The Volokh Conspiracy

As regular readers know, the Supreme Court granted certiorari in Bond v. United States in January. The case raises the question of whether a treaty can increase the power of Congress. Last week I posted about Paul Clement’s first-rate brief on behalf of the Petitioner.

Yesterday, I filed an amicus brief on behalf of the Cato Institute, the Center for Constitutional Jurisprudence, and the Atlantic Legal Foundation. (My superb co-counsel are Ilya Shapiro of Cato, John Eastman of CCJ, Martin Kaufman of ALF, and, I am honored to say, former Attorney General Ed Meese III.) The brief is based upon my Harvard Law Review article, Executing the Treaty Power.

Here is the Summary of Argument:

The court below held that the Chemical Weapons Convention increased the power of Congress, empowering it to enact 18 U.S.C. § 229. It held, in other words, that Congress is not limited to those powers enumerated in the Constitution; rather, those powers may be increased by treaty. The Third Circuit believed that it was bound to reach this conclusion by a single, conclusory sentence in Missouri v. Holland: “If the treaty is valid there can be no dispute about the validity of the [implementing] statute under Article I, Section 8, as a necessary and proper means to execute the powers of the Government.” Missouri v. Holland, 252 U.S. 416, 432 (1920).

But the Third Circuit was obviously uneasy with this conclusion: “with practically no qualifying language in Holland to turn to, we are bound to take at face value” that single sentence. Bond, 681 F.3d at 162. “[I]t may be that there is more to say about the uncompromising language used in Holland than we are able to say, but that very direct language demands from us a direct acknowledgement of its meaning, even if the result may be viewed as simplistic. If there is nuance that has escaped us, it is for the Supreme Court to elucidate.” Id. at 164-65 (footnote omitted).

Judge Ambro was even more explicit in concurrence:

I write separately to urge the Supreme Court to provide a clarifying explanation of its statement in . . . Holland . . . . I hope that the Supreme Court will soon flesh out “[t]he most important sentence in the most important case about the constitutional law of foreign affairs,” and, doing so, clarify (indeed curtail) the contours of federal power to enact laws that intrude on matters so local that no drafter of the Convention contemplated their inclusion in it.

Id. at 170 (Ambro, J., concurring) (quoting Rosenkranz, supra, at 1868 (2005)).

That one conclusory sentence from Holland implies that if a treaty commits the United States to enact some legislation, then Congress automatically obtains the power to enact that legislation, even if it would otherwise lack such power. It implies, in other words, that Congress’s powers are not constitutionally fixed, but rather may be expanded by treaty.

In Holland, Justice Holmes provided neither reasoning nor citation for this proposition. It appears in that one conclusory sentence, in a five-page opinion that is primarily devoted to a different question. And this Court has never elaborated. The most influential argument supporting this proposition appears not in the United States Reports but in the leading foreign affairs treatise. This argument has largely short-circuited jurisprudential debate on the question. But recent scholarship has shown that the historical premise of this academic argument is simply, demonstrably false.

The proposition that treaties can increase the power of Congress is inconsistent with the text of the Treaty Clause, the Necessary and Proper Clause, and the Tenth Amendment. It is inconsistent with the fundamental structural principle that “[t]he powers of the legislature are defined, and limited.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176 (1803). It implies, insidiously, that that the President and the Senate can increase their own power by treaty. And it implies, bizarrely, that the President alone–or a foreign government alone–can decrease Congress’s power and render federal statutes unconstitutional. Finally, it creates a doubly perverse incentive: an incentive to enter into foreign entanglements simply to increase domestic legislative power.

Holland is wrong on this point and it should be overruled. This Court should hold that treaties cannot vest Congress with additional legislative power.

Cato has more here. Our brief itself is available here.

