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.

Earlier this week I took Steve Benen to task for suggesting that state governments could not refuse to enforce federal laws.  Benen had suggested that such decisions were tantamount to nullification. (A claim he has walked back, to his credit.)  While Benen’s outrage was a bit misplaced in the post I critiqued, it’s not as if his concerns about nullification are unwarranted.  Some state legislators are engaged in efforts to nullify federal law.

Perhaps the latest example is this bill, which recently passed the Missouri legislature.  After reciting the importance of the Second Amendment and declaring that state officials cannot enforce federal gun laws, it goes on to make it a misdemeanor for a federal official to enforce federal law within the state.  This is an attempt at nullification, and it’s completely unconstitutional.  States may retain the right to refuse to assist the federal government, but states do not have the right to obstruct (let alone criminalize) federal enforcement efforts (nor do they have the power to authorize civil causes of action against federal officials who are enforcing federal law, as this bill does).

The most that could be said in the bill’s defense is that it only purports to nullify those federal statutes that violate the Second Amendment (though it does list some specific laws and potential restrictions as presumptively violative of the Second Amendment).  So, if federal courts uphold federal gun laws as consistent with the Second Amendment, then this statute would not constrain federal enforcement of such laws (provided that Missouri courts don’t interpret the Missouri Constitution to offer greater protection to gun rights within the state).  Barring this sort of  interpretation, the law would still have no effect, as the criminal provisions of the law would be wholly unenforceable, even in state courts (which are required to respect and give effect to federal law under the Supremacy Clause).  So even under the most charitable interpretation, that law is only symbolic.  But if all state legislators want to do is express their objection to federal law with symbolic legislation, then they should just pass symbolic resolutions, and dispense with efforts to criminalize or other sanction federal officials’ enforcement of federal law.  I’m all for state legislators expressing their disapproval of federal policy, but empty nullification threats are not a productive way to express such views.

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.

On Monday, the Texas House of Representatives passed a bill that would bar state officials from enforcing any new federal gun laws.  Via Kevin Drum, I see that the MaddowBlog’s Steve Benen calls the bill “crazy.”

In this case, Texas’ nullification bill effectively hopes to freeze the status quo of federal gun laws in place indefinitely. The state is prepared to honor federal laws as they currently exist, but if policymakers in Washington expanded current laws in any way, Texas would ignore those changes — based on the “because I say so” theory of modern jurisprudence.

It wouldn’t matter if new federal laws are entirely constitutional; it wouldn’t matter if the new laws saved lives; it wouldn’t matter if the new news enjoyed broad, bipartisan support. Under the proposal pending in Texas, current laws have reached a ceiling, and any effort to raise that ceiling must be ignored.

This is, of course, crazy. Whether Texas likes it or not, states can’t pick and choose which federal laws they’ll honor and which they’ll ignore.

I can’t say at this point whether the pending bill has a chance of passing, though it seems like the sort of thing Gov. Rick Perry (R) would like to sign. But I can say the bill, if it becomes state law, would not withstand a legal challenge.

I’ve got some news for Mr. Benen.  States, in fact, can “pick and choose which federal laws” state officials will enforce, and state refusals to enforce federal law would most definitely “withstand a legal challenge.”  In fact, they already have.  See, e.g. Printz v. United States in which the Supreme Court held that state officials could refuse to implement a federal background check requirement for the purchase of new firearms.  Under Printz and New York v. United States it is well established that the federal government cannot force state officials to implement federal laws.

Whether or not this specific bill is a good idea, this is not a “nullification” bill.  It would not prevent federal officials from enforcing federal law within the state of Texas.  As described by Benen’s source, it is simply a bill that says state officials will not enforce certain federal laws — and that is something states have every right to do.

UPDATE: Here’s a link to the bill text. A few portions of the bill seem ambiguous to me, but I don’t see anything in the bill that would to prevent federal officials from enforcing federal law — and any state law that purported to prevent federal officials from enforcing a constitutional federal law would be preempted under the Supremacy Clause.

SECOND-UPDATE: Benen has a follow-up post in which he acknowledges the point and (with the help of David Gans) summarizes what states can and cannot do when they disagree with federal law.  I think Gans is largely correct, and it’s unquestionably true that some state legislators are overreaching.  I’d add two points.  First, the idea nullification did not begin with Calhoun.  We should not forget about the Virginia and Kentucky Resolutions.

Second, I don’t know what Gans is thinking when he says “Even though Printz leaves state and local governments some discretion, there is a strong argument that the Supremacy Clause forbids a state from singling out a class of federal laws it disagrees with and refusing to enforce them.”  Of course states can do this.  So, for instance, the state of Montana can agree to enforce all federal laws save that requiring local law enforcement to conduct background checks for gun purchasers, or whatever else.  If the feds want to limit the ability of states to pick and choose which federal laws to enforce, they have options — such as conditioning the receipt of federal funds on state cooperation.  State judges also have little choice but to apply applicable federal laws in relevant cases — as when federal law provides a defense in litigation.  But I am aware of no precedent that would suggest states don’t have the ability to “single out” those federal laws they refuse to enforce.

