Senators said yesterday that they “will 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 in Washington, D.C. That includes a provision backed by Democrats “empowering American-Indian tribal authorities to prosecute” non-Indians.
Sen. Jeff Sessions (R-Ala.), a member of the Judiciary Committee, said he was “really taken back by some of the changes in laws dealing with Indian reservations,” calling it “unacceptable and very bad policy.”
A Republican aide 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.
U.C.L.A. law professor Eugene Volokh raised additional civil liberties problems with the Violence Against Women Act reauthorization on Tuesday, arguing that the changes made to the existing VAWA statute by Senate Democrats violate First Amendment free speech guarantees in how they regulate speech in cyberspace [first, second posts]. Volokh is one of the law professors most frequently cited by federal judges and America’s law reviews, and the author of two First Amendment textbooks, The First Amendment and Related Statutes (4th ed. 2011), and The Religion Clauses and Related Statutes (2005). He is also a practicing appellate lawyer.
William Creeley of the Foundation for Individual Rights in Education, and former ACLU Board member Wendy Kaminer, an attorney, say that the Senate reauthorization bill drafted by Senator Pat Leahy (D-Vt.) would undermine due process on college campuses. Minnesota lawyer John Hinderaker raised additional civil-liberties objections to the bill’s expansion of tribal court jurisdiction. I earlier discussed some pitfalls of the bill here at this link.
Even in its original form, the Violence Against Women Act had flaws. Enacted in 1994, it contained a provision later struck down by the Supreme Court in United States v. Morrison (2000), and declared unconstitutional, because it exceeded Congress’s powers under the Fourteenth Amendment and the Interstate Commerce Clause. That invalid provision created a tort remedy for gender-motivated domestic violence that largely duplicated state laws (all states ban domestic violence, and take such crimes seriously). The statute’s crowd-pleasing title (no one wants to be accused of being in favor of “violence against women”) diverted attention away from its constitutional flaws. Lawyers and judges who raised valid federalism objections to this provision were ridiculed by people like Joe Biden, who falsely depicted them as ignorant. VAWA’s title continues to prevent dispassionate analysis of its provisions, and potentially opens the door to new constitutional violations being added to it.
Republican senators like Charles Grassley of Iowa also objected to the lack of safeguards against fraud in the law and the misuse of millions of dollars in taxpayer money that should have been used to help victims of domestic violence. (Even if the Senate reauthorization does not pass the House, programs set up by the 1994 VAWA law will continue to operate.)