisdiction is unconstitutional, says attorney Paul Larkin, who argued 27 cases before the Supreme Court while in the Solicitor General's office, and served as counsel to the Senate Judiciary Committee. As Larkin explains:
The bill would authorize Indian tribal courts to adjudicate certain domestic violence criminal charges against non-Indians and to enter a final judgment authorizing the confinement of convicted offenders. At present, tribal courts cannot exercise that authority because, as the Supreme Court held in Oliphant v. Suquamish Indian Tribe in 1978, tribal courts lack criminal authority over non-Indians.
Oliphant said that Congress could empower tribal courts to adjudicate criminal charges against non-Indians, but to do so, it must pass legislation giving tribal courts that power. Congress could do that by passing VAWA, but the problem with the Senate version of the legislation is that it violates Articles II and III of the Constitution in the process.
Articles II and III are structural safeguards protecting civil rights. Under Article II, only someone who has been appointed by (and is removable by) the President, a court of law, or the head of a department can exercise federal power. The Constitution imposes that requirement in order to ensure that parties are properly vetted before they can exercise federal authority. A tribal court that enters a judgment authorizing a non-Indian to be criminally punished certainly exercises federal power. Indeed, that is an archetypal exercise of federal power. Tribes—not the parties mentioned above—appoint tribal court judges, so tribal judges cannot exercise any authority that Congress could hope to vest in them in the VAWA reauthorization bill.
Article III also protects civil liberties by guaranteeing federal judges life tenure and a non-reduceable salary so that they will not fear losing their jobs if they make a decision that the community finds objectionable. That concern is certainly present in any and every criminal case, off or on a reservation. While the Supreme Court has said that there are exceptions to the Article III requirements, the exceptions are for territorial courts, military courts-martial, District of Columbia courts, and administrative agencies. Tribal courts—which do not guarantee their judges life tenure or non-reduceable salary—fit into none of those exceptions.
Expanding tribal jurisdiction is also problematic because it could be used to take advantage of a loophole in constitutional protections against double jeopardy, allowing people to be tried twice for the same crime -- even after they have previously been found not guilty. The bill's backers view this danger as a plus, arguing that "Section 904 jurisdiction would be an exercise of inherent tribal authority, not a delegated Federal power, and would thus render the Double Jeopardy Clause inapplicable to sequential prosecutions of the same crime by the tribe and the Federal Government." (Courts have ruled “that tribal governments are not bound by the Constitution’s First, Fifth, or Fourteenth Amendments,” although VAWA statutorily requires tribal courts to respect certain constitutional rights deemed “necessary” for the tribe’s “jurisdiction over the defendant.”)
UCLA law professor Eugene Volokh earlier raised additional civil liberties objections to the Violence Against Women Act reauthorization, arguing that two changes made to existing law by the Senate violate First Amendment free speech guarantees [see here for his first and second posts]. One of those changes expands overly-broad “stalking” provisions that were used unsuccessfully to prosecute a Twitter user who repeatedly criticized a religious leader, speech that a court ruled was protected by the First Amendment. (Volokh is one of the law professors most frequently cited by judges, and the author of First Amendment textbooks, such as The First Amendment and Related Statutes (4th ed. 2011).)
While the Senate version of VAWA contains unconstitutional provisions, if it is enacted, challengers may have to take their case all the way to the Supreme Court to have them invalidated. Lower courts may be inclined to take a narrow view of constitutional safeguards in order to avoid the political backlash that would come from invalidating a provision of something called "the Violence Against Women Act." (Left-leaning blogs like Daily Kos have already had a field day attacking conservative Senators who objected to unconstitutional VAWA provisions, implying without any foundation that they did so out of hostility to women, rather than legitimate concern over the bill's constitutional infirmities.) Back in 2000, in United States v. Morrison, the Supreme Court struck down another unconstitutional provision in VAWA, Subtitle II-C (42 U.S.C. § 13981), which had been upheld by 24 of 26 lower courts to consider it (some of which relied on rather breathtaking reasoning to uphold it).
As I noted earlier, tribal courts can sometimes be quite unfair to defendants who are not Native Americans, or who come from other tribes. Federal judges have lamented the bias shown by some Indian tribal courts, as in cases where they imposed hundreds of millions of dollars in damages on railroads over personal injury cases resulting from railroad tracks running through reservations that ordinarily would lead to damages only in the low thousands, thus violating Supreme Court decisions like BMW v. Gore.
Last year, the Senate did remove one objectionable provision from its VAWA reauthorization bill after I objected to it, a provision that would have micromanaged college and university disciplinary proceedings in certain types of cases and potentially opened the door to due-process violations.
Note that while VAWA's authorization expired over a year ago, its programs and services continue to operate under language last updated in 2005. Its criminal prohibitions against interstate domestic violence, such as 18 U.S.C. § 2262(a)(1), also continue in force. Of course, all fifty states also have laws banning violence against women.