windsor: amicus brief of former doj officials et al (jurisdiction)

7/29/2019 Windsor: Amicus Brief of Former DOJ Officials et al (Jurisdiction)

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No. 12-307

IN THE

Supreme Court of the United StatesUNITED STATES OF AMERICA,

Petitioner,v.

EDITH SCHLAIN WINDSOR ANDBIPARTISAN LEGAL ADVISORY GROUP OF THE

UNITED STATES HOUSE OF REPRESENTATIVES,Respondents.

ON WRIT OF CERTIORARI TO THEUNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUITBRIEF FOR AMICI CURIAE FORMER SENIORJUSTICE DEPARTMENT OFFICIALS ANDFORMER COUNSELS TO THE PRESIDENTON JURISDICTION

MARK C.FLEMINGFELICIA H.ELLSWORTHWILMERCUTLERPICKERING

HALE AND DORR LLP60 State StreetBoston, MA 02109(617) 526-6000

PAUL R.Q.WOLFSON Counsel of RecordDANIEL WINIK*WILMERCUTLERPICKERING

HALE AND DORR LLP1875 Pennsylvania Ave., NWWashington, DC 20006(202) [email protected]

ALAN E.SCHOENFELD

WILMERCUTLERPICKERINGHALE AND DORR LLP

7 World Trade Center250 Greenwich StreetNew York, NY 10007(212) 230-8800


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(i)

TABLE OF CONTENTS PageTABLE OF AUTHORITIES .......................................... iii

INTEREST OF AMICI CURIAE................................... 1

SUMMARY OF ARGUMENT ......................................... 3

ARGUMENT ....................................................................... 5

I. THE DECISION TO ENFORCE A STATUTEWHILE DECLINING TO ARGUE IN ITS DE-FENSE IS A MEASURED APPROACH THAT

RESPECTS BOTH THE PRESUMPTION OFVALIDITY ACCORDED TO ACTS OF CON-GRESS AND THEJUDICIARYS ROLE AS THEARBITER OF CONSTITUTIONALITY............................. 5

A. The Executive Shows Respect ForCongress By Defending Duly En-acted Statutes Except In StrictlyLimited Circumstances ................................... 8

B. When The Executive DeterminesThat A Statute Cannot Reasonably

Be Defended, The Executive Re-spects the Judiciarys Role As TheArbiter of Constitutionality By En-forcing The Statute And AppealingAdverse Judgments ....................................... 13

II. WHERE THE EXECUTIVE CONTINUES TOENFORCE A STATUTE, THIS COURT POS-SESSESJURISDICTION TO REVIEW ITS CON-STITUTIONALITY, WHETHER OR NOT THEEXECUTIVE ARGUES IN ITS FAVOR AND

WHETHER OR NOT A LOWER COURT HASSTRUCK IT DOWN........................................................ 18


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ii

TABLE OF CONTENTSContinuedPage

A. Article III Adversity Is PresentHere .................................................................. 18

B. The Executive Is A Proper Party ToPetition For Certiorari .................................. 20

C. A Holding That The Court LacksJurisdiction, Or That Prudence BarsIts Exercise, Would Present Con-

cerns Of Constitutional Structure ............... 23CONCLUSION ................................................................. 25


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iii

TABLE OF AUTHORITIESCASES

Page(s)

American Electric Power Co. v. Connecticut,131 S. Ct. 2527 (2011) ................................................. 21

ACLU v. Mineta, 319 F. Supp. 2d 69 (D.D.C.2004) ............................................................................. 14

Bakerv. Carr, 369 U.S. 186 (1962) ............................ 19, 20

Buckley v. Valeo, 424 U.S. 1 (1976) ................................ 12

City of Boerne v. Flores, 521 U.S. 507 (1997) ................ 13

Cooperv.Aaron, 358 U.S. 1 (1958) ................................. 13

FEC v. NRA Political Victory Fund, 513 U.S.88 (1994) ....................................................................... 23

Flast v. Cohen, 392 U.S. 83 (1968) .................................. 18

INS v. Chadha, 462 U.S. 919 (1983) .............. 12, 17, 19, 20

Marbury v. Madison, 5 U.S. (1 Cranch) 137(1803) .................................................................. 4, 13, 25

Metro Broadcasting, Inc. v. FCC, 497 U.S. 547(1990) ...................................................................... 12, 13

Reno v.ACLU, 521 U.S. 844 (1997) .................................. 8

Rogers v. Tennessee, 532 U.S. 451 (2001) ....................... 21

United States v. Di Re, 332 U.S. 581 (1948) ..................... 8

United States v. Lovett, 328 U.S. 303 (1946) ...... 12, 17, 20

United States v. Mendoza, 464 U.S. 154 (1984) ............. 13

United States v. Providence Journal Co., 485U.S. 693 (1988) .............................................................. 7


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iv

TABLE OF AUTHORITIESContinuedPage(s)

DOCKETED CASESMcConnell v. FEC, Nos. 02-1674, et al. (U.S.) .............. 10

Oregon v. Mitchell, No. 43 Orig. (U.S.) .......................... 10

CONSTITUTIONAL AND STATUTORY PROVISIONSU.S. Const.

art. II, 1, cl. 7 .............................................................. 5

art. II, 3 ................................................................... 3, 5art. III, 1 ................................................................... 16art. VI, cl. 2 .................................................................... 6

Defense of Marriage Act, 1 U.S.C. 7 .............................. 2

5 U.S.C. 3331 ..................................................................... 5

28 U.S.C. 516 ................................................................................ 7 530D(a)(1)(A) .............................................................. 7

EXECUTIVE AND LEGISLATIVE MATERIALSStatement on Signing the Voting Rights Act

Amendments of 1970, 1970 Pub. Papers 512(June 22, 1970) ....................................................... 10, 15

Role of the Solicitor General, 1 Op. O.L.C. 228(1977) ............................................................................ 11

The Attorney Generals Duty to Defend andEnforce Constitutionally ObjectionableLegislation, 4A Op. O.L.C. 55 (1980) ............... 6, 7, 10

The Attorney Generals Duty to Defend the

Constitutionality of Statutes, 5 Op. O.L.C.25 (1981) ......................................................................... 9


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Constitutionality of Legislation WithdrawingSupreme Court Jurisdiction to ConsiderCases Relating to Voluntary Prayer, 6 Op.O.L.C. 13 (1982) ............................................................ 9

