State of Washington, et al v. Donald J. Trump, et al

Filing 155

Submitted (ECF) Amicus brief for review (by government or with consent per FRAP 29(a)). Submitted by U.S. Justice Foundation, et al.. Date of service: 02/16/2017. [10322327] [17-35105] (Titus, Herbert) [Entered: 02/16/2017 10:59 AM]

No. 17-35105
444444444444444444444444

In the
United States Court of Appeals for the Ninth Circuit
________________
STATE OF WASHINGTON; STATE OF MINNESOTA,
Plaintiffs-Appellees,
v.
DONALD J. TRUMP,
President of the United States, et al.
Defendants-Appellants.
________________
On Appeal from the United States District Court
for the Western District of Washington
_______________
Brief Amicus Curiae of U.S. Justice Foundation, Citizens United, Citizens
United Foundation, English First Foundation, English First, Public Advocate
of the United States, Gun Owners Foundation, Gun Owners of America,
Conservative Legal Defense and Education Fund, U.S. Border Control
Foundation, and Policy Analysis Center in Support of Reconsideration En
Banc of Defendants-Appellants’ Motion for Stay Pending Appeal
________________
JOSEPH W. MILLER
Ramona, CA 92065
Attorney for Amicus Curiae USJF
MICHAEL BOOS
Washington, D.C. 20003
Attorney for Amici Curiae CU & CUF
*Attorney of Record
February 16, 2017

HERBERT W. TITUS*
WILLIAM J. OLSON
JEREMIAH L. MORGAN
ROBERT J. OLSON
WILLIAM J. OLSON, P.C.
370 Maple Avenue W., Suite 4
Vienna, Virginia 22180-5615
[phone]
Attorneys for Amici Curiae

444444444444444444444444

DISCLOSURE STATEMENT
The amici curiae herein, U.S. Justice Foundation, Citizens United, Citizens
United Foundation, English First Foundation, English First, Public Advocate of
the United States, Gun Owners Foundation, Gun Owners of America,
Conservative Legal Defense and Education Fund, U.S. Border Control
Foundation, and Policy Analysis Center, through their undersigned counsel,
submit this Disclosure Statement pursuant to Federal Rules of Appellate Procedure
26.1, 29(c).
All of these amici curiae are non-stock, nonprofit corporations, none of
which has any parent company, and no person or entity owns them or any part of
them. The amici curiae are represented herein by Herbert W. Titus, who is
counsel of record, William J. Olson, Jeremiah L. Morgan, and Robert J. Olson of
William J. Olson, P.C., 370 Maple Avenue West, Suite 4, Vienna, Virginia
22180-5615. Amicus United States Justice Foundation also is represented herein
by Joseph W. Miller, 932 D Street, Suite 2, Ramona, California 92065. Amici
Citizens United and Citizens United Foundation also are represented herein by
Michael Boos, 1006 Pennsylvania Avenue SE, Washington, D.C. 20003.
s/Herbert W. Titus
Herbert W. Titus

i

TABLE OF CONTENTS
Page
DISCLOSURE STATEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
INTEREST OF AMICI CURIAE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
I.

The Panel Utterly Failed to Assess the Constitutionality of the
Authority Conferred upon the President by Statute. . . . . . . . . . . . . . . . . . . . 5
A.

Immigration and Nationality Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

B.

Refugee Act of 1980 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

II.

The Panel Decision Was Not Supported by the Religious
Discrimination Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

III.

The Panel Was Unconstitutionally Composed . . . . . . . . . . . . . . . . . . . . . . 14

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

ii

TABLES OF AUTHORITIES
Page
CONSTITUTION
Article II, Section 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
STATUTES
8 U.S.C. § 1101
8 U.S.C. § 1157
8 U.S.C. § 1186
28 U.S.C. § 294
28 U.S.C. § 371

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10, 12
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

CASES
Hines v. Davidowitz, 312 U.S. 52 (1941) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Louhghalam v. Trump, Memorandum and Order (D. Mass. 2017)
Civ. Action No. 17-10154-NMG . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Northern Securities Co. v. United States, 193 U.S. 197 (1904) . . . . . . . . . . . . . . .
Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579 (1952). . . . . . . . . . . . .

