Senators’ briefs rejected
The D.C. Circuit Court, pondering the meaning of the court-stripping law passed late last year by Congress (the Detainee Treatment Act), has refused to accept three senators’ attempts to help shape the ruling. In a brief order Thursday, containing no explanation, the Circuit Court refused to allow the three key sponsors of the new law to file amici briefs in two packets of detainee cases now pending there (the lead case is Boumediene v. Bush, docket 05-5062). No one opposed the filing of those briefs. No other amicus briefs were turned aside.
The senators are Republicans Lindsey Graham of South Carolina and John Kyl of Arizona, who filed a brief together, and Democrat Carl Levin of Michigan.
There is an ongoing debate among those three as to the import of legislative history that the three of them created for the Congressional Record, but that did not actually occur on the floor of the Senate. The controversy centers on whether the Act was meant to withdraw the courts’ jurisdiction over already-pending detainee cases — an issue also before the Supreme Court in the case of Hamdan v. Rumsfeld (05-184). But a secondary controversy has arisen over a suggestion by the two GOP senators that their “colloquy” on the issue was a live exchange.
The Circuit Court’s order to return the briefs to the senators can be found here. The Court made it clear that it had first examined the briefs before ordering them returned.
Among possible explanations for the order are these:
First, the three judges on the panel regarded the senators as speaking only for themselves, so their briefs did not have the dignity of being a formal representation by the Senate itself, or by Congress.
Second, some or all of the judges are of the view that legislative history in general, or manufactured history of this kind, is unhelpful in determining Congress’ purpose in enacting the legislation.
Third, some or all of them were troubled by the attempt to cast the Graham-Kyl exchange as one that actually occurred on the floor prior to the final vote, and decided to push that brief aside, and did so, too, with Levin’s brief in order to appear to be even-handed.
The order, however, leaves open the possibility that the reconstructed senatorial “speeches” would still be considered by the panel, since the federal government’s brief relies upon the Graham-Kyl exchange as part of its argument that jurisdiction over detainee cases has been taken away.
An explanation, at least by implication, may only emerge when the panel decides the jurisdictional issue.
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Seperation of powers at its best. Thank you Senators, but we don’t think you are our friends.
Comment by Brad D. Bailey — March 31, 2006 @ 1:29 pm
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.
Comment by Snowball007 — March 31, 2006 @ 5:26 pm
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.
Comment by Subzero91 — April 1, 2006 @ 12:04 am
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.
Comment by federalist — April 1, 2006 @ 12:12 am
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.
Comment by Subzero91 — April 1, 2006 @ 8:51 am
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.
Comment by federalist — April 1, 2006 @ 2:21 pm