Supreme Court Could Strike Down DOMA on Federalism Grounds

by Ilya Shapiro, CATO Institute

One of the more interesting and potentially influential amicus briefs in United States v. Windsor, the case challenging DOMA Section 3, is one filed by a group of federalism scholars, all of whom have some connection to Cato and/or are generally sympathetic to the positions we take at the Center for Constitutional Studies. As Dale Carpenter puts it on the Volokh Conspiracy blog:

Today I’m proud to join three of my co-Conspirators — Jonathan Adler, Randy Barnett, and Ilya Somin — as well as Ernie Young and Lynn Baker in filing an amicus brief in United States v. Windsor arguing that DOMA Section 3 is unconstitutional. While this conclusion is shared by 69% of constitutional law professors around the country, our route to that end is probably not as widely shared.

Our view is that Section 3 fails equal protection review for a reason quite distinct from the standard approaches relying on heightened-scrutiny analysis.  Whatever else may be its constitutional defects, Section 3 is not a constitutional exercise of any enumerated federal power.  It is also not a “necessary and proper” measure to carry into execution any of Congress’s enumerated powers.  Instead, it is an unprecedented expansion of federal authority into a domain traditionally controlled by the states.  The federal government claims a hitherto unknown and sweeping power to determine marital and family status.  While Congress has not (yet?) claimed a statutory authority to bar states from recognizing specific marriages, it has greatly complicated and burdened their police power to do so through the enforcement of DOMA. It may well be that Congress has authority to limit access to specific federal benefits otherwise available to validly married people.  But Section 3, as an across-the-board enactment untethered to any specific power, is not plainly adapted to serve any “legitimate” interest of the federal government.

This may be an appealing argument for those on the Court who take federalism seriously


Illinois Anti-Drone Bill Passes Committee, 7-2

The Illinois State Senate Committee on Criminal Law today passed SB1587 this morning, with 7 votes for and 2 against.

The intention of the bill is to protect citizens from loss of privacy through warrantless surveillance, limit liability on the state and local government, and create clear standards for the use of unmanned aerial vehicles, AKA drones.

Warrants have to be very specific in the information they are trying to obtain, must show probable cause, and don’t allow for the keeping of extraneous information that is coincidentally collected about non-involved persons in the process.  Which means that your neighbors should be safe from surveillance, even if the police have a warrant for your backyard. If footage of them happens to be collected in the process, it must be discarded.

If the bill becomes law, therefore, it would be a great victory in protection against unreasonable search and seizure, especially as we head into the new frontier of massive drone production.

“There were a lot of people at the hearing,” said a member of the Tenth Amendment Center who was there in support of SB1587. “And only one group appeared to be against, a member of a police chief group opposed to the bill.”


NDAA Nullification Passes Michigan Senate, 37-0

After passing out of committee by a unanimous vote last week, the full Michigan State Senate approved Senate Bill 94 (SB94) and moved the bill on to the State House. The vote was 37-0.

A modified version of the Liberty Preservation Act released by the Tenth Amendment Center, Michigan joins a growing choir of states and localities who’ve decided that waiting for federal politicians to repeal their own power is something they’re not willing to risk.

The bill was sponsored by State Senator Rick Jones who worked hard behind the scenes to get bipartisan support.  Grassroots activists on the ground in Michigan reported that a number of Senators changed their vote from “Not Voting” to “Yes” at the last second.

After today’s vote on SB94, Dennis Marburger with the Michigan Chapter of the Tenth Amendment Center coordinator expressed his view that this is a big step forward for liberty:

The very active and knowledgeable group of Michiganians fighting this egregious Federal overreach will not rest until there is real, tangible and viable state resistance to DC’s attempts to deny our rights and threaten our safety – whatever unconstitutional legislation, edict or judicial fiat our government employees use as an excuse.

Thomas Jefferson said Nullification is the Rightful Remedy to unlawful behavior by our agents in the general government and James Madison said it is the duty of the state to Interpose on our behalf against the Feds in those cases. We will continue to insist that our state employees do their duty and their part to uphold their oaths of office and enforce the Constitution.

As in the 1850s, when Michigan was a leader in the Nullification of the Fugitive Slave Act, we demand no less for all Michiganians today in battling the unconstitutional and immoral indefinite detention provisions of the 2012 NDAA.

If signed into law, SB94 would make it illegal for Michigan to participate in NDAA indefinite detention


Utah Bill would Nullify Patient Protection and Affordable Care Act

Utah House Bill HB391 introduced by Representative Lee Perry, would amend the governor’s programs related to the Health System Reform Act. The bill declares the Patient Protection and Affordable Care Act null and void in the state of Utah. Furthermore, This bill declares that the Affordable Care Act, which was passed by Congress, signed by the President, and major portions of which were upheld as constitutional by a majority of the United States Supreme Court, is invalid and without effect in the state of Utah because it violates the true meaning of the Constitution of the United States.

The text of the bill states the following:

“The Legislature finds that:
(a) the people of the several states comprising the United States of America created the
federal government to be their agent for certain enumerated purposes, and nothing more;
(b) the Tenth Amendment to the Constitution of the United States defines the total
scope of federal power as being that which has been delegated by the people of the several
states to the federal government, and all power not delegated to the federal government in the
Constitution of the United States is reserved to the states respectively, or to the people
themselves; and”

“(c) the assumption of power that the federal government has made by enacting the
Patient Protection and Affordable Care Act interferes with the right of the people of the state of
Utah to regulate health care as they see fit, and does not comply with the assurance in The
Federalist Papers, No. 45 (James Madison), that the “powers delegated” to the federal
government are “few and defined,” while those of the states are “numerous and indefinite.”


Liberty, Raw and Natural

In Minnesota, a man accused of the illegal sale of raw milk was acquitted, not because he did not violate Minnesota state law, but because the jury decided the law itself was unjust, and therefore no law at all.  The story by JG Vibes was reported in September of 2012, but is certainly worth reviewing as a blueprint for using the power of the jury to nullify unjust federal, state and local laws.

The concept of jury nullification is older than the Constitution, the Articles of Confederation and even the Declaration of Independence.  In 1670 (h/t Dr. Julian Heicklen), William Penn and William Mead were out on trial as Quakers for “unlawful assembly,” as Quakers did not have the freedom to worship in England.  The jury refused to convict the two men, even under orders from the judge to go without food or drink until a guilty verdict was delivered.  After further refusal to convict, the jurors were jailed, but their sentence was overturned on appeal in the Common Court of Pleas.