Thursday, March 28, 2013

The Federalism Argument That Should Have Been Made in the DOMA Case

By Mike Dorf

The potentially crucial moments in yesterday's oral argument in United States v. Windsor came during two painful exchanges.  Under questioning from CJ Roberts, SG Verrilli appeared to say that the Justice Dep't was not denying that the federal government has the affirmative power to define the term "marriage," as used in various federal statutes, in a way that differs from how the states define it.  I say "appeared" because, after making the concession to the Chief Justice, SG Verrilli then took it back in response to a question from Justice Kennedy.  Justice Kagan then tried to help him out and the SG grabbed at the lifeline.  The SG finally said that the fact that the federal government lacks the plenary power to regulate family affairs in the way that states do, means that the federal government cannot advance all of the same sorts of interests to defend DOMA that a state may advance to defend a state law banning same-sex marriage--and therefore, that the federalism concern could be relevant to the application of the equal protection analysis.  But SG Verrilli did ultimately reaffirm the concession he had made to the Chief Justice: The United States does not take the position that DOMA is invalid on federalism grounds standing alone.

Accordingly, SG Verrilli abandoned the one argument that appeared most likely to appeal to Justice Kennedy.  And in fact, observing the flow of the oral argument, it was clear that this was the whole point of the exchange.  CJ Roberts was using SG Verrilli to argue to Justice Kennedy that there is no substance to the federalism objection.  Why didn't SG Verrilli resist that maneuver?

I can think of two explanations.  The first, uncharitable, explanation, is incompetence.  I don't think SG Verrilli is generally incompetent but he does have a penchant for showing up at extraordinarily important oral arguments without well-rehearsed pithy answers to difficult-but-foreseeable questions.

A second, more charitable explanation is that the DOJ was in a tight spot.  As the federal government's representative before the SCOTUS, the SG was understandably reluctant to say that any particular statute is beyond the power of Congress.  Especially given what five Justices were willing to say less than a year ago about the limits of the Commerce Clause in the Obamacare case, the SG and other Administration lawyers could well have concluded that it would be dangerous to press an argument that DOMA exceeds Congress's affirmative powers.  At the end of that road could lie the invalidation of the Endangered Species Act and God knows what else.

Let's be charitable and assume that the second explanation is correct.  That still left undefended the proposition that seems most likely to garner Justice Kennedy's critical fifth vote.  And that's because attorney Roberta Kaplan, arguing for the respondent Windsor, also failed to articulate the federalism argument.  In fact, her answers to the Chief Justice, Justice Scalia and Justice Alito suggested that she didn't really understand--and thus was totally unable to rebut--the argument that was advanced by Paul Clement for upholding DOMA as against a federalism challenge.

Kaplan said that the federal government doesn't issue marriage licenses because regulating marriage is a reserved power of the states.  So far so good.  But DOMA does not purport to authorize the federal government to grant marriage licenses.  DOMA defines marriage for purposes of over a thousand federal laws.  As long as Congress had the affirmative power to enact those laws,  Clement said, then Congress doesn't need any additional power.

For example, the federal law governing spousal Social Security benefits is an exercise of the Spending Power, and so as applied to such benefits, DOMA is an exercise of the Spending Power. Or take Windsor itself.  The federal law governing the taxation of estates and inheritance--including exceptions for testamentary transfers to surviving spouses--is an exercise of the Taxing Power.  And so, as applied to Windsor, DOMA is an exercise of the Taxing Power.

That's Clement's argument for rejecting any freestanding federalism objection to DOMA, and on the face of it, that's a pretty good argument.  It is thus unfortunate--and arguably the product of incompetent lawyering--that there was no effort by SG Verrilli or Ms. Kaplan to respond to this argument and thus to bolster Justice Kennedy's position.

In fact, there is something quite substantial that could have been said on the other side that ought to appeal to Justice Kennedy.  It goes like this:

Ordinarily, when Congress defines the terms of one or more statutes it has enacted, we can assume that Congress is attempting to specify how the powers backing those statutes are to be exercised.  But where, as in DOMA, Congress paints with such a broad brush as to touch on over a thousand, largely unrelated provisions of the federal code, and does so in language that so obviously betrays a substantive aim largely unconnected to any of those provisions, it is fair to infer that this blunderbuss approach has some other aim.  Here that aim is plain: Congress attempted in DOMA to use its other powers pretextually, as a basis for circumventing the 10th Amendment and enacting a de facto federal law of marriage.  But at least since McCulloch v. Maryland, we have understood that such a pretextual use of Congress's enumerated powers is not necessary and proper.  QED.

