Matthew L.M. Fletcher & Randall F. Khalil, Preemption Commandeering, and the Indian Child Welfare Act, 2022 Wis. L. Rev. 1199 (2022).
Abstract
We argue that the anti-commandeering challenges against ICWA are unfounded because all provisions of ICWA provide a set of legal standards to be applied in states which validly and expressly preempt state law without unlawfully commandeering the states’ executive or legislative branches. Congress’s power to compel state courts to apply federal law is long established and beyond question.
