Congress, Federal Courts, and Domestic Relations Exceptionalism

Posted: 17 Oct 2013

See all articles by Mark Strasser

Mark Strasser

Capital University - Law School

Date Written: October 15, 2013

Abstract

Family law is often cited as a paradigmatic example of state law, and the Supreme Court has trumpeted the importance of limiting the federal government's reach into this area reserved for the states. Yet, it is also true that a variety of federal programs affect the family, so it is important to figure out which areas are reserved for the states and which are not. This article analyzes and clarifies the “domestic relations exception” in the two different kinds of cases in which it might arise: 1) when federal courts should not exercise jurisdiction, and 2) when Congress should not make certain kinds of laws. The tests for determining when the exception is triggered and what must be shown to override the exception differ depending upon the context in which the exception has been asserted. Regrettably, the Supreme Court has given mixed messages over which areas are beyond Congress's power to regulate and which kinds of cases cannot be heard by a federal court. The Court’s subsequent Windsor decision did nothing to clarify these issues.

Keywords: federalism, family law, domestic relations, federal courts, jurisdiction

JEL Classification: K10

Suggested Citation

Strasser, Mark, Congress, Federal Courts, and Domestic Relations Exceptionalism (October 15, 2013). 12 Connecticut Public Interest Law Journal 193-230 (2012), Available at SSRN: https://ssrn.com/abstract=2340495

Mark Strasser (Contact Author)

Capital University - Law School ( email )

303 E. Broad St.
Columbus, OH 43215-3200
United States
614-236-6686 (Phone)
614-236-6956 (Fax)

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