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12/22/2012

Standing and Gay Marriage: A Response to Chris Green
Michael Ramsey

Thanks to Chris Green for his guest posts on standing in the same-sex marriage cases (see here, here and here).  He raises some very interesting issues, but ultimately I’m not persuaded, as I’ll explain below. 

Professor Green’s core contention appears to be that the executive branch can allow a third party to defend a case on behalf of the United States where the third party does not represent the interests of the executive branch and where the third party would not (absent executive consent) have Article III standing.  That is, in his view, as I understand it, the executive approval is crucial.

I agree that the executive can hire or appoint a representative to argue the executive’s position (for example, by hiring a private law firm).  But that is not what is happening in the same-sex marriage cases; instead, 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.  The question is whether that is consistent with the idea of standing (that is, that parties must have a concrete and particularized interest in the case).  I don't see how it is.

Professor Green cites several precedents to show that there is no standing problem here, but I think they are not on point.  First, he says the constitutionality of qui tam actions supports third-party standing to advance the interests of the United States.  But I think the status of qui tam actions reinforces my view, not his.  First, most commentary recognizes that qui tam actions are somewhat dubious, constitutionally speaking.  To the extent originalists (such as Justice Scalia) accept the constitutionality of qui tam, I think it is because (a) qui tam plaintiffs have a tangible Article III interest through the “bounty” they receive from a successful case; and (b) qui tam actions have a long historical pedigree reaching back before the founding era. 

Neither of these factors is present in the same-sex marriage cases.  I’m not aware of any eighteenth-century precedent for the kind of third-party standing advocated here, which is very different from qui tam.  And there’s nothing analogous to the qui tam “bounty” to give the third parties a financial interest.  (Professor Green suggests that the House committee might have an interest in the money at stake in the federal case, but their interest is only that the United States gets the money – the money does not go to the third party, as it would go to a qui tam plaintiff).  Moreover, in qui tam actions the private plaintiff is not advocating a position contrary to that of the executive branch.

Professor Green next notes that in cases such as United States v. Dickerson the Court has appointed an amicus to argue a position the executive declined to argue.  Dickerson is a little different, in that the executive branch had argued (and won) the case on the merits in the court of appeals.  Thus there was a decision on the merits that did not have standing issues; the question was what power the Supreme Court had to review that decision once the executive branch changed its mind.  That’s a harder question than asking whether the case can go forward in the first place without an Article III controversy. 

(Note: an anonymous – but very knowledgeable – commentator adds the there are other cases in this posture, including INS v. Chadha and United States v. Lovett.  That is, these are cases that the executive branch refused to defend, and the Court appointed an amicus to argue the “defaulted” position.  Fair enough – although again the idea of having an independent third party involved is somewhat different.  But my point is not that it is unprecedented; my point is that it is inconsistent with the basic idea of standing, at least where there was never an adverse party in the case with an Article III interest.)

Further, even if it is permissible for the executive to allow a third party to take over the litigation, in the federal case separation of powers remains a substantial barrier.  Congress (or a subset of Congress) cannot exercise executive power, per the Metropolitan Washington Airports case in particular.  Neither Dickerson nor qui tam is an answer to this objection.

Finally, I think Federal Rule of Civil Procedure 55, noted by Professor Green, is not decisive in this debate.  The Rule (assuming it is constitutional) is designed to prevent an accidental default by the United States in a meritless case.  It calls on the Court to make an independent determination of the merits, presumably to a limited extent to assure that no frivolous arguments succeed.  The Rule does not contemplate designating a third party to take over the litigation when the executive thinks a law is unconstitutional.