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Michael C. Dorf

Cases on Arizona's Immigrant-Investigation Law and the Defense of Marriage Act Show the Cross-Ideological Interplay Between Federalism and Individual Rights


Monday, July 12, 2010


Last week, two civil actions in federal district courts on opposite ends of the country illustrated our Constitution's cross-ideological interplay between federalism and individual rights.

On Tuesday, the Justice Department filed suit in federal district court in Arizona, and sought a preliminary injunction against the enforcement of Arizona's S.B. 1070, the law that, among other things, requires state and local authorities to investigate suspected undocumented immigrants.

Then, on Thursday, Boston-based Federal District Judge Joseph Tauro held that Section 3 of the federal Defense of Marriage Act (DOMA)--which defines marriage, for purposes of federal law, as the union of a man and a woman--cannot be constitutionally applied in Massachusetts, which recognizes same-sex marriage. (Judge Tauro issued his rulings in two cases, one brought by private plaintiffs and another brought by the Commonwealth of Massachusetts. Although the rulings rely on somewhat different legal doctrines, their reasoning substantially overlaps, and thus, for simplicity, I shall focus here on the private plaintiffs' case alone.)

In this column, I explain why these two cases, involving very different topics--immigration and gay marriage--still raise parallel issues, and how, together, they show how rights and federalism issues can cut across ideology and political party.

What the Arizona Immigrant-Investigation Case and the Massachusetts DOMA Case Have in Common

Both the Arizona case and the Massachusetts case implicate profound questions of liberty and equality. Critics--myself included--have charged that Arizona's S.B. 1070 is likely to lead to racial profiling of Latinos and Latinas regardless of their citizenship. Meanwhile, DOMA Section 3 clearly implicates the rights of gays and lesbians to be treated equally. Accordingly, both the federal lawsuit in Arizona and Judge Tauro's ruling in Massachusetts discussed matters of individual right.

However, neither case is chiefly about individual rights. Rather, each case raises a question of federalism: Does state law or federal law prevail? In the Arizona case, the Justice Department argues that federal immigration law preempts (that is, trumps) state law. In the Massachusetts case, the court ruled that because "the subject of domestic relations is the exclusive province of the states," the federal government has no legitimate interest in denying various federal spousal benefits to persons who are, or were, legally married under state law.

Although the Arizona and Massachusetts cases both involve hot-button political issues--illegal immigration and same-sex marriage, respectively--ideologically they are mirror images of one another. In the Arizona case, the federal government is asserting a more "liberal" position than the state is--by favoring less strict enforcement of immigration law. In the Massachusetts case, by contrast, the federal government (unsuccessfully) asserted a more "conservative" position than the state did--by refusing to offer legal recognition to same-sex marriage.

As I shall argue in the balance of this column, each case presents complex legal questions. But beyond the particulars of any legal doctrine stands a fundamental point that is often overlooked in public debate: The Constitution's allocation of authority between the state and federal government--whether one believes in a strong federal government, a strong role for states' rights, or something in between--is not inherently liberal or conservative.

The Federal Challenge to the Arizona Law: A Preemption Primer

Under Article VI of the Constitution, valid federal statutes are, in the words of the Supremacy Clause, "the supreme law of the land." That means that state laws are unenforceable to the extent that they conflict with valid federal laws. In such circumstances, lawyers say that the federal law "preempts" state law.

Here is a straightforward example of preemption: Federal copyright law gives composers and performers various exclusive rights to the publication and reproduction of their creative works. Suppose that some state, nonetheless, chose to legalize file-sharing, by passing a law giving all persons in the state the legal right to make electronic copies of downloaded songs for non-commercial purposes, without paying the copyright-holders. That state law would clearly be preempted, because it directly conflicts with the federal copyright law.

That sort of direct conflict is rare, but not unheard of. For example, a number of states have passed laws authorizing the medical use of marijuana. In principle, those state laws are invalid because they conflict with the federal law forbidding marijuana possession for just about any purpose. The Obama Administration has not been pursuing prosecutions of growers, sellers, or users of medical marijuana in states where it is legal, but that is a matter of prosecutorial discretion, not legal obligation. A different Administration (or this Administration, following a hypothetical future change of policy) could enforce the federal marijuana law if it so chose, and if it did so, then state laws legalizing medical marijuana would be of no use at all to the defendants. Under the Supreme Court's 2005 ruling in Gonzales v. Raich, the federal marijuana prohibition is a valid exercise of congressional power to regulate interstate commerce; it thus trumps state laws legalizing medical marijuana.

