Friday, May 15, 2015

UN Unconstitutional Family Law

All UN generated Laws need to be avoided in the U.S.

Background on S.1067, Posted on May 14, 2015 Written by Vicky Davis, channelingreality.com

FA Note:  Even if you don’t live in Idaho, all the objec­tions Vicky has listed will apply to the cor­re­spond­ing bill in your state. Inte­grat­ing The Hague Con­ven­tion on the Inter­na­tional Recov­ery of Child Sup­port and Other Forms of Fam­ily Mainte­nance into State Law

On 4 May 2015, Gov­er­nor Butch Otter announced he would call a spe­cial ses­sion of the leg­is­la­ture to con­vene on 18 May 2015. The spe­cial ses­sion “will deal solely with the issue of Idaho’s child sup­port sys­tem”. The alleged emer­gency con­cern­ing H&W’s child sup­port enforce­ment sys­tem is because the fed­eral gov­ern­ment has threat­ened to cut fed­eral funds for the inter­state child sup­port enforce­ment sys­tem and to cut off access to the fed­eral child sup­port enforce­ment sys­tem if the leg­is­la­ture does not pass the Uni­form Inter­state Fam­ily Sup­port Act of 2008 (UIFSA) which was included in Idaho S.1067.

The 2008 UIFSA model leg­is­la­tion incor­po­rates pro­vi­sions of the 2007 Hague Con­ven­tion on the Inter­na­tional Recov­ery of Child Sup­port of Fam­ily Main­te­nance (“the Con­ven­tion”) into state law by spe­cific ref­er­ence. The Con­ven­tion con­tains numer­ous pro­vi­sions that estab­lish uni­form pro­ce­dures for the pro­cess­ing of inter­na­tional child sup­port cases. The 2008 UIFSA amend­ments serve as the imple­ment­ing lan­guage for the Con­ven­tion through­out the states. The 2014 Pre­vent­ing Sex Traf­fick­ing and Strength­en­ing Fam­i­lies Act (H.R. 4980 – 113th Con­gress) serves as the fed­eral imple­ment­ing leg­is­la­tion for the Convention.1

In order for the United States to fully accede to the Con­ven­tion “it was nec­es­sary to mod­ify UIFSA to incor­po­rate pro­vi­sions of the Con­ven­tion that impact exist­ing state law”.2 The bulk of the 2008 amend­ments are housed in a new sec­tion of UIFSA: Sec­tion 7. The new sec­tion pro­vides guide­lines and ­pro­ce­dures for the reg­is­tra­tion, recog­ni­tion, enforce­ment and mod­i­fi­ca­tion of for­eign sup­port orders from coun­tries that are par­ties to the Con­ven­tion. Sec­tion 7 pro­vides that a sup­port order from a coun­try that has acceded to the Con­ven­tion must be reg­is­tered imme­di­ately unless a tri­bunal in the state where the reg­is­tra­tion is sought deter­mines that the lan­guage of the order goes against the pol­icy of the state.3

The Prefatory-Note pro­duced by the Uni­form Law Com­mis­sion draft­ing com­mit­tee, includes the fol­low­ing explana­tory notes: “… because this mul­ti­lat­eral treaty is not self-executing, addi­tional fed­eral or state statu­tory enact­ments are nec­es­sary to enable the treaty and to make it read­ily acces­si­ble to the bench and bar. Because estab­lish­ment, enforce­ment, and mod­i­fi­ca­tion of fam­ily sup­port are basi­cally mat­ters of state law, from the per­spec­tive of the Uni­form Law Com­mis­sion the vehi­cle for the accep­tance into force of the new Con­ven­tion is a revi­sion of UIFSA (2001), here­after called UIFSA (2008).

In time, it is antic­i­pated the new Hague Main­te­nance Con­ven­tion will achieve a high level of inte­gra­tion with many other countries”.4

Yes­ter­day, TVOI News pub­lisher Michael Emery received notice by good author­ity that the Idaho State leg­is­la­ture will vote to pass the amended S.1067 (Uni­form Inter­state Fam­ily Sup­port Act 2008) dur­ing the spe­cial ses­sion of the leg­is­la­ture to con­vene on 18 May 2015.