8
7
4
5

MISCELLANEOUS
S. Dinan, "77% of refugees allowed into U.S. since travel reprieve hail from
seven suspect countries," Washington Times (Feb 9, 2017) . . . . . . . . . . . . 10
Justice Elena Kagan, The Scalia Lecture at Harvard Law School
(Nov. 18, 2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
A. Scalia & B. Garner, Reading Law (West: 2012). . . . . . . . . . . . . . . . . . . . . . . . 14
D. Stras & R. Scott, “Are Senior Judges Unconstitutional,” 92 CORNELL L.
REV. 453 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Jeffrey Toobin, “The Vulnerabilities in the Ninth Circuit’s Executive-Order
Decision,” The New Yorker (Feb. 10, 2017) . . . . . . . . . . . . . . . . . . . . . . . 2, 6
Benjamin Wittes, “How to Read (and How Not to Read) Today’s 9th Circuit
Opinion,” Lawfare (Feb. 9, 2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

iii

INTEREST OF AMICI CURIAE1
Amici United States Justice Foundation, Citizens United, Citizens United
Foundation, English First Foundation, English First, Public Advocate of the
United States, Gun Owners Foundation, Gun Owners of America, Conservative
Legal Defense and Education Fund, U.S. Border Control Foundation, and Policy
Analysis Center are nonprofit organizations, exempt from federal income tax
under either section 501(c)(3) or 501(c)(4) of the Internal Revenue Code (“IRC”).
Each entity is dedicated, inter alia, to the correct construction, interpretation, and
application of law. Their interests also include protecting the our nation’s borders,
enforcement of immigration laws, separation of powers, and related issues.
Many of these amici have worked on these issues for many years, including
the following during the last year: (i) a Legal Analysis of presidential candidate
Trump’s proposals to limit immigration from certain countries (Feb. 12, 2016);
(ii) an amicus brief to the U.S. Supreme Court in support of a 26-State challenge
to presidential executive actions that were clearly outside statutory authority (Apr.
1

Amici requested and received the consents of the parties to the filing of
this brief amicus curiae, pursuant to Rule 29(a), Federal Rules of Appellate
Procedure. No party’s counsel authored the brief in whole or in part. No party or
party’s counsel contributed money that was intended to fund preparing or
submitting the brief. No person other than these amici curiae, their members or
their counsel contributed money that was intended to fund preparing or submitting
this brief.
1

4, 2016); (iii) Comments to the Department of State regarding the proposed
number of refugees for 2017 (May 19, 2016); (iv) a Legal Policy Paper analyzing
the constitutional authority for States to enter into an interstate compact regarding
immigration (Sept. 2, 2016); and (v) Comments to the U.S. Citizenship &
Immigration Service regarding amendments to the Registration for Classification
as Refugee form (Nov. 17, 2016). Additionally, these amici recently filed an
Amicus Curiae brief in support of defendants’ Motion for Stay Pending Appeal in
this case on February 6, 2017.
STATEMENT
The case for reconsideration is strong, as demonstrated by two insightful
articles from legal scholars immediately after the issuance of the per curiam
opinion in this case.
In The New Yorker, CNN senior legal analyst Jeffrey Toobin, after quoting
verbatim the statute upon which the contested Executive Order (“EO”) in this case
is based, observed: “What does the Ninth Circuit say about this provision?
Nothing.”2 Toobin then went on to say:

