NOTE: This is a bit lengthy but absolutely necessary to correct the enormous misperceptions and misdirection already in place surrounding the action Idaho House Judiciary, Rules and Administration Cmte., raised by holding SB 1067 in committee just prior to sine die and adjournment of the legislature.
To paraphrase what Winston Churchill said about Soviet foreign policy: “It is a riddle, inside of a mystery, wrapped in an enigma.” And in this case it should be added, “…slipped inside of a Trojan Horse.”
The fire-storm swirling around SB1067 at the close of the 2015 session of the Idaho State Legislature is symptomatic of exactly what ails and handicaps governance in the United States today. People wondering why almost nothing works right today only need go back 10, 20 or 30 years or so to see what was done wrong then. To know that, all they have to do is observe what is happening today that will result in much worse in 10,20 and 30 years.
That’s exactly what is happening in this case. To an objective bystander it would almost seem intentional that the issue is nearly completely misunderstood or mis-characterized by the press and media. But no, they’d NEVER do that, would they?
However, most of that is, in fact, more due to the simple inability of the press and media to rationally and objectively investigate the issue instead of engaging in advocacy journalism. Thus, the message the public receives is almost completely turned inside out and upside down from the real issue at hand. That’s exactly what’s happened with SB1067 coming out of the Idaho legislature. The realities surrounding SB-1067 are almost completely unhinged from the press and media and its supporter’s hyperventilating presentation.
The press and media, like the public, seem immediately duped by the “it’s for the children” mantra now so prevalent in virtually all public policy discussions. Yet, very few of them have asked the simplest and most obvious questions of;
“What’s driving the rush, in one legislative session, to put an entirely new and unprecedented international legal regime in place in all 50 states?” or
“Why, seven years after the passage of the “Convention on the International Recovery of Child Support and Other Forms of Family Maintenance” at The Hague in the Netherlands, is it suddenly required to force all 50 States to pass the “model legislation” represented by SB-1067 in ONE legislative session? Force those states and their citizens, with no debate, no modification, no scenario testing, no understanding of the cyber security, privacy and electronic database and information sharing issues surrounding the implementation of such legislation, into passing it. None, nada, zip, zero…..just shut-up and sit the hell down!….
It’s just accepted that, “Oh, do this or Idaho deserves to have its funding cut-off; even those parental support payments, that do not consist of federal money at all! Really? How rational and reasonable is that? What due process is there in that?
The Congress had seven years, since 2007, to incorporate the Convention Treaty into operation with the Uniform Interstate Family Support Act. An Act in operation between the United States since 1992 and twice updated. Why did Congress then wrap that into HR 4980, “The Preventing Sex Trafficking and Strengthening Families Act” in 2014 and send to the states with the command that no debate, no modification of any of the substantive language and no ability to fully examine or question its impact to Idaho or any other state, would be allowed?
Seven years to prep, explain, test and advise the states as to what was coming and why. Seven years for those states to explain the legislators and citizens, the need, the efficacy AND the lawfulness. Again, what is driving this rush after SEVEN years of mucking around by the Federal government and when they failed to do almost none of the above?
Any attempt by a state to do due diligence and delay SB-1067′s (or every other state’s bill) passage into law (in 4 months!), would immediately result in that state losing ALL of its funding for the interstate portion already existing and operating for decades. Also, non-passage and any delay would immediately sever EVERY electronic connection through the federal interstate system, completely disabling that state’s ability to process its interstate enforcement and maintenance orders with every other state.
Why does nobody ask HOW that makes ANY sense whatsoever? Why does nobody ask WHY the federal government would do such a crazy thing?
Compounding that is the lack of understanding that the imposition of SB-1067 is unprecedented in United States Law. The bill is essentially an extortion racket in motion to force the states to incorporate international law, the UN Treaty Convention and an international identification/ database-tracking methodology directly into Idaho statute.
This is also one of the best examples of the Camel’s nose under the tent in modern times for “Commandeering” the states’ legislative process, which the SCOTUS has ruled, time and again, is unconstitutional. Beginning with Prigg v Pennsylavania and most recently in Mack and Printz v US;
The federal process being employed hijacks directly and near completely the Idaho legislative process, fiscal process, judicial and executive processes. Not one word of the “model legislation” language and substance can be altered and it is a “must pass” bill. Otherwise, Idaho immediately loses all its interstate funding FOR NOT incorporating an international legal scheme.
