Many individuals today are debating the future of American constitutional democracy and whether it will endure in the months and years to come. Along with discussions on substantive constitutional rights (like those concerning birthright citizenship under the Fourteenth Amendment), vital conversations about federalism—the relationship between states and localities, and the federal government—are also unfolding.
Instances of conflict are likely to arise soon, often involving Democratic states and localities pushing back against new federal policies from a Republican Congress and administration. A notable example is a recent news story about a Chicago elementary school that barred access to individuals believed by school officials to be immigration enforcement agents (who ended up being Secret Service personnel). However, federalism operates in both directions, and Republican jurisdictions continue to resist federal policies and announcements deemed excessively liberal from their perspective. A few months ago, I discussed a relevant situation where the U.S. Court of Appeals for the Eighth Circuit overturned Missouri’s Second Amendment Protection Act (SAPA), a state law that limited state cooperation with federal authorities enforcing gun-control laws, arguing that these federal gun regulations exceeded their authority and were “invalid to this state.”
A comparable situation is developing in Idaho. Last week, a committee in the lower house of the Idaho legislature overwhelmingly supported a proposed “Memorial” to be presented to the U.S. Supreme Court, concerning the Court’s 2015 ruling in Obergefell v. Hodges, which affirmed a Fourteenth Amendment right for same-sex couples to obtain marriage licenses equal to those of opposite-sex couples. The proposed Idaho Memorial (pending approval by both houses of the state legislature) states 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 source of substantive rights, a doctrine that deviates from the full meaning of the Constitution and elevates 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 U.S. 744 (2013), that the definition of marriage is “an area that has long 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 returning 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.
If this Memorial is indeed adopted, it remains unclear whether any challenges will arise in court, but would such a Memorial be constitutionally permissible? The answer appears to be a clear yes. States possess the right, and indeed the duty, to articulate their opposition to what they perceive (however inaccurately) as unconstitutional overreach by the federal government. As I remarked in relation to SAPA:
Certainly, a state government can conclude that a federal enactment is unconstitutional and assert that invalidity in various contexts. There is nothing objectionable about this. When a state litigates against the federal government, it is making such assertions. Even beyond litigation, a state may issue a proclamation of its belief in the invalidity of certain federal laws without further action. A declaration reflecting that “We declare these [specific] laws to be in excess of federal power and therefore invalid, but intend no consequences—other than political mobilization—from our assertion” would not be problematic. Indeed, such a declaration by a state would be similar to, and even less confrontational than, the historic Virginia and Kentucky Resolutions enacted following the federal Alien and Sedition Acts in the early years of our nation, which one notable commentator indicated were “strikingly consistent with [founders’] vision of state legislatures as political watchdogs.”
What holds true for allegedly illegal acts by Congress should also apply to alleged illegal usurpations by other federal branches, including the federal judiciary and the U.S. Supreme Court. The Constitution asserts itself as the supreme law over all federal (and state) entities, not merely Congress.
However, the Eighth Circuit’s opinion in the SAPA case suggested an inherent issue with Missouri’s declaration that certain federal statutes were invalid, regardless of any actions Missouri might pursue based on that belief. As the Eighth Circuit stated:
That Missouri may lawfully withhold its assistance from federal law enforcement . . . does not imply that the State may do so by asserting to invalidate federal law. . . . Missouri has the power to withhold state assistance, “but the means it employs 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 due to “Missouri’s [belief and] assertion that [certain] federal laws are invalid to this State,” the Eighth Circuit proceeded to invalidate the entirety of SAPA, concluding that “the entire Act is founded on [Missouri’s assertion of] the invalidity of federal law.”
