A lot of people these days are talking about whether and how American constitutional democracy will hold up in the coming months and years. Alongside conversations about substantive constitutional rights (such as those of birthright citizenship under the Fourteenth Amendment) are important discussions concerning federalism—the relationship between states and localities, on the one hand, and the federal government on the other.
Many of the flashpoints that will emerge in short order are likely to involve pushback by Democratic states and localities against new federal policies coming from a Republican Congress and administration. Case in point: recent headlines about a Chicago elementary school barring access to persons that school officials thought were immigration enforcement personnel. (The federal employees in question turned out to be Secret Service agents.) But federalism cuts both ways, and there continue to be protests by Republican jurisdictions against federal enactments and pronouncements that, from the Red-state point of view, are unjustifiably liberal. A few months ago I wrote on this website about one such episode—a case in which the U.S. Court of Appeals for the Eighth Circuit invalidated Missouri’s so-called Second Amendment Protection Act (SAPA), a state law that withheld state cooperation from federal authorities charged with enforcing gun-control laws on the ground that such federal gun enactments exceeded federal power and were thus “invalid to this state.”
A similar episode is percolating in Idaho. Last week a committee of the lower house of the Idaho legislature overwhelmingly approved the adoption of a proposed “Memorial” by the Idaho legislature, to be delivered to the U.S. Supreme Court, concerning the Supreme Court’s 2015 ruling in Obergefell v. Hodges recognizing a Fourteenth Amendment right for same-sex couples to obtain marriage licenses on terms equal to those enjoyed by opposite-sex couples. The proposed Idaho Memorial (which would need to be approved on the floor of both houses of the state legislature before it would take effect) provides in part:
We, your Memorialists, the House of Representatives and the Senate of the State of Idaho assembled in the First Regular Session of the Sixty-eighth Idaho Legislature, do hereby respectfully represent that: WHEREAS, the decision by the Supreme Court of the United States in Obergefell v. Hodges, 576 U.S. 644 (2015), is at odds with the Constitution of the United States and the principles upon which the United States is established; and . . .WHEREAS, Obergefell invokes a definition of “liberty” that the framers would not have recognized, . . . and WHEREAS, Obergefell relies on the dangerous fiction of treating the Due Process Clause of the Fourteenth Amendment to the Constitution as a font of substantive rights, a doctrine that strays from the full meaning of the Constitution and exalts judges at the expense of the people from whom they derive their authority; and WHEREAS, Obergefell’s inversion of the original meaning of liberty causes collateral damage to other aspects of our constitutional order that protect liberty, including religious liberty; and WHEREAS, the Supreme Court recognized in United States v. Windsor, 570 32 U.S. 744 (2013), that the definition of marriage is “an area that has long 33 been regarded as a virtually exclusive province of the States,” meaning that Idaho, and not the Supreme Court, has the right to regulate marriage for its citizens; and WHEREAS, Obergefell requires states to issue marriage licenses to same-sex couples and to recognize same-sex marriages in complete contravention of their own state constitutions and the will of their voters, thus undermining the civil liberties of those states’ residents and voters; and WHEREAS, marriage as an institution has been recognized as the union of one man and one woman for more than two thousand years, and within common law, . . .; and WHEREAS, Obergefell arbitrarily and unjustly rejected this definition of marriage in favor of a novel, flawed interpretation of key clauses within the Constitution and our nation’s legal and cultural precedents; and WHEREAS, since court rulings are not laws and only legislatures elected by the people may pass laws, Obergefell is an illegitimate overreach. NOW, THEREFORE, BE IT RESOLVED by the members of the First Regular Session of the Sixty-eighth Idaho Legislature, the House of Representatives and the Senate concurring therein, that the Idaho Legislature rejects the Obergefell decision. BE IT FURTHER RESOLVED that the Idaho Legislature calls upon the Supreme Court of the United States to reverse Obergefell and restore the natural definition of marriage, a union of one man and one woman. BE IT FURTHER RESOLVED that the Idaho Legislature insists on restoring the issue of marriage and enforcement of all laws pertaining to marriage back to the several states and the people. BE IT FURTHER RESOLVED that the Chief Clerk of the House of Representatives be. . . authorized and directed to forward a copy of this Memorial to the Supreme Court of the United States.
Assuming this Memorial is in fact adopted, I don’t know whether anyone will challenge it in court, but would such an enacted Memorial be constitutionally permissible? The answer seems to me clearly yes. States have the right, indeed the obligation, to speak up against what they see (however wrongly) as unconstitutional overreach by the federal government. As I wrote in connection with SAPA:
Certainly a state government can come to the view that a federal enactment is unconstitutional and assert that invalidity of federal law in many contexts. There is nothing invidious about that. When a state sues the federal government, it is making such assertions. Even outside the context of litigation, a state could certainly issue a proclamation of its belief in the invalidity of certain federal laws and do nothing more. A declaration by a state to the effect that “We declare these [specific] laws to be in excess of federal power and thus invalid, but we intend no consequences—other than political mobilization—from our assertion” would be unproblematic. Indeed, such a declaration by a state would be similar to, and indeed less aggressive than, the famous Virginia and Kentucky Resolutions enacted in the wake of the federal Alien and Sedition Acts in the nation’s early years, which one prominent commentator astutely pointed out were “strikingly consistent with [founders’] vision of state legislatures as political watchdogs.”
And what is true for allegedly illegal actions by Congress has to be true as well for allegedly illegal usurpations by the other federal branches, including the federal judiciary and the U.S. Supreme Court. The Constitution proclaims itself the Supreme law over all federal (and state) bodies, not just Congress.
