I’m a bit of a process geek, and in the U.S. v. Windsor case, the question of jurisdiction is really darn fascinating (if, that is, you’re a process geek). Here’s the quick background: New York residents Edith Windsor and Thea Spyer married in Canada. Two years later Ms. Spyer died, and by then the state of New York had recognized their marriage, but the federal government did not due to DOMA, so Ms. Windsor was hit with something like $360,000 in inheritance taxes. She sued the federal government in the U.S. District Court for the Southern District of New York to get the money back, and won, and the judgement was upheld by the U.S. Court of Appeals for the 2nd Circuit. The United States, as represented by the Solicitor General, chose not to appeal on the grounds that it agreed with the judgement.
The U.S. Supreme Court has, since the beginning, followed the doctrine that Article III, section 2 of the Constitution requires an actual case or controversy. This means they do not give advisory opinions on pending laws, nor do they rule on hypothetical cases. And if both sides agree with the judgement, there is no controversy. So how is this case before the Supreme Court?
Actually, that question should be rephrased as is this case before the Supreme Court? The Court did hear substantive arguments in the case, but first they heard arguments about the jurisdictional issue, even appointing an amicus to argue only that procedural matter. If the Court chooses to dismiss the case for lack of an actual controversy, then this case was not actually before the Court.
So how did it even get as far as a hearing on the jurisdictional issues, if the United States and Ms. Windsor agree with the lower court judgement? Because of BLAG, the Bipartisan Legal Advisory Group, which is attempting to intervene to defend DOMA. Whether BLAG has standing to intervene is part of the question, but first a brief background on BLAG. BLAG was created in 1993 and consists of the Speaker, the majority and minority leaders, and the majority and minority whips. While bipartisan in name, notice that the majority are members of the majority party in the House. From that you can probably guess what the vote was to have BLAG intervene. BLAG has often been authorized to have the House Counsel file an amicus (friend of the Court) brief, but seeking standing as the defender of a law is unusual; not quite unprecedented, but with the current case having an important distinction from the most relevant prior one, a point I will come back to.
Two Standing Questions
So the specific questions are, first, does Congress have standing to defend the law when the Executive does not, or–as the Solicitor General argued–does the Executive’s duty to take care that the laws be faithfully executed include authority to refuse to defend a law it believes is unconstitutional? Second, if Congress does have standing, can a single chamber exercise that authority, or, closely related but perhaps not quite identical, is BLAG really representing Congress or just a handful of Congressmembers?
Generally, to have standing, the party must have suffered actual harm or injury–“an invasion of a legally-protected interest which is (a) concrete and particularized, [cite omitted] and (b) actual or imminent, not ‘conjectural’ or ‘hypothetical,'” ( Lujan v. Defenders of Wildlife). This is not true for a mere amicus, which only has to show a general interest in the outcome of the case. The U.S. government, as represented by the Executive, suffers an injury every time a law is struck down. Additionally, in this case, it has been ordered to pay $360,000 to Windsor, which does not count as an injury, but does mean they are actually affected by the case.
Does Congress Have Standing
But what injury has Congress suffered? They, like the Executive, are part of the United States government, but their authority extends only to making laws, not to ensuring the law is executed. Clearly they can act as an amicus, because they do have a general interest in seeing the laws they pass enforced, but they do not have a “legally protected interest” in having them enforced to their satisfaction. It is very dubious that Congress can claim authority to act in the Executive’s place when they believe the Executive is not properly fulfilling its duties. This is all the more true if BLAG is not actually representative of Congress as a whole, or even the House as a whole, but is only–as was suggested in oral argument–merely a handful of Congressmembers, in which case they could not plausibly claim a “particularized” injury.
A notable case that was brought up as possible precedent for BLAG’s claim of standing was INS v. Chadha, a case involving the legislative veto, a feature of a number of U.S. laws, whereby Congress could block a specific application of powers they had delegated to the Executive. SCOTUS struck down the legislative veto as unconstitutional, but the relevant issue here is that Congress had standing in that case. But as was noted in oral argument, in Chadha Congress was claiming a specific legislative power–the legislative veto–so they did have a “particularized” interest. In Windsor, there is no claim to a particularized legislative interest or authority–Congress (or a part of it), just wants to substitute for a lax (as they see it) Executive.
Can a Single Chamber Claim Standing?
Let’s assume, though, that Congress does have standing. Then, despite the clearly partisan nature of the BLAG vote to defend DOMA, the fact that the group is made up of both parties’ leadership would persuade me that it is legitimately treated as representative of the House, and not just the majority party or a handful of House members, and I would guess the Court would agree with that formalistic approach. But whether it’s representative of Congress as a whole is far more doubtful. I don’t think any explanation I could provide would highlight how dubious the claim is as well as this exchange from the argument.
