In Brackeen v. Bernhardt, No. 18-11479 (5th Cir. Aug. 9, 2019), a divided panel of the Fifth Circuit affirmed the constitutionality of the Indian Child Welfare Act, 25 U.S.C. §§ 1901 et seq. Congress enacted the ICWA in 1978 to address “abusive child welfare practices that resulted in the separation of large numbers of Indian children from their families and tribes through adoption or foster care placement, usually in non-Indian homes.” Miss. Band Choctaw Indians v. Holyfield, 490 U.S. 30, 32 (1989). The Act applies in state court child custody proceedings that involve an “Indian child.” See25 U.S.C. at § 1903(4) (defining “Indian child”). In addition to imposing various notice and recordkeeping requirements on state courts and agencies, the Act also requires states to honor a tribe’s placement preferences in various situations.

ICWA provides that “the Secretary [of the Interior] shall promulgate such rules and regulations as may be necessary to carry out [its] provisions.” 25 U.S.C. § 1952. For decades, the Bureau of Indian Affairs disclaimed any authority under section 1952 to issue rules with “binding legislative effect.” In a June 2016 Final Rule, however, the BIA changed positions and announced binding regulations to “clarify the minimum Federal Standards governing implementation of the [Act].”

Three states and several individuals sued, raising constitutional and statutory challenges to various provisions of the Act and Final Rule. Judge Reed O’Connor of the U.S. District Court for the Northern District of Texas held several of the challenged provisions unconstitutional. He also held that (1) the BIA lacked authority under the ICWA to issue binding regulations; (2) the BIA failed to provide an adequate explanation in the Final Rule for its change in position regarding its own authority to issue binding regulations; and (3) the BIA’s interpretation of section 1915 of the Act in the Final Rule was impermissible. I’m going to run through the Court’s constitutional holdings very quickly before discussing the APA issues in a bit more depth.

·                    Equal Protection: The district court held that the statutory definition of “Indian child” was a race-based classification that couldn’t withstand strict scrutiny. The Fifth Circuit disagreed, holding that the definition was a political classification that easily passed muster rational-basis review.

·                    Tenth Amendment: The district court held that several sections of the ICWA violated the anticommandeering doctrine by requiring states to apply federal standards to state-created claims. The Fifth Circuit held that “to the extent provisions of ICWA and the Final Rule require state courts to enforce federal law, the anticommandeering doctrine does not apply.” (citing Testa v. Katt, 330 U.S. 386 (1947)). The district court had also held that the Act and Final Rule commandeered state agencies, but because the challenged provisions apply equally to private citizens as well states, the Fifth Circuit held that they don’t violate the anticommandeering doctrine either.

·                    Nondelegation Doctrine:The district court held that the provisions of the ICWA and Final Rule that permit the Indian tribes’ placement preference to trump those established by Congress violate the nondelegation doctrine. According to the Fifth Circuit, however, that view ignored the tribes’ inherent sovereign authority “to determine tribal membership [and] to regulate domestic relations among members.”

The Final Rule: Section 1952 of the Act says that “the Secretary shall promulgate such rules and regulations as may be necessary to carry out the provisions of this chapter.” The Fifth Circuit ultimately rejected the district court’s holding that the agency lacked authority under that provision to issue binding rules. To determine whether Congress delegated authority to the agency to make rules carrying the force of law, however, the Court applied the Chevron framework and deferred to the agency’s interpretation of section 1952 as a reasonable construction of an ambiguous statutory provision.

I found the Court’s application of Chevron in this context very odd. Under United States v. Mead Corp., 533 U.S. 218 (2001), Chevron doesn’t apply at all unless Congress has delegated authority to the agency to make rules carrying the force of law. Applying Chevron to the question that determines whether Chevron applies strikes me as nonsensical. In the Court’s defense: (1) I couldn’t find much discussion of the issue in the parties’ briefing, and (2) judicial approaches to step zero (Mead) are not exactly uniform.

After declaring that the agency’s explanation for its change in position regarding its authority to issue binding rules was sufficient under F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502 (2009), the Court addressed the BIA’s construction of section 1915 of the Act in the Final Rule. Section 1915 establishes placement preferences for Indian children that control unless good cause is shown for departing from them. The Final Rule said that courts should require clear and convincing evidence of “good cause” before departing from section 1915’s placement preferences. The district court disagreed. Emphasizing Congress’s inclusion of heightened evidentiary requirements in other ICWA provisions, the district court relied on expressio unius est exclusio alterius to conclude that the absence of a heightened standard in section 1915 was intentional.

Once again, the Fifth Circuit disagreed. In its view, “the expressio canon is simply too thin a reed to support the conclusion that Congress has clearly resolved this issue.” (quoting Texas Rural Legal Aid, Inc. v. Legal Servs. Corp., 940 F.2d 685, 694 (D.C. Cir. 1991)). Because section 1915 was silent regarding what evidentiary standard controlled the good-cause inquiry, the Court declared the statute ambiguous and deferred to the agency’s interpretation at Chevron step two.

I think the majority was a bit too dismissive of the expressio canon’s applicability in this case. While it is true that a couple of D.C. Circuit cases point in that direction, but the Supreme Court, the Fifth Circuit, and the D.C. Circuit itself have applied the canon several times in the administrative context. See, e.g., Christensen v. Harris Cnty., 529 U.S. 576, 582-83, (2000); Rodriguez–Avalos v. Holder, 788 F.3d 444, 451 (5th Cir.2015) (per curiam); Indep. Ins. Agents of Am., Inc. v. Hawke, 211 F.3d 638, 644 (D.C. Cir. 2000). Beyond that, though, the Supreme Court’s more recent teachings on judicial deference to agency interpretations seem to favor a much more vigorous application of all tools of statutory construction before a court finally defers.

Judge Owen’s partial dissent took issue with the majority’s holding regarding the anti-commandeering doctrine. Here’s a sample:

Summary of Brackeen v. Bernhardt, No. 18-11479 (5th Cir. Aug. 9, 2019) *UPDATED*
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