Paying For DOMA Defense: How About a Contingency Fee?

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Speaker Boehner wants Congress to deduct the costs of defending DOMA from the Justice Department's budget. Here's a better idea.

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Reuters/Kevin Lamarque


The Obama Administration decided earlier this year that it no longer made legal sense to continue to defend in court a key provision of the Defense of Marriage Act, the federal statute that bans same-sex marriage. That didn't sit well with Republicans in control of the House of Representatives. In March, the GOP-controlled Bipartisan Legal Advisory Group in the House of Representatives voted to take up the DOMA's defense. And that in turn didn't sit well with Democrats in the House.

The Republican decision to pick up the gauntlet on DOMA prompted Rep. Nancy Pelosi (D-Calif.), the House Democratic leader, to question last month how much it would cost Congress to continue to defend the contentious statute in court. And that in turn prompted Rep John Boehner (R-Ohio), the Speaker of the House, to respond to Pelosi Monday with an extraordinary letter telling her that he hopes Congress will deduct from the Justice Department's budget the legislature's costs of defending DOMA. Here's specifically what Boehner wrote:

The burden of defending DOMA, and the resulting costs associated with any litigation that would have otherwise been born by DOJ, has fallen to the House. Obviously, DOJ's decision results in DOJ no longer needing the funds it would have otherwise expended defending the constitutionality of DOMA. It is my intent that those funds be diverted to the House for reimbursement of any costs incurred by and associated with the House, and not the DOJ, defending DOMA.

Two reactions to this whopper come immediately to mind. First, the notion that the Congress is going to "punish" the Justice Department for a decision about how to handle a federal statute in court is terrible precedent and policy. It infringes upon executive branch power and exceeds legislative authority to control the management of federal laws once they undergo judicial review. Besides, where were all these "let's neuter the executive branch" politicians when George W. Bush, Dick Cheney and David Addington were running the White House? Where were all these people when Attorney General Alberto Gonzales was ruining the Justice Department?

Never mind Nancy Pelosi, Boehner's stunt ought to be even more offensive to the White House and Justice Department than was Congress' explicit bullying of the executive branch over the Guantanamo Bay detainees. And that's saying something. What's next, a penalty charge from Congress to the Justice Department the next time the Attorney General decides not to seek the death penalty in a capital case? Or how about a DOJ budget penalty the next time the Solicitor General cites the wrong legal standard in a brief. This pervasive meddling by Congress into the heart of the executive branch's function jeopardizes the rule of law.

But, if it is time for legislators to talk turkey over the DOMA, how about a contingency fee arrangement of some sort? Pelosi ought to counter her Republican counterpart with the following proposal: If the Supreme Court ultimately supports Section 3 of the DOMA, then Congress can reimburse itself from the Justice Department's budget. If the Supreme Court ultimately rejects the DOMA, Congress is on its own. And if a majority of justices support the Affordable Care Act, or any other federal statute now pending before them, then Congress can pay a surcharge to the Justice Department for the trouble.

In other words, that's how bad Boehner's pay for play idea really is.

Drop-down image credit: AP

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Andrew Cohen is a contributing editor at The Atlantic, 60 Minutes' first-ever legal analyst, and a fellow at the Brennan Center for Justice. He is also chief analyst for CBS Radio News and has won a Murrow Award as one of the nation's leading legal journalists. More

Cohen is the winner of the American Bar Association’s 2012 Silver Gavel Award for his Atlantic commentary about the death penalty in America and the winner of the Humane Society’s 2012 Genesis Award for his coverage of the plight of America’s wild horses. A racehorse owner and breeder, Cohen also is a two-time winner of both the John Hervey and O’Brien Awards for distinguished commentary about horse racing.

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