The Health Care Case: The Supreme Court’s Decision and its Implications - A new book on last year’s controversial Supreme Court decision on Obamacare is now available for pre-order at Amazon. The book is edited by Columbia law professors Nathaniel Persily, Gillian Metzger, and Trevor Morrison, and published by Oxford University Press. It contains essays on numerous aspects of the health care decision by a wide range of scholars, including VC-ers Jonathan Adler, Randy Barnett, and myself. There is also a large number of contributions by leading scholars on the other side of the issue, including Jack Balkin, Jamal Greene, Andrew Koppelman, Gillian Metzger, and Neil Siegel, among others. The Oxford University Press website has a complete table of contents here.

My own contribution to the volume addresses the Court’s analysis of the Necessary and Proper Clause, and explains why the individual health insurance mandate was not “proper” even if it could be considered “necessary.” An earlier version of that essay is available on SSRN here.

A common trope of many Second Amendment advocates is to urge more vigorous enforcement of existing federal gun control laws, as the alternative to enacting additional laws. Rhetorically, that’s very effective. But as a policy matter, it is not always a good idea. Consider legislation recently considered by the Senate:

The Manchin-Toomey amendment was supported by the Citizens Committee for the Right to Keep and Bear Arms (CCRKBA), although the group later dropped its support for reasons unrelated to the issues raised in this post. Section 102(3) of Manchin-Toomey was the finding that “Congress believes the Department of Justice should prosecute violations of background check requirements to the maximum extent of the law.”

The alternative to Manchin-Toomey was the Grassley-Cruz substitute, which was supported by the National Rifle Association. Grassley-Cruz had a much more detailed program, with supporting funding, to increase federal prosecutions for violations of 18 U.S. Code 922 (the section which defines most of the prohibited acts by persons who are not licensed firearms dealers) and section 924 (the penalties section, with penalties for the various offenses by licensed dealers and by other persons, as well as definitions of some additional crimes). The beefed-up enforcement is in pages 15-26 of Grassley-Cruz.

Both Manchin-Toomey and Grassley-Cruz included a variety of other changes in federal gun laws, and some of them were very constructive. But as for the prosecution provisions, I think they were dubious.

To begin with, much of what is in section 922 is possessory offenses, occurring entirely within a single state. Supposedly, these provisions are enacted under Congress’s power “to regulate Commerce...among the several States.” I realize that Supreme Court since 1937 has usually been reluctant to rule that a federal criminal statute is outside the interstate commerce power. However, that judicial deference to congressional statutes is premised on the notion that Congress itself has carefully considered the constitutionality of a statute. Chief Justice Marshall’s opinion in McCulloch v. Maryland expressly discussed this point (regarding the Necessary and Proper Clause). President Andrew Jackson’s subsequent veto of the re-charter of the Second Bank of the United States cited the McCulloch opinion to make his point that the political branches must exercise their own constitutional judgment; that a deferential court has not stricken a particular type of law does not excuse Congress and the President from the task of making their own judgments about whether a particular bill is constitutional.

During the latter 20th century, the Supreme Court was fairly reticent about the meaning of the Second Amendment, but many legislators and citizen activists opposed particular anti-gun bills because they believed that such bills violated the Second Amendment. Even when there was no realistic prospect that the Supreme Court would strike down a federal law on Second Amendment grounds (e.g., in 1975), it was legitimate for legislators and citizens to oppose a bill because of Second Amendment scruples.

Accordingly, it is equally legitimate to oppose a bill today because of Commerce Clause scruples. I believe that Justice Thomas’s concurrence in Printz v. United States raised a useful question. While he joined the majority opinion (Congress cannot order local law enforcement to carry out federal background checks), he also wondered if Congress’s power over interstate commerce really permitted Congress to prescribe how a firearms retailer in one state would sell an item to a consumer in that same state. A fortiori, there are even more serious questions about federal laws regarding the mere possession of firearms intrastate, or setting conditions for firearms transactions among two people in a single state, neither of whom is engaged in interstate commerce. (The Federal Firearms Licensee is, at least, someone who is actively engaged in commerce, and who frequently receives firearms in interstate commerce, even though his subsequent sales may be only intrastate.)

Many of the provisions of sections 922 and 924 which apply to purely intrastate and non-commercial activity might well be legitimate subjects of state legislation. For example, every state has laws against gun possession by convicted felons.

But not everything in 922 would be a good idea for any level of government, and a blanket increase in enforcement of all of 922 would harm innocent people. For example, 18 U.S.C. 922(x) bans handgun possession by persons under 18. There are certain exceptions to the prohibition, but they require “the prior written approval of the juvenile’s parent or legal guardian.” Now in the United States, do you think that when 17-year-olds on a ranch take a handgun with them in the pick-up truck to go check on the cattle at night, that their parents have given them “prior written approval”?

Lack-of-written-permission prosecutions under 922(x) are close to nil, and they ought to stay that way. Demanding more 922 prosecutions could have the unintended effect of giving U.S. Attorneys and BATFE (Bureau of Alcohol, Tobacco, Firearms and Explosives) agents an incentive to boost their numbers by bringing such cases.

