Boehner wants Justice Department to fund fight for Defense of Marriage Act
Josh Gerstein
Boehner sent House Minority Leader Nancy Pelosi (D-Calif.) a letter Monday asking her to support a reallocation of funds from the Justice Department to the House to cover the defense of the statute.
"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," Boehner wrote. "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 DOJ, defending DOMA."
Pelosi responded Monday afternoon with a letter of her own asking Boehner to answer her questions about how much the defense is expected to cost.
"Unfortunately, your letter did not respond to the central question in my March 11th letter: the cost to taxpayers of hiring outside legal counsel," Pelosi wrote. "Again, I am requesting that you disclose the cost of hiring outside counsel for the 12 cases where DOMA is being challenged."
Pelosi also complained that Democrats were never officially informed of the decision to hire former Solicitor General Paul Clement to handle the DOMA defense, nor have they received a copy of a contract he has reportedly signed with the House Administration Committee.
Last month, the House convened a special panel to consider mounting a defense of DOMA. The group voted 3-2 along party lines to defend the law, which Obama has asserted is unconstitutional.
"There are numerous parties who will continue to litigate these ongoing cases regardless of the involvement of the House," Pelosi wrote in her March 11 missive. "No institutional purpose is served by having the House of Representatives intervene in this litigation which will consume 18 months or longer. As we noted, the constitutionality of this statute will be determined by the Courts, regardless of whether the House chooses to intervene."
When the legislative branch becomes involved in a court dispute over legislation, its involvement usually consists of filing an amicus brief. Sometimes individual private lawyers or law firms will volunteer to draft such a filing. However, actually litigating a case in the trial courts is potentially a far more significant undertaking. Pelosi pointed out there are at least 12 separate cases the House may have to defend.
Clement's opening brief, filed Monday, (text here) suggests that the House's lawyers will tackle only the constitutional issues and the Justice Department will continue to tend to the more mundane aspects of the litigation.
White House spokesman Jay Carney said Monday he was unaware of the funding issue and referred comment to the Justice Department, which had no comment. The Office of Management and Budget also had no comment on Boehner's proposal.
Attorney General Eric Holder told a House committee last month that he didn't think dropping the defense of the legislation would save any funds because the Justice Department lawyers who would work on that will simply work on other matters.
If the Senate is unwilling to sign onto a bill reallocating funds from the Justice Department to the House and if Obama is unwilling to sign such a bill, it's unclear how such a reallocation could take place.
UPDATE: This post has been updated with the new letter from Pelosi and the word of Clement's hiring.
UPDATE 2: This post has been updated with Clement's filing.
Apirl 18, 2011