Does United States V. Windsor (The DOMA Case) Open the Door to Congressional Standing Rights? Bradford Mank University of Cincinnati College of Law, [email protected]
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University of Cincinnati College of Law University of Cincinnati College of Law Scholarship and Publications Faculty Articles and Other Publications College of Law Faculty Scholarship 2015 Does United States v. Windsor (the DOMA Case) Open the Door to Congressional Standing Rights? Bradford Mank University of Cincinnati College of Law, [email protected] Follow this and additional works at: http://scholarship.law.uc.edu/fac_pubs Part of the Constitutional Law Commons, and the Supreme Court of the United States Commons Recommended Citation Mank, Bradford, "Does United States v. Windsor (the DOMA Case) Open the Door to Congressional Standing Rights?" (2015). Faculty Articles and Other Publications. Paper 288. http://scholarship.law.uc.edu/fac_pubs/288 This Article is brought to you for free and open access by the College of Law Faculty Scholarship at University of Cincinnati College of Law Scholarship and Publications. It has been accepted for inclusion in Faculty Articles and Other Publications by an authorized administrator of University of Cincinnati College of Law Scholarship and Publications. For more information, please contact [email protected]. ARTICLES DOES UNITED STATES V WINDSOR (THE DOMA CASE) OPEN THE DOOR TO CONGRESSIONAL STANDING RIGHTS? Bradford C. Mank* ABSTRACT In rare cases, a President refuses to defend a statute based upon a belief that the statute is unconstitutional. The law is unclear whether either House of Congress * James Helmer, Jr. Professor of Law, University of Cincinnati College of Law, P.O. Box 210040, University of Cincinnati, Cincinnati, Ohio 45221-0040, Telephone 513-556-0094, Fax 513-556-1236, e-mail: [email protected]. I thank Michael Solimine for his comments. All errors or omissions are my responsibility. This article is one of a series of explorations of modem standing doctrines. The other pieces are: (1) Should States Have GreaterStanding Rights Than Ordinary Citizens?: Massachusetts v. EPA's New Standing Test for States, 49 WM. & MARY L. REv. 1701 (2008); (2) Standing and Future Generations: Does Massachusetts v. EPA Open Standingfor the Unborn?, 34 COLUM. J. ENVL. L. 1 (2009); (3) Standing and Statistical Persons: A Risk-Based Approach to Standing, 36 ECOLOGY L.Q. 665 (2009); (4) Summers v. Earth Island Institute Rejects ProbabilisticStanding, but a "Realistic Threat" of Harm Is a Better Standing Test, 40 ENVTL. L. 89 (2010); (5) Revisiting the Lyons Den: Summers v. Earth Island Institute's Misuse of Lyons's "Realistic Threat" of Harm Standing Test, 42 ARiz. ST. L.J. 837 (2010); (6) Summers v. Earth Island Institute: Its Implicationsfor Future Standing Decisions, 40 ENVTL. L. REP. NEWS & ANALYSIS 10958 (2010); (7) Standing in Monsanto Co. v. Geertson Seed Farms: Using Economic Injury as a Basis for Standing Whdn Environmental Harm Is Difficult to Prove, 115 PENN ST. L. REv. 307 (2010); (8) Informational Standing After Summers, 39 B.C. ENVTL. AFF. L. REv. 1 (2012); (9) Reading the Standing Tea Leaves in American Electric Power Co. v. Connecticut, 46 U. RICH. L. REV. 543(2012); (10) Judge Posner's "Practical" Theory of Standing: Closer to Justice Breyer's Approach to Standing Than Justice Scalia 's, 50 Hous. L. REv. 71 (2012); (11) Standing for Private Parties in Global Warming Cases: Traceable Standing Causation Does Not Require Proximate Causation, 2012 MICH. ST. L. REv. 869 (2012); (12) Is Prudential StandingJurisdictional?, 64 CASE W. RES. L. REv. 413 (2013); (13) Clapper v. Amnesty International: Two or Three Competing Philosophies of Standing Law?, 81 TENN. L. REv. 211 (2014). ISSN 0041-9915 (print) 1942-8405 (online) 9 DOI 10.5195/lawreview.2014.318 http://lawreview.law.pitt.edu UNIVERSITY OF PITTSBURGH LAW REVIEW PAGE 1 2 I VOL. 76 I 2014 has Article III standing to defend a statute that the President refuses to defend. In United States v. Windsor, the Supreme Court in 2013 addressed the constitutionality of the Defense of Marriage Act ("DOMA"). The Obama Administration took the middle position of declining to defend DOMA, but still enforcing it, despite its view that the statute was unconstitutional to assist federal courts in reviewing the constitutionality of the statute. It was unclear whether an appeal was proper in the case once a district court held the statute was unconstitutional, and the Executive Branch essentially agreed with that decision. Applying both prudential standing principles and mandatory Article III standing rules, Justice Kennedy, writing for the majority, recognized that the Executive Branch was an appropriate party on appeal because it continued to enforce the statute. Additionally, the majority acknowledged that briefs filed by House