February 22, 2013
By Scottie Thomaston
UPDATED 3:36PM ET: BLAG’s brief on jurisdiction and standing is here, updates below
UPDATED 6:45PM ET: DOJ brief on jurisdiction is here, updates below
Replies to the Court-appointed amicus in United States v. Windsor are starting to come in. The Court appointed an attorney to argue against jurisdiction and Article III standing in the challenge to Section 3 of DOMA, since the other parties to the case argue the Court has jurisdiction.
From the summary of her argument:
This Court has directed the parties to address two jurisdictional questions. The answer to the first question is that this Court has jurisdiction to decide this case without regard to the Executive Branch’s view on the constitutionality of Section 3 of the Defense of Marriage Act (DOMA), 1 U.S.C. § 7, because the United States continues to enforce DOMA against respondent Edith Windsor. And because the United States is a proper and indispensable party to this lawsuit, the answer to the second question does not affect this Court’s ability to reach the merits.
She argues that her case fits well within the “case or controversy” requirements for Article III standing:
This case presents a concrete controversy within the meaning of Article III. The United States has enforced DOMA against Ms. Windsor throughout this litigation. It will continue do so in the future if DOMA is upheld by this Court. Thus, this Court’s decision “will have real meaning” for both parties. Chadha, 462 U.S. at 939. Furthermore, the participation of a congressional intervenor in support of the statute allays any concern about whether the issues will be sharply presented.
Moreover, her brief suggests, the Executive Branch is “aggrieved” because the judgment was entered against the government (who will have to pay Edith Windsor money) so the government had a right to appeal that judgment:
For purposes of appeal, moreover, the United States is an “aggrieved party” within the traditional understanding of that term. Judgment was entered against the United States. That judgment requires the United States both to pay hundreds of thousands of dollars to Ms. Windsor and to alter its administration of more than one thousand statutory provisions that affect married gay couples. These are legally cognizable consequences that, by any objective standard, make the United States an aggrieved party. Nothing bars a government defendant from appealing this sort of adverse judgment.
Her brief argues that under US law, only the United States Government can be named as a defendant when someone is seeking a tax refund (and the Court accepted the Justice Department’s petition, so the case is properly before the Court):
The Internal Revenue Code requires that the “United States,” and only the United States, be named as the defendant in a lawsuit seeking a tax refund. See 26U.S.C. § 7422(f)(1). When a plaintiff names any other official defendant – for example, the IRS or the Commissioner of Internal Revenue – the “court shall order . . . that the pleadings be amended to substitute the United States as a party.” Id. § 7422(f)(2). Moreover, because this is a tax refund case, the United States is the only party that can provide the relief Ms. Windsor seeks.
And she argues that it doesn’t matter why the Justice Department is appealing the judgment:
The straightforward conclusion that the United States can seek this Court’s review of the judgment entered against it is in no way undercut by the Executive Branch’s motives for doing so. Its views on the constitutionality of DOMA do not alter the fact that this Court’s “decision will have real meaning” for the parties in this case, and for Ms. Windsor in particular. Chadha, 462 U.S. at 939. Accordingly, this Court should reach the merits.
House Republicans (via the Bipartisan Legal Advisory Group (BLAG)) argue in their brief that:
The House, speaking through its Bipartisan Legal Advisory Group, has standing to intervene to defend the constitutionality of DOMA Section 3 when, as here, the executive declines to do so. Indeed, without the House’s participation, it is hard to see how there is any case or controversy here at all. Both Ms. Windsor and the executive agree that DOMA is unconstitutional and that Ms. Windsor was entitled to a refund. And the lower courts granted them all the relief they requested. Only the House’s intervention provides the adverseness that Article III demands.
They write that all members of BLAG (including the Democrats) support BLAG’s Article III standing (though the Democrats don’t support defending DOMA:
While the Democratic Leader and the Democratic Whip have declined to support the position taken by the Group on the merits of DOMA Section 3’s constitutionality in this and other cases, they support the Group’s Article III standing.
More from BLAG:
But when the executive refuses to discharge that function, as it has here, the House clearly has standing to intervene and defend the constitutionality of legislation it has passed pursuant to its core lawmaking powers. This Court held as much in INS v. Chadha , 462 U.S. 919, 940 (1983). Amica’s efforts to distinguish Chadha, or otherwise suggest the House lacks standing, are unavailing.
BLAG points out that if the Court doesn’t think the Justice Department has standing, it could still resolve the merits of the case by granting BLAG’s petition:
Thus, if this Court agrees with the House’s argument in Section I that the House has Article III standing, and with its argument in Section II that the executive lacks appellate standing, the proper course is clear: This Court should dismiss the executive’s petition in No. 12-307, grant the House’s petition in No. 12-785, and use the latter petition as the vehicle to resolve the question of DOMA’s constitutionality.
All the other parties will file response briefs, due today. We will post the others as we get them, along with analysis…
Windsor brief on standing:
BLAG standing brief:
DOJ on jurisdiction: