Shenanigans from the DOJ

Everyone right now should know that the Supreme Court recently heard oral arguments on the constitutionality of Section 3 in the Defense of Marriage Act (DOMA).

What most people probably know is that the Department of Justice (DOJ) has refused to defend the law in court, and that the Bipartisan Legal Advisory Group (BLAG), from the House of Representatives, has stepped in to defend the law.

What fewer people probably know is that after the District Court ruled that the law was unconstitutional, and that the executive government had to pay the tax refund (some $363,000) to the plaintiff, the DOJ decided to file as an aggrieved party to the Supreme Court.  In other words, the DOJ will not obey the stay order, and is filing as an appellant... for a decision they agree with.  As the lawyer for BLAG put so nicely:

"You will see the most anomalous motion to dismiss in the history of litigation: A motion to dismiss, filed by the United States, asking the court not to dismiss."

What everybody is dying to know: why the hell did the DOJ file at all?

There were several statements made in the oral arguments (transcript here) that try to shed light onto the DOJ's line of reasoning.  The first was part of an explanation proffered by Justice Alito:

"JUSTICE ALITO: Well, the Solicitor General's standing argument is very abstract. But here is one possible way of understanding it, perhaps the Solicitor General will disavow it, but it would go like this: The President's position in this case is that he is going to continue to enforce DOMA, engage in conduct that he believes is unconstitutional, until this Court tells him to stop. 

The judgment of the Second Circuit told the Executive Branch to comply with the Equal Protection Clause immediately. The President disagrees with the temporal aspect of that, so the Executive is aggrieved in the sense that the Executive is ordered to do something prior to the point when the Executive believes it should do that thing. 

Now, wouldn't that be sufficient to make -­ to create injury in the Executive and render the Executive an aggrieved party?"

The first thing we might notice from this statement is a confirmation that the DOJ will continue to enforce Section 3 of DOMA. Again, they agree with the decision to make them stop. So, why in the world has the executive branch decided to continue to enforce? Apparently it's because of 'respect' for the lawmakers that passed it:

MR. SRINIVASAN: Well, there are — there are a number of considerations that could factor into it, Justice Ginsburg. You're right that either of those scenarios is possible. The reason that the Government appealed in this case is because the President made the determination that this statute would continue to be enforced, and that was out of respect for the Congress that enacted the law and the President who signed it, and out of respect for the role of the judiciary in saying what the law is.

WHAT?!?  But no, this is true, we see the same thing from the summary of the DOJ's appeal from the Second Circuit Court of Appeals:

While the government concurs substantively with the district court’s conclusion that Section 3 is unconstitutional, the President has directed federal agencies to continue to enforce DOMA “unless and until . . . the judicial branch renders a definitive verdict against the law’s constitutionality.” Holder Letter at 5. As the Attorney General has explained, “this course of action respects the actions of the prior Congress that enacted DOMA, and it recognizes the judiciary as the final arbiter of the constitutional claims raised.” Ibid.

This seems a bit too stupid.  A bit too ridiculous of a reason why they will continue to enforce when they actually agree they should not be enforcing.  And apparently the DOJ thinks that it has the right to file based on an aggrieved status predicated by this order to follow the constitution when it "wishes" to do otherwise (enforce the law).

There is one possible ulterior motive.  The District Court ruled the law unconstitutional, but there are two ways to do that: "facially," an "as–applied."  The difference between the two is that if a law is unconstitutional facially, it is unconstitutional all of the time and thus struck down.  If it is unconstitutional as applied, then the decision only fixes the situation for the immediate plaintiff.

The District Court ruled the law unconstitutional as applied to the plaintiff, as stated in the decision.  This means that there was no federal imperative for enforcement of the law to cease.  BLAG would have, and of course did, appealed the decision to a higher court.

The implications of the scope of the lower court's decision really help to shed light on a particularly ominous possibility: BLAG's standing in the case was in question.  At higher court levels, their standing is less clear, and indeed even in the Supreme Court, there were arguments over their own standing to defend the law.  If BLAG had failed to demonstrate standing in either the Second Circuit or in the Supreme Court, this case would end without a ruling of facial unconstitutionality.

This is why the federal government is stepping in with this completely bullshit argument about wanting to enforce the law, out of respect of the passing Congress and signing President, until Congress passed a law to override DOMA or a court ruled it unconstitutional in all cases.  They may yet have a case of grievance from the requirement to pay the tax refund anyway (which they are actually quite happy to pay, since again they agree with the ruling).  This petition was filed before the case made it to the Second Circuit, and it is not quite clear from the Second Circuit's decision that the law was determined unconstitutional facially.  The court may very well have decided as if to uphold the determination made at the District Court level.

If BLAG's standing is rejected in the Supreme Court, this decision of as–applied unconstitutionality will very likely stand, and DOMA will remain.  It will remain until Congress passes a law overriding it, or until a federal court rules it unconstitutional facially.  But, if the DOJ can maintain standing, then there will be a defendant in the case still, and the Supreme Court can rule on the merits of DOMA and very likely rule it unconstitutional facially.

So yes, this is complete shenanigans from the DOJ, to find a loophole to actually end this law outright.  But it just might be ridiculous enough to work.