Federalism As A Strategy, Not a Principle

At the New York Times, veteran legal journalist Linda Greenhouse notes some of the cheerleading (from progressives even more than from conservatives) for the probability that the Supreme Court will strike down the Defense of Marriage Act on federalism grounds, and marvels at the short-sightedness of it all:

You might have thought the case, United States v. Windsor, was about equality: marriage equality, in the graceful current locution. The two lower federal courts that ruled in this case on its way to the Supreme Court held that the Constitution’s equal protection guarantee required the federal government to treat married couples, same-sex and opposite-sex, equally for purposes of the more than 1,000 provisions of federal law that relate to marital status.

I thought that’s what the case was about, too. But what reverberated from the bench was the discordant music of federalism – the federalism that almost sank the Affordable Care Act; the federalism that seems about to put a stake through the heart of the Voting Rights Act; the revival of the mid-1990s federalism revolution that had seemed, until recently, to have run its course at the Supreme Court with the departure of two of its most energetic guardians of states’ rights, Justice Sandra Day O’Connor and the late Chief Justice William H. Rehnquist.

There would be an immediate cost for a destruction of DOMA on federalism grounds, notes Greenhouse:

It would, of course, provide the full benefits of marriage to those living in states that chose to recognize same-sex marriage. But it would snatch away the promise for those living elsewhere, particularly if the decision was based not only on the asserted absence of federal authority but on exaggerated notions of state sovereignty anchored in the Tea Party’s favorite constitutional amendment, the 10th.

But beyond that, she argues, such an outcome, which would cut against a series of landmark decisions–including the one that struck down state miscegenation laws–on the constitutional limits on state authority to regulate family life, would be a very bad sign of things to come:

Federalism tends to emerge from under the rocks in times of constitutional ferment, when the status quo is cracking and needs some propping up.

That’s true in politics as well as in constitutional law, as evidenced by the support most conservatives lend to federal laws and even constitutional amendments to secure objectives ranging from an abortion ban to a federal definition of marriage, to protections of “property rights” and creation of a “market-based health care system,” precisely up to the point they are achievable, only then retreating to a “federalism” argument for leaving such questions up to the states. On health care virtually all Republicans right now are simultaneously pushing for devolution of Medicaid to the states and for federal preemptive legislation allowing interstate insurance sales (which would neuter any state regulations insurance companies found inconvenient). We’ve seen similar hypocrisy in many other areas (notably efforts during periods of Republican control of the White House and the Congress to preempt state environmental and banking policies their business clients dislike).

Progressives would be wise not to emulate this habit of respecting federalism when, and only when, it serves their immediate purposes. As Greenhouse concludes in discussing the DOMA case:

Last week, Solicitor General Verrilli, pressed repeatedly to say something nice about federalism, refused to play the game. The case, he insisted, was about “discrimination.” Lawyers rarely get the chance to speak to the court in paragraphs. When Mr. Verrilli got that chance, he took it, telling the justices: “I think it’s time for the court to recognize that this discrimination, excluding lawfully married gay and lesbian couples from federal benefits, cannot be reconciled with our fundamental commitment to equal treatment under law. This is discrimination in its most very basic aspect.”

It was as eloquent a statement of principle as the court hears these days.

Ed Kilgore

Ed Kilgore, a Monthly contributing editor, is a columnist for the Daily Intelligencer, New York magazine’s politics blog, and the managing editor for the Democratic Strategist.