Equal Substantially Similar Protection Under The Law


I received a call late last week from Senator Steve Vick asking me if I would be available to substitute for him at the upcoming extraordinary session of the Idaho Legislature. I told him I would be honored to serve and offered my condolences for the situation that would prevent him from attending.

I was familiar with HB1067, which was introduced in response to the demand by the federal government that Idaho adopt a series of amendments to the Uniform Interstate Family Support Act that expanded the act to include foreign countries, but I did not have enough information to make an informed decision. So, over the next 48 hours I studied the draft version of the Act that would become HB-1 and the relevant documents including the 2007 Hague Convention “On the International Recovery Of Child Support And Other Forms Of Family Maintenance” law review articles on Cooperative Federalism and International Family Support Law, numerous analysis and opinion papers on the subject and the Congressional Research Service’s July 15, 2013 analysis on the Hague Convention and H.R. 1896. I also contacted several attorneys that are experts in Constitutional Law to discuss the issues and ramifications of adopting the amendments to the Child Support Act.

There currently exists a set of uniform laws in all 50 states that allows dependent children to collect child support payments across state lines. This is good and successful legislation that ensures the rights of the parties on both sides of the support payments. There also exist a number of bilateral agreements between the United States and certain foreign countries that extends this support system to those foreign countries through due process guarantees and reciprocity.

The obvious question was “Why do the States have to adopt verbatim the new legislation?” If Article 6 of The Constitution establishes treaties to be the supreme law of the land notwithstanding state constitutions or state laws then a treaty should be all you need.

I found the answer in the Congressional Research Service’s July 15, 2013 analysis on the Hague Convention and H.R. 1896. On page 6 we find:

“The United States has not ratified any of the long-standing multinational treaties or conventions related to the recognition and enforcement of child support obligations, such as the Hague conventions on maintenance obligations….. primarily because of fundamental differences in how jurisdiction is obtained over the involved parties.”

So the problem is due process. In the United States we have a high standard for due process to protect the rights of the accused. This right is guaranteed in the federal Constitution. Other countries may not have as high a standard so a multinational treaty would likely be found unconstitutional if challenged.

Collectively the states are superior politically to the federal government because the states are parties to The Constitution and The Constitution formed the federal government so the way around the constitutional “problem” of due processes is to have the 50 states accept the jurisdiction of foreign courts directly, which is exactly what the amendments to the Family Support Act accomplish. From Idaho’s courts perspective the family courts of the Ukraine will have the same status as those in Colorado or Bosnia and Herzegovina or Nebraska or Ukraine…..

Imagine that a family court in Latvia determines that you owe child support payments to a child residing in their jurisdiction. They have transmitted an order for support to Idaho through the federal international information portal and you have been ordered to pay. You have never been to Latvia nor do you plan to go. Can you fight the order? Yes, of course, but the Hague Convention spells out in Article 22 that “Recognition and enforcement of a decision may be refused if ….recognition and enforcement of the decision is manifestly incompatible with the public policy of the State addressed”.

So, what does “manifestly incompatible with public policy” mean? It is this question that the proponents of HB1 focused on answering with a series of additional amendments to Idaho’s version of the Family Support Act, which includes:

“An order is manifestly incompatible with public policy if that order was issued in violation of the right of due process substantially similar to that guaranteed by the constitutions of the United States and the state of Idaho.”

Problem solved, right? Wrong. The first problem is that Idaho courts don’t get to decide what the language in a treaty means. International courts have that jurisdiction. The second problem is that the fundamental concept of “equal protection under the law” has been downsized to “substantially similar protection under the law”. This reminds one of Orwell’s “All men are equal but some are more equal than others.”

Well, we can always back out of the treaty, right? Wrong. The Hague Convention treaty was negotiated in 2007 and the United States’ participation is awaiting fulfillment of our obligation to the treaty to have all 50 states adopt the agreed language. Once that is accomplished then the treaty will be signed by the President and transmitted to The Hague. Once that is done it will be the supreme law of the land notwithstanding any state laws. It cannot be undone at the state level.

Well, it was for a good cause, right? It was for the children, right? Yes, all 37 of them. Of the approximately 1,400 support cases handled in Idaho last year there were 97 that involved foreign countries and of those, 60 involved Canada and, Canada is not part of the Hague treaty.

Well, we were forced to do it or the children wouldn’t get their payments, right? Wrong. The federal government was threating to withhold grant money that helps Idaho pay for the child support program. Without this grant money the program would continue unchanged. The federal government also threatened that Idaho would not be able to use the international database. However we would still use the interstate database that deals with more than 95% of the cases.

By passing HB1 into law we have expanded the jurisdiction foreign courts have over our citizens, diminishing our due process protection. We have also acceded to the coercive threats by the federal government and can expect this tactic to be repeated in the future.

I voted “Nay”. I would again.

I would like to thank Art Macomber, Don Gary, John Green and Scott Bauer for their assistance in helping me better understand HB1.