Not a Creature has Standing, Not Even the House?

When Attorney General Holder announced that the Department of Justice (DOJ) would no longer defend the constitutionality of the Defense of Marriage Act (DOMA) in cases where it was being challenged, he committed to “providing Congress a full and fair opportunity to participate in the litigation in those cases.” In response, the Bipartisan Legal Advisory Group (BLAG) of the House of Representatives is seeking to intervene in a number of such cases, including Windsor v. United States, pending in the Southern District of New York.

DOJ does not object to BLAG’s intervention in Windsor, but it contends that the House’s interest in DOMA’s constitutionality is nothing more than a “generalized grievance” that is inadequate to give it standing. Accordingly, it proposes that BLAG be permitted to intervene only “to present arguments in support of the constitutionality of Section 3 of DOMA, consistent with [DOJ’s] role in this case as counsel for the United States.”

Under DOJ’s theory, it would retain exclusive control of the defense of the case, including control over procedural issues such as filing motions, making objections and appealing adverse decisions. DOJ promises that it will “file appropriate motions, purely as a procedural matter, to ensure that this Court can consider arguments on both sides of the constitutional issue and that the Court has jurisdiction to enter judgment on the basis of those arguments.” Notably, however, DOJ does not promise that it will necessarily appeal a judgment against the constitutionality of DOMA.

BLAG objects to DOJ’s position. It argues that DOJ is inappropriately attempting to relegate it to the status of a glorified amicus and “asserting a right to act as a gatekeeper for the House’s efforts to defend a validly enacted statute that the Department itself refuses to defend.” Accepting DOJ’s position would give it the ability to hamstring the House’s defense of DOMA, or any federal statute, thus effectively giving it “an extra-constitutional post-enactment veto over federal statutes to which it objects.”

Moreover, BLAG argues that DOJ’s position is inconsistent with INS v. Chadha, 462 U.S. 919, 940 (1983) , where the Court stated that “Congress is the proper party to defend the validity of a statute when an agency of the government, as a defendant charged with enforcing the statute, agrees with plaintiffs that the statute is inapplicable or unconstitutional.” Chadha relied on this proposition to support its holding that there was a justiciable case or controversy, a conclusion that would make no sense unless Congress was considered to be a true party with independent standing.

BLAG’s reading of Chadha seems to be the more persuasive one. Therefore, BLAG should have standing so long as one makes the assumption that it is the same entity, for purposes of the standing analysis, as the House itself.  This assumption is of yet unexamined, but may not remain so.




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