The Role of the Bipartisan Legal Advisory Group

What is the Bipartisan Legal Advisory Group?

The Bipartisan Legal Advisory Group (BLAG) is comprised of the Speaker, the Majority Leader, the Minority Leader, and the Majority and Minority Whips. It is an entity of the House of Representatives that has the authority to intervene in certain court cases, request opinions of the House’s general counsel, and authorize representation in court to enforce privileges claimed by the House. Established in 1916 as the "Speaker of the House of Representatives may direct suits to be brought on behalf of the House," BLAG was originally given the power to "direct other officers of the House to institute legal proceedings for and on behalf of the House." For the first several decades of its existence, BLAG’s responsibilities were very limited. It acted only on rare occasions for specific litigation at the behest of the Speaker. However , as the House underwent increases in institutional power and responsibility, the usefulness of BLAG increased as well. Today, the group’s purpose is to resolve legal questions surrounding the scope and number of authority held by the House. With BLAG’s heightened use in contemporary Congresses, it has provided leaders in both parties with the ability to "put the institution’s ‘house’ in order," and remediate concerns over the institution’s prerogatives in court. BLAG’s most recent high-profile appearance came in 2013, when Speaker John Boehner (R-OH) authorized a suit filed against the executive branch to enjoin implementation of the Affordable Care Act (ACA). Throughout the early weeks of January 2014, courts in Virginia, Oklahoma, and the Washington, D.C. area ruled in favor of BLAG, finding that the courts had standing to hear the case, but denied the request for injunctive relief.

The Structure and Membership of the BLAG

The organizational structure of the BLAG is defined in House Rule II, cl. 8(a)(4). In the modern era, the group typically consists of the Speaker and three other members of the majority party, with two members from the minority party. When the majority is not bipartisan, the Speaker invites the leader or designee from the minority party to serve on the group. This ensures that, regardless of whether the House is not organized along bipartisan lines, the leader or designee of the minority party is represented within the legal advisory group. Members serve in this capacity for the duration of their term, however, if a vacancy occurs the Speaker must appoint a replacement.

The Role of the BLAG

The primary functions and duties of the Bipartisan Legal Advisory Group, known as BLAG, are defined in House Rule II, cl. 8. The first function of BLAG is to authorize the House Legal Counsel to act on behalf of the House in all civil actions or proceedings where the House is a party, or files a petition. BLAG has discretion to appear on behalf of the House as an intervenor.
Within House Rule II, cl. 8, BLAG additionally has the discretionary responsibility of authorizing the House Legal Counsel to accept representational responsibility for lawsuits or proceedings against current, former, or prospective members, officers, and entities or officers of the House, as well as any other individuals or entities that Congress authorizes.
Some authorities have advised that BLAG’s solemn duty is to protect the institutional dignity, authority, and proper functioning of Congress. However, a recent article by Harvard Law School Professor Mark Tushnet has brought forward a more controversial proposal: BLAG should investigate and, at least informally, express views about issues that might be brought to court if litigants decided to bring the House and its leaders into a suit.
BLAG also advises the Speaker of the House and House officers on legal matters, including pending legislation, but it is not charged with taking all positions in litigation the House becomes involved in. A motion to intervene must be authorized by BLAG, ordered by the Speaker, and then filed.

