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

Filing 165

Submitted (ECF) Amicus brief for review and filed Motion to become amicus curiae. Submitted by Professor Victor Williams, Pro Se, Chair of America First Lawyers Association. Date of service: 02/16/2017. [10323638]--[COURT ENTERED FILING to correct entries [162] and [163].] (LA) [Entered: 02/16/2017 06:12 PM]

No. 17-35105
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
___________________________________________________
STATE OF WASHINGTON, ET AL
Plaintiffs-Appellees
v.
DONALD J. TRUMP, ET AL.
Defendants-Appellants
_____________________________________________________
ON APPEAL FROM THE WESTERN DISTRICT OF WASHINGTON
RAISING POLITICAL QUESTION NONJUSTICIABILITY,
A BRIEF FROM AMICUS CURIAE PROFESSOR VICTOR WILLIAMS
OF THE AMERICA FIRST LAWYERS ASSOCATION
IN SUPPORT OF DEFENDANTS-APPELLANTS DONALD TRUMP,
ET AL’S MOTION FOR RECONSDERATION EN BANC
OF THE STAY PENDING APPEAL
_______________________________________________________________

Victor Williams,
Appearing Pro Se
America First Lawyers Association
5209 Baltimore Ave,
Bethesda, MD 20816
[phone]
/[e-mail]

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CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES
Pursuant to. Rule 28(a)(1), Amicus certifies as follows:
A. Parties and Amici. All parties, interveners, and amici appearing in this
Court are listed in the briefing for Plaintiffs and Defendants except that this brief is
filed on behalf of Professor Victor Williams in support of Defendants.
B. Rulings Under Review. The Ninth Circuit’s panel decision and the TRO
Decisions and Orders issued by U.S. District Judge James Robart.
C. Related Cases. Other related cases of which is Amicus are aware are
referenced the briefing offered by Plaintiffs and Defendants.

Dated: February 16, 2017
/s/Victor Williams

Victor Williams
America First Lawyers Association
5209 Baltimore Ave,
Bethesda, MD 20816
[phone] /[e-mail]

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TABLE OF CONTENTS
Page

Certificate as to Parties, Rulings and Related Cases …………….……………......2
Table of Contents…………………………………………………………………..3
Table of Authorities………………………………………………………......……4
Glossary ………………………………………………………….…………….....5
Statement of Authorship and Financial Contribution…………………...................5
Statement of Identity, Interest and Authority of Amicus………………...………6-7
Argument………………………………………………………………….….…….8
Rule 32 Certificate of Compliance…………………………………..………...….19
Certificate of Service……………………………………………………..……….20

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TABLE OF AUTHORITIES
Source
Cases

Page(s)

Baker v. Carr, 369, U.S. 186 (1962)..…………………..…………………11,12, 13
Colegrove v. Green, 328 U.S. 549 (1946)………………………………….……..11
Coleman v. Miller, 307 U.S. 433 (1939)………………………………………….11
Corrie v. Caterpillar, Inc., 503 F.3d 974 (9th Cir. 2007)………………………….8
Goldwater v. Carter, 44 U.S. 996 (1979) ……..…………….…………...……14-15
Luther v. Borden, 48 U.S. (7 How.) 1 (1849)…………………………………..…11
Marbury v. Madison, 5 U.S. 137 (1803)……..……………………………..…11,12
Nixon v. United States, 506 U.S. 224 (1993)…………..….…………………...13,14
Nixon v. United States, 938 F.2d 239 (D.C. Cir. 1991)………………..….……...17
Oetjen v. Central Leather Co., 246 U.S. 297 (1918)………………………….…..11
Pac. States Tel. & Tel. Co. v. Oregon, 223 U.S. 118 (1912) ………………….….11
Constitutions/Statutes
U.S. Const.
art. II, § ……………………..………………………………………...............…....9
art. II, § 2,................................................................................................................. 9
Other
Alexander Bickel, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE
BAR OF POLITICS (Yale 1986) ...…………………………………………………..16
Alexander Hamilton, No. 23: The Necessity of a Government as Energetic as the
One Proposed to the Preservation of the Union, Clinton Rossiter, ed., THE
FEDERALIST PAPERS 148-53(New York: Mentor, 1999)……… . ………...……9-10
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GLOSSARY

Plaintiffs State of Washington, et al (States)

Defendants Donald J. Trump, et al (President Trump)

STATEMENT OF AUTHORSHIP AND FINANCIAL CONTRIBUTION
This brief is offered by Amicus as an individual No party’s counsel
authored this brief in whole or in part, and no party, nor other person, contributed
money intended to fund the preparation or submission of this brief.