The Harvard Crimson is currently running “a three-part series on gender disparity issues at [Harvard] Law School.” Part I reports that there are 17 tenured or tenure-track women out of 92 total on the Harvard Law School faculty. It goes on to report:

Since she took the helm of the school four years ago, [Dean] Minow has worked to change these numbers. Her first step: hiring equal numbers of men and women for entry-level faculty positions since 2009. This year, the Law School has made two hiring offers, one to a man and one to a woman.

Annually, the entry-level hiring committee conducts about 40 interviews, which are balanced in terms of gender breakdown. From these initial interviews, the hiring committee whittles down the pool of potential candidates, who must present to a faculty workshop, secure the recommendation of the hiring committee, and finally secure the approval of the faculty as a whole before they are hired. All the while, the hiring committee is careful to retain an equal number of male and female candidates, according to Law School professor David J. Barron ’89, chair of the entry-level committee.

The goal of having more female faculty members is “very much part of the consciousness, and consciousness matters,” said Barron.

At least as described, this sounds rather like a strict 50/50 gender quota, doesn’t it?

Reading this article, I couldn’t help but recall the recent conference on intellectual diversity at Harvard Law School. Readers may recall that Dean Minow issued an eloquent endorsement of intellectual diversity in conjunction with that conference:

“He who knows only his own side of the case, knows little of that.” John Stuart Mill’s insight carries importance for any place of learning and special significance for a law school. For one cannot truly understand a legal argument on behalf of one client or side without thoroughly understanding and addressing competing arguments and objections. Even if there were no other reasons available, this would supply sufficient basis for a robust commitment to intellectual diversity among the faculty and students, courses and journals, activities and speakers at Harvard Law School.

But there are other powerful reasons to pursue and nurture intellectual diversity at Harvard Law School. We recruit extraordinary students and work hard to equip them to pursue great careers and great dreams. Both in honing their aspirations and equipping them to achieve them, nothing works as well as serious intellectual encounters with smart and motivated individuals with varied viewpoints. Faculty and students also advance knowledge and law reform through scholarship and public service. Here, too, debates within and across groups deepen scholarship and test law reform ideas. It would be wonderful if one did not have to leave Harvard Law School to discover objections and improvements to descriptions and revisions of financial institution behavior, consumer products safety, national security strategies, federalism, and constitutional adjudication, just to name a few current subjects of research and reform work, but it will suffice if being at Harvard Law School affords faculty and students with super preparation for any ideas and concerns that may be encountered elsewhere. This is the path of truth-seeking; this is the method of iterative improvement. Yet there is at least one more crucial reason for placing priority in intellectual diversity within this institution. The bet made by commitments to the rule of law and to democracy is that we can use reason and participatory institutions to govern diverse and often contentious individuals and groups. That bet cannot prevail without cultivation of leaders who set the example for civil and curious engagement across all kinds of divides—be they defined by race, region, class, language, political party, gender, ideology, or other signifiers of difference. Modeling and cultivating honest and engaged discussion across lines of difference is not only our best practice. It is our commitment to make good on the privileges that the Harvard Law School enjoys, reflects, and bestows.

John Stuart Mill also wrote, “In all intellectual debates, both sides tend to be correct in what they affirm, and wrong in what they deny.” I am not sure he is right, but I think we will make more progress testing this and many other propositions in the company of talented people who draw sustenance from varied and clashing intellectual resources. We may even find surprising points of agreement and convergence, but we would not even know of this wonderful possibility in the absence of intellectual diversity.

In light of Dean Minow’s statement, I wonder whether the goal of having more conservative/libertarian faculty members is now also “very much part of the consciousness” at Harvard. (For what it’s worth, women are far better represented than conservatives/libertarians on almost all top law faculties, including Harvard’s.) Will Harvard Law School also be adopting a strict 50/50 quota for intellectual diversity? Is this sort of quota appropriate for gender? If so, would it not also be appropriate for ideology?

