In his post Nick again asserts that Congress has an power to define terms for purposes of federal law: ”If DOMA is unconstitutional, it is because this particular federal definition of “marriage” offends some substantive constitutional provision. But that has nothing to do with federalism.” But there is no enumerated Definitions Power in the Constitution. Any definition of terms must be part of Congress’s: “power to make all laws which shall be necessary and proper for carrying into execution” its enumerated powers. Whether any particular definition results in a claim of power that improperly extends beyond Congress’s power to interfere with the reserved powers of the states is a matter than needs to be considered statute by statute. In most every conceivable case, there is no objection to any particular definition adopted by Congress for purposes of federal law. Most definitions can easily be shown to be both necessary and proper to an enumerated power.
Nick asks, “So what is it that makes DOMA different? The fact that it applies to 1100 statutes, rather than just two?” Yes exactly. It was indiscriminately adopted to apply to all statutes regardless of whether the definition was a necessary or proper means of executing any one of them, and regardless of whether it was a condition on federal spending. And we know why. Because Congress was seeking to defend the traditional definition of marriage. Hence the name: The Defense of Marriage Act. But “the defense of marriage” is not among the purposes or “objects” for federal laws that are delegated by the Constitution to Congress. Here is what John Marshall said about this possibility in McCulloch
Should Congress, in the execution of its powers, adopt measures which are prohibited by the Constitution, or should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not intrusted to the [national] Government, it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say that such an act was not the law of the land. But where the law is not prohibited, and is really calculated to effect any of the objects intrusted to the Government, to undertake here to inquire into the decree of its necessity would be to pass the line which circumscribes the judicial department and to tread on legislative ground. (bold and italics added)
With DOMA, Congress made no pretense of its “object:” defend traditional marriage. This is an “object not intrusted to the [national] government.” And DOMA was hardly “really calculated to effect any of the objects intrusted to the [national] Government.” It was not calculated at all! That is why, as we stated in our brief, its across-the-board approach is distinct from a definition that was “really calculated to effect any of the objects” entrusted to it by the enumerated powers scheme.
Contrary to Nick, this case has everything to do with federalism, which is about “who decides.” In our system, it is the states that historically have decided, which is to say defined, who is married and who is not. The marriage power that was reserved to the states is a power of definition. It is not an incidental power. Rather, it is a great power that was not among those delegated to the United States. If DOMA interferes with that power of states (as we allege in our brief) then it is unconstitutional on federalism grounds, regardless of whether “the law is not prohibited” by the Due Process or Equal Protection Clauses. Given that persons would be defined as married by state law, but unmarried according to federal law (without a showing of necessity and propriety for carrying into execution an identifiable federal power, such as the power over immigration), this is a clear interference with the states reserved power to define marriage. Moreover, as we also note, under the lowest level of Equal Protection scrutiny, Congress must identify a legitimate interest in defense of any discriminatory statute, which in this case would be a legitimate federal interest. In this case the preservation of traditional marriage is not a federal interest at all.
Could Congress use its spending power to accomplish this end in a more “calculated” fashion that does not interfere with the operation of state marriage law? Perhaps. Did it do so with DOMA? We think not.
I don’t actually know if this use of an unenumerated “Definitions Power” in so blanket a fashion to effectuate an object not entrusted to Congress is literally unprecedented, but it could be. It seems to us like another end run around the limits on the powers of Congress.