2

Jeffrey Toobin, “The Vulnerabilities in the Ninth Circuit’s ExecutiveOrder Decision,” The New Yorker (Feb. 10, 2017), http://www.newyorker.com/
news/daily-comment/the-vulnerabilities-in-the-ninth-circuits-executive-order-deci
sion.
2

the President’s exercise of his authority under this law must be
consistent with the Constitution. But the words of the statute must be
taken seriously as well.... The Ninth Circuit should have engaged
with this statutory text and explored its relation to the commands of
the Constitution. [Id. (emphasis added).]
Benjamin Wittes, editor-in-chief of Lawfare and a Senior Fellow in
Governance Studies at The Brookings Institution, noted the same glaring failure,
faulting the panel for “not bother[ing] even to cite ... the principal statutory basis
for the executive order”3:
That’s a pretty big omission over 29 pages, including several pages
devoted to determining the government’s likelihood of success on the
merits of the case.4
Giving virtually no attention to the relevant statutory texts, the panel’s
decision is deeply flawed. The glaring omission publicized nationwide by Toobin
and Wittes is, in and of itself, sufficient reason for this Court to reconsider en banc

3

See also Professor Josh Blackman of the South Texas College of Law,
“The Failure of the 9th Circuit to Discuss 8 U.S.C. 1182(f) Allowed It To Ignore
Justice Jackson's Youngstown Framework,” (Feb. 10, 2017), and “The Ninth
Circuit's Contrived Comedy of Errors in Washington v. Trump: Part I,” (Feb. 13,
2017).
4

Benjamin Wittes, “How to Read (and How Not to Read) Today’s 9th
Circuit Opinion,” Lawfare (Feb. 9, 2017), https://lawfareblog.com/howread-and-how-not-read-todays-9th-circuit-opinion.
3

the motion for stay pending appeal, which is further necessitated by the argument
below.
ARGUMENT
Over a century ago, Justice Oliver Wendell Holmes offered a cautionary
note for courts when they address cases of great import:
Great cases, like hard cases, make bad law. For great cases are
called great not by reason of their real importance in shaping the law
of the future, but because of some accident of immediate
overwhelming interest which appeals to the feelings and distorts the
judgment. These immediate interests exercise a kind of hydraulic
pressure which makes what previously was clear seem doubtful,
and before which even well settled principles of law will bend.
What we have to do in this case is to find the meaning of some not
very difficult words. [Northern Securities Co. v. United States, 193
U.S. 197, 400-01 (1904) (Holmes, J., dissenting) (emphasis added).]
The challenge to President Trump’s Executive Order meets the test of being a
“great case,” coming as it did in the aftermath of a close popular vote putting into
office a nascent politician who faces nearly unanimous opposition from the
mainstream media and other established institutions and opinion leaders of our
society. Most of the political establishment is less concerned about the scope of
presidential power than it is with the fact that President Trump was elected to
exercise presidential power. During oral argument, and again in its decision, the
panel signaled its irritation with the Administration’s position:

4

it is the role of the judiciary to interpret the law.... We are called
upon to perform that duty in this case.... [N]either the Supreme Court
nor our court has ever held that courts lack the authority to review
executive action in those arenas for compliance with the Constitution.
[Slip op. at 14.]
However, the issue in this case is not whether the EO was judicially reviewable,
but whether the exercise of presidential authority was pursuant to statutes that vest
broad discretion in the President of the United States — where the President’s
power operates at its zenith5 — may be second guessed by the courts. It should
require no citation of authority to assert that a judicial decision which wholly
ignores the text of a statute being challenged in litigation is deficient and
inherently suspect.6
I.

THE PANEL UTTERLY FAILED TO ASSESS THE
CONSTITUTIONALITY OF THE AUTHORITY CONFERRED
UPON THE PRESIDENT BY STATUTE.
A.

Immigration and Nationality Act

It took six pages (from page 13 to page 18) for the 3-judge panel to
conclude that the President’s authority to issue his Executive Order “suspend[ing]
the admission of any class of aliens” was subject to judicial review for its legality
5

See Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579, 635-36
(1952) (Jackson, J., concurring).
6