Is that a persuasive argument?  One might worry about (a variant on) the hypo that CJ Roberts offered.  Suppose Congress were to repeal DOMA and replace it with DOSSMA--the Defense of Same-Sex Marriage Act.  DOSSMA treats married same-sex couples and same-sex couples who have entered into civil unions in states that forbid SSM but permit such unions as married for purposes of federal law.  Perhaps it also permits same-sex couples in states that do not even acknowledge same-sex civil unions to apply for a federal certificate of marriage equivalence, and treats them as married for purposes of federal law too.  If there is a persuasive freestanding federalism objection to DOMA, then that same objection appears to knock out DOSSMA--unless the Court were willing to uphold DOSSMA as a permissible exercise of Congress's power to enforce the Fourteenth Amendment under Section 5 of that Amendment.  But the Court's cases narrowly construe the Section 5 power, except where Congress acts to enforce a recognized right, so the ability to distinguish DOSSMA from DOMA would depend on the Court also recognizing a right to SSM.  But if the Court were willing to do that, then we wouldn't need to worry about the federalism issue in the first place.  The DOSSMA hypo thus troubles me.

Nonetheless, the hypo probably doesn't trouble Justice Kennedy, who might very well be perfectly comfortable saying that both DOMA and DOSSMA are beyond the powers of Congress on federalism grounds.  Indeed, I read Justice Kennedy's exchange with Paul Clement as containing the germ of the italicized argument above.  It's too bad that the lawyers didn't articulate something like that argument under questioning.

Luckily, the relevant points were made pretty effectively in an amicus brief on behalf of self-described "Federalism Scholars."  Whether the argument works could be thought to depend on whether there is a satisfactory method for determining when Congress is using its powers pretextually.  Reasonable minds can differ on that question--and they have so differed.

For an enlightening look at the arguments on each side, I recommend that readers follow the links backwards from Nick Rosenkranz's most recent post on the Volokh Conspiracy.  Nick and some others are skeptical of the federalism argument; Randy Barnett and still other scholars are more enthusiastic.  I have nothing more to add to the merits of their disagreement but I will say that the relevant audience here is Justice Kennedy, and that today's argument pretty strongly showed that he is comfortable with it.

That's not surprising to me, because the pretext argument not only plays to his federalism instincts; it strongly resonates with his opinion in Romer v. Evans.  In both instances, the breadth of the exclusion bespeaks an illegitimate motive, whether the illegitimacy is a matter of equal protection (as in Romer) or of federalism (as in Windsor).  We scholars can argue about what test to use to detect an illegitimate motive, but Justice Kennedy knows one when he sees one.


RichMcGil said...

I have nothing in the way of questions, but I wanted to say thank you, Professor Dorf.

The past few blog posts regarding the current arguments being heard by the SCOTUS have been particularly enlightening. Same sex marriage has been an incredibly popular issue to discuss of late on all of the social networks that I use, and being able to get a sense of the current legal perspective is incredibly valuable to me.

Again, thanks. I hope you and your team keep up the awesome content.

matt30 said...

I agree with you in a substantially similar way. When Roberts proposed the reverse-DOMA hypo to Ms. Kaplan, I thought she was going to say something along the lines that creating a very coercive system of benefits and harms (taxes, social security, etc.), however implausible administratively, would in effect create a federal marriage system with everything but the label.

At the same time (maybe 5 seconds later), I realized why am I doing all these mental gymnastics when I know I can resolve this case with a straightforward application of longstanding equal protection principles.

You neglected to mention a third option. The AG may have wanted to press Kennedy into doing the equal protection analysis knowing that a result that doesn't strike down at least DOMA won't write. Period. He has been looking for a way out for these past two days, its past time for him to get over whatever reservations he has and take a stand on the merits.

Paul Scott said...

My few comments are:

I agree with matt30 and suspect that was the SG's reasons. The entire case and the way the executive has set up this thing was to force the issue on substantive EP grounds.

I almost thought Verrilli was going to completely concede the federalism case. Maybe, as you say, he did - but I don't really understand his "federalism grounds alone" - there is no "alone" - it either fails or does not fail under federalism and if it doesn't fail then federalism reasoning is not material to EP.

In any event, one place I do wish Verrilli was more clear was in more forcefully stating his position that:

1. homosexuality is a suspect or quasi-suspect class; and

2. Yes, thus, this all applies to the States who would have an nearly, if not completely insurmountable burden.

He clearly believes that is the case and several times, both today and yesterday, several Justices asked him very direct questions on the matter and his answers were always unsatisfying. I don't know how you can file the briefs he filed without having a forceful, positioned argument to that effect.