As regular readers know, the Supreme Court granted certiorari in Bond v. United States in January. The case raises the question of whether a treaty can increase the legislative power of Congress. In 1920, in Missouri v. Holland, the Supreme Court seemed to say yes. In 2005, in the Harvard Law Review, I said no. Several of us, including guest blogger Rick Pildes, debated the question at length earlier this year (my final post includes links to all the others). Now, the Court is poised to decide the question.

Yesterday, Paul Clement filed his brief on behalf of Ms. Bond. It is an excellent piece of work. Here is a taste:

[T]he government is left to argue that, in our constitutional system, a valid non-self-executing treaty grants Congress a plenary power to regulate all conduct that bears a rational relationship to the treaty .... [T]hat contention is fundamentally incompatible with the Constitution and this Court’s precedents. Missouri v. Holland does not establish that proposition, but if it did, it could not be reconciled with more recent decisions that respect our basic constitutional structure. Neither any clause of the Constitution alone nor all of them in combination grants Congress that kind of police power. And the last place such plenary power lies inchoate, waiting to be unleashed by a ratified treaty, is the Necessary and Proper Clause. An unchecked power to implement treaties would amount to exactly the sort of “great substantive and independent power” that the Necessary and Proper Clause cannot supply. McCulloch v. Maryland, 17 U.S. 316, 411 (1819); see also NFIB, 132 S. Ct. at 2591–92 (Roberts, C.J.).

I will be posting the other briefs (including mine, for Cato et al.) as they are filed.

I quite enjoyed reading David Hyman’s new article of this title. It vividly illustrates a point that I tried to make three weeks ago at the Intellectual Diversity Conference at Harvard Law School (Panel 2 – 47:00) — which is that the liberal echo chamber of elite law schools has made them startlingly poor at predicting and analyzing what arguments will actually succeed in American courts. (See also Randy’s thoughtful discussion of this topic.) Hyman’s piece is exactly right, I think, and it is also breezily and stylishly written. Here is the abstract:

Almost without exception, law professors dismissed the possibility that the Patient Protection and Affordable Act Act (“PPACA”) might be unconstitutional — but something went wrong on the way to the courthouse. What explains the epic failure of law professors to accurately predict how Article III judges would handle the case? After considering three possible defenses/justifications, this essay identifies five factors that help explain the erroneous predictions of our nation’s elite law professors, who were badly wrong, but never in doubt.

Download Hyman’s article here.

Last week, I posted about a conference at Harvard on the topic of intellectual diversity in the legal academy. I’m pleased to report that the conference was a great success, well conceived and well executed by the excellent students of the Harvard chapter of the Federalist Society. If nothing else, it succeeded in shining a light on the stark political / jurisprudential / methodological imbalance at the top law schools. It turns out that many of these schools are just like Georgetown Law — where most students will graduate after three years without ever once laying eyes on a conservative or libertarian professor at the front of a classroom.

Harvard Law School Dean Martha Minow was unable to attend the conference, but she did provide a written statement, which is an eloquent endorsement of intellectual diversity:

“He who knows only his own side of the case, knows little of that.” John Stuart Mill’s insight carries importance for any place of learning and special significance for a law school. For one cannot truly understand a legal argument on behalf of one client or side without thoroughly understanding and addressing competing arguments and objections. Even if there were no other reasons available, this would supply sufficient basis for a robust commitment to intellectual diversity among the faculty and students, courses and journals, activities and speakers at Harvard Law School.

