Lawyers and law professors say the bill reauthorizing the Violence Against Women Act that passed the Senate contains provisions that violate the First Amendment and other constitutional provisions.
U.C.L.A. law professor Eugene Volokh has raised First Amendment objections to two provisions contained in the Violence Against Women Act reauthorization, arguing that they violate constitutional 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 for repeatedly criticizing a religious leader, speech that a federal 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).)
Another provision of the bill, its expansion of Indian tribal court jurisdiction, is also controversial. Senators “let legislation on domestic violence” known as the Violence Against Women Reauthorization Act “pass the upper chamber despite having concerns about its constitutionality,” reported The Hill newspaper. That included a provision backed by Democrats “empowering American-Indian tribal authorities to prosecute” non-Indians. "A Republican aide" who opposed the provision "cited a Congressional Research Service report that warned expanding the prosecutorial power of tribal authorities could violate constitutional guarantees on due process and double jeopardy."
That expansion violates Articles II and III of the Constitution, argues Paul Larkin in a law review article available at this link. Larkin is a prominent lawyer 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 exploit 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 rights, including constitutional rights deemed “necessary” for the tribe’s “jurisdiction over the defendant.”)
As I discussed 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 massive multi-million dollar damage awards against railroads ($250 million in one case) over personal injury cases resulting from railroad tracks running through reservations that ordinarily would lead to damages only in the thousands, thus violating Supreme Court decisions like BMW v. Gore.
Regardless of whether VAWA is reauthorized, its existing programs and services will 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.