Federalism: It Isn’t Just For Conservatives Anymore

That’s about as provocative a post title as I could think of for a more detailed report on the more interesting of the two cases issued yesterday striking down the Federal Defense of Marriage Act, Commonwealth of Massachusetts v. United States Department of Health and Human Services. And it’s more than a little unfair because I happen to think that the principle of federalism is one that ought to transcend one’s political preferences. It doesn’t, very frequently, because whether one is deferential to a federal law or to a state’s law seems to depend a lot more on whether one has a policy preference for the result as opposed to a belief in the process.

I.  Let’s Dispense With The Idea That Either Conservatives And Liberals Care About Federalism As Anything Other Than A Periodic Convenience

Where is the right boundary line drawn? Social conservatives will, in the wake of Commonwealth v. DHHS, be anxious to take as expansive a reading of Federal power as they can so as to justify the Defense of Marriage Act. This is oddly consistent with the position taken in, for instance, Gonazles v. Raich, the “medical marijuana” case in which the authority of Congress to criminalize marijuana in the Controlled Substances Act was upheld (by a narrower margin than expected). At the same time, though, these same people are the ones most likely to be outraged by Wickard v. Filburn and, more contemporaneously, the “Obamacare” health care reform laws, which are the subject of several pending challenges as having exceeded Federal power.

Not that the politically liberal side of American discourse has been either historically or contemporaneously consistent in their views of Federal-state distribution of power, either – social liberals are all for the use of Federal power to combat racial and gender discrimination in private employment and historically favored Federal laws imposing minimum wages and maximum hours of work, but oppose as an unlawful extensions of Federal power mandates for “waiting periods” or dispensing of information before abortions are performed. The result, for nearly everyone, is more important than how the result is reached.

As I see it, there is no “liberal Constitution” and no “conservative Constitution.” It’s the same Constitution for all of us. And whether we like the results of a Constitutional analysis of a law or not, we need to understand that this is the supreme law of the land and we all must submit to it. It, too, can be amended, although that is (appropriately) a very difficult thing to do. With that said, the document is intended primarily to create the basic framework of a government of divided powers – powers divided between the branches of the national government, and powers divided between the national and state governments, all of which are limited in scope by individual rights and liberties. Protecting those liberties is accomplished by limiting the powers of government and as we all know or ought to know, setting appropriate limits on the powers of the Federal government was in 1787 and remains today the fundamental issue of Constitutional law.

II.  How Deferential Would A Principled Approach To Federalism Be?

In the most narrow view of Federal power, the Federal government may do only those things which fall within the subject matter areas of the enumerated powers – typically defined as those which are explicitly set forth in Article I, section 8 of the Constitution, although there are a few others. If it’s not enumerated, it’s not something the Feds can do and therefore the Tenth Amendment reserves that power to a state acting under its “police power” or “plenary power,” essentially the power to legislate and regulate on anything it chooses. This is a hard-textual reading of the Constitution. It is also close to the position adopted by secessionists prior to the Civil War and by proponents of Jim Crow and segregation laws in the first half of the twentieth century. It is also a position taken by many contemporary libertarian political scholars who, while they condemn the racially-tainted uses the doctrine has been put to in the past, nevertheless insist that it is the best way to look at the Constitution.

It also is fundamentally inconsistent with post-New Deal jurisprudence about the Commerce Clause. Almost certainly as a result of political leveraging of the Supreme Court in FDR’s Presidency, the Court in the 1930’s began to take a very expansive reading of the power of Congress to regulate “interstate” commerce as one of its enumerated powers. Pretty much any activity with any economic effect whatsoever, even seemingly purely local activity like a farmer growing wheat to feed his own family, or growing marijuana for personal use within the same state that it is grown, may be “aggregated” into part of broader economic activity and therefore fall within the scope of Federal regulation. To date the only limits to this defined in Supreme Court jurisprudence relate to automatic penalty enhancements for either the possession of firearms within a defined number of feet of a school or certain acts of violence perpetrated against women.

There is also a series of Federal laws operating with a concept called “cooperative federalism,” by which the Federal government creates incentives – or withholds those incentives – based on a state’s “voluntary” decision to comply with a Federal law. This is how there was a national speed limit of 55 miles an hour when I was a kid, for instance; in the 1990’s, Congress abandoned this particular application of the concept but the idea remains still within the potential reach of Congress – if a state adopted the Federal speed limit, it became eligible for Federal highway funds; if it chose to set a speed limit higher than that, no Federal money. Compliance with a variety of Federally-“mandated” educational programs at all levels of public education are incentivized this way, and so are certain welfare programs like AFDC, Medicare, and TANF. So far as I know, no one has ever even brought a serious challenge to the concept of “cooperative federalism,” and it is a way in which the Federal government may (indirectly, but not very indirectly) reach into areas that were considered “traditionally” the exclusive province of the state police power.

