I was on an interesting panel yesterday at the Boston Bar Association. The Obamacare Medicaid coercion decision (NFIB) was led by conservatives, wielding the 10th Amendment to protect states from an oppressive federal law.
But how will Scalia and friends feel about the 10th Amendment if (when) it is used as a weapon against the Defense of Marriage Act (DOMA)? Some of the language by Roberts and the joint dissent would seem to support Massachusetts’ ability to define marriage for its residents, without federal interference. DOMA Section 3 seems especially vulnerable to a NFIB challenge.
I predict contortions.