BY ARI EZRA WALDMAN

The last amendment in the Bill of Rights sounds simple: "The 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." It is pretty clear that this clause was animated by the anti-Federalist concern about a strong central government and the amendment's inclusion in the Bill of Rights was central to gaining enough votes to ratify the Constitution. It is also clear that this clause is less protective of states' rights than its predecesor in the Articles of Confederation and the Framer's decision to include broad language in Article I — the section that grants powers to Congress — belies the simple anti-government meme.

The 10th Amendment has become increasingly important in legal circles over the last thirty years, as conservative scholars have sought constitutional bulwarks against the welfare state and social legislation. It is not surprising, then, that the 10th Amendment figures into LGBT law, specifically with regard to the Defense of Marriage Act (DOMA).

Judge Joseph Tauro, the Republican-appointed Boston distrct judge who declared DOMA unconstitutional in July, 2010, and President Obama are dancing to different tunes. I am not talking about DOMA — both Judge Tauro and the President don't think the law should be on the books; rather, it is their take on the 10th Amendment that differs.

Judge Tauro thinks DOMA is unconstitutional in part because the 10th Amendment means that Congress never had authority to pass DOMA in the first place; the Department of Justice (DOJ) recently argued that the 10th Amendment does not interfere with Congressional authority to pass DOMA. If DOMA were the only law in existence, it really would not matter how or why it gets thrown out. But, DOMA is not only one of innumerable federal laws, it is one of many laws that matter to many members of the gay community, as well as our allies, friends and families.

I argue that Judge Tauro's 10th Amendment argument is a wolf in sheep's clothing, with potentially broad implications for wide swaths of the federal regulatory state. That might not be a bad thing! But, for those who believe in a large federal government with strong regulatory authority to address social ills, you may want to consider supporting the DOJ's 10th Amendment DOMA defense. In any event, Judge Tauro's 10th Amendment argument with respect to DOMA fails in its own right. If it is a wolf, it's a weak wolf who can't find any sheep.

To make this argument, I will highlight some 10th Amendment basics, go through Judge Tauro's original opinion, discuss the DOJ's response in its recent appellate brief and offer some analysis AFTER THE JUMP.

Tenth Amendment history suggests that, at a minimum, the clause is a tool wielded against federal regulatory authority.

Countless scholars spend their entire careers studying the history and breadth of the Tenth Amendment. Their debates are beyond the scope of this blog, but suffice it to say that the Tenth Amendment has gained a resurgence in case law and in the legal academy with the growth of conservative legal thought in the last half century.

Ever since the Progressive Era of the late Nineteenth century, the federal government has been growing, with its military and regulatory authority leading the way. Progressive reforms were followed by New Deal, Fair Deal and Great Society programs that brought the federal government into our lives in ways it had never been before. We can also thank conservatives like Presidents Nixon and George H.W. Bush for groundbreaking environmental legislation and civil rights laws that expanded federal authority. Those with libertarian tendencies have a visceral reaction to this expansion as bad. I make no normative value judgments here, though. The constitutional arguments against this (and further federal regulatory) expansion center, in part, on a strong 10th Amendment. Tea Partiers, for example, argue that the recent health care law is just the latest in a series of Congressional actions that lack a constitutional basis. They say that the 10th Amendment makes clear that Congress oversteps its authority every time it passes a law without a specific authorization in the Constitution, and the Constitution does not give Congress the power to force people to buy health care, regulate how we provide housing, require private businesses to run their shops in certain ways, permit unionization, force factories to stop polluting and so on and so on. (That is an oversimplification of the anti-health care reform constitutional argument, which mainly involves competing interpretations of the Commerce Clause.).

But, the 10th Amendment conflicts (or is limited by? or does it do the limiting? hmmm…) with clauses in Article I of the Constitution. The Spending Clause allows Congress to use tax money for the "general welfare." The Necessary and Proper Clause allows Congress to pays the laws it needs to in order to carry out its enumerated responsibilities. And, the Commerce Clause allows Congress to regulate interstate commerce.

The interplay among all these provisions are what people considerably smarter than I spend years on. For now, at least we can agree that these are the players in a tug of war about federal authority — on the one hand are broad general welfare and necessary and proper doctrines; on the other hand is the 10th Amendment. A stronger 10th Amendment means a weaker federal government.

Judge Tauro uses the 10th Amendment to declare DOMA unconstitutional.

In Massachusetts v. HHS, Judge Tauro found DOMA unconstitutional as applied to Massachusetts because DOMA violates the 10th Amendment by infringing on the state's sovereign power to define lawful marriages. He spends significant time on the 10th Amendment, giving us one of the strongest pictures of that provision in American history. He tells us that marriage is distinctly and exclusively a state function, which would make it precisely the kind of power "reserved to the States" under the 10th Amendment.

But, his argument fails for two reasons. First, it is simply not true that marriage law is and always has been an exclusively state prerogative. Congress has been meddling in marriage since the Progressive Era. As Jack Balkin reminds us, "Much of the modern welfare state and tax code defines families, regulates family formation and gives incentives (some good and some bad) with respect to marriages and families." Second, Judge Tauro tacitly admits this by listing the myriad of ways in which DOMA discriminates against same-sex couples. By doing so, he is pulling at our heart strings and giving emotional weight to his conclusion, but he gives us the history of federal involvement in marriage law. If the 10th Amendment means that marriage law is exclusively the purview of the states, then Congress should not have been allowed to pass all these laws that deliver benefits based on marital status. Judge Tauro's logic would undermine Social Security, Medicare, Medicaid and a plethora of other benefits.

The DOJ is protecting federal authority by defending DOMA from a 10th Amendment attack.

Even though Judge Tauro's 10th Amendment argument is a bad one, one likely to be overturned on appeal, it is the DOJ's responsibility to protect the authority of the federal government it serves. Judge Tauro argues that DOMA interferes with state prerogatives to structure its family law as it sees fit. But, a host of other federal laws — Social Security, Medicare, Medicaid, provisions of the tax code, Title VII (which regulates private businesses), the recently passed health care reform act and the basic statutory foundations of the modern state — impact state prerogatives just as much as DOMA. Judge Tauro is opening the door for 10th Amendment challenges to all of them. And, even if you might not care as much about those other laws and even if you think DOMA is odious and needs to be erased and even if you think that one pro-10th Amendment case will not undermine the federal government, it is at least the federal government's responsibility to defend its prerogatives from any and all angles of attack. If the DOJ did not defend DOMA and allowed Judge Tauro's 10th Amendment argument to stand, it would be like knowing your house is infested with termites and doing nothing about it. It would be tantamount to President Obama telling his Republican opponents, "Sure, we should repeal health care reform because we didn't have the right to reform it in the first place." The DOJ could decline to defend DOMA (if it did so, DOMA would not become law because responsibility to defend it would simply shift… more on that in a future post!), but doing so would be falling asleep at the federal wheel.

Now, this might not be a bad thing. Your political views might prefer a smaller federal government and your view of history might condemn the current welfare state as an unlawful expansion of federal authority. I respect that view. But, we should at least recognize that it is in the federal government's interest, especially a federal government run by a president who earnestly believes in the ability of federal power to correct social ills, to defend its authority to correct those social ills.

The DOJ's 10th Amendment response is about federal power, not gay rights.

It just so happens that the medium for the DOJ's defense of the federal government's regulatory authority is a case about egregious anti-gay discrimination. You will see similar arguments about the Necessary and Proper Clause and the Spending Clause from the DOJ in state challenges to health care reform. I imagine liberals would applaud those arguments. Liberals should applaud the DOJ's 10th Amendment arguments in the DOMA cases, as well.