State of California et al v. Trump et al

Filing 95

Consent MOTION for Leave to File Brief of Former Members of Congress as Amici Curiae in Support of Plaintiffs' Motion for Preliminary Injunction filed by Amici Curiae Former Members of Congress. (Attachments: # 1 Proposed Order, # 2 Amici Curiae Brief)(Winthrop, Douglas) (Filed on 5/1/2019)

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ARNOLD & PORTER KAYE SCHOLER LLP
Irvin B. Nathan*
Robert N. Weiner*
Andrew T. Tutt*
Kaitlin Konkel*
Samuel F. Callahan*
601 Massachusetts Ave, NW
Washington, DC 20001
Telephone:
[phone]
[e-mail]
*Pro hac vice application forthcoming
Douglas A. Winthrop (SBN 183532)
Three Embarcadero Center, 10th Floor
San Francisco, CA 94111
Telephone:
[phone]
[e-mail]
Counsel for Amici Curiae Former Members of Congress

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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STATE OF CALIFORNIA, et al.,

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Plaintiffs,
v.
DONALD J. TRUMP, President of the United
States, in his official capacity, et. al.,

Case No.: 4:19-cv-00872-HSG
CONSENT MOTION FOR LEAVE TO
FILE BRIEF OF FORMER MEMBERS
OF CONGRESS AS AMICI CURIAE IN
SUPPORT OF PLAINTIFFS’ MOTION
FOR PRELIMINARY INJUNCTION

Defendants.

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Motion for Leave to File Brief as Amici Curiae (4:19-cv-00872-HSG)

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TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

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Amici curiae are a bipartisan group of more than 100 former Members of the House of

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Representatives, both Republicans and Democrats. They respectfully move for leave to file the

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attached brief in the above-captioned matter. Plaintiffs and defendants consent to amici’s motion.

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A copy of the proposed brief and a proposed order are attached. A full listing of amici appears in

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Appendix A of the proposed brief.

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STATEMENT OF INTEREST

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Amici’s motion should be granted because, as former members of Congress and as citizens

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of our Nation, they have a strong interest in preventing Executive Branch overreach from degrading

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Congress’s unique and important role in America’s tripartite system of separated powers. Amici

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have served an aggregate of approximately 1,500 years in Congress, hail from 36 States, and include

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21 former Members from the states of the Ninth Circuit. Amici disagree on many issues of policy

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and politics. Some amici believe that a wall along the Southern Border is in the national interest.

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Others do not. But all amici agree that the Executive Branch is undermining the separation of powers

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by proposing to spend tax dollars to build a border wall that Congress repeatedly and emphatically

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refused to fund. Rarely in our Nation’s history has the Executive Branch launched such an assault

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on Congress’s exclusive legislative powers. In the statement quoted above and many others like it,

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the President’s essential rationalization for unilateral Executive Branch action is that Congress has

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refused to authorize his requested appropriation. This subversion of Article I has caused, and

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continues to cause, grave harm to the House as an institution. If this Court refuses to address the

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merits or supports the Administration’s usurpation of congressional authority, the unchecked

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expansion of the Executive’s power at the expense of the Legislative Branch will threaten our

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democracy. Each of the amici swore an oath to protect the Constitution; each has seen firsthand how

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the separation of powers safeguards the rights of the American people; and each firmly believes that

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defending Congress’s power of the purse is essential to preserving democracy’s promise that

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Americans’ hard-earned tax dollars are spent in accordance with the will of the people.

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-1Motion for Leave to File Brief as Amici Curiae (4:19-cv-00872-HSG)

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ARGUMENT

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This Court may in its discretion allow the participation of amicus curiae, and does not

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impose “strict prerequisites that must be established prior to qualifying for amicus status.” In re

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Dynamic Random Access Memory Antitrust Litig., No. M-02-1486-PJH, 2007 WL 2022026, at *1

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(N.D. Cal. July 9, 2007). Rather, “an individual or entity seeking to appear as amicus must merely

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make a showing that his/its participation is useful to or otherwise desirable to the court.” Id.

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Here, the Court would benefit from briefing by former members of Congress because this

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suit concerns a subject on which they have unique perspective and a wealth of practical experience:

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the separation of powers. Some of the amici have served in leadership positions in their respective

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party caucuses, including as Majority Leader; several have served on the Appropriations, Budget

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and Intelligence Committees of the House; and some have gone on to serve in the Senate or in the

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Executive Branch. Two amici have served as U.S. Secretaries of the Defense Department (one

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Democrat and one Republican) and are particularly well versed in the laws and practices

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surrounding the Defense Department budget. One has served as the head of the Office of

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Management and Budget and went on to serve as Chief of Staff to the President. All of the amici

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are uniquely positioned to offer their perspective because they are former members of the

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Legislative Branch intimately familiar with the appropriations process, which is at the heart of this

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case.

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CONCLUSION
For the foregoing reasons, amici’s motion for leave to file the attached brief should be
granted.

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-2Motion for Leave to File Brief as Amici Curiae (4:19-cv-00872-HSG)

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Dated: May 1, 2019

ARNOLD & PORTER KAYE SCHOLER LLP

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By: /s/ Douglas A. Winthrop_____
Irvin B. Nathan*
Robert N. Weiner*
Andrew T. Tutt*
Kaitlin Konkel*
Samuel F. Callahan*
601 Massachusetts Ave. NW
Washington, DC 20001
[phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
[e-mail]

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Douglas A. Winthrop
10th Floor
Three Embarcadero Center
San Francisco, CA 94111
[phone]
[e-mail]

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Counsel for Amici Curiae

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*Application for admission pro hac vice
forthcoming

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-3Motion for Leave to File Brief as Amici Curiae (4:19-cv-00872-HSG)

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CERTIFICATE OF SERVICE
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I hereby certify that this document filed through the ECF system will be sent electronically
to the registered participants as identified on the Notice of Electronic Filing (NEF) and paper copies
will be sent to those indicated as non-registered participants on the date of electronic filing.
/s/ Douglas A. Winthrop_____
Douglas A. Winthrop
10th Floor
Three Embarcadero Center
San Francisco, CA 94111
[phone]
[e-mail]