The Volokh Conspiracy

In a recent op ed, Harvard Law Professor Noah Feldman argues that striking down the Defense of Marriage Act on federalism grounds – as advocated in an amicus brief I signed along with several other federalism scholars, including co-bloggers Jonathan Adler, Randy Barnett, and Dale Carpenter – would lead to “litigation chaos”:

[T]he problem with this gradual strategy envisioned by court observers and attributed to [Justice] Kennedy is that it would create anomalies leading to a nightmarish barrage of new litigation....

To understand the mess that would result if the court struck down DOMA without finding a general right to same-sex marriage, consider what would happen if the federal government recognized marriages performed in states that allow gay couples to marry while continuing to deny marital status to couples in other states.

In the first, most optimistic scenario, one or several marriage-friendly states might allow anyone from any state to get married there, creating a Las Vegas-style business in same- sex marriage. Gay couples would return to their home states with a piece of paper that should, in principle, entitle them to federal marital tax status, immigration benefits and more. But their home states would probably decline to recognize those out- of-state marriages, and deny them state-level marriage benefits.

If the Supreme Court’s decision to strike down DOMA depended on finding that states have an inherent right to define marriage in which the federal government cannot infringe, then the home states’ policy would probably be upheld. The result would be couples who are both married and unmarried for purposes of the same tax returns, mortgages and hospital visits. Each of these conflicts would be brought to the courts. State and federal courts would probably render divergent conclusions — across all 50 states and 13 federal circuits. If this isn’t legal chaos, nothing is.

If no state wanted to attract business by becoming the same-sex-marriage hub for out-of-state residents, then the anomaly would arise when legally married gay couples moved to states that didn’t recognize their unions. Presumably they would nevertheless bring their federal benefits with them — giving rise to the same legal issues just described.

To be honest, I simply don’t see the problem here. If same-sex couples get married in State A, receive federal marriage benefits, and then move to State B, which denies them state-level marriage benefits, there is no need for litigation of any kind. The couple in question will have federal marriage benefits, but no state ones (at least none from State B). Obviously, the couple might want to get state benefits from B and could potentially file lawsuits claiming that State B is engaging in unconstitutional discrimination against same-sex couples. But they could file the exact same lawsuits even if DOMA remains in place. We already have married same-sex couples that move from states that recognize same-sex marriage to those that don’t and seek to obtain benefits as a result. State and federal courts will have to address those cases regardless of whether or not DOMA gets invalidated on federalism grounds. The fact that if DOMA is struck down these couples will get federal marriage benefits does not require states to grant them state benefits.

To be sure, many states base tax status on residents’ federal tax returns. If same-sex couples could file as “married” on their federal tax returns, states that don’t recognize same-sex marriage might end up implicitly giving such people “married” tax filing status. However, if the state government doesn’t like that result, they could simply alter state tax law to forbid same-sex couples married in other states from filing as “married” on their state tax returns. This would be easy for states to do and need not give rise to any complex litigation. Many states already have tax deductions that are different from those on federal returns.

Feldman also scares readers with the following creative scenario:

Some scenarios are downright funny. Suppose I married someone of the same sex in New York and that marriage wasn’t recognized in Pennsylvania. If I then decided to marry someone of the opposite sex in Pennsylvania, the state would presumably recognize that marriage while New York recognized my previous one. And both marriages would be recognized by the federal government, which would treat me as a lawful bigamist. That would be good news for 19th century Mormons, who were denied a federal constitutional right to plural marriage — but most people today would find the conclusion truly bizarre.