of Representatives leadership supporting the constitutionality of DOMA supplied the necessary adverseness in the case given the Executive's view that DOMA was unconstitutional. The majority did not fully resolve the thorny issue of congressional standing in cases where a President refuses to enforce a federal statute. Justice Scalia, in his dissent, emphasized the almost exclusive role of the Executive Branch in defending federal laws under Article II, squarely rejected congressional standing, and argued that no party had standing to appeal in Windsor because the Executive agreed with the district court's judgment holding Section 3 unconstitutional. By contrast, Justice Alito, in his dissent, would have expressly recognized the authority and standing of the leaders of either House to defend any federal statute that the President does not defend. Yet by acknowledging that congressional participation could supply the necessary adverseness to litigate a case when the Executive Branch agrees with the challenger that a statute is unconstitutional, the Court's opinion in Windsor likely will pave the way for increased congressional participation in unusual cases where the Executive Branch believes a statute is unconstitutional, but at least one House of Congress wishes to defend the statute's constitutionality. ISSN 0041-9915 (print) 1942-8405 (online) * DOI 10.5195/lawreview.2014.318 http://lawreview.law.pitt.edu WINDSOR & CONGRESSIONAL STANDING PAGE 1 3 Table of Contents Introduction ...................................................................................................... 4 I. Introduction to Constitutional and Prudential Standing ............................... 9 A. Constitutional Article III Standing ...................................................... 9 B. The Uncertainties of Prudential Standing .............................................. 11 C. Article III Standing Requirements May Not Be Waived, But Prudential Standing May Be Waived ................................................. 15 II. Why the Obama Administration Continued to Enforce DOMA After It R efused to D efend It ................................................................................... 17 A. The Debate Over Whether the Executive Branch May Refuse to Defend the Constitutionality of Federal Statutes .............................. 17 B. The Complicated Issue of Legislative Standing ............................... 22 C. Attorney General Holder's 2011 DOMA Letter to Speaker B oehner ............................................................................................ 30 III. Windsor in the Lower Courts ..................................................................... 34 A. A Brief History of Section 3 of DOMA ............................................ 34 B. The Windsor Litigation in the Lower Courts ................................... 35 IV. Justice Kennedy's Majority Opinion: Making Adverseness a Prudential Standing Question and Using BLAG's Intervention as an Additional Justification for Adverseness ................................................... 38 V. Justice Scalia's Dissenting Opinion: Only the Executive Branch May Represent the United States and No Article III Standing When the Obama Administration Really Sides with Windsor .................................... 45 VI. Justice Alito's Dissenting Opinion: Only the House of Representatives H ad Standing in Windsor .......................................................................... 52 A. Justice Alito's Argument for Congressional Standing by One House When the President Refuses to Defend a Statute ................... 52 B. Justice Scalia's Criticism of Justice Alito's Argument ..................... 56 C onclu sion .............................................................................................................. 57 ISSN 0041-9915 (print) 1942-8405 (online) e DOI 10.5195/lawreview.2014.318 http://lawreview.law.pitt.edu UNIVERSITY OF PITTSBURGH LAW REVIEW PAGE I 4 I VOL. 76 1 2014 INTRODUCTION Article II of the Constitution requires that the President "take Care that the Laws be faithfully executed."' In accordance with this provision, the Executive Branch, through the Department of Justice (the "DOJ"), routinely defends federal laws whose constitutionality is challenged, 2 but occasionally refuses to do so.' During various presidential administrations, the DOJ has taken different positions on its duty to defend federal laws. In 1981, the DOJ took the position that "[t]he Department appropriately refuses to defend an act of Congress only in the rare case when the statute either infringes on the constitutional power of the Executive or when prior precedent overwhelmingly indicates that the statute is invalid."4 The DOJ subsequently took a broader view of presidential discretion to decline to defend a federal statute in 1994, especially in cases where a