Recommendation That the Department ofJustice Not Defend the Constitutionality ofCertain Provisions of the BankruptcyAmendments and Federal Judgeship Act

of 1984, 8 Op. O.L.C. 183 (1984) ............................ 9, 15

Letter from Alfred C. Sikes, Chairman of FCC, toDick Thornburgh, Attorney General (Jan. 12,1990), available at http://www.washingtonpost.com/wp-srv/nation/documents/roberts/FCC_letter.pdf ............................................................ 13

Issues Raised by Provisions DirectingIssuance of Official or DiplomaticPassports, 16 Op. O.L.C. 18 (1992)............................. 6

Presidential Authority to Decline to ExecuteUnconstitutional Statutes, 18 Op. O.L.C.199 (1994) ..................................................................... 16

Letter from Janet Reno, Attorney General, toAlbert Gore, Jr., President of the Senate(Feb. 9, 1996), available at http://www.ciec.org/trial/abort_speech.html ........................................ 6

Letter from Andrew Fois, Assistant AttorneyGeneral for the Office of Legislative Af-fairs, to Orrin G. Hatch, Chairman, Senate

Committee on the Judiciary (Mar. 22, 1996),available at http://www.volokh.com/wp-content/uploads/2011/02/DOJ1996.pdf ................... 12


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Statement on Signing the BipartisanCampaign Reform Act of 2002, 1 Pub.Papers 503 (Mar. 27, 2002) ........................................ 10

Letter from Paul D. Clement, Acting SolicitorGeneral, to Patricia Mack Bryant, SenateLegal Counsel (Dec. 23, 2004), available athttps://www.aclu.org/files/FilesPDFs/mineta_letter.pdf ...................................................................... 14

Confirmation Hearing on the Nomination ofPaul D. Clement To Be Solicitor Generalof the United States: Hearing Before the S.Comm. on the Judiciary, 109th Cong.(2005) .............................................................................. 9

Confirmation Hearings on the Nominations ofThomas Perrelli Nominee To Be AssociateAttorney General of the United States andElena Kagan Nominee To Be SolicitorGeneral of the United States: Hearing

Before the S. Comm. on the Judiciary,111th Cong. (2009) ........................................................ 9

Letter from Eric H. Holder, Jr., AttorneyGeneral, to John A. Boehner, Speaker ofthe House of Representatives (Feb. 23,2011), available at http://www.justice.gov/opa/pr/2011/February/11-ag-223.html ......... 16, 17, 21

OTHER AUTHORITIESDays III, Drew S., In Search of the Solicitor

Generals Clients: A Drama with ManyCharacters, 83 Ky. L.J. 485 (1995) ..................... 11, 24


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Days III, Drew S., When the President SaysNo: A Few Thoughts on Executive Powerand the Tradition of Solicitor GeneralIndependence, 3 J. App. Prac. & Process509 (2001) ..................................................................... 11

GAO, Defense of Marriage Act: Update to Pri-or Report (2004), available athttp://www.gao.gov/new.items/d04353r.pdf ........... 22

Huq, Aziz Z., Enforcing (But Not Defending)Unconstitutional Laws, 98 Va. L. Rev.1001 (2012) ................................................................... 15

Hasen, Richard L., The Nine Lives ofBuckley v.Valeo, in First Amendment Stories(Richard W. Garnett & Andrew Koppelmaneds., 2012) ..................................................................... 12

Sobeloff, Simon E., Attorney for theGovernment: The Work of the Solicitor

Generals Office, 41 A.B.A. J. 229 (1955) ................. 23U.S. Census Bureau, Press Release, Census

Bureau Releases Estimates of Same-SexMarried Couples (Sept. 27, 2011), availableat http://www.census.gov/newsroom/releases/archives/2010_census/cb11-cn181.html ................... 22

Waxman, Seth P., Twins at Birth: Civil Rightsand the Role of the Solicitor General, 75Ind. L.J. 1297 (2000) ................................................... 24

Waxman, Seth P., Defending Congress, 79 N.C.

L. Rev. 1073 (2001) ............................................... 10, 15


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IN THESupreme Court of the United StatesNo. 12-307

UNITED STATES OF AMERICA,Petitioner,

v.

EDITH SCHLAIN WINDSOR ANDBIPARTISAN LEGAL ADVISORY GROUP OF THE

UNITED STATES HOUSE OF REPRESENTATIVES,Respondents.

ON WRIT OF CERTIORARI TO THEUNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUITBRIEF FOR AMICI CURIAE FORMER SENIORJUSTICE DEPARTMENT OFFICIALS AND

FORMER COUNSELS TO THE PRESIDENTON JURISDICTION

INTEREST OF AMICI CURIAE1Amici curiae are former United States Solicitors

General, Assistant Attorneys General for the Office ofLegal Counsel, and Counsels to the President who haveserved in administrations of both major political parties

1All parties have consented to the filing of this brief. No

counsel for a party authored this brief in whole or in part, and noperson other than amici or their counsel made a monetary contri-bution to the preparation or submission of this brief.


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and have confronted the difficult questions of constitu-tional duty and inter-branch comity that arise when thePresident concludes that there is no reasonable argu-ment to support the constitutionality of an Act of Con-gress.2 Amici take no position in this brief on the con-stitutionality of Section 3 of the Defense of MarriageAct, 1 U.S.C. 7, on the propriety of the current Ad-ministrations decision not to defend that statute, or onthe specific standard for determining when a statuteshould not be defended. Indeed, amici disagree amongthemselves on those questions.

Amici agree, however, that this Court is not di-vested of jurisdiction by the Executives decision not toproffer what it considers unreasonable arguments insupport of a statutes constitutionality, where the Ex-ecutive continues to enforce the statute and appeals ajudgment declaring it unconstitutional. To the contra-ry, amicibelieve that the decision not to defend a stat-uteunder strictly limited circumstancesis a crucialprerogative for the Executive. Amici also agree that,in appropriate circumstances, the Executive may en-

force a statute but not defend its constitutionality in ajudicial challenge, and that when the Executive so acts,the federal courts, including this Court, have ArticleIII jurisdiction to determine the statutes constitution-ality, assuming the other necessary constitutional andstatutory prerequisites of jurisdiction are present. Inthis case, which involves a matter of great public im-port, the United States, having determined that Sec-tion 3 of DOMA could not be defended, acted appropri-ately by denying Ms. Windsor an estate tax refund andby appealing judgments declaring the statute unconsti-

2

A complete list of amici is set forth in an appendix to thisbrief.


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tutional in order to preserve a justiciable case or con-troversy for this Court to decide.