Or let’s consider the call for greater prosecutions of people who fail the National Instant Criminal Background Check System (NICS), when they try to buy a gun in a store. The vast majority of such situations do not result in a prosecution. Is it possible that some more of them should? Yes, to the extent that some of these people are genuinely dangerous. However, I suggest that the reason that many people submit to a background check in the first place–sometimes waiting hours or days for the FBI or its state counterpart to conduct the “instant” check, is that they have no idea that they are a prohibited person.

For example, in 1979, a young man gets in a loud argument and shoving-match with his live-in girlfriend. The neighbors in the apartment next door are annoyed by the clamor, and they call the police. The young man spends a night in jail, pleads guilty to disturbing the peace, and pays a $100 fine. He may have actually been innocent, since the girlfriend shoved first. But the cost of hiring a lawyer to take the case to trial was more than he could afford. Thereafter, he stays out of trouble. He buys a gun in 1985. In 1994, when his state (let’s say it’s Virginia) now has a functioning instant check system, he buys another gun, and is duly approved. In 1996, Congress changes the law to prohibit gun possession by domestic violence misdemeanants, and make the prohibition retroactive to misdemeanors from before 1996. 18 U.S. Code 922(g)(9).

By 2013, BATFE has scoured state records of misdemeanor convictions, and decided which cases it will classify as “domestic violence.” So now the man is on the FBI’s prohibited persons list. When he tries to buy a gun in 2013, he is rejected. You can argue the pros and cons of whether he ought to be prohibited, but to me, it seems very unfair for him to be prosecuted for a federal felony.

There are many, many other examples of people who can be prohibited persons without realizing it. The Iraq War veteran who received some mental health benefits, and then the Veterans Administrations gave his name (and the names of thousands of other similar veterans) to the FBI. The woman who is a lawful user of medical marijuana pursuant to her state law, and did not know that the federal government had obtained the state list of persons with medical marijuana cards.

For above examples, it is really not a problem that no federal prosecution results when they fail the NICS check.

To the extent that federal incentives is meant to drive up the numbers for prosecutions of 922 in general, some of these people would be prosecuted even if they were not attempting to buy a gun. Perhaps one of them is driving home from a day at the target range, and a police officer pulls them over for a traffic violation, and sees the unloaded rifle in the rack of the pick-up truck. The officer runs the person’s name through the databases, and then apprehends a prohibited person in possession of a gun. A very easy federal felony prosecution, and the kind that would happen more often when federal incentives are trying to boost the number of cooperative state-federal prosecutions under 922.

I agree with the federal circuit cases that have held that illegal aliens do not have a Second Amendment right to possess firearms. But the fact that a law is constitutionally legitimate does not mean that maximizing prosecutions is always a good idea. For example, in United States v. Huitron-Guizar (10th Cir., 2012), the defendant had been brought to the United States when he was three years old. His sister was an American citizen, but he was not.  When he was 24 years old, he was discovered to have in his home a rifle, a shotgun, and a handgun. He was sentenced to 18 months in federal prison.

Grassley-Cruz put its greatest efforts into increasing prosecutions for convicted felons and fugitives. These are categories for which firearms prohibition, as a general matter, is plainly allowed under District of Columbia v. Heller. However, there’s a difference between prosecuting the guy who was released from prison for armed robbery four months ago, and is found to be illegally carrying a handgun outside a liquor store — and the guy who was convicted of tax evasion or marijuana possession three decades ago, and whose home is found to contain the unloaded hunting rifle he inherited from his father one decade ago.

The National Rifle Association  and CCRKBA have quite persuasively documented the tendency of BATFE to, at least some of the time, try to boost its numbers by concentrating enforcement efforts on easy-to-prosecute technical violations, rather than on situations where there is a real danger to public safety. Enacting new laws demanding “maximal” enforcement of NICS, or trying to increase the prosecutions for 18 U.S.C 922 & 924 across the board, would be a poor use of criminal justice resources, and would inflict very excessive penalties on many people who are harmless. If proponents of increased federal prosecution can document a large number of cases which really should be prosecuted, and which are not being prosecuted, the best solution would be a new President who would appoint a BATFE Director and U.S. Attorneys who would bring the cases which really help public safety–and who would also know that not every violation of every iota of sections 922 and 924 is worth making a federal case.

This coming week, on Thursday and Friday, I will be doing three different two talks in New York City, two at NYU Law School, and one at Columbia Law School.

On Thursday, April 11, from 12:10 to about 1:10, Columbia law Professor Theodore Shaw and I will be debating affirmative action and the Supreme Court’s upcoming decision in Fisher v. University of Texas. The event is sponsored by the Columbia Federalist Society, and will be held in Room 103 of Jerome Greene Hall, 435 W. 116th St.

Later on Thursday, from 4 to 5:30 PM, I will be speaking at NYU about my forthcoming book Democracy and Political Ignorance (Stanford University Press), focusing specifically on the parts of the book that outline how the problem of rational political ignorance can be mitigated by decentralizing political power. This event is sponsored by the NYU chapter of the Federalist Society, and will be in Vanderbilt Hall, Room 216, at 40 Washington Square North.

