LISTEN AND READ FOR YOURSELF: Audio and Transcript of Windsor Hearing

The complete audio and transcript of today's hearing has been released.

BY Michelle Garcia

March 27 2013 2:11 PM ET


Ms. Jackson, you have 4 minutes remaining.

REBUTTAL ARGUMENT OF VICKI C. JACKSON, ON BEHALF OF THE COURT-APPOINTED AMICUS CURIAE

MS. JACKSON: Thank you, Your Honor.

I have five points I'll try to get to.

Just very quickly, Justice Breyer, I only answered part of a question you asked me earlier, and I just want to say, the U.S. is asking this Court to tell it to pay money.

It's not asking for relief.

Justice Sotomayor, you asked me about how the issue could come up otherwise. I don't think I had a chance to mention, private party litigation, employees against employers, there's an interpleader action right now pending that was cited in the brief of the 287 employers -- on page 32 at note 54 -- giving examples of how the issue of DOMA's constitutionality could arise in private litigation.

In addition, State and local government employees might have, for example, FMLA claims in which the issue could arise. So I think that there are a number of ways in which the issue could arise.

On the question of what the purpose of 1252 could be if it wasn't to coincide with Article III injury that was raised by my -- my friend in his argument, I wonder whether the Court in Chadha wasn't saying something like this: 1252 was Congress's wish list. It was like -- like a citizen suit provision, to be exercised only to the extent that Article III power was there. That's a way to make sense out of what the Court is doing in the text and footnote there.

As to the question of BLAG, which has been very fully discussed already, I do want to say that after-the-fact authorization seems to me quite troubling and inconsistent with this Court's approach in Summers v. Earth Institute, and in the -- I think it was in the plurality in Lujan, where you -- you -- if a party has standing, they need to have it in the first court that they're in, either when it starts or certainly before judgment.

And the rule as Justice Sotomayor observed just doesn't seem to say anything about authority to litigate. I think that in addition, the -- the big problem here is the injury being complained of is inconsistent with the separation of powers.

Bowsher and Buckley make very clear that once the litigation is enacted, Congress's authority to supervise it is at an end. It goes over to the Executive Branch. And whether the Executive Branch does it well or badly in the view of Congress, it's in its domain. And separation of powers will not be meaningful if all it means is the Congress has to stay out unless it thinks that the President is doing it badly. So I think Article II helps give shape to what kinds of injuries alleged by parts of Congress can be cognizable.

Finally, the three -- two or three cases cited by my colleague who last spoke: Coleman, Karcher and Arizona, all involved State level of government, where the Federal separation of powers doctrines articulated in cases like Bowsher and Buckley were not at issue.

Unless there are other questions, I will sit down.

JUSTICE ALITO: Well, could I ask you this question: On the question of the House resolution --

MS. JACKSON: Yes, sir.

JUSTICE ALITO: -- if -- if a house -- if one of the houses passes a resolution saying that a particular group was always authorized to represent us, do you think it's consistent with the separation of powers for us to examine whether that's a correct interpretation of the rules of that House of Congress?

MS. JACKSON: Yes, I do, Your Honor, because that resolution is not something operating only internally within the House. It is having effect in the world of the Article III courts, which this Court, in proceedings in it, is in charge of.

Moreover, in the Smith case, the -- this Court said that when the Senate passed an after-the-fact interpretation of what a prior rule meant, notwithstanding the great respect given to the Senate's interpretation, this Court could reach and did reach an alternative interpretation of the meaning of the Senate rules, and I would urge this Court to do the same thing here.

JUSTICE BREYER: Maybe I -- as long as you have a minute, I -- what did you think of Mr. Clement's argument this way, that -- that the execution -- can I --

CHIEF JUSTICE ROBERTS: Sure.

JUSTICE BREYER: -- to execute the laws is in Article II, but where the President doesn't in a particular law, under those circumstances, a member of the legislature, appropriately authorized, has the constitutional power -- a power that is different than the average person being interested in seeing that the law is carried out; they can represent the power to vindicate the interest in seeing that the law is executed. And that's a special interest, existing only when the Executive declines to do so.

MS. JACKSON: Your Honor, I think that when the Executive declines to do so, it is exercising its Take Care Clause authority. The Take Care Clause says that the Executive shall take care that the laws be faithfully executed. I think the laws include the Constitution.

So I don't think the distinction offered by my colleague is -- is appropriate. I think it would result in a significant incursion on the separation of powers between the legislature and the Executive Branch, and would bring this -- the Federal courts into more controversies that have characteristics of interbranch confrontation, in which this Court has traditionally been very cautious.

CHIEF JUSTICE ROBERTS: Ms. Jackson, before you sit down, I would like to note that you briefed and argued this case as amicus curiae at the invitation of the Court, and you have ably discharged the responsibility, for which you have the gratitude of the Court.  

MS. JACKSON: Thank you, Your Honor.

CHIEF JUSTICE ROBERTS: Thank you.

We'll now take a very short break and turn to the merits.

(Recess.)

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