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Wednesday, June 26, 2013

What is Scalia talking about?

Justice Scalia spends the last part of his standing discussion in Windsor criticizing Justice Alito's separate dissent arguing that BLAG (although not the United States) had standing to appeal to the Second Circuit and to SCOTUS. Scalia argues that this opens the door to Congress suing the executive in federal court for declining to enforce federal law (or for enforcing it inadequately). Alito certainly does not say this or even imply it (at least on my reading of that part of his opinion, which I've now done five times). Does it necessarily follow from allowing Congress to defend a law when the President declines to do so? Scalia's vision is appealing: only the executive enforces and defends federal law and if he fails to do so, the law goes unenforced/undefended and Congress is left to non-litigation means (impeachment, cutting off funds, etc.) to persuade/cajole the President to act.

True, there administrative problems that could result if Congress can trump executive litigation/enforcement decisions with which it disagrees. But it seems to me that Alito's theory of standing is, at the federal level, precisely what the majority in Hollingsworth (written by Roberts, joined by Scalia) demands when the state executive declines to enforce or defend: BLAG is part of an elected body, part of the government, and subject to the popular and electoral check of The People. That same theory should work the same way at the federal level.

Posted by Howard Wasserman on June 26, 2013 at 03:37 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink

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