Finally, I'd like to note that Ginsberg's note about how much the Federal definition of marriage effects the collection of rights and obligations we think of as being marriage completely exposes the weakness of the federalism position. Marriage, as we know it, is Federal. If DOMA is unconstitutional on federalism grounds then so are a lot of other Federal laws and rules.

As an aside, I actually liked, and agreed with, both Roberts' calling out the President has lacking conviction with the "enforce but don't defend" and Scalia mentioning that this case is so bizarrely put forth because the Administration is, essentially, trying to create a controversy where there is none - and that this way of doing business makes a mess of things and is not proper.

It makes no sense to me that a President, or Governor for that matter, would come to the conclusion that a law was unconstitutional enough not to defend it, but it was constitutional enough to enforce it. Those two should go hand-in-hand and if the President wants to enforce DOMA it should also defend it.

egarber said...

As a side note, suppose the Court strikes down DOMA as a matter of 5th Amendment due process -- making the federal law a simple mirror of each state's legal definition.

Would the recognized right follow the individual if she moves to a state that doesn't recognize her marriage? This gets all tied up with the rest of DOMA and the constitution's "public policy" exception (I think that's what we call it) on cross state recognition, right?

Michael C. Dorf said...

In response to Paul's last point, I disagree. Enforce-but-don't-defend is a compromise between two potentially even-worse options when a President has reason to think a law is unconstitutional but also thinks the courts might disagree: 1) Don't enforce, thus ensuring that no one will have standing to challenge the law (if it's the sort of law that won't give rise to private/private litigation) and thereby arrogate to the executive the power to nullify a law that was duly enacted; or 2) Enforce and defend, thus running the risk that you put up a weak defense because your heart isn't in it.

I don't think enforce-but-don't-defend is without its own problems, but it's not crazy.

Hashim said...


If Congress in 1789 had passed a "blunderbuss" law that, for purposes of all federal statutes, refused to recognize slaves as property notwithstanding any state law to the contrary, would that even arguably have exceeded their enumerated powers under Article I, that Congress was required to treat slaves as property for federal taxation, etc.? I think the answer to that question is obviously "no", and that any contrary conclusion is frivolous bordering on insane.

So too for DOMA as far as Article I goes -- just because states can regulate when individuals will be treated as a joint entity for state-law purposes doesn't mean that the federal govt can't adopt a different test for when individuals will be treated as a joint entity for federal-law purposes.

The SG rightly avoided the federalism argument, because it's crazy. It's one thing to try to use the departure from the ordinary practice of borrowing state law to infer animus for EP purposes, but it's completely another to say that the states can commandeer the federal govt's definition of common-law terms for federal-law purposes.

Michael C. Dorf said...

Hashim's slaves-are-not-property hypo serves roughly the same purpose as my DOSSMA hypo and for roughly the same reason, it further explains why I am unpersuaded that there is a freestanding federalism objection here. I would hesitate to call the contrary view "insane," however, for two chief reasons: 1) The SCOTUS has never disavowed the "pretext" language of McCulloch; and 2) Smart (mostly conservative) people who are not insane but share a strong attraction to federalism have endorsed it. The signatories to the brief I linked are: Jonathan Adler; Lynn Baker; Randy Barnett; Dale Carpenter; Ilya Somin; and Ernie Young. Michael McConnell has also endorsed this argument.

Although I share Hashim's bottom line that the federalism argument doesn't persuade me, the question is one of advocacy. It's an argument that appeals to Justice Kennedy so if you're challenging DOMA, why not offer it? Maybe the answer is that this Justice Dep't is particularly squeamish about making arguments they don't fully endorse--as illustrated by this very litigation.

Joe said...

I agree Verilli -- unlike in the Prop 8 case -- stumbled on federalism, probably partially because he didn't want to concede a limit on federal power. Kagan tried to help him out, but he didn't really want to concede much.

But, I disagree Kaplan, especially by the end, was on the sound shaky ground. She might not have been totally strong but in answers to questions from Roberts and Alito, she got her footing, particularly agreeing with Alito's hypo of giving benefits by a means other than marriage itself. The feds can do that. There is no reason it cannot give an estate tax benefit based on a civil union.

I listened and do not see this clear evidence that she didn't understand the federalism argument, which mind you comes in more than one form.

Hashim said...


I totally agree that the pretext language is and should be part of the N&P analysis under McCulloch -- see our brief in the healthcare case.