See Justice Elena Kagan, The Scalia Lecture at Harvard Law School (Nov.
18, 2015): “We are all textualists now.”
5

and constitutionality. Yet, the panel devoted exactly zero words to assess whether
the President’s claimed authority to suspend for 90 days entry of certain aliens into
the United States actually was lawful or unconstitutional. Indeed, the panel did
not even reference, much less address, 8 U.S.C. § 1186(f) — the statute upon
which the President relied for issuance of the suspension. Instead, the panel
erroneously addressed only the claimed due process violation, the resolution of
which was substantially dependent upon whether the President had the
constitutional and statutory authority to suspend alien entry on the terms set forth
in § 1186(f).
As Jeffrey Toobin observed, the text of § 1186(f) conveyed to the President
“a broad grant of power in an area (national security) where the courts have
traditionally given the President a relatively free hand.” Of particular
noteworthiness is the language of discretion that dominates the text, which reads
in full:
Whenever the President finds that the entry of any alien or or any
class of aliens into the United States would be detrimental to the
interests of the United States, he may by proclamation, and for such
period as he shall deem necessary, suspend the entry of all aliens or
any class of aliens as immigrants or nonimmigrants, or impose on the
entry of aliens any restrictions he may deem to be appropriate.
[8 U.S.C. § 1186(f) (emphasis added).]

6

The statute employs words of discretion, not of obligation and, therefore, does not
confer upon any alien the “liberty” or “property” interest that is a prerequisite for
the court to impose the due process guarantees of notice and an opportunity to be
heard. Rather, an alien who seeks to enter the country has only a unilateral,
unenforceable, expectation of the sort that ordinarily accompanies a visa.
As U.S. District Judge Nathaniel Gorton of the District of Massachusetts
recently summarized in a similar case involving a due process challenge to the
President’s § 1186(f) suspension power:
There is no constitutionally protected interest in either obtaining or
continuing to possess a visa. The due process guaranteed by the Fifth
Amendment “attaches only when the federal government seeks to
deny a liberty or property interest.” Knoetze v. U.S. Dep’t of State,
634 F.2d 207, 211 (5th Cir. 1981). A non-citizen has no “inherent
property right in an immigrant visa.” Azizi v. Thornburgh, 908 F. 2d
1130, 1134 (2d Cir. 1990). [B]ecause an alien does not enjoy a
property right in a visa, he has no due process right that protects the
manner in which a visa is revoked.” [Louhghalam v. Trump,
Memorandum and Order at 13-14 (D. Mass. 2017) Civ. Action No.
17-10154-NMG (emphasis added).]
To be sure, the panel did note that some aliens, primarily lawful permanent
visa holders,7 have property or liberty interests not subject to the broad
discretionary powers of the President’s suspension power (slip op. at 20-21).

7

Additionally, the clarification issued by White House counsel Donald F.
McGahn II should have been sufficient to remove this issue from the case.
7

However, there were no such aliens present in the class of plaintiffs who have
standing in this case. To the contrary, the panel identifies only visiting students
and faculty, and prospective employees, not one of whom is alleged to be within
any class of aliens entitled to due process protection as possessors of a
constitutionally protected liberty or property interest. See slip op. at 10-11.
Neither Washington nor Minnesota has any power to unilaterally confer some
special status upon such aliens so as to obligate the federal Government to afford
them due process of law. See Hines v. Davidowitz, 312 U.S. 52 (1941).
Yet, the panel faults the “Government [for not having] shown that the [EO]
provides what due process requires, such as notice and a hearing prior to
restricting an individual’s ability to travel.” Slip. op. at 19. However, the class of
aliens whose entry was suspended by the President would come from countries
that the President and Congress have deemed to be a clear and present danger to
American citizens. Such aliens have no due process rights.
Indeed, if a foreign student or visiting faculty alien who is not a permanent
resident were entitled to due process notice and opportunity to be heard — what
would be the subject matter of such required due process proceeding? And, even
if the alien were entitled to notice and an opportunity to be heard — what
comment could he make that would diminish the President’s discretionary
8

authority to exclude him? Without an independent claim of right of entry, the
alien’s claim would need be based upon the President’s lack of constitutional or
statutory authority to have suspended his visa. But there is nothing — not one
word — in the panel opinion to indicate that the authority exercised by the
President was either illegal or outside his constitutional authority as the only
person vested with the Nation’s executive power.
B.