SUMMARY OF ARGUMENTThe President of the United States is bound by the

Constitution to take Care that the Laws be faithfullyexecuted. U.S. Const. art. II, 3. In the rare eventthat the President concludes that a federal statute con-flicts with the Constitutionthe highest of the Lawsthat the President must take care to execute faithful-lythe Executive confronts a dilemma: enforcement of

one law will cause it to violate a higher law.

Those officials charged with assisting the Presidentin identifying the obligations of the ExecutiveBranchthe Attorney General, the Solicitor General,the Assistant Attorney General for the Office of LegalCounsel, the Counsel to the President, and othershistorically have tried to resolve such dilemmas by con-sidering a variety of factors, including separation ofpowers, inter-branch comity, and the private interestsaffected by the statute in question. In rare cases, the

Executive has concluded that a statute should not beenforced at all. But in other circumstances, especiallythose involving matters of great public import whereenforcement does not require criminal prosecution, theExecutive has concluded that the public interest war-rants a definitive determination of the statutes consti-tutionality. In such cases, and in particular where theExecutive has concluded that it cannot offer reasonablearguments in defense of the statute, it has acted to en-sure a definitive judicial resolution by enforcing thestatute, declining to proffer arguments in favor of the

statutes constitutionality when it is challenged incourt, and appealing judgments declaring it unconstitu-


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tional.

3

This practice honors the presumption of consti-tutionality accorded to Acts of Congress and ensuresthat the Judiciary has an opportunity to exercise its ul-timate authority to say what the law is. Marbury v.Madison, 5 U.S. (1 Cranch) 137, 177 (1803).

The current Administration has explained its deci-sion to enforce but not defend DOMA as an applicationof these principles. Whether or not that decision wasproper or wisea point on which amici take no positionin this briefit reflects the same difficult calculus ofcomity and constitutional duty in which Executive

Branch officials (including amici) have historically en-gaged. When the Executive concludes that a federalstatute cannot reasonably be defended, the Executivemay enforce the statuteeven while declining to de-fend itso as to leave the ultimate resolution of thestatutes constitutionality to the Judiciary and, ulti-mately, this Court. This practice is an act of consideredfidelity to our constitutional structure.

The utility and continued vitality of this practicedepend, however, on this Courts exercise of jurisdic-

tion to decide such constitutional questions when theyare presented. The constitutionality of DOMA is aquestion of abiding national importance, affecting thou-sands of federal programs and hundreds of thousands ofcitizens who are treated as married under state law butunmarried under federal law. There is an actual con-troversy between the partiesthe United States willnot pay Ms. Windsor in the absence of a final, non-appealable judgment declaring the law unconstitution-

3

The circumstances under which the Executive has declinedto defend the constitutionality of a statute turn on a variety of fac-tors. See infra note 8. Amicitake no position with respect to thespecific contours of the standard for a decision not to defend.


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al. Were this Court to hold that it lacks jurisdiction be-cause the Executive agrees with Ms. Windsor and thelower courts that DOMA violates the Constitutioneven where it has continued to enforce the statute, andeven where it intends to do so in the future until a de-finitive judicial ruling to the contrarythat holdingwould depart from the historical practice of both thisCourt and the Executive, and would unduly constrainthe Executives ability to deal with constitutionallyquestionable statutes in a manner that takes appropri-ate account of the separation of powers and inter-

branch comity.

ARGUMENTI. THE DECISION TO ENFORCE A STATUTE WHILE DE-

CLINING TO ARGUE IN ITS DEFENSE IS A MEASUREDAPPROACH THAT RESPECTS BOTH THE PRESUMPTIONOF VALIDITY ACCORDED TO ACTS OF CONGRESS ANDTHE JUDICIARYS ROLE AS THE ARBITER OF CONSTI-TUTIONALITYThe Constitution reserves to Congress the power

to make laws and to this Court the power to interpretthem. On the President, the Constitution imposes asingular duty to take Care that the Laws be faithfullyexecuted. U.S. Const. art. II, 3. The Executive re-spects this obligation by enforcing and defending anyduly enacted statute that, in its judgment, complieswith the Constitution.

In those rare cases where the Executive concludesthat a statute conflicts with the Constitution, however,the Executives duty becomes more difficult to discern.The President and all Executive officials swear oaths to

defend the Constitution of the United States (U.S.Const. art. II, 1, cl. 7; 5 U.S.C. 3331), and the Consti-tution is the highest of the Laws that the President


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must take Care to execute (U.S. Const. art. VI, cl. 2;seeIssues Raised by Provisions Directing Issuance ofOfficial or Diplomatic Passports, 16 Op. O.L.C. 18, 31(1992) (Among the laws that the President must takeCare to faithfully execute is the Constitution.)). De-termining the proper course of action when a statuteand the Constitution appear to conflict is among themost serious duties of the President and of the attor-neys advising him. In a 1980 opinion providing guid-ance on the subject, Attorney General Civiletti wrotethat the Attorney Generals duty is to exercise consci-

entious judgment, to examine the Acts of Congressand the Constitution and determine what they requireof him; and if he finds in a given case that there is con-flict between the requirements of the one and the re-quirements of the other, to acknowledge his dilemmaand decide how to deal with it. The Attorney Gen-erals Duty to Defend and Enforce ConstitutionallyObjectionable Legislation, 4A Op. O.L.C. 55, 55 (1980)(Civiletti Mem.).

On rare occasions, the Executive has determined

that a statute should not be enforced at all. A numberof those occasions have involved laws that trenched onindividual rights, were clearly unconstitutional underthis Courts precedents, and could be enforced only bycriminal prosecutions. See, e.g., Letter from Janet Re-no, Attorney General, to Albert Gore, Jr., President ofthe Senate (Feb. 9, 1996) (noting the Executiveslongstanding policy to decline to enforce the abortion-related speech prohibitions in several statutes). Insuch circumstances, the President may properly con-clude that his duty to uphold the Constitution requires

him not to enforce a patently unconstitutional law. ThePresident is accountable for such decisions to Congress,which has required that the Executive report any such


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nonenforcement decisions (28 U.S.C. 530D(a)(1)(A)),as well as to the electorate.

