« Can the Rule of Law Exist in Virtual Worlds? | Main | Displacement »

Thursday, November 05, 2009

Questions about 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.

Besides the constitutional objections, the stated reasons for the bill are underinclusive.  The AP story quotes the bill's defenders as saying that it "would prevent hassles associated with every move, such as obtaining a new driver's license and reregistering to vote," and notes that "[m]oving is a ritual repeated nearly every three years on average for military families."  Well, it is repeated at least as often by law students, federal and state law clerks, etc.  Very few people I knew in law school took seriously their duties to re-register their vehicles and voting with every temporary move, precisely because doing so would be such a hassle, and they moved well more than every three years.  Why not provide similar relief for other federal employees and their families?  Or, indeed, if Congress is of a mind to take over the state law of residency and domicile, why not do it comprehensively, and at least bring some coherence and uniformity to this area?

I don't mean to belittle the contributions that servicemembers or their families make to the country-- or to minimize the hardships of being constantly relocated by ones employers.  But the law of residency and domicile have constitutional implications, and the problem of interstate mobility in a federal system is not at all limited to the military.

[Further reading:  It is only tangentially related, but my friend Mark Shawhan has a student comment that discusses, in part, the common law of domicile forthcoming in the Yale Law Journal.  If he is right that a different part of the Fourteenth Amendment was designed to encode the common law of domicile, it provides further reason to question whether Congress can also redefine "reside" for military spouses to be equivalent to domicile.]

Posted by Will Baude on November 5, 2009 at 12:00 PM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Questions about the Military Spouse Residency Relief Act:


I began seriously looking at this act, only in relation to the tax implications of this and over the course of seriously digging in, I've come to the conclusion that the constitutionality of this act is questionable at best. Let me just say that I am a military spouse, my husband has served 19 years and I have moved more than a dozen times. We've been in our current location for 8 months and are moving again, despite the fact that we came here with 3-year orders. That said, I completely agree with Mr Baude. I have never changed my driver's license, my voter's registration, nada. I just continue to vote absentee and my state allows for renewing licenses when you are military/mil spouse and serving out of state. I know that I'm supposed to change it all, but seriously? No one really does that. Yes, the tax issue is complicated, but not as bad as some have stated. Before you think I don't know what difficult taxes are like, we own rental properties in various locations, I've worked for foreign-owned companies and worked from home as an independent contractor. We do a whole stack of state tax returns every year and this act doesn't streamline our taxes a single bit. Instead, I personally owed $307 more than I would have without this act because the act changed my state of residency. The title issue is tough, I completely agree. But I will point out that you have a choice whether the spouse's name goes on the title or not. The spouse can keep his/her name on the title and pay what a regular person has to pay. It is the couple's choice how they title their property. My husband and I have chosen to keep my name off the titles for the cost savings when we register vehicles. Actually, my husband left the decision to me. If I were married to a jerk or had a shaky marriage, I wouldn't do that. I would keep my name on the titles and suck up the cost. But as much of a pain in the butt as these things are, I absolutely cringe at the concept that the federal government is mandating state residencies for a whole class of people. If I meet the residency requirements for a state that I desire to be a resident of, but my husband is domiciled elsewhere, I don't have the right to make that choice? Am I chattal? Am I less a citizen than someone else (someone not married to a military member)? I expect this in China, but America? My husband has sworn to uphold and protect the constitution of the United States as a part of his commission. I find it ironic that it is myself and other military spouses whose constitutional rights are being eroded, and here we are, applauding and call it protection.

Posted by: AF Wife | Apr 15, 2010 8:41:35 PM

Another thing to consider...all the military spouses across the country, myself included, whose names are not on the deeds and titles to homes, mortgages, and cars in order to simlpify the process of moving around the country. If the spouses name is on any of the paper work, it's a tax nightmare. We just recieved a past due notice for personal property taxes on a car that has never even been driven in the county requesting the money. We haven't lived or owned property there in almost three years. Yet it was another afternoon of phone calls straightening it out. And that moving on average every three years? We're 13 years married and 9 moves in, waiting orders for number 10.

Posted by: coastie wife | Dec 18, 2009 2:21:43 PM

I read this and thought...wow...This person obviously has no ties to the military. I am a volunteer with MSRRA and I can tell you with clarity that this should have been included in the origninal SCRA years ago! When a military family moves...ALL dependents are on those FEDERAL orders. The spouse has a "choice" not to move with her spouse, but do we require that of other careers, where there are moves sometimes every 2 years? Do law students deal with year long deployments? Do law clerks have the hardships that military spouses are faced with on a daily basis? I think not. Army wife and the Marine wives are very correct in letting you know that taxation, voting, residency are all very important to military spouses and unless you've lived in a state, where you arrived to late to vote, became an auto resident and had to pay taxes to a state, where you don't work, don't own a home and the state is funded to have your children attend their schools (federal impact aid forms)...you have no understanding of what our lives are like.