As a legal scholar myself, I enjoy clever law professor hypotheticals as much as the next guy, probably even more. But this one has little real-world bite. As a practical matter, it is unlikely that any significant number of people will want to enter both a same-sex marriage and an opposite-sex marriage at the same time. If someone did try to do it, states that don’t recognize same-sex marriage could protect themselves against the possibility simply by enacting a law stating that they will not recognize a marriage contracted by a person who is still a participant in a same-sex marriage or civil union contracted in another state. Doing that would not require the state to recognize same-sex marriage generally. As for the federal government, refusing to recognize a second marriage entered into by a person who has never divorced their first spouse need not involve any federal encroachment on state governments’ powers to define marriage. After all, no state allows people to enter into multiple marriages at the same time either.

Some degree of conflict and legal uncertainty is inevitable in a federal system where different states have divergent marriage laws. But invalidating DOMA on federalism grounds would not significantly exacerbate these problems, much less lead to legal “chaos.”

UPDATE: Congress could also try to address these possible issues by basing eligibility for federal benefits on the marriage law of either the state of residency or the state where the marriage in question was initially contracted. Either approach would avoid the federalism problems created by DOMA, since neither would be a pretext for an effort to try to pressure states to define marriage in a particular way.

UPDATE #2: Ed Whelan responds to this post here:

Those crediting the federalist argument against DOMA have generally been claiming (wrongly) 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....

Somin’s claim is radically different. Under his account, the federal government would not be deferring to and applying the definition of marriage in the state in which a couple resides. Instead, for same-sex couples that lawfully marry in any state that allows same-sex marriage, the federal government would provide federal marriage benefits for those same-sex couples if they live, or if they later move to, a state that doesn’t recognize same-sex marriage. In short, under the false flag of federalism, Somin would have the federal government nationalize federal marriage benefits for same-sex marriages.

Somin’s position also gives the lie to the absurd claim that he and his co-signatories make that DOMA’s definition of marriage for purposes of federal benefits somehow intrudes on state authority over marriage. Whether or not Somin’s position is correct, Somin, by taking it, necessarily acknowledges that it is permissible for federal marriage benefits to apply to those living in a state without tracking that state’s definition of marriage. So much for the federalist argument against DOMA...

If [Somin] is right, he and the other signatories to the amicus brief of “federalism scholars” have submitted a highly deceptive brief that, in the mistaken name of federalism, would nationalize federal marriage benefits for same-sex spouses. If he is wrong, he has signed his name to an amicus brief without having giving serious attention to what his position actually means.

Whelan is wrong to claim that there is some deep contradiction in my position, much less that the brief I signed was “deceptive.” The position defended in the brief is that the federal government cannot adopt a general national definition of marriage and must instead respect state autonomy in that area. Deferring to the definition of marriage in force in the state where the marriage was contracted is deferring to the states. No one can enter a same-sex marriage unless they do so in a state where it is permitted. If a same-sex couple migrates, the receiving state can still maintain its refusal to recognize SSM. And as a practical matter, we are only talking about a small number of cases here. Gays and lesbians are only about 3% of the population and those who enter SSMs in states that permit it and then move to states that don’t are likely to be a tiny fraction of that.

Whelan’s claim that allowing couples that entered same-sex marriages to continue receiving federal marriage benefits when they move to a different state interferes with state definitions of marriage just like DOMA does is also weak. There is no meaningful comparison between an act that affects over 1100 different benefits and impacts all SSM participants everywhere and is deliberately intended to promote “traditional marriage” with the framework that I describe, which involves no such pretextual intent on the part of Congress, and in practice would have only very minor effects.

Finally, I would add that Congress can choose to condition federal marriage benefits on the law of the domicile state rather than on the law of the state where the marriage was contracted. Either approach is consistent both with my original post and with the position we took in our brief, because both avoid establishing a federal definition of marriage and both ultimately defer to state law. In my discussion above, I merely assumed the framework outlined in Noah Feldman’s op ed, and noted that it would not result in the “legal chaos” he predicted. But it’s not the only possible framework for determining eligibility for federal marriage benefits. Randy Barnett makes some related points here.

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.

