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 BREYER: This is what -- we have always had the distinction between the public action and the private action. A public action, which does not exist under the Federal Constitution, is to vindicate the interest in the law being enforced. Now, when the government, State or Federal, in fact has the interest, a special interest in executing the law, here given to the President, and they can delegate that interest to Congress, if they did, which arguably they didn't do here. But to say that any legislator has an interest on his own without that delegation to defend the law is to import in that context the public action into the Federal Government.

Now, that -- it hasn't been done, I don't think, ever. I can see arguments for and against it, but I can't think of another instance where that's happened.

MR. CLEMENT: Well, I would -- a couple of things, Justice Breyer. I mean, I would point you to Chadha and I realize you can distinguish Chadha.

JUSTICE BREYER: Chadha is really different because of course there is an interest in the legislature in defending a procedure of the legislature. Now, that's -- that isn't tough. But this is, because the only interest I can see here is the interest in the law being enforced.

MR. CLEMENT: Well, if I -

JUSTICE BREYER: And that's -- I'm afraid of opening that door.

MR. CLEMENT: Well, it's understandable. I mean, obviously nobody's suggesting, at least in the Legislative Branch, that this is a best practices situation.

JUSTICE BREYER: No, no. But think of another instance where that's happened, where in all of the 12 cases or whatever that what this Court has said, without any special delegation of the power of the State or Federal Government to execute the law, without any special delegation, a legislator simply has the power, which a private citizen wouldn't have, to bring a lawsuit as a party or defend as a party to vindicate the interest in the law being enforced, the law he has voted for?

Now I can imagine arguments on both sides, so I'm asking you only, is there any case you can point me to which will help?

MR. CLEMENT: I can point to you a couple of cases that will help but may not be a complete solution for some of the reasons you built into your question. The cases I would point to help are Coleman v. Miller, Karcher v. May, and Arizonans for Official English. And all of those -- I don't think Coleman involved any specific legislative authorization, but you can distinguish it, I suppose.

But in trying to distinguish it, keep in mind that this Court gave those 20 Senators not just standing to make the argument about the role of the lieutenant governor, but also gave them standing to make the separate argument, which is the only one this Court reached, because it was divided four to four on the lieutenant governor's role, the only issue that the Court reached is the issue whether prior ratification disabled them from subsequent legislation action, which is just a way of saying what they did was unconstitutional.

So I think Coleman is quite close. Karcher, Arizonans against English, there was an authorization. We would say H. Res. 5 is enough of authorization for these purposes.

JUSTICE SOTOMAYOR: Can you tell me where the authorization is here? I know that there is a statute that gives the Senate specifically authorization to intervene and that there was consideration of extending that right to the House. But the appointment of BLAG is strange to me, because it's not in a statute, it's in a House rule.

So where -- how does that constitute anything other than a private agreement among some Senators, the House leadership? And where -- from where do they derive the right, the statutory right, to take on the power of representing the House in items outside of the House? I know they control the procedures within the House, but that's a very different step from saying that they can decide who or to create standing in some way, prudential or otherwise, Article III or otherwise.

MR. CLEMENT: Well, Justice Sotomayor, I can point you to two places. One is the House rules that are pursuant to the rulemaking authority and approved by the institution. They're approved in every Congress. Rule 2.8.

JUSTICE SOTOMAYOR: What other House Rule creates the power of the majority leaders to represent the House outside of the functions of the House?

MR. CLEMENT: I'm not sure there is another one, but that's the sole purpose of Rule 2.8. It creates the Office of the General Counsel -

JUSTICE SOTOMAYOR: This would be, I think, sort of unheard of, that -

MR. CLEMENT: I don't think so, Justice Sotomayor. That's the same authority that gave the House, essentially a predecessor to it -- - it would be the same authority that has had the House appear in litigation ever since Chadha. In Chadha there was a vote that authorized it specifically, but we have that here in H. Res. 5, which is the second place I would point you.

JUSTICE SOTOMAYOR: We don't even have a vote here.

MR. CLEMENT: We do. We do have a vote in H. Res. 5. At the beginning of this Congress in January, the House passed a resolution that passed, that authorized the BLAG to continue to represent the interests of the House in this particular litigation. So I think if there was a question before H. Res. 5, there shouldn't be now.

I would like to -

JUSTICE KENNEDY: Under your view, would the Senate have the right to have standing to take the other side of this case, so we have the House on one side and the Senate on the other?

MR. CLEMENT: No, Justice Kennedy, they wouldn't have the standing to be on the other side of this case. They would have standing to be on the same side of this case, and I think that's essentially what you had happen in the Chadha case.

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