September 4, 2012
By Scottie Thomaston
The Bipartisan Legal Advisory Group (BLAG), on behalf of House Republicans, is moving to intervene in Aranas v. Napolitano, a challenge to the constitutionality of Section 3 of the Defense of Marriage Act in the context of immigration. In their memo in support of intervention, BLAG argues, as it typically has, that the House had a “central role” in creating DOMA, therefore it has a strong interest in defending its constitutionality. BLAG continues to argue that the House, through its legal advisory group, has Article III standing. There is a longstanding dispute on this point between BLAG and the Justice Department (see, eg., here.)
The Justice Department does not oppose intervention in this case, but it continues to believe BLAG lacks standing. They write, “Congress’s interest in the constitutional validity of a law does not confer standing to enter an action as a party any more than citizens with a generalized grievance would have standing to do so[.]” Since the Justice Department believes BLAG lacks standing, they will remain a party to the case in order to ensure that the case continues. They argue that only a judgment against the United States would redress the plaintiffs’ injuries, so the Executive Branch defendants (tasked with enforcing laws) is a proper party.
The plaintiffs “take no position regarding the merits of BLAG’s motion to intervene for this limited purpose or its standing in this action as a party-defendant.” They further argue that, “Plaintiffs do not concede, inter alia, (1) that BLAG speaks for a bi-partisan majority of the U.S House of Representatives; (2) that the Department of Justice has a responsibility to defend before the federal courts a statute it concludes is unconstitutional; or (3) that the Department of Justice’s decision to abstain from defending DOMA § 3 “was not predicated primarily on constitutional or other legal considerations…” Id. at 4.”
And lastly the plaintiffs reserve the right to object if BLAG goes beyond the “limited role” it has said it would have in this litigation. Plaintiffs would, for example, object to BLAG’s opposition to their motion for class certification and their motion for a preliminary injunction, since their opposition would not assist them in defending Section 3 of DOMA. The hearing on those motions will take place on October 9.
The initial response to the complaint filed in the case is due October 10.
h/t Kathleen for these filings
BLAG motion to intervene:8:12-cv-01137 #18
BLAG memo in support of motion:8:12-cv-01137 #19
DOJ response:8:12-cv-01137 #25
Plaintiffs’ response:8:12-cv-01137 #26