In West’s United States Code Annotated, the notes following 28 U.S.C. § 509 set out the Executive Orders establishing the Federal Legal Council. That Council is “composed of the Attorney General and the representatives of not more than 16 other agencies.” The Executive Orders establishing the Council provide, “Whenever two or more Executive agencies are unable to resolve a legal dispute between them, including the question of which has jurisdiction to administer a particular program or to regulate a particular activity, each agency is encouraged to submit the dispute to the Attorney General.” The Executive Orders also lay out a procedure for resolving inter-agency legal disputes: “Whenever two or more Executive agencies whose heads serve at the pleasure of the President are unable to resolve such a legal dispute, the agencies shall submit the dispute to the Attorney General prior to proceeding in any court, except where there is specific statutory vesting of responsibility for a resolution elsewhere.”
When he was the Assistant Attorney General for the Office of Legal Counsel, Theodore Olson discussed the Federal Legal Council and observed:
[T]o permit [one executive agency or department] to appear in a judicial proceeding in which the United States has exercised its authority to appear as a party (or has otherwise presented its views, e.g., as an amicus), and present views on its own behalf which are independent of or contrary to those presented by the United States, would be inconsistent with the integrity of the Executive in the exercise of his Article II powers and responsibilities. Such a circumstance would, literally, put the Executive in the untenable position of speaking with two conflicting voices, abdicating his constitutional responsibility to “take Care that the Laws [are] faithfully executed.”
Litigation Authority of the Equal Opportunity Commission in Title VII Suits Against State and Local Governmental Entities, 7 Op. O.L.C. 47, 65 (1983) (third alteration in the original).
In light of the Executive Orders establishing the Federal Legal Council and the OLC Opinion, was it proper for various military appellate government divisions to simultaneously advocate directly opposite positions regarding CAAF’s jurisdiction to hear an appeal of a CCA’s ruling on an Article 62 appeal?
In light of the view that the Executive Branch must speak with one voice, should CAAF abandon its longstanding practice of inviting (or even accepting) amicus briefs from all of the appellate government divisions when some particularly important legal issue arises? Isn’t the result of such an invitation multiple submissions from a single party (the United States), none of which should adopt a divergent position from another?