“NO” on the Violence Against Women Act (VAWA)

This week, the House is expected to consider a Substitute Amendment to the Senate-passed Violence Against Women Act of 2013 (VAWA) (S.47).  The bill would reauthorize and expand the 1994 law that made domestic violence – typically handled by state and local governments – a federal crime.

Although it represents an improvement over the Senate-passed version, the Substitute Amendment remains constitutionally problematic.  Heritage Foundation legal expert Paul Larkin explains the “Senate VAWA bill would violate Articles II and III of the Constitution” and the “House bill can be challenged on the same grounds.”  Larkin continues:

None of the parties with appointment power specified in Article II would appoint or could remove a tribal judge; that authority would still reside with each tribe.  Moreover, the House bill does not vest tribal judges with life tenure or protect their salaries.  The House bill therefore suffers from the same defects as the Senate bill.

Although lawmakers tried to address the issue, they fell short.  Larkin explains there are two remedies available to lawmakers: “Give every defendant (1) an automatic right to remove a case to federal district court, or (2) a right to a trial de novo before a federal district judge after conviction in tribal court.”  Although these changes may not satisfy the tribes, they would satisfy lawmakers’ constitutional obligation.

The level of the reauthorization is another concern.  Heritage’s David Muhlhausen explains the authorization levels in both the Senate-passed and House-introduced version “are still well above the amount allocated annually by Congress and asked for by President Obama.”  Although the annual authorization level is reduced to $222 million per year, the amount remains well above the $189 million requested by President for FY2013 and more than the $210 million Congress appropriated in 2010.  Setting an authorization level above current appropriations levels is not fiscally responsible because it gives appropriators the authority to increase the current funding levels.

Finally, Muhlhausen reiterates there is “little scientifically rigorous evidence that VAWA programs are succeeding at its original mission of protecting female victims of domestic violence.”  Even studies cited by proponents of the law acknowledge “the VAWA act did not appear to have a unique impact on most of the existing trends of domestic violence measured for this study, including the domestic violence incidence rate, rate of reporting to the police, and arrest rate.”  Muhlhausen continues:

[T]he substitute amendment does little to promote the rigorous evaluation of VAWA programs. For example, the amendment fails to require experimental evaluations of grant programs, which are the best method for assessing effectiveness.

To be clear, everyone is against domestic violence, and fighting domestic violence is not, and never has been, a partisan issue.  It just needs to be done appropriately and constitutionally; and unfortunately, S.47 and the House Substitute Amendment fail to do that. Forcing lawmakers to choose between two unconstitutional bills is bad policy and bad politics. Lawmakers should urge their leadership to abandon this approach.

Heritage Action opposes the Senate-passed version of the Violence Against Women Act (VAWA) and the House Substitute Amendment.  We will include at least one, and potentially both, as key votes on our scorecard.

Related:
Heritage Action Scorecard