Will Kennedy extend Calhounism by striking
down DOMA?
In a recent piece,
Linda Greenhouse sounds a warning alarm regarding the downside of the possible use of
Calhounism (a/k/a "states rights") by Justice Kennedy to strike down DOMA:
Beware of conservatives bearing gifts.
Ever since last week’s frustrating Supreme Court argument in the Defense of Marriage Act case, I’ve been wondering whether the attack on DOMA will turn out to be a constitutional Trojan horse. It may bring victory: the demise of a spiteful federal statute, enacted by an opportunistic Congress and signed into law 17 years ago by a cowardly Bill Clinton. But at what price? [...]
[W]hat reverberated from the bench was the discordant music of federalism – the federalism that almost sank the Affordable Care Act; the federalism that seems about to put a stake through the heart of the Voting Rights Act; the revival of the mid-1990s federalism revolution that had seemed, until recently, to have run its course [. ...]
I understand Greenhouse''s point, but my view is that "federalism" is just a device used by the radical conservatives of the Court to support results they wish to achieve. It is always there for the conservative bloc to grab as a justification whenever it can facilitate a result they favor. In the DOMA case,
U.S. v. Windsor, it provides Justice Kennedy a neat way to achieve a result he may favor—striking down
Section 3 of DOMA (which prohibits the equal treatment of same sex marriage) while permitting individual states to continue to deny marriage equality. (This has been called the "baby bear" (as in Goldilocks) result as, to some observers, it gets the trajectory of progress on marriage equality "just right," not too fast and not too slow.)
The threat of "Calhounism" as applied to DOMA seems overstated because, at least to me, it seems a sui generis application that provides no workable blueprint for generalized application.
Follow me below for an examination of the merits of the federalism argument as applied to DOMA and what threat it may pose in the future.
What precisely is the federalism argument presented to the Court in DOMA? Ilya Somin, one of the draftors of the amici brief submitted in support of the federalism argument says Greenhouse has misunderstood the argument:
Greenhouse’s argument is based on a fundamental error: she conflates structural limits on Congress’ authority outlined in Article I of the Constitution with individual rights constraints on the states. In reality, it is perfectly possible for a particular law to be both beyond the scope of Congress’ authority if enacted by the federal government and a violation of constitutional individual rights if adopted by a state. Our federalism brief merely claims that Congress lacks the constitutional authority to enact DOMA because the law exceeds the scope of Congress’ enumerated powers. That conclusion is perfectly consistent with the view that state laws banning gay marriage violate individual rights protected by the Fourteenth Amendment.
If this is the basis of the federalism argument, it is weak indeed, even if you accepted (as I do not) the "states rights" construct.
Jason Mazzone (while making errors of his own IMO) explains:
The federalism argument—Congress somehow lacks power to define marriage for purposes of federal law/Congress should not be able to interfere in an area of traditional state concern and turn state-sanctioned marriages into “skim-milk marriages”–is riddled with problems. The most obvious weakness is that this argument is not really what it sounds like. It is not actually an argument about DOMA’s federal marriage definition. Instead, the argument is really a complaint about the myriad ways in which the federal government has come to exercise power with respect to marriages.
DOMA, while clearly treading more on traditional state functions than say, Medicaid (I'll get to this point further below), it is not an intrusion on state functions in that it is applicable solely to federal programs.
The fact is there is no rhyme or reason to the application of federalism concepts by the radical conservatives of the Court. It is merely a tool in the arsenal of the conservative bloc to make arguments to achieve the case result they desire. Getting a fifth vote to strike down DOMA, via federalism grounds, does not expand the threat to the New Deal in a way that does not already exist. The Roberts opinion on the Commerce power is much more threatening.
In my post A Dark Cloud on this Sunny Day, I quoted Justice Ginsburg's dissent that explains the threat:
Straightforward application of these principles would require the Court to hold that the minimum coverage provision is proper Commerce Clause legislation. Beyond dispute, Congress had a rational basis for concluding that the uninsured, as a class, substantially affect interstate commerce. Those without insurance consume billions of dollars of health-care products and services each year. See supra, at 5. Those goods are produced, sold, and delivered largely by national and regional companies who routinely transact business across state lines. The uninsured also cross state lines to receive care. Some have medical emergencies while away from home. Others, when sick, go to a neighboring State that provides better care for those who have not prepaid for care.[...]
Rather than evaluating the constitutionality of the minimum coverage provision in the manner established by our precedents, THE CHIEF JUSTICE relies on a newly minted constitutional doctrine. The commerce power does not, THE CHIEF JUSTICE announces, permit Congress to “compe[l] individuals to become active in commerce by purchasing a product.” Ante, at 20 (emphasis deleted).
THE CHIEF JUSTICE’s novel constraint on Congress’ commerce power gains no force from our precedent and for that reason alone warrants disapprobation.
Justice Ginsburg also highlights the selective concern expressed by the conservative bloc when it comes to the limits of the Commerce power:
The Necessary and Proper Clause “empowers Congress to enact laws in effectuation of its [commerce] powe[r] that are not within its authority to enact in isolation.” Raich, 545 U. S., at 39 (SCALIA, J., concurring in judgment). Hence, “[a] complex regulatory program . . . can survive a Commerce Clause challenge without a showing that every single facet of the program is independently and directly related to a valid congressional goal.” Indiana, 452 U. S., at 329, n. 17. “It is enough that the challenged provisions are an integral part of the regulatory program and that the regulatory scheme when considered as a whole satisfies this test.” Ibid. (collecting cases). See also Raich, 545 U. S., at 24–25 (A challenged statutory provision fits within Congress’ commerce authority if it is an “essential par[t] of a larger regulation of economic activity,”such that, in the absence of the provision, “the regulatory scheme could be undercut.” (quoting Lopez, 514 U. S., at 561)); Raich, 545 U. S., at 37 (SCALIA, J., concurring in judgment) (“Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce. The relevant question is simply whether the means chosen are ‘reasonably adapted’ to the attainment of a legitimate end under the commerce power.” (citation omitted)).
The
Raich case referenced by Justice Ginsburg is, of course, the case of
Gonzales v. Raich where the Court ruled:
Congress’ power to regulate purely local activities that are part of an economic “class of activities” that have a substantial effect on interstate commerce is firmly established. See, e.g., Perez v. United States, 402 U.S. 146, 151. If Congress decides that the “ ‘total incidence’ ” of a practice poses a threat to a national market, it may regulate the entire class. See, e.g., id., at 154—155. [...] Given the enforcement difficulties that attend distinguishing between marijuana cultivated locally and marijuana grown elsewhere, 21 U.S.C. § 801(5), and concerns about diversion into illicit channels, the Court has no difficulty concluding that Congress had a rational basis for believing that failure to regulate the intrastate manufacture and possession of marijuana would leave a gaping hole in the CSA. Pp. 12—20.
No federalism concerns there you see. The point being, as I wrote last week in
How Justices decide:
Does this reasoning sound "too political" for the Supreme Court? Well, welcome to the real world, the Legal Realist world that understands that the Court is a political institution, that justices act politically and that results dictate opinions as much as opinions dictate results.
Greenhouse cites a litany of crucial cases that would be undermined if the federalism argument in the DOMA case is taken seriously. I think that to the degree those cases, and future cases like them, would be imperiled, they already are under threat.
Justice Kennedy's grasping for Calhounism to reach the result he prefers does not add to the threat. The added risk is minimal and the benefit, the striking down of Section 3 of DOMA, significant.
It is a tradeoff I would be willing to take.