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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

________________________________________

MAJ SHANNON L. MCLAUGHLIN, et al. )

)

Plaintiffs, ))

v. ) No. 1:11-cv-11905-RGS

)

LEON E. PANETTA, in his official capacity as )

Secretary of Defense; et al., )

)

Defendants. )

________________________________________ )

PLAINTIFFS' OPPOSITION TO THE MOTION OF THE BIPARTISAN LEGAL

ADVISORY GROUP OF THE U.S. HOUSE OF REPRESENTATIVES FOR LEAVE TO

INTERVENE

Case 1:11-cv-11905-RGS Document 34 Filed 05/09/12 Page 1 of 53

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INTRODUCTION ..........................................................................................................1

I. NEITHER THE HOUSE, NOR BLAG, AUTHORIZED INTERVENTION.........5

A. The House Has Not Authorized Intervention As A Party

Defendant.....................................................................................................5

B. BLAG Has Not Authorized Intervention In This Case..............................11

II. INTERVENTION IS PRECLUDED BY SEPARATION OF POWERSPRINCIPLES ........................................................................................................12A. Intervention Is Precluded By The Take Care Clause.................................12

B. Intervention Is Precluded By Title 28, Which Implements The

Take Case Clause ......................................................................................16C. Intervention Is Precluded By The Equal Access To Justice Act ...............18

D. The Take Care Clause Is Violated By Authorizing Legislative

Officers To Intervene To Enforce DOMA.................................................20

E. Intervention Would Violate The Appointments, Ineligibility And

Incompatibility Clauses .............................................................................25

III. BLAG LACKS STANDING TO INTERVENE ...................................................27

A. Intervenors Must Have Standing ...............................................................27

B. BLAG Lacks Standing...............................................................................29

C. The Chadha Decision Does Not Support Intervention..............................36

IV. INTERVENTION IS PRECLUDED BY RULE 24..............................................40

A. Intervention Is Not Allowed As Of Right..................................................401. No Statute Authorizes Intervention ...............................................402. BLAG Has No Interest That Would Authorize

Intervention As Of Right ...............................................................42

B. Permissive Intervention Should Be Rejected.............................................43

CONCLUSION ........................................................................................................44


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TABLE OF AUTHORITIES

CASES

Allen v. Wright, 468 U.S. 737 (1984) ........................................................................29, 30

Ardestani v. INS, 502 U.S. 129, (1991) ...........................................................................19

Arizonans for Official English v. Arizona, 520 U.S. 43 (1997).......................................28

Barnes . Kline, 759 F.2d 21 (D.C. Cir. 1985) ........................30, 31, 34, 35, 36, 38, 41, 42

Bender v. Williamsport Area Sch. Dist., 475 U.S. 534 (1986) ..........................................5

Bond v. United States, 131 S.Ct. 2355 (2011) .....................................................23, 38, 39

Bowsher v. Synar, 478 U.S. 714 (1986) ..................................................13, 22, 23, 24, 30

Buckley v. Valeo, 424 U.S. 1 (1976), ......................................................20, 23, 25, 26, 27

Building and Constr. Trades Dept., AFL-CIO v. Reich,

40 F.3d 1275 (D.C. Cir. 1994)......................................................................................... 28

Bush v. Viterna, 740 F.2d 350 (5th Cir. 1984)) .................................................................1

Campbell v. Clinton, 52 F. Supp.2d 34 (D. D. C. 1999)..................................................34

Camreta v. Greene, 131 S.Ct. 2020 (2011) ......................................................................29

Chadha v. INS, 634 F.2d 408 (9th Cir. 1981) .................................................................36

Cheng Fan Kwok v. INS, 392 U.S. 206 (1968) ...............................................................37

Chenoweth v. Clinton, 181 F.3d 112 (D.C. Cir. 1999) .............................................31, 32

Chiles v. Thornburgh, 865 F.2d 1197 (11th Cir. 1989)..............................................28, 29

Citizens Awareness Network, Inc. v. United States, 391 F.3d 338..................................42

City of Colorado Springs v. Climax Molybdenum Co.,

587 F.3d 1017 (10th Cir. 2009)........................................................................................28

Clinton v. City of New York, 524 U.S. 417 (1998) ..................................................31, 32

The Confiscation Cases, 74 U.S. 454 (1868) .............................................................18, 41

Costa v. Marotta, Gund, Budd & Dzerza, Inc.,

281 Fed. Appx. 5 (1st Cir. 2008) .....................................................................................44


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Crocket v. Reagan, 720 F.2d 1355 (D.D.C. 1983) ..........................................................34

Crosby Steam Gage & Valve Co. v. Manning, Maxwell & Moore, Inc.,51 F. Supp. 972 (D. Mass. 1943)........................................................................................1

Daggett v. Comm. on Govtl. Ethics andElec. Prac., 172 F.3d 104 (1st Cir. 1999) .........................................................................27

Diamond v. Charles, 476 U.S. 54 (1986) ...................................................................27, 28

Donaldson v. United States, 400 U.S. 517 (1971) ...........................................................42

FEC v. NRA Political Victory Fund, 513 U.S. 88 (1994)................................................18

Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 130 S. Ct.

3138 (2010) ....................................................................................................13, 21, 22, 23

Freytag v. Comm'r. of Internal Revenue, 501 U.S. 868 (1991) .................................14, 27

Gill v. OPM, 699 F. Supp. 2d 374 (D. Mass. 2010)...........................................................3

Gojack v. United States, 384 U.S. 702 (1966) .........................................................8, 9, 12

Golinski v. OPM, 2012 WL 569685 (N.D. Cal. 2012) ......................................................3

Hein v. Freedom from Religion Found., 551 U.S. 587 (2011) ........................................30

In re Balas, 449 B.R. 567 (C.D. Cal. 2011)........................................................................3

In re Golinski, 587 F.3d 901 (9th Cir. 1999)......................................................................3

In re Levinson, 560 F.3d 1145 (9th Cir. 2009)...................................................................3

In re Levinson, 587 F.3d 925 (9th Cir. 2009).....................................................................3

Indep. Fed. Of Flight Attendants v. Zipes, 491 U.S. 754 (1989) .......................................1

INS v. Chadha, 462 U.S. 919 (1983)........................................................3, 4, 5, 36, 37, 38

INS v. Jean, 496 U.S. 154 (1990)...............................................................................18, 19

Int'l Paper Co. v. Inhabitants of Jay, Maine, 887 F.2d 338 (1st Cir. 1989)........................2

Kennedy v. Sampson, 511 F.2d 430 (D.C. Cir. ( 1974) ..................................................30


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Kilbourn v. Thompson, 103 U.S. 168 (1880) ..................................................................14

Kucinich v. Obama, 2011 WL 5005303 (D.D.C. 2011)...................................................34

Lewis v. United States, 144 F.3d 1220 (9th Cir. 1998)....................................................19

Lovett v. United States, 66 F. Supp. 142 (Ct. Cl. 1942) ..................................................37

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)......................................................29

Managual v. Rotger-Sabat, 317 F.3d 45 (1st Cir. 2003) ..................................................27

Mass. Food Ass'n v. Mass. Alcoholic Bev. Ctrl. Comm.,

197 F.3d 560 (1st Cir. 1999) ..............................................................................................2

Massachusetts v. Mellon, 262 U.S. 447 (1923)..........................................................35, 36

Massachusetts v. United States Dep't of HHS, 698 F. Supp. 2d 234

(D. Mass. 2010) ............................................................................................................3,10

Mausolf v. Babbitt, 85 F.3d 1295 (8th Cir. 1996) ...........................................................28

Monsanto Co. v. Geertsen Seed Farms, 130 S. Ct. 2743 (2010)......................................28

Moore v. House of Representatives, 733 F.2d 946 (D.C . Cir. 1984)........................34, 35

Myers v. United States, 272 U.S. 52 (1926)...............................................................12, 24

New Hampshire Right to Life PAC v. Gardner,

99 F.3ed 8 (1st Cir. 1996)...........................................................................................29, 32

Nevada Comm. on Ethics v. Carrigan, 131 S. Ct 2343 (2011) .................................33, 34

Northern Pipeline Const. Co. v. Marathon Pipeline Co.,458 U.S. 50 (1982) ............................................................................................................5

Printz v. United States, 521 U.S. 898 (1997) ......................................................12, 13, 23

Quinn v. United States, 349 U.S. 155 (1955)...................................................................13

Raines v. Byrd, 521 U.S. 811 (1997) .........................................5, 6, 27, 29, 30, 31, 38, 39

Rhode Island v. U.S. E.P.A., 378 F.3d 19 (1st Cir. 2004) .................................................2