On Tuesday, April 2, I will be speaking on federalism and its implications for various racial, ethnic, religious, and political minorities at Harvard Law School. I will be appearing with Yale Law School Professor Heather Gerken, a leading federalism scholar who has argued that her fellow progressives should take a more favorable view of federalism because – under modern conditions – it often benefits a variety of minority groups. I previously commented on Gerken’s important work on “Progressive Federalism” here and here.

The event is sponsored by the Harvard Federalist Society, the Women’s Law Association, and the Abigail Adams Society. It will run from noon to 1 PM, and will be held in Austin West, on the first floor of Austin Hall. Attendees will get free food as well as free intellectual sustenance.

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.

Federalism principles may weigh against Section 3 of the Defense of Marriage Act (DOMA), but what about Proposition 8? Reason.com has just posted an exchange between me and Ilya Shapiro of the Cato Institute on this question. Cato’s Ilya S. (not to be confused with our Ilya S.) argues that federalism has nothing to do with the constitutionality of Proposition 8, as the question is simply whether government refusal to recognize same-sex marriage violates the 14th Amendment. As readers might expect, I disagree.  Family has been the province of state governments since the nation’s founding and there are judicially cognizable reasons why a state may opt not to recognize a marriage as other than a union of one man and one woman.  While I support gay marriage as a policy matter, I do not think it is constitutionally compelled. I may find many of the justifications for maintaining a traditional definition of marriage unpersuasive, but I believe that when asserted by a state, they are sufficient to uphold the constitutionality of California’s policy. (Of course, if recent polling is to be believed, Proposition 8 may not remain California’s policy for long, no matter what the Supreme Court decides.)  While Ilya and I disagree on this question, I suspect we’d both agree that the real policy question for libertarians should be whether the state has to be in the marriage licensing business in the first place — but that’s a question for another time.

The Reason.com exchange starts here. My contribution begins here.

The question presented in United States v. Windsor is whether Section 3 of the Defense of Marriage Act (DOMA) violates the Fifth Amendment’s guarantee of equal protection. Why, then, are some of us talking about federalism? It’s a fair question.

In an equal protection case, courts are called upon to weigh the weight of the government’s asserted interest and evaluate whether the allegedly discriminatory policy is sufficiently related to that interest. So, for instance, under the rational basis test, a court considers whether the challenged policy is rationally related to a legitimate government interest; under intermediate scrutiny a court considers whether the challenged policy is substantially related to an important government interest; and so on. Under each test, courts must consider the nature and weight of the asserted governmental interest — and not just any interest will do. Animus or the naked desire to harm or oppress another group won’t do, nor will any other interest that is not properly pursued by the government — and that is where federalism comes in.

Because the federal government is a government of limited and enumerated powers, the range of interests it may assert in defense to an equal protection challenge is necessarily limited. It cannot assert just any governmental interest to sustain a policy, such as Section 3 of DOMA, because not all governmental interests are federal interests. Whether or not one believes the range of federal interests is limited to the objects of enumeration in the Constitution, there should be no doubt that the federal government, lacking a plenary police power, does not have recourse to the same range of potential interests as do state governments. And those interests that remain may only justify so much. Efficient administration of a federal program may suffice (at least under rational basis), but it’s hard to argue that Section 3 of DOMA is about the efficient administration of anything, particularly since in some applications it will actually make program administration more difficult and it costs the federal treasury millions. (See, e.g., here.)

Incorporating federalism concerns into Equal Protection analysis means that there are certain policy choices states may make, but that the federal government many not. As a consequence, the Supreme Court could well conclude that California’s Proposition 8 survives Equal Protection challenge, but Section 3 of DOMA does not. Should the Court decide to apply some form of heightened scrutiny, Section 3 would be in particular trouble (for reasons identified by the Second Circuit). But even under heightened scrutiny, Proposition 8 and other state laws refusing to recognize same-sex marriage might survive.

