Those who oppose SB 1067, the bill to bring Idaho law in line to allow the United States to join the 2007 Hague Convention on the International Recovery of Child Support, make several arguments:
1) The bill infringes on Idaho’s sovereignty, 2) The bill will import foreign law into Idaho, 3) No state has been punished for failure to pass the bill, and 4) The bill puts personal information at risk in federal databases.
I have a background in public policy (serving in a governor’s office and on Capitol Hill) and law, so I decided to take a look at each of these claims.
Here are my findings and analysis:
Does SB 1067 infringe on Idaho’s sovereignty?
Rep. Kim Sims, one of the nine House members who killed SB 1067, wrote a guest editorial recently for the Coeur d’Alene Press, stating: “We are concerned about protecting sovereignty in Idaho. . . We would be required to enforce ill-gotten Child Support Enforcement (CSE) orders made in a foreign country.”
This reflects a fundamental misunderstanding of the how the legal system works.
Like most states, Idaho today recognizes judgments rendered in other states and foreign countries as long as the ruling doesn’t violate the public policy of Idaho. The concept is called “comity.” According to the U.S. Supreme Court: “Comity refers to the spirit of cooperation in which a domestic tribunal approaches the resolution of cases touching the laws and interests of other sovereign states.” Societe Nationale Industrielle Aerospatiale v. United States Dist. Ct., 482 U.S. 522, 543 n. 27, 107 S.Ct. 2542, 2555 n. 27, 96 L.Ed.2d 461, 483 n. 27 (1987).
Comity was adopted by the Idaho Supreme Court back in 1901. Thum v. Pyke Ogden Sav. Bank, 8 Idaho 11, 66 P. 157 (1901). Black’s Law Dictionary characterizes comity as the golden rule between sovereign entities, i.e., treat other states and countries as you (Idaho) want to be treated.
Given that Idaho courts can (and already do) enforce foreign child support orders, it is difficulty to understand how SB 1067 somehow compromises Idaho’s sovereignty. Moreover, there are nine grounds enumerated in SB 1067 in which Idaho courts can disallow enforcement of foreign support orders (many of which are not provided for under current law):
- The order fails to meet minimal standards of due process
- The order was issued without meeting Idaho’s requirements for personal jurisdiction
- The order is not enforceable in the issuing country
- The order was obtained by fraud
- The order submitted lacks authenticity or integrity
- A proceeding is pending in Idaho, and that was the first filed
- The order is incompatible with a more recently support order
- The alleged deficiency in payments has been paid in whole or in part
- Lack of proper notice to the Idaho resident of the foreign proceeding
Does SB 1067 import foreign law into Idaho?
Opponent Rep. Ron Nate (R-Rexburg) wrote in a guest editorial in the Idaho Statesman and Idaho Falls Post Register that the bill would “subject Idaho to international law” and “[g]lobal law will supersede U.S. law.”
That, again, is a misunderstanding. SB 1067 only allows Idaho recognition of the amount of a child support order (including the nature and extent, etc.) and accrued interest. The substantive law (the standards for how child support are determined) isn’t required under the Act. Nor, is there any provision in the Treaty or the U.S. implementing language requiring any American state to give recognition to foreign substantive law. The Idaho Attorney General has outlined the priority of law in Idaho: 1) The U.S. Constitution, 2) The Idaho Constitution, 3) Idaho statues, 4) Idaho case law, and 5) If no law, the common law of England. Foreign law simply isn’t on the list.
Is it true that no state has been punished for failing to pass their equivalent of SB 1067?
Many of the opponents have repeated stated that no state has been punished for failing to pass the equivalent of SB 1067 in their particular state. This argument is rather deceptive, as no state, except Idaho, has failed to pass the required changes at this point. The other roughly 30 states are in the process of passing the required provisions and there is no indication any other state will block the measure. More importantly, the linkage of federal funding to passage of a uniform law was upheld by the federal courts in connection with welfare reform in the 1990s when all 50 states passed a precursor uniform law on child support enforcement. See Kansas v. United States, 24 F.Supp.2d 1192 (D. Kan. 1998) (upholding requirement of states to pass previous version of uniform law for child support against the Spending Clause and Tenth Amendment challenges).
Doesn’t SB 1067 put personal information in federal databases at risk?
Representative Lynn Luker (R-Boise), another one of the nine opponents, wrote a guest editorial claiming: “Implementation of the treaty would open federal databases to foreign countries, an important child support enforcement tool is the Federal Parent Locator Service, which includes the National Directory of New Hires and information from the Internal Revenue Service, the Social Security Administration, Veterans Administration, the Department of Defense, National Security Administration and the Federal Bureau of Investigation.”
What this fails to consider is that the federal child support databases will not be turned over to foreign countries. Rather, a request to enforce a foreign child support order will come from the foreign authority to the Office of Child Support Enforce (part of the U.S. Department of Health & Human Services). The Office will then access the federal child support databases and attempt to locate the non-paying parent in the U.S. and, if found, send the order to the appropriate U.S. state for enforcement. That is the “access” afforded foreign recipients. The federal child support databases themselves are stored in a secure Social Security Administration facility with access limited to authorized personnel. Even states only receive data extracts, not the full database.
The best public policy debates occur when both sides of the issue make arguments grounded in fact. So far, the opponents of SB 1067 are struggling to meet that standard.