I have already made known my dislike of the Defense of Marriage Act (DOMA) on policy grounds and my view that same sex marriage is a matter for the states and not the federal government to resolve. Nonetheless, a credible and perhaps even a good case can be made that DOMA is Constitutional. That is an issue for the courts to decide, with both sides represented by counsel.
Some opponents of DOMA unfortunately have engaged in a protracted effort to deny DOMA supporters in Congress the right to counsel of their choice in these important cases. First came the pressure on King & Spalding and its corporate clients that led the firm to resign from representing the House of Representatives in the DOMA cases. That decision was soundly condemned by liberal and conservative newspapers around the country, including the New York Times, and also by the vast majority of legal ethics experts who commented on the matter. Former Solicitor General Paul Clement, who had been engaged for the representation, resigned from the firm and moved to another much smaller firm.
DOMA opponents, however, are not satisfied that Clement will not have the support apparatus that he would have had at King & Spalding. They want to make sure he doesn’t get paid. Their weapon of choice this time around is not boycotts, but the Antideficiency Act, a statute that Congress enacted to control unauthorized federal spending. The argument is that under the Antideficiency Act the Speaker of the House may not authorize the House’s Office of General Counsel to hire outside lawyers to represent the House in the DOMA cases because money was not specifically appropriated for that purpose. An ethics complaint filed against the Speaker by Citizens for Responsibility and Ethics in Government (CREW) can be found here:
The Antideficiency Act is a complex statute, but it is difficult to conceive that Congress would have intended the Act to prohibit the House from hiring an outside law firm when other branches of government hire outside contractors on a regular basis. And the Act does not say that Congress cannot do so. Congress also would not have intended the Act to require that each specific outside contract have a legislatively approved line item in the budget of a government agency or a house of Congress. The Act does not say that either. Finally, the Speaker’s office has made it clear that there are sufficient funds in this year’s budget for the House’s Office of General Counsel to pay the DOMA lawyers and that in future years funds can be allocated for this purpose from the general House budget. Another possible place to find these funds: the budget of the Department of Justice which is ordinarily charged with defending the laws of the United States in court, but chose not to do so in this instance because DOJ believes DOMA is unconstitutional. The cost of these cases could be reallocated from the DOJ budget to the House in future budgets if the House does not want this litigation to impact other House expenditures.
I will discuss specific provisions of the Antideficiency Act elsewhere, including comments to this post, but a more general concern is that rear-guard warfare against the right to counsel is not a fair way to fight our Nation’s most important Constitutional battles. Litigants fight those battles and judges decide who wins. Both sides are entitled to hire lawyers. And when one of those parties is a house of Congress, it is appropriate that its budget accommodate retaining lawyers who can do the job well.
And the precedent here is a dangerous one. Republicans are spearheading lawsuits to invalidate President Obama’s health care law and have persuaded some judges that parts of the law are unconstitutional. These cases will reach appellate courts and perhaps the Supreme Court soon after the next presidential election. Regardless of who is elected, and regardless of whether DOJ political appointees think the health care law is constitutional, DOJ should defend the law in court. If DOJ for any reason were to decline to do so, I would expect Congress to defend the law in court unless and until Congress repeals it. And I would expect Congress to do so with high quality appellate litigators hired at government expense, not by sending inexperienced staff attorneys into court to take on high priced lawyers that opponents will throw at them.
Judicial review of legislation is not a credible method of constitutional adjudication if the Executive Branch will not defend the acts of Congress in court and Congress itself is forbidden to do so. This is yet one more instance in which the right to counsel is critical to the survival of our form of government.
For those who do not like DOMA, the appropriate course of action is clear: ask Congress to repeal it. Or ask a court to strike it down. But don’t play games with the other side’s right to hire and compensate counsel.