The most expansive view of Federal power is that when there is a significant national emergency, the Constitution is not a suicide pact, permits things to be done in exigent circumstances that would be more questionable in calm times, and the President’s power as commander-in-chief and the unitary Federal official charged with faithfully enforcing and enacting the laws permits the government to do more or less anything it wants at any time. This is functionally the claim made by the Bush Administration because of the Global War On Terror and, frankly, the Obama Administration hasn’t backed away from it all that much. It is also functionally the position taken by the Lincoln Administration in the Civil War, which was used to justify things like arresting a sitting Congressman and suspension of the writ of habeas corpus by Presidential order – things which were later determined to be unconstitutional, although not until after the shooting had ended.

Making it even more complicated are areas of “concurrent jurisdiction,” in which both state and Federal law may apply. For instance, states may regulate boats and other watercraft, and so may the Federal government as long as the watercraft are operated on the ocean, in “navigable rivers and lakes,” or in Federal enclaves like national recreation areas (for instance, Lake Powell in Utah). What constitutes a “navigable river” is far from objectively determinable. Ostensibly, it means that you can access it from the ocean. But very recently, the Los Angeles River was deemed to be “navigable” although I don’t think that in even the rainiest of seasons you could take anything more than a canoe up or down it, certainly nothing that could handle the rough seas of the ocean. Calling it a “river” at all as opposed to a “concrete-lined ditch” is something of a vanity, too. Ah, but I digress.

Ah, but I digress. We were trying to understand what are the Constitutionally appropriate demarcations of Federal and state powers. To that end, here’s an interesting concept is one I came across in a very different context recently: “expressio unius est exclusio alterius, that is, the express mention of one thing excludes all others.” That isn’t very helpful, so let’s try again in something more strongly resembling English. “Where Congress explicitly enumerates certain exceptions to a general prohibition, additional exceptions are not to be implied, in the absence of evidence of a contrary legislative intent.” TRW Inc. v. Andrews, 534 U.S. 19, 28 (2001) (quoting Andrus v. Glover Constr. Co., 446 U.S. 608, 616-617 (1980)). I’ve not found evidence that the idea is used as a canon of Constitutional interpretation; however, if it’s a principle by which statutes are interpreted then it would seem to be appropriate to apply to the Constitution, too.

So if the Constitution sets out specific powers of the Federal government by subject matter area, the principle of expressio unius est exclusio alterius suggests that in areas which are silent, the Federal government lacks power. So that takes us back to the first and least Federal-friendly lens through which to look at the Tenth Amendment; unless it’s enumerated in Article I, Section 8, the Federal government can’t do it. Taken with the understanding that the Commerce Clause is broad enough in its modern application to justify a great deal of Federal power, that’s more or less the approach I would suggest is the right one. What’s more, the Constitution limits the powers of the states, too. Article I, Section 10 provides a list of things states may not do. That list is added to by roughly half of the Amendments to the Constitution, too. Given that the Constitution has a list of specific restrictions on the exercise of a state’s plenary power, expressio unius est exclusio alterius tells us that if a particular kind of law is not excluded from a state’s powers, it is therefore included.

This view is also consistent with one of the original conceptions of the Constitution, which was that it was a compact between the States to limit their own power and establish a central government for their common benefit.

III.  The Full Faith And Credit Clause Is Irrelevant To This Case

But there are also what may be called the “transactional” powers of Congress, and here we get in to some really interesting questions. Separate and apart from the Commerce Clause’s power, Congress has the power to regulate relations between the states, for instance and most interestingly in this case, Article IV, Section 1, which reads in full:

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

It is not entirely clear how much of this section is properly called the “Full Faith and Credit Clause,” but both sentences are part of the Constitution. I’ll have more about this in a moment. But the point is that the Constitution, itself, requires one state to recognize and give effect to the laws and other public acts which have taken place in other states. So a money judgment against me in California can be enforced against me if I move to Tennessee; Congress may pass a law whereby the manner in which such a “sister-state judgment” can be uniformly recognized. In practice, each state has its own “sister-state judgment” law and except for Indiana, Massachusetts, and Vermont they are all the same law, so there is no need for such a Federal law, although it would seem that Article IV, Section 1 would authorize such a law were Congress to pass it. So with that in mind, let’s take a look at DOMA itself. The disputed provision, 1 U.S.C. section 7, reads as follows:

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.

Supporters of DOMA have long claimed that this falls squarely within the powers explicitly given to Congress by Article IV, Section 1. Critics of DOMA have long claimed that Article IV, Section 1 prohibits the enactment of DOMA. I’m a critic of DOMA and unsurprisingly, I think that the Full Faith and Credit Clause does not authorize Congress to prescribe which legal acts of one state must be given effect in another state. Congress doesn’t get to pick and choose – for instance, money judgments for debts predicated upon writing bad checks must be honored across state lines, but money judgments for debts incurred in gambling need not be. No – a judgment is a judgment is a judgment. Congress may say how you prove up a sister-state judgment, but if there’s a judgment against me in California, Tennessee is obligated to honor and enforce that judgment, no matter what Congress says.