In his latest post on the federalism argument against DOMA, my co-blogger Nick Rosenkranz suggests that there can be no federalism-based constitutional objection to a statute that “defines [a word] only for purposes of federal law.” According to Nick. such a definition can only be unconstitutional if it offends some substantive constraint on government power, such as the Equal Protection Clause, and that federalism concerns have “nothing” to do with it. Randy makes several points in response to Nick’s argument, as did I in a prior post. Here I just want to focus on the claim that it is impossible for Congress to define a word, for purposes of federal law, that could exceed the scope of federal power.

For starters, we agree that Congress may define terms in order to carry into execution the federal government’s enumerated powers. Where we disagree, apparently, is the extent to which this imposes a meaningful constraint on federal lawmaking and whether it is possible for Congress to adopt statutory definition that exceeds the scope of federal power. Yet not only is this possible, the Supreme Court has said as much in scrutinizing the definitions Congress and federal agencies have adopted for statutory terms.

Let’s take one of Nick’s examples: “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. As Nick notes, in 1 U.S.C. 3 Congress elsewhere defined “vessel” for the purposes of this and other federal laws. There’s no problem here, but that’s because insofar as Congress has the authority to regulate vessels in navigable waters (under the Commerce Clause) and military vessels (under those clauses conferring authority over the military), it can define what constitutes a vessel for such purposes. Such an action is necessary and proper for carrying into execution enumerated federal powers and neither threatens state authority nor aggrandizes federal power. So far so good.

Yet suppose instead of defining “vessel” Congress sought to define “channel” as used in this and other statutes. And suppose Congress defined “channel” to include, not just those waterways we may all recognize as “channels,” but also all navigable-in-fact waterways, as well as all interstate and intrastate waters including (but not limited to) intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, natural ponds, drainage ditches, and ephemeral streams. Such a definition does more than provide semantic meaning to a statutory term. It would also operate to extend the scope of federal power. And insofar as federal regulatory authority does not extend to all such waters – as the Supreme Court has suggested twice in the past dozen years – it would be no defense to claim that all Congress sought to do was provide a handy definition for the purposes of federal law. This is because the practical effects of this definition would be expand the scope of federal power so as to supplant state authority in an area of traditional state concern. [Note also that in the cases concerning waters, Congress at least had a long tradition of asserting federal authority over some U.S. waters, and a clear textual hook for the assertion of federal power under the Commerce Clause. With DOMA, however, Congress has neither.]

Once we have established that Congress lacks some general, all-purposes “definitions” power that is immune from judicial review, we can focus on the real question: Whether the enactment of a particular definition is necessary and proper to carry into execution the federal government’s powers. Where Congress adopts definitions to facilitate operation of constitutionally authorized federal programs or to attain enumerated purposes, there may be no problem. Where, however, Congress enacts a statutory definition so as to leverage preexisting authority so as to aggrandize federal power and intrude on an area of traditional state concern – such as family law – greater care is required.

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).

On Thursday, Stanford law professor and former federal appellate judge Michael McConnell suggested the Supreme Court should avoid ruling directly on the constitutionality of same-sex marriage by denying Proposition 8′s supporters standing to defend the initiative’s constitutionality and holding that the Defense of Marriage Act exceeds the scope of federal power. NRO’s Ed Whelan, who has previously criticized the federalism arguments against DOMA, responded to McConnell’s arguments here and here. McConnell sent Whelan a reply, which Whelan has posted with his response here.

In Friday’s WSJ, Stanford law professor Michael McConnell, a former judge on the U.S. Court of Appeals for the Tenth Circuit, argues that the Supreme Court should hold that Proposition 8 supporters lack standing to defend the ballot initiative in federal court and that the federal government lacks the power to define marriage.

the court need not base its decision in Windsor on the merits of the same-sex marriage question. 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 court has held that “regulation of domestic relations” has “long been regarded as a virtually exclusive province of the States” (Sosna v. Iowa, 1975). In the past, the court has recognized a “domestic relations exception” to federal judicial power. Although the legal question is close, the court could take the same path in Windsor—holding that DOMA improperly intrudes on the reserved powers of the states.

