What would have happened to the BLAG if the Republicans lost the House?

January 23rd, 2013

The BLAG has membership consisting of the Republican and Democratic House Leadership:

The Bipartisan Legal Advisory Group currently is comprised of the Honorable John A. Boehner, Speaker of the House, the Honorable Eric Cantor, Majority Leader, the Honorable Kevin McCarthy, Majority Whip, the Honorable Nancy Pelosi, Democratic Leader, and the Honorable Steny H. Hoyer, Democratic Whip. The Democratic Leader and the Democratic Whip have declined to support the position taken by the Group on the merits of DOMA Section 3’s constitutionality in this and other cases.

The five members are: the Speaker, Majority leader, and Majority Whip, and the Minority leader, and Minority Whip. The party in control gets three seats, the party in the minority gets two seats. It also seems (if Wikipedia is to believed) that the party in charge gets to control what the BLAG does. Here, the two in dissent, Pelosi and Hoyer, have vocally opposed BLAG spending $3 million on Paul Clement. Boehner doesn’t care (maybe he would roll his eyes like FLOTUS).

My question is what would’ve happened if the Democrats won the house in 2012, and cut off all funding for the BLAG, or directed the GC to not pursue the case.

What would have happened? Would the case have ended? Would the members of Congress who voted for the DOMA have standing to sue? Would the Court have to appoint amicus to argue? Would Paul Clement argue the case anyway because he’s Paul Clement? (Certainly there is a Clement-prudential-doctrine somewhere in the U.S. Reports).

Before the election I had blogged what would happen to the DOMA litigation if Romney won.

Anyone know how this would work?

Thanks to my colleague Dru Stevenson for working this this tricky question with me.