Is there a federal definitions power?

• Author: Young, Ernest A.

ABSTRACT

Although the Supreme Court decided United States v. Windsor on equal protection grounds, that case also raised important and recurring questions about federal power. In particular, defenders of the Defense of Marriage Act (DOMA) argued that Congress may always define the terms used in federal statutes, even if its definition concerns a matter reserved to the States. As the DOMA illustrates, federal definitions concerning reserved matters that depart from state law may impose significant burdens on state governments and private citizens alike. This Article argues that there is no general, freestanding federal definitions power and that sometimes--as with marriage--federal law must incorporate state law definitions.

CONTENTS INTRODUCTION I. FEDERALISM, EQUALITY, AND WINDSOR II. CONGRESS'S POWER TO DEFINE MARRIAGE A. Specific Enumerated Powers B. Necessary and Proper C. Do Definitions Require an Enumerated Basis? III. DEFINITIONS AND CONSTITUTIONAL STRUCTURE CONCLUSION INTRODUCTION

In United States v. Windsor, (1) the Supreme Court held that Congress may not discriminate, in the administration of federal programs, between same-sex and different-sex couples that are each legally married under state law. Writing for the Court, Justice Kennedy said that such discrimination, required by Section 3 of the federal Defense of Marriage Act (DOMA), (2) violated the equal protection component of the Fifth Amendment. (3) This essay, however, concerns a different argument that the Court had before it but did not reach in Windsor--that is, that Congress lacked any enumerated power to define marriage in such a way as to exclude same-sex couples from the federal definition of marriage. (4) The Court was entirely sensible not to reach this argument, but the debate in and around Windsor gave rise to broad claims about Congress's power to define the terms in federal statutes in ways that impose burdens on individuals and state governments. (5)

That issue is unlikely to go away. As DOMA illustrates, Congress's ability to rule persons in or out of innumerable federal regulatory schemes and benefit programs gives it significant leverage over matters that it might well lack power to regulate directly. One can readily imagine other federal interventions into controversial aspects of family and privacy law masquerading as federal "definitions"--for example, federal definitions of "parent" or "child" that excluded same-sex adoptions, or a federal definition of "person" that included a fetus. If the arguments for Congress's "definitional" prerogative are taken seriously, they would offer a formalistic end-run around the few remaining limits on Congress's enumerated powers.

I argue here that Congress lacks any freestanding "definitions power." Most federal definitions, of course, will either fall within or be necessary and proper to the implementation of Congress's specifically enumerated powers. But the Court's recent decisions make clear that the Necessary and Proper Clause is not a blank check; there will be instances in which Congress cannot impose its own definition of a particular concept and must, as a matter of constitutional necessity, adopt the definition provided by state law. Federal law, in these cases, takes state law as it finds it. I submit that the definition of marriage, at least in the broad context of DOMA, is one of those instances.

The definitional issue, as I have said, transcends the immediate controversy over DOMA. In keeping with the theme of this Symposium, however, Part I offers a few thoughts about the broader relationship of federalism principles to that controversy and to the Supreme Court's decision in Windsor. Part II turns to the constitutional basis and limits of Congress's authority to define terms for purposes of federal law. Part III concludes with some implications of those limits.

1. FEDERALISM, EQUALITY, AND WINDSOR

   It has become fashionable both to criticize Justice Kennedy's opinion in Windsor as unclear or incoherent and to discount its references to federalism. (6) In this symposium, Andrew Koppelman's otherwise interesting discussion dismisses federalism as a "distraction" and accuses Justice Kennedy of "oddly fetishiz[ing] state law." (7) I find Kennedy's opinion neither incoherent nor unclear; in fact, it is surely one of the finest examples in the United States Reports of interweaving principles of federalism with principles of equal protection. Much of the reaction to the opinion may arise because it is not what most commentators either hoped or expected to see.