The Eighth Circuit’s opinion in the SAPA case, however, thought that there was something inherently problematic with Missouri’s articulation of its belief that particular federal statutes were invalid, putting aside any actions Missouri might seek to take based on that belief. As the Eight Circuit said:
That Missouri may lawfully withhold its assistance from federal law enforcement . . . does not mean that the State may do so by purporting to invalidate federal law. . . . Missouri has the power to withhold state assistance, “but the means it uses to achieve its ends must be [, as the Court observed in McCulloch v. Maryland,] ‘consistent with the letter and spirit of the [C]onstitution.’” Missouri’s assertion that [certain] federal laws regulating firearms are “invalid to this State” is inconsistent with both.
Based on its belief that Missouri’s choice to withdraw enforcement support was constitutionally impermissible because it was based upon “Missouri’s [belief and] assertion that [certain] federal laws are invalid to this State,” the Eighth Circuit went on to invalidate the rest of SAPA, concluding that “the entire Act is founded on [Missouri’s assertion of] the invalidity of federal law.”
As I explained in analyzing this reasoning by the Eighth Circuit in my SAPA column, a state’s declaration of federal invalidity simpliciter cannot by itself violate federalism limitations in the Constitution. (This is not to suggest that a state may never implicate constitutional limitations by mere assertions, for example, concerning religion or race. Such proclamations, even without more, might run afoul of certain constitutional values such as freedom from religion establishment or Equal Protection. But none of that has to do with federal-state relations. One might also try to argue that a state’s assertion that a federal statute is unconstitutional and thus lacking in validity and supremacy is different than the state’s enacting a statute making the federal statute “invalid to this state.” But absent demonstration of legally cognizable consequences—arising from the form of the state’s pronouncements—that impede the federal government’s ability to accomplish its objectives, or any showing of why “invalid to this state” are magical words that somehow cross a Supremacy Clause line, neither of which the Eighth Circuit offers, it’s hard to see how this distinction does or should matter to the Eighth Circuit or anyone else.)
The controversy over Idaho’s proposed Memorial itself illustrates the shortcomings of the Eighth Circuit’s reasoning; if SAPA is flawed simply because Missouri cannot declare a federal law is “invalid to this state,” then Idaho’s proposed Memorial that “reject[s]” a U.S. Supreme Court opinion would seem equally flawed. By the same token, if (as I think is clear) Idaho’s proposed Memorial is permissible, so too should SAPA’s declaratory centerpiece.
Of course, SAPA (unlike Idaho’s Memorial) goes on to do, as well as say, things. And (as I explained) some of what SAPA did impeded federal operations and thus crossed a federalism line. But that, and not SAPA’s declaration itself, should have been the basis for invalidating (parts of) SAPA.
What if Idaho were to not only adopt the Memorial but also back it up with more specific regulatory actions? What if, for example, Idaho were to pass and try to enforce a new statute that limits marriage licenses only to same-sex couples? (Or, for that matter, to simply enforce already-enacted state laws that were effectively put on hold by Obergefell.) Such enforcement would, I suspect, be quickly enjoined by a federal or state court. But would, constitutionally speaking, Idaho be acting impermissibly in passing and seeking to enforce an act that contravenes clear Supreme Court authority? In many instances, the answer is no. That is, after all, what Mississippi did in Dobbs (that is, Mississippi passed and sought to enforce a law in direct tension with the Supreme Court’s ruling in Planned Parenthood v. Casey) precisely in order to give the Supreme Court an opportunity to revisit and overrule its past precedent. (Consider that absent such provocative actions by legislatures and state enforcement personnel, the Court might not have a chance to correct what it views as its own mistakes; for example, if states and the federal government hadn’t continued to enact and enforce workplace regulations that contradicted Lochner after it came down, the Court would not have been able to repudiate that wrong-headed decision.) And many commentators believe (very wrongly, I think) that Dobbs’ reasoning portends the death of Obergefell. If Mississippi’s actions were constitutionally permissible because of the reasonable chance the Court was ready to overturn Roe/Casey, many people would say the same would be true if Idaho backed up its proposed Memorial with actions that seek to directly challenge (a vulnerable) Obergefell.
Does that mean legislatures and executive branches are always free to pass and seek to enforce laws that contravene clear Supreme Court precedent? I think not, certainly as to enforcement. Perhaps legislatures are generally constitutionally allowed to pass laws that flout Supreme Court rulings if there is no immediate prospect of state enforcement, since almost always the lack of a threat of enforcement means no one suffers a cognizable injury. As to real threats of enforcement, however, I think Due Process might very well be violated if states try to enforce laws when there is no reasonable prospect that such enforcement would be upheld by the Supreme Court, in the same way a prosecutor might violate Due Process by prosecuting someone she has no reasonable chance of convicting of guilt beyond a reasonable doubt; government ought not to be able to punish people by requiring them to defend when the result of a proceeding is foreordained. So Mississippi acted permissibly in passing and seeking to enforce the law in Dobbs because there was a non-frivolous possibility that the Court would do precisely what it ended up doing in Dobbs. But Mississippi would not be acting permissibly if it tried to reinstitute racial segregation in public schools along pre-Brown v. Board of Education lines, because any argument that the Court will overrule Brown in the near future is frivolous. To my mind Obergefell is in no real danger of being overruled either, but I don’t know that I would call a belief to the contrary frivolous.
