Court attorney argues House GOP can’t defend DOMA

Vicki Jackson asserts the Supreme Court doesn’t have jurisdiction to consider DOMA (Washington Blade file photo by Michael Key)

A court-appointed attorney made her debut arguments Thursday on why House Republicans are unable to participate in pending litigation challenging the Defense of Marriage Act — while also asserting the Supreme Court lacks jurisdiction to hear the case.

In a 40-page legal brief filed on Thursday, Vicki Jackson, a Harvard law professor, lays out several reasons for why the House Bipartisan Legal Advisory Group — as well as the Justice Department — don’t have standing in the case.

Jackson provides four major reasons for why BLAG, a House panel that voted 3-2 along party lines to take up defense of DOMA after the Obama administration declined to defend the law, doesn’t have standing under Article III to defend DOMA.

They are 1) BLAG’s generalized claim of injury is insufficient; 2) one chamber alone lacks standing to assert an injury to Congress; 3) BLAG wasn’t authorized to represent the views of the U.S. House; and 4) legal precedent under the case of Chadha v. INS deprives BLAG of standing.

“Where one house declines to participate (as the Senate did here), Congress has not spoken, much less asserted any injury that this Court would be able to determine,” Jackson said. “It is, after all ‘a Congress’ that is ‘vested’ by the Constitution with ‘all legislative Powers herein granted.’”

But Jackson also argues that the Justice Department, which appealed the district court ruling against DOMA to the U.S. Second Circuit Court of Appeals, also doesn’t have standing in the case. Instead of appealing the case, Jackson says the Obama administration should have refunded plaintiff Edith Windsor the $363,000 she paid in estate taxes as a result of DOMA. As a consequence of invalidating this appeal, Jackson determines that the Supreme Court doesn’t have jurisdiction to consider whether DOMA is constitutional on a nation-wide basis.

Jackson offers four reasons: 1) legal precedent under Chadha v. INS doesn’t support the Supreme Court’s jurisdiction; 2) the Justice Department’s effort to obtain a decision with which it agrees presents no case or controversy; 3) even if Article III were found, “prudential standing considerations” confirm the court’s lack of jurisdiction; 4) a prevailing party is barred from being able to appeal a case.

“The United States, though nominally a defendant below and a petitioner here, is in fact in agreement with both Windsor and the court below,” Jackson writes. “Its only real interest here is in obtaining a precedent from a higher court. This interest, by the party ‘attempting to invoke the federal judicial power’ … is insufficient for Article III.”

Jackson was hired by the Supreme Court on Dec. 11 to argue before the court that neither BLAG nor the Obama administration are able to participate in litigation before the Supreme Court shortly after it announced they intended to review the constitutionality of DOMA and California’s Proposition 8.

Doug NeJaime, who’s gay and a law professor at Loyola Law School, said the brief is interesting not only because of arguments made over BLAG’s lack of standing, but because Jackson asserts the Supreme Court doesn’t have jurisdiction to review the case.

“It does seem very significant that the brief argues not only that BLAG does not have standing but also, more interestingly, that the Court does not have jurisdiction because the executive branch agrees with Windsor and the decision below,” NeJaime said. “If the Court does not have jurisdiction, that would mean we would not get a ruling on the merits of Section 3 of DOMA with nationwide applicability.”