In the copyright and medical-marijuana examples I have given, a state tries to legalize some act--file-sharing and growing marijuana, respectively--that federal law prohibits. But Arizona's S.B. 1070 does the opposite. Instead of purporting to provide a right to resist federal law, S.B. 1070 instructs state and local law enforcement officials to take extra steps to enforce federal immigration law. Does that make S.B. 1070 valid?

Arizonans and others who favor S.B. 1070 argue that it is needed precisely because the federal government has been unable or unwilling to enforce federal law by controlling the inflow of undocumented immigrants at the border with Mexico. Thus, S.B. 1070's supporters say that there is no conflict between state and federal law; state law, in their view, helps rather than hinders the enforcement of federal immigration policy.

A Comparison: How Federal Cigarette-Labeling Law Preempts Both Harsher and Laxer State Cigarette-Labeling Law

The core problem with the foregoing argument is that federal law sometimes sets not only a floor, but also a ceiling. Consider the federal Cigarette Labeling and Advertising Act. Among other things, it prescribes the health warnings that must appear on all cigarette packages sold in the United States. Now suppose that a state legislature were worried that the federally-prescribed warnings are inadequate. And, suppose that that legislature then passed a law requiring that all cigarette packages offered for sale in the state must feature a cover containing nothing but the federal warning, plus a skull-and-crossbones symbol.

The state skull-and-crossbones requirement would be federally preempted because the federal cigarette-labeling law prescribes exactly what warnings must appear on a cigarette package. That federal law thus preempts not only state laws that purport to provide exemptions from the federal labeling requirements, but also any state laws that attempt to "over-enforce" the federal policy.

That makes sense for at least two reasons. First, legislation is invariably a compromise. Federal law could have been weaker, by not requiring any warnings at all, or by requiring milder warnings. Federal law could also have been stronger, by requiring stronger warnings or even by banning cigarettes entirely.

Thus, the particular warnings that federal law now requires reflect the unique point that Congress selected along the regulatory spectrum. A state that purported to "over-enforce" the warning law would thus also--and impermissibly--be "under-enforcing" the congressional decision not to require still stronger warnings.

Second, Congress sometimes preempts state over-enforcement of federal policy in order to pursue an interest in uniformity. Cigarette makers that are subject to the federal labeling requirement, like makers and sellers of other products offered for sale in the national market, will have a much easier time complying with a single federal standard than they would complying with as many as fifty different state laws that are each over-enforcing the federal policy. Arguably, the central purpose of the Constitutional Convention of 1787 was to empower the federal government, where it saw fit, to set uniform policy in place of the chaos and interstate trade wars that occurred under the Articles of Confederation. Thus, when Congress chooses to preempt over-enforcement of its policies, it carries out one of its core powers.

In the cigarette example, it is easy to see that Congress intended to preempt state laws requiring warnings beyond those prescribed by federal law. The statute, after all, expressly states: "No requirement or prohibition based on smoking and health shall be imposed under State law with respect to the advertising or promotion of any cigarettes the packages of which are labeled in conformity with" the Act. Although the Supreme Court has sometimes divided over the extent to which that language preempts certain smoking-related state tort actions, there is no doubt that it preempts state regulations directly requiring additional warnings.

The Preemption Issue Raised by Arizona's Immigrant-Investigation Law

With a minor exception that the government's brief relegates to a footnote, the Justice Department does not contend that the federal immigration laws expressly preempt Arizona's S.B. 1070. Instead, the Justice Department argues that this is a case of implied preemption. Courts find implied preemption when a state law bumps up against federal policy, even if it does not directly contradict federal law (as in the copyright example) or run counter to an express preemption clause (as in the cigarette example).

In the Arizona case, the Justice Department points to case law interpreting the Constitution to vest exclusive authority over immigration. The language of Article I, Section 8, clause 4 speaks specifically of federal power to "establish an uniform Rule of Naturalization." Thus, argues the federal government, federal laws governing immigration should be presumed to preempt state efforts at over-enforcement because such over-enforcement necessarily undermines uniformity.

The federal government also points to the implications of immigration enforcement for international relations, another area governed by essentially exclusive federal authority under the Constitution. Such concerns are hardly hypothetical: The Arizona law has already caused friction with Mexico.

Whether these or the many other arguments that have been made by the Justice Department will ultimately prove persuasive in court remains to be seen. For now, I wish only to note that the federal government's litigation position in this case is hardly surprising or unusual: Under our Madisonian system of divided powers, in which ambition is made to check ambition, we should fully expect the federal government to insist on its prerogatives when a state makes a bid to exercise a power that is seemingly lodged elsewhere by the Constitution itself.

