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Paul D. Clement (DC Bar 433215) 2 pclement@bancroftpllc.com H. Christopher Bartolomucci (DC Bar 453423) 3 cbartolomucci@bancroftpllc.com 4 Nicholas J. Nelson (DC Bar 1001696) nnelson@bancroftpllc.com 5 6 BANCROFT PLLC 1919 M Street, N.W. 7 Suite 470 8 Washington, D.C. 20036 202-234-0090 (telephone) 9 202-234-2806 (facsimile) 10 Of Counsel: 11 Kerry W. Kircher, General Counsel (DC Bar 386816) 12 Kerry.Kircher@mail.house.gov William Pittard, Deputy General Counsel (DC Bar 482949) 13 William.Pittard@mail.house.gov 14 Christine Davenport, Senior Assistant Counsel (NJ Bar 043682000) Christine.Davenport@mail.house.gov 15 Todd B. Tatelman, Assistant Counsel (VA Bar 66008) 16 Todd.Tatelman@mail.house.gov Mary Beth Walker, Assistant Counsel (DC Bar 501033) 17 MaryBeth.Walker@mail.house.gov 18 OFFICE OF GENERAL COUNSEL, 19 U.S. HOUSE OF REPRESENTATIVES 20 219 Cannon House Office Building Washington, D.C. 20515 21 202-225-9700 (telephone) 22 202-226-1360 (facsimile) 23 Counsel for Proposed Intervenor-Defendant Bipartisan 24 Legal Advisory Group of the U.S. House of Representatives 25 26 27 28

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA Western Division ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. 8:12-cv-01137-CBM (AJWx) REPLY TO EXECUTIVE BRANCH DEFENDANTS RESPONSE TO MOTION OF BIPARTISAN LEGAL ADVISORY GROUP OF THE U.S. HOUSE OF REPRESENTATIVES FOR LEAVE TO INTERVENE Hearing: September 24, 2012 Time: 11:00 am Hon. Consuelo B. Marshall

MARTIN R. ARANAS, et al., Plaintiffs,

v. JANET NAPOLITANO, et al., Defendants.

Plaintiffs challenge the constitutionality Section 3 of the Defense of Marriage Act (DOMA), codified at 1 U.S.C. 7, and seek for themselves and for an as yet uncertified class relief that includes a declaration that DOMA

18 Section 3 is unconstitutional. 19 20 21 that the Justice Department would cease defending DOMA Section 3. See Mem. 22 of P. & A. in Supp. of Mot. of the [House] for Leave to Intervene at 3-5 (Aug. 23, 23 24 25 articulated the Departments interest in providing Congress a full and fair 26 opportunity to participate in civil actions in which the constitutionality of that 27 28 1 2012) (ECF No. 19) (House Mem.). In so announcing, the Attorney General As the Court is aware, the Attorney General announced in February 2011,

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statute has been placed at issue. Id. at 4 (quoting Letter from Eric H. Holder, Jr., Atty Gen., to the Hon. John A. Boehner, Speaker, U.S. House of Representatives

1 4 at 6 (Feb. 23, 2011) (Holder Letter)). Taking the Attorney General at his word,

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the Bipartisan Legal Advisory Group of the House (House) has moved to intervene here as a party defendant in this case because that is the only way for the

8 House fully and fairly to participate in the litigation. 9 10 11 professions of non-opposition Defendants do not oppose [the Houses] motion 12 to intervene, Defs. Resp. to the Mot. of the [House] for Leave to Intervene at 1 13 14 15 reduce the House to the status of amicus curiae by questioning the Houses 16 standing to intervene, id. at 2, proposing to limit the House to present[ing] 17 18 19 defend a validly enacted statute that the Department itself refuses to defend, id. at 20 2-3. 21 22 23 defends the statute, effectively is asserting the authority, unilaterally, to preclude 24 judicial determination of the constitutionality of Acts of Congress. See infra at 725
See also Letter from Judith C. Appelbaum, Acting Asst Atty Gen., to the Hon. John A. 26 Boehner, Speaker, U.S. House of Representatives, attached to [Dept] Notice to the Ct. (July 25, 2012) (ECF No. 5-3) (advising House that Department will not defend Section 3 in this case).
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The Department has now responded. Notwithstanding its continued