No branch of state government may then question or alter any international court order regarding child support and enforcement against a citizen or resident of Idaho, as long as those orders meet basic procedural protocol qualifications. There can be no questioning in findings of fact.
However, the key analysis to start with should revolve around how the bill can even be considered by the Idaho Legislature under Article I, Sec.10, Article IV, Sec. 1, Sec. 4, clause 1, and Article VI, clause 2 of the US Constitution and Articles IX and Article X of the Bill of Rights.
Then, it should normally proceed to the Idaho constitution and 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 (detailed questions below). Has any one actually fully scrutinized the bill and run test scenarios to see how it works against all those sections? No, of course not. There’s been no time allowed.
Most disturbing is the number of people that would say, “Why is that even relevant?” and not even bat an eyelash! Or,
“It’s for the CHILDREN for Pete’s sake!” and
“We have no time, the Feds are gonna cut-off all our money!”
There are hundreds of open questions concerning the operation of SB1067. However, it seems that most want to sweep even the basic discipline, due diligence and process to avoid problems later, right under the rug because of baseless and dangerous threats from the federal government.
Until all the questions on constitutionality are satisfactorily answered first, the subsequent details of implementing language is obviously irrelevant. The following question only begin the process to answer some of the REAL questions around S1067 instead of the red herrings thrown out there about “Sharia Law,” and other such nonsense to distract the public’s attention.
Therefore, it is suggested the following questions be posed to various officers and elected officials of Idaho or any state when analyzed and tested against their constitution. These questions must be answered before this legislation moves forward into ANY state, not just Idaho. Until they are, the only thing the Governor Otter should do is negotiate with the federal agencies is to keep all payments flowing past June 15. If the feds do cut them off, prior to due process resolution, Idaho should immediately file suit against HHS to resume payments pending the outcome of the remaining due process and constitutional issues:
Questions for the Governor, Attorney General House and Senate leadership and every elected member of the body:
1. Provide the legal analysis that clearly shows HOW SB1067 is NOT in violation or directly conflict with Article I, Sec.10, Article IV, Sec. 1, Sec. 4, clause 1, and Article VI, clause 2 of the US Constitution and Articles IX and Article X of the Bill of Rights?
2. Provide the legal analysis that clearly shows HOW SB-1067 is it NOT a direct violation of Article I Section 2 and 3 of the Idaho Constitution, if “…all political power is inherent in the People,” and that “…they have the right to alter, reform or abolish the same whenever they may deem it necessary…” or that ” no special privileges or immunities SHALL EVER be granted that may not be altered, revoked or repealed by the legislature…?”
3. Article I, Section 3 of the Idaho Constitution requires that Idaho is an “inseparable part of the American Union and the Constitution of the United States is the supreme law of the land.” If so, than Idaho is bound to follow Article 1, Sec. 10 and Article VI of that Constitution and cannot enter into any Treaty Convention. Nor can it do anything not “in Pursuance thereof….” as prescribed by Article VI. If so, how can S1067 even be introduced into the legislative process in Idaho?
4. Under article I, Section 21 of the Idaho Constitution the people of Idaho reserve the right not to have themselves placed under a jurisdiction foreign to their Constitutions without first requiring amendment to those constitutions and the right to due process. How was due process followed in this case and how can theS1067 even be introduced without FIRST amending the Idaho and US constitutions to allow it?
5. Under Article III, Section 1 of the Idaho Constitution, “…the legislative power of the state shall be vested in a senate and house of representatives.” If so, then where did the US Congress gain the authority to ignore Article I, Section 10 of the US constitution or to commandeer the legislative process of the state of Idaho in order to force compliance, without amendment, to an International Treaty Convention? Or, to commandeer the ability or the right of the people to “….approve or reject at the polls any act or measure passed by the legislature?” That one would seem to kill S1067 right there.
6. With a two-and-a-half-page, 123 line Title containing multiple subjects and nowhere expressing the incorporation of the 2007 Treaty Convention and other impacts not expressed in the Title, isn’t that a prima facie direct violation of Article III, Section 16 of the Idaho Constitution?
