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The Senate-passed version of the Violence Against Women Act (VAWA) violates Articles II and III of the Constitution.
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.
Congress could allow the federal courts in each state to adjudicate reservation-based domestic violence offenses. Federal judges are appointed in the precise manner that Article II contemplates, and they possess the features that Article III requires. Congress could also allow state courts to exercise jurisdiction over reservation-based domestic violence charges. State courts exercise state power, not federal power, so the Article II and III requirements do not apply to them. Alternatively, Congress could require that federal tribal judges be appointed consistent with Articles II and III.
Any one of those three options would address the domestic violence problem without violating the Constitution in the process. So, why did the Senate not select one of those options?
Violent crime corrodes the safety and security of every person and society that it afflicts. Steps that prevent or reduce the suffering of violent crime, like medicines that forestall disease or help a patient recover, serve noble purposes. But every physician knows that not every alleged treatment has a curative effect and that administering medicine that cannot remedy an illness offers patients only a false hope of recovery. That scenario aptly describes the current version of VAWA that is being debated on Capitol Hill.
If Congress wants to help the victims of domestic violence, it needs to select one of the three constitutional options that would help those present and future victims.