Ruthardt v. United States, 303 F.3d 375 (1st Cir. 2002)..................................................43

Salazar v. Buono, 130 S. Ct. 1803 (2010)........................................................................15


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Sea Shore Corp. v. Sullivan, 158 F.3d 51 (1st Cir. 1998)..........................................28, 29

Senate Select Comm. v. Nixon, 498 F.2d 725 (D.C. Cir. 1974) ........................................6

South Carolina v. North Carolina, 130 S. Ct. 854 (2010) ..............................................1, 2

Springer v. Philippine Islands, 277 U.S. 189 (1928)........................................................13

Unger v. Arafat, 634 F.3d 46 (1st Cir. 2011) ............................................................41, 42

United States v. AT&T, 551 F.2d 384 (D.C. Cir. 1976) ....................................................6

United States v. Ballin, 144 U.S. 1 (1892) .....................................................................5, 6

United States v. Clintwood Elkhorn Min. Co., 553 U.S. 1 (2008).............................15, 16

United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33 (1952)...............................18

United States v. Lovett, 328 U.S. 303 (1946) ..........................................................3, 4, 37

United States v. Mass. Maritime Acad., 76 F.R.D. 595

(D. Mass. 1977) .................................................................................................................1

United States v. Munoz-Flores, 495 U.S. 385 (1990) ......................................................25

United States v. Nixon, 418 U.S. 683 (1974).............................................................13, 15

United States v. Providence Journal Co., 485 U.S. 693(1988) ...................................................................................................................16, 17, 41

United States v. Verdugo-Urquidez, 494 U.S. 259 (1990)...............................................15

Valley Forge Christian College v. Am. United for Sep.

Of Church and State, Inc., 454 U.S. 464 (1982) ............................................27, 28, 29, 30

Valley County, Idaho v. U.S. Dep't. of Ag.,

2012 WL 5060000 (D. Idaho 2012) ...........................................................................28, 29

Villas at Parkside Partners v. City of Farmers Branch,245 F.R.D. 551 (N.D. Tex. 2007).......................................................................................1

Walker v. Cheney, 230 F. Supp. 2d 51 (D.D.C. 2002)...........................................6, 33, 34

Warth v. Seldin, 422 U.S. 490 (1975) ..............................................................................30

Watkins v. United States, 354 U.S. 178 (1957) .............................................................8, 9


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Will v. Michigan Dept. of State Police, 491 U.S. 58 (1989)............................................18

Windsor v. United States, 797 F. Supp.2d 320 (S.D.N.Y. 2011)` ...................................41

STATUTES

15 U.S.C. 7211(c)(4) & (6) .........................................................................................21

15 U.S.C. 7211(f)(1) ......................................................................................................21

28 U.S.C. 516 ..........................................................................................................16, 40

28 U.S.C. 517 ................................................................................................................16

28 U.S.C. 518(a)......................................................................................................16, 17

28 U.S.C. 519 ..........................................................................................................16, 41

28 U.S.C. 530D(B)(ii) .....................................................................................................7

28 U.S.C. 530D(b)(2)................................................................................................7, 41

28 U.S.C. 2412(d)(1)(A) .........................................................................................18, 19

MISCELLANEOUS

Appropriations Limitation for Rules Vetoed by Congress,

4B Op. O.L.C. 731 (1980)................................................................................................14

Amicus Br. of Members of the House of Representatives,

Massachusetts v. United States Dep't of HHS,Nos. 10-2204, 10-2207, 10-2214 (1st Cir. filed Nov. 3, 2011) .......................................10

Fed. R. Civ. Proc. 24(a)(1) ..............................................................................................40

Fed. R. Civ. Proc. 24(a)(2) ..............................................................................................42

House Dems question funding for GOP's defense of DOMA, The Hill

March 27, 2012, available at http://thehill.com/homenews/house/218445-house-dems-question-

ongoing-funding-for-gops-defense-of-doma ...................................................................22

The Legal Significance of Presidential Signing Statements,

17 Op. O.L.C. 131 (1993).................................................................................................24

Presidential Authority to Decline to Execute Unconstitutional

Statutes, 18 Op. O.L.C. 199 (1994)..............................................................................3, 14


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Presidential Signing Statements, 2007 WL 5964723 (2007) ...........................................15

The Potential Budgetary Impact of Recognizing Same-Sex Marriages,June 21, 2004, available at http://www.cbo.gov/publication/15740 ................................10

Spending Spree, Hotline 2012 WL 3763681 (Feb. 21, 2012)..........................................10

Statement on Signing the Consolidated Appropriations Act, 2012

(Dec. 23, 2011)...................................................................................................................3

Statement on Signing the National Defense Authorization Act

for Fiscal Year 2012 (Dec. 30, 2011).................................................................................3

U.S. Constitution, Art. I 6 ............................................................................................27

U.S. Constitution, Art. II 2 ............................................................................................26

U.S. House of Representatives Rule II.8............................................................................8

U.S. House of Representatives Rule XI, cl. 2(m)(3)(C).....................................................7

2 Jonathan Elliot, Debates on the Federal Constitution (1836)..................................13, 14

4 Dreshler's Precedents of the United States House of Representatives,

Ch. 15, 22 (1994).............................................................................................................7


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INTRODUCTION

The Plaintiffs have no objection to the House of Representatives or its Members

advancing arguments in support of the constitutionality of the Defense of Marriage Act

("DOMA") as amicus curiae, but they strongly oppose intervention by the House, its

committees, members or agents as a party in this case. (It is unclear whether the party seeking

intervention is the House as a whole, the Bipartisan Legal Advisory Group ("BLAG"), the

Speaker of the House or the General Counsel of the House.) Nearly 70 years ago, Judge

Wyzanski observed in rejecting a motion by the United States to intervene as a party defendant --

just as the intervenor seeks to do here -- by explaining:

Additional parties always take additional time. Even if they have no witnesses of

their own, they are the source of additional questions, objections, briefs,

arguments, motions and the like which tend to make the proceeding a

Donnybrook Fair. Where he presents no new questions, a third party can

contribute usually most effectively and always most expeditiously by a briefamicus curiae and not by intervention.

Crosby Steam Gage & Valve Co. v. Manning, Maxwell & Moore, Inc., 51 F. Supp. 972, 973 (D.

Mass. 1943); see also Villas at Parkside Partners v. City of Farmers Branch, 245 F.R.D. 551, 555

(N.D. Tex. 2007) (denying intervention to a would-be intervenor-defendant because it could

express its views as amicus curiae); United States v. Mass. Maritime Acad., 76 F.R.D. 595, 598

(D. Mass. 1977) (Murray, J.) (same). Chief Justice Roberts has made clear this sentiment holds

as true today as it did in Judge Wyzanski's time. South Carolina v. North Carolina, 130 S. Ct.

854, 875 (2010) (Roberts, C.J., concurring and dissenting in part) (quoting the last sentence of

the block quote, as repeated in Bush v. Viterna, 740 F.2d 350, 359 (5th Cir. 1984)); see also

Indep. Fed. of Flight Attendants v. Zipes, 491 U.S. 754, 779 n.8 (1989) (Marshall, J., dissenting)

("In most instances," a person who seeks to intervene to become a defendant "could adequately

express their views by proceeding as amicus curiae."). "Courts often treat amicus participation


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as an alternative to intervention." South Carolina, 130 S. Ct. at 875 (Roberts, C.J., concurring

and dissenting in part) (citing 7C C. Wright, A. Miller & M. Kane, Federal Practice & Procedure

1913 (2007)). That would seem appropriate here, as BLAG "seeks to intervene for a limited

purpose" of "presenting the issue of the constitutionality of DOMA Section3." (Ex. 33 at 12.)1

The First Circuit specifically noted that amicus curiae status is sufficient when "the

government merely wants to make its views known." Int'l Paper Co. v. Inhabitants of Jay,

Maine, 887 F.2d 338, 347 (1st Cir. 1989). It even has explained that "a court is usually delighted

to hear additional arguments from able amici that will help the court toward right answers," and

that amici can seek additional briefing and oral argument time when they want to be heard.

Mass. Food Ass'n v. Mass. Alcoholic Bev. Ctrl. Comm., 197 F.3d 560, 567 (1st Cir. 1999).

Consequently, the First Circuit has found it "unsurprising" that a putative intervenor-defendant

"has been unable to identify any cognizable harm that it stands to suffer at this stage of

proceedings by virtue of participating as an amicus rather than as an intervenor." Rhode Island

v. U.S. E.P.A., 378 F.3d 19, 28 (1st Cir. 2004).