Refugee Act of 1980.

Not only did the panel fail to address the lawfulness or constitutionality of
the president’s order to limit entry of certain aliens. It also failed to examine the
legality and constitutionality of the EO 120-day suspension of the United States
Refugee Admissions Program, which was directed to persons seeking asylum as a
refugee based upon claims of discrimination. Yet, the statutory processes and
standards for refugees are governed by a distinctly different statute — 8 U.S.C.
§ 1157(a) — which gives the President administrative oversight of a
congressionally developed and established program designed to screen persons
who are not just aliens, but a special subset of aliens who have suffered
persecution on the statutory bases of race, nationality, religion, etc. See 8 U.S.C.
§ 1101(a)(42).

9

While its summary of the EO acknowledges the several code sections
related to the United States Refugee Admissions Program (slip op. at 4), the panel
utterly failed to address the discretion conferred by Congress upon the President
under 8 U.S.C. § 1157(a)-(e). In order to enter the United States by way of the
Refugee program, an alien must meet strict eligibility requirements designed to
determine whether a person meets the statutory definition of a persecuted, stateless
person, the expansion of which is permitted in “such special circumstances as the
President after appropriate consultation” with certain identified members of
Congress. See 8 U.S.C. § 1101(a)(42).
On its face, then, no alien seeking asylum has any due process property or
liberty interest to gain entry as a refugee into the United States. Thus, those
sections of the EO that relate to the suspension of the refugee program are clearly
authorized by statute and unquestionably meet constitutional standards.8
II.

THE PANEL DECISION WAS NOT SUPPORTED BY THE
RELIGIOUS DISCRIMINATION CLAIM.

8

While the motions panel assumed that the district court's TRO could cause
no harm to the Government and the People from the TRO, we now know know
that since the judiciary assumed the role of setting the nation's immigration and
refugee policy, that refugees have flooded in from the seven failed states
designated in the President's EO. See S. Dinan, "77% of refugees allowed into
U.S. since travel reprieve hail from seven suspect countries," Washington Times
(Feb 9, 2017).
10

The panel repeated that the “States argue that the [EO] violates the
Establishment and Equal Protection Clauses because it was intended to disfavor
Muslims.” Slip op. at 25. The panel also proclaimed that the “States’ claims raise
serious allegations and present significant constitutional questions.” Id. at 26. But
it ultimately chose not to determine whether the States were likely to succeed on
their claims because of “the sensitive interests involved, ... the pace of the current
emergency proceedings, and our conclusion that the Government has not met its
burden of showing likelihood of success on appeal on its arguments with respect
to the due process claim.” Id. However, for the reasons set out in Section I,
supra, the Government has demonstrated the necessary likelihood of success on
that due process claim; hence, the question of the likelihood of success on the
religious discrimination claim must now be addressed.
Because the panel refrained from relying on or resolving the religion and
equal protection claims, it only superficially described the factual basis for the
States’ claims and surveyed a few precedents upon which the States represented
would support their position. Id. at 25-26. The essence of the States’ claims
appears to be “evidence of numerous statements by the President about his intent
to implement a ‘Muslim ban’ as well as evidence they claim suggests that the [EO]

11

was intended to be that ban, including sections 5(b) and 5(e) of the Order.” Id. at
25. The plaintiff states’ claims are baseless.
First, both sections 5(b) and 5(e) of the President’s Executive Order address
enforcement of the Refugee Act which does not preclude, but which actually
requires the Government to consider, and make decisions based upon,
religious belief and practice. Persecution on account of a refugee’s religion is
one of the named refugee categories. Additionally, one of the requisites of proof
of such persecution is a “well-founded fear of persecution ... on the basis of
religion.” 8 U.S.C. § 1101(a)(42). Section 5(b)’s mandate would “prioritize
refugee claims made by individuals on the basis of religious-based persecution,
provided that the religion of the individual is a minority religion in the
individual’s country of nationality.” Such a priority makes great sense for two
reasons: minority religious status (i) adds credibility to a person’s persecution
claim; and (ii) advances those refugees whose need for protection is more acute.
Section 5(e) would, during the 120-day temporary suspension, allow “case-bycase” review of refugees in the national interest not just to persons who are a
religious minority facing religious persecution, but also to conform to a
preexisting international agreement or if a person is already in transit and denying
admission would cause undue hardship. Neither provision is religiously
12

