Legal Docket: Care for two vulnerable groups

MARY REICHARD, HOST: It’s Monday morning and the start of a new work week for The World and Everything in It! Today is December 5th. Good morning! I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher. It’s time for Legal Docket.

Two cases today and they concern two vulnerable groups of people: children and the elderly.

Legal reporter Jenny Rough covered the arguments and she has our report this week.

JENNY ROUGH, REPORTER: I’ll begin today with the child-custody case, which is four cases consolidated into a single legal argument.

The federal law at issue here is known as the Indian Child Welfare Act. Now, I’ll refer to it a lot, so I’ll use the acronym you’ll hear the lawyers in the case using. It’s spelled I-C-W-A and pronounced as the acronym IC-WA—again, the Indian Child Welfare Act.

So the question is whether IC-WA’s aim of maintaining Native American nations amounts to unconstitutional racial discrimination.

Specifically IC-WA governs Indian children who are entering foster care or an adoptive home. The law prioritizes keeping the child with their tribes, rather than placing them with non-Indian families.

The case at the Supreme Court is called Haaland v. Brackeen. Seven individuals and the state of Texas sued the federal government. And they brought a bunch of legal claims to argue that IC-WA is unconstitutional.

Let me start with the seven individuals, among them a white couple named Chad and Jennifer Brackeen.

The Brackeens want to adopt an Indian child they’ve been fostering and have bonded with. And the child’s biological mother also wants the Brackeens to adopt her child.

But the Navajo Nation opposes that and wants the child placed with a member of the tribe. At the Supreme Court, lawyer Matthew McGill argued on behalf of the Brackeens.

MCGILL: According to the federal government, in 2020, there were over 11,000 Native American children in state foster care. The problem is that there are fewer than 2,000 Native American foster homes.

The Brackeens argue that IC-WA’s requirement that their foster child be placed with an Indian family instead of with them amounts to racial discrimination.

But defenders of ICWA say the nature of the law isn’t about racial classification. Rather, it’s about political classification.

Justice Elena Kagan brought up that point.

KAGAN: Congress is very clear in this statute that it thinks that this statute is critical to the continuing existence of the tribe as a political entity. And that's, in fact, one of the reasons it passes this statute, is the political entity is itself being threatened because of the way decisions on the placement of children are being made.

Congress passed IC-WA with the stated goal to help tribal communities thrive and flourish. But McGill argued that despite the laudable goal, Congress cannot violate the equal protection clause of the Constitution to achieve it.

MCGILL: There was a real problem that Congress was trying to address. We’re not denying the existence of a problem. But the means Congress chose are impermissible. Two wrongs do not make a right here.

Judd Stone argued on behalf of the state of Texas.

He addressed questions around the 10th Amendment. That’s in the bill of rights to clarify the relationship between the federal and state governments. It prevents the federal government from issuing commands to the states. In the law, we know it as the anti-commandeering rule.

In an exchange with Lawyer Stone, Justice Amy Coney Barrett asked whether IC-WA, the federal statute, compels the states to act here. Justice Barrett notes that the federal government is arguing that IC-WA isn’t commandeering here because—

BARRETT: The state could just choose not, could walk away, essentially. How would that work? Could Texas walk away? You know, if you had a child who was a member of a tribe and was in a situation in which the child was in danger or, you know, like the Brackeen children here. Could the Texas agency choose not to intervene or seek a foster care placement for the child?

STONE: It would be very strange for the federal government to say this isn't commandeering because you can always just stop. I have no idea how as a practical matter Texas could do that.

Another line of questioning centered on the Indian Commerce Clause in Article 1 of the Constitution. That says Congress has the power to regulate commerce with Indian tribes. Congress used that clause as its main justification to enact IC-WA.

Here is Stone again, arguing for Texas.

STONE: Child adoptions are not commerce. They simply are not.

Several justices pointed out that Congress’ power under the commerce clause is broad. It extends beyond goods or what one might ordinarily think of as commerce.

And Justice Neil Gorsuch mentioned other federal laws fall into the sphere of family law.

GORSUCH: The federal government often plays a role in mediating disputes between sovereigns in the family law area, whether it's the Hague Convention internationally or whether the Parent Kidnapping Act domestically. So why would it be awkward to think that Congress could exercise a similar authority with respect to disagreements between state sovereigns and tribal sovereigns?

On behalf of the Indian tribes is lawyer Ian Gershengorn.

GERSHENGORN: Congress enacted ICWA because Indian children were being torn from their families and tribes through the operation of state family law in state courts. ICWA protects the best interests of children. It works to keep families, keep children with their families and communities. That's why ICWA is viewed as the gold standard.

The best interests of children.

At one point Gershengorn mentioned the harm to the tribal community of removing Indian children. And Justice Kagan circled back to that.

KAGAN: I think some of the strong feelings about this case come from a sense of, yes, but what about the children? I mean, you do harm the political community, but are you saying that the political community is more important than the welfare of the children? That's the thing that I think people are going, whoa.

GERSHENGORN: I'm glad you asked that, Your Honor. Congress found that ICWA was in the best interests of the children, right? And what ICWA realizes is that these children were being taken from their communities too soon. Why? Well, sometimes there was abuse at home, right? But what ICWA says is a lot of times that is remediateable. It's substance abuse, right? It's the ability, if you can get the child out of the home, get the care to the parents, then the child will actually thrive when the child is returned to the home and community.

Now onto the second case. Care of the elderly. This case centers on a man named Gorgi Talevski. He suffered from dementia, and so his family placed him in a publicly run nursing home. After they did, his health declined rapidly.

The family claimed the nursing home overmedicated him. And then against his will transferred him to another facility.

The Federal Nursing Home Reform Act says patients have a right to refuse medications and transfers.

Through his wife, Talevski sued the hospital corporation that oversees the nursing home. He sued under 42 U.S.C Section 1983. That allows a private individual to sue state actors for violating the laws of the United States.

But the hospital corporation argues that this particular federal statute doesn’t allow a party to bring a Section 1983 claim.

Here’s Lawrence Robbins arguing on behalf of the hospital corporation, in an exchange with Justice Brett Kavanaugh.

ROBBINS: At common law, third parties generally could not sue to enforce government contract rights unless the contract clearly specified that the breaching party would be liable to injured third parties. Because the Federal Nursing Home Reform Act contains no such clear statement, it should not give rise to Section 1983 liability. The individual patient is not the unambiguous focus of this statute

KAVANAUGH: It says rights. I mean, it says rights. It's a very uncomfortable fact for you is that the statute says rights over and over again. Resident rights, too.

And that’s this week’s Legal Docket. I’m Jenny Rough.

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