Squandering Credibility?
Many posts on this blog emphasize the importance of maintaining credibility with the court. If the judges believe you lack trustworthiness because you stretched the evidence or the caselaw beyond the breaking point, the panel may discount not just your fabrications but your well-constructed arguments too. Still, lawyers for President Trump, both when he was a private citizen, and now as president, have had surprising success in making maximalist arguments that struck me as over the top and beyond the bounds of what I would recommend.
When you argue against the government in a case, you sometimes have a serious disadvantage. The government litigant enjoys a “presumption of regularity.” That means courts will presume that government officials discharge their official duties properly, with all the appropriate formalities, until shown otherwise.[1] The presumption applies not just to the federal executive branch but to all levels of government.
A recent Bloomberg law opinion piece, Solicitor General Forfeits Deference With ‘Dead Country’ Claim by former NYU Law Dean Richard L. Revesz, suggests that a filing in the Federal Circuit by the Solicitor General may squander the benefits of that presumption. I’m less certain it will have any long-term effect because the presumption is well ingrained in the law. The Supreme Court traditionally relies heavily on the Solicitor General, who has been called the “Tenth Justice” and is often queried by the Court about views on a pending certiorari petition. Moreover, the client, the United States, usually gets the benefit of the doubt.
The filing that Dean Revesz identified was a Fed. R. App. P. 28(j) letter in the case that challenges the president’s authority to impose tariffs. Friday, shortly after the letter was filed, the court issued an en banc decision finding that a claim of emergency to implement across-the-board tariffs was unlawful, but stayed its ruling to permit review in the Supreme Court.
Still, my focus in this post is on the problematic use of a 28(j) letter. Appellate advocates will recognize that the purpose of a 28(j) letter is to advise a court of pertinent and significant new authorities issued after the party’s brief was filed or after oral argument was held but before a decision is rendered. It is a short letter to the clerk of the court – no more than 350 words without argument. Courts are well aware that the authorization to file the letter is frequently abused.
The Fifth Circuit, for example, advises counsel that it will reject letters that cite cases available when their brief was submitted or at the time of oral argument. In those circumstances, it appears counsel is either attempting to enlarge the briefing without leave of the court or add additional arguments, rather than inform the court of new authority. It further tells counsel that after oral argument, unless a panel member specifically requests information, a 28(j) letter should not be sent.
So what caused Dean Revesz to call the Solicitor General’s post-argument filing in V.O.S. Selections v. Trump “preposterous”? The letter told the panel that, a year earlier, the United States was “a dead country, and now, because of the trillions of dollars being paid by countries that have so badly abused us, America is a strong, financially viable, and respected country again.” If the decision of the Court of International Trade, which held the tariffs unlawful, were affirmed, the letter suggested that the court would ruin the country. It said, “the President believes that a forced dissolution of the agreements could lead to a 1929-style result,” “people would be forced from their homes, millions of jobs would be eliminated, hard-working Americans would lose their savings, and even Social Security and Medicare could be threatened,” so that “the economic consequences would be ruinous.” It further asserted that the United States “would not be able to pay back the trillions of dollars that other countries have already committed to pay, which could lead to financial ruin,” even though there is no record that trillions have been paid or committed. Pointedly, the letter cited no record evidence or any authorities.
To call this type of argumentation bizarre is simply to recognize what an outlier such a filing is, especially when it represents the government’s position. It was so strange that it caused me to flash back to the movie, “Ghostbusters,” when character played by Bill Murray warns of a disaster of biblical proportions if they aren’t permitted to chase ghosts. He warned the result would be: “Human sacrifice! Dogs and cats living together! Mass hysteria!”
Opposing parties have a right of reply to a 28(j) letter, and the plaintiffs did. They called the letter “improper” and reiterative of points made at argument.
Dean Revesz suggests that this filing should cause courts to withdraw “the special status” previous Solicitors General enjoyed. The Federal Circuit in nearly 200 pages consisting of majority, concurring, and dissenting opinions made no mention of the letter. Whether it has any impact on the Solicitor General’s credibility down the road remains to be seen, but may have played a role in another piece of litigation, where a judge who ordered the return of unaccompanied children slated to be sent to Guatemala, required frequent status reports from the Justice Department on whether the children had made it back. That is not normal procedure and suggests that, at least before that judge, the presumption of regularity no long applied.
Still, if circumstances somehow suggest that a letter to a court like the one sent by the Solicitor General could be sent, the best advice remains : “Kids, don’t try this at home – or in court.”
[1] U.S. v. Armstrong, 517 U.S. 456, 464 (1996) (quoting U.S. v. Chemical Found., Inc., 272 U.S. 1, 14 (1926)).