Daily Read: Vicki Jackson on BLAG's Lack of Standing in Windsor, the DOMA Case

In her amicus brief in United States v Windsor, submitted at the request of the United States Supreme Court, ConLawProf Vicki Jackson (pictured) vigorously argues that BLAG lacks Article III standing.  (For our previous discussions of standing in the DOMA and Prop 8 cases this week, see here and here).

Jackson explains that after Attorney General Holder notified Congress that the Executive would no longer enforce DOMA given its conclusion that the statute was unconstitutional,

the Bipartisan Legal Advisory Group of the House of Representatives (“BLAG”) voted 3-2 to intervene in the litigation to defend the constitutionality of  DOMA.  As its title suggests, BLAG is an “[a]dvisory” body, that is to be “consult[ed]” by the Speaker of the House, who gives “direction” to the General Counsel of the House, according to Rule II.8 of the Rules of the U.S. House of Representatives during all periods of this litigation. 

[citations omitted].  The brief contends:

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.

Central to Jackson's argument is INS v. Chadha (1983).   She stresses that Chadha concluded that  “Congress [was] a proper party to defend [a] measure’s validity where both Houses, by resolution, had authorized intervention in the lawsuit,” and distinguishing the status of intervention in Windsor.  Additionally, Jackson analogizes to the primary holding in Chadha on the merits:

In Chadha, this Court emphasized that, when a house of Congress acts, it presumptively acts in a legislative capacity, that is, with “the purpose and effect of altering the legal rights, duties, and relations of persons *** outside the Legislative Branch.”  If BLAG’s intervention was a legislative act, it was plainly not done through the bicameralism and presentment procedure required for such acts. If, on the other hand, BLAG’s action was not a “legislative” act, it is hard to square with Chadha’s observation that, “when the Framers intended to authorize either House of Congress to act alone and outside of its prescribed bicameral legislative role, they narrowly and precisely defined the procedure for such action.”

[citations omitted].

The entire amicus brief casts considerable doubt on the status of BLAG as a proper party before the United States Supreme Court.  It is worth a read!

RR