Monday, November 04, 2013

Justice Kennedy's Intriguing (But Mistaken) Theory That Federal Officials Can't Take Authority From State Law

By Mike Dorf

Last week, Jess Bravin reported in the Wall Street Journal that Justice Kennedy recently announced that he does not officiate at weddings because the Justice has "a theory that federal judges can't take authority from state laws"--although, as Bravin also reported, Justice Kennedy is not sure whether the theory is valid.

I must say that I admire Justice Kennedy (for many reasons but including) for adopting this rule. Having a rule means that he can simply invoke the rule in turning down requests by former clerks and others who ask him to preside at their weddings. Without such a rule, if he performed any weddings, he would have to explain to some people why he was not presiding at their weddings.  But of course, the fact that a rule is useful as a means of avoiding tough line drawing or as a means of letting people down easily doesn't mean that the rule is constitutionally required.  I have a rule that I will not change a student's exam grade unless I made a ministerial error (like adding up the number of points incorrectly). This rule enables me to avoid entertaining grade appeals.  But I don't have a theory that my rule is constitutionally required.

So what are we to make of Justice Kennedy's rule?  Can state law assign tasks to Article III judges?  Surely not without the consent of the Article III judges, for that would violate the Supremacy Clause. Article III judges are creatures of federal law.  Just as states may not impose term limits on members of Congress (per U.S. Term Limits v. Thornton) and states may not tax federal entities without consent (per McCulloch v. Maryland), so states may not require federal courts to undertake state tasks.

Under what theory would the Supremacy Clause or any other constitutional provision be violated when a federal judge voluntarily agrees to perform a wedding ceremony?  One possibility might be the view that, as a matter of state constitutional law, the state may not delegate state power to federal (or other non-state) officials.  But even if some states have such a form of non-delegation doctrine, other states do not, and Justice Kennedy did not appear to be saying that he is only forbidden from performing marriages in states with non-delegation doctrines that forbid delegations to federal officials; he appeared to be saying that he is forbidden from performing marriages under the law of any state, even a state that does not have the non-delegation doctrine I've described.  In other words, he seems to be describing a proscription found in federal law.

Ah, but where?  No federal statute forbids federal judges from performing state marriage ceremonies, so it would have to be the federal Constitution itself that forbids federal judges from voluntarily accepting state duties.  What part?

The Bravin article suggests that the answer has to do with federalism, but I think that's wrong.  The federal government can't "commandeer" state executive or legislative officials but those officials can voluntarily (or as a condition of receiving federal funds) agree to enforce federal law or enact state laws proposed by Congress.  Likewise, it's hard to see how principles of federalism would generally forbid federal officials from voluntarily undertaking state functions.

The key word in that last sentence is "generally."  We can imagine state duties that are so demanding that by voluntarily undertaking to perform then, a federal official thereby neglects his or her federal duties.  Performing an occasional wedding would not, however, qualify for that proviso.

I think a better constitutional argument against federal judges accepting the power to perform state weddings would be rooted in Article III--which authorizes federal judges to decide cases and controversies, not to perform other tasks.  So Justice Kennedy could invoke Hayburn's Case and its progeny for the proposition that federal judges may not be assigned non-judicial business.

That's a better argument but still not a persuasive one.  For one thing, in Hayburn's Case Congress assigned the courts non-judicial business that was then reviewable by the executive, thus rendering the courts' work advisory.  That's not true of performing marriages.

For another thing, even in Hayburn's Case, various judges thought it permissible to determine pension eligibility as commissioners, rather than sitting as a court.  And in modern times, federal judges have routinely performed non-judicial tasks in a non-judicial capacity.  Think of Earl Warren's work on the eponymous Warren Commission, the service of Art. III judges on the Sentencing Commission and the Federal Rules Advisory Committee, etc.  If voluntary service on such bodies is consistent with Art. III, then the much less demanding job of occasionally solemnizing a wedding should be too.

Finally, note that most states that authorize federal judges to perform weddings do so in virtue of their status as federal judges.  New York's law governing who can solemnize a wedding is an example.  But suppose that state law authorized anyone to perform weddings or authorized a sub-class of persons to which some federal judge happened to belong (persons holding licenses to pilot boats, say, or competent persons over the age of 18), but did not single out federal judge-ness as the basis for the judge's eligibility to solemnize a wedding.  If one thinks that the federal Constitution limits the ability of state law to deputize federal judges as wedding solemnizers, one might think that it does so only insofar as state law relies on the federal judicial appointment as the grounds for deputizing the judge as a potential solemnizer.

8 comments:

Joe said...

O'Connor and Ginsburg both married same sex couples at the Supreme Court building recently.

[The justices and others also married others, including Thomas marrying Limbaugh once, but we know what is on our minds at the moment.]

So, what if he marries in D.C.? It is not a "state law" is it?

As to your last bit, in many and maybe most (it's a bit iffy in my state) you can get ordained online and that will allow you to marry a person. In fact, wouldn't it be a serious 1A concern not to allow even federal judges to marry people pursuant to their religious beliefs?

Anyway, at least one state allows the couple to marry themselves. Is that an issue if a federal judge is a member of the couple?!

Joe said...

"marry" here means "perform a marriage ceremony"

Mark Regan said...

Isn't this just a pro-federalism overreading of Pennhurst II? If federal judges can't enforce state laws against state officials, maybe they can't use state laws as authority for anything they do, even on their own time in a private capacity.

Paul.K said...

As to your last bit, in many and maybe most (it's a bit iffy in my state) you can get ordained online and that will allow you to marry a person. In fact, wouldn't it be a serious 1A concern not to allow even federal judges to marry people pursuant to their religious beliefs?
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