Abner S. Greene (Fordham University - School of Law) has posted Interpretive Schizophrenia: How Congressional Standing Can Solve the Enforce-but-Not-Defend Problem (Fordham Law Review, Forthcoming) on SSRN. Here is the abstract:
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President Obama decided to stop defending section 3 of the Defense of Marriage Act in court, but he continued enforcing it, thus denying federal benefits to legally married same-sex couples. This is interpretive schizophrenia, causing what the President himself believes to be constitutional harm to many, forcing them to litigate. Better would be for Presidents to stick by their interpretive guns, neither enforce nor defend laws they deem unconstitutional, and permit Congress to sue on its own behalf or on behalf of the United States. This piece adds to a very slim amount of scholarship on congressional standing, canvassing key Supreme Court and lower court cases, separation of powers concerns, and practical and analytical questions about permitting legislative standing in a situation such as this.
Highly recommended.