MR. CLEMENT [counsel for BLAG]: …the House passed a resolution that passed, that authorized the BLAG to continue to represent the interests of the House in this particular litigation. So I think if there was a question before H. Res. 5, there shouldn’t be now…
JUSTICE KENNEDY: Under your view, would the Senate have the right to have standing to take the other side of this case, so we have the House on one side and the Senate on the other?
MR. CLEMENT: No, Justice Kennedy, they wouldn’t have the standing to be on the other side of this case. They would have standing to be on the same side of this case…
JUSTICE KENNEDY: Well, why not? They’re concerned about the argument and you say that the House of Representatives standing alone can come into the court. Why can’t the Senate standing alone come into court and intervene on the other side?
MR. CLEMENT: It — because it wouldn’t have the authority to do so under Chadha. What — Chadha makes the critical flipping of the switch that gives the House the ability to intervene as a party is that the Executive Branch declines to defend the statute. So if the Senate wants to come in and basically take — share argument time or something as an amicus, they can, but there’s no need for them to participate as — as a party…
JUSTICE ALITO: Then why is it sufficient for one house to take the position that the statute is constitutional? The enactment of legislation requires both houses, and usually the signature of the President.
I suspect the Court will be deeply troubled by the prospect of setting a precedent that would allow the House and Senate to intervene on different sides of an issue. That thrusts them squarely into “political decisions” territory, which they much prefer to avoid.
Ducking the Issue?
The arguments have given the Court plenty of room to duck this case by ruling that they have no jurisdiction, because there is no actual case or controversy, the U.S. and Ms. Windsor both agreeing in the judgement and Congress having no standing. This is in fact the argument made by the counsel appointed by the Court to brief them solely on the jurisdiction issue. The problem is, that leaves DOMA dead in the 2nd Circuit, but not in other circuits, and the Constitution is supposed to apply equally across the country. Additionally, Obama has decided to continue enforcing DOMA, even while no longer defending it, so if they avoid this case, another will come, and then another, and another. Unless all the Circuit courts rule against DOMA, and the Solicitor General refuses to challenge any of those rulings (improbable, although not impossible, if Republicans regain the Presidency in 2016), eventually a case will come to them that they can’t reasonably avoid, and of course they know that. Still, sometimes the Court prefers to hold off ruling on an issue until there have been multiple cases in the lower courts, so that the arguments get thoroughly fleshed out, providing them more information and a better basis for judgement.
So for my part, were I ruling on this right now, I would say Congress does not have standing to intervene, and I would dismiss the case for lack of jurisdiction. That would mean I didn’t need to answer the questions about BLAG, but were I to do so, I would say (1) BLAG represents the House, not just a handful of House members; but (2) BLAG does not represent all of Congress; and (3) granting standing to only one chamber is a dubious proposition at best, but one I’m not yet sure how to fully resolve. But unlike many other Court watchers, I’m not willing to make a prediction on what the Court does. I don’t think most of them actually have a better insight, but it’s part of the expectations for their jobs that they make predictions. Not me. As I always tell my students, “X looks like a probable outcome given what I know of the situation, but predicting the future is a good way to go broke fast.”
Post-Script on Oral Argument
The oral argument was one of the oddest I’ve read. Particularly in the beginning, with the argument of the Court appointed counsel addressing the issue of jurisdiction, it really looks as though everyone’s still trying to figure out how to sensibly approach the question, and the justices and the counsel don’t seem to really understand what each other is saying. That itself is an indicator that this situation is, as one justice pointedly noted to BLAG’s counsel, “unique.”
But all in all I wonder if oral argument really makes sense. So much of it depends on counsel anticipating justices’ questions when they are preparing prior to the event, and on counsel being able to think quickly on their feet during the event. And while thinking on one’s feet is an admirable skill–and one you’d damn well better have if you’re arguing before any appeals court–it seems to me that it’s often evidenced by clever misdirection and obfuscation (not just before the Court, but as a general rule) rather than by intellectually meaningful responses. I wonder if the Court wouldn’t do better to dump oral argument and just send written questions to counsel after reading the initial briefs, requiring a written response. This would give counsel more time to chew over the issue, and seek out input from colleagues, and produce more thoughtful and intellectually compelling responses. It would probably take no more time for counsel, as it would offset the time they spend prepping for oral argument, but possibly it would actually take more time for the justices.