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 KENNEDY: Well, why not? They're concerned about the argument and you say that the House of Representatives standing alone can come into the court. Why can't the Senate standing alone come into court and intervene on the other side?

MR. CLEMENT: It -- because it wouldn't have the authority to do so under Chadha. What -- Chadha makes the critical flipping of the switch that gives the House the ability to intervene as a party is that the Executive Branch declines to defend the statute. So if the Senate wants to come in and basically take -- share argument time or something as an amicus, they can, but there's no need for them to participate as -- as a party.

And I would want to emphasize that in the lower courts, participation by a party is absolutely critical. It doesn't make sense to have the party that wants to see the statute invalidated be in charge of the litigation in the district courts, because whether the statute is going to be invalidated is going to depend on what kind of record there is in the district court.

It'd be one thing, Justice Scalia, if all that happened is they entered consent judgment. I suppose then the thing would end, and then in the long run, the Executive would be forced to do their job and actually defend these statutes -

JUSTICE ALITO: Then why is -

MR. CLEMENT: -- but if that's not going to happen -

JUSTICE ALITO: Then why is it sufficient for one house to take the position that the statute is constitutional? The enactment of legislation requires both houses, and usually the signature of the President.

MR. CLEMENT: Justice Alito, I think it makes perfect sense in this context, because every - each individual house has a constitutional rule before a statute is repealed. And so yes, it takes two of them to make the law. But each of their's participation is necessary to repeal a law. So if the Executive wants to go into court and effectively seek the judicial repeal of a law, it makes sense that one house can essentially vindicate its role in our constitutional scheme by saying, wait a minute, we passed that law; it can't be repealed without our participation.

JUSTICE ALITO: Well, if the law is passed by a bare majority of one of the houses, then each member of that -- of that house who was part of the majority has the same interest in defending its constitutionality.

MR. CLEMENT: I don't think that's right after Raines, Justice Alito. In Raines, this Court carefully distinguished between the situation of an individual legislator and the situation of one of the houses as a whole. And it specifically said this might be a different case if we had that kind of vote. And that's what you have here. That's what you had in Chadha.

And again, I do think that -- I mean, the only alternatives here are really to say that the Executive absolutely must enforce these laws, and if they don't, I mean, because after all -- you know, I --I really don't understand why it's -- if they're not going to -- if they've made a determination that the law is unconstitutional, why it makes any sense for them to continue to enforce the law and put executive officers in the position of doing something that the President has determined is unconstitutional.

I mean, think about the qualified immunity implications of that for a minute. So that's problematic enough. But if they're going to be able to do that and get anything more than a consent judgment, then the House is going to have to be able to play its role, and it's going to have to play the role of a party. An amicus just doesn't get it done. And I really think, in a sense, the Executive gives the game away by conceding that our participation as an amicus here is necessary to solve what would otherwise be a glaring adverseness problem.

Because once you recognize that we can participate as an amicus, you've essentially recognized that there's nothing inherently executive about coming in and defending the constitutionality of an act of Congress. Or more to the point, there's nothing inherently unlegislative about coming in and making arguments in defense of the statute.

And if that's critical, absolutely necessary to ensure there's an adverse presentation of the issues, well, there's no reason the House should have to do that with one hand tied behind its back. If its participation is necessary, it should participate as a full party. And as I say, that's critically important in the lower courts so they can take depositions, build a factual record, and allow for a meaningful defense of the statute.

Because the alternative really puts the Executive Branch in an impossible position. It's a conflict of interest. They're the ones that are making litigation decisions to promote the defense of a statute they want to see invalidated. And if you want to see the problems with their position, look at Joint Appendix page 437. You will see the most anomalous motion to dismiss in the history of litigation: A motion to dismiss, filed by the United States, asking the district court not to dismiss the case.

I mean, that's what you get under their view of the world, and that doesn't serve as separation of powers.

JUSTICE KENNEDY: That -- that would give you intellectual whiplash. I'm going to have to think about that.

(Laughter.)

MR. CLEMENT: It -- it does. It does. And then -- you know -- and the last thing I'll say is, we saw in this case certain appeals were expedited, certain appeals weren't. They did not serve the interest of defending the statute, they served the distinct interest of the Executive.

Thank you.

CHIEF JUSTICE ROBERTS: Thank you, counsel.

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