Allowing BLAG to participate as an amicus eliminates any need for BLAG to intervene

as a party. Unlike an intervenor-plaintiff, BLAG (or whomever the intervenor may be) does not

have any new claims of its own -- it presents no new questions. The legal questions in this case

have been framed by the Plaintiffs in their Complaint -- whether DOMA and the definitional

1 It is unclear how BLAG views this "limited purpose." It cites authority for the

proposition that a less stringent test for intervention is applied when the "movant seeks

intervention for a very limited purpose rather than full participation in the litigation" (Ex. 33 at

12 (internal citation omitted), but in prior litigation in which it has intervened it has propounded

burdensome discovery and taken depositions.


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statutes are constitutional -- and BLAG merely seeks to become an intervenor-defendant so that

it can address those questions. The constitutional defense of DOMA is essentially a legal issue

and one BLAG can adequately address by submitting briefs as an amicus curiae.

In addition, the United States -- as appropriately represented in this case by the Executive

Branch -- agrees DOMA is unconstitutional and will not defend this case; nevertheless it will

appeal a finding of DOMA's unconstitutionality by this Court so that higher courts can consider

the issue.2 Consequently, the intervenor does not need to become a party to ensure the case is

appealed and it can brief issues as amicus curiae before higher courts as well. This approach of

2 Although the Executive Branch will not defend DOMA in the courts, it will continue to

enforce DOMA administratively until its constitutionality is resolved by higher courts. Plaintiffsobject that the Executive Branch would continue to enforce a law it believes is unconstitutionaland that has been held unconstitutional by district courts. Golinski v. OPM, 2012 WL 569685

(N.D. Cal. Feb. 22, 2012) (White, J.) (DOMA found unconstitutional); Massachusetts v. United

States Dep't of HHS, 698 F. Supp. 2d 234 (D. Mass. 2010) (Tauro, J.) (same); Gill v. OPM, 699

F. Supp. 2d 374 (D. Mass. 2010) (Tauro, J.) (same); In re Balas, 449 B.R. 567 (C.D. Cal. 2011)

(same); see also In re Golinski, 587 F.3d 901 (9th Cir. 1999) (Kozinski, C.J.) (construing DOMA

to avoid constitutional question); In re Levinson, 587 F.3d 925 (9th Cir. 2009) (Reinhardt, J.)

(DOMA found unconstitutional); In re Levinson, 560 F.3d 1145 (9th Cir. 2009) (Reinhardt, J.)

(same). U.S. Attorneys General have advised Presidents that they have no obligation to providesuch provisional enforcement of unconstitutional laws. Presidential Authority to Decline to

Execute Unconstitutional Statutes, 18 Op. O.L.C. 199, 204 (1994) ["Dellinger Opinion"] ("[T]he

President's constitutional duty does not require him to execute unconstitutional statutes; nor does

it require him to execute them provisionally, against the day they are declared unconstitutional

by the courts.") (quoting The Attorney General's Duty to Defend and Enforce Constitutionally

Objectionable Legislation, 4A Op. O.L.C. 55, 59 (1980) ["Civiletti Opinion"]). And "every

President since Eisenhower has issued signing statements in which he stated that he would refuseto execute unconstitutional provisions." Id. at 202. That includes President Obama, who hasrefused to enforce statutes he believed were unconstitutional without waiting for a court to tell

him so. See, e.g., Statement on Signing the Consolidated Appropriations Act, 2012 (Dec. 23, 2011)

(refusing to enforce parts of the Act because they are unconstitutional); Statement on Signing the

National Defense Authorization Act for Fiscal Year 2012 (Dec. 30, 2011) (same). Nevertheless, the

Executive Branch's decision to enforce DOMA, even if this Court holds DOMA

unconstitutional, ensures a live case of controversy will exist for Article III purposes on appeal.


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having the United States appeal when it agrees a statute is unconstitutional, so that amici can

defend the statute before a higher court has been followed in the past. INS v. Chadha, 462 U.S.

919, 930-31 (1983); United States v. Lovett, 328 U.S. 303, 306-307 (1946).

The difference between a Legislative Branch actor participating as amicus curiae and

becoming an actual party through intervention is one of substantial constitutional significance.

Neither the House nor its constituent parts has standing under Article III to become a party, and

intervention by either would raise substantial separation of powers issues and violate the Take

Care Clause, Appointments Clause and Emoluments Clause of the Constitution. Indeed, the

putative intervenor's own lead counsel, Paul Clement, is keenly aware that this sort of judicial

action by members of the Legislative Branch is unconstitutional because he argued against it in

representing the Executive Branch as Deputy Attorney General. (See Br. of Vice President to

Dismiss, Walker v. Cheney, 230 F. Supp. 2d 51 (D.D.C. 2002) (Ex. A); Reply Br. of Vice

President in Walker (Ex. B).) Aside from these substantial constitutional issues, it does not

appear that either the House or BLAG has even authorized intervention in this suit.

If all that the intervenor (whoever that is) sought to do was present arguments in favor of

the constitutionality of DOMA, then amicus curiae status is sufficient. Plaintiffs in this case

sued the Executive Branch (not the House). The Constitution does not provide members of the

Legislative or Judicial Branches with the right to intervene in a lawsuit and assume the

"executive power" of defending the constitutionality of a law simply because they believe the

Executive Branch is not exercising its authority appropriately. Yet, that is precisely what BLAG

acknowledges it is doing, claiming that the Executive Branch "abandons, ""abdicates" and "has

wholly forsaken . . . its constitutional responsibility" and that BLAG " wishes" to "accept that

responsibility" on behalf of the "Legislative Branch." (Ex. 33 at 10, 19, 21.) The suggestion that


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one branch of government can "abdicate" its responsibilities and have those responsibilities

"accepted" by another branch defies any notion of separation of powers. See, e.g., Northern

Pipeline Const. Co. v. Marathon Pipeline Co., 458 U.S. 50, 83 (1982) ("The constitutional

system of checks and balances is designed to guard against 'encroachment or aggrandizement' by

Congress at the expense of the other branches of government."). The Plaintiffs have conferred

with the Executive Branch -- the only branch authorized to represent the United States in this

litigation -- and they should not be distracted from their service to the United States military by

now being forced to defend against motions like these, discovery demands and whatever tactics

members of the Legislative Branch may take at trial.

I. NEITHER THE HOUSE, NOR BLAG, AUTHORIZED INTERVENTION

The Court does not need to reach the constitutional issues in this case to deny

intervention to the House or BLAG because, whether or not they have the constitutional

authority to intervene, they have not exercised that right.

A. The House Has Not Authorized Intervention As A Party Defendant

The House as a whole has not taken any vote to intervene in this suit, which is the

appropriate means for the House to seek intervention. See, e.g., INS v. Chadha, 462 U.S. 919,

930 n.5 (1983) (full House voted to intervene). The Supreme Court also has indicated that

collective action is essential. See, e.g., Raines v. Byrd, 521 U.S. 811, 829 (1997) (invalidating

the doctrine of legislative standing, while noting the Court attached "some importance to the fact

that appellees [individual members of Congress] have not been authorized to represent their

respective Houses of Congress"); Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 544

(1986) ("Generally speaking, members of collegial bodies do not have standing to perfect an

appeal the body itself has declined to take."); United States v. Ballin, 144 U.S. 1, 7 (1892) ("The


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two houses of Congress are legislative bodies representing larger constituencies. Power is not

vested in any one individual, but in the aggregate of the members who compose the body, and its

action is not the action of any separate members or numbers of members, but the action of the

body as a whole."); Walker, 230 F. Supp. 2d at 68-70 & nn.13, 15, 19 (no standing absent action

by House as a whole). Raines, for example, held -- even where Congress by statute authorized

any member of Congress to challenge the constitutionality of a law -- no suit could take place

without collective action by the entire legislative body. Raines, 521 U.S. at 829 & n.10. As

BLAG's counsel recognized, Raines held: "The absence of such collective action precludes the

assertion of institutional injury, even where Congress has initially authorized suits by certain

individuals." (Ex. A. at 7 (emphasis in original).) BLAG's counsel told the court in Walker:

"While Raines left open the question of whether Congress itself could bring suit for institutional

injuries through a majority vote of its members (or the members of one chamber), it makes clear

that anything short of such collective action does not satisfy Article III." (Ex. A. at 9.)

Typically, before the House or Senate initiate litigation to vindicate their institutional

interests, a collective vote of the whole House or Senate is taken. See, e.g., United States v.

