The Volokh Conspiracy

Tad DeHaven of the Cato Institute has a good post highlighting the data on state governments’ growing dependence on federal funds. Since 2001, federal grants have risen from 25.7% of state government spending to 34.1% today. Most of that growth has occurred since the present recession began in 2008.

One of the main distinctive benefits of American federalism is that, historically, state governments have had to raise most of their funds from their own taxpayers, rather than relying on grants from the feds. This gives states incentives to compete for taxpayers and improve the quality of their policies and public services, thereby increasing the effectiveness of voting with your feet. I cover these points in more detail here.

In most other federal systems, the central government provides the lion’s share of subnational governments’ funding. If present trends continue, the United States may join this trend. State governments will increasing look to Washington for most of their funds, and incentives for competition and innovation will be undermined. It’s possible that fiscal policy will return to “normal” as the economy improves. But state governments are likely to lobby for current grant levels to continue even after the recession ends. Current federal subsidy levels could easily become the new normal.

The editors of the Liberty Fund’s new Law and Liberty website recently asked me to write a short article on federalism and freedom commenting on the Supreme Court’s decision in Bond v. United States, where a unanimous Court emphasized that “[f]ederalism secures the freedom of the individual” as well as the prerogatives of state governments. My piece is available here:

In Bond v. United States, an otherwise unremarkable recent Supreme Court ruling, a unanimous Court emphasized a profoundly important point: that “[f]ederalism secures the freedom of the individual” as well as the prerogatives of state governments. In addition to setting boundaries “between different institutions of government for their own integrity,” constitutional federalism also “secures to citizens the liberties that derive from the diffusion of sovereign power.”

The case has important implications for both the immediate future of constitutional law and deeper issues of constitutional theory. For the near future, the decision suggests that the Court is not likely to reject federalism claims merely because they seem to be motivated by a desire to protect individual freedom rather than an interest in state autonomy for its own sake. More broadly, the case focuses attention on the ways in which limits on federal government power really do promote individual liberty…..

is there any reason to believe that federalism protects individual freedom more generally? After all, history shows that state and local governments can also threaten liberty…..

Enforcing limits on federal power is no panacea for freedom. Nonetheless, federalism does promote liberty in several important ways. First, when political power is decentralized, individuals can “vote with their feet” against jurisdictions whose policies are oppressive or heavy-handed…..

The more political power is decentralized, the more areas of government policy will be subject to constraint by foot voting. Thus, limits on federal authority help realize the potential of foot voting as a protection for liberty.

State and local oppression is also less dangerous than federal oppression because it affects fewer people. An oppressive policy enacted by one state usually undermines liberty only for its own residents. By contrast, if Washington adopts the same law, it will cover the entire nation……

Ultimately, a free society must guard against threats to liberty from all levels of government. That requires imposing constraints on both state and federal authority. Liberty needs multiple institutional safeguards. Federalism by itself is not sufficient. In some situations, state and local governments can themselves become threats to our freedom. At the same time, federalism can enhance liberty in many situations by allowing us to vote with our feet and by limiting the reach of oppressive policies.

Other parts of the article describe some of federalism’s limitations as a safeguard for freedom, such as its relative ineffectiveness in protecting immobile people and property against abuse.

As co-blogger Jonathan Adler notes, Rick Santorum’s view of constitutional federalism is that the federal government can always override the states when the latter are doing something that is “wrong”:

I’m a very strong supporter of the 10th amendment . . . but the idea that the only things that the states are prevented from doing are only things specifically established in the Constitution is wrong.

Our country is based on a moral enterprise. Gay marriage is wrong. As Abraham Lincoln said, states do not have the right to do wrong. And so there are folks, here who said states can do this and I won’t get involved in that.

I will get involved in that because the states, as a president I will get involved because the states don’t have a right to undermine the basic fundamental values that hold this country together.

Although I’m no fan of Santorum’s, there is a small kernel of truth to his argument. Some evils are so great that we may be justified in violating constitutional limitations on federal power in order to eliminate them. Slavery is probably the best historical example. Even some anti-slavery jurists, including Dred Scott dissenter Justice Benjamin Curtis, thought that Abraham Lincoln had exceeded his constitutional authority when he issued the Emancipation Proclamation (which freed all slaves held in the rebel states). But even if Curtis was correct, Lincoln still did the right thing. As Thomas Jefferson wrote in a letter defending the Louisiana Purchase (which he undertook even though he thought it was unconstitutional), “[A] strict observance of the written law is doubtless one of the high duties of a good citizen, but it is not the highest.”

But there is a big difference between claiming that we are morally justified in violating the Constitution in some extreme cases and concluding, as Santorum did, that the Constitution allows the federal government to “get involved” whenever the states are committing a “wrong.” That would essentially give the feds the power to override the states anytime a national majority or the federal political elite thought state policies were wrong in some way. It would lead us to essentially unlimited federal power.

Maybe such unlimited power would not be a bad thing if we were confident that the feds would restrict themselves to overruling the states only when the latter are genuinely “wrong” in some objective sense, while otherwise leaving them alone. In reality, however, an unconstrained power to correct state wrongs is also an unconstrained power to impose federal wrongs. And federally imposed wrongs are often more dangerous than state wrongs. A “wrong” state policy affects fewer people than a similar federal policy does. Moreover, people can often “vote with their feet” to escape harmful state laws, which is much harder in the case of federal laws.

Obviously, there are important exceptions to these generalizations, some of which I have written about elsewhere. But there is good reason to reject the view that the federal government should be allowed to override the states anytime the latter do something “wrong.”

UPDATE: It’s worth noting another important difference between the view that unconstitutional actions are sometimes justified for the purpose of alleviating truly massive state injustices and Santorum’s claim that the feds can act anytime states do something “wrong.” In the former case, federal officials subject themselves to the risk of legal action, including possible impeachment. If they explicitly admit that they are violating the Constitution (as Jefferson did), they could also face public backlash for it. These dangers will tend to mitigate the risk that federal officials will violate the Constitution anytime they find a state policy they dislike. Such risks are much smaller in a political environment where a Santorumesque interpretation of the Constitution becomes dominant.

Newt Gingrich recently claimed that Founding Fathers George Washington and Thomas Jefferson “would have rather strongly discouraged you from growing marijuana and their techniques with dealing with it would have been rather more violent than our current government.” As Jacob Sullum points out, this ignores the fact that Washington and Jefferson themselves grew hemp on their plantations, and that marijuana use was neither illegal nor socially stigmatized in the late 18th and early 19th centuries.

Perhaps more importantly, few if any of the Founders would have thought that the federal government had the constitutional authority to ban marijuana growing. As I discuss in this article, as late as the early twentieth century, advocates of Prohibition had to enact a constitutional amendment to forbid the sale of alcoholic beverages, because the dominant view at the time held that Congress did not already have the power to do this. If they are serious about enforcing constitutional limits on federal power, Gingrich and other conservatives cannot continue to ignore the ways in which the War on Drugs has severely undermined those limits, most notably in Gonzales v. Raich, the Supreme Court’s most expansive interpretation of federal authority so far.

The WSJ Law Blog reports on comments by former Senator Rick Santorum (unearthed at RedState) on federalism and the authority of different states to adopt different policies on moral questions.

I’m a very strong supporter of the 10th amendment . . . but the idea that the only things that the states are prevented from doing are only things specifically established in the Constitution is wrong.

Our country is based on a moral enterprise. Gay marriage is wrong. As Abraham Lincoln said, states do not have the right to do wrong. And so there are folks, here who said states can do this and I won’t get involved in that.

I will get involved in that because the states, as a president I will get involved because the states don’t have a right to undermine the basic fundamental values that hold this country together. America is an ideal. It’s not just a constitution, it is an ideal. It’s a set of morals and principles that were established in that declaration, and states don’t have the right, just like they didn’t have the right to do slavery.

If Senator Santorum is a “strong supporter of the 10th amendment,” he might want to read it, as it seems to say precisely what he denies.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The Constitution only prohibits states from doing those things the Constitution prohibits, and the federal government may only constrain state autonomy pursuant to those powers delegated to the federal government.  Santorum may think same-sex marriage is wrong, but nothing in the Constitution prevents states from recognizing same-sex marriage nor does anything in the Constitution authorize the federal government to stop states from doing so.

