House VAWA Bill Still Flawed and Constitutionally Problematic
Tomorrow, the House of Representatives is scheduled to take up the Violence Against Women Act (VAWA). The Heritage Foundation’s David Muhlhausen explains even this revamped version has serious flaws. While the House version improves upon the Senate version in some regards, it fails to address the underlying issues surrounding VAWA.
Muhlhausen lays out four main arguments against the VAWA bill:
First, as Heritage’s Paul Larkin detailed, the modified provision of the tribal court expansion in the substitute amendment still violates the Constitution.
Before going any further, let’s focus on this important point. Larkin explains:
1) It grants tribal judges authority to enter a final judgment of conviction in certain criminal cases even though tribal judges are not appointed by the President, the head of a department, or a court of law, as Article II requires; and
2) It grants tribal courts that authority even though tribal judges lack the life tenure and salary protection required by Article III. None of the parties with appointment power specified in Article II would appoint or could remove a tribal judge; that authority would still reside with each tribe. Moreover, the House bill does not vest tribal judges with life tenure or protect their salaries. The House bill therefore suffers from the same defects as the Senate bill.
The House bill can be challenged on the same grounds. None of the parties with appointment power specified in Article II would appoint or could remove a tribal judge; that authority would still reside with each tribe. Moreover, the House bill does not vest tribal judges with life tenure or protect their salaries.
The Constitution is the supreme law of the land, and it is the duty of all the members of Congress to support and defend the Constitution. Indeed, “At the start of each new Congress, all Members beginning a new term of office (the entire House of Representative and one-third of the Senate) take an oath to support and defend the Constitution of the United States.”
What makes this process even more frustrating is that conservatives have offered constitutionally acceptable remedies to these legal issues:
As previously discussed, two remedies for these problems would be to use federal or state courts to resolve such disputes rather than tribal courts. There are two other options: Give every defendant (1) an automatic right to remove a case to federal district court, or (2) a right to a trial de novo before a federal district judge after conviction in tribal court.
While remedies exist to address the constitutional concerns, Muhlhausen explains additional issues remain:
[A]s it currently stands, Congress has little scientifically rigorous evidence that VAWA programs are succeeding at its original mission of protecting female victims of domestic violence.
[W]hile the goal of helping domestic violence victims is admirable, Congress’s penchant for subsidizing the routine activities of state and local government programs continues the federal government’s march toward fiscal insolvency.
[T]he law enforcement battle to combat domestic violence is usually waged and budgeted by state and local governments… Using federal agencies and grant programs to fund these routinely state and local domestic violence programs is a misuse of federal resources and a distraction from concerns that truly are the province of the federal government.
For the House of Representatives to pass this legislation as it is currently designed would be a rueful error for all of the aforementioned reasons.
In one fell swoop, this legislation is a slap in the face to the Constitution, to the states, and to anyone who wishes the federal government to be fiscally responsible. Additionally, it is embarrassingly ineffective at fulfilling its supposed goal of protecting women from domestic violence.
As Muhlhausen makes clear, “Fighting domestic violence is not, and never has been, a partisan issue. Everyone is against domestic violence.” It just needs to be done appropriately and effectively.