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More from Senate Amici on Oral Argument in Hedges

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Wednesday, January 9, 2013 at 2:23 PM

From the Hedges files: attorneys for Senators McCain, Ayotte, and Graham yesterday submitted this reply brief in support of their motion to participate in oral argument before the Second Circuit.  (The Hedges plaintiffs had opposed amici’s request to take part.)

Interestingly, the Senators’ counsel highlight their clients’ unique institutional position relative to that of the executive branch:

As then-Judge Alito explained, “an amicus may provide important assistance to the court,” such as when it “collect[s] background or factual references that merit judicial notice,” “argue[s] points deemed too farreaching for emphasis by a party intent on winning a particular case,” or “explain[s] the impact a potential holding might have.” Neonatology Associates, P.A. v. Commissioner, 293 F.3d 128, 132 (3d Cir. 2002) (Alito, J., in chambers). In those circumstances, the amicus is truly a friend of the court, providing important background and legal points that assist the court in resolving the questions before it. Given the subject matter of this case, the sensitive questions it raises, and the conflict between the political branches that has spilled over into this litigation, the Senate Amici’s participation in oral argument promises to assist the Court in precisely that fashion.

1. The Senate Amici’s interest and arguments are distinct from those of the Appellants, as is apparent from any comparison of their briefs. The Senate Amici played a leading role in enacting the statutory provision at issue in this case, while the Obama Administration strongly opposed it. Without delving into the merits at this time, the Senate Amici seek to defend the fullest extent of Congress’s power under the Declare War Clause, as exercised in this instance, while the Appellants present narrower arguments that, if accepted, are likely to leave the extent of Congress’s power in doubt, even while winning this particular case. That the Senate Amici and the Appellants agree on some points, and on the ultimate disposition of this case, does not minimize the differences in their approaches and certainly does not render those approaches “identical.” Br. in Opposition (“BIO”) at 15.

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