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 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