Unintended Consequences: Why Congress Should Tread Lightly When Entering the Field of Family Law

• Jurisdiction: United States,Federal
• Publication year: 2010
• Citation: Vol. 25 No. 2

Georgia State University Law Review

Volume 25 , „

Article 7

Issue 2 Winter 2008

3-21-2012

Unintended Consequences: Why Congress Should Tread Lightly When Entering the Field of Family Law

Elizabeth G. Patterson

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Recommended Citation

Patterson, Elizabeth G. (2008) "Unintended Consequences: Why Congress Should Tread Lightly When Entering the Field of Family Law," Georgia State University Law Review: Vol. 25: Iss. 2, Article 7. Available at: http://digitalarchive.gsu.edu/gsulr/vol25/iss2/7

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UNINTENDED CONSEQUENCES: WHY CONGRESS SHOULD TREAD LIGHTLY WHEN ENTERING THE FIELD OF FAMILY LAW

Elizabeth G. Patterson*

Introduction

In the last thirty-five years Congress has become increasingly willing to legislate directly on matters related to families, though these traditionally have been regarded as primarily, if not exclusively, state concerns. Just in the most recent two-year session of Congress, numerous bills were introduced that directly addressed issues of family law and policy. In addition to the highly publicized Marriage Protection Amendment (Marriage Amendment), a proposal to amend the Constitution to prohibit same-sex marriage,¹ bills were introduced regarding promotion of responsible fatherhood,² paid family medical leave,³ protective programs for abused adults,⁴ parental notification when contraceptives are provided to minors,⁵ and protection for breast feeding mothers, among other things.⁶

During debate on an earlier version of the Marriage Amendment, some senators expressed concern about that effort to federally mandate a particular approach to family law.⁷ Their statements

• Professor of Law at the University of South Carolina School of Law and former State Director of the South Carolina Department of Social Services. Prior to attending law school, she worked with the Head Start program and with poverty programs of the Office of Economic Opportunity.

1. Marriage Protection Amendment, H.R.J. Res. 89, 110th Cong. § 2 (2008); Marriage Protection Amendment, S J. Res. 43, 110th Cong. § 2 (2008); see Aaron Leichman, Federal Marriage Amendment Reintroduced in Senate, Christian post, July 2, 2008, available at http:/Avww.christianpostcom/aricle/20080^

2. Responsible Fatherhood and Healthy Families Act of 2007, S. Res. 1626, 110th Cong. § 101 (2007).

3. Healthy Family Act, H.R. Res. 1542,110th Cong. § 3(1) (2007).

4. Elder Justice Act, H.R. Res. 1783, 110th Cong. § 102(a) (2007).

5. Parent's Right to Know Act of2007, H.R. Res. 2134, 110th Cong. § 2(a) (2007).

6. Breastfeeding Promotion Act of 2007, H.R. Res. 2236, 110th Cong. § 101(b)(2) (2007). This list is exemplary only, and does not include all bills introduced during the 110th Congress that directly address family law and policy. Further, many bills contain provisions that affect family law and policy although the primary objective of the bill lies elsewhere.

7. See, e.g., Craig Broffinan and Ed Henry, McCain: Same-sex Marriage Ban is Un-Republican

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reflected a longstanding recognition throughout American government that family issues, with their heavy infusion of local norms, can be coherently dealt with only at the local level. The one-size-fits-all approach of federal rule-making cannot accommodate the cultural variations of a nation of 296 million persons⁸ with different histories, religions, and national backgrounds. Thus, of all areas traditionally allocated to state control, family law evokes the strongest localist sentiment from both state and federal officials. The Supreme Court's statement in the 1979 case of Hisquierdo v. Hisquierdo sums up the prevailing posture: "The whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States."⁹

Despite these avowals and admonitions, Congress has in the last fifty years shown an increasing willingness to involve itself in family law matters, not only as a facilitator and supporter of state initiatives, but also as a rule-maker in its own right. The Constitution does not authorize Congress to legislate on family matters. However, using its authority to condition the receipt of federal funds, Congress has exercised a quasi-regulatory authority to shape a broad array of family law rules.¹⁰ Major federal enactments in the areas of child abuse,¹¹ adoption,¹² child support,¹³ paternity establishment,¹⁴ and

(July 14, 2004), http://www.cnn.com/2004/ALLPOLITICS/07/14/mccain.marriage/; Log Cabin Republicans, GOP Opposition to the Federal Marriage Amendment, http://www.logcabm.org/logcabin/fma_quotes_GOP_senators.html (last visited July 21, 2008); Susan Milligan, Granite State's Summit Often Goes Against GOP, boston globe, July 18,2004, available at http://www.boston.com/news/nation/articles/2004/07/18/granite_states_sununu_often_goes_against_g _grain/.

