3. (a) An amicus curiae brief in a case before the Court for oral argument may be filed if accompanied by the written consent of all parties, or if the Court grants leave to file under subparagraph 3(b) of this Rule . . . .

3 (b) When a party to the case has withheld consent, a motion for leave to file an amicus curiae brief before the Court’s consideration of a petition for a writ of certiorari, motion for leave to file a bill of complaint, jurisdictional statement, or petition for an extraordinary writ may be presented to the Court. The motion, prepared as required by Rule 33.1 and as one document with the brief sought to be filed, shall be submitted within the time allowed for filing an amicus curiae brief, and shall indicate the party or parties who have withheld consent and state the nature of the movant’s interest. . . .

4. No motion for leave to file an amicus curiae brief is necessary if the brief is presented on behalf of the United States by the Solicitor General; on behalf of any agency of the United States allowed by law to appear before this Court when submitted by the agency’s authorized legal representative; on behalf of a State, Commonwealth, Territory, or Possession when submitted by its Attorney General; or on behalf of a city, county, town, or similar entity when submitted by its authorized law officer.

Rule 29 of the Federal Rules of Appellate Procedure says,

(a) When Permitted. The United States or its officer or agency, or a State, Territory, Commonwealth, or the District of Columbia may file an amicus-curiae brief without the consent of the parties or leave of court. Any other amicus curiae may file a brief only by leave of court or if the brief states that all parties have consented to its filing.

(b) Motion for Leave to File. The motion must be accompanied by the proposed brief and state:
(1) the movant’s interest; and
(2) the reason why an amicus brief is desirable and why the matters asserted are relevant to the disposition of the case.

The Federal Rules of Civil Procedure, which governs federal district courts, has no rule for amicus briefs, and federal district courts generally follow FRAP Rule 29.

IMO a member of Congress does not satisfy the above descriptions of government officials who need no approval to file amicus briefs. Under Supreme Court Rule 37 — 3(b) above, it is possible to have an amicus brief read by the Supreme Court even if leave to file is not granted, because the motion for leave to file is attached to the brief sought to be filed, so a party’s objection to the filing of an amicus brief might actually increase the probability that the brief will be read by the court.

I suspect that litigants generally have a gentlemen’s agreement to not oppose the filing of any amicus briefs — opposing an amicus brief would invite retaliation and result in chaos.

Orin Kerr: The executive branch has traditionally been understood as a litigating branch that represents the institutional interests of the government. Do you disagree?

No, I have no basis on which to disagree. I was asking questions because the answers weren’t intuitively obvious to a non-specialist and I was curious. One of my favorite things about this blog is that I learn interesting stuff I didn’t know.

Mark Field: I wouldn’t expect to find “amicus” briefs by the US in that era. The practice in those days was for the AG to be present in Court during Supreme Court sessions (they sometimes only last a couple of weeks). You can see in the reports that the AG would stand up and give his view on federal law even in private cases.

Like this. Thanks, Mark. I had no idea that was the practice, but it makes the argument from tradition much more powerful.

Heberlig, Eric and Rorie L. Spill. 2000. “Congress at Court: Members of Congress as Amicus Curiae.” by Eric Heberlig and Rorie L. Spill. Southeastern Political Review Volume 28:1-24.

Spill Solberg, Rorie L. and Eric S. Heberlig. 2005. “Communicating to the Courts and Beyond: Why Members of Congress Participate as Amicus Curiae.” Legislative Studies Quarterly Vol 29:591-610.

“Congressional Polarization and Amici Participation.” Midwest Political Science Association Meeting. Chicago, IL. April 2-5, 2009

Got any beefs with this particular brief? I rather enjoyed its assertion that 2A affects Congress’ War Powers. I don’t like to see the civic duty portion implied by the Amendment’s prefatory clause completely dismissed as seems popular these days.

There was a good brief in Heller from several military officers along those lines as well.

No, it was there because you seemed to be making one of your flip non-answers to what seemed to me (a non-specialist) to be a perfectly reasonable question.

I was acting in good faith, as I tend to be: I am sorry if your experience is that I give “flip non-answers.” I do aim to improve, I hope with your help.

But it sounds like your argument is basically that we’ve always done it this way, so it must be correct. Given that it is the Legislature — not the Executive — that makes the laws that the judiciary interprets, it’s not obvious to me why the Executive gets to have a voice but the Legislature doesn’t. Other than there’s somebody in the Justice Department whose job it is to write briefs, and Congress doesn’t have one.

No, that’s not correct. My argument is not that it is correct because it has been done this way, but rather it is correct because it reflects the historical understanding of the separation of powers upon which the Constitution is based. The executive branch has traditionally been understood as a litigating branch that represents the institutional interests of the government. Do you disagree?

