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On Feb. 23, President Barack Obama officially divorced himself from the Defense of Marriage Act by directing the Justice Department to stop defending its constitutionality in the courts. That action in turn prompted a partisan split in the House Bipartisan Legal Advisory Group on March 9 over whether the House should step in and defend the act. The 3-2 vote to do so also included authority to hire outside counsel.
House Minority Leader Nancy Pelosi (D-Calif.) fired off not one but two letters to Speaker John Boehner (R-Ohio) in March and April inquiring into the details and propriety of the contract for outside counsel. House Administration Chairman Dan Lungren (R-Calif.) and House General Counsel Kerry Kircher signed the contract April 14 with the law firm King & Spalding. It called for payment of up to $500,000 in legal fees to the firm.
When that got into the media, the three Democratic members of the House Administration Committee fired off a letter to Boehner asking why they had not been informed of the contract. Moreover, they suggested the money could be better spent “creating jobs for the American people” instead of “defending discrimination.” (Boehner proposed to Pelosi in an April 18 letter to take the money out of DOJ’s budget.)
The publicity over the contract brought gay rights groups down on King & Spalding in protest. The firm withdrew from the contract April 25 rather than take more flak. That split led to another: The lawyer chosen to handle the defense for the firm, former Solicitor General Paul Clement, resigned, in his words “out of the firmly held belief that a representation should not be abandoned because the client’s legal position is extremely unpopular in certain quarters.” (He promptly landed with another firm, Bancroft, and a new contract.)
DOMA was signed into law by President Bill Clinton in 1996 after passing both chambers by substantial majorities. Its original sponsor and champion was then-Rep. Bob Barr (R-Ga.). Both Clinton and Barr later repudiated their actions on grounds it is not a federal question. (I agree.) The disputed section declares marriage is “only a legal union between one man and one woman as husband and wife” and prohibits the recognition of same-sex marriages for federal purposes.
Ordinarily, the solicitor general of the United States defends the constitutionality of acts of Congress in the courts. However, the failure of the Justice Department to do so can leave Congress out on a limb: It does not have the time or resources to defend all challenged legislative acts in the courts.
My initial reaction to the president’s decision was much the same as that of Rep. James Lankford (R-Okla.), who, in a March 1 floor speech, declared that “a president cannot pick and choose which parts of the law he prefers.” He is charged by the Constitution to “take care that the laws be faithfully executed.” The president and the Department of Justice, concluded Lankford, “cannot unilaterally decide not to enforce the Defense of Marriage Act.”
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.