8. U.S. POPClock Projection, www.census.gov/population/www/popclockus.html (last visited July 18,2008).

9. Hisquierdo v. Hisquierdo, 439 U.S. 572, 581 (1979) (quoting In re Burrus, 136 U.S. 586, 593-94 (1890)).

10. See infra notes 22-28 and accompanying text for discussion of the evolution of congressional authority under the Spending Clause.

11. E.g., Adoption and Safe Families Act of 1997 (AFSA), Pub. L. No. 105-89, 111 Stat. 2116 (1997) (codified at 42 U.S.C. § 675(5)); Adoption Assistance and Child Welfare Act of 1980 (AACWA), Pub. L. No. 96-272, 94 Stat. 500 (1980) (codified at 42 U.S.C. §§ 620-28, 670-79(a)); Child Abuse Prevention and Treatment Act (CAPTA), 42 U.S.C. § 5101 (2000).

12. E.g., Adoption and Safe Families Act of 1997; Adoption Assistance and Child Welfare Act of 1980; Indian Child Welfare Act of 1978, 25 U.S.C. §§ 1901-1963 (2000); 42 U.S.C. § 1996b (2000) (transracial adoption).

13. E.g., Family Support Act of 1988, Pub. L. No. 100-485, 102 Stat. 2343 (1988); Personal

marriage¹⁵ have significantly affected the rules and policy directions of family law.¹⁶

Some federal activity in the family law realm is unavoidable and even desirable. Federal legislation on issues such as the foregoing brings needed attention and resources to bear on serious social problems affecting families. Moreover, social problems that exist separately in families and communities throughout the nation can become so pervasive or interconnected as to require a nationwide response or can begin to affect issues of national concern such as economic stability or military readiness. In cases such as these, federal attention to the relevant family issue is both understandable and desirable.

The federal attention can become pernicious, however, if federal program requirements demand changes in state law that could disrupt the fabric of family law and policy in a state. Because family policy is closely connected to community norms and local social cohesion, such disruptions can have deleterious social effects that were neither anticipated nor desired by Congress. These disruptions can be, and sometimes are, avoided by a less prescriptive federal approach that allows states to achieve legislative objectives in a manner consistent with local family policy.¹⁷

Federal program mandates also can become counterproductive if they stifle state creativity in fashioning solutions to complex and multifaceted social problems such as child abuse and the economics

Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA), Pub. L. No. 104-193, 110 Stat. 2105 (1996).

14. E.g., Family Support Act of 1988, Pub. L. No. 100-485,102 Stat. 2343 (1988).

15. E.g., Defense of Marriage Act, Pub. L. No. 104-199, 110 Stat. 2419 (1996).

16. Federal courts also have been active in the family law arena, and have been the source of some of the most controversial federal family law rules. See, e.g., Janet Dolgin, The Constitution as Family Arbiter: A Moral in the Mess?, 102 colum. l. rev. 337 (2002); Developments in the Law—The Constitution and the Family, 93 Harv. L. Rev. 1161 (1980). Judicially created rules, while beyond the scope of this article, raise many of the same issues discussed herein.

17. For instance, the federal Child Abuse Prevention and Treatment Act (CAPTA), which requires a system of reporting and investigating child abuse and neglect, allows the states to define what constitutes child abuse and neglect. 42 U.S.C. § 5101 (2000). Similarly, the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA), which requires states to have numerical guidelines for determining the amount of a noncustodial parent's child support obligation, allows the states to determine the formula to be used. Pub. L. No. 104-193, 110 Stat. 2105 (1996).

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of divided families. Just at the moment that Congress provides states with the impetus, the resources, and the guidance to attack thorny social problems within their borders, it often deprives them of flexibility to experiment with potentially viable approaches to addressing them.

Although the federal government possesses the power to legislate broadly in the family law area, it should exercise this power sparingly and carefully to avoid disrupting the integrated body of each state's family law. This article will begin with an overview of federal power under the Constitution's Spending Clause, which has opened the door to federal family law enactments. It will then discuss the basis for the tradition of federal deference to the states in this area,...