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Here is how the BLAG brief describes the Executive’s actions with respect DOMA:

Following DOMA’s enactment, the Department of Justice discharged its constitutional duty to “take Care that the Laws be faithfully executed,” U.S. Const. art. II, § 3, and successfully defended Section 3 of DOMA against several constitutional challenges, prevailing in every case to reach final judgment.3 The Department continued to defend DOMA during the first two years of the current Administration.

As I read it, the DOJ continued to “take care that the Laws be faithfully executed” until Joe Biden opened his big mouth and nudged the President to publicly state his position (for the better in my mind)

In February 2011, however, the Administration abruptly reversed course and abdicated its duty to defend DOMA’s constitutionality. See Letter from Att’y Gen. Eric H. Holder, Jr., to the Hon. John A. Boehner, Speaker of the House (Feb. 23, 2011) (“Holder Letter”), http://www.justice.gov/opa/pr/2011/ February/11-ag-223.html. Attorney General Holder announced that he and President Obama were now of the view “that a heightened standard [of review] should apply [to DOMA], that Section 3 is unconstitutional under that standard and that the Department will cease defense of Section 3.” Id. The Attorney General acknowledged that, in light of “the respect appropriately due to a coequal branch of government,” the Department “has a longstanding practice of defending the constitutionality of dulyenacted statutes if reasonable arguments can be made in their defense.” Id. He did not, however, apply that standard to DOMA. On the contrary, he conceded that every federal court of appeals to have considered the issue by that point in time (eleven of the thirteen circuits) had applied rational basis review to sexual orientation classifications and that “a reasonable argument for Section 3’s constitutionality may be proffered under [the rational basis] standard.” Id. 4

Clement especially takes exception with Holder’s imputation of “animus” to the people who enacted DOMA.

Although the Holder Letter had said only that the Department would “cease defense” of DOMA Section 3, the Department did not merely bow out of DOMA litigation. Instead, it affirmatively assailed DOMA in court—arguing that Section 3 violates equal protection and urging courts to render judgment in favor of plaintiffs challenging the law even in Circuits in which rational basis was binding circuit law. The Department even went so far as to accuse the Congress that enacted DOMA—many of whose Members still serve—of being motivated by “animus.”

I haven’t studied the jurisdiction issue closely enough, so I’ll not opine on that. I’ll ready Marty Lederman’s 7-part SCOTUSBlog memo when I can.

In response to the Department’s remarkable “about face” on DOMA, Massachusetts, 682 F.3d at 7, the House intervened as a party-defendant in more than a dozen cases (fifteen to date), around the country, in which one or more plaintiffs challenged the constitutionality of DOMA Section 3; the House did so to ensure that a duly-enacted federal statute would have an adequate constitutional defense. No court denied intervention.

I did not know this.

* The United States House of Representatives has articulated its institutional position in litigation matters through a fivemember bipartisan leadership group since at least the early 1980’s (although the formulation of the group’s name has changed somewhat over time). Since 1993, the House rules have formally acknowledged and referred to the Bipartisan Legal Advisory Group, as such, in connection with its function of providing direction to the Office of the General Counsel. See, e.g., Rule I.11, Rules of the House of Representatives, 103rd Cong. (1993); Rule II.8, Rules of the House of Representatives, 112th Cong. (2011). While the group seeks consensus whenever possible, it, like the institution it represents, functions on a majoritarian basis when consensus cannot be achieved. 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.

How are members appointed to the BLAG? Are the three members always the position of the majority party?

In response to my earlier post on the President’s take on the Declaration of Independence, my friend Garrett Epps wrote an eloquent response (I reprint it with his permission):

As a longtime student of Jefferson, I think it is perfectly legitimate for libertarians to relate to the parts of his philosophy that they find congenial,. But that isn’t Jefferson; it’s a version of this mercurial, self-contradictory man who was, in so many areas, a radical reformer and not always in the direction of less government as we would understand it. So proclaiming one contemporary side’s version of the Declaration legitimate, and the other’s illegitimate, is profoundly ahistorical. The words were written at a different time; they do not speak perspicuously to our time. And throughout our history, Americans of many stripes have taken inspiration from the Declaration, a common treasure that is the property of none.