But what about that last bit of the clause, “…and the effect thereof”? To what word or phrase in the previous clause does the word “thereof” refer? “General Laws” (as in, “the effect of the general laws Congress enacts”)? “Acts, Records and Proceedings” (as in, “the effect of the acts, records, and proceedings”)? Or “proved” (as in, “the effect of proving an act, record, or proceeding”)? Or all of the above? Maddeningly, rules of composition and style were hardly settled in 1783 when this document was written. I’m reminded of a classic grammar bromide:

It seems to me that a reading of the clause that would allow Congress to pick and choose which kinds of civil judgments, criminal convictions, and contracts issued by one state had to be honored in others would completely defeat the purpose of having a Full Faith and Credit clause in the Constitution in the first place. 

But, we do not need to address this issue today. The Full Faith and Credit Clause will eventually come in to play when a state (let’s say, Wisconsin) refuses to recognize a same-sex marriage license given by a sister state (let’s say, Iowa). That’s not the case in Commonwealth v. DHHS. In yesterday’s case, the issue was literally hundreds of thousands of dollars that would have flowed from the Federal treasury into Massachusetts state coffers for veteran’s graveyards should the spouse of a Massachusetts veteran ever be buried next to her wife who had honorably served in our nation’s proud military and not violated the Don’t Ask, Don’t Tell policy.

So we are dealing with the Federal government’s relationship to a state here, not to the relationship between two states with the Federal government serving as an intermediary. Thus, the Full Faith and Credit Clause is not an issue here and while I acknowledge it will eventually be a big player in this debate, maybe as soon as in the Perry v. Schwarzenegger decision, it’s not in play today. So let’s move on to the real juice and let me get some sleep tonight because the hour is growing late.

IV.  The Resurrection Of The “Traditional State Powers” Doctrine

You see, the most interesting thing about the Commonwealth decision is not its effect on same-sex marriages from a Federal constitutional perspective. For that, you need to look at Commonwealth’s companion case decided by the same judge on the same day but on different grounds, Gill v. Office of Personnel Management. The Gill case struck down DOMA on the grounds that it violates the Equal Protection Clause, and will likely weigh heavily in the upcoming decision in Perry v. Schwarzenegger. For a pessimistic view of the long-term effects of Gill, I refer you to no less powerful an authority on same-sex marriage law than Professor Dale Carpenter, who fears that the less-than-full-throated treatment the issue received from both the Government’s attorneys and the Court have left an intellectually shaky foundation for future equal protection challenges to state laws about same-sex marriage. No, the really interesting thing in Commonwealth is the standard of analysis used by the judge in his Tenth Amendment review of DOMA.

 
Functionally, Judge Tauro revives the idea that the Tenth Amendment prohibits the Federal government from legislating in “traditional state governmental functions” . This approach was struck down as a matter of doctrine in Garcia v. San Antonio Metropolitan Transit Authority (1985) 469 U.S. 528. The judge actually has some reasonably good intellectual support for doing so, as Professor David Kopel points out. And it is here that social conservatives should really sit up and take notice. As the first and third links in this paragraph describe, this rationale would have profound implications on a fairly significant amount of recently-passed social and economic legislation. The bulk of Obamacare, for instance, falls sharply under a shadow of doubt given the Tenth Amendment rationale used by Judge Tauro, because the regulation of insurance companies has traditionally been something states have done rather than the Federal government. So, those Tea Party activists who have been claiming for a long time that Obamacare represented an unconstitutional overreach of Federal power, therefore, ought to welcome the Commonwealth decision as a step in the right direction.

Which brings us full circle. Almost any legal rationale is almost always going to have results that people of either political persuasion will find agreeable and other results that they find disagreeable. You need to pick your rationale carefully, because you’re going to have to live with its results even when they are unpleasant. A rationale that says the Tenth Amendment is a strong and vital part of the Constitution means that there are a lot of things the Federal government can’t do, and no matter who you are or what your political ideology is, you’re inevitably going to like some of the things that a strong Tenth Amendment will prohibit.

As for this case, ask yourself this – if you had to choose one and only one result, would you a) invalidate Obamacare and tolerate same-sex marriages, or b) enact Obamacare and lose same-sex marriages? As for me, it’s a choice between a) eating ice cream or b) cleaning toilets. I’ll pick option “a” every time – no Obamacare (yay) and same-sex marriages (yay). For me, the challenge would be, would I be willing to give up a powerful Title VII in order to get there? (Probably yes, because most states have state-level anti-discrimination laws that are at least equal to Title VII so it wouldn’t be that much of a sacrifice. But let me think about that a bit before I give you my final answer.)