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STATEMENT OF AUTHORITY, IDENTITY, AND INTEREST
. In attached Motion, leave of the Court is requested to file this Brief. In
accord with Circuit Rule 29-3, prospective Amicus asked for party consent to this
filing through email. Counsel for Washington State and Donald Trump have
consented. Professor Victor Williams is longtime Washington, D.C. attorney and
law professor formerly affiliated as fulltime faculty with both the City University
of New York’s John Jay College of Criminal Justice and the Catholic University of
America’s Columbus School of Law. Victor Williams, now Chair of the America
First Lawyers Association, the In past, he has been granted leave to file Amicus
Briefs in this and other circuits as well as by the U.S. Supreme Court. Since his
undergraduate law studies (J.D. University of California-Hastings College of the
Law), Professor Williams has researched and published in the area of
constitutional law for twenty-five years. With advanced training in economic
analysis of the law (LL.M. George Mason University Scalia School of Law) and
federal jurisdiction (LL.M. Columbia University School of Law), Amicus’
published scholarship and commentary has offered support for the constitutional
authorities prerogatives of five presidents (without regard to their party
affiliation). He has particular knowledge and expertise regarding the text, history
and interpretation of Article II of the U.S. Constitution.

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In note: After his first-year of law school at U.C. Hastings, Victor Williams
had the honor to serve as an extern for the late U.S. Court of Appeals for the Ninth
Circuit Judge Joseph P. Sneed. Professor Williams continues to hold the Ninth
Circuit in the deepest regard – a sentiment which further prompts the filing of this
Brief.

/s/ Victor Williams, Appearing Pro Se
Victor Williams Appearing Pro Se
America First Lawyers Association
5209 Baltimore Ave,
Bethesda, MD 20816
[phone] /[e-mail]

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ARGUMENT
Amicus respectfully argues that an en banc sitting of this Court is needed as
the lower court did not and does not have subject matter jurisdiction in this matter.
Offered in support of Defendant Donald J. Trump, et al, this Amicus Brief
endorses and incorporates the government’s factual statement, background and
arguments but does not duplicate them particularly as to the substance of the
statutory interpretation. Rather, Amicus presents an alternatively focused theory
asserting that the Plaintiffs’ claims against the Executive Order of January 27,
2017 raise nonjusticiable political questions. This Court has reaffirmed that “if a
case presents a political question, [the judiciary] lack[s] subject matter jurisdiction
to decide that question.” Corrie v. Caterpillar, Inc., 503 F.3d 974 (9th Cir. 2007).
Thus, neither the trial court nor the Ninth Circuit panel should have
reviewed the challenges (including the Executive Order and/or relevant statutory
language) beyond that examination needed to recognize the patent political
question presented.
The political-question doctrine is fundamental to separation of powers and
American self-governance. Answers to political questions should come only from
elected political leaders. The Constitution textually grants the president the
exclusive responsibility to implement war strategy and foreign policy to defeat
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America’s foreign enemies. The president, not the judiciary, has the institutional
competence to know what specific actions are required to fulfill those
responsibilities.
America is a nation at war with radical Islamic terrorists. The judiciary has
no role in overseeing the president (acting as Commander-in-Chief, implementing
war strategy and Chief Executive implementing security-related foreign policy) in
matters related to allowing foreign aliens entry onto America soil.
Defending the nation against foreign enemies during a time of war is the
highest mandate of the president who is vested with all executive power by Article
II, Section 1 and made Commander-in-Chief of the Army and Navy by Article II,
Section 2. In carrying out these duties, the president has a most unique duty to
protect the Republic and its citizens from potential harm from foreign enemies.
Providing such Executive energy was a fundamental reason for the 1787
Constitution’s replacement of the failed Articles of Confederation. Consider
Alexander Hamilton’s ratification argument in Federalist 23:
The authorities essential to the common defense are these: to raise armies; to
build and equip fleets; to prescribe rules for the government of both; to
direct their operations; to provide for their support. These powers ought to
exist without limitation, because it is impossible to foresee or to define the
extent and variety of national exigencies, and the correspondent extent and
variety of the means which may be necessary to satisfy them. The
circumstances that endanger the safety of nations are infinite, and for this
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reason no constitutional shackles can wisely be imposed on the power to
which the care of it is committed. This power ought to be coextensive with
all the possible combinations of such circumstances; and ought to be under
the direction of the same councils which are appointed to preside over the
common defense.
Alexander Hamilton, "No. 23: The Necessity of a Government as Energetic as the
One Proposed to the Preservation of the Union," in Clinton Rossiter, ed., The
Federalist Papers (New York: Mentor, 1999), 148-53.
Throughout our Republic's history, the Supreme Court has recognized that
some issues are committed by the Constitution's text to the exclusive discretion of
the elected political branches. When these political questions manifest, the
judiciary must keep out of any such dispute for it lacks subject matter jurisdiction
to act in its limited role as a court. Any such action remains extra-judicial in nature
– although the judiciary’s “opinions and orders” may still be enforced by the U.S.
Marshall’s bayonet. All the more reason for judicial self-restraint.
Congressman John Marshall, in 1800, warned his U.S. House colleagues that
the political branches would be "swallowed-up by the judiciary" without such
abstention. Chief Justice John Marshall then provided early guidance as to the "rule
of law to guide the court in the exercise of its jurisdiction.” Marshall offered this
political question description: "By the constitution of the United States, the
president is invested with certain important political powers, in the exercise of

