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12/27/2012

Does BLAG control the litigation in Windsor?
Chris Green

Thanks to Mike Ramsey for his thoughtful response on standing in the Windsor gay-marriage case.  (For my ealier bits, see here, here, and here, and for Mike's, see here, here, and here.)  I agree with Mike that BLAG does not have independent standing to intervene in litigation as a representative of Congress, but I think that where an executive stakes out an intermediate enforce-but-don't-defend position--which I think is sometimes proper, but Mike does not--courts should consider the merits arguments of amici before entering judgment.  If the United States appeals or petitions for certiorari, courts should likewise consider the arguments of amici before affirming or denying certiorari.

My reference to qui tam plaintiffs' delegated authority was only for the purpose of establishing a proposition with which Mike agrees: that the federal government can delegate responsibility for making arguments to others, such as private lawyers, who themselves have no concrete and particularized interests in the case.  The only issue is whether that power is limited to making arguments that the federal government agrees with.   Once we agree that the federal government can delegate argument-making responsibility to others without those others' own standing, I don't see any specifically standing-based reason to require judges to look behind those arguments to see if they are consistent with other positions the federal government has taken.  That inconsistency is obviously relevant to the strength of those arguments, but not to the power of a court to consider them.

Mike says that in Windsor, on my view, "the executive is allowing a third party, who has no independent Article III interest in the case, to operate independently of the executive branch, control the litigation, and advance a position with which the executive disagrees."  I don't think that's exactly right.  The executive has exercised control over the litigation by (a) continuing to enforce DOMA, (b) filing a notice of appeal, (c) petitioning for certiorari, and (d) urging courts to consider BLAG's arguments rather than dismissing the case as non-justiciable.  The federal government could cut off BLAG's authority at any time by refusing to enforce DOMA (i.e., settling the case), just as it could have cut off its authority by failing to file a notice of appeal or failing to petition for certiorari.  BLAG is therefore not controlling the litigation independently of the executive branch.  (It is trying to--for instance by seeking to have the federal government's notice of appeal dismissed--but I agree with Mike that it should not be allowed to do so.)

BLAG's lack of control over the litigation also, I think, answers Mike's MWAA argument.  There would be a problem, I agree, if BLAG had the executive power to control litigation on behalf of the United States based only on its status as a congressional organ.  But because BLAG's ability to make its arguments in defense of DOMA is subject to control by executive officers, it is not, I think, the genuine exercise of executive power.  Courts rejecting II/2/2 Appointments-Clause or II/3 Take-Care-Clause challenges to qui tam statutes have argued that the ability of the federal government to settle cases gives it effective control over litigation even if it does not actually intervene.  See, e.g., Riley v. St. Luke's Hospital, 252 F.3d 749, 756 n.10 (5th Cir. 2001) (listing several courts).

Chadha, which allowed Congress to defend the legislative veto even though the INS and Chadha agreed it was unconstitutional (and did so even before the first intervention by an Article III court), viewed congressional defense of the statute as equivalent to the Court's own appointment of an amicus to defend a judgment in Cheng Fang Kwok.  Chadha, of course, prefigured cases like Bowsher and MWAA in holding that neither Congress nor a subset of it could execute the law, but its discussion of standing implicitly distinguished Congress's ability to present arguments in defense of a law from the actual execution of that law.  

FRCP 55(d) and FSIA 1608(e), on which I relied, together with significant history allowing courts to investigate the merits of claims that the federal government does not contest, are not, I think, limited to inadvertent defaults by the government or foreign states or to an inquiry into whether arguments are frivolous.  If they were, inquiry into the lack of inadvetence or a Rule-11-style standard, not an inquiry into the merits of a claim, would be the proper course.  But FSIA 1608(e) and FRCP 55(d) inquiries are resolutions of the merits of disputes.  It is true that they are only intended to prevent meritless claims turning into judgments, but that is all that BLAG's arguments are attempting to prevent.  

The history of courts inquiring into the merits of a case, even when only one side appears, is at least as old as Marbury v. Madison, in which Madison did not appear.  See also here at 913 (45 cases at Supreme Court during 1870s with "no opposing counsel," including Minor v. Happersett). Cases in which the Supreme Court has apointed amici to defend a judgment involve appeals in which parties agree a judicial decree should be reversed, but it is not obvious why appeals should be any different from trial-level proceedings in which parties agree that a statute should be held unconstitutional.  Parity of respect for statutes and judicial decrees means that giving amici the opportunity to defend a statute should be seen as closely analogous to giving amici the opportunity to defend a judgment.  They are both instances of a more general status-quo-privileging principle: even where all litigants with standing agree on a legal change, courts properly may seek advice about whether to accept that consensus.  That goes for striking down a statute as unconstitutional as much as for reversing a judicial decree.