On Obamacare, conservative judges were glad to limit Congress’ power. To uphold DOMA, they’ll need to do the opposite.

BY JEFFREY ROSEN

At the Supreme Court yesterday, after the oral arguments in U.S. v. Windsor, the immediate reaction was that opponents of the Defense of Marriage Act had done an effective job in persuading the Court to strike it down. “Final update: #scotus 80% likely to strike down #doma. J Kennedy suggests it violates states’ rights; 4 other Justices see as gay rights,” tweeted SCOTUSblog. But as I walked out of the courtroom, the impression among several of my fellow spectators in the press gallery was that both Solicitor General Donald Verrilli and Roberta Kaplan, the lawyer for Edie Windsor, weren’t adequately prepared for the questions—posed not only by Justice Anthony Kennedy, but also Chief Justice John Roberts and Justice Antonin Scalia—about whether DOMA violates states’ rights.

Verrilli, of course, was in a tough spot: As solicitor general for the U.S., he can’t embrace a definition of federalism that would seriously limit Congress’ power. But if Kaplan had pressed the federalism objections to DOMA more firmly and proactively, she might have had a better chance of winning the votes not only of Kennedy, but also of the federalism four—Roberts, Scalia, Samuel Alito, and Clarence Thomas—who embraced a radically limited vision of Congress’ power to regulate health care reform in the Obamacare case last June.

The fact that the conservative justices would be interested in the argument that DOMA violates states rights shouldn’t have come as a surprise. Last week, George F. Will wrote a column in the Washington Post concluding that “DOMA is an abuse of federalism” because it is not “’necessary and proper’ for the exercise of a constitutionally enumerated congressional power.” Will cited an amicus brief filed by federalism scholars, including Randy Barnett, the intellectual architect of the constitutional challenge to Obamacare, that made an argument similar to the one Barnett had made in the health care case: There is a “difference between a government with a general police power and a government of limited and enumerated powers,” the scholars write.

In the Supreme Court oral argument, Justices Kennedy, Roberts, and Scalia, seemed to be asking questions directly from the federalism scholars’ brief. The brief declared: “DOMA is not a narrow statute that applies only to federal benefit schemes. It indiscriminately governs all federal statutes and programs and affects more than 1100 federal statutes, many of which have nothing to do with the power of the purse.” In the argument on the merits of DOMA, Kennedy’s first question to Paul Clement, the attorney defending the law, echoed this concern. “Well, [DOMA] applies to over what, 1,100 federal laws … which in our society means that the federal government is intertwined with the citizens’ day-to-day life, you are at—at real risk of running in conflict with what has always been thought to be the essence of the state police power, which is to regulate marriage, divorce, custody.” 

Roberts pressed the federalism objection with Verrilli, asking him whether a congressional decision to expand the definition of marriage would violate states rights:

ROBERTS: Suppose your—you agree that Congress could go the other way, right? Congress could pass a new law today that says, We will give federal benefits. When we say “marriage” in federal law, we mean committed same-sex couples as well [i.e., whether or not married under state law], and that could apply across the board.

Or do you think that they couldn’t do that?

VERRILLI: We think that wouldn’t raise an equal protection problem like this statute does, Mr. Chief Justice.

ROBERTS: Well, no, my point is: It wouldn’t-—you don’t think it would raise a federalism problem either, do you?

VERRILLI: I don’t think it would raise a federalism problem.

It’s not a surprise that Verrilli was unwilling to embrace the very limited definition of congressional power that he had argued against (unsuccessfully) in the health care case. But Roberta Kaplan, with no obligation to defend the institutional interests of the U.S. government (or federal regulations more generally), had greater latitude to press the federalism objection. She seemed initially reluctant to take a position when Roberts asked her the same question he asked Verrilli. 

ROBERTS: I just am asking whether you think Congress has the power to interfere with the—to not adopt the state definition if they’re extending benefits. Do they have that authority? 

KAPLAN: I think the question under the Equal Protection Clause is what—is what the distinction is.

ROBERTS: No, no. I know that. You’re following the lead of the Solicitor General and returning to the Equal Protection Clause every time I ask a federalism question. Is there any problem under federalism principles? 

After first trying to hedge the answer—“I think whether or not the Federal Government could have its own definition of marriage for all purposes would be a very closely argued question”—Kaplan then recovered when Justice Scalia asked her for a clear yes or no:

KAPLAN: I’m not sure that the federal government—this answers your question, Justice Scalia—I’m not sure the federal government can create a new federal marriage that would be some kind of marriage that states don’t permit.

Randy Barnett, a libertarian law professor at Georgetown, argues that this is the right answer because federalism principles prohibit a federal definition of marriage that would allow people to be married for purposes of federal law but not state law or vice versa. But by failing to put the federalism objections front and center, Kaplan missed an opportunity to press the conservative justices to be intellectually consistent, striking down DOMA by embracing a narrow definition of federal power similar to the one they had endorsed in the Obamacare case.

Eventually, Kaplan recovered her footing and, in response to a question by Justice Stephen Breyer, tried to offer the Court a way of combining the liberal justices’ interest in equality and the conservative justices’ interest in states’ rights:

“Section 3 of DOMA is stopping the recognition by the federal government of couples who are already married, solely based on their sexual orientation, and what it’s doing is undermining, as you can see in the briefs of the states of New York and others, it’s undermining the policy decisions made by those states that have permitted gay couples to marry … fencing those couples off, couples who are already married, and treating them as unmarried for purposes of federal law, you’re not—you’re not taking it one step at a time, you’re not promoting caution, you’re putting a stop button on it, and you’re having discrimination for the first time in our country’s history against a class of married couples.”

As Douglas Kendall of the Constitutional Accountability Center told me, a crisper way of combining the states rights and equality argument might go something like this. “Justice Kennedy could write an opinion that strikes down [DOMA] on equal protection grounds in part because it’s such a sweeping law that intrudes into areas where states have typically had a fair amount of leeway,” he said. If the conservative justices came to see the equality and states’ rights arguments as intertwined, in fact, it’s conceivable that there might be even more than five votes to strike down DOMA. “The conservatives should join the liberals in recognizing the enormity of the discrimination and the unprecedented intrusion on states’ rights,” Kendall said. “The combination of those two problems makes DOMA uniquely constitutionally problematic, and justices on both sides of the Court’s ideological divide should be able to unite behind that type of reasoning.” We’ll find out this summer whether the conservative justices are as devoted to limiting congressional power on the subject of marriage equality as they were with Obamacare. If they’re not, however, libertarian law professors won’t be the only ones wondering about the inconsistency.