   It has likewise become commonplace to condemn those of us that presented federalism arguments to the Court in Windsor as somehow disingenuous or operating in bad faith. "Beware of conservatives bearing gifts," Linda Greenhouse warned in a New York Times blog post. (8) Striking down DOMA on federalism grounds, in her view, is "a truly bad idea, and the campaign for marriage equality would be worse off for it." (9)

   Part of the problem with this argument is that it is bad constitutional law. Ms. Greenhouse, who is not a lawyer, asserts that "[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." (10) That, of course, could not be more incorrect. If the Court had said, as the Federalism Scholars' brief argued, that Congress lacked enumerated power to enact DOMA, that would have had absolutely nothing to do with whether a state-level ban violated the Equal Protection Clause. And I remain mystified why Greenhouse reads that brief as an "assertion of implicitly boundless state authority over family affairs." (11) Equating an argument that marriage lies within the States' reserved power with a claim that that power is not subject to federal constitutional rights guarantees is simply an elementary mistake.

   The Federalism Scholars' brief did argue that, because the Constitution reserves power to define marriage to the States, Congress may not assert any interest in defining marriage in a way that reflects the moral views of the national community. (12) It is true that a State would have such an interest, and in that sense a state same-sex marriage ban would present a somewhat tougher case. But the hornbook principle that states have a general police power interest in protecting the "health, safety, and morals" of the community is not something one can make go away simply by scrunching one's eyes closed. It is this principle, for instance, that also undergirds state laws approving same-sex marriage. And in the end that principle is unlikely to make any difference in a challenge to a state's same-sex marriage. The most plausible arguments against state same-sex marriage bans have always invoked levels of scrutiny that this sort of general police-power interest in morality cannot satisfy, (13) and the Court made clear in Lawrence v. Texas (14) that a bare interest in upholding community morality was insufficient to sustain a law that harmed gay people. In any event, acknowledging what is plainly true--that states have some interest in making moral choices on behalf of their citizens--hardly "take[s] the equal protection guarantee out of the picture," as Ms. Greenhouse asserts. (15) Every assertion of a state's interesting in defining family status relationships remains subject to Fourteenth Amendment challenge; Loving v. Virginia, (16) which Greenhouse cites, makes that absolutely clear. The fact that DOMA had constitutional problems in addition to equal protection doesn't change that fact.

   It is worth dwelling on Ms. Greenhouse's error, moreover, because it displays a broader misunderstanding about the relationship between federalism, liberty, and equality. As someone who graduated from college in the sixties, it's not surprising that Greenhouse equates federalism with racism. (17) This is a parochial perspective in terms of both time and space. It ignores not only the antebellum history, in which national power was consistently exerted to preserve slavery, often over the objection of northern state governments, (18) but also the reality of contemporary American politics, in which state governments are often at the vanguard of progressive causes. (19) It ignores the comparative constitutional experiences of other multi-level governance systems; the German Federal Constitutional Court, for instance, has recently reaffirmed that constitutional principles of democracy and fundamental human rights require limits on the centralization of power in the European Union. (20) And it ignores much of the best contemporary scholarship on constitutional structure, which lauds federalism as a way of empowering dissenting minorities. (21)

   Ms. Greenhouse appears uninterested in any of this. Instead, she asks "where have these people been for the past 17 years?" (22)--as if only proven liberals are morally entitled to challenge a law like DOMA. (23) If Greenhouse had done any actual reporting on the subject, she would know better. Dale Carpenter, one of the prime movers of the brief, has advocated gay rights from a conservative perspective for over two decades. (24) Randy Barnett, another co-author of the brief, has not only been the leading intellectual defender of Lawrence v. Texas (25) but has also made federalism arguments in favor of other liberal causes--most notably as counsel for Angel Raich in the Supreme Court's medical marijuana case. (26) My own record is similar. (27) It is insulting for Greenhouse to cry "hypocrisy"--especially without checking the facts.

   It may be that the gratuitous nastiness of Ms. Greenhouse's attack--"Federalism tends to emerge from under the rocks," (28) like a serpent or an insect--reflects the last gasp of a dying paradigm. In any event, the present symposium provides ample illustrations of the contributions federalism can make to the same-sex marriage debate. Consider some of the arguments advanced by same-sex...