(Aug. 31, 2012) (ECF No. 25) (DOJ Resp.) the Department effectively seeks to

arguments, id., and asserting a right to act as gatekeeper for the Houses efforts to

The Department, by attempting to control the manner in which the House

27 28 2

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9. This is a naked power play which the federal judiciary rightly has rejected. To date, the House has moved to intervene in 14 other DOMA Section 3 cases, and the

4 Department has advanced the same arguments in virtually every one of those cases, 5 6 7 Cooper-Harris v. United States, No. 2:12-cv- 00887 (C.D. Cal.)). Every federal 8 court that has ruled on this issue including this Court twice has permitted the 9 10 11 sustained the Departments extreme position. And this Court, again, should reject 12 the Departments attempt to prevent the House from participating in this case as a 13 14 15 Where, as here, the Department refuses to carry out its constitutional 16 obligations to defend a duly-enacted federal statute, Congress is empowered to 17 18 19 and not the Executive, to make the ultimate determination of the statutes 20 constitutionality: We have long held that Congress is the proper party to defend 21 22 23 with enforcing the statute, agrees with plaintiffs that the statute is inapplicable or 24 unconstitutional. INS v. Chadha, 462 U.S. 919, 940, 103 S. Ct. 2764, 77 L. Ed. 25 26 27 28 3 2d 317 (1983) (citing Cheng Fan Kwok v. INS, 392 U.S. 206, 210 n.9, 88 S. Ct. the validity of a statute when an agency of government, as a defendant charged intervene, without restriction, to defend the statute in order to enable the Judiciary, party defendant to defend DOMA Section 3. House to intervene as a party, see House Mem. at 6 & n.4, and no court has including twice in this Court (Lui v. Holder, No. 2:11-cv-01267 (C.D. Cal.), and

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1970, 20 L. Ed. 2d 1037 (1968); United States v. Lovett, 328 U.S. 303, 66 S. Ct. 1073, 90 L. Ed. 1252 (1946)). 1. The House Has Standing. The Department suggests the House lacks standing to be a party in this litigation. See DOJ Resp. at 2 (Congresss interest in the constitutional validity of a law does not confer standing to enter an action as a

8 party any more than citizens with a generalized grievance would have standing to 9 10 11 including explaining why this Court need not reach the issue. See id. at 16-18. 12 The House believes, and the Department appears to agree, see DOJ Resp. at 2, that 13 14 15 If, however, the Court concludes that it must address the issue of the 16 Houses standing to intervene, the Court need look no further than Chadha, 462 17 18 19 by Perry v. Brown, 671 F.3d 1052, 1070-74 (9th Cir. 2012), which upheld the 20 intervention of, and subsequent appeal by, the non-governmental sponsors of a 21 22 23 would neither defend nor appeal. See also Perry v. Brown, 52 Cal. 4th 1116, 115924 61, 134 Cal. Rptr. 3d 499, 265 P.3d 1002 (Cal. 2011) (intervention rights ran not 25 26 27 28 proponents of ballot initiative). If even non-governmental actors are entitled to 4 only to co-equal branch of State government, but also non-governmental California constitutional ballot initiative (Proposition 8), which the State itself U.S. 919. See House Mem. at 18-19. The Houses position here also is supported there is an existing case or controversy here. do so . . . .). We already have addressed this issue, see House Mem. at 16-20,

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intervene to defend a law when the Executive refuses to do its job, a fortiori the Legislative Branch of the federal government is entitled to intervene when the

2 4 Department refuses to defend a duly-enacted federal statute.