I wrote in response: And this Garrett, is why you are one of my favorite legal writers. I agree with everything you said. I don’t think Obama’s view is any more or less legitimate than that of Lysander Spooner who looked to the Declaration as proof that slavery was unconstitutional, or that of Susan B. Anthony who looked to the Declaration as proof that women could not be treated differently. I also agree that Jefferson was mercurial, if not schizophrenic with his views. Many of his views on agrarian property law would feel much more at home with Marx than Madison. Likewise, Christians cite the views of a atheist/agnostic person far too often as proof of a Christian ethos in our Republic (it said Creator, not God). Far too many people have adopted his views to fit various regimes. No one has a monopoly on Jefferson. My point focused on the “life, liberty, and pursuit of happiness” phrase, a bit I have studied for some time. It is not coincidence that Jefferson omitted Property from Locke’s trio. I have seen varying explanations, though my favorite is that Property is not inalienable (in fact, property is quite alienable). That being said, “life, liberty, and happiness” had a certain meaning in 1776, deriving from the liberal enlightenment tradition. George Mason used similar phrasing in the Virginia Declaration of Rights. To the extent that we take the words for what they meant when written, the progressive approach takes it in a different direction. To the extent that we take the words as broad principles that are aspirational (and that is a perfectly reasonable thing to do), the progressive approach is just fine.

 

 

Yuval Levin on how progressives have adopted, or perhaps co-opted, the Declaration of Independence.

This speech was about as compact yet comprehensive an example of the contemporary progressive vision as we’re likely to get from a politician. It had all the usual elements. Its point of origin was a familiar distorted historical narrative of the founding—half of Jefferson and none of Madison—setting us off on a utopian “journey” in the course of which the founding vision is transformed into its opposite in response to changing circumstances, with life becoming choice, liberty becoming security, and the pursuit of happiness transmuted into a collective effort to guarantee that everyone has choice and security. The ideals of the Declaration of Independence are praised mostly for their flexibility in the face of their own anachronism, as their early embodiment in a political order (that is, the Constitution) proves inadequate to a changing world and must be gradually but thoroughly replaced by an open-ended commitment to meeting social objectives through state action.

This echoes what I have referred to as the two conceptions of liberty in NFIB v. Sebelius.

Here’s a preview of a section of my book on just this point. My manuscript is approaching completion. The setting is the final moments of arguments on the 3rd day of the ACA case. The Solicitor General and Paul Clement offered competing visions of liberty.

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With roughly three minutes left from his expanded time, the Solicitor General began a prepared closing statement–though, if he had finished when his allotted time was up, he would not have and enough time to fit this in. Verrilli’s closing statement aimed to encapsulate the wide range of arguments on law, politics, and philosophy the Court had waded through the past three roller-coaster days. Interestingly enough, his closing focused on a topic that was conspicuously absent–liberty.

The Solicitor General, who had been the subject of ridicule on the right and the left, had one final chance to make his case for the Court. He began, “But if I may just say in conclusion.” He coughed. “I’d like to take half a step back here.” His argument wasn’t just about the “the Medicaid expansion that we’re talking about this afternoon,” but also the individual mandate “provisions we talked about yesterday.”

As a gentle reminder to the Court, that there were more than one visions of liberty on display, Verilli urged the Justices that “I think that that is important as the Court is considering these issues that that be kept in mind.” More strongly, Verrilli urged that it was for the elected branches, and not the Court to decide the fate of this law. “But this is something about which the people of the United States can deliberate and they can vote, and if they think it needs to be changed, they can change it. And I would suggest to the Court, with profound respect for the Court’s obligation to ensure that the Federal Government remains a government of enumerated powers, that this is not a case in any of its aspects that calls that into question. That this was a judgment of policy, that democratically accountable branches of this government made by their best lights.”

While “we’ve been talking about them in terms of their effect as measures that solve problems, problems in the economic marketplace, that have resulted in millions of people not having health care because they can’t afford insurance.,” there is a more significant issue at hand.

Verilli continued, “There is an important connection.” He paused for emphasis. “A profound connection, between that problem and liberty. And I do think it’s important that we not lose sight of that.” These were comments likely aimed at Justice Kennedy, who has grounded his ve the opportunity to enjoy the blessings of liberty . . . “In a very fundamental way, this Medicaid expansion, as well jurisprudence in the protection of individual liberty and dignity interests.

Turning to the practical realities at hand, “in this population of Medicaid eligible people who will receive health care that they cannot now afford under this Medicaid expansion, there will be millions of people with chronic conditions like diabetes and heart disease, and as a result of the health care that they will get, they will be unshackled from the disabilities that those diseases put on them and has the provisions we discussed yesterday, secure the blessings of liberty.” Here, Verrilli was quoting from the Preamble to our Constitution, which states that the United States was formed to “secure the Blessings of Liberty to ourselves and our Posterity.”