As for the argument that you’re not sure why “the legislature” doesn’t file a brief, beyond the reasons I mention, I think you’re overlooking the fact that the “congressional briefs” are not filed on behalf of the legislature: they are filed on behalf of individual legislators. The briefs do not claim to represent Congress as a whole, or the interests of the legislature: They only claim to represent the interests and views of the subset of legislators who decided to sign the brief.

I see nothing at all wrong in members of Congress seeking to influence the Court’s disposition of a case provided that the effort to influence involves nothing beyond the power of persuasion by argument. Threats or other forms of coercion are a different matter.

In fact, members of Congress often have a peculiar interest in a case that otherwise might be unrepresented or inadequately presented before the Court. In that event, surely Coangressional amicus participation is not only proper but also highly desirable.

Okay, the first point makes sense, but it’s not clear to me that a brief advocating how the law should be interpreted involves “executing” the laws. Sounds to me more like influencing them

Agreed, but there’s no way to “execute” a law without first taking a position regarding what it means.

On the second point, British tradition doesn’t seem applicable, because there is no separation of powers in the British system.

Agreed on the separation of powers issue, but remember that all the Founders had in mind a mental image of what they expected the Executive to do (the grant of power itself being notoriously vague). That included what governors did in the colonies and what the King did in England. While they consciously restricted a good many of those powers, the remaining practices influenced their view of how the new American executive would act.

As for our tradition, when did the Justice Department first start filing amicus briefs in cases? If it was 1793, that’s pretty good evidence in support of the argument. If it was much later, I’m less impressed.

I wouldn’t expect to find “amicus” briefs by the US in that era. The practice in those days was for the AG to be present in Court during Supreme Court sessions (they sometimes only last a couple of weeks). You can see in the reports that the AG would stand up and give his view on federal law even in private cases. See, e.g., Wilson v. Daniel, 3 U.S. 401 (1798) (that happened to be the case I opened the book to, but it was a fairly common feature of the cases).

Does it make any difference to your analysis that members of Congress have a direct interest in the outcome of McDonald as members of Congress?

Under City of Boerne v. Flores, Congress’s power to enforce the 14th Amendment under its Section 5 power is constrained to means that are congruent and proportional to enforcing rights that the Court finds to be incorporated by Section 1 of the 14th Amendment. If the Court holds that Section 1 protects gun rights, then Congress will have Section 5 powers to enforce and protect gun rights. If the Court holds that Section 1 does not protect gun rights, then, under City of Boerne, Congress will not have Section 5 power to enforce and protect gun rights.

To the extent that Congressmen, as Congressmen, have a direct interest in expanding their power if the Court holds that Section 1 protects gun rights, do you object to them seeking to protect that interest as friends of the Court? The Clement brief mentions, but does not rely on, this rationale.

After all, if the issue is respect for other branches’ interpretations of the Constitution, then arguably the Court started the fight in Boerne by holding that Congress cannot adopt a more expansive view of Section 1 than the Court adopts.

Interestingly, In 1821 Senator Henry Clay appeared as amicus before the Supreme Court in a constitutional case, though he did not purport to represent Congress: Green v. Biddle, 21 U.S. 1 (1823).

Other cites would be appreciated, but on the surface the tradition argument seems a little weak.

Mark Field: 1. The Constitutional text requires that the Executive “take care that the laws be faithfully executed”. That’s done by enforcing them in court. Thus, the natural source for representing the interests of federal law is the Executive.
2. Tradition. That’s how it worked in the British government, and how it’s worked here since 1789. The federal government has, from day 1, presented the “government” position in court, while Congress (AFAIK) never has (in the sense of a brief adopted by both Houses).

Okay, the first point makes sense, but it’s not clear to me that a brief advocating how the law should be interpreted involves “executing” the laws. Sounds to me more like influencing them,

On the second point, British tradition doesn’t seem applicable, because there is no separation of powers in the British system. As for our tradition, when did the Justice Department first start filing amicus briefs in cases? If it was 1793, that’s pretty good evidence in support of the argument. If it was much later, I’m less impressed.

David Welker: I disagree with you on both counts. It is fine if the members of the judiciary express their opinion about legislation. In fact, they are in a special position to do so, since they have a better understanding of how the law actually impacts the world in concrete cases than most citizens. Obviously, if they were to assert that the exercise of Congressional power one way or another would influence their judging in a particular case, that would be highly improper. That is, if they tried to leverage their judicial power into legislative power, that would be problematic. But there is nothing wrong with expressing an opinion. Judges are citizens too.It is fine if members of Congress file briefs with the judiciary. I don’t see why members of Congress should be situated in an inferior position relative to the ACLU or the Institute for Justice or the NRA in this regard. On the other hand, I don’t think Courts should give any special consideration of briefs filed by members of Congress, but instead should evaluate them like any other brief based solely on the quality of the legal argument. If members of Congress submitted briefs threatening to change the jurisdiction of the courts if a case did not come out a certain way, that would be clearly improper. But members of Congress have a right to make arguments about the meaning of the Constitution, just as the ACLU or NRA does. Both members of Congress and Judges are, in addition to being office holders, ordinary citizens. As long their interactions with the other branches are done in that capacity, I do not perceive any separation of powers problems when they choose to act as ordinary citizens. Instead, separation of powers problems occur when they try to use the powers of their office to encroach on the other branches.I think the best argument that Orin could come up with be some sort of slippery slope argument. While I do not think such arguments should be discarded altogether, I believe they should be disfavored. I don’t see the slippery slope here.