The Massachusetts Case: States' Exclusive Power Over Domestic Relations

The Massachusetts case also involves a claim of exclusive power, but here, it is the state that claims exclusivity. To see how, some background about DOMA may be useful.

DOMA was enacted by Congress and signed by President Clinton in 1996, in anticipation of legalized same-sex marriage in one or more states. Section 2 of DOMA, which was not at issue in the Massachusetts case, authorizes states that have not themselves legalized same-sex marriage to deny recognition to same-sex marriages in other states. Section 3 of DOMA--which Judge Tauro struck down last week--provides a uniform definition of marriage for purposes of federal law.

If, as Judge Tauro and the parties agreed, states indeed have exclusive authority over domestic relations, then--readers may wonder--why is there a need for a federal definition of marriage at all? The most plausible answer is that over a thousand federal laws depend in one way or another on marriage. Eligibility for leave to care for a spouse under the Family and Medical Leave Act; survivors' benefits for widows and widowers under Social Security; who can file a joint tax return: These are just some of the myriad contexts in which the federal statute at issue will apply differently depending on whether or not someone is, or was, married.

The private-party plaintiffs in the Massachusetts case challenged DOMA Section 3 as a denial of federal constitutional equal protection. The case could thus be thought to raise the question of whether the Constitution itself protects a right of same-sex marriage--and certainly, Judge Tauro's ruling could have implications for that question. But he did not expressly address it. Instead, Judge Tauro treated the case as raising the narrower question of whether, as applied in a state such as Massachusetts in which same-sex marriage is legal, the federal law satisfies the Equal Protection Clause's minimal requirement of rationality. Judge Tauro said it did not, rejecting two arguments that the Justice Department pressed in support of DOMA Section 3's rationality.

First, the Administration asserted an interest in preserving the status quo circa 1996: no legal recognition for same-sex marriage. Given the ongoing social and political debate on this issue, the Justice Department argued, Congress acted rationally by retaining the traditional definition of marriage pending the formation of a new consensus.

Judge Tauro did not so much disagree with, as dismiss, this argument. The federal government's position, he said, pre-supposed that the federal government may legitimately take a position on who can be married. But given exclusive state power over domestic relations, that presupposition cannot stand.

Thus, Judge Tauro turned to the second interest asserted by the Obama Administration in its bid to sustain DOMA Section 3. It put forward the very same interest it now asserts in its preemption challenge to Arizona's S.B. 1070: the federal interest in uniformity across the nation. Congress, the Justice Department argued, has the power to insist on a uniform definition of eligibility terms in federal statutes.

Judge Tauro rejected that argument, however, because, he wrote, there is no federal interest in a uniform definition of marriage under federal law. Why not? Because, Judge Tauro reasoned, federal law has hitherto happily accepted varying state definitions of who may marry whom, so long as the marriages were between a man and a woman. Even when states were in the process of repealing their laws forbidding interracial marriages, Judge Tauro noted, federal law simply piggybacked on state-law definitions of marriage.

Is that a persuasive point? On appeal, the Administration can be expected to argue that the government's past practice of incorporating each state's definition of marriage was always a matter of legislative policy, not a matter of constitutional obligation.

One might argue for this stance as follows: Suppose some state were now to legalize polygamous marriage, thereby raising the question of whether each of all the multiple spouses of a given federal right-holder is entitled to a full spousal benefit. Under these circumstances, federal law could indeed grant each spouse a full share, or it could require multiple spouses to split a single share. But could federal law simply declare that the first marriage alone is valid for purposes of federal benefits? It is not at all obvious that such a declaration would be beyond the federal government's purview. But if the federal government so declared, it would not be piggybacking on state law; it would be ignoring state law, after recognizing that first marriage.

What this example shows is that Judge Tauro may have overstated his case. There are circumstances in which there could be an interest in federal uniformity with respect to some aspects of the definition of marriage (such as exclusion of polygamous marriages). Where Judge Tauro got it right, however, was in putting the government to its proof: The mere invocation of the word "uniformity" should not be enough to sustain a federal law under any standard of scrutiny.

In the end, there is another inquiry buried beneath the arguments about competing claims of state and federal authority, that may control the ultimate fate of DOMA Section 3. That inquiry may turn on the question of whether any government has a constitutionally valid interest in forbidding same-sex marriage. And that point, too, should not be surprising to a student of the Constitution, for although federalism does not have a consistent left/right valence on questions of individual rights, it is inextricably linked to individual rights. Indeed, for the Constitution's Framers, the protection of individual rights was the very raison d'ĂȘtre of federalism.

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University. He blogs at His next book, The Oxford Introductions to U.S. Law: Constitutional Law (with Trevor Morrison), will be published in September.

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