The point of the slave hypo is that it underscores why it's not a *pretext* for the federal govt to refuse to incorporate into federal law state law with which it disagrees. It would be a pretext if the feds were trying to *regulate* the States. But it's obviously not a pretext when the feds are trying to defend themselves from being *regulated* by the States.

As for the various smart people who signed the brief, sometimes smart people say crazy things. This is one such time.

As for the SG's advocacy, this bizarre notion of "pretext" is not just wrong, but it would have horrible effects on the federal govt -- there are countless modern analogies to my slave hypo: e.g., whether to treat embryos as property, etc. Why in the world would the SG adopt it just to win this one case, especially when he has non-crazy arguments available to him instead?

Michael C. Dorf said...

It feels to me like you should be having this argument with Ernie Young, Randy Barnett, etc., rather than with me, since I agree with you that the argument should fail; I just don't think it's crazy. I think the challenge for Justice Kennedy in writing this up, should it come to that, will be to devise a principled, workable test that: a) distinguishes between DOMA on the one hand and all of the other, we-would-hope-permissible, federal definitions of statutory terms; but b) is not simply an equal protection test in disguise. If I had to bet, I'd predict that he ends up with a kind of hybrid of the sort that Justice Kagan and SG Verrilli were pushing: Lack of a federal power over domestic relations eliminates what otherwise might be a rational basis for objecting to SSM. But I also think it's possible that he will articulate some true EP-independent rationale. If so, I would expect it to push on the baseline question: How do we know that DOMA is just a matter of the feds trying to avoid being pressured by experimenting states to adopt/subsidize SSM versus the feds trying to pressure the states not to adopt SSM? That would, in turn, likely turn on the legislative history and language of DOMA in some way that at least purports to distinguish it from my DOSSMA and your slavery hypos.

Hashim said...

Trust me, I'm trying with Randy too :) But the Volokh comment threads are a disaster, so I have to resort to email, which keeps the debate private when it needs to be public.

I agree w/ your analysis of the options/difficulties for Kennedy.

Paul Scott said...

"1) Don't enforce, thus ensuring that no one will have standing to challenge the law (if it's the sort of law that won't give rise to private/private litigation) and thereby arrogate to the executive the power to nullify a law that was duly enacted"

Is that really a concern? Isn't that power, and I would suggest duty, already in the executive? This nullifying a law comes with the requirement that the President determine that the law is unconstitutional. (S)he can't just nullify a law (s)he doesn't like. I assume your position is not that when the President takes an oath to both "faithfully execute" the office and "protect and defend the Constitution" that Statutory law (presumably encompassed in faithfully execute") is dominant to Constitutional law?
However, if you don't assume statutes take precedent over the Constitution, I don't get how you can conclude that enforcing an unconstitutional law is consistent with the powers of the Presidency.

"2) Enforce and defend, thus running the risk that you put up a weak defense because your heart isn't in it."

Here, again, I'd suggest the critical distinction is the finding that the law is unconstitutional. I suspect that ever AG and every President has defended laws with which he does not agree. It seems another matter to defend a law you have determined to be unconstitutional.

On the matter of non-enforcement causing a lack of standing, I would suggest that is a good thing. Yes, from time to time you read embarrassing articles about laws that are decades unenforced because they are unconstitutional finally being repealed (usually these reports come from southern States). But apart from some future embarrassment risk what difference does it make if there is a law "on the books" so long as that law is never enforced? I don't often agree with standing doctrine - in fact I wish advisory opinions were available - but this is one where I do. I see no point in wasting the Court's time or the litigants time fighting over a statute the executive has determined is unconstitutional.

I suspect as between the former patent attorney and the top constitutional scholar, it is more like that I am missing something, but I am just not seeing the harm here.

Michael C. Dorf said...

Paul: My worry is driven by the fact that only a very fine--often imperceptible--line separates policy druthers from views about constitutionality. Is it really a coincidence that the government's conclusion that DOMA is unconstitutional was so close in time to the President's change of heart with respect to support of SSM on policy grounds? Or that so many of the people who thought the individual mandate in the ACA was unconstitutional also opposed the law on policy grounds? I don't mean to suggest anything nefarious. It's just that given the substantial overlap between policy and constitutional considerations, a power to non-enforce laws the President thinks are unconstitutional (even in good faith), will bleed into a power to non-enforce laws the President disfavors on policy grounds. That, in turn, undermines the take-care duty.

laborlou said...

SG Verrilli was - by far - the most inarticulate and ineffective counsel on Prop 8 and DOMA. Obama should get himself a new SG ASAP.

matt30 said...

laborlou,I don't think Verrilli is particularly bad (nor good for that matter) but I do think Paul Clement, whatever his politics, is very persuasive. And others can often look inferior in comparison.

