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DOMA: Aranas v. Napolitano (challenge to Section 3 of DOMA as applied to immigration) updates: House Republicans’ replies on motion to intervene
September 10, 2012
By Scottie Thomaston
House Republicans, through the Bipartisan Legal Advisory Group (BLAG) are seeking to intervene in Aranas v. Napolitano, a class-action lawsuit challenging Section 3 of the Defense of Marriage Act as it applies to immigration. The Justice Department and the plaintiffs filed their replies to BLAG’s motion to intervene, with the Justice Department saying it does not oppose intervention and plaintiffs taking no position on intervention.
The Justice Department stipulated that it still believes BLAG lacks standing to appear in federal court as an ‘advisory group’ to a legislative body; and plaintiffs refused to concede that, “(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…””
BLAG has filed reply briefs to plaintiffs and the Justice Department.
BLAG continues to argue, as it has in every challenge so far, that it has standing. It points to the Supreme Court case INS v. Chadha to back it up. This time, BLAG writes, “The House’s position here also is supported by
Perry v. Brown, 671 F.3d 1052, 1070-74 (9th Cir. 2012), which upheld the intervention of, and subsequent appeal by, the non-governmental sponsors of a California constitutional ballot initiative (Proposition 8), which the State itself would neither defend nor appeal.[...]If even non-governmental actors are entitled to intervene,” they write, then BLAG should be, as it represents the House.
BLAG also argues, as it has, that it is entitled to be a full party to the case, not simply to present arguments, and that it doesn’t need the Justice Department’s assistance to defend DOMA. It argues that it can oppose the motion for class certification and the motion for a preliminary injunction, as a party.
BLAG suggests that the plaintiffs’ stipulations are irrelevant. They argue the House has standing and courts have recognized that the House “is entitled to determine how to articulate its position in litigation matters.” And plaintiffs had refused to concede that the Justice Department has an obligation to defend all laws it considers to be unconstitutional. BLAG responds, noting that they have acknowledged that “the Department can, as a practical matter, abdicate its constitutional responsibilities and refuse to defend duly-enacted federal statutes, as it has here.” Lastly, they dispute plaintiffs’ contention that the decision to stop defending Section 3 of DOMA was based on legal circumstances, suggesting the facts speak for themselves, since the Justice Department thinks it is constitutional under rational basis review.
h/t Kathleen for these filings
BLAG reply to plaintiffs:8:12-cv-01137 #28
BLAG reply to DOJ:8:12-cv-01137 #29
Having technical problems? E-mail equalityontrial AT couragecampaign DOT org for assistance!
14 Comments Leave a Comment
1.
jamarvs | September 10, 2012 at 12:36 pm
thanks for the updates. good job guys!
however, there is something missing: the date and time this was written.
2.
jamarvs | September 10, 2012 at 12:38 pm
i am referring to the main page, before you click on the article itself.
3.
sfbob | September 10, 2012 at 12:40 pm
BLAG is using the ruling in Perry vs Brown to support their contention that they have Article III standing? That's a serious reach. In Perry vs Brown, the 9th Circuit accepted that CA grants the proponents of Prop 8 standing to appeal based on the CA Supreme Court ruling regarding STATE law. The determination that the defendant/intervenors in Perry vs Brown (case has now changed names) have Article III standing is really quite a separate issue.
4.
Larry | September 10, 2012 at 1:04 pm
It's not that farfetched to me. If a non-governmental group like the official Prop8 initiative sponsors have standing to appeal, then surely an official government agency like Congress or a state legislative body would have standing as well to defend laws they themselves passed.
5.
Eric | September 10, 2012 at 2:18 pm
But Congress is not defending the law. An advisory group to the House leadership is trying to defend the law.
6.
joe | September 10, 2012 at 2:19 pm
ot, but http://www.nfl.com/news/story/0ap1000000059216/ar…
7.
Gregory in SLC | September 10, 2012 at 2:25 pm
been quite a few article about this. Like this piece from NYT:
Players’ Support of Gay Marriage Alters N.F.L. Image:
http://www.nytimes.com/2012/09/09/sports/football…
8.
sfbob | September 10, 2012 at 4:37 pm
The difference is that the Prop 8 backers were granted standing based on a ruling by the California Supreme Court, based on an interpretation of the California constitution, not on the US Constitution. Although the Ninth Circuit stated that they would accept the CA Supreme Court's determination, that acceptance is really limited to applications of state law rather than of federal law. As I understand it, Article III standing is far more difficult to obtain and previous rulings have hinted that standing at the state level would not necessarily imply standing at the federal level. As challenges to DOMA have nothing whatsoever to do with any state's constitution, it's really tough to use the reasoning in the Prop 8 case to support a claim to standing on a strictly federal case.
9.
Larry | September 10, 2012 at 7:23 pm
The California Supreme Court issued an opinion on state law. It was still up to the Ninth Circuit to decide if the Prop 8 proponents had Article 3 standing in federal court. As I recall, the 9th Circuit said the proponents had Article 3 standing because they were effectively acting as the California legislature in this case.
I'll argue by analogy. Presumably the actual California legislature would have been allowed to intervene and appeal the case, had they chosen. (That's basically what the Supreme Court case Karcher v May said about individual NJ legislators, although the NJ legislators lost their standing after they were voted out). So if state legislators are allowed to defend a state law in federal court, shouldn't federal legislators be allowed to defend a federal law in federal court? It seems only fair.
Also, BLAG is legitimate, albeit not very bipartisan. The House of Representatives' rules allow for BLAG to represent the House in legal matters.
10.
Jay | September 11, 2012 at 6:48 am
The problem with BLAG's standing stems from the fact that to pass a law one needs both Houses of Congress, not just one. BLAG represents a faction of the House of Representatives, not the Congress itself. That strikes me as a separation of powers issue.
11.
Mike in Baltimore | September 11, 2012 at 3:55 pm
The Ninth Circuit ruled they had standing, but SCOTUS has not stated anything on the issue. The argument (in the form of requesting cert) is now before SCOTUS, and SCOTUS can deny or accept the case. One reason it might deny the case is because it has determined that the Prop H8 litigants have not proven to SCOTUS that they meet the requirements for standing.
There are three requirements for standing in the US:
1. Injury: The plaintiff must have suffered or imminently will suffer injury—an invasion of a legally protected interest that is concrete and particularized. The injury must be actual or imminent, distinct and palpable, not abstract. This injury could be economic as well as non-economic.
2. Causation: There must be a causal connection between the injury and the conduct complained of, so that the injury is fairly traceable to the challenged action of the defendant and not the result of the independent action of some third party who is not before the court.
3. Redressability: It must be likely, as opposed to merely speculative, that a favorable court decision will redress the injury.
To date, the backers of Prop H8 have not been able to prove any injury has occurred, or will occur in the future. And if injury cannot be shown, there is no standing.
12.
Jason | September 11, 2012 at 8:42 pm
"See also" in legal writing is an indication that the authority cited only marginally relates to the point it follows. In other words, the BLAG is not relying on Perry, but on Chadha.
13.
Jason | September 11, 2012 at 9:06 pm
How can this be a separation of powers issue if the issue stems wholly from one power: the Congress?
14.
Mike in Baltimore | September 12, 2012 at 3:33 pm
And the date of filing is of no concern? Just the date and time of when it was written?
Deadlines for filing are of no concern – this could have been written on September 8, 2012 and filed on September 9, 2062, and it would not be of concern to you?
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