Document Type

Article

Publication Date

2015

Abstract

In rare cases, a President refuses to defend a statute he believes is unconstitutional. The law is unclear whether Congress or either House of Congress has Article III standing to defend a statute that the President refuses to defend. In United States v. Windsor, the Supreme Court in 2013 addressed the constitutionality of the Defense of Marriage Act (DOMA). The Obama Administration took the middle position of not defending DOMA, but still enforcing it despite its view that the statute was unconstitutional to assist federal courts in reviewing the constitutionality of the statute. It was unclear whether an appeal was proper in the case once a district court held the statute was unconstitutional and the Executive Branch essentially agreed with that decision. Applying both prudential standing principles and mandatory Article III standing rules, Justice Kennedy’s majority opinion recognized that the Executive was an appropriate party on appeal because it continued to enforce the statute. Additionally, the majority acknowledged that briefs filed by House of Representatives leadership supporting the constitutionality of DOMA supplied the necessary adverseness in the case given the Executive’s view that DOMA was unconstitutional. The majority did not fully resolve the thorny issue of congressional standing in cases where a president refuses to enforce a federal statute. Justice Scalia’s dissenting opinion emphasized the almost exclusive role of the Executive Branch in defending federal laws pursuant to Article II, squarely rejected congressional standing, and argued that no party had standing to appeal in Windsor because the Executive agreed with the district court’s judgment holding Section 3 to be unconstitutional. By contrast, Justice Alito’s dissenting opinion would have expressly recognized the authority and standing of the leaders of either House to defend any federal statute that the President does not defend. Yet by acknowledging that congressional participation could supply the necessary adverseness to litigate a case when the executive branch agrees with the challenger that a statute is unconstitutional, Justice Kennedy’s opinion likely will pave the way for increased congressional participation in unusual cases where the executive branch believes a statute is unconstitutional, but at least one House of Congress wishes to defend the statute’s constitutionality.

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