DOMA: Amicus Art. III brief filed
on Jan 24, 2013 at 7:55 pm
Harvard law professor Vicki C. Jackson on Thursday evening filed her amicus brief in the Defense of Marriage Act case, arguing that the Supreme Court has no jurisdiction to hear the Obama administration case against that law, and that the Republican leaders of the House of Representatives have no legal right to defend the Act. She was appointed by the Court to make those arguments in the case of United States v. Windsor (12-307). The brief can be read here. The blog will discuss the contents of the brief later this evening.
Here is the summary of the argument:
“I. BLAG lacks Article III standing. Congress itself would lack standing to defend the constitutionality of laws that do not concern its own specific prerogatives; the interest here in assuring that the law is enforced is a generalized one, insufficient for Article III injury. It is the Executive Branch, not Congress, that is obligated to “take Care” that laws are enforced. Moreover, any injury that might arise from nondefense of a law would be to the whole Congress, which one House cannot alone assert. In INS v. Chadha, 462 U.S. 919 (1983), a special legislative prerogative under the Line Item Veto Act was asserted and both houses intervened. Chadha should not be extended here, especially given Raines v Byrd, 521 U.S. 811 (1997). Finally, BLAG lacked authority to speak for the House at relevant times.
II. The United States’ agreement with the courts below (and with Windsor) deprives this Court of jurisdiction, because the United States suffers no injury sufficient to invoke Article III jurisdiction. An interest in obtaining a ruling from a higher court does not create standing. Even if the United States’ claim of “aggrievement” were sufficient for Article III, prudential concerns involving the Executive Branch’s assertion of the generalized interests of others should also preclude this Court from recognizing its standing. The jurisdictional statutes, which have changed since Chadha, reinforce the need to respect prudential limitations, if not in the court of appeals at least in this Court. Finally, the United States is a prevailing party, not within the exception of Camreta v. Greene, 131 S. Ct. 2020 (2011), and thus cannot appeal.”
At one point in the brief, it quotes from a 1993 law review article by John G. Roberts, Jr. — now the Chief Justice – on the subject “Article III Limits on Statutory Standing.” It is discussed on page 14 of the brief.