Re: DOMA Does Not Regulate Marriage

by Ed Whelan

As I showed in this post yesterday, property law, like marriage, is a matter of state authority, yet federalism concerns do not limit the power of Congress to define property interests differently, for purposes of provisions of federal law, than states do. When Congress so acts, it doesn’t regulate property law, just as DOMA doesn’t regulate marriage.

Jonathan Adler concedes my particular example, but takes issue with its significance. His response badly misses the mark.

I fully embrace the proposition that constitutional protections other than federalism constrain the federal government’s ability to disregard property interests recognized under state law. What does that have to do with the question of what limits, if any, federalism imposes on the narrow matter of how the federal government defines “property” for purposes of provisions of federal law?

Within the bounds of those other constitutional protections, Jonathan is manifestly wrong to contend that the federal government “could not redefine ‘property’ for purposes of federal law to exclude automobiles or other forms of property recognized under state law.” To take a simple counterexample: Assume that the federal government, for purposes of calculating the federal estate tax, defines “property” to exclude automobiles. How could that possibly raise any federalism concerns?

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