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2. The House Is Entitled to Do More than Just Present Arguments. The Departments suggestion that the House be limited to present[ing] arguments,

8 DOJ Resp. at 2 n.2, also must be rejected. Such a narrow role is not consistent 9 10 11 clear, is the proper capacity for the House where the Department defaults on its 12 constitutional responsibility to defend a duly-enacted statute: Congress is the 13 14 15 defendant charged with enforcing the statute, agrees with plaintiffs that the statute 16 is inapplicable or unconstitutional. Chadha, 462 U.S. at 940 (emphasis added). 17 18 19 20 21 22 23 24 25 26 27 28 5
Both Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 102 S. Ct. 752, 70 L. Ed. 2d 700 (1982), and Newdow v. U.S. Congress, 313 F.3d 495 (9th Cir. 2002), cited by the Department, are inapposite. Valley Forge stands only for the unremarkable proposition that status as a U.S. citizen and/or taxpayer does not alone confer standing to challenge government action (or inaction). And in Newdow, the Ninth Circuit denied the Senates request to intervene in an Establishment Clause case that challenged, among other things, a federal statute inserting the words under God into the Pledge of Allegiance, where (i) the Senate sought to intervene pursuant to a statute (2 U.S.C. 288e(a)) that specifically limited Senate intervention to cases in which the powers and responsibilities of Congress under the Constitution . . . are placed in issue, 313 F.3d at 497, and (ii) most importantly, the Department actively was defending the constitutionality of the statute in the litigation (so that the question of independent intervenor standing did not arise). In so holding, the Ninth Circuit distinguished a number of cases in which, unlike in Newdow (but exactly as here), a congressional body successfully intervened to defend the constitutionality of a statute the Department refused to defend. Newdow, 313 F.3d at 498.
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with the status of an intervenor-defendant which, the Supreme Court has made

proper party to defend the validity of a statute when an agency of government, as a

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And once the House is permitted to intervene as a party defendant, with full responsibility for defense of the statute, it must have the same rights as any other

4 party, including the right to take discovery, if necessary; the right to file dispositive 5 6 7 also United States v. City of Los Angeles, 288 F.3d 391, 400 (9th Cir. 2002) 8 (reversing denial of intervention: amicus status is insufficient to protect the 9 10 11 12 13 14 15 DOJ Resp. at 3. But that is irrelevant because both of those actions predated the 16 Supreme Courts decision in Chadha. Furthermore, the procedural history of 17 18 19 Senate moved to intervene in the Ninth Circuit in order to petition for certiorari. 20 See Chadha, 462 U.S. at 930 n.5. The Ninth Circuit granted that motion, and not 21 22 23 House and Senate petitions for certiorari, specifically disregarding the 24 Departments suggestion that its appeal rendered those petitions for certiorari 25 26 27 28 petitions for writs of certiorari]. Id. at 939. As a result, the Departments appeal 6 superfluous: Congress is . . . a proper petitioner under [the statute governing mentioned by the Department the Supreme Court then granted the subsequent Chadha itself refutes the Departments position. In that case, the House and intervenor] to raise issues or arguments formally and gives it no right of appeal.). The Department notes that it supported Supreme Court review of challenged statutes in Chadha (by filing an appeal) and Lovett (by petitioning for certiorari). [proposed intervenor]s rights because such status does not allow the [proposed and procedural motions; and the right to appeal or petition for certiorari. Id.; see

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was irrelevant, which means the Supreme Court flatly has rejected the Departments suggestion that the House must be relegated merely to present[ing]

4 arguments. DOJ Resp. at 2 n.2. See also House Mem. at 18-19. 5 6 7 statement that [w]e have long held that Congress is the proper party to defend the 8 validity of a statute when an agency of government, as a defendant charged with 9 10 11 12 13 14 15 procedural steps . . . to enable [the House] to present arguments in defense of 16 DOMA Section 3, DOJ Resp. at 2; does not need the Department to file motions 17 18 19 constitutional issue and that the Court has jurisdiction to enter judgment, id. at 220 3; and does not need the Departments assistance to invoke the jurisdiction of the 21 22 23 blessing or approval to defend DOMA in such manner as the House deems fit. See 24 Chadha, 462 U.S. at 928, 930 n.5, 931 n.6, 939-40. 25 26 27 28 power effectively to preclude judicial determination of a statutes constitutionality 7 The legal implication of the Departments position here is that it has the Supreme Court, id. at 3. In short, the House does not need the Departments . . . to ensure that this Court can consider arguments on both sides of the unconstitutional. Chadha, 462 U.S. at 940. 3. The House Does Not Need the Departments Assistance to Defend DOMA. It follows that the House does not need the Department to take enforcing the statute, agrees with plaintiffs that the statute is inapplicable or As to Lovett, the Supreme Court cited that case in Chadha in support of its

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by (i) first refusing to defend a statutes constitutionality, and (ii) then withholding or withdrawing its commitment to provide Congress a full and fair opportunity to

4 participate in the litigation. DOJ Resp. at 2. Denying the House the ability to 5 6 7 Department refuses to defend would be tantamount to providing the Executive 8 Branch with an extra-constitutional post-enactment veto over federal statutes to 9 10 11 which it objects, as the Department has tacitly admitted this before the Ninth Circuit.3 But this is a power this Circuit rightly has said does not exist. See Lear intervene, as a full party, to defend the constitutionality of Acts of Congress the

12 Siegler, Inc. v. Lehman, 842 F.2d 1102, 1122 (9th Cir. 1988) (law does not permit 13 14 15 powers or thwart the constitutional functions of a coordinate branch), vacated in 16 part on other grounds, 893 F.2d 205 (9th Cir. 1989). 17 18 19 untenable. The Department has made clear that it will continue to represent the 20 interests of the Executive Branch in this and other DOMA cases. See Holder 21 22 23 a result, the Department cannot as a practical matter let alone as an ethical matter 24 at same time facilitate the Houses defense of the statute. Indeed, that die was 25 26 27 28 8
See Reply Br. for the Office of Pers. Mgmt. at 16 n.7, Golinski v. Office of Pers. Mgmt., Nos. 12-15388, 12-15409 (July 31, 2012) (ECF No. 149).
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the executive branch to interpret the Constitution so as to assume additional

The practical implications of the Departments position are equally

Letter at 6. Thus, the Department has a client, and that client is not the House. As

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very plainly cast when the Department moved beyond what the Attorney General publicly said it would do i.e., simply not defend the statute, Holder Letter at 5

4 to its unprecedented efforts affirmatively to bring down the statute. See House 5 6 7 with the plaintiffs in the DOMA cases, and in opposition to the Legislative Branch. 8 Indeed, the Department cannot even support the Houses effort to intervene here 9 10 11 earlier conduct in the other 14 DOMA cases simply confirms the self-evident fact 12 that it is pursuing the Executive Branchs perceived interests in these cases and 13 14 15
4

Mem. at 11 n.5.4 At that point, the Executive Branch effectively realigned itself

without, at the same time, trying to hamstring the House. And the Departments

in ways that hinder, rather than facilitate, the Houses defense of the statute.5

We say unprecedented because while the Department, on a very few occasions, has

16 challenged Acts of Congress that, in its view, unconstitutionally restricted or infringed the 17 actions here, to our knowledge, wholly without precedent. See Amici Curiae Br. of . . . Edwin 18 Meese III and John Ashcroft, Golinski v. OPM, Nos. 12-15388 & 12-15409 (9th Cir. June 11,
2012) (ECF No. 44), attached hereto.
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powers of the Executive Branch, DOMA Section 3 plainly is not such a statute, making DOJs

