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Court-appointed attorney files amicus brief in Edith Windsor’s DOMA case on jurisdiction and standing

DOMA trials

By Scottie Thomaston

The Court-appointed attorney – Professor Victoria C. Jackson – has filed her brief in United States v. Windsor. Jackson was appointed to argue the position(s) that the Bipartisan Legal Advisory Group (BLAG) who is defending Section 3 of DOMA lacks Article III standing, and that since the Justice Department agrees with the lower courts and Windsor that Section 3 of DOMA is unconstitutional, the Court has no jurisdiction to hear the challenge.

SCOTUSBlog has the summary of the arguments made in the brief:

“I. BLAG lacks Article III standing. Congress itself would lack standing to defend the constitutionality of laws that do not concern its own specific prerogatives; the interest here in assuring that the law is enforced is a generalized one, insufficient for Article III injury. It is the Executive Branch, not Congress, that is obligated to “take Care” that laws are enforced. Moreover, any injury that might arise from nondefense of a law would be to the whole Congress, which one House cannot alone assert. In INS v. Chadha, 462 U.S. 919 (1983), a special legislative prerogative under the Line Item Veto Act was asserted and both houses intervened. Chadha should not be extended here, especially given Raines v Byrd, 521 U.S. 811 (1997). Finally, BLAG lacked authority to speak for the House at relevant times.

“II. The United States’ agreement with the courts below (and with Windsor) deprives this Court of jurisdiction, because the United States suffers no injury sufficient to invoke Article III jurisdiction. An interest in obtaining a ruling from a higher court does not create standing. Even if the United States’ claim of “aggrievement” were sufficient for Article III, prudential concerns involving the Executive Branch’s assertion of the generalized interests of others should also preclude this Court from recognizing its standing. The jurisdictional statutes, which have changed since Chadha, reinforce the need to respect prudential limitations, if not in the court of appeals at least in this Court. Finally, the United States is a prevailing party, not within the exception of Camreta v. Greene, 131 S. Ct. 2020 (2011), and thus cannot appeal.”

We will have more soon…

More on why BLAG lacks standing:

BLAG lacks standing for at least three reasons. First, BLAG has suffered no injury to a legally cognizable interest beyond the diffuse, generalized interests of all citizens that duly enacted and constitutional laws be enforced; no special prerogatives of BLAG, the House or Congress are threatened. Second, if there were any distinct legislative injury arising from the Executive Branch’s refusal to defend the constitutionality of this statute, that injury would afflict the Congress as a whole . A single house (or part thereof) does not have standing to assert that interest, and the Senate has not intervened. Third, BLAG is not the House, but an “[a]dvisory” body that lacked authority to represent the House when it moved to intervene, noticed its appeal to the Second Circuit, and petitioned this Court for certiorari.

And BLAG asserts only an “interest” not an injury:

BLAG asserts only a generalized interest in seeing statutes that Congress enacted implemented, an interest that is widely shared by the people at large. BLAG asserts no judicially cognizable, concrete injury to itself, to the House of Representatives or to Congress. In Lujan, 504 575-576, the Court underscored that “injury amounting only to the alleged violation of a right to have the Government act in accordance with law was not judicially cognizable.”

There is no concrete, particularized interest here and BLAG (and members of Congress) aren’t affected if the Executive Branch declines to defend DOMA:

BLAG’s claim of injury arising from the constitutional challenge to DOMA and the prospect of its invalidation as unconstitutional likewise falls short of Article III’s particularized injury requirement. In neither Raines nor here is there thekind of specific, concrete threat to any distinctlegislative prerogative – whether it be the right of astate legislature to vote on constitutional amendments, or the power of the congressional houses to exercise a legislative veto – that past cases indicate could sustain legislative standing.

When the Executive Branch declines to defend a law it has enforced, members of Congress suffer no distinct, judicially cognizable injury. Their votes are not nullified and the statute stands as enacted. BLAG seeks only to vindicate a “widely dispersed” interest – shared by citizens and legislators alike–in the constitutionality of a federal law.

