Congress Has Power To Define The Terms Of Its Own Statutes

Last week, Dale Carpenter blogged about a particular amicus brief filed in U.S. v. Windsor, the Defense of Marriage Act (DOMA) case. In this brief, Dale, as well as co-conspirators Jonathan Adler, Randy Barnett, and Ilya Somin, set forth a “federalism-based” argument against DOMA. With all due respect to my co-conspirators, I agree with Ed Whelan at National Review Online that the argument is unsound.

Section 3 of DOMA provides: “In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.” It is codified at 1 U.S.C. 7, in the “Dictionary Act,” where it takes its place among a number of similar — though less controversial — definitions and interpretive rules that apply throughout the U.S. Code.

The “federalism” brief argues that this provision exceeds the enumerated powers of Congress and impermissibly trenches upon the power of the States over domestic relations. How can that possibly be so? This provision defines the word “marriage” only for purposes of federal law. Surely Congress has the power to define the words that it uses in its own statutes.

DOMA Sec 3, like all definitional provisions, is essentially a cut-and-paste function. Where you see X, you should read Y. Obviously Congress could simply have erased X throughout the US Code and replaced it with Y. Likewise, presumably, Congress could have added an “X shall mean Y” definitional section at the end of every single statute. And so, I can’t see any objection to a global definition at the beginning of the U.S. Code.

It seems to me — as a matter of federalism, at least — that such a definition could permissibly piggyback on state law entirely (“‘marriage’ shall mean marriage as defined by state law”), piggyback on state law partially (“‘marriage’ shall mean marriage as defined by state law, so long as it involves only one man and one woman”), or piggyback on state law not at all (“‘marriage’ shall mean a tuna fish sandwich”).

Indeed, the general presumption is against piggybacking at all. See Jerome v. United States, 318 U.S. 101, 104 (1943) (“in the absence of a plain indication to the contrary, … Congress when it enacts a statute is not making the application of the federal act dependent on state law.”).

Now, of course, one can imagine a problematic case, in which the definition itself runs afoul of some substantive constitutional provision. “Marriage means only a Catholic union between two Catholics as husband and wife.” And perhaps DOMA is such a case. But the problem, if there is one, has nothing whatsoever to do with federalism.

I analyzed these sorts of definitional and interpretive provisions at length in my first article, Federal Rules of Statutory Interpretation, which was published in the Harvard Law Review in 2002. As it happens, I honed this article while clerking for Justice Kennedy, and it was secretly disappointing that there was no opportunity for the Court to cite the article that Term. Now, at last, thanks to my co-conspirators, perhaps its time has come!