Administering the Constitution in 2020

Crosspost from Balkinization

In February of this year, Stephen Reinhardt became the first federal judge to rule that section 7 of the Defense of Marriage Act (DOMA), 1 U.S.C. § 7 (2009), violates the Fifth Amendment’s equal protection provisions. Section 7 defines marriage for purposes of interpreting federal laws, regulations, rules, or agency interpretations to include only heterosexual unions. Judge Reinhardt issued his ruling after a federal public defender, Brad Levenson, argued that his employer violated Levenson’s constitutional rights when it determined that, because of DOMA’s definition of marriage, Levenson could not add his husband to his federal employee benefits. Remarkably, Reinhardt made this path-breaking ruling not on behalf of the United States Court of Appeals for the Ninth Circuit, but as the chairman of the Ninth Circuit’s Standing Committee on Federal Public Defenders. In other words, Reinhardt was acting as an administrator, not as a judge.

Since the inception of the Constitution in 2020 project, there has been spirited debate about whether courts or legislatures, national or subnational constitutions, and national or transnational adjudicative bodies are best suited to deliver progressive constitutional goals by the year 2020. I’d like to turn the conversation to an institution that has been largely absent from the Constitution in 2020 debates: administrative agencies.