AT&T, 551 F.2d 384, 391 (D.C. Cir. 1976); Senate Select Comm. v. Nixon, 498 F.2d 725, 727

(D.C. Cir. 1974) (en banc); see also Walker, 230 F. Supp. 2d at 70 (explaining that in the

preceding cases "the relevant House of Congress had also passed a resolution expressly

endorsing pursuit of the lawsuit"). The issue most typically arises when the House or Senate

seeks to hold someone in contempt or to enforce a legislative subpoena. As BLAG's counsel

acknowledged, "[m]any congressional contempt prosecutions have foundered because they were

based on the judgment of only a committee or subcommittee rather than a vote of the entire


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House or Senate," and "Congress's own practice recognizes the importance of authorization by a

full house in the context of both contempt findings and subpoena enforcement." (Ex. A. at 31.)

The House in particular has emphasized a strong desire to prevent judicial actions by a

committee without the full authorization of the House. The House Rules provide that

"[c]ompliance with a subpoena issued by a committee or subcommittee . . . may be enforced only

as authorized or directed by the House." House Rule XI, cl. 2(m)(3)(C) (2011). "When either

the House or Senate receives a report of contumacious conduct from a committee, it routinely

considers a resolution . . . to certify the facts to the U.S. Attorney. By reviewing this resolution,

the body checks the action of the committee." 4 Dreshler's Precedents of the United States

House of Representatives, Ch. 15, 22, at 2458 (1994) (emphasis added).

Although there is no statute specifically authorizing the House to intervene in any case

where the Executive Branch declines to defend the constitutionality of a law, 28 U.S.C. 530D

suggests any vote to intervene must be made by the House as a whole. Section 530D requires

the Attorney General to notify Congress if it declines to defend the constitutionality of a law, and

do so "within such time as will reasonably enable the House of Representatives and the Senate to

take action, separately or jointly, to intervene in timely fashion in the proceeding." 28 U.S.C.

530D(B(ii) and 530D(b)(2) (emphasis added). While Section 530D contemplates that there may

be instances in which the House could intervene, Section 530D makes no mention of

intervention by any committee of the House or group of House members, such as BLAG.

Nor can any credible argument be made that the House has authorized BLAG to

intervene to represent the House as a whole as defendant in litigation. Under the House Rules,


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the only power the House has given BLAG is to "consult" with the Speaker as to the directions

he gives the General Counsel.3 The General Counsel is obligated to follow the "direction of the

Speaker," not any direction from BLAG. House Rule II.8. Consequently, BLAG has not been

authorized to intervene on behalf of the House or do anything more than consult.4

The Supreme Court faced a similar issue in construing the authority of a House

Committee in Watkins v. United States, 354 U.S. 178 (1957), and Gojack v. United States, 384

U.S. 702 (1966). In Watkins, a defendant was held in contempt for refusal to answer questions

from the House Un-American Activities Committee ("HUAC"). The Supreme Court reversed

the conviction because it could not determine whether HUAC's investigation was authorized by

the House as a whole. The Supreme Court explained, "[t]he more vague the committee's charter

is, the greater becomes the possibility that the committee's specific actions are not in conformity

with the will of the parent House of Congress." 354 U.S. at 201. The Committee's charter

authorized it to investigate things that were "un-American," which the Court found so vague that

it effectively allowed HUAC "to define its own authority, to choose the direction and focus of its

3 The only mention of BLAG in the House Rules is in House Rule II.8, which provides in

full: "There is established an Office of General Counsel for the purpose of providing legal

assistance and representation to the House. Legal assistance and representation shall be provided

without regard to political affiliation. The Office of General Counsel shall function pursuant to

the direction of the Speaker, who shall consult with a Bipartisan Legal Advisory Group, which

shall include the majority and minority leaderships. The Speaker shall appoint and set the annualrate of pay for employees of the Office of General Counsel." (emphasis added).

4 Nor has BLAG or anyone else suggested any authority for the Speaker to unilaterally

decide to intervene to make the House a defendant. To do so would be inconsistent with the

House's decision to proceed through a vote as a whole, as in Chadha; its practice in voting as a

whole in seeking a finding of contempt or to enforce a subpoena; and with Section 530D.


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activities," even if that course "is neither desired by Congress nor useful to it." Id. at 205. In

addition to being concerned that HUAC did not speak for the House, the Court explained that it

would be wrong to "insulate[] the House" from accountability for a rogue Committee's actions.

Id. Ultimately, the Court found it "impossible" to determine whether the House had authorized

HUAC's investigation and "[t]he reason no court can make this critical judgment is that the

House of Representatives itself never made it." Id. at 206.

As in Watkins, the House "never made" a decision to intervene in this case. BLAG,

however, is on even weaker ground than HUAC in Watkins because the House clearly gave

HUAC the power to take some substantive action, even if that authority was ambiguous. Here,

BLAG's authority is limited to merely "consult." Moreover, the House likely envisioned that the

General Counsel's day-to-day work would be addressing contracts and employment issues, and

that, if it ever became appropriate for the House to intervene, such a decision would be made by

the House as a whole, as it did in Chadha, and as it initiates judicial proceedings for contempt or

to enforce a subpoena.

In Gojack, the Supreme Court again invalidated a contempt conviction because it was not

clear the House authorized the relevant questioning by a subcommittee of HUAC. The Court

emphasized that "the line of authority from the House to the Committee and then to the

subcommittee must plainly and explicitly appear, and it must appear in terms of a delegation

with respect to a particular, specific subject matter." 384 U.S. at 716. There must be "proof of a

clear delegation." Id. In this case, BLAG is unable to show that any such delegation has been

made by the House to BLAG to intervene.

The fact that the House as a whole has not voted to intervene in this case is fatal to any

claim by BLAG that it is intervening on behalf of the House. And it is by no means clear that the


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full House would vote to continue this costly lawsuit, if given the opportunity to vote. The

Minority Leader and Minority Whip voted against funding any involvement by the House in

DOMA litigation as part of BLAG's partisan 3-2 vote, and 133 Democratic House members filed

an amicus curiae brief with the First Circuit arguing that DOMA is unconstitutional. Amicus Br.

of Members of the House of Representatives, Massachusetts v. United States Dep't of HHS, Nos.

10-2204, 10-2207, 10-2214 (1st Cir. filed Nov. 3, 2011). Nor is it clear that support would exist

among Republicans in the House to support this litigation, even if they did support DOMA (and

not all Republicans do). In this campaign season, the test that is in vogue among Republicans for

whether to approve spending appears to be: Is the spending "so critical that it makes sense to

borrow money from China to pay for it?" Spending Spree, Hotline (Feb. 21, 2012) (2012 WL

3763681) (statement of Mitt Romney). It would seem hypocritical for House members who are

concerned with government spending, who are troubled by China's civil rights record and who

see China as a potential threat to the United States to deem it worth borrowing from China to

fund litigation that would discriminate against and penalize American soldiers. See also U.S.

Congressional Budget Office, The Potential Budgetary Impact of Recognizing Same-Sex

Marriages, June 21, 2004, available at http://www.cbo.gov/publication/15740 (finding federal

recognition of same-sex marriages would increase federal revenues due to various marriage

penalties in the tax law and entitlement programs, and those revenues would exceed the cost of

government-paid spousal benefits). In a campaign season, candidates are typically quick to say

they support the troops, rather than encourage discrimination against them. But the Court should

not have to guess at what the House would do if allowed to vote. If intervention is the direction

the Speaker wants the House to take, he should call for a full vote by House members.


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B. BLAG Has Not Authorized Intervention In This Case

The very day BLAG moved to intervene, Democratic Leader and BLAG Member Nancy

Pelosi issued a statement condemning the filing of this motion to intervene, explaining that it is

being made "[w]ithout a vote or any specific authorization of the Bipartisan Legal Advisory

Group (BLAG)." (Ex. C.) To support its right to intervene, BLAG cites a vote taken by BLAG

on March 9, 2011 -- more than seven months before this case was even filed -- and, rather than

citing BLAG's decision, it merely cites a press release from the Speaker. (Dkt. 12 at 4; Dkt. 33

at 12.) Remarkably, the only publicly available report on what BLAG voted on is a photograph

of a motion entitled "Authority to Intervene of File Amicus" that was posted on Democratic

Leader Pelosi's Twitter account. (Ex. D.) The motion was for BLAG to

recommend that the Speaker direct the General Counsel to: (i) take such steps as

he considers appropriate, including intervention or submission of briefs amicus

curiae, to protect the interests of the House in litigation in which the AttorneyGeneral has ceased to defend the constitutionality of section 3 of the Defense of

Marriage Act.

(Ex. D (emphasis added).)