But there are other powerful reasons to pursue and nurture intellectual diversity at Harvard Law School. We recruit extraordinary students and work hard to equip them to pursue great careers and great dreams. Both in honing their aspirations and equipping them to achieve them, nothing works as well as serious intellectual encounters with smart and motivated individuals with varied viewpoints. Faculty and students also advance knowledge and law reform through scholarship and public service. Here, too, debates within and across groups deepen scholarship and test law reform ideas. It would be wonderful if one did not have to leave Harvard Law School to discover objections and improvements to descriptions and revisions of financial institution behavior, consumer products safety, national security strategies, federalism, and constitutional adjudication, just to name a few current subjects of research and reform work, but it will suffice if being at Harvard Law School affords faculty and students with super preparation for any ideas and concerns that may be encountered elsewhere. This is the path of truth-seeking; this is the method of iterative improvement. Yet there is at least one more crucial reason for placing priority in intellectual diversity within this institution. The bet made by commitments to the rule of law and to democracy is that we can use reason and participatory institutions to govern diverse and often contentious individuals and groups. That bet cannot prevail without cultivation of leaders who set the example for civil and curious engagement across all kinds of divides—be they defined by race, region, class, language, political party, gender, ideology, or other signifiers of difference. Modeling and cultivating honest and engaged discussion across lines of difference is not only our best practice. It is our commitment to make good on the privileges that the Harvard Law School enjoys, reflects, and bestows.

John Stuart Mill also wrote, “In all intellectual debates, both sides tend to be correct in what they affirm, and wrong in what they deny.” I am not sure he is right, but I think we will make more progress testing this and many other propositions in the company of talented people who draw sustenance from varied and clashing intellectual resources. We may even find surprising points of agreement and convergence, but we would not even know of this wonderful possibility in the absence of intellectual diversity.

Video of the conference is available here. Some highlights include co-conspirator Jim Lindgren’s presentation of the startling empirical data on intellectual diversity (Panel 1 – 6:10); Jack Goldsmith’s powerful remarks about what it is like to be a right-leaning professor at Harvard Law School (Panel 1 – 18:30); and Robby George’s eloquent observations about the “non-conscious discrimination” that is at least partially responsible for this extreme imbalance (Panel 3 – 20:30).

Watch the whole thing.

It is always a treat to reread John Stuart Mill’s On Liberty.

The object of this Essay is to assert one very simple principle, as entitled to govern absolutely the dealings of society with the individual in the way of compulsion and control, whether the means used be physical force in the form of legal penalties, or the moral coercion of public opinion. That principle is, that the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise, or even right. These are good reasons for remonstrating with him, or reasoning with him, or persuading him, or entreating him, but not for compelling him, or visiting him with any evil in case he do otherwise. To justify that, the conduct from which it is desired to deter him, must be calculated to produce evil to some one else. The only part of the conduct of any one, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.

As they say, read the whole thing.

The Harvard Chapter of the Federalist Society is hosting a very important conference tomorrow on intellectual diversity in the legal academy.

Many people realize that legal academia “leans” to the left. But even alumni — indeed, even major donors — are often unaware of the extent of the imbalance. At Georgetown, for example, the ratio of liberals to conservatives/libertarians is roughly 116 to 3. At most top schools, the ratio is similar. One might quibble about definitions, but even on the broadest conception of “conservative” or “libertarian” or, let’s just say, “right of the American center,” most top law schools can count such professors on one hand. In public law, and particularly constitutional law, the disparity is even more extreme.

As a rule, professors don’t like to talk about this. And so it has fallen to the excellent students of the Harvard Federalist Society Chapter to conceive and organize this first-rate conference. Here is the agenda:

Panel I: Problem: is there a lack of intellectual diversity in law school faculties?
12:00-1:00 p.m.

Jack Goldsmith (Harvard Law School)
James Lindgren (Northwestern University Law School)
Mark Tushnet (Harvard Law School)
Moderator: David Barron (Harvard Law School)

Panel II: Effects: should law schools care about intellectual diversity?
1:30-3:00 p.m.

Richard Fallon (Harvard Law School)
Victoria Nourse (Georgetown University Law Center)
Michael Paulsen (University of St. Thomas School of Law)
Nicholas Quinn Rosenkranz (Georgetown University Law Center)
Moderator: Stuart Taylor (National Journal)

Panel III: Solutions: encouraging intellectual diversity
3:30-5:00 p.m.

