In a decision issued yesterday, the Federal District Court for Massachusetts overturned a portion of the Federal Defense of Marriage Act (DOMA) for reasons including the violation of the Tenth Amendment and Congress lacking an enumerated basis for defining marriage, in the case of Massachusetts v. Department of Health and Human Services.
Section 3 of DOMA prohibited any definition of marriage other than that of a union of one man and one woman from being used by the Federal government, including eligibility rules for Federal benefits. Massachusetts Attorney General Martha Coakley challenged the law last year arguing, amongst other points, that…

Congress lacks the authority under Article I of the United States Constitution to regulate the field of domestic relations, including marriage [and that] Section 3 of DOMA violates the Tenth Amendment, exceeds Congress’s Article I powers, and runs afoul of the Constitution’s principles of federalism by creating an extensive federal regulatory scheme that interferes with and undermines the Commonwealth’s sovereign authority to define marriage and to regulate the marital status of its citizens.

In other words, Congress lacked the power to define marriage, even for Federal law, because a power to involve itself in regulating domestic relations had never been delegated to Congress. And in deciding the case, District Court Judge Joseph Tauro agreed that Federalist arguments have to be taken seriously in this and in any other area…

It is a fundamental principle underlying our federalist system of government that “[e]very law enacted by Congress must be based on one or more of its powers enumerated in the Constitution.” And, correspondingly, the Tenth Amendment provides that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The division between state and federal powers delineated by the Constitution is not merely “formalistic.” Rather, the Tenth Amendment “leaves to the several States a residuary and inviolable sovereignty.” This reflects a founding principle of governance in this country, that “[s]tates are not mere political subdivision of the United States,” but rather sovereigns unto themselves.

In its defense, the Federal Government argued that an enumerated power allowing Congress to define marriage can be found in the “Spending Clause” of the US Constitution (Article I section 8)…

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States

…which has been interpreted to allow Congress to set conditions on how Federal monies are spent, in pursuit of the promotion of the general welfare. But Judge Tauro rejected this justification as a basis for DOMA, on the grounds that…

1. The courts have previously held that the broad grant of power in Spending Clause cannot be used to justify Congressional actions that violate more sharply defined section of the Constitution, and
2. Section 3 of DOMA “violated the equal protection principles embodied in the Fifth Amendment to the United States Constitution” (decided in Gill vs. Office of Personnel Management, the companion case to Massachusetts v. HHS, and decided by Judge Tauro on the same day).

Judge Tauro’s ruling also made note that the scope of Section 3 of DOMA extended beyond just “spending”…

It is…worth noting that DOMA’s reach is not limited to provisions relating to federal spending. The broad sweep of DOMA, potentially affecting the application of 1,138 federal statutory provisions in the United States Code in which marital status is a factor, impacts, among other things, copyright protections, provisions relating to leave to care for a spouse under the Family and Medical Leave Act, and testimonial privileges.

…suggesting that the Spending Clause might not have been an adequate justification for Section 3 of DOMA, even if it had been decided that there was no conflict with the rest of the Constitution. Given that the opinion makes no further mention of whether the impacts of DOMA outside of spending or monetary benefits can be justified by the Spending Clause, I believe the implication is that there is no way that DOMA could have met Constitutional requirements in any non-spending area of the law, if it was unable to meet Constitutional requirements directly related to spending.
The rationale offered by Judge Tauro with regard to the Tenth Amendment was more direct. He found that Section 3 of DOMA violated it, without dependence on any other Constitutional provisions…

That DOMA plainly intrudes on a core area of state sovereignty — the ability to define the marital status of its citizens — also convinces this court that the statute violates the Tenth Amendment…
This court has determined that it is clearly within the authority of the Commonwealth to recognize same-sex marriages among its residents, and to afford those individuals in same-sex marriages any benefits, rights, and privileges to which they are entitled by virtue of their marital status. 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.

However, while this part of the opinion directly invokes the Tenth Amendment, it does so in a manner more limited than the plain wording of the Amendment would suggest. Judge Tauro’s opinion, drawing from established circuit-level precedent, stresses that the Tenth Amendment applies to areas which, in addition to not being delegated to the Federal Government, must also be areas which clearly belong to the state governments. This adds an extra condition on Tenth Amendment protections, not found in the Amendment’s text, which makes no reference to a subset of non-delegated state powers being the special ones that are protected.
So while I can applaud Judge Tauro’s general principle of taking the idea of enumerated powers and Tenth Amendment seriously, the specifics of his ruling highlight a substantial gap that currently exists in our nation’s Federalism-related jurisprudence. While the Federal government cannot intrude into an area that is fundamental to the sovereignty of a state, and cannot use the “Spending Clause” to justify actions that conflict with other parts of the Constitution, there is still a large range of possible Federal actions whose Constitutionality is not clearly defined by the courts, i.e. actions that courts do not declare to be essential to state sovereignty, and that are not in conflict with the Constitution but that are not expressly delegated to the Federal Government.