I just finished listening to an interesting Federalist Society debate between Professors Walter Dellinger and John Eastman relating to the Obama Administration’s refusal to defend the Defense of Marriage Act (DOMA). Two takeaways stand out. First, in response to my question, Dellinger acknowledged that the decision could not be justified on the grounds that there was no reasonable basis for defending DOMA within the meaning of the Justice Department’s traditional policy for defending the constitutionality of federal statutes. As he noted, there are numerous federal appellate court decisions supporting the constitutionality of DOMA. Instead, Dellinger would justify the administration’s position based on the President’s personal decision on a matter of “constitutional policy.”
Second, I asked Dellinger and Eastman whether they thought that Congress would have standing to defend the constitutionality of DOMA. Dellinger said that it would not. In his view, Congress can only participate in the litigation as an amicus. He said this was not a problem because there exists a case or controversy due to the fact that the administration is still enforcing the law. Moreover, he is certain that the administration would appeal any court decision striking down the law (the basis for this confidence was not apparent). However, in response to another question, he acknowledged that it may be “quite tricky” for an amicus to build a proper trial court record to defend the constitutionality of a law.
Eastman disagreed on this point. He contends that there are circumstances in which legislators would have standing to defend the constitutionality of a law such as DOMA (citing Karcher v. May). He noted that standing would be based on the fact that the legislators had been authorized to represent the institutional interests of the legislative body, and were not merely asserting their own interests as individual legislators.