Finally, on Friday, April 12, at 1 PM, I will again be speaking at NYU at a symposium commemorating the 100th anniversary of the 17th Amendment, entitled “Democracy Unfiltered: Discussing 100 Years of Direct Elections and Modern Issues Affecting the Law of Democracy.” Also on this panel will be Rick Pildes (NYU), Wendy Schiller (Brown), and Bruce Cain (Stanford). The event is sponsored by the NYU Journal of Legislation and Public Policy, and will be held in Vanderbilt Hall, at 40 Washington Square North.

More and more states are stepping back from waging war against marijuana, legalizing medicinal use and minor possession, and popular support for decriminalization appears to be growing.  Thus far, the federal government has sought to stamp out such efforts.  Writing in the Washington Post, Jonathan Rauch suggests Washington should tak a different tack.

Squashing the states, however, is easier said than done. All but a small fraction of the people who enforce the marijuana laws work for state and local governments and answer to state law. Although states cannot break federal law, neither must they step in and enforce it. Federal prosecutors probably could shut down regulated marijuana distributors in Colorado and Washington with relative ease by sending threatening letters to landlords and bankers. But that would leave those states, and others that follow, with the option of legalizing marijuana without regulating it, because unconditional legalization under state law is indisputably within the states’ power. The effect of removing states’ troops from the battlefield would be to strand the federal government with marijuana laws it could not enforce.

The chaos that might result would be counterproductive even (or especially) for drug hawks. Instead of shutting down the states’ experiments, then, the federal government might better serve the policy goals of the Controlled Substances Act by working with Colorado and Washington to concentrate federal and state enforcement on high federal priorities, such as preventing legalized marijuana from spilling across state borders.

Rauch also notes that state-level marijuana policy experimentation could be quite revealing, much as it has been in the case of same-sex marriage.

 localizing the dispute gave people across the country time to work out what they think and to adjust policies as public opinion changed. Had the country locked in a federal constitutional amendment banning gay marriage in the mid-2000s, policy and public opinion would today be drifting inexorably into conflict.

State leadership on marijuana policy has all of the same advantages as on marriage. It contains conflict by reducing the stakes; educes knowledge about what happens if marijuana policy is changed; and allows incremental adjustment to social change. For the federal government, yielding some measure of control over marijuana policy to the states is not a threat; it is an opportunity to manage change and preserve options. Painting federal policy into a corner serves no one, not even drug warriors

Issues like gay marriage and marijuana decriminalization are really something of a litmus tests for the conservative commitment to federalism.  Those conservatives quick to embrace federal authority in each area reveal themselves to be fair-weather federalists, as they advocate decentralization only when it serves their immediate policy objectives.

In a recent New York Times column, prominent Supreme Court commentator Linda Greenhouse grossly misrepresents the federalism argument against the Defense of Marriage Act put forward in an amicus brief co-signed by several federalism scholars, including co-bloggers Randy Barnett, Jonathan Adler, Dale Carpenter, and myself. She claims that it is a “Trojan horse” for an effort to block same-sex marriage, and that it is somehow inconsistent with various Supreme Court decisions striking down state laws that violate individual constitutional rights protected by the Fourteenth Amendment:

Beware of conservatives bearing gifts.

Ever since last week’s frustrating Supreme Court argument in the Defense of Marriage Act case, I’ve been wondering whether the attack on DOMA will turn out to be a constitutional Trojan horse. It may bring victory: the demise of a spiteful federal statute, enacted by an opportunistic Congress and signed into law 17 years ago by a cowardly Bill Clinton. But at what price?..

[S]triking down DOMA on federalism grounds is a truly bad idea, and the campaign for marriage equality would be worse off for it. To explain the argument is to reveal its dangers. A ruling that left the states to their own devices when it comes to marriage would take the equal protection guarantee out of the picture...

It would, of course, provide the full benefits of marriage to those living in states that chose to recognize same-sex marriage. But it would snatch away the promise for those living elsewhere, particularly if the decision was based not only on the asserted absence of federal authority but on exaggerated notions of state sovereignty anchored in the Tea Party’s favorite constitutional amendment, the 10th....

Just such a vigorous constitutionally based states’-rights argument was put forward in a brief filed in the case last month by a half-dozen law professors under the title, “Brief of Federalism Scholars.” One of the group, Prof. Randy Barnett of the Georgetown University Law Center, is justly regarded as the intellectual father of the Commerce Clause attack on the Affordable Care Act. “DOMA falls outside Congress’s powers” because “marriage is not commercial activity,” the brief declares. It argues further that by limiting federal recognition to marriages between men and women, the law “undermines the states’ sovereign authority to define, regulate and support family relationships.”

There is much that’s questionable about this assertion of implicitly boundless state authority over family affairs. A famous pair of Supreme Court decisions from the 1920s armed parents with rights under the Due Process Clause to educate their children as they see fit, in resistance to state laws. Pierce v. Society of Sisters gave parents the right to choose private or religious schools despite an Oregon law that required public school education for all. Meyer v. Nebraska struck down a state law that barred the teaching of modern foreign language (the law’s post-World War I target was German.)...

And of course the most famous federal intervention of all was Loving v. Virginia, the 1967 decision (shockingly recent) that overturned the laws of Virginia and 15 other states prohibiting marriage between people of different races.

