WASHINGTON – Sen. Edward Kennedy (search) is trying to file a "friend of the court," or amicus, brief that argues that the recess appointment of Judge William Pryor Jr. (search) was unconstitutional, according to a new court document.
The request was sent Wednesday to the 11th Circuit Court of Appeals in the case of Adefemi v. Ashcroft, which challenges a Board of Immigration Appeals (search) decision that the now-defunct Immigration and Naturalization Service had enough evidence to deport Adefemi, a citizen of Nigeria, on a firearms offense. The case is set for arguments in front of the full court, or "en banc," on June 15.
Court papers obtained by Fox News show that Kennedy's attempt to get the 11th Circuit to ponder the constitutionality of Pryor's recess appointment is also being applied in two other cases besides the deportation case.
The filing suggests that the Recess Appointments Clause granted to President Bush should not be permitted during intra-session adjournments.
"The Recess Appointments Clause ... authorizes the president to act in an exceptional manner when Congress's absence prevents it from performing its constitutional functions. It should therefore be construed to apply narrowly to an actual inter-session 'recess,'" Kennedy's lawyers wrote.
"Otherwise, the president will be able to aggrandize his power at the expense of the Senate by invoking an exceptional power — conferred upon him only for the rare situations in which the Senate cannot give advice and consent — and using it during brief Senate adjournments in which there is no such emergency need," the request argues.
Justice Department sources revealed that on March 5, Kennedy, D-Mass., first wrote to all the judges on the court and asked them to find that Pryor was not validly appointed. When that didn't work, Kennedy filed a request to file an amicus brief, contending that the court must consider the constitutionality of Pryor's appointment as part of the three cases.
According to a Justice Department filing, neither party has argued that the 11th Circuit must address the constitutionality of Pryor's appointment — it is simply an issue that does not appear to be part of this case at all.
The Justice Department (search) in its latest court document argues that Kennedy should not be allowed to file this brief because he has made this request less than a week before oral arguments in this case. They call it "untimely."
"Senator Kennedy provides no explanation for his tardiness; and to permit him to inject new issues into this case now, on the eve of oral argument, would be unfair both to the Court and to the parties," DOJ lawyers write.
Kennedy's lawyers, including Laurence Tribe, said that the "question is logically resolved by the en banc court and is logically resolved promptly because Judge Pryor continues to serve on an ever-increasing number of cases which may be tainted."
The senator's lawyers also say that the court should bring up the issue because it has not addressed the question; no party to the en banc proceedings has yet raised the question; and the number of cases in which Pryor is participating "had grown far more rapidly than anticipated."
But DOJ lawyers object to those arguments, saying the senator has no "standing" in the case — in other words, he doesn't have the right "interest" to raise these objections.
Pryor, the former Alabama attorney general, was granted a recess appointment to the court by President Bush back in February. Democrats had opposed his nomination last year because of his position on abortion and over his efforts to raise money for GOP attorney general candidates. He was among six Bush judicial nominees to be filibustered by Democrats.
The recess appointment (search), which will last only until the end of 2005, was the second Bush employed. He has since agreed with Democrats not to make any more recess appointments this year if Democrats allow the confirmation of 25 non-controversial judicial nominees before the Senate's August recess.
Fox News' Anna Stolley and Ellen Uchimiya contributed to this report.