The “Pretext” Argument Against Section Three of the Defense of Marriage Act

In his most recent post, Randy responds to my critique (here and here) of the DOMA “federalism brief.”

He begins by conceding: “In most every conceivable case, there is no objection to any particular definition adopted by Congress for purposes of federal law. Most definitions can easily be shown to be both necessary and proper to an enumerated power.” This is absolutely correct.

But if that’s so, I asked: “what is it that makes DOMA different? The fact that it applies to 1100 statutes…?” And Randy answers: “Yes exactly. It was indiscriminately adopted to apply to all statutes regardless of whether the definition was a necessary or proper means of executing any one of them….”

But this is true of the entire Dictionary Act, all of which was “indiscriminately adopted to apply to” hundreds of federal statutes, enacted under all different heads of federal power. Do the proponents of the “federalism brief” believe (contra, e.g. Bill Eskridge, p.92) that the entire Dictionary Act is unconstitutional? If not, why not?

The remainder of Randy’s post argues that the title of DOMA proves that it was not motivated by the execution of an enumerated power, and that it is thus a “pretext” in the McCulloch sense. See McCulloch v. Maryland (“should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not intrusted to the [national] Government, it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say that such an act was not the law of the land.”)

This seems a very slender reed on which to hang the federalism argument. Is the title of the Act really the linchpin of the objection? Is this really the crucial distinction between DOMA and the rest of the Dictionary Act? Does anyone believe that if 1 U.S.C. 3, which defines the word “vessel,” had been entitled “The Defense of Vessels Act,” it would therefore be unconstitutional?

And even if the title of the Act were some sort of smoking gun, the fact is that the Court has more or less repudiated McCulloch’s “pretext” inquiry, in cases like United States v. Darby. See, e.g., Randy E. Barnett, Commandeering the People: Why the Individual Health Insurance Mandate Is Unconstitutional, 5 NYU J.L. & Liberty 581, 591-92 (2010) (acknowledging that, in Darby, the Court “abandoned” the “pretext” inquiry and “discard[ed] this aspect of McCulloch”). I’m not sure that the Court has struck down even a single federal statute on McCulloch “pretext” grounds for at least 75 years. If this is really the heart of the argument, it faces an uphill battle indeed.

Again, I take no position on the ultimate merits of the case; there may be substantive constitutional problems with the specific definition adopted by DOMA. But the mere fact of a federal definition — which differs from some state definitions but applies only to federal law (like the rest of the Dictionary Act) — does not violate principles of federalism.