Military Spouse Residency Relief Act gives state citizenship to spouses, even if they do not live there

At PrawsBlawg, Professor Baude discusses the potential constitutional problems of the Military Spouse Residency Relief Act:

Congress has passed a bill that would allow those married to members of the military to assert that they are residents of the same state as their spouse, regardless of the state they actually reside in.  The first thing I found myself wondering is how this interacts with the Fourteenth Amendment’s residency clause, which provides, that U.S. Citizens are “citizens . . . of the state wherein they reside.”  Presumably Congress lacks the power to change this clause, and allowing it to redefine the meaning of the word “reside” would allow it to do so.

The second thing I found myself wondering is what enumerated power allowed Congress to do this anyway.  Its power to enforce the Fourteenth Amendment?  But Congress cannot “rewrite the Fourteenth amendment” in the guise of enforcing it.  Its power over the armed forces?  But military spouses– however difficult their lives may be– are not themselves members of the military, as the Court pointed out when holding that they could not be subjected to military justice.  The commerce power?  Only in the sense in which all interstate activity is interstate commerce, which would render the word “commerce” meaningless.

Would this bill fit into Section I of the Fourteenth Amendment? Could Congress claim this is part of their Section V enforcement power?

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5 Responses to “Military Spouse Residency Relief Act gives state citizenship to spouses, even if they do not live there”

  1. troll_dc2 Says:

    I have several questions:

    1. Who would have standing to challenge a claim by a spouse to be a resident of a given state?

    2. Does the Fourteenth Amendment’s statement that people are citizens of the state where they reside preclude Congress from giving people the additional right of determining for themselves where they reside? Where is the word “only” in the constitutional provision?

    3. Spouses may not be members of the military, but since the purpose of the legislation is to cut down on the hassles that occur when military members are transferred every three years, could not the legislation be regarded as “necessary and proper” for the efficient operation of the armed forces?

  2. Josh Blackman Says:

    1. Probably no one would have standing to challenge this.
    2. “wherein they reside” seems pretty clear, even if it lacks the word “only.” Maybe you could argue that Section 5 gives Congress the power to redefine “reside” to some sort of constructive residence, wherein Congress could define it as “actual residence, or residence of your spouse.” Though that is really meandering away from the text. Not quite sure about the purpose of the 14th amendment, but it was intended to grant emancipated slaves citizenship of the states they resided. If Congress could have made a freed slave in South Carolina a citizen of SC and Massachusetts, for example, which is effectively what this spouse bill accomplishes, I’m sure this task could have been accomplished differently.
    3. That is an interesting “necessary and proper” argument. Though, what happens when one constitutional provision conflicts with another? What if in order to promote the efficient operation of the armed forces, it was necessary and proper to take property without just compensation? It seems the conflict would knock out the Necessary and proper argument.

  3. troll_dc2 Says:

    You wrote: “Though, what happens when one constitutional provision conflicts with another? What if in order to promote the efficient operation of the armed forces, it was necessary and proper to take property without just compensation? It seems the conflict would knock out the Necessary and proper argument.”

    1. Normally, when there is a conflict, the more recent provision overrides the older one. That is why the Eleventh Amendment does not bar a Title VII action against a state; the Supreme Court held that Section 5 of the Fourteenth essentially repealed the earlier amendment as to matters covered by the Fourteenth.

    2. But your example involves three provisions (the military clause, the takings clause, and the necessary and proper clause) that were in the original Constitution. So the proper adjudication would require an attempt to see whether they can co-exist. The answer is yes. Taking property for military purposes is necessary and proper; the issue of compensation is quite something else in terms of the need for speed and decisiveness, and it is also decided by an entity other than that that seized the property. So the issue of compensation is collateral to the need for seizure. The only way that the efficient operation of the armed forces would be promoted by a compensationless seizure would be if we were a police state, which we are not. Hence, I believe that your proposed example does not work on its own terms.

    • Josh Blackman Says:

      My understanding of abrogation of the 11th amendment by the 14th under the “congruent and proportional” standard was not based on a “last in time” concept, but rather that the 14th amendment totally transformed our Nation, and the balance between the states and the Feds. The Commerce Clause under seminole tribe fails to abrogate the 11th not because it is older than the 11th, but because it doesn’t have that power. I may be mistaken about this.

      Assuming the 18th amendment is still on the books, Congress passes a statute that if the FBI suspects a person possesses illegal alcohol, they can search without reasonableness/warrant, as this is necessary and proper to enforce 18th amendment. The 18th comes after the 4th amendment under the last in time scheme. Would this statute knock out the 4th?

      On second thought, regarding your first questions, perhaps a common law spouse, or a same-sex partner may, depending on how the statute defines a “spouse” have standing to challenge this on equal protection grounds, but that is a different story. There are probably DOMA issues as well.

  4. troll_dc2 Says:

    In Fizpatrick v. Bitzer, 427 U.S. 445 (1976), then-Justice Rehnquist wrote that the Eleventh Amendment is “necessarily limited by the enforcement provisions of Sec 5 of the Fourteenth Amendment.”

    You may be right about the last-in-time concept. A few years ago the Court used the Commerce Clause to invalidate state restrictions on the sale of out-of-state wine even though the Sec. 2 of the Twenty-first Amendment states “The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.”


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