July 10, 2010

Congress Lacks a Constitutionally Granted Power to Define Marriage III

Carroll Andrew Morse

What started out as a comment in response to Justin's post here has expanded to size of a full-blown post of its own...

  1. I'm actually not a big fan of the "Bongiorno" test, which seems to me to be yet another example of the basis of the Federal government being shifted away from the idea of enumerated powers and towards the idea that the Federal government has the power to do anything it wants, save for what is expressly forbidden to it by the Constitution and -- even worse -- forbidden to it by limits placed by Federal judges who will, of course, be the ones to decide what areas of state sovereignty are inviolate. There is no basis for the idea that the Tenth Amendment involves two separate classes of powers not delegated to the Federal Government, those that are fundamental to the state, and those that are not. If a power in some area is not delegated to the Federal Government, then the Federal Government doesn't have the power to act in that area, no other test necessary.

  2. Attorney General Coakley's argument, which Judge Tauro agreed with, is that when the Federal government creates its own definition of marriage, it requires states to keep track of different types of marriages, even if the states don't recognize the Federal distinctions in their own laws. In a true Federal system, where the states are sovereign, it is not enough to say the states can opt-out of this requirement by not participating in particular Federal programs; an enumerated power has to exist, if the the Federal government is going to require a state to act in a certain manner, even as part of a Federal program.

  3. However, Judge Tauro obfuscated the above issue by tap-dancing around the basic question of whether Congress does or does not have an enumerated power allowing it to regulate marriage. He never seriously answered that question, but instead decided that since the Fifth Amendment prohibits the Federal government from not allowing same-sex marriage on equal protection grounds (by his own reasoning in Gill V. OPM), Section 3 of DOMA could not be consistent with the powers delegated to a Congress that is required to act Constitutionally when exercising its enumerated powers, unless there exists a specific, constitutional-level exception, which there obviously isn't in this case. Ultimately left unanswered was whether the "Spending Clause" of the Constitution would be enough to give Congress the power to create its own definition of marriage, if that definition was consistent with the rules he created in Gill.

  4. I'll differ with the first sentence of Justin's concluding paragraph...
    The most immediate reason conservatives should be wary is that it means that Americans no longer possess a substantive say in the application of their taxdollars, when those dollars are given to the states. The secondary reason, which will perhaps prove more insidious, is that it opens up a new area in which the federal judiciary has authority to determine when taxpayers retain that right and when they don't.
    ...by noting that Federal action is limited only in areas where there is no enumerated power of the Federal government. And with regards to the second sentence, I'll note that the ruling in Gill may give the judiciary an expansive authority to limit public say in the spending of public dollars, regardless of the enumerated powers and Tenth Amendment issues raised in Mass. v. HHS.

  5. Finally, from the department of you-shall-know-them-by-their-enemies, I'll make note of liberal law professor Jack Balkin's reaction to the Massachusetts v. HHS decision, quoted in the New York Times...
    Professor Balkin, who supports the right to same-sex marriage, said the opinions ignored the federal government’s longstanding involvement in marriage issues in areas like welfare, tax policy, health care, Social Security and more.

    The arguments concerning the 10th Amendment and the spending clause, if upheld, would “take down a wide swath of programs -- you can’t even list the number of programs that would be affected,” he said.