A federalism-focused anti-DOMA brief has now been the subject of a flurry of posts on Volokh Conspiracy and NRO’s Bench Memos. (Jonathan Adler’s recent post includes direct links to the posts.) These posts line up Jonathan Adler, Randy Barnett, Dale Carpenter, and Ernie Young against Nick Rosenkranz and Ed Whelan.
In my view, Rosenkranz and Whelan have the better of the exchange. But there is still an important element missing from the discussion, for both sides of this debate assume that the Supreme Court should inquire whether Congress had power to pass the law containing DOMA § 3’s definitions. That’s the wrong question. The Court in Windsor has no good reason to consider the constitutionality of DOMA’s definitions except insofar as that definition is plugged into the estate tax. And when the Court considers the constitutionality of DOMA’s definitions of “marriage” and “spouse” in connection with the estate tax, the “necessary and proper” analysis has a straightforward answer.
DOMA § 3 has the kind of legal effect that the federal courts have business dealing with in Windsor only by virtue of that provision’s application in conjunction with the estate tax. By its terms, DOMA § 3 is nothing more than a directive about how to determine “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 “Act of Congress” in this case is codified at 26 U.S.C. 2056, a spousal exemption from the federal estate tax. Ms. Windsor would have avoided paying a significant amount of money in estate taxes if she had qualified under federal law as Ms. Spyer’s “spouse.” Because Ms. Windsor did not qualify as a “spouse” for purposes of the federal estate tax, she had to pay.
Ms. Windsor’s challenge to the limited reach of the estate tax’s spousal exemption takes the form of a refund action. The “judicial review” question is whether a court may give legal effect to DOMA’s definitions in the course of deciding this refund action.
The federalism-based anti-DOMA brief answers this question “no” on the grounds that a court may not give legal effect to DOMA’s definitions in any case–the provision as a whole (DOMA § 3, but not all of DOMA) exceeds Congress’s powers. The federalism-based anti-DOMA brief attacks DOMA’s definitions on their own and in conjunction with every other provision of federal law in which DOMA’s definitions of “marriage” and of “spouse” might apply. But the brief does not attack DOMA’s definitions insofar as they are plugged into the estate tax exemption at issue in the case.
The brief argues that “[a] federal definition of marriage that indiscriminately applies to more than 1100 federal statutes and programs can be ‘plainly adapted’ to none of them.” But that is not right. DOMA’s round peg fits into all the round holes, and there are many of them in federal law.
If the spousal exemption in the estate tax is a round hole, such that DOMA’s definitions are “plainly adapted” to it, that is the end of the no-power argument for this case. Congress has power to tax and concomitant power to define the scope of the federal estate tax in a way that declines to exempt Ms. Windsor and others similarly situated.
To escape this move, the anti-DOMA federalism briefers might try to argue that the court should entertain a kind of overbreadth challenge to DOMA: Even though DOMA’s definitions are plainly adapted to the estate tax, the definitional provision is invalid in its entirety because it is not plainly adapted to some other areas of federal law (like, for example, bribery rules). This argument would probably fail on its own terms, as DOMA’s definitional provisions have a plainly legitimate sweep. But the more fundamental problem is to explain why this form of challenge should be entertained at all.
My analysis is closest to the portion of Whelan’s in which he writes that “section 3 of DOMA is merely definitional and … section 3 plugs into other congressional enactments. If those other enactments are within Congress’s power, then it is plainly within Congress’s power to define the terms it uses in those enactments.” And it is similar to Rosenkranz’s, which describes DOMA § 3 as a “cut-and-paste function”:
DOMA Sec 3, like all definitional provisions, is essentially a cut-and-paste function. Where you see X, you should read Y. Obviously Congress could simply have erased X throughout the US Code and replaced it with Y. Likewise, presumably, Congress could have added an “X shall mean Y” definitional section at the end of every single statute. And so, I can’t see any objection to a global definition at the beginning of the U.S. Code.
But one objection raised by the anti-DOMA federalism brief is to the use of a “global definition.” Because it is global, the argument goes, it is not “plainly adapted” to any particular exercise of an enumerated power. My analysis provides a response to this form-based objection.