discriminatory in purpose or effect and thus even meets the Establishment
Clause’s Lemon test. See Lemon v. Kurtzman, cited in the panel opinion on page
25.
Second, the States’ claim is based upon the assumption that its temporary
ban on entry of persons “from countries referred to in Section 217(a)(12) of the
INA,” including Iraq, Syria, (add others) or any other country or area of concern”
is discriminatory on a religious basis. On its face, this claim is bogus. As the
Government pointed out in its Emergency Motion for Stay of the TRO, “the order
suspends entry for 90 days of aliens from seven countries previously identified as
being associated with a heightened risk of terrorism....” Motion at 5. Indeed, as
the Motion also states, Congress authorized the Executive Branch to designate
additional ‘countries or areas of concern,’ and in February 2016, almost a year
before Trump became president, the Executive Branch exercised its authority to
bar from the visa waiver program individuals who had recently traveled to Libya,
Somalia, and Yemen in an effort to ensure that the visa waiver program’s
‘requirements are commensurate with the growing threat from foreign terrorist
fighters.” Id. at 6. Not only is the list of countries based upon the sole criterion of
the risk of international terrorism, but the waiver program was in place well before
Donald Trump was inaugurated as President of the United States.
13

Third, the States’ evidence does not directly tie President Trump’s “Muslim
ban” to the EO text. Rather it is a classic example of substituting stray language to
displace the written words of a legal document in contravention of the supremacy
of the text principle that the purpose of the EO “must be derived from the text, not
from extrinsic sources such as ... an assumption about the legal drafter’s claims.”
A. Scalia & B. Garner, Reading Law at 56 (West: 2012). In any event, the
question of religious discrimination and whether the Government has met its
burden of likelihood of success would need to be addressed anew should this
Court grant reconsideration.
III.

THE PANEL WAS UNCONSTITUTIONALLY COMPOSED.
Insistently rejecting the Government’s claim that the President’s power to

issue the EO was “unreviewable” by the courts, the panel proclaimed that “[t]here
is no precedent to support this claimed unreviewability, which runs counter to the
fundamental structure of our constitutional democracy.” Slip op. 14. But, who is
it in America’s constitutional order who has the power to review the courts’
exercise of judicial review? If it is “beyond question that the federal judiciary
retains the authority to adjudicate challenges to executive action,” as the panel
declared (slip op 18), then in whom is entrusted the authority to adjudicate
challenges to judicial action?
14

This issue was posed recently in a 2007 law review article questioning the
constitutionality of the “wildly popular retirement system” that enables federal
judges to “retire,” but still “retain” the powers of a federal judge. See D. Stras &
R. Scott, “Are Senior Judges Unconstitutional,” 92 CORNELL L. REV. 453, 458
(2007). As the authors have rightfully observed: “Senior judges are critical to the
federal judiciary.” Id. at 455. Without them, the federal judicial system would
face total breakdown, prompting this further observation:
Declaring senior judges unconstitutional would wreak havoc on the
federal courts, calling into question the legitimacy of thousands of
previous decisions in which senior judges have participated. Also, by
invalidating the statute [providing for senior status], a few federal
judges would be accusing their own esteemed colleagues, as well as
generations of the nation’s most prominent jurists of tacit complicity
in a continuing constitutional violation taking place right under their
noses. [Id. at 458.]
Reluctantly, after careful analysis of the statutory scheme and Articles II
and III of the Constitution, the Cornell law review authors came to the conclusion
that “as presently defined under federal law, senior judges are ... unconstitutional.”
Id. at 456.
First, they noted that 28 U.S.C. § 371(b)(1) states that a judge “may retain
the office but retire from regular actual service.” Id. But, does a retired judge
really retain the office of an Article III judge? As the authors point out, 28 U.S.C.