Paul Campos (University of Colorado Law School)
George Dent (Case Western Reserve University School of Law)
Robert P. George (Harvard Law School)
Jeannie Suk (Harvard Law School)
Moderator: Steven Calabresi (Northwestern University Law School)

Keynote Address
Sherif Girgis (Yale Law School)
5:30-6:00 p.m.

Reception
6:15-7:00 p.m.

This conference is open to the public. More details are available here.

At my suggestion, Intelligence Squared is hosting a debate on the motion: Abolish The Minimum Wage. At a time when President Obama is proposing to increase it, I thought it might be useful to go back to first principles and explore whether the minimum wage is good policy in the first place. The debaters are top-notch, and the program promises to be very lively.

Intelligence Squared debates are usually held in New York City, but this one will be in Washington, DC, at the Burke Theater at the U.S. Navy Memorial, 701 Pennsylvania Avenue, NW. Wednesday, April 3. Reception, 4:30-5:15pm; Debate, 5:30-7:00pm.

More information is available here. Tickets to the live debate can be purchased here. And, on April 10, the podcast will be available here.

Section 3 of the Defense of Marriage Act (DOMA) defines the word “marriage” for purposes of federal law. In a recent post, Randy argues that this provision must be unconstitutional, because otherwise one could be “married” under state law but not under federal law, or vice versa, and “that is crazy.”

With all due respect, this is not crazy. It is, in fact, an utterly commonplace feature of our federalism that the exact same word may mean different things for purposes of state law and federal law. Ed Whelan demonstrates that this is true of the word “marriage” itself, even without DOMA. Orin Kerr points out that it is actually true of Randy’s favorite example, the word “property,” even though property law is generally core state law. And I have pointed out that it is true of the entire Dictionary Act, including the word “county,” see 1 U.S.C. 2, even though one might have thought that defining subdivisions like counties was the single most fundamental state function.

I would just add that this is also true of literally hundreds of other words throughout the U.S. Code. Many, perhaps most, of the words in the U.S. Code also appear in some state statute. It is utterly unsurprising to find that many of these words mean different things in different statute books.

To be sure, Congress can, if it wishes, piggyback on state definitions. But the Court has never suggested that Congress is required to do so. In fact, the presumption traditionally runs the other way. 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.”); cf. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 424 (1819) (“To impose on [Congress] the necessity of resorting to means which it cannot control, which another government may furnish or withhold, would render its course precarious, the result of its measures uncertain, and create a dependence on other governments, which might disappoint its most important designs, and is incompatible with the language of the constitution.”).

In short, no legislature has a monopoly on any particular word in the English language, and no legislature may impose its definition on any other. Congress has the power to define the terms that it uses in its own statutes. A definition is merely a cut-and-paste function. Where you see X, you should read Y. After performing the particular cut and paste, one must analyze the result to see if it runs afoul of any substantive constitutional provision. But the mere fact of a federal definition, for purposes of federal law, does not violate principles of federalism. See Federal Rules of Statutory Interpretation.

Ilya Shapiro is probably right to predict that the “federalism argument” will be rejected by at least eight Justices. But I would go further. Justice Kennedy has strong and sure federalism instincts. When he considers the radical and illogical implications of this particular “federalism argument,” which actually turns federalism on its head, I believe he will not stand alone on this ground.

AMENDMENT: Dale and Ilya Shapiro have pointed out that I overstated Ilya’s prediction. He does not necessarily predict that eight Justices will affirmatively “reject” the federalism argument; after all, some of those eight may not need to reach this argument, and so may say nothing about it. Rather, to be precise, Ilya predicts that eight Justices will not endorse the federalism argument. I predict that the number is nine.

In his most recent post, Randy responds to my critique (here and here) of the DOMA “federalism brief.”

He begins by conceding: “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.” This is absolutely correct.

But if that’s so, I asked: “what is it that makes DOMA different? The fact that it applies to 1100 statutes…?” And Randy answers: “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….”