The reference to Lincoln is also interesting, and does not exactly support Santorum’s claim that “states don’t have a right to undermine the basic fundamental values” of the nation. Contrary to Santorum’s suggestion, states did have the legal authority to permit slavery prior to adoption of the Thirteenth Amendment (which was adopted, incidentally, well after Lincoln’s death). The Emancipation Proclamation, issued pursuant to the President’s War Powers, only applied in those states that had seceded.  The federal government had the authority to limit slavery, such as by ending the slave trade or (prior to Dred Scott) prohibiting slavery in federal territories, but states retained the authority to “do wrong.”

A more charitable interpretation of Santorum’s remarks would be that there is nothing in the 10th Amendment that would prevent a constitutional amendment to prohibit gay marriage.  That would be true, but trivially so.  There is nothing in the Constitution that prevents the adoption of additional amendments on anything (with one exception still relevant today).  But this only makes the point.  Were a constitutional amendment  adopted prohibiting same-sex marriage, then states would be specifically prohibited from recognizing such marriages  by the Constitution, not by some conception of America’s “moral enterprise” or the “basic fundamental values” of the nation.

I am sorry to be the bearer of bad tidings during the holiday season. Unfortunately, however, I recently learned that University of Illinois law professor Larry Ribstein passed away suddenly earlier today. Larry was a well-known and highly regarded legal scholar – one of the best of his generation. He wrote extensively on corporate law, federalism, and the future of legal education.

No doubt there will be many analyses and appreciations of Larry’s outstanding contributions to scholarship over the coming days and weeks. My personal favorite among his many excellent works is his recent book The Law Market (coauthored with Erin O’Hara), which is perhaps the best recent book on the potential benefits of competition between state legal systems in American federalism. Larry is also well-known in the legal blogosphere for his insightful posts at Truth on the Market, where he wrote an excellent post on ABA accreditation of law schools just a few days ago.

I have known Larry professionally for several years, and he was always a courteous and helpful colleague, including for much younger and lesser-known scholars. I saw him give a workshop presentation just a couple months ago, where he was, as always, in excellent form. His unexpected passing comes as a terrible shock. He will be greatly missed by his family, friends, and colleagues.

UPDATE: The official memorial notice from the University of Illinois is available here.

Before I go, I wanted to leave you with a few thoughts about these legal issues that go beyond the issue of DOMA and same-sex marriage.

As you may have gleaned, it turns out that marriage isn’t the only area where federal law draws upon or relies upon a pre-existing concept under state law. As has been mentioned in passing in my posts and in the comments, bankruptcy and tax law frequently draw upon state property law. (Before you tax and bankruptcy experts complain, yes, I know that federal law doesn’t always follow exactly what the state does, but in many cases the variations in state law are incorporated.) That’s also true in criminal law (where prior state convictions trigger increased punishments for later federal crimes), in federal enclaves (where the Assimilative Crimes Act incorporates the criminal law of the surrounding state), and much more. Henry Hart called this kind of federal law “interstitial.”

In some of areas of “interstitial” law, the choice of law problems are pretty well worked out. It’s pretty obvious to everybody that your prior state convictions are determined by the state where you were convicted, and so on. But in others, the choice-of-law problem is subject to the same kinds of ambiguities as marital law is, so my article provides some insight for resolving those areas too. (For example, my article shows why the Klaxon rule, which some courts have used, shouldn’t be extended to those areas.)

I think I have another normative point, too. Sometimes when interstitial law is invoked in a particular context, it strikes people as weird or counter-intuitive. Shouldn’t the scope of a federal right or the meaning of a federal law be uniform? I hope that our exploration of interstitial law convinces you that the answer is “not necessarily.” In many areas that are politically controversial, legally technical, or both, federal law has drawn much of its effect from state law.

At least two cases pending at the Supreme Court this term involve a dispute over interstitial law — the social security case of Astrue v. Capato (thanks, Nick, for calling it to my attention), and the habeas case of Gonzalez v. Thaler. In Capato, the federal government champions interstitial law — it wants state law to determine when a child conceived after his father’s death (by artificial insemination, of course) can inherit — in Gonzalez, it’s the habeas petitioner — he thinks state law makes his federal habeas petition timely. I’m not sure about the correct ultimate outcome in either case, but I think it’s important for the Court to see that there’s nothing anomalous or weird about relying on state law in such cases.

Thanks to Eugene and his co-conspirators for letting me crash here for the week, and thanks to the commenters, many of whom were insightful or informative. If you want to hear more from me, you can read my articles on SSRN (stay tuned for my blockbuster essay on the Jurisdiction and Venue Clarification Act), and you can follow me on Twitter (though it’s really not my medium). I’m sure I’ll see you all around the blogosphere again someday — maybe soon, maybe in a year or two.

Amidst all of my many posts about what federal courts should do if DOMA is struck down, I thought I should say a little bit about Congress.

First — and this may be obvious to some readers but perhaps not to all — Congress could of course fix the choice of law problem by providing a statutory rule. Indeed, one of the few virtues of DOMA is that it is just such a rule. And in one of the most recent proposed bills that would repeal DOMA, Congress has also proposed replacing it with a choice of law rule.

I think this is a great idea. If DOMA goes away, Congress should exercise its power to replace it with some legitimate choice of law rule (obviously, if DOMA is unconstitutional, the replacement rule couldn’t be identical to DOMA, but there are a lot of other possibilities).

A congressional choice of law solution would have more legitimacy than a common-law solution, and could be more far-reaching, considering a broader range of policy considerations. (It could even extend federal marital benefits to civil unions, as discussed in my exchange with JHW.) Indeed, the opportunity to provide a replacement rule is one reason that Congress ought to repeal DOMA rather than just waiting around for the courts to have their way with it.

As for what rule Congress should adopt, I think the rule proposed in S.598 is a pretty good one. That rule is:

For the purposes of any Federal law in which marital status is a factor, an individual shall be considered married if that individual’s marriage is valid in the State where the marriage was entered into or, in the case of a marriage entered into outside any State, if the marriage is valid in the place where entered into and the marriage could have been entered into in a State.

For domestic marriages, the bill makes the marriage valid if it was valid where the couple got married. (Note, by the way, that with very rare exception, a marriage is almost always valid where the couple got married, because the couple usually chooses to get married someplace where their marriage will be valid.) For international marriages, there is the extra requirement that it must be a marriage that is valid in at least one state — no polygamy, no brother-sister marriages, no marrying nine-year-olds.

This is something of a “maximalist” approach to the choice of law problem, because in practice it will make almost all same-sex marriages valid. (Or at least it is “maximalist” within the realm of the traditional choice of law options.) So I think it would be problematic for courts to impose a solution like this without Congressional authorization. But it would also maximize stability and predictability for same-sex couples, at least with respect to federal law. As with the common-law solution, there’s plenty of room for argument about what rule Congress should adopt, but it would be nice if it stepped in with a rule.

However, I am pessimistic about this actually happening. Scholars have been calling for Congress to fix various choice of law problems for decades, and it rarely happens. While the DOMA repeal bill is a sign that at least somebody in Congress has thought about this issue, I don’t think anybody should be holding their breath for that bill, or any other statutory solution. That’s why I spent so much time blogging about the courts.

So I’ve explained why I reject two of the three possible approaches that federal courts take to the marital choice of law problem. The one that’s left over is the so-called federal common law approach, where courts craft a common-law doctrine for deciding which state’s marriage law is relevant to a federal statute.

You might ask, wasn’t federal common law forbidden by the Court’s decision in Erie v. Tompkins? No, not really. Here is how the Court explained it just last term in AEP v. Connecticut:

“There is no federal general common law,” Erie R. Co. v. Tompkins famously recognized. In the wake of Erie, however, a keener understanding developed. See generally Friendly, In Praise of Erie — And of the New Federal Common Law, 39 N.Y.U. L. Rev. 383 (1964). Erie “le[ft] to the states what ought be left to them,” id., at 405, and thus required “federal courts [to] follow state decisions on matters of substantive law appropriately cognizable by the states,” id., at 422. Erie also sparked “the emergence of a federal decisional law in areas of national concern.” Id., at 405. The “new” federal common law addresses “subjects within national legislative power where Congress has so directed” or where the basic scheme of the Constitution so demands.

I elaborate on this more in the paper, but basically it should be pretty clear that this kind of choice-of-law rule — choosing the state law on which a federal statute has chosen to rely — is the kind of “area of national concern” where a federal common law rule is okay.

That leaves us with the question: well, what rule? It may be a little anticlimactic to say so, but I don’t actually think it is that important what the rule is. The important thing is that there be a rule, so that federal law have a consistent test for deciding whether a couple is married. (As others have noted, whether a couple is married will still depend on state law, but at least the federal law will have a single approach for evaluating it.)

The rule I advocate in the paper is that the courts should look at the choice-of-law rules of the couple’s domicile. So, if a same-sex couple lives in Massachusetts or Maryland or New Mexico, they are married for purposes of federal law. If they live in Texas, they are not.

Basically, I think the federal government’s goal here should be to leave the smallest footprint possible, and I think the federal government does that best by treating couples the same way at home as their state does. (Obviously there are arguments that federal law should guarantee a constitutional right to same-sex marriage, but if so, that should be done directly, through interpretation of the 14th Amendment, not in a roundabout fashion by manipulating choice of law.)

Another important consideration is that there are at least a couple of statutes that do provide marital choice of law rules (for social security and for some veterans benefits) and they both look to the law of the domicile. These statutes were trumped, for same-sex marriages, by DOMA, but they will presumably spring back into effect if DOMA is gone. They affect just a tiny piece of the federal law of marriage recognition, but it would be best for a federal common law rule to be consistent with them, so that marriage can get a unified treatment throughout federal law.

So there you have it. My experience has been that a lot of people have different intuitions about what the right federal common law rule should be, and that those intuitions tie very closely to whether they like or don’t like the right to same-sex marriage. But if I’ve convinced you that there should be a rule, and that courts have the power to create a rule, that’s the important part.

I have a little bit more to say about this– about both Congress’s role, and about a few other areas of law. I’ll try to post about them tonight or this weekend, before my magic Volokh credentials turn back into a pumpkin, and I turn back into a regular, non-blogging fellow.

Before I get to the last phase of my stint here, I thought it would be helpful for me to address one recurring theme in the comments. John D’s comment this morning is representative: “how are opposite-sex married couples treated in conflict-of-laws situations? We’ll take that, then.”

The important thing to recognize is that there is no established answer for how opposite-sex married couples are treated! All of these posts about different approaches aren’t hypothetical, they’re all real doctrines already applied to the conflicts problem outside of the same-sex context.

I think this is non-intuitive for many people — lawyers and non-lawyers — because they have a sense that legal uncertainty is pretty commonplace, and people usually manage to just muddle through. Even if doctrine is uncertain on the margins or theoretically incoherent, most of the time it just doesn’t matter much. But choice-of-law doctrine is unusually uncertain, and unusually incoherent, even compared to other legal doctrines!

Also, there are two practical reasons that these uncertainties haven’t made much of a difference, most of the time, to straight couples.

First, the uncertainties really bubble to the surface only when some states so strongly oppose a type of marriage that they exercise their traditional prerogative to refuse to recognize that marriage when it is consummated out of state. That hasn’t happened very often.

Second, the times when it has happened have simply not featured the same numbers as same-sex marriages do. In the last census, more than 130,000 same-sex couples described themselves as married! (Interracial marriage might have featured sizable numbers, I’m not sure, and if so, I’m not sure why the problem didn’t come up as much as you would expect in that context. I wonder if it had to do with the smaller size and scope of federal regulation.)

Anyway, I agree that, without DOMA, the conflicts rules for opposite-sex marriage will be applicable to same-sex marriages. But the point is that there is no single conflicts rule for opposite-sex marriages, and the same-sex marriage controversy will probably force us to resolve the old conflicts problem at long last.

So earlier this morning (yesterday, Eastern Time, which apparently governs the Volokh Conspiracy), I explained why the federal government does indeed need to look in large part to state law when it tries to figure out whether a couple is married. In this post we’ll discuss another alternative solution with a goofy case name: “Klaxon.”

To recap, Klaxon is a general rule for solving choice of law problems in federal court when there is no federal law involved. And the solution Klaxon provides depends on the physical location of the federal trial court where the litigation takes place. It says that the federal trial court should imagine itself as a state court in the same state, and then do whatever that state’s courts would do.

Commenter “JHW” asked, in the previous post mentioning Klaxon:

Is there a practical difference, in the marriage recognition context, between the Klaxon rule and the “federal common law” rule that the law of the domicile is controlling?

There would be, presumably, in a diversity case, if for example the spouses lived in different states. But for a couple living in the same state seeking federal recognition, it seems that applying a state’s choice-of-law rules and applying a state’s marriage recognition rules amounts to applying precisely the same set of rules. Perhaps because I’m nearly totally ignorant of this area of law, the way you’ve framed this confuses me a bit.

There is a big difference: a Klaxon rule will often pick a very different state than the parties’ domicile, because Klaxon depends entirely on what state the lawsuit is in, and federal lawsuits can often be filed in one of several different districts. (There is a legal doctrine called venue that determines what district a lawsuit can be filed in.) So a couple might live in Texas, but wish to challenge an agency action in the District of Columbia or someplace totally different.

Now, as I noted earlier, this Klaxon rule controls in federal lawsuits that are brought in diversity jurisdiction, i.e. when no federal law is involved. And several courts (though not the Supreme Court) have suggested that the rule should be extended to federal cases too. I don’t think that makes much sense.

Here’s the most important reason why. Federal law is frequently enforced and administered by the executive branch. That’s a huge amount of what administrative agencies do all day, and we expect agencies to apply federal law in a huge range of cases that will never go to court, or will only go to court years later, after the agency has hopefully gotten things pretty much right.

But the Klaxon rule and the executive branch don’t mix very well. Under the Klaxon rule, you only know what law to apply once there has been a federal lawsuit, because only then will you know in what state the district court is located. So the executive branch just has to guess where the litigation will be brought. Moreover, since the plaintiff often has a choice of several different venues, he can strategically select a venue that will produce a choice of law rule that will contradict what the executive branch did.

This isn’t a problem in the diversity jurisdiction context, because the executive branch isn’t very involved in enforcing state law. But executive branch enforcement is a big part of federal law which results in federal question jurisdiction. The fact that Klaxon doesn’t mesh with executive branch enforcement is a very important reason not to extend Klaxon to federal question cases.

By process of elimination, that means that federal courts will have to craft their own choice of law rule as a matter of so-called federal common law. Tomorrow, we’ll talk about what that rule should be.

Before we dive deeper into the federal cases I blogged about this morning, I thought it would be helpful to clarify a point featured in several comments. Namely, isn’t the Full Faith and Credit Clause involved here somewhere? The answer is: not very much, and certainly not enough to make the problem go away.

The Constitution provides that “Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.” The clause has some application in this area, but it doesn’t force states to recognize marriages from other states for several reasons.

First of all, even though the Clause mentions “public acts,” it has not been interpreted to apply to statutes (like a law stating which marriages are valid) or marriage licenses with the same force it has for judicial proceedings. Relatedly, states have traditionally refused to give effect to another state’s statute if they think doing so is against their “public policy,” and this has been thought to be okay under the Full Faith and Credit Clause.

Moreover, even if the clause did normally require states to give effect to foreign legislation (or if the parties somehow get a judicial judgment based on their same-sex marriage), the clause delegates substantial power to Congress to decide what “effect” those acts, records, and proceedings have. And Congress has explicitly provided (in that other section of DOMA that I said wasn’t very important) that “No State . . . shall be required to give effect to any public act, record, or judicial proceeding of any other State . . . respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State . . . or a right or claim arising from such relationship.” (For lots of fascinating history demonstrating Congress’s power under the Full Faith and Credit Clause, I recommend Steve Sachs’s Full Faith and Credit in the Early Congress.)

Now, some of these points are controversial. There are scholars (like my own law school’s dean, Larry Kramer) who argue that Section 2 of DOMA is unconstitutional and that the Full Faith and Credit Clause requires greater interstate recognition of marriage. Steve Sanders has made a similar argument under the Due Process Clause. But that’s not the state of judicial doctrine today, so the interstate disagreement about same-sex marriage is still something that courts have to deal with unless and until that doctrine is radically changed.

To sum up: Yes, there are some federal rules about interstate recognition of marriages. But those rules give states enough leeway that there’s still a great deal of state disagreement, which is all that matters for purposes of my argument. If you want to know more about this, there is a ton of recent scholarship on Full Faith and Credit, some of it cited in the paper.

Here are a few follow-up questions to my first post this morning.

“Burt Likko” says: Prop. 8 is worded: “…only marriage between a man and a woman is valid or recognized in California.” I have a hard time getting past the plain meaning rule to reach a result that an Iowan or Canadian same-sex marriage license would be “valid or recognized” in California.

Answer: Maybe. But note that in Strauss v. Horton, (starting on p. 128) the California Supreme Court has already made an exception to the text of that provision, holding that same-sex-marriages that preceded the enactment of Prop 8 are indeed valid and recognized in California. The court relied on background principles of anti-retroactivity, as well as respect for vested rights (and the state’s due process provision). And Maryland recognizes out-of-state same-sex marriages despite a law that provides that “only a marriage between a man and a woman is valid in this State.”

Would a marriage validly celebrated in another state — especially by a resident of that other state, though that is not the only scenario — be treated as a “vested right” that Prop 8 left intact? I do not know, but I am not as sure as the commenter is that the answer is obvious.

“Henry Clay” asks: I’ve been looking forward to this post because I’ve been wondering what examples there are of states not recognizing marriages from other states apart from the obvious examples of SSM and Jim Crow. Are you really going to just wave your hand at that (“sometimes they don’t”) or is there another post on the way?

Answer: If you really want to dig into the historical examples here, you’ll have to leave the blogs. The short answer is that most of the examples are indeed from same-sex marriage and the interracial marriage context. Basically, most states claim a right to refuse to recognize a marriage only in extreme circumstances, known as the “public policy exception,” and this exception doesn’t get invoked that often.

For further reading about the rarity (outside of same-sex marriage) of the “public policy exception,” see Steve Sanders’s very engaging paper, The Constitutional Right to (Keep Your) Same-sex Marriage.” For further reading about the interracial marriage precedents (and others), see Andrew Koppelman’s excellent book, Same Sex, Different States (the only e-book I’ve ever purchased!). To see what other complications I’m trimming out for blogging purposes, see my paper.

“Rocket Scientist” says: I take some small issue with the claim that same-sex marriages would be recognized in New Mexico. The opinion is an attorney general opinion not really a court ruling, so there may still have to be litigation in order to resolve the question.

Answer: A good point! While I’m not aware of a court in any of the states I mentioned that has bucked the ruling of the state Attorney General, those issues are still up for grabs in litigation, so the state of affairs is even more uncertain and confusing than I made it sound.

This brings me to my ultimate point — which is that this is a mess. (There is a saying you only need to know two things about conflict-of-laws: that there is no area where 20th-century academics have had a greater impact on the law, and that there is no area of the law that is more screwed up.) And we haven’t even gotten to the worst part of the conflicts problem yet, which will come when we bring in the federal government. So stay tuned; it gets worse before it gets better.

So we’ve established that in a world without DOMA, state law is the natural place to look to figure out whether a same-sex couple is married. Here is where we meet our first conflict-of-laws problem.

You surely know that some states allow same-sex couples to marry, and others do not. So what happens when a couple lives in a no-same-sex-marriage state, but gets married out of state? Or lives and marries in a same-sex-marriage state, but then moves to a no-same-sex-marriage state? Well, it depends.

In Maryland (or Rhode Island, or New Mexico), the couple will still be treated as married, even though they couldn’t have gotten married in that state. In many other states, they won’t be. Texas is an extreme example: a same-sex couple moved there from Massachusetts and wasn’t even given access to divorce court, because Texas figured they were never married in the first place.

And in other states, the answer is still up in the air. Remember the controversy about District Judge Vaughn Walker’s same-sex relationship, and possible marriage plans? Steven Gillers suggested that if Walker had any interest in getting married, he could just travel to Iowa or another same-sex-marriage state. Ed Whelan’s response was that such a marriage should not be recognized in California. But the strange thing is that California law isn’t really clear on this point, so even after looking into it, I don’t know for sure how the California courts would apply Prop 8 to an out-of-state same-sex marriage.

Now, in a sense, this is not a new problem for the states. People have been getting married and moving around for a very long time. But there’s never been widespread agreement about the solution to that problem. Most of the time states defer to the state where the marriage was “celebrated,” but sometimes they don’t.

So when you ask whether a same-sex couple is married under state law, the answer depends on which state you ask.

A number of commenters have asked about the relationship between law and marriage. Some, for example, have taken issue with the statement in my paper’s abstract that “marriage is primarily a creature of state law.” So I thought it was worth explaining a little but more about the relationship between state law and marriage.

Obviously, marriage is partly a private, non-governmental act. You can “marry” in the eyes of your religion or your community without ever marrying in the eyes of your state. Or you can have two separate marriage ceremonies — one religious and another one designed to satisfy the state’s requirements — which is what I did when I got married. In that sense, marriage is not just something the government makes up.

But the government also has a lot of rules which depend on whether or not you are married — being married affects your taxes, your health benefits as a federal employee, rights under an ERISA plan, child custody, your right not to testify, and so on. So even if you think the private, non-governmental part of marriage is more important than the government-recognized ceremony, the government still needs a way to figure out who is married and who isn’t. It generally uses state marriage ceremonies (or common-law marriage, now mostly of historical interest) to do so. Of course, you could also try to get rid of all laws that treat married couples differently from unmarried couples, but I no longer think that’s wise, and it’s certainly not going to happen any time soon.

So when I say that “marriage is primarily a creature of state law,” I really mean: “when the law deals with marriage, it’s mostly state law, not federal law, that determines marital validity.” You get a marriage license from the state where you’re getting married, not the federal government, and the state determines who can officiate, how old you have to be, whether you have adequately terminated any previous marriages you had, and so on. In that sense marital status is somewhat like property: federal law frequently turns on whether you have it, but it often uses state law to figure that out.

Finally, for purposes of this paper it doesn’t actually matter whether the federal government has the constitutional power choose to create its own independent marriage regime — with its own federal officiants, federal marriage licenses, etc. The main point is that it hasn’t created one. But I’ll also add that I think it would be impractical and unwise for the federal government to try to create such an independent marriage regime.

This is a query primarily intended for my fellow federalism scholars, though I welcome suggestions from others with relevant expertise:

I am currently in the process of revising my seminar on federalism for the Spring 2012 semester. To that end, I am considering adding a week on “Federalism and Economic Crisis.” Can you recommend any good, reasonably accessible articles that assess the impact of the economic crisis on federalism, especially with respect to the fiscal crisis that has hit states such as California? Articles on the impact of the crisis on federal systems in Europe might also be useful.

I am also looking for suggestions for topics that I could include that aren’t currently in the syllabus. Right now, I have classes devoted to the following subjects:

Federalism and the Founders

The Tiebout Model and Interstate Competition

Federalism and Economic Development

Fiscal Federalism

Federalism and Minority Rights

Federalism and the Environment

Federalism and Redistribution

Federalism and Judicial Review

Comparative Federalism

Federalism and Ethnic Conflict

Federalism and Secession

New Frontiers in Federalism (which considers various radical ideas, such as non-geographically determined federalism, and world government).

I am considering dropping a couple of these (redistribution and secession are possible candidates) and replacing them with new topics. Federalism and Economic Crisis is one possible addition. I have also considered, but probably won’t actually do, the perennial topic of federalism and corporate law. Suggestions for other possibilities are welcome. Perhaps there is a federalism topic I’m missing that everybody wants to know more about, but are afraid to ask!

Over at Balkinization, Andrew Koppelman (Northwestern) has an interesting and thoughtful post on the state of originalism. Synthesizing analysis by Jamal Greene and Jack Balkin, Koppelman writes, “Originalism is fundamentally about a narrative of rhetorical self-identification with the achievements of a founding historical moment. That is the real basis of its power. An originalist argument will be powerful to the extent that can persuade its audience that it can keep faith with that identification.”

Thus, “Originalist argument is an artifact designed to recall the Constitution’s origin and connect what we are doing now with that origin. Once this functional definition of originalism is understood, it follows that the range of possible original arguments is quite broad. It is not, however, infinite.” So, argues Koppelman, the fact that originalists differ among themselves in many important details about what “originalism” really is, is not a fatal flaw. Simiilarly, there are many different things called “aspirin” (e.g., Excedrin, generic products, St. Joseph’s children’s aspirin, etc.), but they all contain acetylsalicylic acid, and they all have a generally similar function. Which particular one you use at a given time will depend on the particular purposes for which it is needed.

I do want to quibble, though, with one particular legal history claim that Koppelman makes: “Thus originalists struggle with the problem whether the general purpose of the Fourteenth Amendment, to mandate the legal equality of blacks, should trump the framers’ specific intention to permit school segregation and miscegenation laws.”  Michael McConnell and Randy Barnett have written on the school segregation issue, but I’d like to add something on miscegenation. I don’t think that the historical record unambiguously supports the claim of a specific intent in the 14th Amendment to allow the continuation of laws against interracial marriage.

We do know for certain that one very specific intention of the 14th Amendment framers was to provide a solid constitutional foundation for the Civil Rights Act of 1866. According to the Act: “All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, . . . as is enjoyed by white citizens. . .”

Early exposition by courts is one source of original public meaning. (Although this source is not always guaranteed to be reliable. See, e.g., the Slaughter-House majority’s dicta). In 1872, the Alabama Supreme Court ruled that the state’s 1866 constitutional ban on miscegenation  violated the “cardinal principle” of the Civil Rights Act and of the Equal Protection clause. Burns v. State, 48 Ala. 195 (1872). According to the unanimous Burns court, the idea that contracts could be limited to members of the same race was absurd: “Marriage is a civil contract, and in that character alone is dealt with by the municipal law. The same right to make a contract as is enjoyed by white citizens, means the right to make any contract which a white citizen may make. The law intended to destroy the distinctions of race and color in respect to the rights secured by it. It did not aim to create merely an equality of the races in reference to each other. If so, laws prohibiting the races from suing each other, giving evidence for or against, or dealing with one another, would be permissible. The very excess to which such a construction would lead is conclusive against it.”

That same year, the Texas Supreme Court unanimously ruled that  the “the law prohibiting such a [common law] marriage [between a white and a black] had been abrogated by the 14th Amendment to the Constitution of the United States.” Bonds v. Foster, 36 Tex. 68 (1872) (inheritance case). As detailed in Peggy Pascoe’s book, What Comes Naturally: Miscegenation Law and the Making of Race in America (2010), in the years after the Civil War, eleven states repealed their bans on interracial marriage.

It was the Indiana Supreme Court  that figured out the way to evade the clear statutory language about the equal right of contract. According to the court, marriage is  ”more than a mere civil contract”; it is an institution fundamental to society. The Indiana court insisted at length that the 14th Amendment had not limited the traditional police power of the states. If Congress could ban states from imposing a racial  mandate on the right to enter a marriage contract, then Congress would (supposedly) have the power to legislate on all aspects of marriage. State v. Gibson, 36 Ind. 389 (1871).

I don’t find the Indiana court’s 1871 reasoning persuasive, and, apparently, neither did the Alabama and Texas Supreme Courts in 1872. But courts cannot stand forever against the sustained will of the electorate. After four losses, the proponents of anti-miscegenation won on their fifth try in the Alabama Supreme Court. When the courts in the various states finally acquiesced to anti-miscegenation laws, Gibson was the essential citation, because it came from a state where slavery had never legally existed. The Texas intermediate Court of Appeals provided the legal reformulation that marriage was “status” and not “contract,” and was therefore not covered by the Civil Rights Act: “Marriage is not a contract protected by the Constitution of the United States, or within the meaning of the Civil Rights Bill. Marriage is more than a contract within the meaning of the act. It is a civil status, left solely by the Federal Constitution and the laws to the discretion of the states, under their general power to regulate their domestic affairs.” Frasher v. State, 3 Tex. App. 263 (Tex. Ct. App. 1877). (The regressive Frasher decision is one more data point in support of the observation in Henry Sumner Maine’s great 1861 book Ancient Law: “we may say that the movement of the progressive societies has hitherto been a movement from Status to Contract.” Maine’s book elaborates in great detail why marriage law fits this paradigm.)

By the time that Plessy v. Ferguson was decided in 1896, the Supreme Court majority, which was willfully oblivious to contemporary social reality (e.g., if blacks consider a segregation mandate to be a “a badge of inferiority,” that is “solely because the colored race chooses to put that construction upon it”) , was also lazily ignorant of legal history: “Laws forbidding the intermarriage of the two races may be said in a technical sense to interfere with the freedom of contact, and yet have been universally recognized as within the police power of the state.” The sole citation for this allegedly “universal” recognition was State v. Gibson. The Court was right that as of 1895, miscegenation laws were constitutionally safe, but the Court seemed quite unaware that during the first years when the 14th Amendment and the Civil Rights Act were the law of the land, the issue was in dispute.

Although the late Professor Pascoe’s book is suffused with critical race/gender theory, readers who find such theories useless will still find Pascoe’s book enormously useful. It is an excellent legal history of anti-miscegenation laws and cases, and not just during Reconstruction. You will learn about the national panic to spread such laws during the early 20th century because the black boxer Jack Johnson (who defeated a string of opponents who were billed as “the Great White Hope”) notoriously consorted with white women; how courts struggled with interpreting miscegenation laws in the West (which were mainly aimed at Asians, and which raised questions such as whether a ban on white marriage to “the Mongolian or Malay races” applied to Filipinos); the NAACP’s political opposition to new miscegenation laws coupled with its great reluctance to mount legal challenges to existing ones; and the extremely risky litigation (not endorsed by NAACP) which led to the landmark 1948 California Supreme Court Perez v. Lippold decision (won mainly on void for vagueness, the fundamental unenumerated right to marry, and First Amendment  free exercise of religion, rather than a categorical attack on all racial discrimination).

Justice Carter’s concurrence in Perez is a good illustration of the main thesis of Koppelman’s post, and of the point made by the second Justice Harlan (and also by Jack Balkin) that our “tradition is a living thing,” in which our national understanding of the original meaning can be deepened by new experiences. Rebutting respondent’s collection of social scientists who contended that race-mixing was destructive to the health of the white race, Justice Carter quoted some essentially similar claims from Hitler’s Mein Kampf. Justice Carter continued: “To bring into issue the correctness of the writings of a madman, a rabble-rouser, a mass-murderer, would be to clothe his utterances with an undeserved aura of respectability and authoritativeness. Let us not forget that this was the man who plunged the world into a war in which, for the third time, Americans fought, bled, and died for the truth of the proposition that all men are created equal.” And so, “In my opinion, the statutes here involved violate the very premise on which this country and its Constitution were built, the very ideas embodied in the Declaration of Independence, the very issue over which the Revolutionary War, the Civil War, and the Second World War were fought, and the spirit in which the Constitution must be interpreted in order that the interpretations will appear as ‘Reason in any part of the World besides.’”

I was going to write a more detailed post on the recent DC Circuit decision upholding the individual mandate. However, co-blogger Randy Barnett has already said much of what I would have wanted to say.

Like Randy, I am skeptical that Justices Kennedy or Scalia will be willing to endorse the D.C. Circuit’s conclusion that there are no limits to Congress’ power to impose mandates under the Commerce Clause. Both of these justices have emphasized the need to enforce limits on the scope of federal power. If the Court does uphold the individual mandate, it will be on the basis of one or more of the various arguments claiming that health care is a special case.

Here are two additional points that go a little beyond Randy’s analysis.

First, Judge Silberman’s majority opinion is wrong to suggest that a long line of Supreme Court decisions that defined the scope of Congress’ Commerce Clause power in terms of “activity” or “economic” activity “were merely identifying the relevant conduct in a descriptive way, because the facts of those cases did not raise the question” of whether economic activity could be regulated. Several of those decisions clearly use the term “activity” as part of a doctrinal test, not merely a description of facts. In Gonzales v. Raich, the Court noted that the statutes invalidated in Lopez and Morrison were ruled unconstitutional because they “did not regulate any economic activity,” whereas the law in Raich was sustained because it did regulate “quintessentially economic” activity. That certainly looks like more than just “description” to me. Even more importantly, in several cases the Supreme Court could have saved itself a lot of analytical trouble if it could uphold Commerce Clause statutes simply by claiming that they regulate inactivity with economic effects. For example, In Katzenbach v. McClung, the Court ruled that Congress could forbid racial discrimination restaurant that served almost exclusively local customers on the somewhat circuitous basis that the restaurant purchased some of its food supplies out of state, and its discrimination against African-Americans affected the volume of those purchases. If inactivity that affects interstate commerce were enough, the Court could have avoided these gymnastics and simply said that McClung’s restaurant had had an impact on interstate commerce because he could instead have established some other business that was more connected to interstate commerce than the restaurant itself was.

Second, it is interesting that Judge Harry Edwards, in his concurring opinion, seems uncomfortable with Judge Silberman’s conclusion that Congress has virtually unlimited power to impose mandates. He emphasizes that “Congress’s authority to legislate under the Commerce Clause is not without limits. If nothing else, there are boundaries that emanate from the Necessary and Proper Clause… which serve as principled limitations on Congress’s authority under the Commerce Clause.”

Edwards is right to stress the need for limits on the Commerce power. But it is somewhat strange to look to the Necessary and Proper Clause for them. After all, the whole point of the Necessary and Proper Clause is to give Congress additional power that goes beyond what it has under its other enumerated powers by themselves. Edwards claims that his view is supported by Justice Scalia’s concurring opinion in Raich. But Scalia’s key argument in that case was precisely that the Necessary and Proper Clause could be used to reach activity that Congress could not regulate under “the Commerce Clause alone.” Unlike the majority opinion, Scalia did not believe that the Commerce Clause by itself gave Congress the power to forbid the possession of medical marijuana that had never crossed state lines or been sold in any market.

UPDATE: In criticizing Judge Silberman’s interpretation of the precedents on “economic activity,” I don’t mean to suggest that those cases definitively ruled that Congress cannot use the Commerce power to regulate inactivity. They did not do that. At the same time, “activity” did define the limit of what the Court ruled that Congress could regulate in those cases. Permitting regulation of inactivity would require a lower court to go farther than the Supreme Court has gone.

UPDATE #2: I have revised this post to correct a few grammatical and phrasing errors.

At Balkinization, Gerard Magliocca raises a possible slippery slope argument against striking down the individual health insurance mandate (this argument was, I think, first raised in an article by Mark Hall):

The most powerful argument against upholding the constitutionality of the individual mandate may be that this will open the door to compulsory broccoli purchases. Many people are unfamiliar with the relevant Commerce Clause cases, but everyone seems to know about the broccoli hypothetical.

The hypothetical on the other side of this litigation, though, is just as powerful. Suppose that a dangerous epidemic breaks out that reduces interstate commerce by curtailing travel and other interactions for fear of contagion. A private company develops an effective vaccine that many people refuse to buy. Is Congress prohibited from ordering everyone in the country to buy the vaccine under the proposed activity/inactivity distinction?

It so happens that I address the very issue Gerard raises in a forthcoming article on slippery slopes and the individual mandate. I have two answers to his question. First, Congress can still pass a vaccination requirement that applies to everyone who crosses state lines. Crossing state lines is clearly an “activity” and an interstate activity to boot. Second, as a practical matter, state governments would have very strong political incentives to enact vaccination laws in the face of a “dangerous epidemic.”

Gerard anticipates my second point, and finds it unsatisfying because it “sounds a lot like ‘This is a non-issue because Congress will never order you to buy broccoli.’ Either both responses are valid or neither is. One can’t be adequate and the other not.” Not so. The claim that a slippery slope is politically infeasible may be right in one scenario and wrong in the other because some policies are more politically viable than others. As I explain in this post, Congress has strong incentives to enact purchase mandates that benefit influential interest groups. The insurance mandate was itself adopted in part because of backing by the health insurance industry. By contrast, state governments are unlikely to sit on their heels in the face of a raging epidemic. Any state that does so is likely to lose business, and its politicians are likely to suffer retribution at the polls. Even the most ignorant voters tend to notice a rampaging epidemic that the government has failed to control.

Obviously, state governments could do a poor job of addressing an epidemic even in spite of good incentives. But the same is true of Congress.

UPDATE: I have made a few, mostly stylistic, changes in this post.

UPDATE #2: It’s a fair point to suggest, as some commenters do, that under my logic, Congress could enact the individual insurance mandate by restricting it to people who cross state lines. I think that would be permissible under current Commerce Clause doctrine, even if it might not be under the text and original meaning. However, many people could still evade the mandate by avoiding interstate travel. Not everyone crosses state lines regularly. Moreover, a health insurance mandate tied to travel would seem weird to many people, which in turn would reduce its political feasibility (not so with a vaccination mandate tied to travel, since it’s easy to see that part of the purpose of such a mandate is to stop the spread of an epidemic across state lines). More generally, requiring mandates to be tied to “economic activity” of some sort reduces the risk of harmful mandates because mandates with “tie-ins” tend to disincentivize whatever activity they are tied to. The more onerous the mandate, the greater the disincentive. For example, a mandate tied to employment will tend to increase unemployment. Congress will not always be willing to pay that price.

In an insightful recent post at Land Use Prof Blog, Adam MacLeod takes property scholars to task for neglecting issues of constitutional federalism:

When prominent, accomplished land use scholars discuss federalism why do they pay so little attention to the United States Constitution? However one views the desirability of any particular attempt by Congress to regulate land use, if Congress does not have the power to regulate then the rest of the discussion is moot. Yet, though extensive scholarly discussion has in recent months been committed to the problem of federalism in land use controls, scant attention has been paid to the powers enumerated in Article I….

For example, one of the most strenuously-asserted objections to the Religious Land Use and Institutionalized Persons Act (RLUIPA) is that it violates principles of federalism. Two very prominent scholars have argued that RLUIPA intrudes upon local control of land use without sufficient reason. I think these arguments fail, for reasons that I discuss in an article forthcoming in the Real Estate Law Journal. But the critics miss entirely a federalism argument that I believe is nearly-fatal to RLUIPA, namely that RLUIPA is not a permissible exercise of the Commerce Clause power.

RLUIPA does not regulate commerce. It regulates courts in their review of decisions by local governments, which concern land use. Specifically, it directs state and federal courts to subject to strict scrutiny review those land use decisions that substantially burden exercises of religion. And religious exercise is generally performed by claimants engaged in non-commercial activities. Under Morrison and Lopez, which to my knowledge remain good law, the Commerce Clause predicate for RLUIPA seems indefensible….

It’s strange. Federalism in land use law is a hot topic right now…. On several occasions recently I have found myself in a room full of land use scholars, all at least as intelligent and informed as I, who have provided sophisticated, detailed accounts of the local, state, and national interests involved in various land use problems but never stop to consider whether any of their proposals are constitutional. Am I missing something?

MacLeod’s critique has some force. Part of the problem is the nature of specialization in the legal academy. Most land use and property rights scholars are not also constitutional federalism scholars, and vice versa. Naturally, both groups tend to stay within their areas of expertise, which sometimes leads them to ignore relevant issues raised by the other group.

As one of the relatively few academics who does regularly write in both fields, I think that MacLeod’s criticism is a little overstated. Current Supreme Court Commerce Clause doctrine gives Congress virtually unlimited power to regulate “economic activity,” defined very broadly as anything that involves the “production, distribution, and consumption of commodities.” This is broad enough to encompass most, if not quite all, federal efforts at land use regulation. After all, land is a commodity, and land use regulations control its consumption (in the sense of using its resources) and distribution. State and local land use regulations preempted by federal legislation in most cases also qualify as “economic activity,” since they control the use and distribution of land.

I strongly disagree with the Court’s broad interpretation of the Commerce Clause. Perhaps land use scholars should pay more attention to such criticisms (I can always use the extra citations!). At the same time, academic advocates of broad federal power over land use regulations are probably right to assume that most of what they support would pass muster under current Supreme Court doctrine.

There is, however, a different federalism-related flaw in the reasoning of some left-liberal land use scholars. Many of them argue that federalism concerns should lead federal judges to abjure enforcing constitutional property rights against state and local governments. They claim that this kind of federal intervention is undesirable because it interferes with local autonomy and overrides the superior knowledge of local government officials. If this is true, it should count against federal legislative control over land use decisions as well. Yet most of these same critics favor largely unconstrained congressional power to override local land use law.

Conservatives and some libertarians have a similar tension in their thought. If, as we claim, federal power should be strictly limited in order to preserve local diversity, why should federal courts be able to override local land use policies in order to protect property rights? I addressed that potential contradiction in this article.

This past week, the Department of Education announced it would allow states to obtain waivers under the No Child Left Behind Act, but “would set a “high bar on flexibility.”. (HT: Neal McCluskey) According to the announcement:

states can get relief from provisions of the Elementary and Secondary Education Act—or No Child Left Behind (NCLB)—in exchange for serious state-led efforts to close achievement gaps, promote rigorous accountability, and ensure that all students are on track to graduate college- and career-ready.

Specifically, according this fact sheet, a State may receive flexibility if it develops a “rigorous and comprehensive plan” to address “three critical areas” the Department of Education believes will “improve educational outcomes for all students, close achievement gaps and increase equity, and improve the quality of instruction.” Encouraging school districts to emphasize these three “critical areas” may or may not be a good idea, but it is highly problematic if (as it appears) the Department of Education is imposing these conditions without statutory authorization.

The NCLB Act allows for waivers of statutory and regulatory requirements placed on state recipients of federal education funds in Section 9401.  This provision identifies things a state must do to be eligible for a waiver, including showings a state must make, but it does not impose any of the conditions detailed in the Department of Education’s announcement. For example, Section 9401 requires a state to explain how the waiver will enable the state to ” increase the quality of instruction for students” and “improve the academic achievement of students,” but the Department of Education’s new requirements seem to go much farther than this. Moreover, nothing in Section 9401 appears to authorize the Secretary of Education from setting additional conditions on waiver requests.  So has the Department of Education over-stepped its bounds? It has before.

In Virginia Department of Education v. Riley (4th Cir. 1997), an en banc panel of the U.S. Court of Appeals for the Fourth Circuit held that the Department of Education could not impose conditions on the receipt of federal funds under the Individuals with Disabilities Education Act (“IDEA”) beyond those expressly identified or authorized in the statute itself. According to the court, “Language which, at best, only implicitly conditions the receipt of federal funding on the fulfillment of certain conditions is insufficient to impose on the state the condition sought.” Since, the court found, “at most” the statute “only implicitly” conditioned state receipt of funds on additional requirements, it could not be imposed on a non-consenting state. The court emphasized that this clear-statement rule was particularly important in an area, such as education, that is the traditional province of the states.

Is the Department of Education repeating the mistake it made in Riley? It appears that way to me, but some caveats are in order. First, it is possible that the Department of Education could defend these conditions as an explication or elaboration of the waiver requirements in the statute. I think this is a stretch given the actual statutory language, particularly in light of Riley, but it’s possible. Second, a state would probably have to seek a waiver without fulfilling all of the new requirements and get denied before it could challenge the new conditions in court. This makes a challenge less likely — and certainly a ways off. Moreover, the Department of Education could try and deflect any legal challenge by denying that it has formally adopted these conditions as actual requirements and not basing any future waiver denial on a state’s failure to meet the new conditions. Finally, I should note that I relied upon the provision identified by the Department of Education in explaining the policy, but I may have over-looked some other provision in NCLB that could be cited as authority for this waiver requirement.

UPDATE: I accidentally published a horribly garbled version of this post. I apologize and it has been fixed.

On Tuesday I testified before the U.S. House subcommittee on Crime, Terrorism, and Homeland Security, regarding H.R. 822, which would set up a national system of interstate reciprocity for concealed handgun carry permits. My 24-page written testimony is here. The video of the subcommittee hearing is about and hour and 45 minutes. Nearly all members of the 21-member attended the hearing, and used their opportunity to ask 5 minutes worth of questions. Most of the questions posed to George Mason Law’s Prof. Joyce Malcolm, Philadelphia Police Commissioner Charles Ramsey, and me, were quite thoughtful. Some congressional hearings are just a form of kabuki theater, but in Tuesday’s hearing, Representatives of both parties, and on both sides of the gun issue, seemed to be sincerely trying to learn more. The bill currently has 243 House co-sponsors.

Federal district Judge Christopher Connor of the Middle District of Pennsylvania just issued an opinion striking down Obama health care plan individual mandate. It is available here. Timothy Sandefur has some helpful commentary on the decision here. As Sandefur mentions, Connor’s opinion is unusual for striking down the mandate despite rejecting the view that upholding it would give Congress unlimited authority to enact other mandates. My own view is that upholding the mandate would indeed lead to an unconstrained slippery slope of this kind, as I explained here. On the important severability question, Connor argues that the preexisting conditions coverage requirement cannot be severed from the mandate, but that the rest of the bill can be.

We now have three district courts and one court of appeals that have voted to strike down the mandate, and three district courts and one court of appeals that have voted to uphold it. Of the twelve federal judges who have considered the question, six have gone one way and six the other, with ten of the twelve (including Judge Connor) splitting along partisan and ideological lines.

It is now more clear than ever that there is no expert consensus on this subject, and that this is not a frivolous case that only ignorant or misguided extremists could possibly support.

UPDATE: The court in question is actually the Middle District of Pennsylvania, not the Eastern District, as I originally stated in the post. I apologize for the error, which has now been corrected.

The Internal Revenue Service is beginning to promulgate regulations to implement the tax-related provisions of the Affordable Care Act (aka “ObamaCare”). A proposed rule issued last month provides that eligible taxpayers may receive tax credits for the purchase of qualifying health insurance plans established by states under Section 1311 or by the federal government under Section 1321. The only problem is that this is not consistent with the actual text of the statute passed by Congress.

ACA Section 1401 provides that eligible taxpayers may receive income tax credits for purchase of insurance “through an Exchange established by the State under Section 1311.” Section 1311 calls upon states to establish health insurance exchanges. It does not provide for the federal government to create health care exchanges. Rather, a separate provision of the act, Section 1321, provides that if a state does not “elect” to create an exchange that meets federal requirements, the federal government shall then “establish and operate” an exchange. Thus, under a plain reading of the text, the ACA only provides for tax credits for state-run exchanges, and if states fail to create exchanges, there are no tax credits for insurance bought on a federally run exchange.

This is potentially significant for several reasons. The individual mandate requires all Americans to purchase health insurance. Even if the mandate is successful at reducing adverse selection, health insurance premiums are still expected to rise due to other provisions in the law.   Higher premiums could make it difficult for many Americans to comply with the mandate. For this reason, Congress not only called upon states to create exchanges, it also authorized tax credits to offset the cost of health insurance premiums for those with incomes between 100 and 400 percent of the poverty level.   But if these tax credits are only available for insurance purchased through state-based exchanges, many will be left high-and-dry in states that don’t create their own exchanges — and this could be a big problem. According to one recent report, only ten states had passed legislation to create qualifying exchanges through August 2011. (See also here.)

As David Hogberg reports in IBD, this has led some to believe the limitation of tax credits to state-based exchanges is a mistake. Under this theory, Congress meant to provide tax credits for any exchange-purchased insurance, because Congress wanted lower-income individuals to be able to purchase health insurance (and comply with the mandate). This may be true. As Vanderbilt’s James Blumstein tells IBD (and I discussed in this paper), the exchange-related provisions of the law were not written all-that-carefully. Nonetheless, federal agencies lack the authority to unilaterally revise statutory mistakes. (A point Cato’s Michael Cannon also makes here.)  Congress may have wanted to make tax credits more widely available — just as it may have wanted those making less than poverty-level income to be eligible for exchanges as well — but that is not what Congress did.

The IRS may be inclined to argue that the failure to include a reference to federally run exchanges or Section 1321 in Section 1401 was a “scrivener’s error” that should be disregarded. But this is a difficult argument to make in this case for several reasons. First, a “scrivener’s error” is supposed to be that – a purely clerical error that could be attributed to a failed transcription or something of that sort. An example would be mistaking the relevant subsection in a statutory cross-reference – say mistaking “(i)” for “(ii)” or “Section 36B(B)(I)(b)” for “Section 36(B)(I)(b),” or screwing up punctuation. The alleged error here is more significant, however. Not only did Congress forget to include any reference to Section 1321, it also expressly stated that the tax credits were for insurance purchased through “an Exchange established by the State.” So a legislator reviewing the relevant language could not claim that they did not realize the statutory cross-reference excluded federal exchanges because the clear text of the statute does as well. In other words, any legislator who actually bothered to read the bill before voting would have seen the limitation.