But in other circumstancesfor example, wherethe constitutional question is not directly controlled bya decision of this Court, and where the statute can beenforced by means other than criminal prosecutionthe Executive may properly conclude that the publicinterest and comity between the branches warrant adefinitive judicial determination of a statutes constitu-tionality, even when the statute is subject to seriousconstitutional doubt. Typically, in those circumstances,

the Executive Branch has continued to enforce and de-fend the statute. See, e.g., Civiletti Mem., 4A Op.O.L.C. at 55 (observing that when an Executive Branchofficial is confronted with such a choice, it is almostalways the case that he can best discharge the respon-sibilities of his office by defending and enforcing theAct of Congress). The Executive pursues each of the-se coursesenforcement and defensefor distinct rea-sons of inter-branch comity, as explained more fully be-low. The Executive defends statutes, as a general mat-

ter, out of respect for the presumption that Congresshas independently determined any statute it enacts tobe consistent with the Constitution, and because theDepartment of Justice is charged by statute with theduty to represent the interests of the United Statesthat is, the sovereign composed of the three branches(United States v. Providence Journal Co., 485 U.S. 693,701 (1988))in the conduct of litigation (28 U.S.C. 516). And the Executive enforces statutes in defer-ence to comity between the branches and to the Judici-arys unique role in resolving constitutional disputes in

properly presented cases or controversies.But there are also circumstances, such as this one,

where the Executive may properly enforce a statute


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even if it does not defend it.

4

In doing so, the Executiveproperly takes account of the powers and prerogativesof other branchesCongresss authority to enact stat-utes and the Judiciarys authority to say what the lawis when presented with a justiciable case or controver-sy. And in doing so, the Executive also properly takesaccount of the public interest in a definitive and uni-form resolution of constitutional questions surroundinga statute, such as Section 3 of DOMA, that affects in-numerable private and public decisions every day andas to which a definitive judicial resolution would serve

the public interest.

A. The Executive Shows Respect For CongressBy Defending Duly Enacted Statutes ExceptIn Strictly Limited CircumstancesActs of Congress carry a strong presumption of

constitutionality (United States v. Di Re, 332 U.S. 581,585 (1948)), and the Executive in almost all circum-stances defers to the constitutional judgment of its co-equal branch by enforcing and defending duly enactedstatutes, at least where Congress has not infringed on

the Executives core powers. This presumption of en-forcement and defense has been the policy of the Solici-tor Generals Office across both Democratic and Repub-

4

There are also cases where the Executive has the inverseoption: it may defend, but not immediately enforce, a statuteforexample, in litigation presenting a pre-enforcement challenge tothe facial validity of a statute. See, e.g., Reno v.ACLU, 521 U.S.844 (1997). In such cases, the Executive may properly exercise itsprosecutorial discretion to withhold enforcement of a statute untilits constitutionality is definitively determined by the courts, andthe pre-enforcement challenge may present a justiciable contro-versy for the courts to make that determination.


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lican administrations.

5

This has also been the con-sistent position of the Office of Legal Counsel, whichhas regularly stated that the Executives duty faithful-ly to execute the law and recognition of the presump-tion of constitutionality generally accorded duly enact-ed statutes result in all but the rarest of situations inthe Executives enforcing and defending laws enactedby Congress. Recommendation That the Departmentof Justice Not Defend the Constitutionality of CertainProvisions of the Bankruptcy Amendments and Fed-eral Judgeship Act of 1984, 8 Op. O.L.C. 183, 193 (1984)

(Olson Mem.).6

In short, the practice of the Execu-

5See, e.g., Confirmation Hearings on the Nominations of

Thomas Perrelli Nominee To Be Associate Attorney General ofthe United States and Elena Kagan Nominee To Be Solicitor Gen-eral of the United States: Hearing Before the S. Comm. on the Ju-diciary, 111th Cong. 47 (2009) (statement of Elena Kagan) (Tradi-tionally, outside of a very narrow band of cases involving the sepa-ration of powers, the Solicitor General has defended any Federalstatute in support of which any reasonable argument can bemade.); Confirmation Hearing on the Nomination of Paul D.Clement To Be Solicitor General of the United States: Hearing

Before the S. Comm. on the Judiciary, 109th Cong. 6 (2005)(statement of Paul D. Clement) ([O]utside a narrow band of casesimplicating the Presidents Article II authority, the [Solicitor Gen-erals] office will defend the constitutionality of the acts of Con-gress as long as reasonable arguments can be made in the statutesdefense.).

6See also Constitutionality of Legislation Withdrawing Su-

preme Court Jurisdiction to Consider Cases Relating to Volun-tary Prayer, 6 Op. O.L.C. 13, 26 (1982) (It is settled practice thatthe Department of Justice must and will defend Acts of Congressexcept in the rare case when the statute either infringes on theconstitutional power of the Executive or when prior precedent

overwhelmingly indicates that the statute is invalid.); The Attor-ney Generals Duty to Defend the Constitutionality of Statutes, 5Op. O.L.C. 25, 25-26 (1981) (In my view, the Department has theduty to defend an act of Congress whenever a reasonable argu-


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tive Branchacross the decades and across admin-istrations of both major political partiesis to enforceand defend Acts of Congress in nearly all instances.

Indeed, the Solicitor General may decide to defenda statute even where the President has concluded thatit is unconstitutional or expressed reservations as to itsconstitutionality. In signing the Voting Rights ActAmendments of 1970, for example, President Nixonpublicly stated his view that a provision of the statuteconferring the right to vote on eighteen-year-olds vio-lated the Constitution. Statement on Signing the Vot-ing Rights Act Amendments of 1970, 1970 Pub. Papers512, 512 (June 22, 1970). Solicitor General Griswold,however, filed a brief before this Court defending theconstitutionality of the statute. U.S. Br., Oregon v.Mitchell, No. 43 Orig. (U.S. Oct. 1970); see also Wax-man, Defending Congress, 79 N.C. L. Rev. 1073, 1081-1082 (2001). Similarly, the Solicitor General defendedthe Bipartisan Campaign Reform Act of 2002, notwith-standing the Presidents publicly expressed doubtswhether portions of the Act were constitutional. Com-

pare Statement on Signing the Bipartisan CampaignReform Act of 2002, 1 Pub. Papers 503, 503 (Mar. 27,2002) (expressing reservations about the constitution-ality of certain provisions), with U.S. Br., McConnellv. FEC, Nos. 02-1674, et al. (U.S. Aug. 2003) (defendingthe statute).

Notwithstanding the nearly uniform practice ofboth enforcing and defending duly enacted statutes, So-

ment can be made in its support, even if the Attorney General andthe lawyers examining the case conclude that the argument mayultimately be unsuccessful in the courts.); Civiletti Mem., 4A Op.O.L.C. at 55 (The Attorney General has a duty to defend and en-force the Acts of Congress[.]).


