Supreme Court-Appointed Lawyer Argues DOMA Case Cannot Be Heard

[DonViejo]

Harvard law professor argues the Obama administration's decision to stop defending the law in 2011 means the Supreme Court can't hear the case. House Republican leaders cannot take the administration's place, the lawyer also argues.

posted on January 24, 2013 at 8:24pm EST
Chris Geidner
BuzzFeed Staff


WASHINGTON — The Supreme Court does not have the jurisdiction to hear the challenge to the Defense of Marriage Act that it accepted in December 2012 and the House Republicans who are defending the law do not have constitutional authority to be there, a Harvard Law School professor appointed by the Supreme Court to present those positions argued Thursday evening.

Because President Obama and his administration stopped defending DOMA in court challenges in February 2011, the court raised the question of whether there remains an actual case before the court in Edith Windsor's challenge to the 1996 law.
In the filing, the professor, Vicki Jackson, argued:

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:

-snip-

http://www.buzzfeed.com/chrisgeidner/supreme-court-appointed-lawyer-argues-doma-case-ca

[bemildred]

1. The USSC has already demonstrated on numerous occasions that it has jurisdiction over anything.

Presidential elections, campaign finance laws, corporations are persons ..

Once you politicize it, that's what you get, and it's always been politicized, right from the beginning.

[elleng]

2. Good.

Standing is the legally protectible stake or interest that an individual has in a dispute that entitles him to bring the controversy before the court to obtain judicial relief.

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.

Its clear the Court recognized this as a serious and problematic issue, which is why they appointed Jackson to address it.

[davidpdx]

3. Congress does not have standing in the case

Then again, it wouldn't surprise me if the Corporate Court figured out a way to rule against it. I just finished reading Vincent Bugloisi's book about the 2000 election. The shit they pulled was unbelievable.

BTW it's worth mentioning the link in the OP leads to a page with the full brief.

[Jersey Devil]

4. It shouldn't matter that the Obama admin is not defending DOMA

The argument by the court appointed attorney seems to be that if a law is not enforced by a particular administration it cannot be challenged, which seems to me to be another way of saying that even if a law is on the books, when it is not enforced there is no harm to anyone and therefore no standing to challenge it. However, who is to say what the next administration would do? What if the next admin decides to defend DOMA and enforce it? Shouldn't that be enough to confer standing on anyone who wants to challenge it now? Must they wait, perhaps years, with uncertainty?