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Posted at 01:44 PM ET, 04/18/2011

Boehner: Justice Dept. funds should be used to pay for House defense of DOMA

A month after House Minority Leader Nancy Pelosi (D-Calif.) penned a letter to House Speaker John Boehner (R-Ohio) expressing concerns about the cost of the House’s legal action to defend the Defense of Marriage Act, Boehner responded in a letter Monday that the House defense of the law, which bans the recognition of same-sex marriage, should be paid for by redirecting funds from the Department of Justice.

“The burden of defending DOMA, and the resulting costs associated with any litigation that would have otherwise been [borne] by DOJ, has fallen to the House,” Boehner wrote in the letter. “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.”

Boehner did not state in the letter whether he intends to take any further action in an effort to redirect the funds from the Department of Justice. It’s also unclear how the task of redirecting those funds might be accomplished, given the difficulty of calculating a hypothetical amount of money. A spokesman for Boehner, who is currently traveling in Pakistan, said that the dollar figure would likely depend on the legal strategy going forward.

Boehner’s letter comes one month after he announced that the House would defend the constitutionality of DOMA in court. The decision was made by a vote of the House Bipartisan Legal Advisory Group, which is comprised of the top three House Republicans – Boehner, Majority Leader Eric Cantor (R-Va.) and Majority Whip Kevin McCarthy (R-Calif.) -- and the top two House Democrats – Pelosi and Minority Whip Steny Hoyer (D-Md.). The group’s three Republican members voted in favor of House intervention to defend the law, while the two Democrats voted against intervening.

President Obama in February instructed the Justice Department to no longer defend the law. Democrats in the House and Senate have introduced legislation aimed at repealing DOMA, but the future of both measures is uncertain.

Boehner also argued in his letter Monday that “the cost associated with DOJ’s decision is exacerbated by the timing of this decision.”

“Most of these cases are in the middle of lower court litigation and not ripe for Supreme Court review,” Boehner wrote. “Had the Attorney General waited until the cases were ripe for certiorari to the Supreme Court, the costs associated with the House defense would have been exponentially lower.”

The full text of Boehner’s letter is below.

April 18, 2011

The Honorable Nancy Pelosi

Democratic Leader

U.S. House of Representatives

H-204, the Capitol

Washington, DC 20515

Dear Leader Pelosi:

Thank you for your letter of March 11, 2011 regarding the Bipartisan Legal Advisory Group’s (BLAG) decision to defend the constitutionality of the federal statute, Defense of Marriage Act (DOMA). This decision was necessitated by the extraordinary announcement by the current Attorney General, U.S. Department of Justice (DOJ) declining to defend the constitutionality of Section 3 of that Act.

Had the BLAG not taken this action, the constitutionality of the law would have been determined by a unilateral action of the President. By the House taking this action and the steps necessary to defend the law, the House is ensuring that the courts will decide DOMA’s constitutionality.

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 DOJ, defending DOMA.

I appreciate that ordinarily DOJ should be in a better position to defend a federal statute in the Courts, both in terms of resource allocations and in expertise of personnel. However, by the President’s action through the Attorney General we have no choice; the House now faces that additional burden and cost. I would also point out that the cost associated with DOJ’s decision is exacerbated by the timing of this decision. Most of these cases are in the middle of lower court litigation and not ripe for Supreme Court review. Had the Attorney General waited until the cases were ripe for certiorari to the Supreme Court, the costs associated with the House defense would have been exponentially lower.

I would welcome your joining me in support of redirecting those resources from the DOJ to the House that would otherwise have been necessary expenses on the Attorney General to defend this federal statute. In the interim, I have directed House Counsel and House Administration Committee to assure that sufficient resources and associated expertise, including outside counsel, are available for appropriately defending the federal statute that the Attorney General refuses to defend.

Thank you.

Sincerely,

JOHN A. BOEHNER

By  |  01:44 PM ET, 04/18/2011

 
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