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licitors General in both Republican and Democraticadministrations have in infrequent instances deter-mined (typically after consultation with the President,the Attorney General, and other Justice Departmentand Executive Branch officials7) that a statute shouldnot be defended, where the Executive has concludedthat no reasonable argument supports the statutesconstitutionality.8 The Department of Justice has de-

7Although the Solicitor General typically enjoys a marked

degree of independence in his function, the Attorney Generaland through him, the Presidentdoes have the power to direct theSolicitor General to defend (or not to defend) a statute. Role of theSolicitor General, 1 Op. O.L.C. 228, 229 (1977); see Days, When thePresident Says No: A Few Thoughts on Executive Power andthe Tradition of Solicitor General Independence, 3 J. App. Prac. &Process 509 (2001).

8This brief does not attempt to define the precise contours of

the reasonable arguments that might be raised in a statutes de-fense (or the unreasonable arguments that should not be). Differ-ent administrations have approached that question differently. Toamicis knowledge, however, no administration has concluded thatthe Justice Department must or should offer all arguments in sup-port of a statute except those that would be frivolous. Thus, the

Executive has in the past concluded, and surely may conclude, thatprofessionally responsible, non-frivolous arguments are nonethe-less not sufficiently reasonable to be raised in defense of a stat-ute. For example, to amicis knowledge, the Department of Justicehas never thought itself required to ask this Court to overrule oneof its precedents in order to sustain a statute, even when such anargument would not be frivolous.

The Solicitor General has also declined to defend statutes thatappeared to trench on the power of the Executive, even when rea-sonable arguments could be made in the statutes defense. See,e.g., Days, In Search of the Solicitor Generals Clients: A Dramawith Many Characters, 83 Ky. L.J. 485, 499-500 (1995). This case

does not involve such a circumstance, and so this brief does notconsider such instances of non-defense, which the Department of

Justice has consistently treated differently from other cases wherestatutes raise serious constitutional problems.


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clined to make arguments defending a statutes consti-tutionality in numerous cases before both this Courtand the lower courts. See, e.g., Letter from AndrewFois, Assistant Attorney General for the Office of Leg-islative Affairs, to Orrin G. Hatch, Chairman, SenateCommittee on the Judiciary (Mar. 22, 1996) (listing cas-es).9

The decision not to defend a statute is never takenlightly; indeed, it invariably involves debate at thehighest levels of the Executive Branch. In Buckley v.Valeo, 424 U.S. 1 (1976), for example, President Ford

was required personally to intercede in a dispute be-tween the Solicitor General and Attorney General onthe one hand, who wanted the governments brief to beneutral on the question of the constitutionality of theexpenditure and contribution limits of the FederalElection Campaign Act, and the Chair of the FEC onthe other hand, who wanted the government to defendall provisions of the statute. In the end, the Executivefiled two briefsone on behalf of the FEC (an inde-pendent agency) defending the statute, and another

signed by the Attorney General and Solicitor Generalexpressing marked skepticism toward it. Hasen, TheNine Lives of Buckley v. Valeo, in First AmendmentStories 345, 361(Garnett & Koppelman eds., 2012); see

9In Metro Broadcasting, Inc. v. FCC, 497 U.S. 547 (1990), for

example, the Acting Solicitor General declined to defend a statuteforbidding the FCC from spending money to change its policy offavoring minority applicants for broadcast licenses. In INS v.Chadha, 462 U.S. 919 (1983), the Solicitor General declined to de-fend a statute authorizing each House of Congress to veto theINSs decision to suspend an aliens deportation. And in UnitedStates v. Lovett, 328 U.S. 303 (1946), the Solicitor General declinedto defend a statute requiring the Executive to withhold the sala-ries of certain identified officials.


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also, e.g., Letter from Alfred C. Sikes, Chairman ofFCC, to Dick Thornburgh, Attorney General (Jan. 12,1990) (urging the Attorney General to defend the FCCpolicy at issue in Metro Broadcasting, while acknowl-edging the Acting Solicitor Generals reluctance todo so).

B. When The Executive Determines That AStatute Cannot Reasonably Be Defended, TheExecutive Respects the Judiciarys Role AsThe Arbiter of Constitutionality By EnforcingThe Statute And Appealing Adverse Judg-mentsThe Constitution vests in the Judiciary the ulti-

mate authority to say what the law is, Marbury v.Madison, 5 U.S. (1 Cranch) 137, 177 (1803), and theExecutive Branch must of course defer to the JudicialBranch for final resolution of questions of constitutionallaw, United States v. Mendoza, 464 U.S. 154, 161(1984).10 The Executive acts appropriately and inrecognition of this authority when it declines to defenda statute but takes measures to ensure that the statute

does not escape definitive judicial review.

10See also City of Boerne v. Flores, 521 U.S. 507, 535-536

(1997) (Our national experience teaches that the Constitution ispreserved best when each part of the Government respects boththe Constitution and the proper actions and determinations of theother branches. When the Court has interpreted the Constitution,it has acted within the province of the Judicial Branch, which em-braces the duty to say what the law is.); Cooper v. Aaron, 358U.S. 1, 18 (1958) ([T]he federal judiciary is supreme in the exposi-tion of the law of the Constitution, and that principle has eversince been respected by this Court and the Country as a perma-nent and indispensable feature of our constitutional system.).


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Outside the exceedingly rare cases where the Ex-ecutive determines that a statute is so patently uncon-stitutional that it cannot be enforced, the Executiveacts appropriately under our constitutional structureby taking steps to ensure the presentation of a justicia-ble case or controversy, including enforcing the statuteand appealing adverse judgments.11 Some have framedthis as a matter of constitutional duty: in a 1984 opinionof the Office of Legal Counsel, for example, Assistant

11The Executive has, on occasion, declined to file appeals or

petitions for certiorari from lower-court judgments against theconstitutionality of federal statutes. See, e.g., Letter from Paul D.Clement, Acting Solicitor General, to Patricia Mack Bryant, Sen-ate Legal Counsel (Dec. 23, 2004) (explaining the decision not toauthorize an appeal of a district-court judgment invalidating astatute that conditioned the receipt of federal funds for masstransit on the rejection of advertisements promoting legalizationor medicinal use of substances including marijuana).

