In a statement Wednesday night, House Speaker John Boehner officially announced his intent for the House to intervene as a third party defendant in court cases challenging the constitutionality of the Defense of Marriage Act.
“Today, after consultation with the Bipartisan Leadership Advisory Group, the House General Counsel has been directed to initiate a legal defense of this law,” Boehner said in the statement. “This action by the House will ensure that this law’s constitutionality is decided by the courts, rather than by the President unilaterally.”
In a letter to Boehner announcing the administration’s decision not to defend the law in court, Holder nudged at the idea that Boehner could step in and do it himself. Not that they want the law to prevail in court, of course, but because they’re perfectly happy for a GOP leader to become the face of what has become an unpopular cause.
Late update: A source sends over details about the meeting during which the House decided to defend DOMA in court.
To wit, Pelosi and Hoyer argued against having the House defend the law in court, but were outvoted by Boehner, Eric Cantor, and Kevin McCarthy — such is the nature of being in the minority in the House.
“Pelosi and Hoyer both pressed the General Counsel on what this case would cost the House of Representatives,” according to the source. “General Counsel Kerry Kirchner would only say it would “not be inexpensive.” Mr. Kirchner noted that there are currently at least 10 cases and he does not have the in-house resources to deal with that many cases as he has a staff of five with one lawyer currently on maternity leave.”
The intervention will take 18 months minimum, Kirchner informed the leaders. He noted, too, that previous Presidents, including Ronald Reagan, have opted not to defend laws in court.
“Pelosi repeatedly pushed back on assertions that the Administration was deciding the constitutionality of the law,” says the source. “She noted that judicial review was continuing and that a number of groups were filing pro-DOMA briefs in the cases so there was no need for the House to intervene. And that the Administration was still enforcing the law.”
Brian Beutler
Brian Beutler is TPM's senior congressional reporter. Since 2009, he's led coverage of health care reform, Wall Street reform, taxes, the GOP budget, the government shutdown fight, and the debt limit fight. He can be reached at brian@talkingpointsmemo.com.
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