15

§ 294 provides that “[s]enior judges must be designated and assigned by the chief
judge or judicial council of their home circuit or by the Chief Justice of the United
States before performing any judicial duties.” Id. Unlike senior judges, active
judges “have no statutory guarantee of judicial work,” but may be stripped of “the
power to decide cases,” which amounts to “constructive removal ... from office,”
contrary to the provisions of Article III which vests “life tenure” in the judge
subject to removal only by impeachment. Id. at 456-57. In other words, a senior
judge does not enjoy the independent status conferred upon him by Article III of
the Constitution, in that his exercise of judicial power is subject to the approval of
another judicial officer.
Second, they noted that a senior judge may be assigned duties other than
Article III judicial duties, raising an Article II, Section 2 Appointments Clause
objection:
The President must nominate, and the Senate must confirm, all noninferior officers of the United States. A corollary of this rule is that
Congress may not add new, fundamentally different duties to an
existing office without unlawfully seizing the appointment power for
itself. [Id. at 457.]
Notwithstanding these twin constitutional concerns, the 3-judge panel in
this case was composed of two senior judges, William C. Canby, who took senior

16

status on May 23, 1996, and Richard R. Clifton, on December 31, 2016.9 Granting
reconsideration en banc would avoid these constitutional objections, a worthy goal
in a highly visible and controversial conflict between this Court and the other two
branches in an area that is admittedly “largely immune from judicial control.” Slip
op. 13.
CONCLUSION
For the foregoing reasons, this Court should reconsider en banc whether to
stay the district court’s February 3, 2017 Temporary Restraining Order pending
appeal.
Respectfully submitted,
/s/ Herbert W. Titus
*HERBERT W. TITUS
WILLIAM J. OLSON
JEREMIAH L. MORGAN
ROBERT J. OLSON
Attorney for Amici Curiae
WILLIAM J. OLSON, P.C.
370 Maple Avenue West, Suite 4
Vienna, Virginia 22180-5615
[phone]

JOSEPH W. MILLER
UNITED STATES JUSTICE FOUNDATION
932 D Street, Ste. 3
Ramona, California 92065-2355
Co-Counsel for Amicus Curiae
U.S. Justice Foundation
MICHAEL BOOS
CITIZENS UNITED
1006 Pennsylvania Avenue SE
Washington, D.C. 20003
Co-Counsel for Amici Curiae
Citizens United and
9

The presiding District Judge below is James L. Robart, who is also on
senior status, having retired on June 8, 2016.
17

Citizens United Foundation
February 16, 2017
*Attorney of record

18

CERTIFICATE OF COMPLIANCE WITH RULE 32(a)
IT IS HEREBY CERTIFIED:
1.

That the foregoing Brief Amicus Curiae of U.S. Justice Foundation, et

al. in Support of Reconsideration En Banc of Defendants-Appellants’ Motion for
Stay Pending Appeal complies with the limitation set forth by Circuit Rule 292(c)(2), because this brief contains 3,809 words, excluding the parts of the brief
exempted by Rule 32(a)(7)(B)(iii).
2.

This brief complies with the typeface requirements of Fed. R. App. P.

32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this
brief has been prepared in a proportionally spaced typeface using WordPerfect
version 18.0.0.200 in 14-point Times New Roman.

/s/ Herbert W. Titus
__________________________
Herbert W. Titus
Attorney for Amici Curiae
Dated: February 16, 2017

CERTIFICATE OF SERVICE
IT IS HEREBY CERTIFIED that service of the foregoing Brief Amicus
Curiae of U.S. Justice Foundation, et al., in Support of Reconsideration En Banc
of Defendants-Appellants’ Motion for Stay Pending Appeal was made, this 16th
day of February 2017, by the Court’s Case Management/Electronic Case Files
system upon the attorneys for the parties.
/s/ Herbert W. Titus
_________________________
Herbert W. Titus
Attorney for Amici Curiae