Changes made to S.1067 in the interim period between the end of the leg­isla­tive ses­sion and the 4 May announce­ment by Gov­er­nor Otter were posted along with the Governor’s press release. These changes are being put for­ward as solv­ing the objec­tion­able tech­ni­cal issues with the leg­is­la­tion to make it more palat­able. The prob­lem is that the main objec­tion to the leg­is­la­tion is that it includes by spe­cific ref­er­ence the Hague Con­ven­tion. As long as that ref­er­ence appears in the bill to be enacted into state law, the objec­tions stand. It is a mis­rep­re­sen­ta­tion of the facts to pur­port that any changes to the UIFS A model leg­is­la­tion made by mem­bers of the Idaho State Leg­is­la­ture make any sub­stan­tive changes to the bill because doing so would be in vio­la­tion of the man­date given the states in the Action Trans­mit­tal AT-14–11 dated Octo­ber 9, 2014 titled P.L. 113–183 UIFSA 2008 Enactment5, the instruc­tions to State Agen­cies Admin­is­ter­ing Child Sup­port Plans under Title IV-D of the Social Secu­rity Act and Other Inter­ested Indi­vid­u­als, pro­vides the fol­low­ing instructions:

Now that the Pres­i­dent signed P.L. 113–183, the fol­low­ing steps must occur before the 2007 Fam­ily Main­te­nance con­ven­tion can enter into force for the United States.

  • All states must enact UIFSA 2008 ver­ba­tim by the effec­tive date noted in P.L. 113–183. Where UIFSA 2008 has brack­eted lan­guage, states may use ter­mi­nol­ogy appro­pri­ate under state law. In addi­tion, P.L. 113–183 requires states to make minor revi­sions to the state plan which OCSE will address in forth­com­ing guidance.
  • The Pres­i­dent must sign the instru­ment of ratification.
  • Once these activ­i­ties are com­pleted, the United States will be able to deposit its instru­ment of rat­i­fi­ca­tion with the Min­istry of For­eign Affairs of the King­dom of the Nether­lands, which is the depos­i­tory for the Hague Con­ven­tion on the Inter­na­tional Recov­ery of Child Sup­port and Other Forms of Fam­ily Maintenance.
    The fed­eral man­date to the states that they include by spe­cific ref­er­ence in state law, the Hague Con­ven­tion on the Inter­na­tional Recov­ery of Child Sup­port and Other Forms of Fam­ily Main­te­nance, con­cluded at The Hague on Novem­ber 23, 2007, is a vio­la­tion of the U.S. Con­sti­tu­tion – Arti­cle 1, Sec­tion 10: No state shall enter into any treaty, alliance, or con­fed­er­a­tion. S.1067 makes the state of Idaho a party to and as a con­se­quence, sub­ject to The Hague Con­ven­tion and pri­vate inter­na­tional law jurisdiction.
    In the prefatory-notes of the ULC draft­ing com­mit­tee on final adop­tion of UIFSA, they wrote the following:
    “…the fed­eral pre­emp­tion of the issue via the treaty clause will be suf­fi­cient to make the Con­ven­tion “the law of the land”. See Arti­cle VI. cl. 2. How­ever, because this mul­ti­lat­eral treaty is not self-executing, addi­tional fed­eral or state statu­tory enact­ments are nec­es­sary to enable the treaty and make it read­ily acces­si­ble to bench and bar.…In time, it is antic­i­pated the new Hague Main­te­nance Con­ven­tion will achieve a high level of inte­gra­tion with many other countries.”6
    By def­i­n­i­tion, if the treaty is not self-executing because it requires changes to state law con­cern­ing juris­dic­tional mat­ters inter alia then Arti­cle VI, cl. 2 is not suf­fi­cient and since the recog­ni­tion of the Hague Con­ven­tion in state law to make the Con­ven­tion acces­si­ble to bar and bench vio­lates Arti­cle 1, Sec­tion 10, UIFSA 2008 is uncon­sti­tu­tional and the fed­eral man­date to make UIFSA 2008 a state law is unconstitutional.
     The Open Door
    The last sen­tence in the pre­vi­ous quoted para­graph, “In time, it is antic­i­pated the new Hague Main­te­nance Con­ven­tion will achieve a high level of inte­gra­tion with many other coun­tries” is a win­dow into the think­ing of the ULC which is an expan­sion of inter­na­tional law and a fur­ther incur­sion into state law through the mech­a­nism of ascen­sion to this treaty and as a prece­dent to other as yet unnamed inter­na­tional con­ven­tions. This con­cern gains legit­i­macy from the num­ber and nature of “open doors” in the lan­guage of the Con­ven­tion itself – specif­i­cally (but not lim­ited to) as follows:

  • Arti­cle 7 with ref­er­ence to Arti­cle 6(2) b), c), g), h), i), and j) when no appli­ca­tion under Arti­cle 10 is pend­ing.
  • Arti­cle 8(2) Cen­tral Author­i­ties may not impose any charge on an appli­cant for the pro­vi­sion of their ser­vices under the Con­ven­tion save for excep­tional costs aris­ing from a request for a spe­cific mea­sure under Arti­cle 7.
  • Arti­cle 10 – Bases for recog­ni­tion and enforce­ment, habit­ual residence.
  • Arti­cle 53 – In the inter­pre­ta­tion of this Con­ven­tion, regard shall be had to its inter­na­tional char­ac­ter and to the need to pro­mote uni­for­mity in its application.
  • Arti­cle 54 – The Sec­re­tary Gen­eral of The Hague Con­fer­ence on Pri­vate Inter­na­tional Law shall at reg­u­lar inter­vals con­vene a Spe­cial Com­mis­sion in order to review the prac­ti­cal oper­a­tion of the Con­ven­tion and to encour­age the devel­op­ment of good practices…
  • Arti­cle 55 – The forms annexed to this Con­ven­tion may be amended by a deci­sion of a Spe­cial Com­mis­sion con­vened by the Sec­re­tary Gen­eral of the Hague Con­fer­ence on Pri­vate Inter­na­tional Law.
    The pre­am­ble of the Hague Convention7  includes the fol­low­ing statement:
    Seek­ing to take advan­tage of advances in tech­nolo­gies and to cre­ate a flex­i­ble sys­tem which can con­tinue to evolve as needs change and fur­ther advances in tech­nol­ogy cre­ate new opportunities,
    Recall­ing that, in accor­dance with Arti­cles 3 and 27 of the United Nations Con­ven­tion on the Rights of the Child of 20 Novem­ber 1989,”
    When the U.S. Sen­ate issued the Advice and Con­sent, it was with the fol­low­ing Amendment8:
    “To pro­vide an under­stand­ing that the pre­am­ble to the Treaty does not cre­ate any oblig­a­tion of the United States under the Con­ven­tion on the Rights of the Child as a mat­ter of United States or inter­na­tional law.”
    The UIFSA model lan­guage for state ascen­sion to The Hague Con­ven­tion refers to the Con­ven­tion as con­cluded at The Hague on Novem­ber 23rd, 2007. There is no qual­i­fi­ca­tion for the Amend­ment in the Sen­ate Advice and Con­sent nor does the Amend­ment for the United States include the States specif­i­cally as would be expected given the require­ment for indi­vid­ual state ascen­sion to the treaty. This leaves an open door for ele­ments of the United Nations Con­ven­tion on the Rights of the Child through state law despite the lack of rat­i­fi­ca­tion of the UN Con­ven­tion by the Senate.
    Extor­tion through Coop­er­a­tive Federalism
    In a paper writ­ten by Eric Fish, Senior Direc­tor of Legal Ser­vices of the Fed­eral of State Med­ical Boards titled, Enforc­ing Inter­na­tional Oblig­a­tions through Coop­er­a­tive Fed­er­al­ism9, on page 46 he dis­cusses the con­di­tions required to force the states to accept fed­eral man­dates under the sys­tem of “cooperative fed­er­al­ism”. Extortive man­dates are con­sid­ered con­sti­tu­tional only if they meet the fol­low­ing tests:
    1) The exer­cise of the spend­ing power must be in pur­suit of the gen­eral welfare
    2) Con­gress must exer­cise the spend­ing power unam­bigu­ously, allow­ing states to exer­cise their choice inde­pen­dently but with full cog­nizance of the reper­cus­sions of the choice
    3) The con­di­tions must be related to the fed­eral inter­est in par­tic­u­lar national projects and programs
    4) The terms of con­di­tional spend­ing must not run afoul of other con­sti­tu­tional provisions
    Spend­ing power includes the power to with­hold promised funds which is the threat to the states if they do not pass the UIFSA 2008 leg­is­la­tion. The man­date for the states to pass the UIFSA does not serve the gen­eral wel­fare of the Amer­i­can pub­lic and the extor­tion demand of the fed­eral gov­ern­ment holds hostage the most vul­ner­a­ble of Amer­i­cans – the children.