But this is true of the entire Dictionary Act, all of which was “indiscriminately adopted to apply to” hundreds of federal statutes, enacted under all different heads of federal power. Do the proponents of the “federalism brief” believe (contra, e.g. Bill Eskridge, p.92) that the entire Dictionary Act is unconstitutional? If not, why not?

The remainder of Randy’s post argues that the title of DOMA proves that it was not motivated by the execution of an enumerated power, and that it is thus a “pretext” in the McCulloch sense. See McCulloch v. Maryland (“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.”)

This seems a very slender reed on which to hang the federalism argument. Is the title of the Act really the linchpin of the objection? Is this really the crucial distinction between DOMA and the rest of the Dictionary Act? Does anyone believe that if 1 U.S.C. 3, which defines the word “vessel,” had been entitled “The Defense of Vessels Act,” it would therefore be unconstitutional?

And even if the title of the Act were some sort of smoking gun, the fact is that the Court has more or less repudiated McCulloch’s “pretext” inquiry, in cases like United States v. Darby. See, e.g., Randy E. Barnett, Commandeering the People: Why the Individual Health Insurance Mandate Is Unconstitutional, 5 NYU J.L. & Liberty 581, 591-92 (2010) (acknowledging that, in Darby, the Court “abandoned” the “pretext” inquiry and “discard[ed] this aspect of McCulloch”). I’m not sure that the Court has struck down even a single federal statute on McCulloch “pretext” grounds for at least 75 years. If this is really the heart of the argument, it faces an uphill battle indeed.

Again, I take no position on the ultimate merits of the case; there may be substantive constitutional problems with the specific definition adopted by DOMA. But the mere fact of a federal definition — which differs from some state definitions but applies only to federal law (like the rest of the Dictionary Act) — does not violate principles of federalism.

The Wall Street Journal editorial page — always a steadfast friend of federalism — is nevertheless unconvinced by the “federalism brief” in the Defense of Marriage Act (DOMA) case. The editors write:

[L]iberals and some libertarians argue [that DOMA] is an offense to federalism. We disagree …. In the Constitution’s system of dual federal-state sovereignty, each coequal sovereign has the power to define marriage for its own sphere.

As I have explained, here and here, this is exactly right.

There has been a lot of commentary about the federalism argument against the Defense of Marriage Act (DOMA). Several of my co-conspirators signed on to the “federalism brief” in the DOMA case. I expressed serious doubts about the argument a few weeks ago (as did Sasha, and Ed Whelan over at National Review Online), and Jonathan Adler and Ernie Young responded. In deference to my co-conspirators, I thought I would leave the matter there. But now that George Will and Michael McConnell have taken to the editorial pages in support of the federalism argument (as Dale and Jonathan note), I feel obliged to explain in greater detail why I think this argument is unsound.

Once again, 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.” The key point here is that this provision defines the word “marriage” only for purposes of federal law.

Indeed, Ernie Young, primary author of the federalism brief, concedes that “Congress can, of course, define terms where this is ‘necessary and proper’ for ‘carrying into execution’ its enumerated powers.” But he insists that DOMA’s definition of “marriage” is not necessary and proper. I confess that I do not understand this argument.

Imagine Congress has enacted only two statutes total. The first is an exercise of the Commerce Clause power. It provides: “It shall not be lawful to tie up or anchor vessels or other craft in navigable channels in such a manner as to prevent or obstruct the passage of other vessels or craft.” 33 U.S.C. 409. The second is an exercise of the power to “make rules for the government and regulation of the land and naval forces.” It provides: “The Secretary of the Navy shall designate boards of naval officers to examine naval vessels.” 10 U.S.C. 7304(a).

I don’t think anyone doubts that Congress could add a definition of the word “vessel” to statute one, or statute two, or both. Surely, therefore, Congress can instead enact a general definitional provision, defining the word “vessel” once for purposes of both statutes. In fact, Congress has done exactly that, at 1 U.S.C. 3 (just a few sections before DOMA), and the Court has never suggested that it is unconstitutional. I imagine that all the signatories of the “federalism brief” are with me so far. They have not, thus far, expressly argued that the entire Dictionary Act is unconstitutional.