This law, though signed, is certainly not going to be a walk in the park to implement. Where money is involved and recession is involved, we are already seeing states requiring ridiculous "residency" clauses and drivers license issues are multiplying by the day. The intent of this law was to make a quality of life issue become better for spouses and famlies. Let's hope that the intent of the law is implemented.

Posted by: Cynthia Shepard | Dec 8, 2009 9:18:16 AM

I just want to address what you said about law students and law clerks. I am both an attorney and a marine wife, and I can tell you that whatever law students and law clerks are going through when they move is nothing compared to what spouses of military members are going through. When a law student/clerk moves, he or she will change his or her residence. If he/she is married, the spouse will also have to change his/her residence. Thus, the entire family has the SAME residence and doesn't have to deal with the hassles of filing taxes with different residencies (yes, it's a pain in the ass). Military families end up with screwy tax issues because of the residency issues and it's annoying. So, your argument doesn't fly.

Posted by: Another Marine Wife | Nov 18, 2009 5:14:58 PM

Army Wife- You go girl! You could not have said it better. To Mr. Baude and the others who question the constitutional legality of this act, I would urge you to try to see it from a military family point of view. Why should we have to pay a higher tax rate by filing separately because the government has chosen to move us from state to state? With this new law we can now streamline our tax preparation as well as other residency issues. I applaud congress and the President for recognizing this one small benefit for all of the sacrifices both we and our spouses make every single day so that you maintain all of your freedoms granted under the constitution.

Posted by: Marine Wife | Nov 14, 2009 3:30:32 PM

For me, it goes beyond the ease of keeping my state of residency and voting. It eases the way we file our taxes even. No matter where my husband is stationed his state of residency is the same. If our state of residency is different, we must go through all sorts of hoops to file or file completely seperate which is a pain in our case. Yes, I was well aware of the fact I would be moved around from time to time with my husband when we married. However, why should my husband be able to maintain his state of residency and I not? You apparently have no time in service or are close to a military family, so you have no clue the stress and sacrifices we make every single day. And for what? So that people like you can rant and rave about something you have no clue. God forbid a military family get a break in one small area that has absolutly no effect on you. It is very sad to me that you would compare the "toils" of being in law school and what not to the sacrifices we face. Do you leave your family for a year plus at a time and get shot at on a daily basis while you are gone? Go days, weeks, or months without seeing or talking to your family (and not because you don't want to, but because you cannot)? Do you panic when you're spouse is gone and there is a knock on the door or a phone call because you are petrified it may be someone saying your spouse has been injured or is dead? Do you have to explain to your children why Mommy or Daddy won't be here for a long time? Yes, we made choices. My husband chose a career in the Army and I chose to stand by his side and support him. I would not have it any other way. I am very proud of my husband and what he does for our country and I love him more than ever (and we have been together for almost 8 years and endured three deployments-38 months overseas and countless days of training apart). He is a hero as are our other military personel and their families. So please step off your soap box and get over yourself. Because if it weren't for our soldiers and us families that support them, you wouldn't be able to boist your oppinions, no matter how pointless.

Posted by: Army wife | Nov 12, 2009 4:19:23 PM

Hmm... it's plausible either way. Given that Congress unequivocally can preempt those laws for federal functions, and given that it can almost certainly preempt them for entities that support federal functions (have the feds ever tried to preempt occupational laws for the defense industry in wartime?), it doesn't seem like too much of a stretch to suppose it could do it for military spouses too.

Posted by: Paul Gowder | Nov 6, 2009 3:30:04 AM

Even if the benefits take the form of the preemption of otherwise-applicable state law? Could Congress provide that military spouses are immune from state occupational, licensing, and health laws so as to ensure that they can practice their trades wherever they end up? That doesn't seem out of the question to me, but it also doesn't seem obvious.

Posted by: Will Baude | Nov 5, 2009 12:56:21 PM

On the enumerated powers question, surely the power to raise and support armies includes the power to provide all variety of benefits to military families, if for no other reason than that they might contribute to recruitment and retention. (And that judgment is is precisely the sort of area in which the legislature gets basically unlimited deference.) Though I think you're right on the residency clause question.

Posted by: Paul Gowder | Nov 5, 2009 12:47:45 PM

Interesting considering they move around so much.

Posted by: Disability Insurance | Nov 5, 2009 12:11:34 PM

The comments to this entry are closed.