Last week I wrote a column analyzing the arguments of those opposed to passage of 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.
Betsy Russell, the exceptional reporter for The Spokesman-Review, cited my column in her blog “Eye on Boise”. The result was an avalanche of comments, both here on the Idaho Politics Weekly site and on Russell’s blog.
Given that Gov. Butch Otter has called a special session for May 18, discussion and debate will occur on the issues raised since the House Judiciary Committee failed to pass SB 1067. I think some of the comments posted on-line are worthy of analysis.
Many commentators asserted that the act violates due process, presumably of the non-paying parent. Of note, the U.S. Senate in adopting the treaty interposed a reservation that, as the Senate report stated, provides “that the United States will not be obligated to recognize and enforce maintenance obligation decisions when their jurisdictional bases would violate U.S. constitutional due process standards.” I’ve also previously noted the various specific grounds in the act for contesting a judgment.
One “Eye on Boise” commentator, “PalouseDave”, wrote: “Why would Idaho not be subjected to international law? What about Elian Gonzales and Alondra Luna Núñez? They were pawns of international law clauses which no one expected would be used in either case.” This argument seems to be a reach.
Gonzales was a five-year-old Cuban boy who in 1999 was picked up off of Florida after his mother and others had drowned trying to flee from Cuba. He was originally placed with relatives in Miami who requested asylum for the boy. His father came to the U.S. and contested the asylum claim in U.S. courts. The final decision was made by the 11th Circuit Court of Appeals (the Supreme Court declined to hear the case) and turned on who had standing to assert the request for asylum, the father or the American relatives. The Court determined that only the father, under U.S. law, had that authority. The matter turned on American law, not international law.
The reference to Alondra Luna Núñez is puzzling. This was a 14-year-old Mexican girl who was removed from her school in Mexico and sent to the U.S. because a Houston woman claimed she was her daughter. Her parents contested that claim in the U.S. and a DNA test confirmed she was not the daughter of the Houston woman. The issue was resolved by an American court using U.S. law. This argument lacks validity.
Vicky Davis asked: “What is a ‘competent authority’? We don't know. It's defined as a second definition on foreign tribunal but it's not defined in the Hague Convention. A foreign tribunal could be a tribal council we don't know about that either. A ‘competent authority’ could simply be a case worker in a foreign country.”
The treaty itself in Article 4 requires each country to designate a “central authority” to fulfill treaty obligations. Article 6 lists the duties of any such central authority, in particular to “transmit and receive” applications for enforcement of child support orders and to “initiate or facilitate” the institution of actions to enforce child support.
She also expressed concern that Indian tribes could enforce child support orders and that requests for location of non-paying parent could be made without a request to enforce child support.
Indian tribes are sovereign nations and their ability to enforce child support orders outside the reservation has been in place for more than two decades.
Article 7 of the treaty limits requests for information on a non-paying parent to situations where a request to enforce child support has been made or when a party is requesting help to make a request.
On the Idaho Politics Weekly site, jaywingert alleged that SB 1067 violated “Article I, Sections 2, 3 and 21, Art. III, Sec. 1, 16 (the bill has an illegal title), perhaps 19, and Article V, Section 9”. Rick Martin of Buhl, Idaho, asserted that the bill violated Article V, Section 9 of the Idaho Constitution that confers on the Idaho Supreme Court original and appellate jurisdiction and Article V, Section 13 conferring jurisdiction on district courts.
I find these claims weak. Article 1, Section 2, of the Idaho Constitution (you can view it here: http://legislature.idaho.gov/
Article III, Section 1, contains two primary concepts: First, it places the legislative power of Idaho with the Idaho House and Idaho Senate. Second, it preserves the power for initiatives and referendums. It doesn’t bar legislative enactments of any form.
The assertion of a violation of Article III, Section 16, is puzzling. This provision requires bills to state in their title what they do. The first page and half of SB 1067 (you can view it at:http://www.legislature.idaho.
Article III, Section 19 lists things that the Idaho Legislature cannot do. I see no provision barring passage of laws to enforce child support orders.
The various citations to Article V deal with the jurisdiction of the Idaho courts. I’ve been unable to locate any provision in SB 1067 or in the treaty or the federal statute that prohibits Idaho courts from reviewing the act, if implemented. If the argument that Idaho courts need uphold orders of other jurisdictions, there is no Idaho constitutional provision barring such.
Another tack by several commentators was that SB 1067 violates the 10th Amendment and/or various court cases, in particular citing to Printz v. United States, 521 U.S. 898 (1997) (the case can be reviewed at: https://www.law.cornell.edu/
This reflects confusion over what the act does. The 10thAmendment reserves powers to the states. But, SB 1067 was a proposed legislative enactment by the Idaho Legislature (prodded by the federal government – which is allowable). The U.S Congress could not pass the bill, only the Idaho Legislature.
The claim with respect to the court cases rests on the idea that the federal government cannot force state executive officers enforce federal laws. But, that argument is inapplicable here since this is a state statute, not a federal one.
This measure has created considerable discussion, online and offline. Hopefully the legislative discussion before and on May 18th will be grounded in real concerns, not ones that have limited merit.