Reading through U.S. district judge Joseph Tauro’s decision in yesterday’s DOMA case, I couldn’t help but think that certain parts of his ruling would put a smile on the faces Virginia Attorney General Ken Cuccinelli and the other conservatives who are claiming that the new health care law represents an unprecedented expansion of federal power and undermines the tenth amendment of the constitution.
First, Tauro concludes that Section 3 is unconstitutional because there it forces the state of Massachusetts to “violate the equal protection rights of its citizens” embodied in the Due Process Clause of the Fifth Amendment for no rational basis. Fair enough. But then he writes that DOMA encroaches on “a historically entrenched tradition of federal reliance on state marital status determination“:
State control over marital status determinations is a convention rooted in the early history of the United States, predating even the American Revolution. Indeed, the field of domestic relations was regarded as such an essential element of state power that the subject of marriage was not even broached at the time of the framing of the Constitution. And, as a consequence of continuous local control over marital status determinations, what developed was a checkerboard of rules and restrictions on the subject that varied widely from state to state, evolving throughout American history. Despite the complexity of this approach, prior to DOMA, every effort to establish a national definition of marriage met failure, largely because politicians fought to guard …The history of the regulation of marital status determinations therefore suggests that this area of concern is an attribute of state sovereignty, which is “truly local” in character….And this court is convinced that the federal government’s long history of acquiescence in this arena indicates that, indeed, the federal government traditionally regarded marital status determinations as the exclusive province of state government…The federal government, by enacting and enforcing DOMA, plainly encroaches upon the firmly entrenched province of the state, and, in doing so, offends the Tenth Amendment. For that reason, the statute is invalid.
Compare that to Cuccinelli’s challenge to the health care law:
The Act represents an unprecedented encroachment on the liberty of individuals living in the Plaintiffs’ respective states, by mandating that all citizens and legal residents of the United States have qualifying healthcare coverage or pay a tax penalty….By imposing such a mandate, the Act exceeds the powers of the United States under Article I of the Constitution and violates the Tenth Amendment to the Constitution.
The Act also represents an unprecedented encroachment on the sovereignty of the states. For example, it requires that Florida vastly broaden its Medicaid eligibility….From the beginning of Medicaid until passage of the Act, the states were given considerable discretion to implement and operate their respective optional Medicaid programs in accordance with state-specific designs regarding eligibility, enrollment, and administration, so long as the programs met broad federal requirements….
There are plenty of differences between marriage laws and health care. The federal government has not traditionally weighed in on who can marry who, but state and federal governments have long played a role in health regulation. Medicaid, for example, is explicitly set up as a federal/state partnership where the two governments work together to provide health care to the poor. Nevertheless, Tauro’s suggestion that a history of federal silence on an issue may prevent Congress from weighing in on that issue bears far more resemblance to Cuccinelli’s reasoning than it does to the Supreme Court’s Commerce Clause cases. Jack M. Balkin has much more on Tauro’s 10th amendment argument here.
Meanwhile, the Department of Justice is expected to appeal the ruling and are currently “reviewing the decision.”