BLAG's March 9, 2011 decision followed the Attorney General's February 23, 2011

report to Congress that the United States would no longer defend the already existing Windsor

and Pederson cases. (Dkt. 29-1.) In referring to the "litigation in which the Attorney General

has ceased to defend the constitutionality" of DOMA, BLAG's recommendation was referring to

those cases -- not this case, which BLAG could not envision would be filed months later. By its

own terms, the BLAG recommendation's use of the words "has ceased" applies the

recommendation only to those cases that had been filed as of the date of that decision. In

addition, the BLAG decision speaks only to the defense of DOMA, rather than to the defense of

Title 38 that BLAG also seeks to defend here. (Dkt. 32 at 1.)


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BLAG's recommendation also was just a recommendation, not an order, and its

recommendation was not that intervention is the only appropriate course. The BLAG

recommendation merely included intervention "or" filing an amicus brief as among the steps that

the General Counsel could deem "appropriate." In other words, BLAG is not seeking

intervention because the House voted to intervene or because BLAG voted to intervene, but

merely because the General Counsel of the House chose to intervene in BLAG's name, while

calling itself the "House." (Ex. 32 at 1.) BLAG's theory appears to be that we can be sure the

House authorized intervention in this case because the House Rules authorize BLAG to "consult"

with the Speaker and, seven months before it was even aware of this suit, BLAG voted 3-2 to

"recommend" that the Speaker "direct" the General Counsel to essentially do whatever he wanted

in cases other than this one. That is hardly the "proof of a clear delegation" the Supreme Court

requires. Gojack, 384 U.S. at 1698.

II. INTERVENTION IS PRECLUDED BY SEPARATION OF POWERS

PRINCIPLES

A. Intervention Is Precluded By The Take Care Clause

BLAG claims that "ordinarily it is the duty of the Executive Branch to 'take Care that the

Laws be faithfully executed,' U.S. Const. art. II, 3, and of the Department of Justice in

particular, in furtherance of that responsibility, to defend the constitutionality of duly enacted

federal laws when they are challenged in court." (Dkt. 33 at 10 (emphasis added); see also Dkt.

12 at 2 ("As the Court is aware, it is the duty of the Executive Branch to 'take Care that the Laws

be faithfully executed,' U.S. Const. art. II, 3, and in furtherance of that responsibility, the

Department ordinarily defends the constitutionality of duly enacted federal laws when they are

challenged in court.") (emphasis added).) This is not just how the Constitution "ordinarily"

works, it is the only way the Constitution works. "The Constitution does not leave to speculation


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who is to administer the laws enacted by Congress; the President, it says, 'shall take Care that the

Laws be faithfully executed.'" Printz v. United States, 521 U.S. 898, 922 (1997) (quoting U.S.

Const., Art. II, 3). When it comes to the President, "[i]t is his responsibility to take care that

the laws be faithfully executed." Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 130 S. Ct.

3138, 3152 (2010) (emphasis in original). The Supreme Court could not be clearer in declaring

that the Constitution vests "executive power in the President alone," and that is "in order to

secure that unitary and uniform execution of the laws which article 2 of the Constitution

evidently contemplated." Myers v. United States, 272 U.S. 52, 135 (1926) (emphasis added).

The Constitution distinguishes the "Legislative Branch" from a "separate and wholly

independent Executive Branch." Bowsher v. Synar, 478 U.S. 714, 722 (1986) (emphasis added).

The executive power of the Executive Branch cannot be "shared" with Congress, as that "would

be contrary to the basic concept of separation of powers and the checks and balances that flow

from the scheme of tripartite government." United States v. Nixon, 418 U.S. 683, 704 (1974).

The Supreme Court was just as explicit in declaring that the "Legislative power, as

distinguished from the executive power, is the authority to make laws, but not to enforce them or

appoint agents charged with the duty of such enforcement. The latter are executive functions."

Springer v. Philippine Islands, 277 U.S. 189, 202 (1928). Likewise, it has cautioned of the need

to remain mindful that Congress' "power to investigate must not be confused with any of the

powers of law enforcement; those powers are assigned under our Constitution to the Executive

and the Judiciary." Quinn v. United States, 349 U.S. 155, 161 (1955).

The President's obligation not to enforce a statute he believes is unconstitutional provides

an important check on Congress' power, and ensures this country's highest law -- the Constitution

-- is executed. This was the Framers' design. In the ratification debates, James Wilson explained


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that if Congress enacted an unconstitutional law, it is the "duty [of judges] to pronounce it void. .

. . In the same manner, the President of the United States could shield himself, and refuse to

carry into effect an act that violates the Constitution." 2 Jonathan Elliot, Debates on the Federal

Constitution at 445-46 (1836) (statement of December 1, 1787) (emphasis in original). The

Framers viewed the legislature as the "principal threat"5 to the system of checks and balances

they created, and recognized that

it was not enough simply to repose the power to execute the laws (or to appoint)

in the President; it was also necessary to provide him with the means to resist

legislative encroachment upon that power. The means selected were various,including a separate political constituency, to which he alone was responsible, and

the power to veto encroaching laws, see Art. I., 7, or even to disregard themwhen they are unconstitutional.

Freytag v. C.I.R., 501 U.S. 868, 906 (1991) (Scalia, J., dissenting) (emphasis added).

Presidents have been advised that enforcing a law the President believed was

unconstitutional "would constitute an abdication of the responsibility of the executive branch, as

an equal and coordinate branch of government with the legislative branch, to preserve the

integrity of its functions against constitutional encroachment." Dellinger Opinion 18 Op. O.L.C.

at 203 (quoting Civiletti Opinion, 4A Op. O.L.C. 55 at 59); see Appropriations Limitation for

Rules Vetoed by Congress, 4B Op. O.L.C. 731, 734 (1980) (enforcing an unconstitutional law

"would impair the Executive's constitutional role and would constitute an abdication of the

5 In particular, the Supreme Court has recognized that the House of Representatives poses

the most serious threat to the separation of powers, and emphasized "that the exercise of power

by this body, when acting separately from and independent of all other depositories of power,should be watched with vigilance, and when called in question before any tribunal having theright to pass upon it that it should receive the most careful scrutiny." Kilbourn v. Thompson,

103 U.S. 168, 192 (1880).


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responsibility of the Executive Branch"). In circumstances like these, where the President has

concluded that a statute is unconstitutional,

[a] President that places the statutory law over the constitutional law . . . would

fail in his duty faithfully to execute the laws. The principle is equally sound

where the Supreme Court has yet to rule on an issue, but the President hasdetermined that a statutory law violates the Constitution. To say that the principle

is not equally sound in this context is to deny the President's independent

responsibility to interpret and uphold the Constitution. It is to leave the defense

of the Constitution only to two, not three, of the branches of government.

Deputy Assistant Attorney General Elwood, Presidential Signing Statements, 2007 WL 5964723,

at 5 (2007) ["Elwood Opinion"]; see Salazar v. Buono, 130 S. Ct. 1803, 1817 (2010) ("Congress,

the Executive, and the Judiciary all have a duty to support and defend the Constitution."); United

States v. Verdugo-Urquidez, 494 U.S. 259, 274 (1990) ("The Members of the Executive and

Legislative Branches are sworn to uphold the Constitution, and they presumably desire to follow

its commands."); Nixon, 418 U.S. at 703 ("In the performance of assigned constitutional duties

each branch of the Government must initially interpret the Constitution, and the interpretation of

its powers by any branch is due great respect from the others.").

Nor is there anything improper in the President declining to defend an unconstitutional

law. "[T]he law the President must execute includes the Constitution -- the supreme law of the

land. Because the Constitution is supreme over all other law, the President must resolve any

conflict between statutory law and the Constitution in favor of the Constitution, just as courts

must." Elwood Opinion, 2007 WL 5964723, at 4. BLAG's own counsel has recognized that it is

appropriate for the Executive Branch to refuse to enforce unconstitutional laws (not the

"abandonment," "abdication" or "forsaking" of his constitutional responsibilities, BLAG now

claims), and that "the Executive Branch can, and does, decline to enforce statutes that it

concludes are clearly unconstitutional." Reply Br. of Solicitor General Clement at 11, United


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States v. Clintwood Elkhorn Min. Co., 553 U.S. 1 (2008) (citing Dellinger Opinion 18 Op.

O.L.C. at 204 (1994)).