In some such cases, the Executives decision not to appeal anadverse judgment might be viewed as a form of non-enforcementrather than non-defense. For example, in the case that was thesubject of Solicitor General Clements letterACLU v. Mineta,319 F. Supp. 2d 69 (D.D.C. 2004)the Executive could not havechosen not to enforce the statute, because the law was effectivelyimplemented by an independent entity, the Washington Metropoli-tan Area Transit Authority, that received federal funds; it wasthat entitys obedience to the statute, not the Executives en-forcement, that gave rise to the alleged constitutional injury. Inother circumstances, the Solicitor General might not have beenaware of a constitutional challenge to a statute until after the en-try of a judgment declaring the statute unconstitutional; a decisionby the Solicitor General not to appeal such a judgment mightamount to an acknowledgment that the statute ought never havebeen enforced at all. Finally, the Executive might decline to takesteps to appeal a judgment against the constitutionality of a stat-ute when the statute has been challenged in a lawsuit betweenprivate parties. Where the private party who is aggrieved by the

judgment against a statute has adequate motive and resources tofile an appeal, the Executive need not necessarily do so.


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Attorney General Olson explained that [i]t is gen-erally for the courts, and not the Executive, finally todecide whether a law is constitutional, and stated that[a]ny action of the President which precludes, or sub-stitutes for, a judicial test and determination would atthe very least appear to be inconsistent with the alloca-tion of judicial power by the Constitution to thecourts. Olson Mem., 8 Op. O.L.C. at 194. Whether ornot submission of disputes about the constitutionality oflegislation to the Judiciary is constitutionally obligated,it is certainly typical in practice. See, e.g.,Huq, Enforc-

ing (But Not Defending) Unconstitutional Laws, 98Va. L. Rev. 1001, 1069 (2012) (The creation andpreservation of a justiciable controversy is a goal rou-tinely stipulated in official defenses of enforcement-litigation gaps.); see also 1970 Pub. Papers at 512(President Nixons statement on signing the VotingRights Act Amendments of 1970, in which he directedthe Attorney General to cooperate fully expediting aswift court test of the constitutionality of the voting-age provision that he considered unconstitutional).

Thus, even while declining to offer arguments indefense of a statute, the Executive can and properlyoften does seek to present the Judiciary with a justicia-ble case in which it can review the statutes constitu-tionality. In our federal system, where advisory opin-ions are unavailable and the United States typicallycannot sue a private citizen for a declaratory judgmentof unconstitutionality, an Executive that has deter-mined that no reasonable argument supports a statutesconstitutionality has few options. In general, the mostefficacious way for the Executive to secure the Judici-

arys ability to pass on such a statute is to enforce it,setting the stage for an aggrieved citizen to bring suit.See Waxman, 79 N.C. L. Rev. at 1078 n.14 (Unlike a


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decision not to enforce a statute at all, the practice ofenforce but decline to defend permits the will of Con-gress to be honored in the first instance, allows the Ex-ecutive Branch to make its views known to the Court,and ordinarily places before the Court the opportunityto resolve the constitutional dispute between the othertwo branches.); cf. Presidential Authority to Declineto Execute Unconstitutional Statutes, 18 Op. O.L.C.199, 201 (1994) ([T]he President may base his decisionto comply (or decline to comply) [with a statute heviews as unconstitutional] in part on a desire to afford

the Supreme Court an opportunity to review the con-stitutional judgment of the legislative branch.). This isthe course that the Administration has pursued in thiscase. See Letter from Eric H. Holder, Jr., AttorneyGeneral, to John A. Boehner, Speaker of the House ofRepresentatives (Feb. 23, 2011) (Holder Letter) (ex-plaining the decision to continue enforcing DOMA, evenwhile declining to defend it in this and other cases, onthe ground that [t]his course of action recognizesthe judiciary as the final arbiter of the constitutionalclaims raised).

But enforcing a statute and triggering a constitu-tional challenge are not enough by themselves to securea definitive judicial resolution of the statutes constitu-tionality; if that is the Executives objective, it may andshould take steps to ensure that the constitutional issueis presented not only to a district court, but also to acourt of appeals and ultimately to this Court so that theJudiciary has an opportunity to rule definitively. TheConstitution vests [t]he judicial Power of the UnitedStates not in the ninety-four district courts but in one

supreme Court. U.S. Const. art. III, 1. Under theConstitution, this Court wields the ultimate authorityof the Judicial Branch, and the Executive may there-


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fore properly determineas it determined here, and asit determined in Chadha and Lovettthat it will en-force an Act of Congress unless and until this Court hashad an opportunity to render judgment on the Act. SeeHolder Letter ([T]he President has instructed Execu-tive agencies to continue to comply with Section 3 ofDOMA, consistent with the Executives obligation totake care that the laws be faithfully executed, unlessand until Congress repeals Section 3 or the judicialbranch renders a definitive verdict against the lawsconstitutionality. (emphasis added)).

The Executives typical practice of appealing ad-verse lower court judgments shows respect not only forthe Judiciary but also for Congress. If the Executivewere not to appeal lower-court judgments against theconstitutionality of a statute, Congresss independentjudgment as to the constitutionality of legislation couldbe overridden by a single court, and federal statutescould have nonuniform application across the country(if different lower courts were to arrive at differentconclusions). By appealing and filing petitions for cer-

tiorari from adverse judgments of laws the Executivehas concluded are not subject to reasonable defense,the Executive as a general matter ensures that Con-gresss will cannot be overridden without at least put-ting the matter before this Court.12

12Because the reasons for the Executive to appeal judgments

against the validity of federal statutes arise from the structure ofthe Federal Constitution, those reasons do not necessarily apply tostate and local executives. Nor are state and local executives nec-

essarily subject to the same duties of enforcing or defending stat-utes, ordinances, or initiatives. To the extent that any such dutiesexist for state and local executivesa question on which this brieftakes no positionthey would be matters of state constitutional


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II. WHERE THE EXECUTIVE CONTINUES TO ENFORCE ASTATUTE, THIS COURT POSSESSES JURISDICTION TOREVIEW ITS CONSTITUTIONALITY , WHETHER OR NOTTHE EXECUTIVE ARGUES IN ITS FAVOR AND WHETHEROR NOT ALOWER COURT HAS STRUCK IT DOWNThe court-appointed amica curiae argues that no

genuine case or controversy exists here, where the Ex-ecutive agrees with Ms. Windsor and the lower courtsthat DOMA violates the Constitution. That is incor-rect; rather, all the relevant aspects of Article III ad-versity are present here. The interests animating Arti-

cle III are not offended by permitting the SolicitorGeneral to take the steps necessary to present thequestion of a statutes constitutionality to this Courtboth by continuing to enforce it and by filing the neces-sary appeals from adverse judgments in the lowercourtsand then to notify the Court that the Execu-tive does not believe the statute is constitutional. Arti-cle III does not require DOMAs constitutionality to beadjudicated multiple times in the lower courts beforethis Court has the option of reviewing it.