    The United States and the states have an inter­state com­pact to coor­di­nate and enforce child sup­port oblig­a­tions across state bor­ders. That sys­tem was in the national inter­est. UIFSA expands that sys­tem to the inter­na­tional level mak­ing it an inter­na­tional sys­tem. That makes UIFSA an inter­na­tional project not a national project. Since it also runs afoul of Arti­cle 1, Sec­tion 10 of the Con­sti­tu­tion, the fed­eral man­date for the states to pass the UIFSA 2008 into state law is uncon­sti­tu­tional. Fail­ure to defend states’ rights would be malfea­sance and dere­lic­tion of duty by the state’s Attor­ney General.
    Secu­rity
    There is plenty of legal analy­sis to be found con­cern­ing the UIFSA 2008, but there is a dearth of sys­tems analy­sis and the impact of this Con­ven­tion as it per­tains to secu­rity issues con­cern­ing data, the pro­tec­tion of chil­dren and fam­i­lies, and the con­trol of process when a for­eign entity “owns” the system.
    The Civil Jus­tice Pro­gramme of the Euro­pean Union is spon­sor­ing the devel­op­ment of the data exchange sys­tem to facil­i­tate the cross-border case man­age­ment. The name of the sys­tem is iSupport10  and “the objec­tive is to develop, within a two-year period, an elec­tronic case man­age­ment and secure sys­tem to facil­i­tate the cross– bor­der recov­ery of main­te­nance oblig­a­tions under the EU 2009 Main­te­nance Reg­u­la­tion and the 2007 Hague Child Sup­port Convention.
    From a sys­tems point of view, there would be no dif­fer­ence between a child sup­port enforce­ment case between Idaho and Cal­i­for­nia and a child sup­port enforce­ment case between Cal­i­for­nia and Mex­ico. This begs the ques­tion; does the HHS intend to replace the national sys­tem of child sup­port enforce­ment case man­age­ment with the inter­na­tional sys­tem (iSup­port) child sup­port enforce­ment case man­age­ment sys­tem? There would be noth­ing to pre­vent them from doing that and by so doing, they would be trans­fer­ring the extor­tion option for use of the sys­tem and the funds they con­trol – to either the Euro­pean Com­mis­sion or to the Sec­re­tary Gen­eral of the Hague Conference.
    In the Sen­ate Exec­u­tive Report11 that accom­pa­nies the Advice and Con­sent of the sen­ate for the Hague Con­ven­tion, the fol­low­ing is an exchange between Sen­a­tor Ben Cardin and Vicki Turet­sky, com­mis­sioner in the Office of Child Sup­port Enforce­ment at the Depart­ment of HHS: (empha­sis added)
    Sen­a­tor Cardin. I have one last ques­tion for either or both you, and that is: How much is this needed in the United States? Do you have any doc­u­men­ta­tion as to the level of child sup­port that goes uncol­lected and may very well be col­lected if the Con­ven­tion is widely rat­i­fied? Or is this your gut?  I mean, do we have any doc­u­men­ta­tion of what may be involved here?
    Ms. Turet­sky. Sen­a­tor, we don’t have a hard pro­jec­tion of dol­lars. We esti­mate that about 1 per­cent of our case­load is inter­na­tional, in the sense that one par­ent lives in a dif­fer­ent coun­try. What we do have is anec­do­tal infor­ma­tion from par­ents who have writ­ten to us, who say, you know, “I’m liv­ing here. I have a sup­port order. My—the par­ent of my child lives in another coun­try. I don’t know what to do. I under­stand there’s no agree­ment with that coun­try. What can I do? And so, we know that there are a num­ber of fam­i­lies that are going to be affected by a fully rat­i­fied treaty. We don’t know how that case­load will grow over time.
