In his latest post on the federalism argument against DOMA, my co-blogger Nick Rosenkranz suggests that there can be no federalism-based constitutional objection to a statute that “defines [a word] only for purposes of federal law.” According to Nick. such a definition can only be unconstitutional if it offends some substantive constraint on government power, such as the Equal Protection Clause, and that federalism concerns have “nothing” to do with it. Randy makes several points in response to Nick’s argument, as did I in a prior post. Here I just want to focus on the claim that it is impossible for Congress to define a word, for purposes of federal law, that could exceed the scope of federal power.
For starters, we agree that Congress may define terms in order to carry into execution the federal government’s enumerated powers. Where we disagree, apparently, is the extent to which this imposes a meaningful constraint on federal lawmaking and whether it is possible for Congress to adopt statutory definition that exceeds the scope of federal power. Yet not only is this possible, the Supreme Court has said as much in scrutinizing the definitions Congress and federal agencies have adopted for statutory terms.
Let’s take one of Nick’s examples: “It shall not be lawful to tie up or anchor vessels or other craft in navigable channels in such a manner as to prevent or obstruct the passage of other vessels or craft.” 33 U.S.C. 409. As Nick notes, in 1 U.S.C. 3 Congress elsewhere defined “vessel” for the purposes of this and other federal laws. There’s no problem here, but that’s because insofar as Congress has the authority to regulate vessels in navigable waters (under the Commerce Clause) and military vessels (under those clauses conferring authority over the military), it can define what constitutes a vessel for such purposes. Such an action is necessary and proper for carrying into execution enumerated federal powers and neither threatens state authority nor aggrandizes federal power. So far so good.
Yet suppose instead of defining “vessel” Congress sought to define “channel” as used in this and other statutes. And suppose Congress defined “channel” to include, not just those waterways we may all recognize as “channels,” but also all navigable-in-fact waterways, as well as all interstate and intrastate waters including (but not limited to) intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, natural ponds, drainage ditches, and ephemeral streams. Such a definition does more than provide semantic meaning to a statutory term. It would also operate to extend the scope of federal power. And insofar as federal regulatory authority does not extend to all such waters – as the Supreme Court has suggested twice in the past dozen years – it would be no defense to claim that all Congress sought to do was provide a handy definition for the purposes of federal law. This is because the practical effects of this definition would be expand the scope of federal power so as to supplant state authority in an area of traditional state concern. [Note also that in the cases concerning waters, Congress at least had a long tradition of asserting federal authority over some U.S. waters, and a clear textual hook for the assertion of federal power under the Commerce Clause. With DOMA, however, Congress has neither.]
Once we have established that Congress lacks some general, all-purposes “definitions” power that is immune from judicial review, we can focus on the real question: Whether the enactment of a particular definition is necessary and proper to carry into execution the federal government’s powers. Where Congress adopts definitions to facilitate operation of constitutionally authorized federal programs or to attain enumerated purposes, there may be no problem. Where, however, Congress enacts a statutory definition so as to leverage preexisting authority so as to aggrandize federal power and intrude on an area of traditional state concern – such as family law – greater care is required.