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which he is to use his own discretion, and is accountable only to his country in his
political character, and to his own conscience." Marbury v. Madison, 5 U.S. 137,
165 (1803).
From Marbury forward, the abstention theory has since developed to
preclude judicial consideration in a variety of issues. See e.g., Colegrove v.
Green, 328 U.S. 549, 552–56 (1946) (legislative apportionment); Coleman v.
Miller, 307 U.S. 433, 450 (1939)(constitutional amendment ratification challenge);
Luther v. Borden, 48 U.S. (7 How.) 1, 40–43 (1849) (asserting of the Guarantee
Clause); Oetjen v. Central Leather Co., 246 U.S. 297, 303 (1918) (foreign
relations); Pac. States Tel. & Tel. Co. v. Oregon, 223 U.S. 118, 133–37 (1912)
(processes of referenda and initiative requirements).
In the modern case of Baker v. Carr, 369 U.S. 186 (1962), the Supreme
Court identified six independent characteristics “[p]rominent on the surface of any
case held to involve a political question,” including:
[1] a textually demonstrable commitment of the issue to a coordinate
political department;
[2] or a lack of judicially discoverable and manageable standards for
resolving it;
[3] or the impossibility of deciding without an initial policy determination
of a kind clearly for nonjudicial discretion;

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[4] or the impossibility of a court’s undertaking of independent resolution
without expressing lack of the respect due to coordinate
branches of government;
[5] or an unusual need for unquestioning adherence to the political
decision already made;
[6] or the potentiality of embarrassment from multifarious pronouncements
by various departments on one question.

Baker, 369 U.S. at 217. Not one, not two, but all six Baker characteristics are
patent in the lower court’s initial consideration of the Plaintiffs’ challenge to the
travel restriction.
If this Circuit allows the lower court to go beyond the textually-committed
Article II authority of the president as Commander-in-Chief and Chief Executive,
the trial court will be lost in the densest of a modern political thicket. The lower
court will find no manageable standards to competently decide the challenge and
will be forced to make initial policy determinations -- without the skills or
information need for such determinations. Particularly for questioning the
underlying motives of the newly elected President Donald Trump in deciding to
implement the Executive Order, the lower court and the Circuit panel have already
expressed a lack of the respect due the coordinate branch of government. Sadly, to
some observers and commentators, it even appears that such disrespect against
Donald Trump was purposeful.