B. Intervention Is Precluded By Title 28, Which Implements The Take Care

Clause

There are at least three provisions of Title 28 that authorize the Executive Branch alone

to represent the United States in litigation:

(1) 28 U.S.C. 516 provides that "the conduct of litigation in which the United States, an

agency, or officer thereof is a party, or is interested, and securing evidence therefore, is reserved

to officers of the Department of Justice, under the direction of the Attorney General;"

(2) 28 U.S.C. 519 provides that "the Attorney General shall supervise all litigation to which

the United States, an agency, or officer thereof is a party, and shall direct all United States

attorneys, assistant United States attorneys, and special attorneys appointed under section 543 of

this title in the discharge of their respective duties;" and

(3) 28 U.S.C. 517 provides that "[t]he Solicitor General, or any officer of the Department of

Justice, may be sent by the Attorney General to any State or district in the United States to attend

to the interests of the United States in a suit pending in a court of the United States, or in a court

of a State, or to attend to any other interest of the United States."

There is no statutory provision authorizing the House of Representatives (or any of its

component parts) to represent the United States' interests in litigation.

In United States v. Providence Journal Co., 485 U.S. 693 (1988), the Supreme Court

found it a "somewhat startling" proposition to even suggest that anyone other than the Executive

Branch could represent the interests of the United States in litigation. Id. at 701. In that case, a

federal district court appointed a Special Prosecutor to prosecute a contempt motion. Ultimately,

the Special Prosecutor petitioned the Supreme Court for certiorari, but the Supreme Court held


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that the Special Prosecutor had no power to represent the United States. Like the Title 28

statutes addressed above, a unique statute applicable only to practice before the Supreme Court

provides: "Except when the Attorney General in a particular case directs otherwise, the Attorney

General and the Solicitor General shall conduct and argue suits and appeals in the Supreme

Court . . . in which the United States is interested." 28 U.S.C. 518(a). Because the petition for

certiorari was filed by the Special Prosecutor alone, rather than the Attorney General or Solicitor

General, the Supreme Court dismissed the case for lack of jurisdiction. 485 U.S. at 697.6

The Supreme Court had no trouble finding: "The present case clearly is one 'in which the

United States is interested.' The action was initiated in vindication of the 'judicial power of the

United States,' and it is that interest, unique to the sovereign, that continues now to be litigated in

this Court." Id. at 700 (emphasis in original). The Special Prosecutor argued that he "acted in

support of the power of the Judicial Branch, rather than in furtherance of the Executive's

constitutional responsibility, U.S. Const., Art. II 3, to 'take Care that the Laws be faithfully

executed.'" Id. at 701. The Supreme Court emphatically rejected this proposition:

This suggested interpretation of 518(a). . . presumes that there is more than one

"United States" that may appear before this Court, and that the United States is

something other than "the sovereign composed of the three branches. . . ." Wefind such a proposition somewhat startling, particularly when supported by theoffice whose authority would be substantially diminished by its adoption, and we

reject that construction as inconsistent with the plain meaning of 518(a). It

seems to be elementary that even when exercising distinct and jealously separated

powers, the three branches are but "'co-ordinate parts of one government."

Id. (internal citations omitted).

6 An exception to Title 28 that exists in Federal Rule of Criminal Procedure 42 allowed the

district court to appoint the Special Prosecutor to initiate the case, but Rule 42 did not authorize

the petition for certiorari. 485 U.S. at 696-97.


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The situation is not different here. The United States is "interested" in this suit, as the

United States, its agencies and officers are party defendants. In fact, the Executive Branch

entered an appearance in this case on behalf of the United States. The BLAG vote that the

General Counsel relies upon to bring this suit merely recommended to the Speaker that he direct

the General Counsel to take appropriate steps "to protect the interest of the House" in the

previously filed challenges to DOMA. (Ex. D.) But "the interest of the House" here is no

different from the "support of the Judicial Branch" the Special Prosecutor sought to vindicate in

Providence Journal. There, as here, it is an interest "unique to the sovereign" and there is only

one sovereign -- the United States, which is represented by the Executive Branch alone. See also

FEC v. NRA Political Victory Fund, 513 U.S. 88 (1994) (reaffirming Providence Journal by

holding that the FEC cannot seek certiorari on its own);7 The Confiscation Cases, 74 U.S. 454,

458-59 (1868) ("[I]t is clear that all such suits, so far as the interests of the United States are

concerned, are subject to the direction, and within the control of, the Attorney General.").

C. Intervention Is Precluded By The Equal Access To Justice Act

The Equal Access to Justice Act ("EAJA"), 28 U.S.C. 2412, authorizes courts to order

the United States to pay attorneys' fees for prevailing parties when the United States' legal

7 BLAG makes much of the fact it has intervened in many cases where the constitutional

arguments raised here were not raised and where consent was given in most cases. (Dkt. 12 at 3-4; Dkt. 33 at 5-6 & nn.4-5.) In NRA Political Victory Fund, the FEC made the same argument --that it had represented itself before the Supreme Court on numerous prior occasions without

objection. The Supreme Court rejected that argument because jurisdiction "was challenged in

none of those actions, and therefore the question is an open one before us." 513 U.S. at 97; see

also Will v. Michigan Dept. of State Police, 491 U.S. 58, 63 n.4 (1989) (courts are not bound by

priorsub silentio holdings "when a subsequent case finally brings the jurisdictional issue" before

them); United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 38 (1952) (same).


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position is not "substantially justified." (28 U.S.C. 2412(d)(1)(A); see also Compl. 5 (noting

Plaintiffs' intent to seek attorneys' fees under the EAJA).) The EAJA is designed to prevent the

"unreasonable exercise of government authority" by encouraging plaintiffs to vindicate their

rights without having to fear being out spent by the government in litigation. Ardestani v. INS,

502 U.S. 129, 138 (1991); INS v. Jean, 496 U.S. 154, 163-64 (1990). In other words, Congress

acknowledged that sometimes the proper course is for the United States to accept defeat in

litigation, particularly when the United States has violated the constitutional rights of its citizens.

This fee-shifting mechanism discourages the "United States" from "run[ning] up" the plaintiffs'

legal bills by taking unjustified legal positions. Lewis v. United States, 144 F.3d 1220, 1223 (9th

Cir. 1998).

If the House (or some component of the House) were permitted to intervene to represent

the United States in this case, it would distort the remedial scheme designed by Congress in the

EAJA. Congress created liability for the United States when it takes litigating positions that are

not "substantially justified," trusting that the Department of Justice -- the expert agency in

defending the United States in court -- would avoid liability by not taking unfounded legal

positions. Surely, Congress never contemplated that if the Executive Branch found a legal

position -- like the defense of DOMA -- unjustified, some other government body or member of

the Legislative or Judicial Branch would be allowed to intervene to make the very argument the

Executive Branch recognizes is not "substantially justified." That would allow government

bodies who are inexpert in defending the United States' interests in court to run up the liabilities

of the United States under the EAJA, even when their motivation may relate more to scoring

political points than the soundness of the law. Even if the Court were to find that substantially

unjustified actions by a governmental intervenor did not create liability under the EAJA, the


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purpose of the EAJA would still be undermined because persons whose rights were violated

would then incur the very expense of defending against substantially unjustified legal positions

that the EAJA sought to prevent.

D. The Take Care Clause Is Violated By Authorizing Legislative Officers To

Intervene To Enforce DOMA

Aside from whether the House did in some convoluted manner authorize the General

Counsel to intervene in this case on behalf of BLAG or the House, the Supreme Court has held

that even enacted legislation that clearly authorized legislative officers to defend the interests of

the United States is unconstitutional. Although Buckley v. Valeo, 424 U.S. 1 (1976), is best

remembered as the seminal case concerning the application of the First Amendment to campaign

spending, the relevant holding from that case here (and one all the Justices agreed on) was that

the FEC was unconstitutionally constituted by the Federal Election Campaign Act of 1971. Two

members of the FEC were "to be appointed by the Speaker of the House . . . upon the

recommendations of its respective majority and minority leaders" -- just as the Speaker has

appointed the General Counsel of the House with the consultation of BLAG. 424 U.S. at 113.

The FEC was authorized "to initiate (through civil proceedings for injunctive, declaratory, or

other appropriate relief), defend, or appeal any civil action in the name of the Commission for

the purposes of enforcing the provisions of this Act, through its general counsel." Id. at 166

(quoting 2 U.S.C. 437d(a)(6)) (emphasis added).

The Supreme Court found many constitutional problems with this arrangement. The FEC

was given powers of "an investigative and informative nature," which was fine because they fell

into "the same general category as those powers which Congress might delegate to its own

committees." Id. at 137. A different result was required with regard to the FEC's "more

substantial powers . . . exemplified by its discretionary power to seek judicial relief." Id. at 138.


