"Neutral" Gray Briefs

Abstract

Many of the Supreme Court cases that adjudicate the bounds of authority between the President and Congress are litigated between the Solicitor General and private parties. In canonical cases such as Youngstown Sheet & Tube v. Sawyer and Zivotofsky v. Kerry, the Supreme Court has relied on private parties to argue for Congress’s interest. But private parties’ interests overlap with Congress’s only incidentally. This leads to real asymmetries between the President and Congress in litigating governing authority. With a focus on foreign affairs powers, this brief invited Symposium Essay presses on this asymmetry, to ask how it affects the assignment of powers between the branches, and to invite resolution for the normative consequences of litigation asymmetry.

Keywords: separation of powers, federal courts, constitutional law, the solicitor general