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

JUSTICE KAGAN: Mr. Srinivasan, Chadha says what you said it said about what it means to be aggrieved -

MR.SRINIVASAN: Yes.

JUSTICE KAGAN: -- but Chadha also left open the Article III question. Why did Chadha leave it open if it's the same thing?

MR. SRINIVASAN: I don't -- I don't know why Chadha didn't engage on it in particular. I think part of it, Justice Kagan, is that the Court didn't have the methodology at that point in time that it does now. Don't know that it neatly divided between those questions in the same way. So yes, it left the Article III question open, but I think the question of Article III injury necessarily follows from aggrievement and I haven't -- I haven't heard a persuasive argument to the contrary.

If we were aggrieved in the circumstances of Chadha, it seems to me it necessarily follows that we're injured. We're injured in a couple of ways. An act of Congress has been declared unconstitutional, which Chadha itself says constitutes aggrievement and therefore constitutes injury. In this case also, we're required to pay a judgment -

JUSTICE SCALIA: Didn't Chadha -- didn't Chadha suggest that Congress could have standing in -in Chadha?

MR. SRINIVASAN: I'm sorry?

JUSTICE SCALIA: In Chadha, there was an argument that Congress had standing, because what was at issue in the case was precisely a prerogative of Congress to exercise the one-house or two-house veto.

MR. SRINIVASAN: There wasn't a -- there -that was an issue in Chadha. I don't know that that issue was joined, actually, Justice Scalia. The Court did say at page 939 of its opinion that Congress is a proper party to defend the constitutionality of the Act and a proper petitioner, and I think that's the best language for the other side on this issue.

CHIEF JUSTICE ROBERTS: So you say we shouldn't be concerned about that part of Chadha because the issue wasn't joined there?

MR. SRINIVASAN: Well, I don't -- I don't read the --

CHIEF JUSTICE ROBERTS: But we should take Lovett as a binding precedent even though the issue wasn't addressed at all?

MR. SRINIVASAN: I didn't -- to be -- to be fair or, as was suggested this morning, to be cricket, I -- I didn't mean to suggest that Lovett is binding precedent, Mr. Chief Justice. What I'm saying is Lovett is a case in which this same scenario as happens here occurred. That's my -- that's my point about Lovett.

JUSTICE SOTOMAYOR: All right. Let's go to the BLAG issue.

MR. SRINIVASAN: So -- sure.

JUSTICE SOTOMAYOR: And the issue wasn't joined. So what do you think we meant? And I know Justice Scalia doesn't care what you think we meant.

MR. SRINIVASAN: Right. Well -

JUSTICE SOTOMAYOR: But what is your reading of what that means, that Congress can -

MR. SRINIVASAN: I think that -

JUSTICE SOTOMAYOR: -- intervene in situations in which its interests are injured?

MR. SRINIVASAN: Sure. So there are two aspects of Chadha that are relevant on pages 939 and 940. The second discussion at page 940, I think, deals with prudential considerations that this Court ought to take into account to make sure that it has a sufficient adverse presentation of the competing arguments before it.

And that's accounted for by an amicus type role, and I think that's what the Court had in mind in Chadha, because the two cases that are cited in support of that proposition were both cases in which there was an appointed amicus. So that -- that deals with that aspect of Chadha.

The other aspect of Chadha is the sentence that I alluded to earlier. And I guess I'm not -- I'm not going to tell you that that sentence doesn't bear on the issue at all, but I will say this: What's cited in that sentence is 28 U.S.C. 1254. So I think the point that was directly -directly being made is that the House and Senate were parties for purposes of the statute and they were parties because they had intervened and so they had party status.

JUSTICE SOTOMAYOR: So are you accepting the amici's formulation that somehow the representative has to be of both houses and not just one?

MR. SRINIVASAN: No. I guess my -- my point is a little bit different. My point is that this was talking about whether they're a party for statutory purposes under 1254. I don't read this to address the question of Article III standing.

On the question of Article III standing, I guess what I would say is this: Chadha at most, if it says anything about Article III standing -- and I don't know that it does with respect to the House or Senate -at most what it would say was in the unique circumstances of that case, where you had a legislative veto that uniquely affected a congressional prerogative --

JUSTICE SOTOMAYOR: So you take the position that Congress -

MR.SRINIVASAN: -- there might be standing in that situation. Even that I don't want to concede, but -

JUSTICE SOTOMAYOR: Well, I want to know what you're conceding.

MR. SRINIVASAN: I'm conceding that at most -

JUSTICE SOTOMAYOR: Let's assume this very case. Would -- who would ever have standing on behalf of Congress? Anyone? Or are you saying there's never standing?

MR. SRINIVASAN: Well, there are two different cases. This case is different, because this case doesn't involve the kind of unique congressional prerogative that was at issue in Chadha. Chadha involved a legislative veto.

Here, if I could just finish this -

CHIEF JUSTICE ROBERTS: You can finish your sentence.

MR. SRINIVASAN: -- this thought. Thank you, Mr. Chief Justice.
Here, I don't think the interest that's being asserted is even in the same plane as the one that was asserted and found deficient in Raines v. Byrd.

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