I
agree with much of what Mike Ramsey says
about BLAG’s standing. Qua representative of Congress, it lacks authority
to defend the interests of the United States. But the specific context of
the Windsor litigation supplies reason to think that BLAG has been delegated
authority to make arguments in favor of the constitutionality of DOMA by the
United States itself. (Mike Rappaport imagines such an argument in his 8th
point.)
The
Department of Justice has specifically sought to allow BLAG to make arguments
on behalf of the United States’ right to keep the money to which Windsor
believes she is entitled. It told
the district court: “To fulfill the Attorney General’s commitment to
provide Congress with a full and fair opportunity to participate in the
litigation, the United States will take the procedural steps necessary to
enable BLAG to present arguments in support of the constitutionality of [DOMA]
Section 3. The United States intends to 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.”
The
Department filed a notice of appeal so that BLAG could make those arguments to
the Second Circuit, and filed a petition for certiorari so that BLAG could make
those arguments to the Supreme Court. As regards its standing, BLAG’s
position is thus not materially different from the role of any other private
lawyer who contracts to make arguments on the federal government’s
behalf—indeed, of any other private lawyer whom the Supreme Court appoints to
make arguments on behalf of the United States when the federal government
confesses error. See, e.g., Paul Cassell’s role in defending the criminal
conviction, and the constitutionality of a federal statute, in Dickerson
v. United States, 530 U.S. 428 (2000).
BLAG
thus has standing, like a qui tam plaintiff, as a partial assignee of the United
States. See Vermont
Agency of Natural Resources v. Stevens, 529 U.S. 765, 773 (2000):
“[A]dequate basis for the relator's suit for his bounty is to be found in the
doctrine that the assignee of a claim has standing to assert the injury in fact
suffered by the assignor. The FCA can reasonably be regarded as effecting a
partial assignment of the Government's damages claim.” The Department of
Justice’s litigation posture, inviting courts to consider arguments made by
BLAG, similarly is a partial assignment of the Government’s right to present
arguments in defense of DOMA’s constitutionality.
(It
might be, as Mike Rappaport suggests, that the original meaning of Article II
requires tighter requirements on executive control over–as opposed to merely
acquiescence in–the actions of BLAG, than were imposed on the
federal-government-interest-defenders in cases like Dickerson and Vermont. But
this is not quite the same issue as Article III standing.)
More
generally–to address Mike Ramsey’s final point–is it ever proper to continue
to enforce a law which is, in one’s tentative view not yet conclusively
ratified by the courts, unconstitutional? If there are ever any
prudential or epistemic considerations relevant to the decision whether, and
how stringently, to exercise executive review, it would seem that there must
be.
Suppose,
for instance, that an executive thought that executive review is a tremendously
weighty occasion, only to be exercised when a case is particularly clear, and
that the evidence in a particular case is (in the present state of the
evidence) only slightly in favor of the unconstitutionality of
legislation. Is it required to choose between refusing to enforce the law
and making arguments that the legislation is actually constitutional?
It
seems to me that the executive should not in all cases be required to make that
choice. Determinations of constitutionality are sometimes difficult, and
the refusal to enforce the law demands a significant degree of evidence.
It seems consistent to allow the executive to attach a “probably
unconstitutional, but not so obviously so that we won’t enforce it” label on
legislation, especially where, as in Windsor, it has sought the opportunity for
others to make arguments for constitutionality.
Posted at 8:36 AM