Major Court Cases Involving the BLAG

Significant case involvements include:
Windsor v. United States : The Bipartisan Legal Advisory Group filed an amicus curiae brief in defense of the constitutionality of Section 3 of the Defense of Marriage Act ("DOMA") before the U.S. District Court for the Southern District of New York and in the U.S. Court of Appeals for the Second Circuit, in support of the federal government’s appeal challenging the ruling of the Southern District of New York that DOMA violated the Constitution’s guarantee of equal protection. The brief left open the option for the Executive Branch to change its litigation position on appeal after further consideration of the merits of the district court’s decision. In undertaking this review, the BLAG stated that it remained committed to defending the constitutionality of DOMA as a valid exercise of Congress’ legislative power. But the BLAG decided not to defend the decision below. BLAG stated that the momentum of social change towards the acceptance of same-sex marriage had rendered the district court’s opinion into a "poor candidate for setting precedent" and that "[w]hile the [BLAG] is committed to defending the constitutionality of Section 3 of [DOMA], it may do so with respect to other parties in other courts at another time." On June 26, 2013, the Supreme Court issued a ruling in Windsor finding that: The Supreme Court found that the designation "marriage" as only between a man and a woman causes injury to those persons violating the equal protection clause of the Fifth Amendment of the Constitution. The Supreme Court did not rule on whether the district court lacked jurisdiction to consider appellant’s claim. Therefore, the Supreme Court’s ruling effectively mandated the application of the laws of the individual states for federal purposes. United States v. Windsor : BLAG filed an amicus curiae brief urging the Second Circuit to apply the highly deferential rational-basis standard and to reject the Southern District of New York’s decision striking down Section 3 of the Defense of Marriage Act as unconstitutional under the equal protection guarantee of the Fifth Amendment to the Constitution. On October 18, 2012, the Second Circuit Court of Appeals ruled that BLAG was not vested with standing to appeal, as there is no basis for which an entity can be granted standing to appeal in the place of the actual appellee. While the Second Circuit dismissed the BLAG appeal on standing grounds, the Second Circuit did recognize the compelling interest that the House of Representatives has in the preservation of DOMA. BLAG sought leave to intervene in the case, U.S. v. Windsor, No. 12-2335-cv (2d Cir. Feb. 6, 2013), but the Second Circuit denied the request, ruling that BLAG did not have standing to appear in the case beyond the mere filing of an amicus brief. The Second Circuit invited the House of Representatives as an intervenor in the case, should the President continue his refusal to defend the law on appeal. Hollingsworth v. Perry : Petitioners opposed BLAG’s request to have oral argument limited to the issue of standing and told the Court to determine whether it had jurisdiction to hear the pending appeals. The Court agreed to hear the full arguments on both standing and the merits of the case. The Court determined that the parties before it did not have standing to appeal, but also pointed out that because the questions of standing and the merits of the case were closely related, the Court felt that it should address the merits. The Court determined that the public purpose of DOMA did not overcome the prejudice toward a minority group contrary to the Constitution and that DOMA unconstitutionally denied same-sex couples the right to file federal tax returns on the basis of a legal marriage. This decision effectively removed the barrier to married same-sex couples filing joint federal tax returns, filing estate papers together, and receiving benefit payments from the government based on the death of a spouse.

The BLAG’s Impact on Legislative Matters

The Bipartisan Legal Advisory Group’s (BLAG) influence on legislative policy is profound and can even steer the course of bipartisan politics within Congress. By issuing advisory opinions that crystallize not just the position of one party, but rather the official stance of the House, BLAG actually assumes a role not unlike the President’s veto power. When the House asks for an opinion, such a request and the concomitant response can stymie legislation, as the presence of the advisory opinion often precludes even further consideration of a measure by the whole House.
BLAG’s impact on legislation can be seen in a number of cases. For example, in 2008, House Republican leaders requested an opinion from BLAG as to whether the Bipartisan Campaign Reform Act of 2002 disallowed the Speaker from using House funds to pay for legal defense fees related to a federal investigation of Members of the House Committee on Standards of Official Conduct. BLAG’s reply, issued as House Resolution 920, stated that Members of the House of Representatives were ineligible to have their legal bills paid with House funds when the investigation was, in the opinion of BLAG, unfairly targeting the Members in question and was in retaliation for the passage of the legislation .
As another example, in 2005, BLAG played a pivotal role with respect to the 2005 Energy Policy Act by issuing an opinion that the statute did not require any other two-thirds approval process to create new offshore energy leases. On the heels of this opinion, and pursuant to the House’s final resolution of this matter, by a 263 -0 vote, the House overwhelmingly approved what became the first major federal energy statute in nearly a decade.
One of BLAG’s earliest activities came in 1997 when the House asked whether the 104th Congress had authorized records of each Member’s participation in formal committee meetings and has specified a manner of access to those records by the public. In other words, the House wanted to know whether public access to these records complied with the relevant federal statute authorizing the records disclosure. BLAG responded by effectively assuring congressmen that these records were permissible under relevant federal statutes, thus allaying any unease they may have had in advance of the 1998 midterm elections.