Greenhouse’s argument is based on a fundamental error: she conflates structural limits on Congress’ authority outlined in Article I of the Constitution with individual rights constraints on the states. In reality, it is perfectly possible for a particular law to be both beyond the scope of Congress’ authority if enacted by the federal government and a violation of constitutional individual rights if adopted by a state. Our federalism brief merely claims that Congress lacks the constitutional authority to enact DOMA because the law exceeds the scope of Congress’ enumerated powers. That conclusion is perfectly consistent with the view that state laws banning gay marriage violate individual rights protected by the Fourteenth Amendment. Indeed, I myself have argued that the Court should strike down California’s Proposition 8 because it is unconstitutional sex discrimination. Similarly, we would argue that a federal law banning interracial marriage is also outside the scope of congressional power under Article I, while simultaneously endorsing the holding of Loving v. Virginia that state laws barring such marriages violate the Equal Protection Clause of the Fourteenth Amendment. The states’ sovereign authority over marriage – like all state sovereign authority – is constrained by constitutional individual rights. Nothing in our brief is inconsistent with that basic principle.

Greenhouse’s piece also contains several other errors. For example, our argument in the federalism scholars brief does not rely on the Tenth Amendment, and most of us are not “conservatives.” At least three of the six signers (Randy, Jonathan, and myself) are libertarians. Perhaps most important, the majority of us are actually gay marriage supporters, and therefore it is unlikely that we are somehow trying to “prop up” the anti-gay marriage “status quo,” as Greenhouse suggests. Dale Carpenter is one of the leading academic advocates of gay marriage, and has been involved in that cause and other gay rights issues for many years. Few people are less likely defenders of the “status quo” on these matters than Dale.

Unfortunately, this is not the first time that Greenhouse has misrepresented the views of her opponents on constitutional federalism issues, including myself. There is plenty of room for legitimate disagreement about both our federalism argument and other important issues at stake in the gay marriage cases. But the debate is not advanced by crude misrepresentation of our adversaries’ views.

UPDATE: I have fixed what was previously a broken link to Greenhouse’s column. My thanks to readers for pointing out this problem.

In his last post on the subject, Nick Rosenkranz concludes that “the mere fact of a federal definition, for purposes of federal law, does not violate principles of federalism.” On this we are entirely agreed. And if all Congress sought to do with Section 3 of DOMA was to define the semantic meaning of a word, there would be no problem. But that’s not all Congress sought to do. Further this is not a case in which we (or anyone else) is asking the Court to pour through legislative history to divine Congressional intent, as the true purpose of DOMA has never been contested.

The ultimate question in the DOMA litigation is whether Congress has a legitimate federal interest in having a particular definition of marriage that supports the traditional form, and whether this interest is sufficient to justify the differential treatment (and disregard of marriages recognized under state law) that DOMA produces. One might have a definition so that we can know what the words mean in federal statutes, and yet still not be able to defend them with the same interests that a state might assert (as I explained here). In order to strike down DOMA, the Court need not conclude that federal law must forever and always accept state law definitions. All it needs to do is recognize that defining marriage is a traditional function of the states, not the federal government, and, as a consequence, there is no federal interest sufficient to justify DOMA.

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.

Whatever the merits of the federalism concerns I and others have raised about the Defense of Marriage Act (DOMA), the issue is garnering a fair amount of attention.  Here’s a brief round-up of some recent commentary:

• Mike Dorf, “The Federalism Argument that Should Have Been Made Against DOMA” - arguing that DOMA’s opponents missed an opportunity at oral argument to appeal to Justice Kennedy with an embrace of federalism concerns;
• Jeffrey Rosen, “Flip-Flopping Federalists” - suggesting a tension between the usual conservative impulse to limit federal power and support for DOMA;
• John Eastman, “The Faux Federalism Argument Against DOMA” – as suggested by the title, an argument that DOMA presents no real federalism concerns (which is interesting coming from someone who has argued the federal government has no power to spend money beyond the scope of its enumerated powers);
• Geoff Stone, “The Same-Sex Marriage Cases: Snatching Victory . . .” – the federalism argument “makes no sense”
• Erwin Chemerinsky, “What Might Happen?” – the federalism argument, if adopted, would produce a “radical change” in constitutional law;
• Peter Lawler, “Same-Sex Marriage, Federalism, and Judicial Restraint” – noting the DOMA litigation rasises issues of both “judicial activism” and “congressional activism.”
• Ilya Shapiro, “If Supreme Court Has Jurisdiction, DOMA Likely Falls, With a Controlling Federalism Opinion from Kennedy Alone” – a rosy prediction.

Guest blogger John McGinnis’ new book Accelerating Democracy is an outstanding analysis of the ways in which modern technology and social science can improve the quality of decision-making in government and society. It is probably the most important book on that subject in a long time.

Much of John’s thesis is compelling. He is right that modern social science enables us to evaluate the effects of public policy far more accurately than in the past, and that modern technology makes it easier to disseminate the resulting knowledge. I also agree with John’s argument that the technological and social scientific revolutions strengthen the case for political decentralization, enabling lower-level governments to experiment with new types of policies. We can now evaluate such experiments much better than in the past, which increases their value to society. John is especially persuasive in arguing that we should legalize prediction markets, which are an extremely valuable source of information, even if imperfect.