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The Supreme Court held that authority "cannot possibly be regarded as merely in aid of the

legislative function of Congress. A lawsuit is the ultimate remedy for a breach of law, and it is

to the President, and not to the Congress, that the Constitution entrusts the responsibility to 'take

Care that the Laws be faithfully executed.'" Id. at 139.

The Supreme Court recently reaffirmed this aspect of Buckley in Free Enterprise Fund v.

Pub. Co. Acct. Oversight Bd., 130 S. Ct. 3138 (2010) -- another case in which the law firm

representing BLAG argued that Congress overstepped its constitutional authority. The Sarbanes-

Oxley Act created a Public Company Accounting Oversight Board, with its members appointed

by the Securities Exchange Commission. The Board was empowered to "enforce the compliance

with this Act," including "impos[ing] appropriate sanctions," 15 U.S.C. 7211(c)(4) & (6), and

could "sue and be sued, complain and defend, in its own corporate name and through its own

counsel, with the approval of the Commission, in any Federal, State or other court," id.

7211(f)(1) (emphasis added). Acknowledging that these responsibilities made Board members

"Officers of the United States," subject to the Appointments Clause in accordance with Buckley,

the Petitioners sought a declaratory judgment that the Board is unconstitutional and an injunction

preventing the Board from exercising its powers. 130 S. Ct. at 3149.

The Supreme Court invalidated the Board because "[t]he Constitution provides that '[t]he

executive Power shall be vested in the President of the United States of America,' Art. II, 1, cl.

1" and "[i]t is his responsibility to take care that the laws be faithfully executed." 130 S. Ct. at

3151-52 (emphasis in original). The President did not have the authority to appoint or remove

Board members, only the Commission did -- and even then only for cause -- and the President

lacked direct control over the Commissioners. Id. at 3153-54. The Supreme Court held:

This arrangement is contrary to Article II's vesting of the executive power in the

President. Without the ability to oversee the Board, or to attribute the Board's


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failings to those whom he can oversee, the President is no longer the judge of the

Board's conduct. He is not the one who decides whether Board members areabusing their offices or neglecting their duties. He can neither ensure that the

laws are faithfully executed, nor be held responsible for a Board member's breachof faith. This violates the basic principle that the President "cannot delegate

ultimate responsibility of the active obligation to supervise that goes with it,

because Article II makes a single President responsible for the actions of theExecutive Branch."

Id. at 3154 (emphasis in original; internal citations omitted).

Allowing the General Counsel of the House to seek intervention at the request of the

Speaker, or BLAG, or the House as a whole, to defend DOMA is fundamentally more dangerous

than the situation in Free Enterprise Fund. While the majority and the dissent disagreed as to

whether the President's control over the Board members was sufficient in Free Enterprise Fund,

there can be no question that the President has no authority whatsoever over the General Counsel

of the House. Moreover, the General Counsel is directly challenging the authority of the

President, arguing that because the President is not taking care to execute the law as the General

Counsel (or the Speaker, or perhaps BLAG or the House) would like, it falls to the General

Counsel of the House to step into the President's shoes and "accept that responsibility." (Ex. 33

at 21; see Debbie Siegelbaum, House Dems Question Funding for GOP's Defense of DOMA,

The Hill (March 27, 2012) (quoting Rep. Steven LaTourette (R-Ohio) as saying: "The House or

Representatives, one not normally charged with doing the [DOJ's] job for it, is doing precisely

that; defending the statute in the courts.") (emphasis added). This is a flagrant encroachment on

the power of the Executive Branch at the hands of the Legislative Branch. The House has no

authority to do the President's job for him when it disagrees with how he executes his duties.

Allowing the House to assume the role of the Executive Branch in defending DOMA as a

party would undermine the separation of powers principles that animate Buckley, Free Enterprise

Fund and much of the Supreme Court's jurisprudence. "[T]he debates of the Constitutional


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Convention, and the Federalist Papers, are replete with expressions of fear that the Legislative

Branch of the National Government will aggrandize itself at the expense of the other two

branches." Bowsher, 478 U.S. at 727 (quoting Buckley, 424 U.S. at 129). The Framers relied on

"Montesquieu's well-known maxim that the legislative, executive and judicial departments ought

to be separate and distinct: . . . . 'When the legislative and executive powers are united in the

same person or body,' says he, 'there can be no liberty. . . .'" Buckley, 424 U.S. 120 (quoting

Federalist No. 47 (Madison)). The Framers supplied constitutional actors, like the House and the

President, "opposite and rival interests" because their "constant aim is to divide and arrange the

several offices in such a manner as that each may be a check on the other that the private interest

of every individual may be a sentinel over the public rights." Buckley, 424 U.S. at 122-23

(quoting, Federalist No. 51 (James Madison)). In doing so, the Framers understood that divided

government would not be efficient, and that does not trouble the Supreme Court because

"[c]onvenience and efficiency are not the primary objectives -- or the hallmarks -- of democratic

government." Free Enter. Fund, 130 S. Ct. at 3156 (quoting Bowsher, 478 U.S. at 736).8

In Printz v. United States, 52 U.S. 898 (1997), the Supreme Court addressed the Take

Care Clause and explained that "[t]he insistence of the Framers upon unity in the Federal

Executive -- to ensure both vigor and accountability -- is well known. That unity would be

shattered, and the power of the President would be subject to reduction, if Congress could act as

8 The Supreme Court has made clear that individuals may seek to vindicate the separation

of powers when the violation of those principles threatens their interests. Bond v. United States,

131 S. Ct. 2355, 2365 (2011). Moreover, those interests are enforceable even if "the encroached-

upon branch approves of the encroachment." Free Enter. Fund, 130 S. Ct. 3138, 3155 (2010)

(quoting New York v. United States, 505 U.S. 144, 182 (1992)).


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effectively without the President as with him, simply by requiring [others] to execute its laws."

Id. at 922. (internal citations omitted). That is essentially the case here. The President has

reconciled DOMA and the Constitution in enforcing the law in a way that the House (or some

sub-part of the House) does not like, and the House (or that sub-part of the House) has taken it

upon itself to send the General Counsel of the House into court to defend the law and challenge

the President's enforcement of the law. The Constitution does not permit this.

Moreover, the implications are far broader than BLAG may suggest. Apart from

questions of constitutionality, questions inevitably arise as to how a statute should be construed

and the House and the President may disagree. Of course, "interpreting a law enacted by

Congress to implement the legislative mandate is the very essence of 'execution' of the law," and

that responsibility falls to the President. Bowsher, 478 U.S. at 733; see Myers, 272 U.S. at 135

(President has power to "supervise and guide" the "construction of the statutes"). Sometimes,

Presidents may construe a statute to avoid a constitutional problem. The Legal Significance of

Presidential Signing Statements, 17 Op. O.L.C. 131, 132 (1993) (noting Presidents frequently

construe a statute, "often to save the statute from unconstitutionality"). Just as BLAG may

disagree with the President's finding that DOMA and the Constitution are irreconcilable, BLAG

may also disagree with how the President construes other statutes to save them from a finding of

unconstitutionality or BLAG may simply disagree with the President's statutory interpretation.

But the mere fact that some component of Congress may believe that the President has

misunderstood the law that it passed, or has distorted its intent through a misguided attempt to

save a statute from being held unconstitutional, should not give it the right to intervene as a party

to challenge how the President has chosen to enforce the law. To be sure, there is no impediment

to Congress or its constituencies making their views known to the courts, who have the final


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word as to what the statute means, as an amicus curiae, but they are not empowered to assume

the role of a party because the United States as a whole is represented by the Executive Branch.

The Framers plainly contemplated that there would be disagreements among the three

Branches of government, which by design compete with one another, but they never

contemplated that the House could usurp the President's powers if it found him derelict in

exercising them or that it would fall to the Judicial Branch to referee such fights between the

political branches. To the contrary, the Framers gave the House its own constitutional means for

protecting itself, including the most powerful weapon of all -- the power of the purse. The

Supreme Court has relied upon James Madison's observation that "[t]his power over the purse

may, in fact, be regarded as the most complete and effectual weapon with which any constitution

can arm the immediate representatives of the people, for obtaining a redress of every grievance,

and for carrying into effect every just and salutary measure." United States v. Munoz-Flores,

495 U.S. 385, 395 (1990) (quoting Federalist No. 58 (James Madison)). Like the legislative veto

addressed in Chadha, perhaps giving the authority to the House to intervene to execute those

laws that the President does not defend would be "a useful 'political invention'" but, just as the

Supreme Court declined to tamper with the Constitution by affording the House extra-

constitutional remedies in Chadha, this Court should do the same here. Chadha, 462 U.S. at 945.

