Monday’s U.S. Supreme Court Decision Was a Federalism Doozy

By David Fowler  |   FACT

This week the U.S. Supreme Court released an important Tenth Amendment decision, Murphy v. NCAA, that may have clear implications for the state’s lawsuit against the United States over the Refugee Act. It also might just overthrow the Court’s three-year-old same-sex “marriage” decision, Obergefell v. Hodges.

The Murphy case involved a provision in a federal statute passed years ago prohibiting states from “authorizing” any form of sports gambling. It’s important to note that this provision did not make sports betting a federal crime. Had it done so, the federal statute would have been directed against and regulated the activities of persons (individuals and individual entities), who can be subjected to federal laws.

But this provision was directed at limiting or controlling the powers of the state legislature to legalize or prohibit sports gambling. It was because the provision purported to bind a state’s legislature, not persons, that it raised a Tenth Amendment question.

Here is what six of the nine justices said in Murphy about why the provision was unconstitutional:

That provision unequivocally dictates what a state legislature may and may not do. . . . The legalization of sports gambling requires an important policy choice, but the choice is not ours to make. Congress can regulate sports gambling directly, but if it elects not to do so, each State is free to act on its own. [The federal law] “regulate[s] state governments’ regulation” of their citizens. The Constitution gives Congress no such power.

Here is the point: Congress can’t tell a state what laws it must have or what state laws it cannot repeal.

Application to Refugee Resettlement Lawsuit

In March 2017, the Tennessee Legislature sued the United States arguing that Congress’ regulation of refugees through private vendors under the Refugee Act placed a de facto requirement on the state that it affirmatively enact a state law—the state budget—that covers certain costs associated with that federal program.

The lawsuit isn’t about whether one likes or dislikes the federal program or likes or dislikes refugees resettling here. It is about the Constitution and whether the federal government has the power to make a state enact a law to pay for a federal program in which it does not participate.

Murphy should bolster the Legislature’s argument that where the federal government chooses to regulate, it must do so, and it can’t require the state to participate in any way in the federal program’s administration or funding.

Application to Obergefell

Given that the U.S. Supreme Court is a branch of the federal government, its powers, like Congress’, are limited. In 2015, the Court held that marriage was a fundamental right under the U.S. Constitution and states could not have a statute that limited the issuance of licenses to opposite-sex couples.

But why do states have to administer this federal right by enacting statutes to effectuate this federal right and by using Tennessee tax dollars to pay for the costs associated with administering those statutes?

Since Obergefell, it seems that state officials and most attorneys have assumed that the state must have a marriage licensing statute and that that statute must authorize the issuance of marriage licenses to any two people, regardless of their sex.

But if a branch of the federal government expressly given legislative functions under the U.S. Constitution, Congress, cannot forbid states from repealing a law or requiring them to enact a particular law, then how can the Supreme Court, which clearly has no policy or legislative powers, do that when it comes to effectuating the federal right to marry?

As in Murphy, the federal “law” in Obergefell appears to “regulate[s] state governments’ regulation” of their citizens!

This federalism issue was raised by Michigan’s attorney general during the oral arguments in Obergefell and all the justices missed the point—There is nothing, he said, in the U.S. Constitution that requires a state to license a marriage and no branch of the federal government can require them to do so.1

The Supremacy Clause Doesn’t ‘Save’ Obergefell

Thankfully, the Court flushed Congress out of the refuge to which attorneys unwilling to discuss the merits of Obergefell have retreated: the Supremacy Clause. Murphy rebuffed the argument that the Supremacy Clause provided Congress the power to bind the state’s legislature.

The Supremacy Clause, the Court said, only provides a “rule of decision” for the Court to follow when an otherwise valid state law conflicts with an otherwise valid exercise of federal power—the federal exercise of power trumps the state exercise of power. It is not a source of power by which an otherwise invalid exercise of federal power can be justified.

One More Lawsuit Is Needed

Perhaps the Legislature should file one more lawsuit. This time it should seek to enjoin the Department of Health from issuing marriage licenses to two people of the same sex, contrary to express language in our marriage licensing statute.

The argument is simple: Its legislative powers have been encroached on by the U.S. Supreme Court’s apparent requirement that it have a statute requiring state officials to administer a form of marriage that the Constitution of its state expressly prohibits it from recognizing, and it is the constitutional responsibility of either the Court or Congress to administer this new federal right. Neither can tell the state how to affirmatively regulate the conduct of their residents.

Of course, such an argument might just cause the Court to realize it made a mistake in Obergefell, in which case the Court could just chalk it up to “Murphy’s Law.”


  1. The actual statement by the Michigan attorney general was, “If the State today decided to have no marriage, as some States have proposed, that wouldn’t violate a fundamental right. . . . [T]he Court cannot, as a constitutional matter, say but yes, you can force the State into these relationships by—by forcing them to recognize and give benefits to anyone.”
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