I do, however, have two reservations about John’s conclusions: Because of the problem of rational political ignorance, voters may fail to exploit much of the new information available to them. We will be able to make better use of new data if we make more of our decisions by “voting with our feet” than by voting at the ballot box. And in many cases, such foot voting is best facilitated by limiting state and local government power, as well as that of Washington.

I. How Political Ignorance Reduces the Benefits of New Information.

As John effectively demonstrates, recent technological advances both give us new policy-relevant information and make it easier for the public to access it. The problem is that voters have little incentive to actually learn and make use of the new data. Because any one vote has only an infinitesmal chance of influencing the outcome of an election, most voters have little incentive to learn political information. They are “rationally ignorant”. As a result, the majority of the public is often ignorant of very basic political information that has long been readily available through the media and the internet. For example, when the GOP nominated Paul Ryan for vice president last year, oonly 32% of the public knew that he was a member of the House of Representatives, even though he had been a major figure politics for several years. Most are also ignorant about the distribution of spending in the federal budget, the issue Ryan was most associated with, and one that has been a major point of contention over the last few years in light of our severe fiscal crisis.

As I discuss in my own forthcoming book Democracy and Political Ignorance (Stanford University Press, to be published this fall), political knowledge levels have remained low and risen little if at all over the last fifty years, despite massive increases in education and the rise of electronic media and the internet. The problem is not lack of information, but voters’ lack of motivation to learn it. So far, there is no indication that new technological breakthroughs will change that. Huge amounts of new information are of only limited value to an electorate that often ignores basic facts that are already widely available.

Rationally ignorant voters also have little incentive to objectively evaluate the political information they do learn. Instead, they tend to evaluate it in a highly biased way, discounting anything that cuts against their preexisting views. Because the consequences of error for any individual voter are low, few try hard to objectively evaluate about new information they learn about public policy.

The combined impact of rational ignorance and bias greatly reduce the potential benefits of new information for improving the performance of democratic government. Obviously, public opinion is not the only influence on government policy in a democracy. But it does have a substantial impact, one that is affected by ignorance. John notes the problem of political ignorance in his book. But I don’t think he shows that new technology can overcome it. At the very least, there is reason for skepticism on this point, given our experience with the last fifty years of technological innovation.

Fortunately, however, we can make more effective use our new knowledge in another way. When we “vote with our feet” by choosing between jurisdictions in a federal system, or between products in the market, we have much stronger incentives to learn relevant information and evaluate it rationally. If you are like most people, you probably spent a lot more time and effort seeking out information the last time you bought a car or a TV than the last time you decided who to support for the presidency. That’s not because the presidency is less complicated than or less important than your TV. It’s because when you buy a TV, you know that your decision will make a real difference to the outcome, whereas with the presidency that is highly improbable. The same goes for deciding what city or state you are going to live in.

II. Taking Decentralization All the Way Down.

The informational advantages of foot voting over ballot box voting reinforce John’s argument for political decentralization, limiting the power of the federal government in order to allow more issues to be decided at the state and local levels. The more issues are decentralized, the more decisions can be made by voting with our feet. Sometimes, however, we can empower foot voters even more by limiting state and local governments in order to empower the private sector.

Foot voting in the private sector has significant advantages over choosing between governments. Among the most important is lower moving costs. Moving from one city to another or one state to another is much more costly than moving to a new private planned community or switching to a new service provider in the market. The latter can often be done without moving at all. Reducing moving costs is especially important when it comes to making decisions about immobile assets, such as property rights in land. In such situations, the case for limiting state authority in order to empower the private sector is at its strongest. And enforcing such limits may require the federal intervention, including by federal courts.

Transferring decisions to private hands also often facilitates exploitation of new information. Private sector actors such as property owners often know far more about their preferences and the possible uses of their assets than the government does, a point I discuss in more detail in this article. And because there are many more private organizations than governments, they are in a position to try out a much wider range of the kinds of experiments that John rightly advocates. As John Stuart Mill pointed out back in the 19th century, creative private organizations are often the ones who develop the most innovative “experiments in living.” But such experiments are more likely to flourish if not preempted by government regulations that mandate uniformity.

The informational advantages of political decentralization and privatization are far from the only issues we need to consider in deciding how large and centralized government should be. Some problems are too large-scale to be handled by any private actor or subnational government. Global warming is an important example. But information issues do tilt the scales in favor of greater decentralization and tighter limits on government power than we might support otherwise.

In order to take full advantage of the information revolution described in John’s excellent book, government needs to be smaller and more decentralized.

Overnight, it seems, federalism has become a major ground on which the Defense of Marriage Act is being contested.  This is surprising because, as we saw Wednesday in the arguments of Roberta Kaplan and the Solicitor General, there were no real advocates for federalism as an issue during the oral argument in United States v. Windsor.  No advocates, that is, except for five of the nine people sitting behind the bench.

