The final event at the annual meeting of the Southeastern Association of Law Schools was a Federalist Society panel on the constitutionality of the centralized health control law. Participants were Randy Barnett (Georgetown, VC), Jack Balkin (Yale), Gillian Metzger (Columbia), and me (Denver, VC). The moderator was Bradley A. Smith (Capital). Available here. The recording is 93 minutes, although the event itself ran a little longer. While the focus was on the two state suits (Virgina, and the 20-state coalition), we also discussed some of the additional issues raised by the five other suits, such as due process rights to medical privacy and decision-making. [...]
Jack Balkin has an interesting post on today’s two Defense of Marriage Act cases from the federal District of Massachusetts, Gill v. Office of Personnel Management, and Massachusetts v. HHS. The latter case found DOMA unconstitutional, as applied to Massachusetts, because DOMA violates the Tenth Amendment by infringing the state’s traditional core sovereign power of defining lawful marriages. The most important parts of the Tenth Amendment analysis are at pages 28-36 of the opinion. Balkin is concerned because the Judge Tauro’s “Tenth Amendment arguments prove entirely too much. As much as liberals might applaud the result, they should be aware that the logic of his arguments, taken seriously, would undermine the constitutionality of wide swaths of federal regulatory programs and seriously constrict federal regulatory power.” In particular:
The modern state depends heavily on the federal government’s taxing and spending powers for many of the benefits that citizens hold dear, including Medicare, Medicaid, Social Security, and the newly passed provisions of the Affordable Care Act. These programs have regulatory effects on state family policies just as much as DOMA does. If DOMA’s direct interference with state prerogatives is beyond federal power, then perhaps any or all of these programs are vulnerable– and unconstitutional– to the extent they interfere with state policies regarding family formation as well. Put differently, Judge Tauro has offered a road map to attack a wide range of federal welfare programs, including health care reform. No matter how much they might like the result in this particular case, this is not a road that liberals want to travel.
Well, as my former boss, Colorado Attorney General Duane Woodard once put it, “There’s no liberal constitution or conservative constitution. It’s just the Constitution.” The Tenth Amendment is one of the roads that all conscientious American judges must [...]