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With little or no concern for “adherence” to the president’s political decision
already made, the lower court threw this nation in chaos by issuing its Temporary
Restraining Order and immediately applying the TRO nationally. Then Judge
James Robart refused to grant the government’s request for a weekend stay
pending an emergency appeal to this Circuit. The Ninth Circuit panel has now
worsened this chaos by its ruling affirming the rejection of a stay on appeal.
And the lower court and Circuit panel ruling have now only added to the
“multifarious pronouncements” of courts across the nation regarding the travel
restriction. Although it is the federal judiciary which suffers “embarrassment”
from this usurpation, it is the American people who suffer a great danger of
terrorist violence.
Subsequent to Baker, the Supreme Court in Nixon v. United States, 506
U.S. 224 (1993) applied these Baker factors by instructing that the political
question analysis begins by “determin[ing] whether and to what extent the issue is
textually committed.” 506 U.S. at 228. The Supreme Court rejected, as
nonjusticiable, a debenched federal judge’s challenge to the Senate’s exercise of its
Article I, Section 3, Clause 6 “sole” duty to “try” all impeachments. The Court
refused to review a procedurally problematic Senate impeachment trial process in
which an “evidence committee” of only 12 senators heard testimony while 88
senators avoided jury duty. All 100 Senators were ultimately allowed to vote -13

thumbs up or down -- rendering the final removal verdict. The Court determined
that it did not have authority to review the shortcut Senate trial process used to
strip U.S. District Judge Walter Nixon of his tenured office and salary. The Court
explicitly ruled “the word ‘try’ in the Impeachment Trial Clause does not provide
an identifiable textual limit on the authority which is committed to the Senate” Id.
at 239. The nation’s highest court would not attempt to impose a definition of the
word “try” on the upper chamber or critique the shortcut manner in which the
upper chamber transformed itself into the nation’s High Court of Impeachment.
Neither should the lower court review the president’s exercise of his
exclusive textual authority to implement war strategy and develop related national
security foreign policy. Just as the Supreme Court did in Nixon, this Court should
readily determine that “there is no separate provision of the Constitution that could
be defeated” by allowing the President’s “authority” to utilize his war strategy
powers. 506 U.S. at 237.
As an additional preliminary point of authority, Goldwater v. Carter is an
example of the Supreme Court’s most efficient political question determination.
444 U.S. 996 (1979). Goldwater involved a group of senators, led by Barry
Goldwater, who sued President Jimmy Carter for his controversial abrogation of a
United States treaty with the Republic of China (Taiwan). The Supreme Court
firmly rejected the senators’ attempt to interfere with an exclusive Executive
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authority. Without oral argument, the high court announced: “The petition for a
writ of certiorari is granted. The judgment of the Court of Appeals is vacated and
the case is remanded to the District Court with directions to dismiss the
complaint.” Id. In a concurring statement, Associate Justice William Rehnquist
explained: “[T]he basic question presented by the petitioners in this case is
‘political’ and therefore nonjusticiable.” Id. at 1002. “Here, while the Constitution
is express as to the manner in which the Senate shall participate in the ratification
of a treaty, it is silent as to that body's participation in the abrogation of a treaty.”
Id at 1003.
In cheering the Supreme Court’s quick and final decision not to review the
merits of the senators’ challenge for fear it would “spawn legal consequences,”
Rehnquist’s statement should now guide this Court : “An Art. III court's resolution
of a question that is ‘political’ in character can create far more disruption among
the three coequal branches of Government than the resolution of a question
presented in a moot controversy. Since the political nature of the questions
presented should have precluded the lower courts from considering or deciding the
merits of the controversy, the prior proceedings in the federal courts must be
vacated, and the complaint dismissed.” Goldwater, 444 U.S. at 1005-06.

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Perhaps less “domesticated” abstention advocacy is needed for this Circuit’s
consideration of this matter; “something greatly more flexible, something of
prudence, not construction and not principle.” The purest prudential strain of
nonjusticiability still incubates in Alexander Bickel’s THE LEAST DANGEROUS
BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS. Professor Bickel
discussed political questions are those issues which ask the courts to evaluate
policy and choose between outcomes – functions which the judiciary as an
institution is functionally incompetent to carry out. In unmatched aesthetic,
Alexander Bickel offered a foundation instead of Baker-like criteria:

In a mature democracy, choices such as this must be made by the
executive…” Such is the foundation, in both intellect and instinct, of the
political-question doctrine: the Court's sense of lack of capacity,
compounded in unequal parts of (a) the strangeness of the issue and its
intractability to principled resolution; (b) the sheer momentousness of it,
which tends to unbalance judicial judgment; (c) the anxiety, not so much that
the judicial judgment will be ignored, as that perhaps it should but will not
be; (d) finally (“in a mature democracy”), the inner vulnerability, the selfdoubt of an institution which is electorally irresponsible and has no earth to
draw strength from.
Alexander Bickel, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE
BAR OF POLITICS 184 (Yale 1986). Admittedly, the late Yale University Law
professor’s prudential poetry continues to unnerve the judge-centric consciousness
so predominant in our age. All the more reason for the Ninth Circuit en banc’s
deep consideration of its truths.
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There is a related -- but separate –consideration: The nation’s extreme need
for finality in the president’s alien vetting practices as a part of his war strategy.
This need for finality weighs very heavily in favor of a political question
determination. As Judge Steven Williams reasoned in 1991, when Nixon v. United
States was before the D.C. Circuit:“ Although the primary reason for invoking the
political question doctrine in our case is the textual commitment…the need for
finality also demands it.” Nixon v. United States, 938 F.2d 239, 245-46 (D.C. Cir.
1991)(citations omitted). The cost is chaos:
If claims such as Nixon's were justiciable, procedural appeals from every
impeachment trial would become routine….[ F]or the impeachments that are
anything but routine, those of presidents and chief justices, the intrusion of the
courts would expose the political life of the country to months, or perhaps years, of
chaos.
Id at 246.
Challenges to the president’s Executive Order are now becoming “routine”
with adjudications challenging the travel restriction ongoing in several sister
circuits. It must be clearly seen that “the intrusion of the courts would expose the
political life [and national security] of the country to months, or perhaps years, of
[dangerous] chaos.” Id..
As Trump derangement syndrome appears virulently contagious among the
intellectual and political elites – particularly among lawyers who need only the

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federal court filing fee to make manifest their disorder -- finality in this area is
needed to help retard future frivolous litigation against Donald Trump’s
governance.
Lastly, perhaps it would help for this Circuit to consider the reality that the
president has inherent, unreviewable constitutional authority to take military action
to obliterate airports in all seven listed nations if and when he judges it necessary
for our national security in this continued war -- even if that action results in the
certain death of aliens sitting in those airports who are holding boarding passes and
who are eager to visit the United States for whatever purpose. The past two
presidents have dropped tonnage of bombs on certain of those listed nations. Many
would-be visitors to the United States from certain of the listed nations have been
killed by the relatively indiscriminate bombs and particularized drone-strike of past
two presidents – without any review of their actions by the federal courts.
Certainly, the new president has inherent, unreviewable constitutional authority to
simply suspend visitations of foreign aliens coming from the listed seven nations.
Article II grants the president exclusive war strategy and security-related
foreign relations authorities “the exercise of which he is to use his own discretion,
and is accountable only to his country in his political character, and to his own
conscience." Marbury v. Madison. 5 U.S. 137, 165 (1803). Plaintiffs’ challenge to

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President Donald John Trump’s exercise of those authorities raise a nonjusticiable
political question and their complaint is due for immediate dismissal.
Dated: February 16, 2017
Victor Williams Appearing Pro Se
America First Lawyers Association
5209 Baltimore Ave,
Bethesda, MD 20816
[phone] /[e-mail]
CERTIFICATE OF COMPLIANCE

1. This brief complies with the type-volume requirement of Federal Rule of
Appellate Procedure 29 [c] 2 and 32 [a] as this brief contains 3157 words,
as determined by the word-count function of Microsoft Word 2010.
2. This brief complies with the typeface requirements of Federal Rule of
Appellate Procedure 32(a)(5) and the type style requirements of Federal Rule of
Appellate Procedure 32(a)(6) this brief has been prepared in a proportionally
spaced typeface Microsoft Word 2010 in 14-point Times New Roman font.
Dated: February 16, 2017
/s/Victor Williams
Victor Williams Appearing Pro Se
America First Lawyers Association
5209 Baltimore Ave,
Bethesda, MD 20816
[phone] /[e-mail]

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CERTIFICATE OF SERVICE
I hereby certify that on February 16, 2017, the foregoing brief with motion was
filed with the Clerk of this Court using the appellate CM/ECF system. All parties
or their counsel are registered users.
/s/Victor Williams
Victor Williams Appearing Pro Se
America First Lawyers Association
5209 Baltimore Ave,
Bethesda, MD 20816
[phone]
/[e-mail]

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