« Standing and Gay Marriage, Part II
Michael Ramsey
| Main | Standing and Gay Marriage: A Quick Summary
Michael Ramsey
»

12/14/2012

More On Windsor Standing
Chris Green (Guest Blogging)

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.