Comments on: Senators’ briefs rejected

By: federalist

federalist — Sat, 01 Apr 2006 18:21:23 +0000

Subzero: I agree with you. There is a difference between admin agencies and senators, and it is a bit unseemly for senators to file briefs about what the law meant. Seems to me that once a law is passed, it’s, in a sense, out of the hands of the legislative branch. That’s what amendments are for.

I didn’t mean for my post to suggest otherwise–just that is understandable that Senators would try to do what Kyl, Graham and Levin are doing.

By: Subzero91

Subzero91 — Sat, 01 Apr 2006 12:51:21 +0000

federalist, you’re right about the agency briefs thing (Auer v. Robbins, I think), but I don’t think the situation is analogous to what the senators are doing. An agency’s brief is written by someone authorized to speak for the agency. Here, the senators haven’t been authorized to speak for the entire Congress or even the entire senate. As such, the senators’ briefs aren’t really analogous to “agency interpretations” so much as they’re analogous to the opinions of 3 employees of an agency.

Also, the relationship between an agency and Congress is much different between the relationship between Senators and Congress. Congress passes a law with some range of ambiguity in it, and the agency is allowed some leeway within which to make choices about how to carry it out. On the other hand, once a Congressional statute is passed, Congress’s job is done, and it’s not the place of individual Congressmen to try to shape interpretation of the statute once the text has been enacted.

At the risk of ending this comment with a disingenuous slippery-slope argument, I’ll add that I don’t think many of us want to see Senate floor debates reenacted in court. Every time a controversial law passes and goes to court for enforcement, the people who voted against it will file briefs emphasizing the extent to which the text was watered down in committee and say “we thought we took the teeth out of that thing,” and the bill’s proponents will point to their prior puffery in support of the bill. Maybe I haven’t quite nailed it down, but there’s something inappropriate and unseemly about senators arguing in federal court about how the statutes they passed should be interpreted.

By: federalist

federalist — Sat, 01 Apr 2006 04:12:53 +0000

I may be a little off-base here, but I think that administrative agencies’ legal briefs/litigation positions are given weight when it comes to court deference to agency interpretations of the law. It doesn’t seem, therefore, all that farfetched for Senators to try to create legislative histories in legal briefs.

I agree that the DC Circuit could have simply ignored the brief. Perhaps they wish to signal to the Senators not to waste their time filing briefs that will simply be ignored.

By: Subzero91

Subzero91 — Sat, 01 Apr 2006 04:04:44 +0000

I’d be curious to see what the briefs said. Does anyone know if they’re online somewhere?

I don’t think it’s “needless petulance” to say that briefs that effectively lobby the court on behalf of individual senators. This sort of thing is out of line, and the DC Circuit is right to say so.

By: Snowball007

Snowball007 — Fri, 31 Mar 2006 21:26:21 +0000

This is a display of needless petulence by the DC Circuit. If the motions are unopposed and the briefs are timely filed, what is to be gained by bouncing them? It’s a waste of time, too, since the court (or the clerks) presumably must read the amicus briefs anyway in order to determine that they should be rejected. I don’t see how burdensome amicus briefs could be–the court doesn’t have to give them any weight.

By: Brad D. Bailey

Brad D. Bailey — Fri, 31 Mar 2006 17:29:03 +0000

Seperation of powers at its best. Thank you Senators, but we don’t think you are our friends.