I have previously blogged about the importance and qualifications of legislators who seek to defend laws they wrote in court.

Now, Senators McCain, Graham, and Ayotte, not content to simply submit an amicus brief, want argument time in an upcoming case that considers the National Defense Authorization Act–a law the trio contributed to. Unsurprisingly, their view differs from that of President Obama’s Justice Department, which is litigating the case.

In a brief authored by David Rivkin and Lee Casey (the progenitors of the suit agains the ACA in Florida), and my former classmate Andrew Grossman, the Senators request argument time to address “the history and purpose of the statutory provision under review and the scope of Congress’s power under the Declare War Clause.”

Senate Amici played a leadership role in the drafting and enactment of Section 1021 of the National Defense Authorization Act for Fiscal Year 2012 (“NDAA”), making them uniquely qualified to explain its history and purpose. And as Senators, Senate Amici have a strong interest in safeguarding Congress’s constitutionally-prescribed role in matters of national security and war. While the Senate Amici join the Appellants in seeking reversal of the decision below and dismissal of this litigation, their interests and arguments are distinct from those of the Appellants and may aid the Court in resolution of this matter.

The brief argues that the Senators will defend what the Administration can’t:

Although the Appellants, in defending Section 1021, cite scattered passages from its legislative history, they (quite understandably) do not address the broader policy dispute that led to the provision, and may (quite understandably) find it awkward in oral argument to address such issues in thorough fashion. Senate Amici, however, have no such inhibitions

The brief cites a “unique institutional interest”:

The Senate Amici’s participation in oral argument is also warranted due to their unique institutional interest in the Court’s possible resolution of the constitutional question of the scope of congressional power under the Declare War Clause. As members of the Senate, the Senate Amici have a direct and distinct interest in preserving Congress’s power to authorize exercise of the President’s war powers in such detail and in such ways as Congress sees fit. By contrast, the Appellants’ chief interest is preservation of the President’s flexibility in the interpretation and execution of war powers authorizations, a quite different matter and one that is in some conflict with Congress’s institutional interests.

Huh? That’s what separation of powers is for. Congress passes laws, knowing that the Executive will enforce it.  Congress preserves their institutional interests by passing laws. Not defending them in Court.

In other words, should the Court move beyond the threshold justiciability issues raised by the Appellants, the Senate Amici have a unique position on Section 1021’s constitutionality, one that is distinct, and potentially in conflict with, the Appellants’ argumentation. Absent participation by Senate Amici, the views of the co-equal branch of the Federal Government whose action is the subject of this case will go unaired

Being a co-equal branch doesn’t allow Congress a say in court.

I recognize that the Senators are participating as Amicus, but would the Senators think they have independent standing to intervene as a party? I never understood why legislators have standing to defend their own laws (yes I am looking at you Bipartisan Legal Advisory Group in DOMA litigation). Of course, when a President fails to defend a law in court, allowing the legislators to step in makes some sense. But here, Obama is actually defending the NDAA. So why are the Senators getting involved? Well, Obama isn’t defending the law in the way McCain, Graham, and Ayotte would like.

They said their piece when enacting the law. Anything they say now is pure post-enactment legislative history, motivated by a desire to affect the application of a staute.

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?

And, because I never write about politics, please let me offer the headline “Wile E. Ayotte” to any tabloids. (I only found a few google hits for that). It’s too good to pass u p.

And is it wrong that I knew Ayotte from her SCOTUS case v. Planned Parenthood before I realized she was also a U.S. Senator? Article III is the last, but not least of the branches.