    But, we’re—you know we’re sen­si­ble of the fact that we’re, you know an increas­ingly global world, and that par­ents do move around. And in our case­load, where par­ents are liv­ing apart, the like­li­hood of one par­ent liv­ing in one coun­try and another par­ent liv­ing in our coun­try is likely to grow over time. So we’re really plan­ning for the future here.
    So the jus­ti­fi­ca­tion for this treaty boils down to ben­e­fit­ting a few fam­i­lies based on anec­do­tal evi­dence. The inter­na­tional cases–the 1% are already han­dled so they wouldn’t ben­e­fit from the treaty over and above the ser­vice they are already receiving.
    By any rea­son­able stan­dard, Ms. Turetsky’s expla­na­tion of the neces­sity for par­tic­i­pa­tion in this treaty doesn’t meet even the barest min­i­mum of stan­dards for jus­ti­fi­ca­tion for a change this large. The only plau­si­ble expla­na­tion is that the inter­na­tional sys­tem will replace the national sys­tem thereby sav­ing the expense of main­te­nance of the national sys­tem. We can’t know because there has been no analy­sis of this com­puter sys­tem that is avail­able for pub­lic review. One obvi­ous prob­lem is that if they do replace the national sys­tem with the inter­na­tional sys­tem, the “inter­na­tional com­mu­nity” would have sig­nif­i­cant lever­age over domes­tic pol­icy through con­trol of the sys­tem and con­trol of the child sup­port funds – includ­ing poten­tially domes­tic funds that would flow through it in pre­cisely the same way that the fed­eral gov­ern­ment is using extor­tion hold­ing chil­dren whose par­ents receive child sup­port pay­ments through the national child sup­port enforce­ment sys­tem hostage to force accep­tance of UIFSA 2008.
    Indian Tribes and the Rela­tion­ships to the States
    The leg­is­la­tion that included the man­date for the states to pass UIFSA 2008 into state law was H.R. 4980 Pre­vent­ing Sex Traf­fick­ing and Strength­en­ing Fam­i­lies Act passed into law by the 113th Con­gress. Title III, Sec­tion 302 Child Sup­port Enforce­ment Pro­grams for Indian Tribes. The exist­ing law is changed as follows:
    An Indian tribe or tribal orga­ni­za­tion oper­at­ing a pro­gram under sec­tion 455(f) shall be con­sid­ered a State for pur­poses of author­ity to con­duct an exper­i­men­tal, pilot, or demon­stra­tion project under sub­sec­tion (a) to assist in pro­mot­ing the objec­tives of part D of title IV and receiv­ing pay­ments under the sec­ond sen­tence of that sub­sec­tion. The Sec­re­tary may waive com­pli­ance with any require­ments of sec­tion 455(f) or reg­u­la­tions pro­mul­gated under that sec­tion to the extent and for the period the Sec­re­tary finds nec­es­sary for an Indian tribe or tribal orga­ni­za­tion to carry out such project…
    In a pre­vi­ous para­graph, it appears that Tribes are being given access to the Fed­eral Par­ent Loca­tor Ser­vice which includes asset searches. If there is any restric­tion on tribal access to asset infor­ma­tion on non-tribal mem­bers, it’s not show­ing here – and in fact, access would be a sim­ple rule within the sys­tem itself.
    With tribes being con­sid­ered as states for the pur­pose of UIFSA 2008 leg­is­la­tion which includes by spe­cific ref­er­ence the Hague Con­ven­tion, pre­sum­ably the Tribes will become par­ties to the Hague Con­ven­tion on the same level as states but with­out the reg­u­la­tory frame­work and data secu­rity pro­hi­bi­tions inher­ent in state and fed­eral law. With con­sid­er­a­tion for Arti­cle 7 (request for infor­ma­tion when an appli­ca­tion is not pend­ing) of the Hague Con­ven­tion which is an open door to asset searches, this leaves open the pos­si­bil­ity of an “infor­ma­tion for sale” busi­ness oppor­tu­nity for the Tribes on mat­ters unre­lated to a child sup­port case and not involv­ing mem­bers of a tribe.
