Amicus brief: U.S. Supreme Court does not have authority to rule on DOMA

Harvard professor argues Obama's agreement with lower court rulings on DOMA trumps Justices' power

The U.S. Supreme Court does not have the authority to rule on the constitutionality of the federal Defense of Marriage Act (DOMA), argued a Harvard professor in a brief filed Thursday with the high court.

In an amicus brief, Professor, Vicki C. Jackson contends that the Obama Administration’s agreement with a lower court rulings that DOMA is unconstitutional, strips the Justices’ authority to rule on DOMA, and that the House of Representatives’ GOP leadership does not have a right to appear in the case under Article III of the Constitution.

Jackson asserts that the GOP-led Bipartisan Legal Advisory Group (BLAG), is — by its own definition — an “advisory body” in the House, and does not have the authority to speak for the entire House, or Congress as a whole, reported SCOTUS Blog.

“It is the Executive Branch, not Congress, that is obligated to ‘take Care’ that laws are enforced. Moreover, any injury that might arise from non-defense of a law would be to the whole Congress, which one House cannot alone assert,” Jackson wrote in her brief.

Jackson was appointed by the Court in December to make those arguments in the case of United States v. Windsor, the appellate to Windsor v. United States — a challenge to DOMA brought by Edith Windsor over the federal government’s refusal to recognize her marriage to Thea Spyer when it comes to estate taxes on her deceased spouse’s estate.

Jackson also argues that GOP leaders’ “interest in obtaining a ruling from a higher court does not create standing.”

The court has also instructed House leaders to defend their legal right to be in federal court to defend DOMA, and a brief on that point is due from BLAG on February 22.

On Tuesday, Republican members of the U.S. House leadership filed a brief asking the Court to uphold DOMA, arguing that gays and lesbians are a powerful interest group, and do not warrant “judicial intervention.”

In that brief, Paul Clement — a former United States solicitor general and current partner at the Washington law firm Bancroft PLLC — now representing the Bipartisan Legal Advisory Group, argued that the federal government has the same power as state governments do to define marriage.

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