She cited current Chief Justice John Roberts (from this article):

The Constitution provides Congress with many mechanisms to express disagreement with Executive non-defense decisions. In addition to Congress and its members appearing as amici, Congress may hold oversight hearings, or withhold confirmations or appropriations. See John G. Roberts, Jr., Article III Limits on Statutory Standing, 42 DUKE L.J. 1219,1229 (1993); cf. Morrison v. Olson, 487 U.S. 654, 711(1988) (Scalia, J., dissenting) (noting that Congress can use powers, like impeachment, if it disagrees with Executive enforcement decisions).

And only one body of Congress isn’t enough for Article III standing:

Where one house declines to participate (as the Senate did here), Congress has not spoken, much less asserted any injury that this Court would be able to determine. It is, after all “a Congress” that is “vested” by the Constitution with “all legislative Powers herein granted.” U.S. CONST. Art. I, § 1. As“Congress” consists of “a Senate and House of Representatives,” id., there can be no judicially cognizable injury to Congress absent both houses’ action (except perhaps where a chamber-specific prerogative of one house is at issue).

On the House rules:

BLAG lacked power to act even for one house of Congress. BLAG is not the House of Representatives; it is an “[a]dvisory” body, established by the internal rules of the House of Representatives. H.R. Rule II.8, 112th Cong. (2011).BLAG’s purpose is to be “consult[ed]” by the Speaker,who provides “direction” to the “function[ing]” of the General Counsel of the House, who in turn“ provid[es] legal assistance and representation to the House.”Id. (emphasis added). These words invest BLAG with no authority to intervene as a party in any litigation, including this case when BLAG intervened in the courts below or even when BLAG filed its own certiorari petition. See Reed v. County Comm’rs of Del. Co., Pa., 277 U.S. 376 (1928) (finding Senate resolutions insufficient to authorize Senate committee’s resort to courts).

Citing a recent decision as well as a recent House rule change, she suggests the change of rules at this late stage is not enough to confer Article III standing because you need it at all stages of the litigation:

The post hoc effort to authorize BLAG, by a House resolution adopted on January 3, 2013, cannot retroactively cure this defect. Without contemporaneous authority, it is difficult to determine whether the House was aggrieved at all at the time of BLAG’s intervention, appeal, and petition to this Court. As this Court has emphasized, “an‘actual controversy’ must exist,” both “‘at the time the complaint is filed,’” and “through ‘all stages’ of the litigation.” Already LLC v. Nike, Inc., __ S. Ct. __,2013 WL 85300, at *4 (Jan. 9, 2013)


The critical inquiry is thus whether BLAG had authority to litigate for the House at the outset of its intervention. It did not – nor at the time of appeal to the court of appeals or petition to this Court. The House cannot evade the requirements of standing at the outset and retroactively create jurisdiction in the Article III courts “nunc pro tunc.”[retroactively]

And because the Justice Department and Windsor want the same result:

This Court thus lacks jurisdiction. First, because the United States agrees with both Windsor and the court below, its appeal fails to present a “case or controversy” within the meaning of Article III.Second, even if the Executive Branch’s enforcement of the statute met core Article III requirements for standing and adverseness, prudential considerations support a finding of nonjusticiability, at least with respect to this Court’s jurisdiction. Finally, ordinary rules of appellate jurisdiction preclude appeals by prevailing parties, like the United States, which obtained below the very result it sought. And no prior case compels a different conclusion.

In a footnote, she cites a case that John Roberts was involved in previously, Metro Broadcasting:

In cases such as Myers, Buckley, Metro Broadcasting, Inc. v.FCC., 497 U.S. 547 (1990), and Dickerson v. United States, 530U.S. 428 (2000), the United States was not the appealing party invoking this Court’s jurisdiction. In Morrison, the Independent Counsel sought review of an adverse judgment. In Smith, it was the Senate, acting in the name of the United States, that appealed; its position was adverse to both Smith and the judgment below

h/t Kathleen for the filing

12-307 Opening Brief Jurisdiction by EqualityCaseFiles


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