Last week, the Supreme Court issued a decision in Haaland v. Brackeen regarding the constitutionality of the Indian Child Welfare Act. Hardly the stuff of election law. But two small parts of the opinion stood out to me. First, the Court’s discussion of “plenary” power may have some effect on how the Court construed the Legislature Thereof Clauses of the Constitution, including its decisions in cases like Moore v. Harper. Second, the Court’s description of the role of federal law affecting state causes of action brought in state courts may be of interest for those thinking about how the newly-enacted Electoral Count Reform Act may play out in future litigation.

First, on “plenary.” The Supreme Court has routinely “characterized Congress’s power” as “plenary and exclusive” when it comes to tribal affairs.

The Court, in an opinion by Justice Amy Coney Barrett on behalf of the seven-justice majority, cautioned that this gloss should not be overread:

To be clear, however, “plenary” does not mean “free-floating.” A power unmoored from the Constitution would lack both justification and limits. So like the rest of its legislative powers, Congress’s authority to regulate Indians must derive from the Constitution, not the atmosphere. Our precedent traces that power to multiple sources.

. . .

. . . Article I gives Congress a series of enumerated powers, not a series of blank checks. Thus, we reiterate that Congress’s authority to legislate with respect to Indians is not unbounded. It is plenary within its sphere, but even a sizeable sphere has borders. [fn. 3]

[fn.3]: JUSTICE ALITO’s dissent criticizes the Court for “violating one of the most basic laws of logic” with our conclusion that “Congress’s power over Indian affairs is ‘plenary’ but not ‘absolute.’ ” Post, at 3–4. Yet the dissent goes on to make that very same observation. Post, at 4 (“[E]ven so-called plenary powers cannot override foundational constitutional constraints”).

Justice Neil Gorsuch had thoughts elsewhere:

In the process, though, it stepped off the doctrinal trail. Instead of examining the text and history of the Indian Commerce Clause, the Court offered a free-floating and purposivist account of the Constitution,describing it as extending broad “power [to] the General Government” over tribal affairs. Id., at 384. Building on that move, the Court would later come to describe the federal power over the Tribes as “plenary.” See, e.g., Winton v. Amos, 255 U. S. 373, 391 (1921); Lone Wolf v. Hitchcock, 187 U. S. 553, 565 (1903).

Perhaps the Court meant well. Surely many of its so-called “plenary power” cases reached results explainable under a proper reading of the Constitution’s enumerated powers. Maybe the turn of phrase even made some sense:Congress’s power with regard to the Tribes is “plenary” in that it leaves no room for State involvement. See Ablavsky2015, at 1014 (“[T]he Court use[d] the term [plenary] interchangeably with ‘exclusive’”). But as sometimes happens when this Court elides text and original meaning in favor of broad pronouncements about the Constitution’s purposes, the plenary-power idea baked in the prejudices of the day.

Justice Clarence Thomas, dissenting, pointed out, “So where did the idea of a ‘plenary power’ over Indian affairs come from? As it turns out, little more than ipse dixit.”

The word “plenary” appears nowhere in the Constitution, so the Court here is grappling with its framing in other cases and what it means here.

Interpreting the Legislature Thereof Clauses of the Constitution (in the Elections Clause and the Presidential Electors Clause), the word “plenary” has arisen to describe the power that the state “legislature” has to issue rules. In McPherson v. Blacker (1892), for instance, the Supreme Court noted, “If the legislature possesses plenary authority to direct the manner of appointment, and might itself exercise the appointing power by joint ballot or concurrence of the two houses, or according to such mode as designated, it is difficult to perceive why, if the legislature prescribes as a method of appointment choice by vote, it must necessarily be by general ticket and not by districts.” And elsewhere, “the practical construction of the clause has conceded plenary power to the state legislatures in the matter of the appointment of electors.”

That language has cropped up in a number of contests. It arose in Bush v. Gore in the per curiam opinion. It was mentioned in the complaint filed before the Supreme Court in Texas v. Pennsylvania in 2020. It is mentioned in the briefing in Moore v. Harper this term.

“Plenary” is a powerful word to describe the role of the state legislature. But, I think, this language in Brackeen–frankly, from justices in both the majority and the dissent–suggests that it intends to trim back the extra-constitutional language of “plenary” from its opinions when describing the scope of legislative power.

Second, the role of federal law in a state-created cause of action. Because child custody disputes under ICWA arise under a state-created cause of action, petitioners challenged whether Congress could compel states to use federal law in the state cause of action. Again, from Justice Barrett’s majority opinion:

But they draw a distinction between requiring state courts to entertain federal causes of action and requiring them to apply federal law to state causes of action. They claim that if state law provides the cause of action—as Texas law does here—then the State gets to call the shots, unhindered by any federal instruction to the contrary. Brief for Individual Petitioners 62–63, 66–67.

This argument runs headlong into the Constitution. The Supremacy Clause provides that “the Laws of the United States . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.” Art. VI, cl. 2. Thus, when Congress enacts a valid statute pursuant to its Article I powers, “state law is naturally preempted to the extent of any conflict with a federal statute.” Crosby v. National Foreign Trade Council, 530 U. S. 363, 372 (2000). End of story. That a federal law modifies a state law cause of action does not limit its preemptive effect.

The recently-enacted Electoral Count Reform Act ensures timely resolution of disputes, and timely transmission of certifications of election to presidential electors and to Congress, among other things. It does not create a new federal cause of action. But if parties sue in state court under state law to challenge election results, seek mandamus to compel the executive to issue a certificate election, and so on, those causes of action will undoubtedly be affected by federal law, including the new ECRA. Brackeen is an important reminder that these new federal obligations can be enforced in state courts through state causes of action. And if state law has timelines that do not comply with with the ECRA’s new requirements (even as some states are rightly updating or attempting to update state law), federal law places a few new obligations on how state causes of action play out, particularly with regard to the timing of resolving disputes.