August 8, 2012
By Scottie Thomaston
House Republicans moved to dismiss the Justice Department’s appeal in Windsor v. USA a couple weeks ago, arguing that it is superfluous since the Bipartisan Legal Advisory Group (BLAG) filed its own appeal as the losing party in the court below. They also argued the Justice Department lacks standing to appeal. This has continued throughout all the Section 3 (of DOMA) litigation, with both sides arguing the opposing side lacks Article 3 standing.
The Justice Department has filed its response. The arguments are essentially the same as the ones covered yesterday in the Golinski reply brief: (1) the Executive Branch has standing to appeal because even though it got what it wanted in the lower court’s decision, it is still tasked with enforcing all laws until the judiciary renders its final say on the constitutionality of the law. Since the decision bars Executive Branch enforcement, they argue they have standing to appeal.
(2) Since they argue BLAG lacks standing as an advisory group to one house of Congress, dismissing the DOJ appeal would likely prevent the court from issuing a final ruling on the constitutionality of Section 3 of DOMA. They argue that there is no reason to reach the issue of BLAG’s standing because the DOJ has independent standing, but if they do, they should agree that BLAG lacks Article 3 standing. If no one can appear in court, the constitutional question will linger.