Somin and Whelan on Defending DOMA

On St. Patrick’s Day, the Federalist Society sponsored a debate on the Hill regarding the Defense of Marriage Act (DOMA) and the President’s duty to defend federal statutes.  Generally speaking, the participants, (Ilya Somin, Ed Whelan and moderator Neomi Rao) were in agreement that the President may properly refuse to defend an unconstitutional statute under certain circumstances, while not necessarily agreeing (or, in Whelan’s case, emphatically disagreeing) with the President’s decision in this case.

With regard to Congress’s ability to intervene and defend the law, both Somin and Whelan thought that the courts would allow the House to participate in the case and make legal arguments in support of DOMA. This, they felt, would be sufficient to assure that the merits of the constitutional issue were addressed by the courts.  However, with respect to the issue of whether the House could intervene as a party, participate in discovery or the presentation of evidence, or, if necessary, appeal an adverse decision, neither were sure whether this would be allowed.  Whelan did remark that he hoped that the House would be permitted to revive arguments that the Justice Department had previously abandoned; he also recommended that the House insist that any dollars spent on its legal fees be taken out of the Justice Department’s budget, preferably with an appropriate multiple.

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