A. Article III Adversity Is Present HereArticle III requires that this Court hear only cases

in which the questions will be framed with the neces-sary specificity, the issues will be contested with thenecessary adverseness and the litigation will be pur-sued with the necessary vigor to assure that the consti-tutional challenge will be made in a form traditionallythought to be capable of judicial resolution. Flast v.Cohen, 392 U.S. 83, 106 (1968). Where, as here, the Ex-ecutive continues to enforce a statute, and where inter-

law, distinct from any federal constitutional considerations (includ-ing Article III standing).


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venors or amici will present vigorous arguments insupport of the statute even if the Executive does not,the requirements of Article III adversity are satisfied.

First, there is a genuine controversy between theUnited States and Ms. Windsor, who claims entitlementto $363,053 that the United States refuses to pay her.This controversy is in all relevant respects the same asthe controversy the Court found to exist in Chadha.There, as here, the Executive considered the statute inquestion unconstitutional. There, as here, the Execu-tive refused to defend the statute against a challenge.

And there, as here, the Executive took the position thatit would continue to implement the statute unless thisCourt rendered a definitive judgment invalidating it.In Chadha, this Court agreed with then-Judge Kenne-dys opinion for the Ninth Circuit that an Article IIIcontroversy existed because the result of the proceed-ing would determine whether or not Mr. Chadha couldremain in the country. See INS v. Chadha, 462 U.S.919, 939-940 (1983) (We agree with the Court of Ap-peals that Chadha has asserted a concrete controversy,

and our decision will have real meaning: if we rule forChadha, he will not be deported; if we uphold 244(c)(2), the INS will execute its order and deporthim.). Precisely the same is true here: regardless ofthe Executives agreement with Ms. Windsor on theconstitutional question presented and on the correct-ness of the judgment below, this Courts ruling willconclusively determine whether Ms. Windsor receivesthe money she claims the government owes her.

Second, there can be no question that this proceed-ing will be marked by the sharp[] presentation of

issues upon which the court so largely depends for illu-mination of difficult constitutional questions. Bakerv.Carr, 369 U.S. 186, 204 (1962). The concrete adverse-


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ness of the case is preserved (id.)notwithstandingthe Executives decision not to defend DOMAby theability of the Bipartisan Legal Advisory Group andamici to present what in their view are the strongestarguments in favor of the statutes constitutionality.And it can hardly be said that DOMAs defense byBLAG has been anything less than skillful and zealous.

B. The Executive Is A Proper Party To PetitionFor CertiorariWhile the court-appointed amica acknowledges (at

23) that the district court was properly seized of ArticleIII jurisdiction in this case, she suggests that the Ex-ecutive lacked standing to appeal the district courtsjudgment. But the United States, represented by at-torneys within the Executive Branch, is a proper partyto invoke the jurisdiction of the court of appeals andthis Court.

The judgment of the district court, which was af-firmed by the court of appeals, directed the UnitedStates to pay Ms. Windsor a sum of money. The judg-

ment was thus adverse to the financial interests of theUnited States. In keeping with its policy of enforcingDOMA, the United States has not in fact paid the dis-puted amount to Ms. Windsor, and it presumably wouldnot do so if this Court were to reverse the judgment ofthe court of appeals.

In addition, the United States maintains an ongoinginterest in the definitive, uniform resolution of DOMAsconstitutionality. The Executives position here, just asin Chadha and Lovett, is that it considers the statuteunconstitutional and would prefer to stop enforcing it,but that obligations of comity towards Congress andthe Judiciary warrant enforcing the statute unless and


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until this Court renders a definitive verdict againstthe laws constitutionality. Holder Letter. The Presi-dent could have ordered the IRS to pay Ms. Windsorsrefund upon the entry of judgment by the districtcourt. Instead, he directed the Department of Justiceto appeal and seek certiorari, not because he was inter-ested in making life more difficult for Ms. Windsor, orbecause he had second thoughts on DOMAs validity,but because (as the Holder Letter explains) he did notfind it appropriate to stop enforcing the statute unilat-erally, without allowing this Court to fulfill its constitu-

tional function.There are good reasons for the Executives conclu-

sion that a district court judgment would not resolveDOMAs constitutionality with sufficient definitivenessand finality for it to stop enforcing the statute. Our le-gal system depends on the orderly accretion of prece-dent, and district court judgments do not create prece-dent. SeeRogers v. Tennessee, 532 U.S. 451, 461 (2001)([T]he incremental and reasoned development of prec-edent is the foundation of the common law system.);

American Electric Power Co. v. Connecticut, 131 S. Ct.2527, 2540 (2011) ([F]ederal district judges, sitting assole adjudicators, lack authority to render precedentialdecisions binding other judges, even members of thesame court.). If the Executive were not to appealfrom a district court judgment against DOMA, then thestatutes constitutionality could be determined only insuccessive actions before dozens of district judges, noneof whom would be bound even by his or her own priordeterminations of the statutes validity. No bindingprecedent could be set unless a judge were to uphold

the statute and an aggrieved party were to appeal thatjudgment, and no national precedent could be set unless


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a court of appeals were to follow suit and an aggrievedparty were to petition for certiorari.

Here, that would be an unacceptable prospect.Section 3 of DOMA affects many day-to-day operationsof the government and the lives of many thousands ofpeople. See GAO, Defense of Marriage Act: Update toPrior Report 1 (2004) (noting the existence of 1,138federal statutory provisions in which marital statusis a factor in determining or receiving benefits, rights,and privileges); U.S. Census Bureau, Press Release,Census Bureau Releases Estimates of Same-Sex Mar-

ried Couples (Sept. 27, 2011) (According to revised es-timates from the 2010 Census, there were 131,729same-sex married couple households in the UnitedStates.). Under these circumstances, both the orderlyresolution of DOMAs constitutionality and the nationaluniformity of that resolution are essential.

And even aside from these practical problems withpiecemeal adjudication in the district courts, a case likethis oneinvolving a constitutional question of inargu-able national importis uniquely fit for resolution by

this Court. It is reasonable for the Executive to haveconcluded that only this Court should finally resolve aquestion as fundamental as the one presented here.

Of course, the mere fact that the Solicitor Generalpetitions this Court for review in a given case does notcompel this Court to grant the petition. This Court re-mains free, as in any case, to deny certiorari. Such aconsideration is not jurisdictional, however, and doesnot prevent this Court from reviewing the merits if itso chooses, particularly whereas herethere is no

lack of intervenors and amicito put all of the relevantarguments before the Court.


