Bench Memos

More on the Ridiculous Federalism Argument Against DOMA

Over at the Volokh Conspiracy, Nicholas Quinn Rosenkranz and Sasha Volokh* have excellent posts further exposing the folly of the badly confused amicus brief of “federalism scholars” that four of their VC colleagues have signed onto.

Randy Barnett and Jonathan Adler continue to defend their position (ineffectively, in my judgment), so I will give them some points for acting in good faith in advancing an argument that I think is patently meritless. (That, alas, distinguishes them from Michael McConnell, who for some reason has seen fit to leverage his academic reputation to make a tactical play in support of a federalism argument that he won’t actually embrace.) The fact that scholars as smart as Barnett and Adler believe the argument makes it plausible that some justices might as well (or at least might find it tempting camouflage for a result they want to reach).

* A hasty reader might think that there is some tension between Sasha Volokh’s position and my own. I don’t think that’s the case. I spelled out here how Congress’s power to enact a law carries with it the power to define the terms in that law and showed how those powers necessarily implied the power to enact  separate statutory definitions. (As I put it in my initial post, “insofar as the Congress has the authority to enact federal benefit schemes, copyright protection, government ethics laws, and testimonial privileges, it obviously has the power to define [in a separate enactment] the meaning of the terms that it uses in those enactments.”) When Volokh states, “I think I agree [with Barnett and Adler] that there’s no inherent power to define terms,” the context indicates that he means “no inherent power to define terms” in a separate enactment. He immediately follows with: “[T]he definition has to be necessary and proper for carrying out some power. Still, a definition in one statute that applies to hundreds of statutes can be supported by N&P hooked to a different specific federal power in each case, so the definitional statute itself isn’t supported by any one specific power.” He clearly regards as irrelevant and misguided the “necessary and proper” inquiries that the amicus brief wastes page after page on. So I think that our positions are identical.

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