A three-judge panel of the U.S. Court of Appeals for the First Circuit heard oral arguments Wednesday on the constitutionality of the so-called Defense of Marriage Act, a law defining marriage for federal purposes as the union between one man and one woman. Many observers have already commented on the historic nature of Wednesday’s arguments, which marked the first time a federal appeals court has considered the constitutionality of DOMA.
Lost in the recent reporting on the case, however, are the remarkable similarities between DOMA and the Affordable Care Act: both acts of Congress raise similar constitutional issues, and both face the possibility of court-ordered invalidation. Even more remarkable (or perhaps not) is the hypocrisy conservatives and liberals have shown while defending each of these laws.
The Novelty Argument:
DOMA and the ACA individual mandate are similar in that both are novel and unprecedented exercises of congressional authority.
Arguing against the individual mandate, conservatives stress that the provision is constitutionally suspect for the simple reason that it represents a never-before-seen congressional power. In their briefs to the Supreme Court, for example, the twenty-six states challenging the mandate had this to say:
If Congress really had this remarkable authority, it would not have waited 220 years to exercise it . . . Surely, as the nation has grown, developed a truly continental economic market, suffered through depressions and recessions, and waged two world wars, Congress has not lacked motive or opportunity to force individuals into countless interstate markets . . . The only explanation for the utter absence of comparable mandates is the utter absence of constitutional authority to enact them.
The Obama administration, however, quickly dismissed this argument, saying that the mere novelty of an exercise of congressional power does not render it constitutionally suspect. Social Security, Medicare, and much of the legislation passed in the wake of the Great Depression all constituted novel exercises of congressional power in their time, yet this alone did not make them unconstitutional. Times change, the argument continues, and Congress must have the power to respond accordingly.
And yet, with respect to DOMA, the tables have turned. Here, liberals are the ones now arguing that novelty is reason enough to arouse constitutional suspicions. Conservatives, for their part, have also undergone a remarkable change of heart. They are now apparently unperturbed by novel exercises of congressional power.
Advocates for gay and lesbian couples, for example, argued before the First Circuit that DOMA is constitutionally suspect, among other reasons, because it marks the first time in the nation’s history that Congress has attempted to create a national definition of marriage. The matter was put thusly during oral argument:
In 1996, Congress jettisoned a neutral rule that had been in place for over 200 years and created a onetime exception only for gay people’s marriages to deny them protection across the board.
I have seen many liberals nod their heads when this argument is raised with respect to DOMA, so why then does the nodding stop in the context of health care? The same must also be asked of conservatives. Why is it that novelty in the case of the individual mandate is cause for suspicion, yet something that can be overlooked when it comes to DOMA? The answer, I suspect, has more to do with politics than with any principle of law.
The Federalism Argument:
Real federalism questions surround both DOMA and the individual mandate.
In the context of the individual mandate, liberals argue that the federal government needs to have broad power in order to properly address the national health insurance crisis. If this means more power to Washington at the expense of state sovereignty, the argument goes, then it is an unavoidable necessity. Conservatives by contrast have trumpeted the cause of states’ rights, retorting that the Tenth Amendment shields states from excessive federal regulation. In briefing the Supreme Court, opponents of the mandate conveyed the point starkly:
There is nothing left of the residual authority of the States if Congress really has the power claimed.
In the context of DOMA, however, the tables have turned (yet again). It is liberals who are now nobly carrying the states’ rights banner, while conservatives are passionately demanding an increase in federal authority. During oral argument in the DOMA case, for example, gay rights advocates said this:
Defining and regulating marriage is a matter of core state sovereignty under the Tenth Amendment . . . The federal government has always recognized a state marriage as valid for federal purposes . . . What we are asking is that [DOMA] be stricken down and that the federal government respect our authority . . . This has been the division of power between states and the federal government since the time this country was founded; indeed, it was the relationship between the colonies and the English Parliament before that.
Conservatives for their part split hairs in arguing that DOMA “technically” does not infringe upon the sovereignty of states, even if it does constitute a novel exercise of federal power.
The Democracy Argument:
Lastly, both DOMA and the ACA raise serious questions concerning the power of courts to invalidate laws enacted by democratically elected bodies .
Fearing a devastating loss, liberals are demanding the judiciary humble itself and refrain from invalidating the ACA. Earlier this week, President Obama even went as far as making the preposterous statement that the Supreme Court would be taking “an unprecedented and extraordinary step” if it “overturn[ed] a law that was passed by a strong majority of a democratically elected Congress.” Every attentive high school student knows that ever since Marbury v. Madison, courts in this country have enjoyed the power to invalidate congressional legislation (surely a Harvard Law School graduate and constitutional law specialist knows as much).
The statement is even more dumbfounding given that the Obama administration is presently urging the courts to overturn DOMA and has instructed the Department of Justice to argue against its constitutionality. So much for showing respect for democratically enacted laws.
In fact, one could easily argue that DOMA is an even stronger embodiment of the democratic will than the ACA. DOMA was passed with huge bipartisan support, garnering 342 votes in the House and 85 votes in the Senate. The ACA for its part managed to secure the “bipartisan” support of only 1 House Republican and won only 219 votes in the House and 60 votes in the Senate. Not to mention the black cloud of backroom dealing and arm-twisting that loomed over the health care proceedings.
It is clear, then, that selectively invoking the democratic will and chiding judicial activism is done in a political context.
Concluding Thoughts
Some of what has been said in this article is perhaps not very surprising: liberals and conservatives strategically deploy legal arguments with an eye towards political ends. For this reason, certain commentators are inclined to argue that politics is an inseparable component of law. Others go further and say that federal judges are nothing more than politicians in black robes. It is curious, however, that the charge of judicial impropriety is only leveled when the Court fails to grant partisans certain political outcomes.
The final way in which DOMA and the ACA individual mandate are similar is that the Supreme Court will probably invalidate both. If this happens, liberals and conservatives will take turns lambasting the Court for having a “political agenda.” The very reality, however, that the Court will probably side with liberals on DOMA and with conservatives on the ACA suggests that if the Court does have an “agenda,” it is based on something other than politics.
Photo Credit: flickr.com/photos/ladawnaspics