By Mike Dorf
The potentially crucial moments in yesterday's oral argument in United States v. Windsor came during two painful exchanges. Under questioning from CJ Roberts, SG Verrilli appeared to say that the Justice Dep't was not denying that the federal government has the affirmative power to define the term "marriage," as used in various federal statutes, in a way that differs from how the states define it. I say "appeared" because, after making the concession to the Chief Justice, SG Verrilli then took it back in response to a question from Justice Kennedy. Justice Kagan then tried to help him out and the SG grabbed at the lifeline. The SG finally said that the fact that the federal government lacks the plenary power to regulate family affairs in the way that states do, means that the federal government cannot advance all of the same sorts of interests to defend DOMA that a state may advance to defend a state law banning same-sex marriage--and therefore, that the federalism concern could be relevant to the application of the equal protection analysis. But SG Verrilli did ultimately reaffirm the concession he had made to the Chief Justice: The United States does not take the position that DOMA is invalid on federalism grounds standing alone.
Accordingly, SG Verrilli abandoned the one argument that appeared most likely to appeal to Justice Kennedy. And in fact, observing the flow of the oral argument, it was clear that this was the whole point of the exchange. CJ Roberts was using SG Verrilli to argue to Justice Kennedy that there is no substance to the federalism objection. Why didn't SG Verrilli resist that maneuver?
I can think of two explanations. The first, uncharitable, explanation, is incompetence. I don't think SG Verrilli is generally incompetent but he does have a penchant for showing up at extraordinarily important oral arguments without well-rehearsed pithy answers to difficult-but-foreseeable questions.
A second, more charitable explanation is that the DOJ was in a tight spot. As the federal government's representative before the SCOTUS, the SG was understandably reluctant to say that any particular statute is beyond the power of Congress. Especially given what five Justices were willing to say less than a year ago about the limits of the Commerce Clause in the Obamacare case, the SG and other Administration lawyers could well have concluded that it would be dangerous to press an argument that DOMA exceeds Congress's affirmative powers. At the end of that road could lie the invalidation of the Endangered Species Act and God knows what else.
Let's be charitable and assume that the second explanation is correct. That still left undefended the proposition that seems most likely to garner Justice Kennedy's critical fifth vote. And that's because attorney Roberta Kaplan, arguing for the respondent Windsor, also failed to articulate the federalism argument. In fact, her answers to the Chief Justice, Justice Scalia and Justice Alito suggested that she didn't really understand--and thus was totally unable to rebut--the argument that was advanced by Paul Clement for upholding DOMA as against a federalism challenge.
Kaplan said that the federal government doesn't issue marriage licenses because regulating marriage is a reserved power of the states. So far so good. But DOMA does not purport to authorize the federal government to grant marriage licenses. DOMA defines marriage for purposes of over a thousand federal laws. As long as Congress had the affirmative power to enact those laws, Clement said, then Congress doesn't need any additional power.
For example, the federal law governing spousal Social Security benefits is an exercise of the Spending Power, and so as applied to such benefits, DOMA is an exercise of the Spending Power. Or take Windsor itself. The federal law governing the taxation of estates and inheritance--including exceptions for testamentary transfers to surviving spouses--is an exercise of the Taxing Power. And so, as applied to Windsor, DOMA is an exercise of the Taxing Power.
That's Clement's argument for rejecting any freestanding federalism objection to DOMA, and on the face of it, that's a pretty good argument. It is thus unfortunate--and arguably the product of incompetent lawyering--that there was no effort by SG Verrilli or Ms. Kaplan to respond to this argument and thus to bolster Justice Kennedy's position.
In fact, there is something quite substantial that could have been said on the other side that ought to appeal to Justice Kennedy. It goes like this:
Ordinarily, when Congress defines the terms of one or more statutes it has enacted, we can assume that Congress is attempting to specify how the powers backing those statutes are to be exercised. But where, as in DOMA, Congress paints with such a broad brush as to touch on over a thousand, largely unrelated provisions of the federal code, and does so in language that so obviously betrays a substantive aim largely unconnected to any of those provisions, it is fair to infer that this blunderbuss approach has some other aim. Here that aim is plain: Congress attempted in DOMA to use its other powers pretextually, as a basis for circumventing the 10th Amendment and enacting a de facto federal law of marriage. But at least since McCulloch v. Maryland, we have understood that such a pretextual use of Congress's enumerated powers is not necessary and proper. QED.
Is that a persuasive argument? One might worry about (a variant on) the hypo that CJ Roberts offered. Suppose Congress were to repeal DOMA and replace it with DOSSMA--the Defense of Same-Sex Marriage Act. DOSSMA treats married same-sex couples and same-sex couples who have entered into civil unions in states that forbid SSM but permit such unions as married for purposes of federal law. Perhaps it also permits same-sex couples in states that do not even acknowledge same-sex civil unions to apply for a federal certificate of marriage equivalence, and treats them as married for purposes of federal law too. If there is a persuasive freestanding federalism objection to DOMA, then that same objection appears to knock out DOSSMA--unless the Court were willing to uphold DOSSMA as a permissible exercise of Congress's power to enforce the Fourteenth Amendment under Section 5 of that Amendment. But the Court's cases narrowly construe the Section 5 power, except where Congress acts to enforce a recognized right, so the ability to distinguish DOSSMA from DOMA would depend on the Court also recognizing a right to SSM. But if the Court were willing to do that, then we wouldn't need to worry about the federalism issue in the first place. The DOSSMA hypo thus troubles me.
Nonetheless, the hypo probably doesn't trouble Justice Kennedy, who might very well be perfectly comfortable saying that both DOMA and DOSSMA are beyond the powers of Congress on federalism grounds. Indeed, I read Justice Kennedy's exchange with Paul Clement as containing the germ of the italicized argument above. It's too bad that the lawyers didn't articulate something like that argument under questioning.
Luckily, the relevant points were made pretty effectively in an amicus brief on behalf of self-described "Federalism Scholars." Whether the argument works could be thought to depend on whether there is a satisfactory method for determining when Congress is using its powers pretextually. Reasonable minds can differ on that question--and they have so differed.
For an enlightening look at the arguments on each side, I recommend that readers follow the links backwards from Nick Rosenkranz's most recent post on the Volokh Conspiracy. Nick and some others are skeptical of the federalism argument; Randy Barnett and still other scholars are more enthusiastic. I have nothing more to add to the merits of their disagreement but I will say that the relevant audience here is Justice Kennedy, and that today's argument pretty strongly showed that he is comfortable with it.
That's not surprising to me, because the pretext argument not only plays to his federalism instincts; it strongly resonates with his opinion in Romer v. Evans. In both instances, the breadth of the exclusion bespeaks an illegitimate motive, whether the illegitimacy is a matter of equal protection (as in Romer) or of federalism (as in Windsor). We scholars can argue about what test to use to detect an illegitimate motive, but Justice Kennedy knows one when he sees one.