If the court dismisses the Proposition 8 case on standing grounds and strikes DOMA down on federalism grounds, the combined effect would be to reaffirm America’s democratic, decentralized decision-making process without imposing an answer—one way or the other—to the same-sex marriage question.

By taking such a path, the court would be spared from imposing a single nationwide definition of marriage as a matter of constitutional law, and from having to rule, for all time, that there is or is not a constitutional right to same-sex marriage—a momentous step that some justices might be reluctant to take. It would leave the issue to the states, at least for the time being. This course might appeal to centrist justices like Anthony Kennedy, John Roberts and Stephen Breyer—and perhaps could even command a unanimous court, which would have a welcome calming influence on the nation’s culture wars.

I’m skeptical either judgment could command a unanimous court, and am not yet convinced Prop. 8′s supporters lack standing, but certainly agree this would be a welcome approach for the Court to take (and certainly agree that the “leading argument” against DOMA is that it exceeds the scope of federal power).

In his column for today, George Will backs the federalism-based equal protection argument against Section 3 of the Defense of Marriage Act that Ernie Young and Lynn Baker, along with co-Conspirators Randy, Jonathan, Ilya, and I made in an amicus brief filed in United States v. Windsor.:

Conservatives who supported DOMA should, after 17 years’ reflection, want the act overturned because its purpose is constitutionally improper. Liberals who want the act struck down should be discomfited by the reason the court should give when doing this.

...  Because approximately 1,100 federal laws pertain to marriage, DOMA’s defenders argue that Congress merely exercised its power to define a term used in many statutes. But before 1996, federal statutes functioned without this definition, which obviously was adopted for the “defense” of marriage against state policies involving a different definition. “Before DOMA,” an amicus brief submitted by a group of federalism scholars notes, “federal law took state law as it found it.”

The question now is whether DOMA is “necessary and proper” for the exercise of a constitutionally enumerated congressional power. There is no such power pertaining to marriage. . . .

Ernest A. Young of the Duke Law School, the principal author of the federalism brief, says the operation of DOMA cannot help but burden states because “federal and state law are pervasively intertwined.” To understand the harm that could be done by an unlimited federal power to define the terms of domestic-relations law, Young recalls when a few states, venturing beyond the national consensus, began experimenting with no-fault divorce. Suppose, Young says, Congress passed a statute refusing recognition, for purposes of federal law, of any divorce where neither party made a showing of fault:

“The couple would continue to be treated as married for purposes of federal income tax, health care programs and veterans’ benefits. Imagine the chaos this would wreak in the administration of state programs, and the pressure it would impose on states not to experiment with divorce law.”

As the scholars’ brief says, DOMA “shatters two centuries of federal practice” by creating “a blanket federal marital status that exists independent of states’ family-status determinations.” Federalism, properly respected, enables diversity as an alternative to a congressionally imposed, continent-wide moral uniformity. Allowing Washington to impose such conformity would ratify unprecedented federal supremacy regarding domestic relations, a power without judicially administrable limits. . . .

Liberals praise diversity but generally urge courts to permissively construe the Constitution in order to validate federal power to impose continental uniformities. DOMA is such an imposition. Liberals may be rescued from it by jurisprudence true to conservative principles, properly understood.

 Oral argument in the case is March 27.

