Elizabeth Reese has posted “Or to the People: Popular Sovereignty and the Power to Choose a Government,” published in the Cardozo Law Review, on SSRN.
Here is the abstract:
To protect state sovereignty, contemporary textualism has reinvigorated the Tenth Amendment as a judicially enforceable limit on federal powers. However, in casting the Tenth Amendment as the states’ rights amendment, these textualists have inexplicably glossed over the Tenth Amendment’s final four words, which reserve powers to “the people.” This Article highlights this inconsistency and argues that this omission ignores a vital structural protection against federal and state tyranny. Viewed through the same textualism that reinvigorated state sovereignty, the Tenth Amendment’s final words cannot be redundant or superfluous but rather define and protect the people as a sovereign body capable of wielding specific powers — particularly those powers that the Constitution places beyond the reach of our governments. Primarily, the Tenth Amendment protects that power which is at the heart of popular sovereignty as well as the foundation of our democracy, the power of the people to choose their government. The Tenth Amendment ought to protect popular sovereignty — as it protects state sovereignty — by serving as a source for robust judicial review of federal and state laws that infringe on popular sovereignty. Recognizing this overlooked portion of the Tenth Amendment could alter current legal doctrine surrounding voting rights by treating free, fair, and accessible elections as a matter of competing sovereign powers rather than individual voting rights. By ignoring the people in the Tenth Amendment, American jurisprudence has ignored a vital structural protection against federal and state tyranny and risked government-driven erosion of democracy in America.
Here is the opinion in Brackeen v. Zinke (N.D. Tex.):
Case page with briefs here.
A federal court has held that ICWA violates the equal protection component of the Fifth Amendment’s Due Process Clause, rejecting the Morton v. Mancari argument and applying strict scrutiny. The court further held that ICWA violated the Tenth Amendment’s prohibition on commandeering state legislative functions. The court more or less summarily rejected the argument that the Indian Commerce Clause authorized Congress to enact ICWA. Finally, the court struck down the ICWA regulations.
Still, there will certainly be an appeal. The case is limited only to the parties involved.
Here are the materials in the matter of Upstate Citizens for Equality v. United States of America, 15-cv-01688 (Nov. 9, 2016):
Doc. 100 Brief for Plaintiffs-Appellants Town of Vernon, New York, Town of Verona, Abraham Acee and Arthur Strife
Doc. 101 Brief and Special Appendix for Plaintiffs Appellants Upstate Citizens for Equality, Inc., David Brown Vickers, Richard Tallcot, Scott Peterman and Daniel T. Warren
Doc. 134 Reply Brief for Plaintiffs-Appellants Town of Vernon, New York, Town of Verona, Abraham Acee and Arthur Strife
Doc. 149 Reply Brief for Plaintiffs-Appellants Upstate Citizens for Equality, Inc., David Brown Vickers, Richard Tallcot, Scott Peterman and Daniel T. Warren
Doc. 151 Response Brief of the Federal Defendants-Appellees
Doc. 183 Judgment
Link to previously posted lower court materials here.
Here is today’s opinion:
Briefs are here. Lower court materials are here.
Gary Goldsmith has published “Big Spenders in State Elections–Has Financial Participation by Indian Tribes Defined the Limits of Tribal Sovereign Immunity From Suit” in the William Mitchell Law Review.
From the introduction:
In every election cycle, Indian tribes vigorously attempt to influence such critical matters of state governance as to who will be the state’s governor,
who will be elected to the state’s legislative
bodies, and what will be the provisions of the state’s constitution. These incursions into the realm of state governance have renewed questions about the sovereignty of Indian tribes in relation to the states’ sovereignty.
In order to understand those conflicting rights, this article will review the historical roots of legal doctrine regarding the position of Indian tribes with respect to the United States government and each state’s government.
It will then trace significant doctrinal changes that arose as the result of changing political and cultural attitudes toward Indians.
Finally, it will address new theories raised in Agua Caliente v. California FPPC and will comment on the California Supreme Court’s resolution of the constitutional issues and the parties’ eventual Stipulation for Judgment in that matter.