April 24, 2002
Laura Morgan chairs the Child Support Committee of the Family Law Section of the American Bar Association. She is also one of the world's most devoted advocates of the current child support system. Through a variety of activities she has turned this passion into an integral part of her career.
Among her ongoing activities, is the maintenance of a sophisticated website that promotes acceptance of the new system, through information and advice on how the laws should be perceived.
When a Georgia court declared their child support guidelines unconstitutional, Laura Morgan responded immediately and with characteristic intensity. She criticized the ruling and promised a series of articles in rebuttal. This article is a response to the first of those articles, which is entitled The Constitutionality of Child Support Guidelines, Part I.
As legal support for her position, Laura Morgan focuses on relatively recent unsuccessful or partially unsuccessful challenges to child support law while ignoring the previous two hundred years of constitutional case precedent.
Perhaps the key element of her argument is an implicit claim allowing unlimited expansion of federal powers "in pursuit of the general welfare" even when they compete directly with fundamental individual rights. (Through an explicit claim: "The child support regulations enacted by the Department of Health and Human Services passed constitutional muster on all points, because the adequate support of children was clearly in pursuit of the general welfare.")
Federal government power is limited by the Constitution, with states maintaining governmental powers outside of explicitly defined federal interests. A broad respect for protection of fundamental, derivative, and unspecified individual rights is mandatory, by explicit language in the Bill of Rights and later amendments.
Current child support laws were developed with a claim that enforcement of child support orders is related to "welfare" spending. It is prudent to point out that there is a general welfare clause in the United States Constitution. But it does not refer to the kind of "welfare" supported by the welfare system. The welfare system was a later invention constructed on states' rights and powers. To relate the two instances of the word "welfare" directly is either an expression of ignorance, an intentional lie, or extremely dry humor.
The child support laws in Georgia were declared unconstitutional for violating due process, equal protection, the right of privacy, and the prohibition stated in the Georgia Constitution against taking property. The decision does not involve the popular political rhetoric that gave rise to the new child support system. It is not a decision, for example, on whether it is right for "fathers to abandon mothers and children." The decision does not interfere with one parent's ability to obtain child support from another or the state's legitimate power to order child support payments. It says directly and explicitly that "child support" awards must be for child support and the amount must be rationally related to circumstances. Both parents have a duty to support their children. This is a reiteration of the established rational basis for child support. The ruling aims to effectively return the rule of law to child support decisions in Georgia.
Child support guidelines, as we know them today are presumptively correct. The presumption is a direct and extremely obvious challenge to due process. Due process is a fundamental right. When a fundamental right is at stake, the most careful standard of review, known as "strict scrutiny" is required. Presumptively correct child support guidelines however, have never faced strict scrutiny in the courts.
The Georgia court took just one step beyond totally ignoring the resoundingly obvious flaws in child support guidelines and the detrimental impact of the presumption. (The court applied the intermediate test rather than the lowest standard of review.) Quite predictably and appropriately, the presumptive use of the Georgia state child support guideline was found to be unconstitutional. “Further, if this Court were only to apply the lowest standard of scrutiny, i.e., whether the Guidelines bore a rational relationship to a legitimate government purpose, the Guidelines would still fail."
Federal funding for the child support enforcement system has been like a cash-stuffed envelope taped to a Christmas present. The Honorable Dane Perkins of the Superior Court of Atkinson County, the judge who declared the Georgia guideline unconstitutional, was not hindered from his responsibilities by the money in the envelope. He did not pause to admire the brightly colored wrapping paper. He pulled open the lid of the box and looked inside. What he found was a tangled web of arbitrary rules and capricious use of government power. The case was decided on constitutional grounds and it is easy to illustrate the basic issues through a hypothetical example.
Because of the weighty emotional issues and common myths involved in that child support debate it may be wise to create an example outside the debate. The illustration below hypothesizes a new law and provides a parallel to the legal defense of the current child support system. I am confident that many payers who are subject to current child support laws will easily understand the comparison. They are in a position that is analogous to that of Laura Morgan in the illustration below. They understand, as a matter of direct experience, that current child support laws are arbitrary and that both the federal government and the states have overstepped their boundaries. A great many payers understand as a matter of direct experience the overwhelming damage that this behavior can and has caused. I should forewarn readers who might be unfamiliar with the issue that once removed from the context of "deadbeat dad" propaganda the absurdity of the logic of the current child support system in amazingly obvious.
Life without basic constitutional protections and without limits to government power is absurd in a nightmarish sort of way, as many immigrants can testify from personal experience. "Children," it may be reasoned, "are the nation's most valuable resource" and therefore should be subject to federal regulation "in pursuit of the general welfare."
