TOday, she said, No.
In the filing, the professor, Vicki Jackson, argued:But note this:
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.In discussing why the House Bipartisan Legal Advisory Group — the 3-2 Republican majority of which voted to take up the defense of DOMA after the administration's 2011 decision to stop defending the law — does not have the authority, or standing, to be there, Jackson argued:
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.
The Supreme Court appointed Jackson to argue these positions because, presumably, the justices decided they wanted a view outside of the views presented before lower courts on these questions. By the terms of that appointment, then, it was expected that Jackson would be arguing these views.
This is their "out" on the DOMA case. Of course, then they leave DOMA in a mess, because it would be applicable in some circuits and not others. (At least, Clause 3, which is the only clause under challenge, and is the clause regarding federal recognition of marriage.)
3 comments:
A very strong, very conservative argument (on page 14, she quotes both Chief Justice Roberts and Justice Scalia, as well as Judge Easterbrook of the 7th Circuit and the University of Chicago. I'm surprised she didn't throw in a quote from Judge Robert Bork as well). It is also a very stinging indictment of BLAG, which I hope the media picks up.
What should happen is that the Court dismisses the petition. Then the District Court judgment stands. Since the 2d Circuit dismissed the appeal for lack of standing, the decision would not even apply throughout the 2d Circuit. So it would leave a bit of a mess.
However, it is a mess that Obama can quickly rectify by Executive Order, directing all agencies to ignore DOMA and treat all married couples equally. That would be entirely consistent with his inaugural address.
Thanks, Jim. However, isn't it a problem if you have a law that is overturned in some circuits and not others? How can the president overturn DOMA with executive order?
IT,
It is a temporary problem when a law is overturned in one circuit and not the others. The precedent does not have to be followed by other circuits, but they will look at it when a case comes before them, and unless the judges can find a very good reason not to, they will go the same way (maybe for slightly different grounds).
As to an executive order, Obama has already ordered the Justice Department not to fight challenges to DOMA in court. That's the reason for DoJ siding with Edie Windsor in the District Court. The next step is an order to all federal agencies not to apply DOMA, on the grounds that it is unconstitutional. I think he would have been on solid ground to issue such an order without a court decision, although that would certainly be open to challenge. But once one circuit has issued a decision, he is certainly well within his authority to accept it as sound, and not wait for the Supreme Court or a consensus of the Circuits.
The precedent is Reagan refusing to implement the special prosecutor act, although he later backed down under Congressional pressure (that was eventually decided by the Supreme Court in Morrison v Olsen, the Olsen being the same who is now counsel for the anti-Prop8 side in the California case).
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