E. Intervention Would Violate The Appointments, Ineligibility And

Incompatibility Clauses

In addition to violating the Take Care Clause, allowing the House or its members or

officers to intervene to defend DOMA would violate several constitutional provisions relating to

the appointment and ability of certain persons to assume Executive functions. The resolution

relied upon by BLAG purportedly authorized the General Counsel of the House to intervene in

this case, but the General Counsel is a legislative officer and "the legislature cannot ingraft


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executive duties upon a legislative office, since that would usurp the power of appointment . . . ."

Buckley, 424 U.S. at 139 (quoting Springer, 277 U.S. at 202). Rather, to assume an executive

power -- such as litigating the defense of a statute -- the person must be appointed pursuant to the

Appointments Clause.9 When such litigation responsibilities were given to Commissioners of

the FEC who had not been appointed in compliance with the Appointments Clause, the Supreme

Court held that delegation of powers unconstitutional in Buckley, 424 U.S. at 140 (invalidating

the provisions because "vesting in the Commission primary responsibility for conducting civil

litigation in the courts of the United States for vindicating public rights, violate Art. II, cl. 2, of

the Constitution") (Appointments Clause). As the Supreme Court explained in Buckley:

If the Legislature wishes the Commission to exercise all of the conferred powers,

then its members are in fact "Officers of the United States" and must be appointed

under the Appointments Clause. But if Congress insists upon retaining the power

to appoint, then the members of the Commission may not discharge those many

functions of the Commission which can be performed only by "Officers of theUnited States," as that term must be construed within the doctrine of separation of

powers.

424 U.S. at 118-19.

In addition, neither the Speaker nor any group of Congressmen can initiate or direct the

intervention to enforce DOMA. The Ineligibility and Incompatibility Clauses provide: "No

9 The Appointments Clause provides: The President "shall nominate, and, by and with the

Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and

Consuls, Judges of the supreme Court, and all other Officers of the United States, whoseAppointments are not herein otherwise provided for, and which shall be established by Law: butthe Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in

the President alone, in the Courts of Law, or in the Heads of Departments." U.S. Const., Art. II,

2, cl. 2. Buckley held that "neither Congress nor its officers were included within the language

'Heads of Departments," and neither "the Speaker of the House, nor the President pro tempore of

the Senate comes within this language." 424 U.S. at 127. Consequently, neither the Speaker nor

Congress as a whole can be vested with the power to select Officers of the United States.


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Senator or Representative shall, during the Time for which he was elected, be appointed to any

civil Office under the Authority of the United States, which shall have been created, . . . and no

Person holding any Office under the United States, shall be a Member of either House during his

Continuance in Office." U.S. Const., Art. I, 6, cl. 2; see also Buckley, 424 U.S. at 684-85 (the

clauses help maintain "the separation of powers"); Freytag, 501 U.S. at 904-5 (Scalia, J.,

dissenting). Because there must be separation between the Members of Congress who enact the

law and those who enforce the law, neither the Speaker nor any other Member of Congress can

intervene to defend the law as a party.

III. BLAG LACKS STANDING TO INTERVENE

A. Intervenors Must Have Standing

Aside from the constitutional separation of powers obstacles to BLAG's intervention, it is

clear that BLAG lacks standing to intervene because the only basis for its claim of standing is the

legislative standing doctrine that was overruled by the Supreme Court in Raines v. Byrd, 521

U.S. 811 (1997). As the First Circuit has recognized, however, there is a circuit split -- which

remains unresolved in this Circuit -- as to whether an intervenor must independently have

standing or can simply piggy-back on a live case or controversy between other parties. Mangual

v. Rotger-Sabat, 317 F.3d 45, 61 & n.5 (1st Cir. 2003) (discussing the split); Daggett v. Comm'n

on Govtl. Ethics & Elec. Prac., 172 F.3d 104, 109 (1st Cir. 1999) (same); see also Diamond v.

Charles, 476 U.S. 54, 68- 69 n.21 (1986) (leaving issue open).

Although the Supreme Court has noted that it remains an open issue whether an

intervenor must have standing where an Article III case or controversy is present among existing

parties, the Supreme Court has suggested that standing is required of all parties. While the

contours of standing are not always clear, the Supreme Court has explained that "of one thing we


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may be sure: Those who do not possess Art. III standing may not litigate as suitors in the courts

of the United States." Valley Forge Christian Coll. v. Am. United for Sep. of Church and State,

Inc., 454 U.S. 464, 475-76 (1982). Because an intervenor seeks to become a suitor -- a litigant

on par with the existing parties -- this standing requirement would appear equally applicable to it.

See, e.g., Mausolf v. Babbitt, 85 F.3d 1295, 1300 (8th Cir. 1996); Building and Constr. Trades

Dept., AFL-CIO v. Reich, 40 F.3d 1275, 1282 (D.C. Cir. 1994).

The Supreme Court also has been clear that if no party with standing has appealed, no

case or controversy remains unless the intervenor taking the appeal independently has standing.

Arizonans for Official English v. Arizona, 520 U.S. 43, 64-65 (1997); Diamond, 476 U.S. at 68;

see also Sea Shore Corp. v. Sullivan, 158 F.3d 51, 55 (1st Cir. 1998) (dismissing appeal brought

solely by an intervenor-defendant because it lacked standing). Applying that principle, even

courts that permit intervenors to piggy-back on the standing of others require the intervenor to

have standing to pursue any claim not made by a party with standing. See, e.g., City of Colorado

Springs v. Climax Molybdenum Co., 587 F.3d 1071, 1079 (10th Cir. 2009) ("Where a proposed

intervenor has been permitted to intervene on the basis of an existing party's standing to assert

the claim at issue, the Court has described the situation as 'piggyback' standing."). That makes

sense because the party invoking federal jurisdiction "must demonstrate standing separately for

each form of relief sought." Monsanto Co. v. Geertsen Seed Farms, 130 S. Ct. 2743, 2754

(2010). Consequently, where a party with standing has not made a claim, there is no claim for an

intervenor without standing to piggy-back upon.

Plaintiffs maintain that intervention by BLAG is prohibited outright due to its lack of

standing and, even if not, that BLAG may litigate issues (discovery or other matters) that no

party with standing will raise. In addition, standing is relevant because even those courts that do


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not believe an intervenor must independently have standing for Article III purposes do consider

the standing interest in the context of the interest required for intervention under Rule 24. See,

e.g., Chiles v. Thornburgh, 865 F.2d 1197, 1213 (11th Cir. 1989); Valley County, Idaho v. U.S.

Dep't of Ag., 2012 WL 506000, at *4 (D. Idaho Feb. 15, 2012).

B. BLAG Lacks Standing

To establish standing, an intervenor-defendant "must demonstrate: (1) an 'injury-in-fact';

(2) that is 'fairly traceable' to the proceeding . . .; and (3) is 'likely' to be 'redressed by a favorable

decision.'" Sea Shore Corp., 158 F.3d at 55; see Camreta v. Greene, 131 S. Ct. 2020, 2028

(2011) ("And the opposing party also must have an ongoing interest in the dispute, so that the

case features 'that concrete adverseness which sharpens the presentation of issues.'") (internal

citation omitted). In assessing whether there is an injury in fact, the Supreme Court will

"demand that litigants demonstrate a 'personal stake' in the suit," Camreta, 131 S. Ct. at 2028,

and that "the alleged injury suffered is particularized as to him," Raines, 521 U.S. at 819. In

other words, a "personal injury" must be alleged. Allen v. Wright, 468 U.S. 737, 751 (1984).10

This requirement exists because "[n]ot every dispute is a case or controversy. 'The

presence of a disagreement, however sharp or acrimonious it may be, is insufficient by itself to

meet Art. III's requirements.'" New Hampshire Right to Life PAC v. Gardner, 99 F.3d 8, 13 (1st

Cir. 1996) (quoting Diamond, 476 U.S. at 62). "[S]tanding is not measured by the intensity of

10 Standing is necessary to preserve the separation of powers, including preventing the

courts from interfering with the Executive Branch's authority: "To permit Congress to convert

the undifferentiated public interest in executive officers' compliance with the law into an

'individual right' vindicable in the courts is to permit Congress to transfer from the President to

the courts the Chief Executive's most important constitutional duty, to 'take Care that the Laws

be faithfully executed.'" Lujan v. Defenders of Wildlife, 504 U.S. 555, 576 (1992).


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the litigant's interest or the fervor of his advocacy." Valley Forge Christian Coll., 454 U.S. at

465. "[F]ederal courts are not empowered to seek out" and decide constitutional questions,

"[r]ather, f

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