Academic journal article Case Western Reserve Law Review

Is There a Federal Definitions Power?

Academic journal article Case Western Reserve Law Review

Is There a Federal Definitions Power?

Article excerpt


Although the Supreme Court decided United States v. Windsor on equal protection grounds, that case also raised important and recurring questions about federal power. In particular, defenders of the Defense of Marriage Act (DOMA) argued that Congress may always define the terms used in federal statutes, even if its definition concerns a matter reserved to the States. As the DOMA illustrates, federal definitions concerning reserved matters that depart from state law may impose significant burdens on state governments and private citizens alike. This Article argues that there is no general, freestanding federal definitions power and that sometimes--as with marriage--federal law must incorporate state law definitions.


      A.  Specific Enumerated Powers
      B.  Necessary and Proper
      C.  Do Definitions Require an Enumerated Basis?


In United States v. Windsor, (1) the Supreme Court held that Congress may not discriminate, in the administration of federal programs, between same-sex and different-sex couples that are each legally married under state law. Writing for the Court, Justice Kennedy said that such discrimination, required by Section 3 of the federal Defense of Marriage Act (DOMA), (2) violated the equal protection component of the Fifth Amendment. (3) This essay, however, concerns a different argument that the Court had before it but did not reach in Windsor--that is, that Congress lacked any enumerated power to define marriage in such a way as to exclude same-sex couples from the federal definition of marriage. (4) The Court was entirely sensible not to reach this argument, but the debate in and around Windsor gave rise to broad claims about Congress's power to define the terms in federal statutes in ways that impose burdens on individuals and state governments. (5)

That issue is unlikely to go away. As DOMA illustrates, Congress's ability to rule persons in or out of innumerable federal regulatory schemes and benefit programs gives it significant leverage over matters that it might well lack power to regulate directly. One can readily imagine other federal interventions into controversial aspects of family and privacy law masquerading as federal "definitions"--for example, federal definitions of "parent" or "child" that excluded same-sex adoptions, or a federal definition of "person" that included a fetus. If the arguments for Congress's "definitional" prerogative are taken seriously, they would offer a formalistic end-run around the few remaining limits on Congress's enumerated powers.

I argue here that Congress lacks any freestanding "definitions power." Most federal definitions, of course, will either fall within or be necessary and proper to the implementation of Congress's specifically enumerated powers. But the Court's recent decisions make clear that the Necessary and Proper Clause is not a blank check; there will be instances in which Congress cannot impose its own definition of a particular concept and must, as a matter of constitutional necessity, adopt the definition provided by state law. Federal law, in these cases, takes state law as it finds it. I submit that the definition of marriage, at least in the broad context of DOMA, is one of those instances.

The definitional issue, as I have said, transcends the immediate controversy over DOMA. In keeping with the theme of this Symposium, however, Part I offers a few thoughts about the broader relationship of federalism principles to that controversy and to the Supreme Court's decision in Windsor. Part II turns to the constitutional basis and limits of Congress's authority to define terms for purposes of federal law. Part III concludes with some implications of those limits.


It has become fashionable both to criticize Justice Kennedy's opinion in Windsor as unclear or incoherent and to discount its references to federalism. …

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