Could Congress ever have standing to defend a law like DOMA?
The rule of federal standing — the party needs to articulate a "particularized" or "direct injury" — and the principle of separation of powers would seem to suggest that Congress can only jump in to defend a law that directly and adversely affects one of its particular prerogatives. All the House is doing in the DOMA case is citing its general interest in seeing a law it passed get enforced. Yet, in a famous standing case called Lujan v. Defenders of Wildlife, the Supreme Court stated that such generalized interest in seeing the government function "in accordance with the law" does not give rise to an injury sufficient for standing.
Basically, the only reason Congress thinks it has standing is because it wants a law enforced and defended. But, so do I and so do you. Congress has no more showed a "direct injury" than you or I. When the Executive Branch declines to defend a law, nothing is happening to Congress: members' votes aren't being nullified and their specific powers are not being directly affected. On the other hand, if an executive tried to enforce a rule that took away a specific Congressional power — declare war or hire staff, for example — Congress could sue. There, Congress would have a particularized interest in quashing that rule. With DOMA, there is not such interest.
Could one house of Congress defend DOMA without the other?
Even if Congress could somehow articulate a direct injury, standing would require Congress – the House and Senate — to speak together. Case law about Congressional standing has exclusively referred to "Congress" in cases where both the House and Senate sought to challenge a direct attack on their powers. That precedent would have to be extended to include this case, where only one house is trying to assert its role.
To be perfectly accurate, it isn't even the House per se that is defending DOMA. It is the mis-named Bipartisan Legal Advisory Group (BLAG), a five person committee of the House leadership with a Republican majority led by Speaker Boehner, that elbowed its way into the DOMA case. BLAG was authorized only "to provid[e] legal assistance and representation to the House," not to intervene in federal litigation. On the other hand, a previous case where Congress did step in to defend a law the president declined to defend involved both the House and Senate passing resolutions explicitly authorizing Congress as a whole to get involved.
Does the Obama Administration's victory at the Second Circuit deny jurisdiction in any event?
This argument has to do with the unique way that Windsor climbed the ladder of the federal judiciary. First, a federal district court in New York adjudicated the case, which then put Edie Windsor and her attorneys against the Obama Administration. Then, the President changed policies, agreed with the district court's striking down DOMA, decided to stop defending the law, and issued notice of appeal.
But, winners can't appeal.
The Constitution's "case and controversy" rule means that a federal court can only hear a case if there is a real debate, a real disagreement, a real controversy between two legitimate parties. However, when the Obama Administration switched sides, it eliminated any conflict. It switched sides, leaving one side empty, thus denying Windsor a real "case or controversy."
Conclusions and Analysis
That seems like a pretty tight argument. Professor Jackson and her colleagues at Akin Gump who wrote the brief certainly delivered the best possible case for House Republicans lacking standing in Windsor. But, the problems with this argument are as follows:
First, it assumes that the President changing his mind is the same as erasing its "direct injury." The President believes that DOMA is unconstitutional, but it cannot be denied that the federal government has been adversely affected by the decisions in Windsor, much like California has been "injured" by the decisions in Hollingsworth. Before Windsor, the federal government did not have to give legally married gay couples the benefits associated with marriage; after striking down DOMA, the district and appellate courts are saying that it must do so. Before Hollingsworth, California did not have to issue marriage licenses to gay couples; now they do. That President Obama and Governor Brown eagerly want to do so does not change the fact that the government experienced a "direct injury."
If the Court sees the standing question this way, the House could piggy back on the Obama Administration's standing.
Second, it looks at the Court's standing precedent and makes a logical jump. Take the example of the designated hitter rule. Baseball's American league added it in 1973, but before that, there were no designated hitters. But, just because there were no designated hitters before 1973 does not necessarily mean that the designated hitter rule violated baseball's charter or bylaws.
Court precedent on Congressional standing may refer to "Congress," but because its previous cases involved both the House and Senate seeking to intervene together, the Court has simply never had the opportunity to address whether the Constitution allows one house to intervene without the other. Nor has it had the opportunity to consider the powers of BLAG, a relatively new creation in the colorful history of House committees. In other words, Professor Jackson's argument tries to prove too much from strong, but non-authoritative precedent.
It seems more likely that the Court will not make either mistake.
If you missed it, read my preview on 'Standing' in the Prop. 8 case HERE.
Ari Ezra Waldman teaches at Brooklyn Law School and is concurrently getting his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. His research focuses on technology, privacy, speech, and gay rights. Ari will be writing weekly posts on law and various LGBT issues. You can follow him on Twitter at @ariezrawaldman.