This was a message that Progressives had preached throughout the enactment of the ACA. Upon signing the bill, President Obama declared, that it enshrines “the core principle that everybody should have some basic security when it comes to their health care.” On March 22, 2010, minutes after the midnight vote in the House that passed the ACA, a jubilant Speaker Nancy Pelosi beamed that “this bill tonight [created the] opportunity for affordable health care for all Americans to have the freedom to have a healthier life, to have the liberty to pursue their own happiness.” Pelosi was channeling Thomas Jefferson’s eternal paen to freedom from the Declaration of Indpendence, which recognizes our “inalienable rights of life, liberty, and the pursuit of happiness.” President Obama delivered a similar message in his second inaugural address, evoking Jefferson. “That they are endowed by their creator with certain unalienable rights, and among these are life, liberty, and the pursuit of happiness. Today we continue a never ending journey to bridge the meaning of those words with the realities of our time. For history tells us that while these truths may be self-evident, they’ve never been self-executing. That while freedom is a gift from God, it must be secured by his people here on earth.” It is the people, through the collective, not the individual, that must secure these rights. [JB: I will add Obama’s inaugural address to this list]

After years of litigation, criticism, and political wrangling, the government had stated its case. “And I would urge this Court to respect that judgment and ask that the Affordable Care Act, in its entirety, be upheld. Thank you.”

Without skipping a beat, the Chief Justice said, “Thank you, General. Mr. Clement, you have 5 minutes.” Paul Clement rose to have the last word, and provided an impromptu rebuttal that offered a very different vision of what liberty means.

“Let me just finish by saying I certainly appreciate what the Solicitor General says, that when you support a policy, you think that the policy spreads the blessings of liberty.” After three long, hard-fought days of argument, Clement would have the last word on liberty–aimed directly at Justice Kennedy.

“But I would respectfully suggest that it’s a very funny conception of liberty that forces somebody to purchase an insurance policy whether they want it or not.” This was not the liberty of Justice Kennedy.

Clement echoed a point he had made in his brief: “The Constitution protects and promotes individual liberty, while the mandate’s threat to liberty is obvious. The power to compel a person to enter into an unwanted commercial relationship is not some modest step necessary and proper to perfect Congress’ authority to regulate existing commercial intercourse. It is a revolution in the relationship between the central government and the governed  . . .  However, by making clear that this uncabined authority is not among the limited and enumerated powers granted the federal government, this Court will preserve our basic constitutional structure and the individual liberty, state sovereignty, and government accountability it guarantees . . .  An individual can do very little to avoid the long arm of the federal government other than refrain from entering into the commerce that Congress may regulate. ”

Clement continued, “And it’s a very strange conception of federalism that says that we can simply give the States an offer that they can’t refuse, and through the spending power which is premised on the notion that Congress can do more because it’s voluntary, we can force the States to do whatever we tell them to. That is a direct threat to our federalism.” This was not the federalism of Justice Kennedy. Clement wrote, in his brief “If this is to remain a system of limited and enumerated federal powers that respects individual liberty, accountability, and the residual dignity and sovereignty of the States, the individual mandate cannot stand”

The Court only interrupted Clement once. No doubt they were exhausted too.

Just as the red light turned on, Clement finished. “Thank you.”

Chief Justice Roberts brought the proceedings to a close on Wednesday, March 28, 2012 at 2:24 p.m. “Thank you, Mr. Clement. And thank you, General Verrilli, Mr. Kneedler, Mr. Carvin, Mr. Katsas, and in particular, of course, Mr. Long and Mr. Farr. The case is submitted.”

After three grueling days, following three grueling years, and the case had come to a close. Or had it?

In response to a question from Stewart about whether the Justices pay attention to the media, Justice Sotomayor responded, “We’ren not monks. We don’t sit in a cave. We do read the newspapers. Some of us may watch Jon Stewart.”

Stewart smiled, dead-panned, looked right at the camera, and said, “Hello Clarence.” Sotomayor also said  activism “term people label an outcome they don’t like.”

Later Stewart mocked CNN and Fox (not by name) for blowing the ACA decision. Stewart said, “they went back and read page two” before they realized they were right. Actually, it was on page 3. CNN’s reporter was shown reading Page 2, which only showed RObert’s vote on ACA. The good stuff was on page 3.