State of California et al v. Trump et al

Filing 105

Consent MOTION to File Amicus Curiae Brief filed by Erwin Chemerinsky, Michael C. Dorf, David A. Strauss, Stephen I. Vladeck. Responses due by 5/16/2019. Replies due by 5/23/2019. (Attachments: # 1 Exhibit Proposed Amici Curiae Brief, # 2 Proposed Order)(Wydra, Elizabeth) (Filed on 5/2/2019)

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ELIZABETH B. WYDRA (BAR NO. 218200)
BRIANNE J. GOROD
BRIAN R. FRAZELLE
ASHWIN P. PHATAK
CONSTITUTIONAL ACCOUNTABILITY CENTER
1200 18th Street, NW, Suite 501
Washington, D.C. 20036
Tel.: [phone]
Fax: [phone]
[e-mail]

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Counsel for Amici Curiae Federal Courts Scholars

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
OAKLAND DIVISION

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STATE OF CALIFORNIA, et al.,

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Plaintiffs,
v.

Civil Action Nos. 4:19-cv-00872-HSG,
4:19-cv-00892-HSG
P.I. Hearing Date: May 17, 2019
Time: 10:00AM

DONALD J. TRUMP, in his official capacity as CONSENT MOTION OF FEDERAL
President of the United States, et al.,
COURTS SCHOLARS FOR LEAVE TO
FILE AMICI CURIAE BRIEF IN
Defendants.
SUPPORT OF PLAINTIFFS’ MOTION
______________________________________ FOR PRELIMINARY INJUNCTION
SIERRA CLUB and SOUTHERN BORDER
COMMUNITIES COALITION,
Plaintiffs,
v.
DONALD J. TRUMP, in his official capacity as
President of the United States, et al.,
Defendants.

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CONSENT MOTION OF FEDERAL COURTS SCHOLARS
FOR LEAVE TO FILE AMICI CURIAE BRIEF

Case Nos. 4:19-cv-00872-HSG,
4:19-CV-00892-HSG

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TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

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PLEASE TAKE NOTICE THAT federal courts scholars hereby respectfully move the
Court for leave to file a brief amici curiae in the above-captioned cases in support of Plaintiffs’

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motions for a preliminary injunction. A copy of the proposed amici curiae brief is appended as an

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exhibit to this motion.

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I.

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STANDARD FOR MOTION FOR LEAVE TO FILE BRIEF OF AMICI CURIAE
District courts have discretion to permit third parties to participate in an action as amici

curiae, and courts have “exercised great liberality” in allowing amicus briefs. Woodfin Suite

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Hotels, LLC v. City of Emeryville, No. C 06-1254 SBA, 2007 WL 81911, at *3 (N.D. Cal. Jan. 9,

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2007) (internal quotation marks and citations omitted). District courts frequently accept amicus

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briefs from non-parties when the legal issues in a case “have potential ramifications beyond the

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parties directly involved” or if the amici have “unique information or perspective that can help the

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court.” NGV Gaming, Ltd. v. Upstream Point Molate, LLC, 355 F. Supp. 2d 1061, 1067 (N.D.

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Cal. 2005) (internal quotation marks and citations omitted). There are no strict prerequisites that

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must be established to qualify for amicus status; the sole criterion is that the applicant make a

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showing that its “participation is useful to or otherwise desirable to the court.” Woodfin Suite

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Hotels, 2007 WL 81911, at *3 (quoting In re Roxford Foods Litig., 790 F. Supp. 987, 997 (E.D.

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Cal. 1991)).

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II.

STATEMENT OF IDENTITY AND INTEREST OF AMICI CURIAE

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Amici curiae are federal courts scholars with expertise in the jurisdiction of the federal

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courts. They are thus particularly well-suited to provide the Court with a detailed response to the

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government’s argument that this Court cannot hear this case because Plaintiffs have not pointed to

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an express statutory cause of action. Amici are:

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1
CONSENT MOTION OF FEDERAL COURTS SCHOLARS
FOR LEAVE TO FILE AMICI CURIAE BRIEF

Case Nos. 4:19-cv-00872-HSG,
4:19-CV-00892-HSG



Erwin Chemerinsky, Dean, Jesse H. Choper Distinguished Professor of Law,
University of California, Berkeley Law

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Michael C. Dorf, Robert S. Stevens Professor of Law, Cornell Law School

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

David A. Strauss, Gerald Ratner Distinguished Service Professor of Law, Faculty
Director of the Jenner & Block Supreme Court and Appellate Clinic, University of
Chicago Law School



Stephen I. Vladeck, A. Dalton Cross Professor in Law, University of Texas School
of Law

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III.

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PROPOSED AMICI CURIAE BRIEF’S RELEVANCE AND AID TO THE COURT
The proposed, attached amici curiae brief plainly satisfies this Court’s standard for

accepting such briefs because it offers a detailed response to one argument the government makes
in its opposition to Plaintiffs’ motion for a preliminary injunction in Sierra Club v. Trump, No.

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4:19-cv-00892-HSG. Specifically, the government argues that Plaintiffs “do not identify any

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private right of action in the statutes they challenge” or any other “cause of action” and therefore

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this Court should deny the motion. Gov’t Opp. 12. As amici know, however, there is a long
history of courts of equity hearing claims that executive branch officials have exceeded their
statutory power, and the Supreme Court has repeatedly recognized that redressing such claims is

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within the equitable power of the federal courts. This case falls squarely within that legal tradition

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and within Supreme Court precedent.

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IV.

POSITION OF THE PARTIES
Counsel for all parties have consented to the filing of this brief.

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CONSENT MOTION OF FEDERAL COURTS SCHOLARS
FOR LEAVE TO FILE AMICI CURIAE BRIEF

Case Nos. 4:19-cv-00872-HSG,
4:19-CV-00892-HSG

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V.

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CONCLUSION
For the foregoing reasons, amici respectfully request this Court’s leave to file the attached

brief.

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DATED: May 2, 2019

Respectfully submitted,
/s/ Elizabeth B. Wydra
Elizabeth B. Wydra (Bar No. 218200)
Brianne J. Gorod
Brian R. Frazelle
Ashwin Phatak
CONSTITUTIONAL ACCOUNTABILITY CENTER
1200 18th Street, N.W.
Suite 501
Washington, D.C. 20036
[phone]
[e-mail]

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Counsel for Amici Curiae Federal Courts Scholars

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CONSENT MOTION OF FEDERAL COURTS SCHOLARS
FOR LEAVE TO FILE AMICI CURIAE BRIEF

Case Nos. 4:19-cv-00872-HSG,
4:19-CV-00892-HSG