    Con­clu­sion
    In sum­mary, the UIFSA 2008 is uncon­sti­tu­tional and the method being employed to push it down the throats of the states is uncon­sti­tu­tional. There has been too much obfus­ca­tion and too many ques­tions with too few answers. The leg­is­la­ture – and in par­tic­u­lar, the leg­is­la­tors who are also mem­bers of the bar need to remem­ber the oaths they took when they were sworn. Both of the oaths include affir­ma­tion to pro­tect and defend the Con­sti­tu­tion. On that basis along, they should all vote NO on S.1067 that inte­grates the Hague Con­ven­tion into state law.
    1 National Con­fer­ence of Com­mis­sion­ers on Uni­form State Laws aka Uni­form Law Com­mis­sion (ULC), Why States Should Adopt the Uni­form Inter­state Fam­ily Sup­port Act 2008 Amend­ments. http://www.uniformlaws.org/shared/docs/interstate%20family%20support/UIFSA%20(2008)%20Why%20States.pdf
    2 National Con­fer­ence of Com­mis­sion­ers on Uni­form State Laws aka Uni­form Law Com­mis­sion (ULC), The Uni­form Inter­state Fam­ily Sup­port Act Amend­ments (2008) –A Sum­mary. http://www.uniformlaws.org/shared/docs/interstate%20family%20support/UIFSA%20(2008)%20Summary.pdf
    3 Ibid
    4 National Con­fer­ence of Com­mis­sion­ers on Uni­form State Laws, Draft­ing Com­mit­tee, Annual Con­fer­ence in Big Sky Mon­tana, July 18–25, 2008, Uni­form Inter­state Fam­ily Sup­port Act (Last Amended or Revised in 2008), Final Act with Revised Prefa­tory Note and Com­ments. http://www.uniformlaws.org/shared/docs/interstate%20family%20support/UIFSA_2008_Final_Amended%202015_Revised%20Prefatory%20Note%20and%20Comments.pdf
    5 Depart­ment of Health & Human Ser­vices, Office of Child Sup­port Enforce­ment, P.L. 113–183 UIFSA 2008 Enact­ment, Action Trans­mit­tal AT-14–11, pub­lished Octo­ber 9, 2014.
    http://www.acf.hhs.gov/programs/css/resource/pl113-183-uifsa-2008-enactment
    6 Uni­form Inter­state Fam­ily Sup­port Act, 2008 Amend­ments to the Uni­form Inter­state Fam­ily Sup­port Act, Drafted by the National Con­fer­ence of Com­mis­sion­ers on Uni­form State Laws, July 18–25 Conference.
    http://www.uniformlaws.org/shared/docs/interstate%20family%20support/UIFSA_2008_Final_Amended%202015_Revised%20Prefatory%20Note%20and%20Comments.pdf
    7 Hague Con­fer­ence on Pri­vate Inter­na­tional Law, Con­ven­tion on the Inter­na­tional Recov­ery of Child Sup­port and Other Forms of Fam­ily Main­te­nance con­cluded 23 Novem­ber 2007.
    http://www.hcch.net/index_en.php?act=conventions.text&cid=131
    8 Hague Con­ven­tion on the Inter­na­tional Recov­ery of Child Sup­port and Other Forms of Fam­ily Main­te­nance, adopted at The Hague on Novem­ber 23, 2007, Sen­ate Con­sid­er­a­tion of Treaty Doc­u­ment 110–21,
    https://www.congress.gov/treaty-document/110th-congress/21/amendments
    9 Jour­nal of the Amer­i­can Acad­emy of Mat­ri­mo­nial Lawyers, Vol. 24, p. 33, 2011, Eric M. Fish, The Uni­form Inter­state Fam­ily Sup­port Act (UIFSA) 2008: Enforc­ing Inter­na­tional Oblig­a­tions Through Coop­er­a­tive Fed­er­al­ism, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1911980
    10 Hague Con­fer­ence on Pri­vate Inter­na­tional Law, iSup­port Sec­tion, http://www.hcch.net/index_en.php?act=text.display&tid=192
    11Senate Exec­u­tive Report 111–2, Hague Con­ven­tion on the Inter­na­tional Recov­ery of Child Sup­port and Other Forms of Fam­ily Main­te­nance (Treaty Doc. 110–21), Mr. Kerry, from the Com­mit­tee on For­eign Rela­tions, sub­mit­ted the Report, quote from page 25 (adobe).
    https://www.congress.gov/111/crpt/erpt2/CRPT-111erpt2.pdf
    Related Posts

No comments: