Can the Federal Government Define “Property” For Purposes of Federal Law? – A Response to Orin

In a post below, Orin notes that many federal statutes define the meaning of the term “property,” even though property is generally defined under state law.  If this is so, Orin understandably wonders, how could there be a problem with Congress defining marriage for purposes of federal law in DOMA?

The short answer to Orin is that all of the examples he cites are fairly straightforward examples of Congress adopting definitions that do no more than help facilitate the implementation of a given federal program and all lie within the scope of federal authority. What matters is not whether Congress invokes a particular word — there is no list of “special words” immune from the feds — but what it is that Congress is actually doing. So,  the claim is not that any effort to define “property” for the purposes of a given federal law or program necessarily “undermin[es] the institution of property,” but that where Congress actually acts to “undermine the institution of property,” it cannot defend the constitutionality of such action by claiming that all it has done is adopt a simple definition.

None of us have disputed that Congress has the power to define terms where doing so is necessary and proper to carry into execution the federal government’s enumerated powers.  So, for example, our brief notes that federal immigration law contains an antifraud marriage provision at 8 U.S.C. § 1186a(b)(1)(A)(i).  Though this provision addresses marriage, it is not particularly problematic.  As we explain in our brief:

this provision limits resident-alien status to members of a “qualifying marriage,” which excludes marriages that were “entered into for the purpose of procuring an alien’s admission as an immigrant.” 8 U.S.C. § 1186a(b)(1)(A)(i). It is at least conceivable that, in particular situations, the national government could demonstrate a need (apart from desiring to encourage a particular definition of marriage) to exclude same-sex couples. But, although the Necessary and Proper Clause might support a targeted limitation of state-conferred marital status for federal purposes, DOMA is a sawed-off shotgun. A federal definition of marriage that indiscriminately applies to more than 1100 federal statutes and programs can be “plainly adapted” to none of them.

The same is true for property. None of the examples Orin cites seem particularly problematic. Yet I think it quite clear that were Congress to enact an across-the-board definitional statute that, say, excluded automobiles, corporate stock, or other forms of property traditionally recognized under state law as “property” for all federal purposes, such a statute would be unconstitutional. Such a statute would do more than provide a handy definition for the administration of one or more federal schemes. It would represent an assault on the traditional state function of defining property, and could not be defended as “plainly adapted” to the implementation of federal law. (It might also violate other constitutional guarantees as well.)

The question, again, is not whether Congress adopted a definition of some special term, but the actual effect and intent of the legislative act in question. And while I understand the reluctance to launch open-ended inquiries into legislative pretext, in the case of DOMA, no such inquiry is necessary.  Congress was quite explicit about what it sought to do: “Defend” a traditional definition of marriage against changes adopted under state law. That Congress sought to do this through the adoption of a legal definition is of no import. Congress has no power to pursue such a goal, and there is no distinctly federal interest to invoke in Section 3’s defense.

For those interested, we’ve had some sparring over at NRO as well. I commented here. Ed Whelan has rejoinders here, here, and here. I hope to respond more directly to Ed’s points on NRO tomorrow.

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