But what exactly is the federalism objection to DOMA?  Despite some misapprehension to the contrary, it doesn’t rest principally on Tenth Amendment case law establishing an ”anti-commandeering” principle.  And it’s not that marriage is a subject over which the federal government must always, forever, and for every purpose be obedient to individual states’ whims. That would present what we might call a reverse anti-commandeering problem.

Instead, the federalism concern with DOMA breaks down into at least three different but related types of problems.

(1) The federal-power problem. DOMA is an exercise of federal power. So the first question is, where does the federal government get the power to enact a comprehensive definition of marriage? George Will thinks DOMA is a “usurpation of state power.”  James Taranto at the Wall Street Journal agrees.  Michael McConnell, perhaps the leading conservative judicial scholar of his generation, put it this way in an op-ed in the Wall Street Journal:

The leading argument against DOMA all along has been that the federal government lacks authority under the Constitution to create and enforce a definition of marriage different from that of the state in which a couple resides. It is hard to think of an issue more clearly reserved to state law under constitutional tradition than the definition of marriage.

The federalism amicus brief in Windsor argues this point in some detail. It’s not a novel concept in the Court’s federalism cases. It’s also uncontroversial, at least among those who believe there are meaningful limits on federal power, and even among some who don’t think those limits are entirely judicially enforceable, like Justice Breyer.

Some commentators have tried to avoid the implications of this tradition by arguing that DOMA simply facilitates the exercise of Congress’s underlying power to, say, administer and implement federal taxation, an enumerated power. In doing so, they argue, Congress must be able to define the terms it uses.

But just as it’s axiomatic that Congress may generally define the words it uses, it’s also axiomatic that Congress may not violate the Constitution in the guise of defining terms. Definitions that control the administration of a program are subject to constitutional constraints, just as the underlying program is. Consider Adarand Constructors v. Pena, involving a law that gave federal contractors a financial incentive to hire subcontractors owned by “socially and economically disadvantaged people,” but defined this group presumptively to include certain racial minorities. The definition did not fool the Court, which held that the financial incentive was based on race and thus was suspect. If the federal government uses the Dictionary Act or any other definitional provision in a way that violates the Bill of Rights, it’s just as unconstitutional as if the definition were embodied in the heart of the operative statutory text. So it is with definitions that effectively expand federal power beyond those enumerated or necessarily and properly implied in Article I.  Congress may just as effectively erode the nation’s historic commitment to state primacy in the field of family relations through the ruse of a definition as it may by explicitly preempting state control over these matters.

So we get back to the basic question: is an an all-encompassing federal definition of marriage within Congress’s explicit or implied powers?  The federalism amicus brief argues at length why it’s not.  As Justice Kennedy noted, marriage touches almost every area of the law and every aspect of family life. It’s facile to say that DOMA can be logic-chopped into 1100+ individual definitions, ignoring that the combined effect is to complicate, burden, and discourage state policy choices and experimentation on a matter of traditional state concern that pervades the daily lives of ordinary people.

(2) The legitimate-federal-interests problem. Under equal protection principles, every law must serve at least some legitimate government interest. Some interests, like animus against a class of persons, are impermissible no matter how rationally related the means are to accomplishing the objective.  Bare moral disapproval also doesn’t legitimate discrimination preferred by a legislative majority.  Racial supremacy is an impermissible objective. Enforcing traditional gender roles is an impermissible objective.  The enumerated-powers doctrine and the underlying federalist structure similarly take some asserted federal interests off the table in an equal protection analysis. The federal government is barred from invoking interests that lie beyond its powers to pursue. Pursuing them is illegitimate in an equal protection case, just as racist or sexist interests would be.

What interests might the federal government claim for DOMA?  It’s not a puzzle.  Literate people know because Congress told us what its interests were and even now its defenders assert broad federal objectives.  First and foremost, beyond an unadorned moral disapproval of homosexuals, Congress wanted to “defend marriage” against state policy innovations it disliked. It wanted to put its heavy thumb — including its considerable regulatory authority and mighty financial weight — on the side of defining marriage as it thinks best, helping states that agree and discouraging states that don’t.  But the federal government has no legitimate interest in defending marriage in toto. It’s the role of the states to define marriage, subject only to constitutional constraints on their power. Congress may have specific interests in recognizing only certain state-granted marriages for limited federal purposes, like preventing marriages fraudulently entered in order to evade immigration laws. But the states, and only the states, create and license marriages.

Congress may assert other related interests, like promoting uniformity in federal treatment of marriage. But in our history, uniformity in the recognition of marriage has never been a federal end unto itself. The only uniformity Congress has promoted in recognizing relationships is a uniform acceptance of state-law marital status. The baseline in the field of marriage is state, not federal, choice. The analysis of benefits and burdens on state choices must start with a State-choice baseline.  When Congress doesn’t take that baseline as the starting point for its legislation, but instead starts with its own blunderbuss definition, it discourages state choice. It must give more particular justifications than, “we want a uniform application of the federal understanding of marriage.”  If a future Congress controlled by gay-rights advocates decided that the federal government henceforth would only recognize marriages from states that enacted marriage equality, thus stripping opposite-sex couples of federal marriage rights in non-equality states but not in marriage-equality states, would a chorus of federalism deniers be heard to say that Congress was simply defining its programs with no impact either way on state choices in the matter?