I'm curious why Clement didn't more forcefully argue the EP point. He spend the vast majority of the time on his decently crafted federalism theroy (other than that unfortunate moment where Kagan walked him into that both brilliant and horrendous EP trap). It could be he was playing it for Justice Kennedy, but I thought that absence was notable.

matt30 said...
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matt30 said...
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matt30 said...
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matt30 said...

What I find most troubling about the "Federalist Scholars" brief isn't the fact that an underlying spending or benefit law is constitutional while a definition prescribing law isn't (as in the slavery or DOSSMA hypo). I could imagine a law that under commerce clause powers criminalizes "brandishing a gun" in "public" being constitutional. Yet I can also imagine, a second unconstitutional law that merely defines "brandishing a gun" as merely carrying a gun and redefines "public" as only applicable to public school grounds, in effect creating the same scheme in US v. Lopez.

My deeper concern is that Congress can have a mosaic of powers that allows them to put in place a system of law that is legitimate set up one way or in another, but a law that switches the scheme from one to another is not permissible. This goes back to the criticism I had of the medicare decision in NFIB v. Sebelius. How could changing the terms of medicare participation be coercive if either the establishment of medicare in the first instance or the creation of the "new" medicare system isn't? isn't?

Joe said...

laborlou, how was Verilli inarticulate in his discussion on Prop 8, including making the argument I repeatedly have made that the law does not "pause" SSM but stops it by taking it out of normal political processes? He made a good case on how they could rule narrowly to knock it down, since five justices clearly were worried about a broad ruling.

Clement was not at his best & it is not just a matter of having a bad case. The bit about forcing states to recognize marriages was in effect a lie -- the public policy exception prevents that. Saying the Clinton Administration okayed the bill when it came up, something he in effect harped on more than once, just spreads the blame. "Uniformity" was shot down by Breyer and Sotomayor. His standing case was weak.

Of course, he had little to work with, but it wasn't just that.

King Kane said...

I agree with Joe that Clement wasn't that impressive. His pettiness was almost to the point of that of Roberts, who is the pettiest justices I've ever seen since the 90's, and his main argument - uniformity - was totally undermined by Breyer. It was a rare, heroic performance by Breyer and I was pleasantly surprised.

I also agree that Verilli did his job. Granted I wish he was more forceful on the EP argument (including pretext analysis), whatever he omitted on federalism was, imo, adequately covered by Kaplan.

I am waiting to see whether the conservatives will stick to their cherished federalism principles. Especially Thomas. He ducked in Lawrence and Carhart, excusing himself for parties not bringing federalism concern. Now that federalism is at least put forward to the front, I am hoping these cases will finally shut up those Thomas revisionists. (Thomas is actually smart! He's the most principled justice!)

Joe said...
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Publius the Clown said...

I don't understand the federalism argument here. The federal government clearly has the power to define the terms in federal statutes. Justice Alito's example during the oral argument was instructive. He pointed out that Congress could just replace the term "marriage" with something else--e.g., "domestic unit"--and then define it however it wants.

The argument that the definition is pretextual under McCulloch doesn't work because Congress isn't doing anything when it defines terms. The only power that it's actually using is the power in the underlying statutes to which the definition refers. Congress can define the scope of the benefits it provides and liabilities it imposes however it wants, as long as it's providing or imposing them pursuant to an enumerated power and as long as it's not violating any of the Constitution's individual rights provisions.

Philosophical Conservatism said...

In my opinion the argument isn't persuasive, it seems to simply be a cloaked version of the Equal protection argument. The "ulterior motive" expressed in the act shouldn't matter, the question for a Federalist is whether the Federal government should have the power in question. I get you about the volume of the laws that it effects, but if the other side is contending that this definition of marriage was the original basis and inspiration for the law in the first place it doesn't seem to matter. Infact, when the prerogative to define is NOT grounded in belief about the original intent of the law, it is then that it is actually dangerous.

Joe said...

If it is "using" something, it must be "doing something," so don't understand the penultimate comment.

The definition "does something" by closing off possible applications, especially given Chevron deference in agencies, as applied to same sex couples. The 'pretext' is that it is for 'uniformity' or something when it is to promote moral opposition against same sex couples.

This does have the feel of an EP argument but like the 1CA understood, since it interferes with a basic state function that the feds and the courts too have traditionally left as it was unless clear interests to do so existed (cf. Newdow -- prudential standing rules applied v. Loving), a federalist interest exists too.

We can rely on equal protection if desired.

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