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Standing and Gay Marriage
Michael Ramsey

At SCOTUSBlog, Neal Devins and Tara Grove (both of William and Mary law school) doubt there is standing in the gay marriage cases.  I agree, and would go further.

In this post I’ll consider the challenge to the federal Defense of Marriage Act (DOMA), United States v. Windsor.  Windsor is challenging an estate tax assessment that she (supposedly) owes because her same-sex marriage, although valid under her home state law, isn’t recognized for federal tax purposes under DOMA.  The executive branch refused to refund her money, but also refused defend the statute, saying it is unconstitutional; the House Bipartisan Legal Advisory Group (BLAG) has intervened to defend the statute.  But does the BLAG have authority to do so?  As Devins and Grove explain: 

[T]he House BLAG (which consists of five individuals – the Speaker, the majority and minority leaders, and the majority and minority whips) voted three to two to intervene in the case.   The three Republican members of the BLAG, including House Speaker John Boehner, voted to defend DOMA; the BLAG’s two Democrats, including minority leader and former Speaker Nancy Pelosi, opposed intervention.  For its part, the Senate never considered participating in the DOMA litigation.

 … [Thus] the BLAG at best speaks for only one house of Congress.  But when Congress acts, it must act in a bicameral way.  The Constitution does not establish a single unified “Congress;” instead, it vests legislative powers in a Congress “which shall consist of a Senate and House of Representatives.”  The two chambers of Congress are constitutionally designed to be in constant tension and competition with each other, so that they can serve as checks on one another (and/or on the President).

Moreover, they continue:  

The BLAG’s defense of statutes is constitutionally problematic for another reason.  The Constitution carefully separates the executive and legislative functions to protect against the concentration of power in any one branch.   Litigation over the meaning and constitutionality of a federal statute is a crucial part of the execution of federal law.  After all, if a court invalidates a statute, the government can no longer enforce that law against future violators.  Because the defense of federal statutes is an executive function, the House BLAG — an agent of Congress — cannot perform that function.

This all sounds exactly right, and indeed understates the BLAG’s problem.  By Article III, federal courts can only adjudicate "cases or controversies."  Under Justice Scalia’s classic formulation in Lujan v. Defenders of Wildlife a case or controversy requires a concrete, particularized interest in the dispute.

What is the BLAG’s interest?  Only that it likes the statute and thinks it is constitutional.  That is not a sufficient interest for standing.  Many other people like the statute and think it is constitutional – Ed Whelan, for instance.  Surely no one thinks Ed Whelan can intervene to defend the statute.  The BLAG might have a marginally better claim of injury if it represented the Congress that actually passed DOMA, but it doesn’t (as Devins and Grove point out, it doesn’t even represent the current Congress).  It just represents some people who happen to be members of Congress.  

Consider if the case arose in a more conventional posture for Article III standing analysis.  Suppose there is a law, passed some time ago, that a majority of the current House thinks is unconstitutional.  Can that majority direct the BLAG to bring a constitutional challenge?  I think the answer is clearly no.  In that situation, the BLAG’s position is no different from any other concerned citizen who thinks the law is unconstitutional (but has no other injury), and who would therefore lack standing to challenge the law under Lujan.  Indeed, this seems to follow directly from Raines v. Byrd (1997), which held that individual members of Congress lack standing to challenge the constitutionality of federal legislation. (Admittedly Raines is not the most originalist decision ever issued, but it did persuade Justices Scalia and Thomas).

Does the analysis change because the BLAG is defending the statute rather than attacking it?  I think not.  It takes two interested parties to create an Article III case or controversy.  Obviously Windsor has a concrete personalized interest, but the BLAG does not.  The BLAG isn’t defending its own work, just that of a prior Congress.  Its only interest is that federal law, generically, be enforced.  As Devins and Grove point out, Congress does not have constitutional authority to enforce the law (that’s an executive, not legislative, function). True, members of Congress, we may presume, would like for federal law to be enforced, just as everyone else (who supports the law) would.  But that’s exactly the point: the BLAG has no tangible stake in the case that distinguishes it from any other group of concerned citizens.

Devins and Grove nonetheless say that the Court can reach the merits of the DOMA case to resolve the dispute between Windsor and the U.S. executive branch.  On this point I disagree (though I agree that Windsor should win).  These are somewhat uncharted waters, but here’s my assessment:

Windsor brought a claim against the U.S. government to recover money.  The U.S. government refused to defend against the claim (although it also refused to refund her money).  Thus, Windsor should win by default.  The courts are neither required nor entitled to reach the merits of her claim, because no one is arguing against her.  The BLAG’s intervention shouldn’t matter because it doesn’t have standing and thus it cannot create a justiciable controversy as to the merits of the claim.   

Consider a hypothetical: The government fines me $15 under a statute I think is unconstitutional.  I file a claim to get my money back.  The government, because it has better things to do than fight over $15, does not respond.  What happens?  The court awards me the money, not because it finds the statute unconstitutional, but because the government failed to respond.  There is a justiciable controversy as to the money (so the court can make an award) but there’s no controversy as to the merits of the case (since the government did not contest the merits), and so the court cannot (or at least shouldn’t) reach the merits.  (Note that in this hypothetical, surely my next-door-neighbor, who thinks everyone should pay their fines without complaining, can’t intervene to defend the statute on behalf of the government; and neither, I assume, can members of Congress who think the government needs the money).

I may well be missing something, but I don’t see how Windsor’s case is any different.  So the right result is to give Windsor her money and vacate all the needless discussion of the merits.

Incidentally, this procedural mess is entirely the fault of the Obama administration, which I think is acting unconstitutionally (or at least, improperly) in enforcing the statute in the first place but then refusing to defend it.  Either the President thinks the statute is unconstitutional, in which case he should not enforce it, or the executive branch thinks the statute is (or may be) constitutional, in which case he should enforce and defend it.  That follows from, among other things, the President’s oath to “preserve, protect and defend the Constitution” (Art. II, Sec. 1).  It's inexcusable, in my judgment, for the President to take Windsor's money, and then say that the law by which he took her money is unconstitutional.

NOTE:  Via SCOTUSBlog, the Court has appointed Harvard Law School Professor Vicki Jackson (a formidable advocate, in my experience) to advance the position that the BLAG is not a proper party to defend the statute.

UPDATE:  Related thoughts from Linda Greenhouse.