I don’t often agree with David Welker, but I do here.

I agree that members of Congress vote for or against legislation for a variety of reasons and a member’s rationale for a particular vote is largely irrelevant.

On the other hand, I would think the Supreme Court might have been interested in the thoughts of Senators John McCain and Russ Feingold when it was deciding McConnell v. Federal Election Comm’n, to use one obvious example.

Deciding cases isn’t Congress’s job.

As a general matter, that is perfectly true. However, when the critical issue raised in the case involves the meaning of the Constitution, especially a Constitutional question which will determine the scope of the power of the Legislative Branch to act (e.g., what rights, if any, under Section 1 of the 14th Amendment does Congress have the power to enforce “by appropriate legislation” under Section 5 of the 14th Amendment), then I see nothing at all inappropriate in members of the Legislative Branch, a branch which is coequal with the Judiciary, providing the Court its own view of the meaning of the Constitution through an Amicus Brief. Frankly, since this is a public filing, freely available to whoever wants to read it, this is probably the most transparent process for any members of the Legislative Branch to express their views on the meaning of the Constitution (and, as an aside, on the interpretive methodology they rely upon in interpreting the Constitution) we could hope for. Not only do I not think its “unseemly”, I appreciate the input of whatever Senators and Representatives choose to say about how they interpret the Constitution, even if I should disagree with their interpretation or methodology. At least with Senators and Representatives who I disagree with on Constitutional Issues, I have a remedy at the Ballot Box.

jcm: The Congress is the author of the law so due process requires that the author presents his defense of the law.

Due process to what/whom? The US Constitution requires that life, liberty and property not be deprived from any person by the state/federal government without due process. Are you saying that the legislature’s life, liberty or property is possibly being deprived when a court construes a statute/constitution? If so, that is rather silly. If that is not what you are saying, then I just don’t get where you are going with this “due process requires the legislature defends its laws” argument. . . .

Well, you say, because that’s “different.” It’s different because “traditionally” the executive represents the government’s interest before the court. Of course, the accuracy of that statement depends on how you interpret the word “government”; in a dispute between the President and Congress, we know the SG represents only the President’s interest. Congress is no less part of our government. Is it less inappropriate in that circumstance for Members of Congress to file briefs expressing their view? Does it help if they express their views in institutional terms (i.e., “Amicus Curiae the 4th Congressional District of California” or something)?

And then there’s the other question that naturally follows from your argument: what other legal materials a court might consider are off limits to Congressmen? Is it inappropriate for Members of Congress to write law review articles expressing their views about what the law requires and explicitly urging courts to interpret laws in particular ways? What about books? Courts cite books sometimes. What about committee reports, or floor speeches? Newspaper editorials? My suspicion is that you will say these other avenues are not off-limits.

(And what about candidates for congressional office? Can they file briefs? Or does the separation of powers bind them too?)

All this leaves us with a very strange rule. The separation of powers are violated only by members of one branch (and not the other) trying to persuade judges of their views, and only if they do it by brief writing.

Of much greater concern to me is the slowly but surely neutering of the 10th Amendment and the concurrent centralization of power by the central government and those three branches.

At this point, worrying about the “separation of powers” at the federal level is somewhat like worrying whether you are being robbed by one armed and dangerous crook as opposed to three armed and dangerous crooks.

AJK: (Of course, the notion that the current Congress has a special insight into the intentions of their predecessors 150 years ago is a bit of a fiction, but no more than the notion that the Supreme Court has the same insight.)

It only seems like Robert Byrd was around then.

Nick

AJK: But in a case, like this one, that revolves around interpreting congressional intent, isn’t it only fitting that Congress offer up its opinion?(Of course, the notion that the current Congress has a special insight into the intentions of their predecessors 150 years ago is a bit of a fiction, but no more than the notion that the Supreme Court has the same insight.)

Another illustration of the problems of congressional intent. Is Congress going to submit a brief to me, when I’m trying to follow the law, before the matter winds up in court? If congress wants to write about what its intent was, they should do so in the statute (or amendment)

I can see why the Executive is responsible when it’s an Executive act that’s under consideration (as when the Executive is prosecuting or suing someone or being sued itself) but where does the duty to “represent the interests of federal law” come from? Why is the Executive more likely to represent federal law more accurately than the Legislature that made it?

