As it turns out, Lankford and I were wrong on two counts. First, the administration indicates it will continue to enforce DOMA until it is repealed or overturned in the courts. And second, federal law specifically provides for the contingency of an attorney general deciding against defending a law he determines is unconstitutional.
That law (28 USC 530d), enacted in 2002, requires the attorney general to “submit to the Congress a report on any instance” in which the attorney general either decides to refrain from enforcing a law on grounds it is unconstitutional or to contest its constitutionality in any judicial proceeding. Moreover, a 1999 statute (2 USC 130f) requires the attorney general to notify the general counsel of the House when such a determination is made and authorizes House counsel “including any counsel specially retained by the Office of General Counsel ... to enter an appearance in any proceeding before any court of the United States.” The existence of these provisions is a manifestation of the increasing frequency in which legal conflicts between the branches cry out for a remedy that protects the interests of both.
During the 1970s, there were several embarrassing incidents in which Congress was being represented in the courts, sometimes even without the knowledge of the Speaker. That led in 1980 to a House rule requiring that the Speaker be notified before House counsel intervenes in any court proceeding. (Republicans lost on a substitute rule that would have required a House vote in each instance.)
When that arrangement still brought partisan friction and embarrassment, the Bipartisan Legal Advisory Group was created in 1992. It is composed of the Speaker and Majority and Minority Leaders and Whips. A majority vote is required to authorize legal action on behalf of the House. (The Senate equivalent requires a two-thirds vote or approval by the full Senate.)
While the existence of the advisory group does not end partisan squabbling, it at least ensures that both parties usually know what’s happening before it appears in the newspapers. It’s still not a marriage made in heaven; but then, we’re talking about Congress here.
Don Wolfensberger is director of the Congress Project at the Woodrow Wilson International Center for Scholars and former staff director of the House Rules Committee.