It seems the Justices learned their lesson from the previous day. In this case, they allocated enough time to cover the jurisdictional question by itself first and then, after a short recess, proceeded to the merits of the case. They, therefore, avoided the problems of the day before. This article will cover the standing issue. Click here to read about the merits.
Again, the issue of the government’s refusal to defend the laws they are sworn to uphold comes before the Court in this case. After President Obama’s change of heart on the issue of same-sex “marriage,” the administration has done everything it can to undermine the law, including formal opposition to its constitutionality in court, even as they have said they will enforce it until the Court makes its determination. In this specific case, they started defending DOMA at the beginning and then had to switch sides to attack it.
As a result, the House of Representatives, through its Bipartisan Legal Advisory Group (BLAG), which directs the activities of the House Office of General Counsel, had to intervene to defend the Defense of Marriage Act (DOMA) in court. The Court was interested in discussing whether this group had standing to defend the law.
Harvard Law Professor Vicky Jackson was appointed by the Court to address the issue through an amicus curiae presented before the Court. Not surprisingly, the Harvard professor concluded BLAG did not have standing. Apparently, President Obama has a practical veto of federal legislation through the courts, by refusing to defend the laws he doesn’t like, even though they are properly enacted by the overwhelming majority of both legislative bodies and signed into law by the president’s own hand.
Though there is no jurisdiction for the Supreme Court, Miss Jackson argued that, somehow, the district court had jurisdiction, even though both parties, namely Miss Windsor and the government, agreed on the merits (after the government’s change that is).
Justice Scalia zeroed in on this point: “Really, that’s very peculiar. When both parties to the case agree on what the law is just for fun, the district judge is going to have a hearing?” Miss Jackson struggled to come up with an answer and finally admitted: “I am not sure I have a wonderful answer to that question, Justice Scalia.”
No question, President Obama created a most unusual problem for the Court in trying to play all sides at different points with no commitments. Even the Chief Justice expressed some frustration: “I don’t see why he doesn’t have the courage of his convictions and execute not only the statute, but do it consistent with his view of the Constitution, rather than saying, oh, we’ll wait till the Supreme Court tells us we have no choice.”
Still Miss Jackson’s view is that BLAG should be out of the picture and, since the government agrees with Miss Windsor (for now), then there is no controversy and no case.
Next, it was the government’s turn represented by Deputy Solicitor General of the United States Sri Srinivasan. And what a mess.
CHIEF JUSTICE ROBERTS: What is the test for when you think your obligation to take care that the laws be faithfully executed means you’ll follow your view about whether it’s constitutional or not or you won’t follow your view?
MR. SRINIVASAN: Mr. Chief Justice, I’d hesitate to give you a black-and-white algorithm. There are — there are several considerations that would factor into it.
Not only is there no rule as to the laws the president can decide to defend or not, it doesn’t even have to be the president’s determination, really.
JUSTICE SCALIA: Oh, it can be either the Attorney General or the Solicitor General?
MR. SRINIVASAN: It could be, but this is a situation in which the president made the determination.
And that is not the only bizarre argument from the Deputy Solicitor. He argues he represents all three branches of government. Justice Alito inquired on that notion:
JUSTICE ALITO: In your brief, you argue that you are representing all three branches of the government, is that right?
MR. SRINIVASAN: Correct.
JUSTICE ALITO: You’re representing the Judiciary as you stand before us here today –
MR. SRINIVASAN: Well –
JUSTICE ALITO: — trying to persuade the Court, you’re representing the Court?
Lastly, Paul Clement, on behalf of BLAG, framed the issue beautifully:
This Court not only addressed the issue of the House’s standing in Chadha, it held that the House is the proper party to defend the constitutionality of an Act of Congress when the executive agency charged with its enforcement agrees with plaintiff that the statute is unconstitutional.
it would be a strange jurisprudence that says that the House has standing to come in and defend an unconstitutional one-house veto, but it doesn’t have standing to come in and defend its core Article I prerogative, which is to pass statutes and have those statutes –
There was considerable hostility to the position to be sure. The Justices seemed hesitant to do something “unprecedented.” But the facts here are unprecedented. The Executive branch creates an incongruence that must be dealt with, and using the Courts own precedent to guide the charting of this new territory points to the appropriateness of BLAG’s role in protecting its interests in such a situation.
Because the alternative really puts the Executive Branch in an impossible position. It’s a conflict of interest. They’re the ones that are making litigation decisions to promote the defense of a statute they want to see invalidated. And if you want to see the problems with their position, look at Joint Appendix page 437. You will see the most anomalous motion to dismiss in the history of litigation. A motion to dismiss, filed by the United States, asking the district court not to dismiss the case.
I mean, that’s what you get under their view of the world, and that doesn’t serve as separation of powers.
JUSTICE KENNEDY: That — that would give you intellectual whiplash.
I’m going to have to think about that.
Audio and transcript of oral arguments can be found here.