Two sources:

1. The Constitutional text requires that the Executive “take care that the laws be faithfully executed”. That’s done by enforcing them in court. Thus, the natural source for representing the interests of federal law is the Executive.

2. Tradition. That’s how it worked in the British government, and how it’s worked here since 1789. The federal government has, from day 1, presented the “government” position in court, while Congress (AFAIK) never has (in the sense of a brief adopted by both Houses).

At the same time, the filing of briefs to try to influence individual cases seems to me to enter inappropriately into the core of the judicial process. Deciding cases isn’t Congress’s job, and it’s unseemly and inappropriate for legislators to step in and try to influence how the Justices exercise “the judicial Power of the United States” that the Constitution vests in the Supreme Court.

This argument seems circular. As I read you, you’re saying, “it violates the separation of powers because it’s unseemly for members of Congress to express their opinion to the Court, and it’s unseemly for members of Congress to express their opinion to the Court because it violates the separation of powers.”

To me, it seems that the problem with judges using their official capacity to “lobby” Congress is that judges are supposed to be neutral arbiters of the law, and using their position to lobby for legislation compromises their neutrality. It’s a matter of judicial ethics and neutrality, not of separation of powers.

On the other hand, members of Congress writing amicus briefs doesn’t do anything to compromise their positions as legislators. Nor does it compromise the impartiality of the justice system, since the Justices are extremely unlikely to give undue weight to a brief merely because it was signed by members of Congress.

There would be a problem if the briefs were an implicit threat: vote our way or we’ll restrict your jurisdiction/cut off your funding/impeach you. But Congressional amicus briefs aren’t being used as threats, and such threats would be problematic whether or not they were expressed in amicus briefs.

Orin Kerr: I gather the word “uh” is supposed to suggest that I am missing something obvious.

No, it was there because you seemed to be making one of your flip non-answers to what seemed to me (a non-specialist) to be a perfectly reasonable question. If you genuinely couldn’t see why someone would be confused about why separation of powers would bar Congress, but not the President, from influencing judges in cases where the U.S. is not a party, I apologize.

But it sounds like your argument is basically that we’ve always done it this way, so it must be correct. Given that it is the Legislature — not the Executive — that makes the laws that the judiciary interprets, it’s not obvious to me why the Executive gets to have a voice but the Legislature doesn’t. Other than there’s somebody in the Justice Department whose job it is to write briefs, and Congress doesn’t have one.

Orin Kerr: The power to represent the interests of federal law is part of fulfilling “[t]he executive Power.”

I’d be interested in the source for this assertion. I can see why the Executive is responsible when it’s an Executive act that’s under consideration (as when the Executive is prosecuting or suing someone or being sued itself) but where does the duty to “represent the interests of federal law” come from? Why is the Executive more likely to represent federal law more accurately than the Legislature that made it?

The courts can just ignore the briefs, just like legislators can ignore judicial opinions designed to influence legislation

Crunchy Frog: Winner.

Sure. But if he catches the fish, we should take the prize back as punishment.

So when DOJ files a brief, it is not the personal brief of the SG, but rather an institutional brief representing the executive branch’s duty to represent the government’s interests in litigation.

That may be the theory, but there are certainly many cases in which the interests of the executive and legislative branches diverge, and ultimately the SG and those up the chain of command report to the President. It’s hard to see the harm to separation of powers when legislators express their own view of the “government’s interests” if they disagree with the view of the SG. On the contrary, if rules, tradition, or notions of propriety required legislators to just accept whatever view of the legislature’s interests the executive put foward, wouldn’t that undermine separation of powers?

RealistLiberal: I wonder what Bingham would think of the appropriateness of Congress filing amicus briefs. Does anyone have any insight into that?(Sorry, couldn’t resist.)

Winner.

But it seems to me that Professor Kerr’s general objection is correct, although I really have the same objection to lots of amicus briefs. Congress is just another interest group filing duplicative and redundant briefs with the Court, but really, what’s needed is stricter rules (and stricter enforcement of the rules) with respect to all amicus briefs.

If the distinction Judge K makes is valid, then I suppose one might draw a similar line between legislators signing an amicus brief purporting to do no more than express their own personal views, and, say, a congressional resolution trying to express Congress’s view as to how they think a given case should be decided. Of course, we might just be dealing in degrees here. I can see taking the position that it is “unseemly and inappropriate” even in an individual dissent to express opinions on public policy that go beyond the scope of the correct resolution of the legal issues presented. But on the other hand, one might argue that the principle of separation of powers is respected so long as no branch purports to exercise institutional authority over the others that it doesn’t have, and that this doesn’t mean individual legislators, executive officers, or judges should never seek to supplement formal checks and balances with non-binding rhetorical ones.

(Sorry, couldn’t resist.)