19

For example: (1) To date, the Department, in virtually every DOMA case has filed

20 briefs and memoranda affirmatively attacking DOMA Section 3s constitutionality over the 21 House Mem. at 11 n.5. (2) In the Bishop case, over the Houses protest, the Department refused 22 to (i) seek dismissal of plaintiffs DOMA Section 3 claims on legitimate standing grounds, and 23 24 25 26 27 28
Houses protests and each of those briefs and memoranda has required a House response. See

instead stipulated to plaintiffs standing, see Resp. of [the Dept] to Pls. Notice to the Ct., Bishop v. United States, No. 04-cv-848 (N.D. Okla. Aug. 8, 2010) (ECF No. 169), or (ii) defend against plaintiffs substantive due process claims, forcing the House to shoulder those burdens, see Resp. of [the Dept] to [Houses] Cross-Mot. for Summ. J., Bishop, No. 04-cv-848 (N.D. Okla. Nov. 18, 2011) (ECF 225); Consolidated Cross-Br. in Supp. of [Houses] Cross-Mot. for Summ. J. . . . , Bishop, 04-cv-848 (N.D. Okla. Oct. 19, 2011) (ECF No. 215). (3) In the TorresBarragan case, the Department moved to dismiss a pending appeal in a DOMA Section 3 case, even after the House specifically asked the Department not to take that step. See [Houses] Mot. (Continued . . . .)

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CONCLUSION For all the reasons stated above and earlier, the Court should decline to sign

4 the proposed Order submitted by the Department; decline the Departments 5 6 7 Legislative and Executive Branches, and interfere with the orderly consideration 8 by the Judiciary of the constitutionality of DOMA Section 3; and grant the Houses 9 10 11 12 13 14 15 16 17 18 19 20 21 22 for Denial of Voluntary Dismissal at 2, Torres-Barragan v. Holder, No. 10-55768 (9th Cir. Mar. 23 24 25 26 27 28 10
15, 2012) (ECF No. 52-1). (4) In the Pedersen case, the Department, even though it prevailed before the District Court, filed its own notice of appeal to the Second Circuit, a move which benefitted only the plaintiffs, without bothering to consult with the House, the only party actually aggrieved by the judgment. See Notice of Appeal, Pedersen v. Office of Pers. Mgmt., 3:10-cv01750 (D. Conn. Aug. 17, 2012) (ECF No. 119). (5) And, in the Cooper-Harris case, now pending before this Court, the Department has refused to tell the House whether it will raise legitimate jurisdictional issues. See Joint Conference Rep. Pursuant to Fed. R. Civ. P. 26(f) at 3, Cooper-Harris v. United States, No. 2:12-cv-887 (C.D. Cal. Aug. 17, 2012) (ECF No. 51).

invitation to create conditions that would further strain relations between the

motion to intervene as a full party defendant.

Respectfully submitted, BANCROFT PLLC By: /s/ Paul D. Clement Paul D. Clement Counsel for Proposed Intervenor-Defendant Bipartisan Legal Advisory Group of the U.S. House of Representatives September 7, 2012

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CERTIFICATE OF SERVICE I hereby certify that on September 7, 2012, I electronically filed the

4 foregoing Reply to Executive Branch Defendants Response to Motion of 5 6 7 to Intervene with the Clerk of Court by using the CM/ECF system, which provided 8 an electronic notice and electronic link of the same to the following attorneys of 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Peter A. Schey, Esq. Carlos Holguin, Esq. CENTER FOR HUMAN RIGHTS AND CONSTITUTIONAL LAW 256 South Occidental Boulevard Los Angeles, CA 90057 Julie Greenwald Marzouk, Esq. Monica Nikole Ashiku, Esq. PUBLIC LAW CENTER 601 Civic Center Drive West Santa Ana, CA 92701 Beatrice Ann M. Pangilinan, Esq. ASIAN LAW ALLIANCE 184 Jackson Street San Jose, CA 95112 record through the Courts CM/ECF system: Bipartisan Legal Advisory Group of the U.S. House of Representatives for Leave

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Gary H. Manulkin, Esq. Reyna M. Tanner, Esq. LAW OFFICES OF MANULKIN & BENNETT 10175 Slater Avenue, Suite 111 Fountain Valley, CA 92708 Jesi J. Carlson, Esq. Timothy Michael Belson, Esq. UNITED STATES DEPARTMENT OF JUSTICE Office of Immigration Litigation P.O. Box 868, Ben Franklin Station Washington, DC 20044

/s/ Kerry W. Kircher Kerry W. Kircher