In the UK you have poistions such as the Attorney General (who advises the UK Gov in the legal issues of England and Wales) and Advocate General for Scotland, who advises the UK Gov on Scottish legal affairs.
Is there an equivalent position in the US? Are there any officers who advise the US Government on the laws of the various individual states. An Advocate General for Alaska? Or Alabama?
The big boss of the Justice Department is the Attorney General, a Cabinet officer, whose job (among other things) is to advise the President on matters of federal law. In addition, most cabinet departments and federal agencies have a General Counsel’s office whose job is to advise that department’s leadership about federal law as it pertains to their specific sphere of operations.
The State Department also advises the President on matters of international law.
There would not be much need for federal officers to advise the government on matters of state law, as every state has its own court system and government to deal with those issues. Suits between individual states are heard directly by the Supreme Court (a rare instance of that court exercising original jurisdiction). Cases to which the federal government is a party are argued by the Solicitor General, whose job is to represent the government before the courts.
Finally, federally administered territories such as Puerto Rico, the US Virgin Islands and Guam maintain their relations with the federal government through the Department of the Interior, and they have a General Counsel’s office to deal with legal issues in that sphere. The DOI also is responsible for Native American reservations through the Bureau of Indian Affairs.
Lest you think that the entire burden of this task is taken up by one individual, the AG’s advisory function is vested in the Office of Legal Counsel, a division of the Department of Justice.
There are a large number of people in the U.S. Department of Justice as well as many, many “attorney advisors” in other federal government departments, so there might be someone available in the federal government who is an expert on the laws of a particular state.
But generally speaking, the federal government doesn’t need experts on the laws of the individual states, because each state handles its own legal system and has its own state attorney general, whose entire purpose is to be the home of expertise regarding the laws of that state.
It’s not really a necessary function. In the realms in which the federal government is permitted to make law, federal law trumps state law, so experts on the individual laws of the 50 states are not needed. In the realms in which the federal government is not permitted to make law, the states handle those things themselves.
I don’t know much about the British legal system, but my WAG is the reason that you need such experts in the British government is that there is Scottish law and English/Welsh law, but no “British” law, as such. Here, the federal government deals in federal law and the states deal in their own individual state laws.
The Federal Government I presume would have legal personality. So would the Solictor General represent the Government/ advise the Government, in a situation where the Federal Government needed advise on state law or was a party to a suit in particular states legal system.
Any suit where the federal government is a party would almost certainly be a matter of federal jurisdiction, so it would be heard by the federal courts.
The Solicitor General’s job is not to advise the government, but to argue for the government’s policy in the federal courts. He does this both by defending the government directly when it is party to an action, and by filing briefs in support of one side or another in cases not involving the federal government. (These are called amicus curae, or friend of the court, briefs.)
Policy is formulated by lawyers working for the White House and, in criminal matters, the Justice Department.
I suppose in theory the “federal government” might be a party in a lawsuit as a legal person, but it is never done that way. There is no fictitious entity called the “Federal Government” or the “U.S. Government” or whatever. One of the reasons would be that we have a divided government - no single authority can claim to speak for the whole government.
Consequently, the federal government participates in lawsuits in four principal ways:
Again, in the U.S. system, there is no entity that can be called the “Government.”
The U.S. solicitor general is a subordinate of the U.S. attorney general, as are all the 90-plus U.S. attorneys. The U.S. attorney general is the chief legal advisor to the U.S. president. The U.S. solicitor general’s sole role is to represent the president in oral arguments before the U.S. Supreme Court. (In British terms, you might say that the U.S. solicitor general is like a barrister who is instructed by the U.S. attorney general, who is like the president’s chief solicitor.)
So, no, the solicitor general would not be charged with advising the president in a case like the one you propose.
As I said in an earlier post, it would be very rare for the federal government to need specific advice on state law. Generally speaking a state’s own state attorney general would be responsible for such expertise. In the rare case that this might happen, the U.S. attorney general would still be the president’s chief legal advisor. I’m not too familiar with the inner workings of the U.S. Department of Justice (the agency headed by the U.S. attorney general), but I WAG that the attorney general would probably assign or commission the specific kind of expertise needed on an ad hoc basis.
Matters implicating only a portion of the executive branch, including the Executive Office of the President (the “White House”) itself, would seek advice from their own in-house attorney staffs in cooperation with counsel supplied by the U.S. Department of Justice.
Note that there are entitles of the federal government that do not fall under the authority of the U.S. president and thus would not be advised by the U.S. attorney general or his department. In particular, members of the U.S. Congress, if they were to become parties to a legal action in their official roles, would have to obtain their own legal counsel. The Congress does appropriate funds for the maintenance of extensive staffing of legal advisors. Each legislative committee has a committee counsel, for example.
Why was Hamdan v. Rumsfeld styled as such instead of as Hamdan v. US Department of Defense or v. Donald Rumsfeld as Secretary of State for Defense, or whatever?
Hamden v. Rumsfeld is, as you can see, a convenient abbreviation.
Ah. That’ll do, pig.
(thanks)
The US Attorney’s Office for the particular state will typically have expertise in that state’s law.
Excellent summary, with one nitpick: In affirmative civil cases, where the Government is the plaintiff, it typically sues as the United States, rather than the affected agency.
IIRC, the writ of habeas corpus at common law was traditionally directed at an individual official (“you – and I mean YOU – have the body”). I imagine this was a legal fiction designed to get around sovereign immunity. US case captioning still follows that tradition, naming the particular official as the defendant instead of the agency or the Government as a whole.
Yes; the applicable case is Ex Parte Young, IIRC. You can’t sue the United States, but you can sue an officer of the United States – not for monetary or other damages due to his past conduct*, but to prevent him from acting illegally or contrary to his authority in the future.
–Cliffy
*Unless Congress gives you permission, as they have in the Tort Claims Act, etc.