The tendency toward a firm enforcement of the Constitution’s structural provisions was built into conservative constitutionalism from the beginning.
The standing issues in the gay marriage cases have received some attention from Mike Ramsey, Neil Devins and Tara Grove, and Linda Greenhouse. Mike writes mainly from an originalist perspective, whereas the other authors adopt more eclectic approaches. While I haven’t studied the gay marriage cases closely, let me here give some preliminary thoughts from an originalist perspective, focusing on the DOMA case. Needless to say, the correct answers based on current law are likely to differ from the originalist answers.
1. From an originalist perspective, standing doctrine is a mess. We simply do not know whether standing is consistent with the original meaning. Bob Pushaw argues that standing is largely not constitutionally required; Caleb Nelson and Ann Woolhander suggest it might be. If it is not constitutionally required, then most of these issues go away. So let’s assume it is. But even if standing is required, there are still many open issues from an originalist perspective, such as those involving executive power.
2. It is probably the case that the executive power includes the power to enforce the law and to defend the executive’s actions in court.
3. In the DOMA case, the Obama Administration enforced the law, but refused to defend the law in court.
4. There are several plausible positions on executive power – I say plausible here, because determining the correct position from an originalist perspective is quite difficult and certainly not possible in a blog post.
5. The Obama Administration could have not enforced the law on the grounds it was unconstitutional. It chose, however, to enforce it (by requiring Edith Windsor to pay an estate tax on an estate she inherited from her same sex spouse that would not have been required if their marriage had been an opposite sex one).
6. The Obama Administration’s enforcement of the law creates standing. There is a concrete dispute between Edith Windsor and the federal government. The Obama Administration’s refusal to defend the law in court, though, creates additional issues.
7. One possibility is that the Obama Administration simply loses. If one does not defend oneself in court, the court is authorized to decide the case against you in a pretty summary way.
8. Another possibility is that the Obama Administration can choose to assign the task of defending the statute to another group, such as the House or BLAG. But that assignment would be of the power to file the brief of the United States. And the Obama Administration would ideally review and approve the brief, even though it would not have to agree with it. (This alternative would only be problematic if filing such a brief is an action of an executive official and the executive lacked constitutional or statutory power to appoint the person filing the brief – complicated issues here, which I am omitting.)
9. Devins and Grove suggest that the Court can appoint an amicus to defend the law. I do not believe that an amicus can act as the proper defender of the law. An amicus is simply a private party. The defender of the law is acting as a representative of the United States. Assuming that the Court can appoint an amicus, the amicus cannot act as the defender of the law for the United States without executive branch review. At the least, the Obama Administration must have the power to review and potentially control the amicus that is filing the brief of the United States.
10. To conclude: I think the House can defend the law, without executive approval, only if there is no significant standing doctrine. If there is such a doctrine, then the Obama Administration must have the power to control the actions of any amicus or attorney who is defending the law as a representative of the executive branch. Since the Obama Administration does not seem to have that authority, the defense of the law by the House (actually BLAG) is problematic.