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

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



CHIEF JUSTICE ROBERTS: Thank you, counsel. Mr. Clement?


MR. CLEMENT (pictured left): Thank you, Mr. Chief Justice, and may it please the Court:

This Court not only addressed the issue of the House's standing in Chadha; it held that the House is the proper party to defend the constitutionality of an Act of Congress when the executive agency charged with its enforcement agrees with plaintiff that the statute is unconstitutional.

JUSTICE SOTOMAYOR: Mr. Clement, Chadha was somewhat different because there was a unique House prerogative in question. But how is this case any different than enforcing the general laws of the United States? There's no unique House power granted by the legislation.

MR. CLEMENT: Well, Justice Sotomayor -

JUSTICE SOTOMAYOR: It's a law of the United States and the person who defends it generally is the Solicitor -- Solicitor General.

MR. CLEMENT: Sure, generally, unless and until they stop defending it, at which point we submit -

JUSTICE SOTOMAYOR: Well, then, why shouldn't -- why shouldn't taxpayers have a right to come in? And we say they don't.

MR. CLEMENT: Because the House is very -in a very different position in a case like this and in Chadha from just the general taxpayer. Now, in a case like Chadha, for example, you're right, it was the one-house veto, if you will, that was at issue. But it would be a strange jurisprudence that says that the House has standing to come in and defend an unconstitutional one-house veto, but it doesn't have standing to come in and defend its core Article I prerogative, which is to pass statutes and have those statutes -

JUSTICE KENNEDY: Well, that -- that assumes the premise. We didn't -- the House didn't know it was unconstitutional. I mean -

MR. CLEMENT: Well, with all due respect, Justice Kennedy, I think the House -

JUSTICE KENNEDY: We are talking about ex ante, not ex post, what is standing at the outset? And the House says this is constitutional.

MR. CLEMENT: Sure. And there is a presumption that its acts are constitutional. That presumption had real life here because when Congress was considering this statute it asked the Justice Department three times whether DOMA was constitutional, and three times the Justice Department told them that it was in fact constitutional. So I think it's a fair assumption that they at least have standing to have that determination made by the courts, and this Court has held that in the context of State legislatures and the courts have -

JUSTICE KENNEDY: So you don't think that there is anything to the argument that in Chadha the House had its own unique institutional responsibilities and prerogatives at stake, either the one-house veto or the legislative veto?

MR. CLEMENT: Well, I would say two things.

JUSTICE KENNEDY: That's irrelevant?

MR. CLEMENT: I don't think -- I don't think it's irrelevant. I would say two things. One is, I don't think there was anything particularized about the fact that it was the House that exercised the one-house veto, because the Court allowed the Senate to participate as well and the Senate's interest in that was really just the constitutionality of the legislation and perhaps the one-house veto going forward.

But what I would say is I just -- I would continue to resist the premise, which is that the House's prerogatives aren't at stake here. The House's single most important prerogative, which is to pass legislation and have that legislation, if it's going to be repealed, only be repealed through a process where the House gets to fully participate.

CHIEF JUSTICE ROBERTS: What if you -- what if you disagree with -- the executive is defending one of your laws, if that's the way you insist on viewing it, and you don't like their arguments, you say, they are not making the best argument. Is that a situation in which you have standing to intervene to defend the law in a different way than the executive?

MR. CLEMENT: No, I would say we would not, Mr. Chief Justice. I would say in that circumstance the House would have the prerogative to file an amicus brief if it wanted to, but that's because of a sound prudential reason, which is when the Executive is actually discharging its responsibility, its traditional obligation to defend an Act of Congress, if Congress comes in as a party it has the possibility of second-guessing the way that they are actually defending it.

But if the Executive is going to vacate the premises or, in a case like this, not just vacate the premises, but stay in court and attack the statute, you don't have that prudential concern. And that's why -

JUSTICE KAGAN: How about a couple of cases sort of in the middle of the Chief Justice's and this one? So let's say that the Attorney General decides that a particular application of the statute is unconstitutional and decides to give up on that application. Or even let's say the Attorney General decides that the application of the statute might be unconstitutional, so decides to interpret the statute narrowly in order to avoid that application. Could Congress then come in?

MR. CLEMENT: Well, I think -- if in a particular case, which is obviously not this case, the Executive decides, we are not going to defend the statute as applied I think in that situation the House could come in. I think as a matter of practice it probably wouldn't.

And it's not like the House and the Senate are very anxious to exercise this prerogative. In the 30 years since the Chadha decision, there's only been 12 instances in which the -- in which the House has come in and intervened as a party. And I think it's very important to recognize that whatever -

JUSTICE GINSBURG: Does that include the -does that include the courts of appeals or just this Court?

MR. CLEMENT: That includes all courts, but excluding the DOMA cases. So from the point of Chadha until the DOMA cases, there were a total of 12 cases where the House intervened as a party.

And I do think that particularly in the lower court cases, it's very important to understand that party status is critical. I mean, in this case it doesn't make a huge differences if you are an amicus with argument time versus a party. But in the district court that makes all the difference. Only a party can take a deposition.