See Update Here
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.
The section-by-section analysis of this change simply says that it “updates the authorization for the Bipartisan Legal Authority Group to conform to current practice.” This is true in part. The practice for many years prior to 2015 had been to file House amicus and other institutional briefs in the name of BLAG, even though the rules appeared to limit BLAG’s role to a consultative function. (The only mention of BLAG in the prior rules was that “[t]he Office of General Counsel shall function pursuant to the direction of the Speaker, who shall consult with a Bipartisan Legal Advisory Group, which shall include the majority and minority leaderships.”). The amended rule clarifies that BLAG, rather than the Speaker alone, is responsible for determining the House’s institutional legal positions.
The more important change, however, is that the amended rule permits BLAG to act in the name of the House. This was not the prior practice but represents a response to doubts raised about BLAG’s standing to intervene as a party in United States v. Windsor and other cases that challenged the constitutionality of the Defense of Marriage Act.
As background, after the Obama administration notified Congress it would no longer defend the constitutionality of DOMA, BLAG intervened in a number of cases, including Windsor, for the purpose of defending the statute. Although neither the Justice Department nor the private party objected to BLAG’s intervention or standing, the Supreme Court was sufficiently concerned about these issues in Windsor to appoint Vicki C. Jackson as amicus curiae to support the proposition that BLAG lacked standing and that its intervention did not provide sufficient adversity to establish a justiciable controversy.
Among other things, the amicus brief (Jackson actually styled it an “amica” brief but the Court didn’t play along so neither will I) argued that BLAG could not represent the interests of the House:
BLAG lacked power to act even for one house of Congress. BLAG is not the House of Representatives; it is an “[a]dvisory” body, established by the internal rules of the House of Representatives. H.R. Rule II.8, 112th Cong. (2011). BLAG’s purpose is to be “consult[ed]” by the Speaker, who provides “direction” to the “function[ing]” of the General Counsel of the House, who in turn “provid[es] legal assistance and representation to the House.” Id. (emphasis added). These words invest BLAG with no authority to intervene as a party in any litigation, including this case when BLAG intervened in the courts below or even when BLAG filed its own certiorari petition.
Br. of Court-Appointed Amica Curiae Addressing Jurisdiction at 17, United States v. Windsor, 570 U.S. 744 (2013) (No. 12-307) (filed Jan. 24, 2013).
Shortly before this brief was filed, the House had passed a resolution stating “[BLAG] continues to speak for, and articulates the institutional position of, the House in all litigation matters in which it appears, including in Windsor v. United States.” H. Res. 5, 113th Cong., 1st Sess., § 4(a)(1)(B) (Jan. 3, 2013). Jackson’s amicus brief dismissed this resolution as a “post hoc effort” which “cannot retroactively cure” BLAG’s lack of standing, but it did not contest that the language of the resolution was adequate prospectively to authorize BLAG to act on the House’s behalf. Moreover, Justice Alito, the only justice in Windsor to find that the House independently had standing to defend the constitutionality of DOMA, found the House resolution adequate to convey that standing to BLAG. It is reasonable to assume, therefore, that the similar language of the amended House rule will have the intended effect of allowing BLAG to assert in court whatever standing the House itself enjoys.
Of course, the House rule cannot invest BLAG with any standing that the House itself does not have. In Windsor, for example, three justices (Scalia, Roberts and Thomas) emphatically disagreed with the proposition that the House (or Senate) has general standing to defend the constitutionality of statutes when the executive branch declines to do so. Other arguments that might be interposed against BLAG include the contention that it cannot intervene as a party without statutory authorization or that only Congress as a whole can defend a law’s constitutionality.
There is also an interesting question whether and to what extent the new rule authorizes BLAG to initiate litigation, as opposed to intervene in existing litigation. For example, could BLAG commence a legal action designed to enforce (or assist in enforcing) a subpoena, notwithstanding the language of House Rule XI that “[c]ompliance with a subpoena issued by a committee or subcommittee . . . may be enforced only as authorized or directed by the House”?
Finally, one may wonder to what extent the minority would be able to challenge a BLAG action, seizing on the language of the new rule’s “otherwise provided by the House” language. Presumably a resolution to block BLAG from asserting a particular institutional position would present a question of privilege under Rule IX. Something to look out for as we go through what is likely to be a litigious Congress.