So what is it that makes DOMA different? The fact that it applies to 1100 statutes, rather than just two? The Dictionary Act, which defines “vessel” at 1 U.S.C. 3, also applies to many, many federal statutes. The fact that the many federal statutes that use the word “marriage” were originally enacted under assorted, different heads of congressional power? That’s just as true of “vessel.” (Compare 33 U.S.C. 409 with 10 U.S.C. 7304(a), two paragraphs above.) The fact that states have also chosen to use the word “marriage” in many of their statutes? “Vessel” appears in lots of state statutes too. The fact that some states have chosen to define “marriage” differently, for purposes of state law, than Congress has for purposes of federal law? Again: this is also true of “vessel.” (And even if it weren’t true of “vessel” today, could it possibly matter if California tomorrow defined “vessel,” for purposes of state law, to include sports cars? Would California thus somehow render the federal Dictionary Act unconstitutional?) The fact that state changes in the traditional definition of “marriage” are recent, and post-date DOMA? Surely, if anything, that fact cuts the other way. Cf. U.S. v. Raich, 549 U.S. at 29 n.38 (“California’s decision (made 34 years after the Controlled Substances Act] was enacted) to [legalize medical marijuana] cannot retroactively divest Congress of its authority under the Commerce Clause.”); The Subjects of the Constitution, 62 Stan. L. Rev. 1209, 1279, 1283-84 (2010).

The fact that marriage is special, and of particular state concern? Well, ok. But that is only to say that the word “marriage,” as used in state law, connotes a special relationship. It hardly follows that Congress is either required or forbidden to use the same word, or to have it denote the same idea. Congress could forbid selling a kilo of “marriage” in interstate commerce and then define “marriage,” for purposes of this statute, to mean cocaine; this would be an odd use of language, but it would hardly exceed Congress’s Commerce Clause power or violate the Tenth Amendment.

Indeed, to this point, consider another provision of the Dictionary Act, 1 U.S.C. 2, defining the word “county” for purposes of federal law. One might have thought that defining its own subdivisions, like counties, was perhaps the single most fundamental reserved power of a state – more fundamental even than domestic relations. Cf. Coyle v. Smith (state has power to choose its capital city). Yet no one has ever suggested that Congress cannot define the word “county” for purposes of federal law.

In short, no legislature has a monopoly on any particular word in the English language, and no legislature may impose its definition on any other. 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.

One final note: Jonathan Adler reminds us that “federalism should be respected even when it cuts against conservative preferences,” and Randy makes the same point. About this, I emphatically agree. But the implication, it seems, is that Sasha and Ed Whelan and I are, perhaps, fair-weather federalists, abandoning our principles because they do not suit our preferred policy result in the DOMA case. For the record, I yield to no one in my steadfast defense of federalism. Moreover, I have no particular fondness for DOMA, and I have taken no position on the ultimate merits of the case. I have critiqued “the federalism brief” only because, with all due respect, I’m afraid that it is unsound.

For a more thorough and scholarly treatment of this topic, see Federal Rules of Statutory Interpretation, 115 Harv. L. Rev. 2085, 2102-25 (2002).

If you’re interested in drones, you might also enjoy Trevor Paglen’s photographs of them. Paglen is a fascinating artist who has a particular interest in photographing secret things — drones, military installations, spy satellites. Here is Paglen’s webpage, and here is a recent New Yorker profile of him. If the Conspiracy had an official artist, I would nominate Paglen.

I just caught the last few minutes of The Bourne Ultimatum. At the end (spoiler alert), Bourne successfully exposes everything, and we catch a glimpse of MSNBC, reporting on a secret CIA assassination program “which in several cases may have even targeted U.S. citizens.”

In the movie, it appears that MSNBC believes this to be some sort of scandal.

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!