Another problem for the “scrivener’s error” argument is that it is usually dependent on showing that it is implausible, and not merely unlikely, that the statutory provisions were a mistake. As the Supreme Court explained in U.S. Nat. Bank of Oregon v. Independent Ins. Agents of America, Inc., 508 U.S. 439 (1993), this will be shown in the “unusual” case in which there is “overwhelming evidence from the structure, language, and subject matter of the law” that Congress could not have consciously adopted the language in the statute. Similarly, in Appalachian Power Co. v. EPA, 249 F.3d 1032 (D.C. Cir. 2001), the D.C. Circuit explained that:

We will not . . . invoke this rule to ratify an interpretation that abrogates the enacted statutory text absent an extraordinarily convincing justification because . . . the court’s role is not to correct the text so that it better serves the statute’s purposes, for it is the function of the political branches not only to define the goals but also to choose the means for reaching them. . . . Therefore, for the [agency] to avoid a literal interpretation . . ., it must show either that, as a matter of historical fact, Congress did not mean what it appears to have said, or that, as a matter of logic and statutory structure, it almost surely could not have meant it. [internal quotations and citations omitted]

Given what’s in the ACA, this is a showing that the IRS and HHS would have a hard time making. While it is certainly plausible – perhaps even likely – that many in Congress wanted tax credits for the purchase of health insurance to be broadly available, there is also ample evidence that the ACA was designed to induce states to create exchanges of their own. For example, Section 1311 directs states to create exchanges. Further, as Blumstein notes, under the ACA the federal government could sue to force a state to create an exchange. As in other policy areas, the federal government can’t force states to comply, so it uses a combination of positive and negative incentives – in this case, subsidies for creating exchanges and the threat of a federally run exchange if a state does not create one on its own. In this context, limiting the availability of tax credits to insurance purchased in state-run exchanges can be seen as just an added inducement. Much like the Clean Air Act threatens states with the loss of highway funds if they fail to adopt sufficiently stringent pollution control programs, the ACA as written threatens states with the loss of tax credits for state residents if they do not create an exchange. Such a policy may not be wise or fair – and may undermine the goal of getting more people insured – but it takes far more than that to justify ignoring a statute’s plain text.

Neither the IRS nor HHS has addressed these concerns as far as I’m aware, nor has anyone else. I’ll certainly do a follow-up post if such arguments are out there. I noted that the ACA’s text limits subsidies to state exchanges at a conference on health care reform and the states last fall, and no one suggested I was in error, but that does not mean I am right. It’s also possible there’s some other overlooked provision of the ACA that could be used to solve this problem. If so, I couldn’t find it, but I’ll also post an update if such a provision is found. In the meantime, the limitation of tax credits to those who purchase their insurance in state-run exchanges could be unwelcome news to those in the majority of states yet to create exchanges of their own.

I should also note that I have not addressed what would happen if the IRS were to just go ahead and finalize regulations providing for tax credits beyond those authorized by the ACA’s text. Under such a scenario, standing to challenge the IRS’ action in court would certainly be a big issue. As a general matter, there is no standing for a taxpayer to challenge a tax benefit conferred upon someone else. But the IRS, like all federal agencies, has an independent obligation to comply with the law, and I do not know of anyone who has argued that the IRS may create tax credits at will just because it thinks that’s what Congress meant to do and such actions are not easily challengable in court. Just imagine the sorts of mischief such a doctrine could unleash.

On Thursday, the Fourth Circuit Court of Appeals issued two decisions dismissing challenges to the Obama health care plan’s individual mandate on jurisdictional grounds. All three judges on the panel were Democratic appointees, including two chosen by President ObamaNeither ruling reached the merits of the question of whether the individual mandate is constitutional. Virginia v. Sibelius is by far the better known case, because it was brought by the Virginia state government. But Liberty University v. Geithner is perhaps more interesting.

In the Virginia case, the Fourth Circuit dismissed Virginia’s challenge to the mandate because they ruled that the state lacked standing to challenge it. Virginia had based its standing on argument on the grounds that it had passed a state law exempting Virginians from being forced to buy health insurance. Normally, states automatically have standing to challenge federal laws that supersede their own legislation. But the Fourth Circuit ruled that the Virginia law was not a genuine exercise of state sovereignty, but merely a symbolic protest against the federal individual mandate. In my view, Virginia’s motives for passing the law should have been irrelevant to the question of how it affected standing. Moreover, a decision not to regulate is just as much an exercise of sovereign authority as a decision to impose a regulation. In addition, I think Virginia should also have gotten standing on entirely unrelated grounds. It could have taken advantage of the “special solicitude” for state governments that the Supreme Court established in Massachusetts v. EPA. Virginia probably erred in putting all of its standing eggs in one basket. It should have emphasized Massachusetts v. EPA as well as its anti-mandate law.

Be that as it may, this decision is unlikely to matter much in the long run. Even if the Supreme Court also rejects Virginia’s suit for lack of standing, there are lots of other anti-mandate plaintiffs – both state governments and individuals – who clearly do have standing, as the Fourth Circuit admits (at least in the case of the individuals). So the issue will get to the Supreme Court one way or another.

Liberty University v. Geithner is more interesting because it is the first court decision to endorse the federal government’s argument that the individual mandate is a tax. Up till now, that argument has been consistently rejected by every judge who has ruled on it, including several who concluded that the mandate is constitutional on other grounds. The majority opinion only ruled that the mandate qualifies as a “tax” as defined by the Anti-Injunction Act, which forbids court challenges to “taxes” prior to the time when the IRS tries to actually collect the money. According to the majority, the AIA defines taxes more broadly than the Constitution, and encompasses all fines that are collected by the IRS through the normal tax enforcement system. I think Judge Andre Davis’ dissenting opinion does a good job of rebutting this extremely broad interpretation of the AIA. And I think it likely that the Supreme Court will side with him and the other nine judges who have ruled the same way rather than with the Fourth Circuit majority. However, if the latter prevails, it could make it impossible for individuals to challenge the mandate until it takes official effect in 2014.

In a concurring opinion, Judge James Wynn goes further than the majority (which he also joined), and argues that the mandate is a tax not just under the AIA, but under the Constitution. He has thereby become the first of the eleven federal judges who have considered this question who endorsed the constitutional tax argument. The other ten judges (including Judge Davis) all concluded that the mandate is a regulatory penalty, not a tax. Obviously, if the federal government wins on this point, the mandate would be constitutional even if it is not authorized by the Commerce Clause or the Necessary and Proper Clause.

On balance, I think Wynn’s argument is wrong. For reasons I explain here, the federal government’s Tax Clause argument (which Wynn echoes) is unpersuasive:

As recently as 1996, the Supreme Court reiterated the crucial distinction between a penalty and a tax. It ruled that “[a] tax is a pecuniary burden laid upon individuals or property for the purpose of supporting the Government,” while a penalty is “an exaction imposed by statute as punishment for an unlawful act” or – as in the case of the individual mandate – an unlawful omission. The individual mandate is a clear example of a penalty, where Congress requires people to purchase health insurance, and then punishes them with a fine if they fail to comply.

In September 2009, President Obama himself noted that “for us to say that you’ve got to take a responsibility to get health insurance is absolutely not a tax increase.” He was right. If the mandate qualifies as a tax merely because it punishes violators with a fine, then Congress could require Americans to do almost anything on pain of having to pay a fine if they refuse. It could use this power to force citizens to buy virtually any product, including broccoli, General Motors cars, or anything else.

Even if the individual mandate does somehow qualify as a tax, it is not one of the types of taxes that Congress is authorized to impose. The Constitution gives Congress the power to enact several types of taxes: Excise taxes, duties and imposts, income taxes, and “direct taxes” that must be apportioned among the states in proportion to population.

No one, including the federal government, claims that the individual mandate is a duty or an impost. The individual mandate is not an income tax because an income tax must target some “accession to wealth,” in the words of Commissioner of Internal Revenue v. Glenshaw Glass Co., the leading Supreme Court case on the subject. The fine imposed by the mandate does not target any accession to wealth or flow of income. It simply forces individuals to pay a penalty if they disobey the federal government’s regulatory requirement. The fact that low-income individuals are exempted does not change this analysis. A fine for jaywalking would not become an income tax if low-income individuals were exempted from it…..

It is even more implausible to suggest that the mandate is an excise tax. Excise taxes apply to economic transactions or the use of property of some kind. For example, a tax on the sale of alcoholic beverages qualifies as an excise. The individual mandate does not tax any kind of activity, use of property or economic transaction….

If the mandate is not a tariff, impost, income tax, or excise tax, it is either a direct tax or no tax at all. And if it is a direct tax, it would be an unconstitutional one, because it is not apportioned among the states in proportion to population as the Constitution requires.

The Supreme Court may well end up endorsing the individual mandate, though the anti-mandate plaintiffs also have a real chance to win. If the pro-mandate side does prevail, it probably won’t be on the tax argument.