On February 23, Attorney General Eric Holder announced in a letter to House Speaker John Boehner that President Obama had instructed him to no longer defend the constitutionality of the Defense of Marriage Act (DOMA), but that he would notify the courts of DOJ’s “interest in providing Congress a full and fair opportunity to participate in the litigation,” i.e., to defend DOMA. The president’s decision seems driven by politics and violates his law enforcement duty, calling into question the integrity of our justice system. It contravenes long-standing Justice Department policy to defend Acts of Congress unless no reasonable argument can be made in their defense or they infringe on core presidential constitutional authority, neither of which is the case with DOMA. Congress must now make sure that DOMA is adequately defended in court.

To that end, there are several federal statutes that authorize Congress to intervene and take over the defense of a statute when the Justice Department goes AWOL and such intervention has been upheld by the Supreme Court. Under 2 U.S.C. § 288e(a), the Senate has the right to intervene in litigation “in which the powers and responsibilities of Congress under the Constitution are placed at issue.” There is obviously no question that the constitutional power of Congress to pass DOMA is at issue in the litigation that has been filed against it. In order for the Senate’s Legal Counsel to appear on behalf of the Senate “or in the name of an officer, committee, subcommittee, or chairman of a committee or subcommittee,” the Senate must adopt a resolution authorizing intervention (2 U.S.C. § 288b(c)). This statute does not prevent members of the Senate from attempting to intervene or file amicus briefs in their personal capacities.

Similarly, under 2 U.S.C. § 130f(a) the General Counsel of the House of Representatives can “enter an appearance in any proceeding before any court of the United States” without compliance with admission requirements (except for the Supreme Court). This does not mean that the House’s General Counsel cannot appear before the Supreme Court; simply that in that court, he must comply with its admission requirements. Section 130f(b) requires the Attorney General to “notify the General Counsel” as required by 28 U.S.C. § 530D, which mandates that the Attorney General submit a report to Congress if he determines that he intends to refrain “from defending or asserting, in any judicial, administrative, or other proceeding, the constitutionality of any provision of any Federal statute.”

The House of Representatives can also hire private counsel because the term “General Counsel of the House of Representatives” is defined to include “any other person authorized and directed in accordance with the Rules of the House of Representatives to provide legal assistance and representation to the House” (2 USC § 130f(c)(3)). Under the Rules of the House of Representatives (Rule 2, Clause 8), “[t]he Office of General Counsel shall function pursuant to the direction of the Speaker.” The same Rule says that the Speaker shall “consult” with a Bipartisan Legal Advisory Group, “which shall include the majority and minority leaderships.” But that Group has no veto authority over the Speaker’s decisions, according to the plain text of the Rule. So the General Counsel (or private counsel) can be authorized by the Speaker alone to defend the constitutionality of DOMA. There is no federal statute, as in the Senate, requiring a resolution passed by the House.

One of the cases where congressional intervention occurred is INS v. Chadha, 462 U.S. 919 (1983). Both the House and Senate intervened after the Justice Department joined with the plaintiffs to argue that a provision of federal immigration law was unconstitutional. The provision authorized either house of Congress, by resolution, to veto the decision of the Attorney General to allow a deportable alien to remain in the United States. It was an attempt to micromanage the President’s prerogative to enforce the federal immigration law on the books.

The Supreme Court ultimately found this provision unconstitutional. The disagreement with the Attorney General over the deportation of the plaintiff involved a determination of policy that Congress could implement in only one way: “bicameral passage followed by presentment to the President” (462 U.S. at 954-955). However, relevant to the issue of the ability of Congress to defend DOMA, the Court held that both houses had standing to intervene in the Chadha case because the Court had “long held that Congress is the proper party to defend the validity of a statute when an agency of government, as a defendant charged with enforcing the statute, agrees with plaintiffs that the statute is inapplicable or unconstitutional” (462 U.S. at 940).

If the House of Representatives wants to intervene and defend DOMA now that DOJ has said it will not defend the law, the Speaker can authorize intervention or, if he chooses, he could submit the question for a House resolution vote. The House would also have to consider whether such a resolution would set a precedent calling for a vote when that is not required under the Rules of the House. For the Senate to intervene, a resolution would have to be approved authorizing such action.