That’s the title of a new article by Trevor Burrus (Cato) and me, forthcoming in a symposium issue on drug policy, from the Albany Government Law Review. The symposium title is “Overdose: The Failure of the US Drug War and Attempts at Legalization.” Here is an excerpt from the introduction:

In this Article we discuss the synergistic relationship between the “wars” on drugs, guns, alcohol, sex, and gambling and how that relationship has helped illegitimately increase the power of the federal government over the past century. The Constitution never granted Congress the general “police power” to legislate on health, safety, welfare, and morals; the police power was reserved to the States. Yet over the last century, federal laws against guns, alcohol, gambling, and some types of sex, have encroached on the police powers traditionally reserved to the states. Congress’s infringement of the States’ powers over the “health, safety, welfare, and morals”6 of their citizens occurred slowly, with only intermittent resistance from the courts. In no small part due to this synergistic relationship, today we have a federal government that has become unmoored from its constitutional boundaries and legislates recklessly over the health, safety, welfare, and morals of American citizens.

In part I we discuss how the Taxing Clause was the original conduit for congressional overreach. In part II we analyze the Interstate Commerce Clause’s role in augmenting government power. Part III examines how that overreach has affected citizens’ property rights, and Part IV looks at how civil liberties, particularly Fourth Amendment protections, have been negatively affected by the federal government’s synergistic wars against sex, drugs, gambling, and guns.

This 20-page article is certainly not a comprehensive survey of the synergistic effects of the constitutional damage caused by the federal wars on drugs, guns, alcohol, sex, and gambling. It is a start at a topic that is worthy of much additional scholarly exploration.

The Liberty Law Blog recently posted my review of Harvard Law Professor Einer Elhauge’s book Obamacare on Trial, which was possibly the first academic book on the Obamacare litigation published by a legal scholar since the Supreme Court issued its decision in NFIB v. Sebelius. Elhauge is a topnotch scholar, and his book makes some interesting points in defense of the constitutionality of the individual health insurance mandate. But it’s not as strong as it could have been had he been able to address some key issues in greater depth:

Harvard Law Professor Einer Elhauge’s book Obamacare on Trial is a useful and sometimes insightful statement of several arguments in defense of the mandate. It is impressive that Elhauge managed to get the book in print just a couple months after the Court’s decision came down on June 28, 2012. But, perhaps because of the haste with which it was published, the book fails to adequately address some key issues, and likely will not be persuasive to those not already inclined to agree with Elhauge’s conclusions....

Elhauge’s most distinctive contribution to the debate over the mandate was his repeated invocation of two 1790s laws that, he argues, provide precedents for upholding the individual mandate as an exercise of the commerce power: The 1792 Milita Act, which required militia members to possess muskets and other military equipment; and the 1798 Act for the Relief of Disabled and Sick Seamen, which required owners of American ships arriving from foreign ports to a withhold a part of their seamen’s wages and pay the money into a government-administered fund for the “temporary relief of sick and disabled seamen....”

This is an interesting thesis and Elhauge defends it well. But, ultimately, it flounders on the many clear differences between the two 1790s acts and the health insurance mandate....

Although Obamacare on Trial is a thoughtful defense of Elhauge’s distinctive take on the mandate litigation, it gives short shrift to several other important aspects of the case. For example, Elhauge argues that the mandate is authorized by the Necessary and Proper Clause as well as the Commerce Clause. But he fails to consider the point that a mandate authorized by that Clause must be “proper” as well as “necessary” for “carrying into Execution” other powers granted to the federal government in the Constitution. That is the key reason why the Necessary and Proper Clause rationale was rejected by a majority of the Court...

Elhauge also devotes little attention to the Tax Clause reasoning under which Chief Justice Roberts ultimately upheld the mandate. And he devotes almost none at all to the many arguments against that conclusion, including those endorsed by every lower court that considered the issue....

Overall, Obamacare on Trial is a thought-provoking contribution to the debate over the individual mandate case. But its limitations prevent it from becoming the definitive work on the subject, or even the definitive defense of the case for the mandate’s constitutionality.

I’m also one of those who are skeptical of the federalism brief against DOMA. But I have a few questions, based on perusing the recent posts here and elsewhere by Dale, Randy, Jonathan, Nick, and my former boss Ed. (I read the brief itself a while back, but declined to sign; forgive me if the answers to my questions are right there in the brief.)

