DOJ Opposes Senators McCain, Graham, and Ayotte From Taking Their Argument

December 29th, 2012

I previously blogged about the notion of Senators defending their own laws in court, focusing on the current efforts by Senators McCain, Lindsey Graham, and Kelly Ayotte to intervene as amici in Hedges v. Obama. Now the DOJ has opposed that motion, arguing that the Senators should not take away their time.

First, DOJ contends that they opposed Amici’s request:

Amici’s motion states that “Appellants take no position on the relief sought in this Motion.” Counsel for the government, however, communicated to counsel for the amici that the government would oppose their motion to participate in oral argument unless they made clear in their motion that they were seeking additional time, and not seeking to share the oral argument time to be allotted to defendants-appellants. We further informed counsel that to the extent that they were expressly only seeking additional time, the government would then “take no position” on whether this Court should grant the motion.

It’s not clear from the Senators’ brief that they wanted divided time. Though, I gather DOJ so construed it because the motion did not request additional time. See the conclusion:

For the foregoing reasons, the Senate Amici respectfully request that the Court grant leave for their participation in oral argument and allot them 10 minutes of oral argument time.

In other words, grant them 10 minutes from existing oral argument time, which would, by necessity, come from DOJ’s allotment. I’m not sure what the regular practice is here.

Second, DOJ argues that it is “highly unusual” and “unwarranted” to grant such a request:

Thus, to the extent that the motion of the three amici is seeking to share the time to be allotted to appellants, the government opposes the motion. With respect, it would be highly unusual, and we believe unwarranted in a case such as this, to take argument time from the parties who are subject to a district court’s injunctive order to allow individual members of one component of the legislative branch to provide their views of the meaning and purpose of a federal statute that — as amici themselves agree (Amici Br. 14-20) — expressly states that it did not change existing law. As to whether the Court should expand the oral argument time allotted to grant amici an additional 10 minutes of time, appellants take no position on the motion.

For reasons I’ve stated in prior posts–even assuming that the Senators have fantastic arguments–I think it is unorthodox to treat them as anything more than run-of-the-mill Amici.