The BLAG’s Criticisms

The role of the BLAG has not been without its criticisms and controversies. Initially, critics accused BLAG of putting ideology over institutional interest. Other commentators blame BLAG for "compromising the institutional interests of the House by having the Judiciary Committee staff run the defense," leading to poor arguments that failed to persuade the courts. Some also assert that by substituting its views for those of the Justice Department, BLAG puts the federal government in the politically untenable position of defending unconstitutional legislation.
On the other side, advocates have criticized a handful of instances where BLAG has not made its views known when it has declined to defend the law. For instance, they cite BLAG’s prior failure to participate in a challenge to the Defense of Marriage Act, a case which was decided against the DOJ and without input from the House.
BLAG’s dual role as institutional defender and proponent of a partisan agenda has also put it at odds with the parties it seeks to defend. An example of this conflict of purpose is found in the Motion for Reconsideration filed in the DOMA case filed in the U.S. District Court for the District of Massachusetts. In that motion, BLAG argued that the court should reconsider its earlier decision allowing the Bipartisan Legislative Commission to intervene as a party, reflecting a desire not to appear partisan before the courts. BLAG even quoted a congressional scholar who stated, "there’s a growing consensus that the courts don’t like it when the House just takes over cases that the Obama [a Democratic president] Justice Department has decided not to defend." The court agreed with BLAG and allowed its motion to intervene.

The Future Role of the BLAG

The D.C. Circuit recently announced that it would monitor the status of Doe v. McHugh, a government contractor compensation case that the case had initially dismissed on standing grounds. The Court’s decision immediately raised speculation as to whether the full D.C. Circuit, rather than a three judge panel, would consider the case on remand. In particular, the composition of any such panel promised to be of significant interest, since the political composition of the Circuit has become almost a topic of sport in recent years. In BLAG v. Citizens for Responsibility and Ethics in Washington, the Circuit’s latest political balance was also on display, as Judges Sentelle (G.W. Bush appointee), Kavanaugh (G.W. Bush appointee) and Srinivasan (Obama appointee) heard oral argument.
Since the D.C. Circuit’s decision in Citizens for Responsibility and Ethics in Washington v. American Association of Political Consultants, there appear to have been initial rumblings that Congress may be considering whether to remove, limit or restrict the authority of the Bipartisan Legal Advisory Group ("BLAG") to intervene in litigation. This comes on the heels of the DOJ’s decision, following the passage of the Defense of Marriage Act ("DOMA"), to no longer defend DOMA’s constitutionality in litigation, and its decision to allow BLAG to intervene to do so.
In its brief supporting BLAG’s request to intervene on appeal in CRUMLAW, Inc. v. Consumer Financial Protection Bureau, the DOJ argued that BLAG represented a valuable mechanism for Congress to participate in litigation when necessary. The DOJ, recognizing the possibility that Congress may take steps to limit or remove BLAG’s role addressed the issue directly: Through its delegation of authority to defend the constitutionality of DOMA , Congress sought to affirm the prerogative of the Legislative Branch—through agencies like HIRC [House Judiciary Committee], acting on behalf of BLAG—to seek to intervene in private litigation to defend legislative enactments and thus to have a voice in judicial proceedings involving their validity. The Department has expressed its view that HIRC ordinarily should be able to have a seat at the table in an appropriate case through intervention by the legislative branch.
The Criminal Referral Program and Litigation Against the United States, 34 Op. O.L.C. __, slip op. at 12 (Aug. 5, 2010). Removing ones voice, however, while perhaps reinforcing the Executive’s constitutional duty to defend the law, would also serve to defeat the specific congressional delegation of authority granted in DOMA. By limiting, removing or replacing BLAG, Congress also risks rendering future delegations of intervention authority moot. This is because even if a BLAG conclusion about the propriety of intervention to defend a law were to be given deference by courts—broadly upholding its right to intervene or restrictively upholding its position not to intervene—revision of the makeup of the group would set up a particular uncertainty regarding the current congressional delegation of authority. For these reasons, the DOJ did not recommend changes, but instead asked that the House Amplifying Act of 2014 be rejected. The DOJ also reiterated the importance of BLAG’s ability to participate in litigation by urging review of the CRUMLAW decision to grant summary judgment. Since that time, Congress has not taken any action to address BLAG’s role, and it is anticipated that DOJ’s position will remain the prevailing one unless and until political winds change.