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C. A Holding That The Court Lacks Jurisdiction,Or That Prudence Bars Its Exercise, WouldPresent Concerns Of Constitutional StructureWere this Court to rule that it lacks jurisdiction

because the Executive agrees with a lower court judg-ment of a statutes unconstitutionality, even when theExecutive continues to enforce the statute, the Execu-tive would effectively be required to abandon the infre-quently used but important practice of enforcing astatute but not defending it, and would instead be re-quired to choose between two alternative approaches,

each of which would be significantly less respectful ofthe separation of powers and of the historical relation-ship among the branches of government.

One approach would be for the Executive to pre-sent arguments defending a statute even when thePresident and Solicitor General believe that such ar-guments are unreasonable. But this approach wouldrisk undermining the institutional relationship betweenthis Court and the Office of the Solicitor General.

As many who have held that office have observed,

the Solicitor General occupies a unique role of fidelityboth to the Executive Branch and to this Court. TheSolicitor General is not a neutral, he is an advocate; butan advocate for a client whose business is not merely toprevail in the instant case. Sobeloff, Attorney for theGovernment: The Work of the Solicitor Generals Office,41 A.B.A. J. 229, 229 (1955); see also FEC v. NRA Po-litical Victory Fund, 513 U.S. 88, 96 (1994). In part be-cause of the Solicitor Generals institutional interest inseeking to establish justice across many cases (So-

beloff, 41 A.B.A. J. at 229), this Court has come to relyon the Solicitor General to present briefs of the mostscrupulous fidelity, and to combine statements of prin-


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ciple with strategies by which the Court may rule in amanner most consistent with principles of stability.Waxman, Twins at Birth: Civil Rights and the Role ofthe Solicitor General, 75 Ind. L.J. 1297, 1309 (2000).Every member of this Courts bar is obligated to advo-cate with candor and integrity, but the Solicitor Gen-eral is invited by tradition, as well as statute and regu-lation, to step out from the role of partisan advocate toassist in the orderly development of the law and to in-sist that justice be done even where the immediate in-terests of the federal government may not appear to

benefit. Days, In Search of the Solicitor GeneralsClients: A Drama with Many Characters, 83 Ky. L.J.485, 488 (1995). To require the Solicitor General to pre-sent arguments that he or she considered unreasonablein order to preserve this Courts jurisdiction would un-dermine this longstanding relationship of trust.

Such a requirement could also place the Presidentin the untenable position of taking a position before theJudiciary that the President believes to be fundamen-tally wrong as a matter of law. Where questions of

constitutional law touch on publicly contested issues,the Presidents ability to communicate with the Nationon matters of consequenceand the ability of the elec-torate to hold the President accountable for his or herviewswould be complicated by a dissonance betweenthe Presidents considered and strongly held views onthe meaning of the Constitution and the positions thatthe Presidents administration advances in the courts.

Alternatively, the Executive could adhere to itscurrent practice of decliningin rare instances and af-ter sober considerationto defend a statute for which

it finds no reasonable argument to be made. But itwould have to do so with the knowledge that this ap-proach could deprive the appellate courts of jurisdiction


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to decide the statutes constitutionality, absent a lowercourt judgment upholding the statute. Such a resultwould increase the constitutional significance of theExecutives decision not to defend a statute, as it mightinterfere with the Judiciarys power to say what thelaw is. As a practical matter, it could lead the Execu-tive to stop enforcing constitutionally questionablestatutes at all, since the alternativethe litigation ofsuccessive individual actions in dozens of districtcourts, with the possibility of no precedential resolutionof the issueis unsatisfactory. The foreclosure of judi-

cial review on otherwise justiciable questions of consti-tutional law would significantly intrude on the preroga-tive that this Court has reaffirmed consistently sinceMarbury, and would undermine Congresss interest inprotecting its constitutional and policy judgments frominvalidation except where the courts have conclusivelydecided that those judgments cannot pass constitution-al muster.

CONCLUSIONThe Court has jurisdiction to decide whether Sec-

tion 3 of DOMA violates the Constitution.


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Respectfully submitted.

MARK C.FLEMINGFELICIA H.ELLSWORTHWILMERCUTLERPICKERING

HALE AND DORR LLP60 State StreetBoston, MA 02109(617) 526-6000

PAUL R.Q.WOLFSON Counsel of RecordDANIEL WINIK*WILMERCUTLERPICKERING

HALE AND DORR LLP1875 Pennsylvania Ave., NWWashington, DC 20006(202) [email protected]

ALAN E.SCHOENFELDWILMERCUTLERPICKERING

HALE AND DORR LLP7 World Trade Center250 Greenwich StreetNew York, NY 10007(212) 230-8800

*Admitted to practice onlyin Maryland. Supervised by

members of the firm who aremembers of the District ofColumbia bar.

MARCH 2013


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APPENDIX


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LIST OF AMICI CURIAEGregory B. Craig served as Counsel to the Presi-

dent between 2009 and 2010.

Drew S. Days III served as Solicitor General ofthe United States between 1993 and 1996.

Arthur B. Culvahouse, Jr. served as Counsel tothe President between 1987 and 1989.

Walter E. Dellinger III served as Acting SolicitorGeneral of the United States between 1996 and 1997and as Assistant Attorney General for the Office of Le-gal Counsel between 1993 and 1996.

Charles Fried served as Solicitor General of theUnited States between 1985 and 1989.

Dawn E. Johnsen served as Acting Assistant At-torney General for the Office of Legal Counsel between1997 and 1998.

Douglas W. Kmiec served as Assistant AttorneyGeneral for the Office of Legal Counsel between 1988

and 1989.Daniel Levin served as Acting Assistant AttorneyGeneral for the Office of Legal Counsel between 2004and 2005.

Randolph D. Moss served as Assistant AttorneyGeneral for the Office of Legal Counsel between 2000and 2001 and as Acting Assistant Attorney General forthe Office of Legal Counsel between 1998 and 2000.

Beth Nolan served as Counsel to the President be-tween 1999 and 2001.

Bernard W. Nussbaum served as Counsel to thePresident between 1993 and 1994.


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John M. Quinn served as Counsel to the Presidentbetween 1995 and 1996.Seth P. Waxman served as Solicitor General of the

United States between 1997 and 2001.

windsor: amicus brief of former doj officials et al (jurisdiction)

Documents