7. How does SB-1067 not interfere in an unconstitutional manner those requirements of Article III, Section 19, in the following itemized areas if they are now required to accept, without question, all findings of fact of foreign jurisdictions? Or if they are allowed to question nothing but the pro forma protocal of enforcement orders from those same jurisdictions?
“Regulating the practice of the courts of justice”
“Releasing or extinguishing the indebtness, in whole or in part, the indebtedness, liability or obligation of any person….”
“Affecting estates of deceased persons, minors, or other persons under legal disabilities”
“Authorizing the creation, extension or impairing of liens”
“Authorizing the adoption or legitimization of children”
8. If no substantive section of any portion of Idaho Code changed or altered by S1067 cannot be subsequently altered by the Idaho Supreme Court how does that not violate Article V, Section 9 of the Idaho Constitution in the original and appellate jurisdiction of the Court? The same with regard to District courts in Article V, Section 13?
9. Wouldn’t passage of SB1067 effectively amend the Idaho constitution outside of only those processes defined in Article XX, by ignoring all the Articles/Sections in questions 1-8 and incorporating the 2007 Treaty Convention directly into Idaho law? If not, why not?
10. The Statement of Purpose for RS23418 (S1067 as introduced) says:
“On September 18, 2014, Congress passed the “Preventing Sex Trafficking and Strengthening Families Act” which includes the requirement for all states to enact the 2008 Amendments to the Uniform Interstate Family Support Act during the 2015 legislative session. These amendments incorporate provisions of the 2007 Hague Convention on International Recovery of Child Support and Family Maintenance and will improve the enforcement of American child support orders abroad…” (emphasis added)
How is that not directly incorporating the International Treaty Convention into Idaho Law?
11. According to the Convention Treaty of 2007 and the subsequent federal legislation (Uniform Interstate Family Support Act (2008)), ALL 50 states must pass bills identical in statute language to S1067 in order for the actual ratification of the Treaty to be valid. From an HHS memo (**) to all states:
“Before a country can ratify the treaty, the country must provide evidence that its laws and procedures meet the treaty requirements, including parentage establishment, recognition and enforcement of support orders for children up to the age of 21, cost-free services, notice and an opportunity for a hearing or review, and protection of identifying information where there is a risk of harm to the parent or child.”
Therefore, how is Idaho and all other states passing this legislation not directly entering into the Treaty and it’s ratification for implementation on US soil? How is that not directly in violation of Article I, Section 10 of the US Constitution? If ANY ONE state failed to do so ( enact the “model bill”), the United States as a whole would not and could not be considered a Treaty country by the Hague and that individual state would not be allowed to conduct any enforcement orders with any of the Treaty Convention signatories. Any claim to the contrary would seem to be both disingenuous and flat-out illogical obfuscation and misdirection.
12. Since S1067 is not allowed to be amendable or reviewable in any manner by the Idaho people, legislature or courts respectively, except on minimal procedure and protocol but not fact, how is that not a direct violation of the “Anti-commandeering Doctrine” established over a century and a half ago in “Prigg vs Pennsylvania” (1842) by the SCOTUS and most recently held in “Mack and Printz v United States?”
13. Even after introduction, under what rule of the House or Senate were members disallowed from proposing and adding amendments to S1067? Where and when was that adopted in consideration by the Committees of either body?
As stated previously these questions are only for openers. Some may be able to be answered. However, it is likely, most are not. Until the press and media begin asking the right first order questions of the elected officials and supporters of SB1067, none of the 2nd order questions concerning what SB1067 will or will not do or what funding it may gain or lose Idaho are, effectively, irrelevant. To begin to gain a sense of what that analysis looks like, please refer to this site. It may also be time once again to reopen discussion on passage of The Bricker Amendment if the US Senate remains unable to control its worst tendencies.
It will also be quite obvious if the media and press, officials and supporters stick to their current narrative, that they don’t want to ask or know the answers to any of these questions. The real agenda involved then becomes very clear. If asking these same questions leads the federal government to shut down the existing state funding and systems, interstate payments and enforcement and maintenance orders on July 1st, then the real agenda there also becomes very clear.