1. Ed distinguishes three types of statutory schemes: (a) a statute attaching consequences to marriage, with a definitional section defining “marriage”, (b) a statute where the word “marriage” is simply replaced with its definition, and (c) a statute without a definition of marriage, but where “marriage” is defined in a separate statute. Would the federalism theory be fine with (b) but not with (a) and (c)? Or, based on the idea that Congress has no power to care about what’s a good marriage, would the theory would also invalidate (b)? What’s the dealio?

2. If the problem is that Congress enacted DOMA for the purpose of furthering traditional marriage, does that mean I have to buy into purposivism or intentionalism to buy this theory?

3. What about all the statutes granting benefits to a spouse derivatively of the eligibility of a primary person, like Social Security (for purposes of survivorship), the immigration laws, etc.? The statute could have been written to apply to the actual eligible person: no Social Security benefits for widows, no special immigration treatment for the wife of an eligible person, etc. And yet they did write the statute to give special treatment to spouses that isn’t available for boyfriends/girlfriends, business partners, best friends, chess partners, etc. What was Congress’s power to do so, thus privileging the marital relationship over other kinds of relationships (even long-standing non-marital romantic relationships)? Does Congress have a legitimate interest there?

As Dale noted here, several VC contributors joined a federalism scholars amicus brief in United States v. Windsor arguing that Section 3 of the Defense of Marriage Act transgresses the limitations on federal power.  Our brief questions whether it is proper for the federal government to seek to defend a traditional conception of marriage in response to state decisions to recognize same-sex marriage under state law.  The brief takes no position on the desirability of same-sex marriage, the constitutionality of California’s Proposition 8, or whether states are obligated to recognize same-sex marriages under the 14th Amendment.  (For what it’s worth, I personally support same-sex marriage and oppose Proposition 8 on policy grounds, but do not believe state recognition of same-sex marriage is constitutionally required and believe Proposition 8 is constitutional, even if subjected to intermediate scrutiny.  Time permitting, I’ll author additional posts explicating these latter points.)

The arguments in our brief have begun to prompt responses, most notably from our co-blogger Nick Rosenkranz and my NRO Bench Memos co-blogger, Ed Whelan.  Yesterday, Randy Barnett posted a reply by Duke law professor Ernie Young, the brief’s principal author.  I also responded on NRO’s Bench Memos.  Ed has since posted a surreply.

As I noted in my reply, Ed and Nick make the reasonable point that the federal government must have the authority to define terms for the purposes of federal law.   This argument is only goes so far.  Of course Congress may define terms in federal statutes, but it may not do so in such a way so as to exceed the scope of federal power or pursue ends not entrusted to the federal government and displace state authority.  So, for instance, Congress could not redefine “commerce” for purposes of federal law so as to exceed the bounds of the federal Commerce power or redefine “property” so as to exclude property recognized under state law from constitutional protections.  (Indeed, as federal courts have held, Congress is even limited in its ability to define federally created interests as something other than “property” where doing so could eviscerate the Constitution’s Due Process guarantees.)  So asserting that Congress has the power to define terms for purposes of federal law is not, in itself, a sufficient answer to our claim.  At bottom, the question our brief raises is not whether Congress is generally free to define terms in federal statutes — it is — but whether it is permissible for Congress to do so here for the purpose of advancing a a traditional definition of marriage when the federal government lacks any independent federal interest in such matters.

To close, I’ll repeat something I wrote on NRO:  In McCulloch v. Maryland, Chief Justice John Marshall noted that “should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not intrusted to the 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.”  There is little question that the federal Defense of Marriage Act is not about the administration of federal programs, but about defending a traditional definition of marriage.  There is also little question that such matters were not entrusted to the federal government.  Federalism is often congenial to conservative policy goals, but such is not guaranteed, and federalism should be respected even when it cuts against conservative preferences.