BLAG’s Authority to Represent the House in Court

On February 11, 2019, the new General Counsel of the House, Douglas N. Letter, filed an amicus brief in U.S. Dept of Commerce v. State of New York, the case that challenges the Trump administration’s decision to add a citizenship question to the 2020 census. A federal district court ruled that the addition of the question violated the Administrative Procedure Act, and the Solicitor General sought a writ of certiorari before judgment from the Supreme Court. Letter’s brief argues that the district court’s decision is correct and urges the Court, should it decide to hear the case, to do so promptly in order to avoid disruption or delay in the census. (The Court has now agreed to hear the case on an expedited basis, with argument scheduled for late April).

I have nothing to say, at least at the moment, about the merits of this dispute, but I do have an observation about the caption of the brief, which is styled “Brief of Amicus Curiae United States House of Representatives in Support of Respondents.” This caption took me by surprise because during my time in the House General Counsel’s Office amicus briefs reflecting House institutional positions were filed in the name of the Bipartisan Legal Advisory Group (BLAG), rather than in the name of the House itself (unless the House actually voted on the matter, which rarely if ever happened).

It turns out that I had somehow overlooked a small but potentially important change to House rules which took place in 2015 at the outset of the 114th Congress. House Rule II(8), which provides the authority for the House Office of General Counsel, was amended to include the following subparagraph (b):

There is established a Bipartisan Legal Advisory Group composed of the Speaker and the majority and minority leaderships. Unless otherwise provided by the House, the Bipartisan Legal Advisory Group speaks for, and articulates the institutional position of, the House in all litigation matters.

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