Therefore, let us imagine that reformists decide that billions of dollars may be offered to states from the federal budget on condition that they charge parents one million dollars each for permission to see their children. Politicians promise to "end child abuse as we know it" and a new bureaucracy is created to manage a child welfare program for collecting a million dollars from every parent. Let us imagine, hypothetically, what Laura Morgan's position might be if she is ordered to pay one million dollars to see her children.
The state, supported and encouraged by the new agency (which depends on the new laws for its survival), presumes that Laura Morgan, like all other parents, is not fit to parent for failure to pay and enforces the new law against her. Her children are taken into state care. Not incidentally, the state has also been told that it will lose millions of dollars in federal funding if it does not enforce the law in every case.
State courts are hesitant to overturn the law because this funding is at stake. Laura Morgan objects, saying that her inability or unwillingness to pay one million dollars to the state does not prove that she is an unfit mother. She further contends that even if the state does have a legitimate purpose for charging parents, the specific amount demanded - one million dollars - lacks any rational basis. The amount is arbitrary.
Both the state and federal courts respond that states have the authority, generally speaking, to create and enforce laws that benefit children. Since the intent of the law is to protect children from unfit parents, the state has not overstepped its authority.
What exactly is in the best interest of children is often a "subjective judgment." (P.O.P.S v. Gardner declared child support judgments "subjective" after failing to find any objective explanation for the amounts determined by the Washington State guidelines and followed this reasoning.) Therefore, the state may decide how to determine whether parents are fit. The court fails to note in this judgment that the state merely implemented a law in pursuit of federal funds. The court dismisses Laura Morgan's claim that the state has not actually shown that she is unfit, finding a basis for that decision in the state law that says that she is unfit if she does not pay one million dollars.
The court does state as fact, that the figure of one million dollars was not arbitrarily determined. It was recommended by the owner of one of the private businesses that profits from collecting the money. He said somewhere that he got the figure from someone else who he regards as highly qualified in some field. It doesn’t matter what field; it sounded impressive. The guy has a Ph.D. and everything.
In addition, the state convened a special review committee, composed of politically appointed members who mostly work for the bureaucracy that depends on the federal funding for its survival. The committee approved the recommendation. Because of this concurrence of outside opinion the court dismisses Laura Morgan's claim that one million dollars is an arbitrary amount. In doing so they note that every parent must pay the same amount to maintain the right to see their children. Requiring exactly the same amount in every case encourages uniformity in the application of law. This makes the claim that it is arbitrary to require the same of Laura Morgan seem counter-intuitive.
The case, reported widely in the media for weeks thereafter, is filled with contempt for people who like Laura Morgan, "avoid responsibility and abandon their children to state care." "What's worse," one TV commentator opines, "is a nation that lets them get away with it." (Quoting an ABC commentator's remarks on child support in the mid-1990s.)
Officials within the new agency consider the mounting number of children in state care. They argue that all parents should be forced to fulfill their responsibilities. Six months later, another law is passed and Laura Morgan is ordered to pay one million dollars anyway, even though she has "forfeited the right to see her children." The case is immediately turned over to a collection agency with an order to garnish her wages. The collection agency keeps fifteen percent of the amount they collect. In addition, the law provides that Laura Morgan must pay interest on the unpaid debt as well as processing fees and penalties.
With nearly all of her income taken, she finds that only part of it goes to pay the "debt" while the debt continually increases. If she avoids compliance, she goes to jail. Unable to afford power lunches, Laura Morgan loses her position as Chair the Child Support Committee of the Family Law Section of the American Bar Association. She realizes that her children could not spend much time with her even if the law allowed it. She isn't allowed to keep enough of her income to properly feed herself. It has also become obvious that she cannot afford to hire a lawyer to battle the injustice. She reduces her workload to spend more time fighting for herself. (This is before another law is passed requiring revocation of her drivers and professional licenses.)
The collection agency notices that her income has been voluntarily reduced; a court sentences her to six months in prison for evading her parental responsibility to pay the debt. While in jail Laura Morgan realizes that this problem, created by an arbitrary rule and capricious use of government power, is not a temporary one. A few months later, she takes her own life, leaving a lengthy note describing her ordeal and her conclusion that she had nothing left to live for but continual agony.
A politician who pulled in two million dollars in campaign contributions from people who profit from the law, is quoted by a newspaper the following day. "Suicide, like all of human psychology is complicated. There is no way to determine the cause of a suicide." (Actual response to child support related suicides.)
The constitutional case against current child support law is not about the overly politicized issue of child support. It is about basic constitutional rights. The promotion of arbitrary benefits and unwarranted profits for the divorce industry need to give way to awareness of constitutional rights. What Laura Morgan and other political advocates fail to consider is that if government power is unlimited and we have no individual rights to protect against arbitrary intrusions, the imaginary scenario described above is as easily possible as the child support system as we know it today. The defense of constitutional rights, regardless of the particular issue or political context in which they are threatened, is vital to us all.