Well, how about a federal interest in promoting “responsible procreation”?  I suppose one might think that having well-reared citizens is necessary and proper to keeping the postal roads paved, or to raising a good army and navy.  But saying that Congress may fully regulate matters of family law in order to produce better citizens would end limits on federal power in this historic state realm because “the aggregate effect of marriage, divorce, and childrearing” on the nation’s prosperity and defense ”is undoubtedly significant.”  United States v. Morrison (2000).

The point here is that federalism offers us answers to some equal protection problems when the federal government regulates citizens. Some asserted federal interests simply aren’t within the scope of legitimate federal concerns.  Such interests might justify State legislation but can’t be used to justify a federal classification, no matter what level of scrutiny the Court applies in its equal protection analysis.

(3) The animus problem. At oral argument, Justice Kagan pointed out that given our respect for State control over the law of family relations, and especially the tradition of accepting state definitions of marriage as determined by the States, DOMA is an unusual exercise of federal power.  There is little or no historical precedent for an across-the-board national definition of marriage.  A departure from customary practice can signal impermissible discrimination.  Arlington Heights v. Metropolitan Housing Corp. (1977) (“The historical background of the decision [including substantive departures from normal decisionmaking] is one evidentiary source ... of official actions taken for invidious purposes.”)  That alone might raise the suspicion that it is based on impermissible animus, or as one might put it more gently, a casual and thoughtless disregard for the interests of an entire class of citizens.  Federalist practice can inform the analysis about whether the federal government has acted on an impermissible interest in isolating a group of citizens, making them strangers to the law, and even, formally, strangers to each other. Classifications of an unusual character in the structure of our federal system should increase our alertness to the possibility that invidious discrimination is afoot.  No suspect-classification designation need be adopted to conclude that such a law denies citizens the equal protection of the law.

So here, too, the equal protection analysis and the federalism analysis are linked, as the federalism amicus brief argues.  The Court could base its decision on equal protection principles informed partly by federalist practice and constitutional structure.  Or it could base its decision squarely on federalism and limited-powers grounds without direct reliance on equal protection.  The doctrines reinforce each other.  And they bolster the conclusion that DOMA is unconstitutional.

In a post below, Orin notes that many federal statutes define the meaning of the term “property,” even though property is generally defined under state law.  If this is so, Orin understandably wonders, how could there be a problem with Congress defining marriage for purposes of federal law in DOMA?

The short answer to Orin is that all of the examples he cites are fairly straightforward examples of Congress adopting definitions that do no more than help facilitate the implementation of a given federal program and all lie within the scope of federal authority. What matters is not whether Congress invokes a particular word — there is no list of “special words” immune from the feds — but what it is that Congress is actually doing. So,  the claim is not that any effort to define “property” for the purposes of a given federal law or program necessarily “undermin[es] the institution of property,” but that where Congress actually acts to “undermine the institution of property,” it cannot defend the constitutionality of such action by claiming that all it has done is adopt a simple definition.

None of us have disputed that Congress has the power to define terms where doing so is necessary and proper to carry into execution the federal government’s enumerated powers.  So, for example, our brief notes that federal immigration law contains an antifraud marriage provision at 8 U.S.C. § 1186a(b)(1)(A)(i).  Though this provision addresses marriage, it is not particularly problematic.  As we explain in our brief:

this provision limits resident-alien status to members of a “qualifying marriage,” which excludes marriages that were “entered into for the purpose of procuring an alien’s admission as an immigrant.” 8 U.S.C. § 1186a(b)(1)(A)(i). It is at least conceivable that, in particular situations, the national government could demonstrate a need (apart from desiring to encourage a particular definition of marriage) to exclude same-sex couples. But, although the Necessary and Proper Clause might support a targeted limitation of state-conferred marital status for federal purposes, DOMA is a sawed-off shotgun. A federal definition of marriage that indiscriminately applies to more than 1100 federal statutes and programs can be “plainly adapted” to none of them.

The same is true for property. None of the examples Orin cites seem particularly problematic. Yet I think it quite clear that were Congress to enact an across-the-board definitional statute that, say, excluded automobiles, corporate stock, or other forms of property traditionally recognized under state law as “property” for all federal purposes, such a statute would be unconstitutional. Such a statute would do more than provide a handy definition for the administration of one or more federal schemes. It would represent an assault on the traditional state function of defining property, and could not be defended as “plainly adapted” to the implementation of federal law. (It might also violate other constitutional guarantees as well.)

The question, again, is not whether Congress adopted a definition of some special term, but the actual effect and intent of the legislative act in question. And while I understand the reluctance to launch open-ended inquiries into legislative pretext, in the case of DOMA, no such inquiry is necessary.  Congress was quite explicit about what it sought to do: “Defend” a traditional definition of marriage against changes adopted under state law. That Congress sought to do this through the adoption of a legal definition is of no import. Congress has no power to pursue such a goal, and there is no distinctly federal interest to invoke in Section 3′s defense.

For those interested, we’ve had some sparring over at NRO as well. I commented here. Ed Whelan has rejoinders here, here, and here. I hope to respond more directly to Ed’s points on NRO tomorrow.