I have blogged before about the importance of members of congress filing amicus briefs. One interesting aspect of these briefs is that members of Congress may offer a perspective on the bill that they helped to enact.
Amici are Senators John McCain, Lindsey Graham, and Kelly Ayotte.1 They are members of the Senate Committee on Armed Services and played a leadership role in the drafting and enactment of NDAA § 1021 on a bipartisan basis, making them uniquely qualified to explain its history and purpose. As Senators, amici have a strong interest in safeguarding Congress’s constitutionally-prescribed role in matters of national security and war.
As a matter of policy and law, amici are committed to waging war against America’s terrorist enemies, and believe that detention is a necessary and appropriate tool to remove those enemies from the battlefield, obtain intelligence, and prevent future attacks on the United States and its allies. The decision below jeopardizes the United States’ authority to detain its sworn enemies, a fundamental incident of the power to wage war since the dawn of civilized combat.2
They may be uniquely qualified to explain the statute’s history and purpose, but didn’t they already do that? In the legislative history? In fact, the brief cites statements made by these three in the legislative record! (That’s what he said).
Now the brief offers a particularly unreliable form of post-enactment legislative history–statements made by legislators years after a law is enacted geared to a specific conflict that the enactors of the law likely did not forsee. Further, we have a brief by only three senators who profess an interest in “waging war against America’s terrorist enemies.” What about other members of congress who do not share that aim (I’m sure they exist)? Should their legislative history be discounted? Should the fact that they didn’t submit a brief be dispositive?
Why bother engaging in statutory interpretation when those that enacted the law, in an earlier congress, can just tell the courts how the law should be applied?
I am still not sure what I think about members of Congress submitting these kinds of briefs.