As I analyzed this reasoning by the Eighth Circuit in my column on SAPA, a state’s declaration of federal invalidity alone cannot violate federalism limitations in the Constitution. (This is not to suggest that a state may never engage in actions that implicate constitutional limitations based on different grounds, such as religion or race. Such declarations, even in isolation, might conflict with specific constitutional values, like the prohibition against the establishment of religion or the principle of equal protection. However, none of that pertains to federal-state relations. One might argue that a state’s assertion regarding a federal statute being unconstitutional and therefore lacking in validity and supremacy is distinct from enacting a statute declaring the federal statute “invalid to this state.” Nevertheless, unless there is evidence of legally cognizable consequences—emerging from the form of the state’s proclamations—that hinder the federal government’s ability to fulfill its goals, or any indication of why “invalid to this state” are decisive phrases that cross a Supremacy Clause boundary, neither of which the Eighth Circuit provides, it’s difficult to see how this distinction carries weight for the Eighth Circuit or anyone else.)
The debate surrounding Idaho’s proposed Memorial illustrates the flaws in the Eighth Circuit’s reasoning; if SAPA is considered flawed simply because Missouri cannot declare a federal law as “invalid to this state,” then Idaho’s proposed Memorial, which “rejects” a U.S. Supreme Court opinion, would appear equally flawed. Conversely, if (as I believe is evident) Idaho’s proposed Memorial is permissible, then so too should SAPA’s declarative core.
Of course, SAPA (unlike Idaho’s Memorial) takes action in addition to making declarations. And (as I mentioned earlier) some aspects of SAPA did impede federal operations and accordingly crossed a federalism boundary. However, this point—and not SAPA’s declaration itself—should have formed the basis for invalidating (parts of) SAPA.
What if Idaho not only adopts the Memorial but also supports it with more concrete regulatory measures? For example, what if Idaho were to pass and attempt to enforce a new law restricting marriage licenses exclusively to same-sex couples? (Or, for that matter, to actively enforce existing state laws that were effectively stalled by Obergefell?) Such enforcement would likely be swiftly enjoined by a federal or state court. But would Idaho be acting impermissibly from a constitutional perspective in passing and attempting to enforce a statute that contradicts clear Supreme Court authority? In many cases, the answer is no. This is, after all, what Mississippi did in Dobbs (namely, Mississippi passed and sought to enforce a law in direct contradiction to the Supreme Court’s ruling in Planned Parenthood v. Casey) specifically to prompt the Supreme Court to reconsider and overturn its previous decision. (One might consider that without such provocative actions by legislatures and state enforcement officials, the Court could miss an opportunity to correct what it views as its own errors; for example, if states and the federal government had not persisted in enacting and enforcing workplace regulations that were at odds with Lochner post-decision, the Court would have had no chance to disavow that erroneous ruling.) Many commentators argue (albeit incorrectly, in my opinion) that Dobbs’ reasoning foreshadows the end of Obergefell. If Mississippi’s actions were constitutionally sound because there was a reasonable prospect that the Court was poised to overturn Roe/Casey, many would surmise that the same applies if Idaho were to reinforce its proposed Memorial with measures that seek to directly confront (a vulnerable) Obergefell.
Does this imply that legislatures and executive branches can always pass and seek to enforce laws that contradict clear Supreme Court precedent? I think not, particularly regarding enforcement. It is plausible that legislatures may generally be constitutionally permitted to pass laws that defy Supreme Court rulings if there is no immediate intention for state enforcement, as the absence of an enforcement threat typically means no one experiences a tangible injury. However, in cases involving significant enforcement threats, I believe Due Process could be violated if states attempt to enforce laws when it seems unlikely the Supreme Court would uphold such enforcement, analogous to a prosecutor violating Due Process by prosecuting without a realistic chance of securing a conviction beyond a reasonable doubt; government should not be allowed to penalize individuals by requiring them to defend themselves when the outcome is predetermined. Hence, Mississippi acted appropriately in Dobbs, as there was a non-frivolous possibility that the Court would proceed as it ultimately did in Dobbs. Nonetheless, Mississippi would not be acting appropriately if it attempted to reinstate racial segregation in public schools along pre-Brown v. Board of Education lines, as any claim that the Court might soon overturn Brown is frivolous. To my perspective, Obergefell faces no imminent threat of being overruled, but I wouldn’t label the alternative belief as frivolous.