newdow v roberts dc-cir pet for rehearing

8/9/2019 Newdow v Roberts DC-Cir Pet for Rehearing

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CASE NO. 09-5126

IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

MICHAEL NEWDOW, et al.

Plaintiffs-Appellants,

v.

HON. JOHN ROBERTS, JR., CHIEF JUSTICE OF THE U.S.

SUPREME COURT, et al.

Defendants-Appellees,

On Appeal from the United States District Court

for the District of Columbia

(District Court #1:08-cv-02248)

PLAINTIFFS-APPELLANTS PETITION FOR PANEL REHEARING OR

FOR REHEARING EN BANC

MICHAEL NEWDOW ROBERT V. RITTER

In pro perand Plaintiffs counsel AHA

PO BOX 233345 1777 T STREET, NWSACRAMENTO, CA 95823 WASHINGTON, DC 20009

(916) 424-2356 (202) 238-9088

[email protected] [email protected]

Case: 09-5126 Document: 1248825 Filed: 06/09/2010 Page: 1


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TABLE OF CONTENTS

TABLE OF CITATIONS.................................................................................. ii

STATEMENT REQUIRED BY FRAP 35(b)(1)..............................................1

PRELIMINARY NOTE.....................................................................................2

SUMMARY OF THE ARGUMENT................................................................3

ARGUMENT.......................................................................................................4

(I) The Right to Challenge Executive Branch Actions Has

Been a Constant in the Supreme Courts Jurisprudence

Since 1803 .................................................................................................4

(II)There is Redressability in This Case .....................................................5

A. That the President is the Ultimate Decision-Maker Does

Not Warrant a Lack of Redressability Ruling................................6

B. That No Mandate Exists to Have an Inaugural Ceremony

Does Not Warrant a Lack of Redressability Ruling.......................7

C. That the President Could Find Others to Commit the

Constitutional Violation Does Not Warrant a Lack ofRedressability Ruling.........................................................................8

CONCLUSION .................................................................................................15



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TABLE OF CITATIONS

CASES

Barlow v. Collins, 397 U.S. 159 (1970).....................................................................2

Bowsher v. Synar, 478 U.S. 714 (1986).....................................................................4

Chicago & Southern Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S.

103 (1948) ...............................................................................................................8

Clinton v. City of New York, 524 U.S. 417 (1998) ........................................... 11, 12

Clinton v. Jones, 520 U.S. 681 (1997)...................................................................4, 6

Douglas v. Preston, 559 F.3d 549 (2009)..............................................................7, 8

Ex parte Levitt, 302 U.S. 633 (1937) .........................................................................5

Franklin v. Massachusetts, 505 U.S. 788 (1992).......................................... 6, 13, 15

Hamdan v. Rumsfeld, 548 U.S. 557 (2006) ...............................................................8

Hamdi v. Rumsfeld, 542 U.S. 507 (2004) ..................................................................5

Kilbourn v. Thompson, 103 U.S. 168 (1881).............................................................4

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ......................................... 9, 10

Lynch v. Donnelly, 465 U.S. 668 (1984) ...................................................................3

Marbury v. Madison, 5 U.S. 137 (1803).......................................................... passim

Marsh v. Chambers, 463 U.S. 783 (1983).................................................................2

Mississippi v. Johnson, 71 U.S. (4 Wall.) 475 (1867) .............................................12

Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26 (1976).................................. 9, 10

Swanv. Clinton, 100 F.3d 973 (D.C. Cir. 1996) .....................................................13

United States v. Nixon, 418 U.S. 683 (1974).............................................................5



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STATUTES

36 U.S.C. 501........................................................................................................12

S.Con.Res. 67, 110

th

Cong., 2

nd

Sess. (2008)...........................................................12

OTHER AUTHORITIES

New England Primer, or, An easy and pleasant guide to the art of reading:

Adorned with cuts; to which is added, the Catechism. (Boston: Massachusetts

Sabbath School Society; 1843) ...............................................................................2



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STATEMENT REQUIRED BY FRAP 35(b)(1)

(I) The decision of the panel majority conflicts with existing case lawThe panel majoritys opinion in this case conflicts withMarbury v.

Madison, 5 U.S. 137, 163 (1803), and every subsequent decision where

standing to challenge an executive branch action was deemed to exist due to

an alleged abrogation of an individuals vested right.

(II) This proceeding involves questions of exceptional importanceIs judicial review no longer available to ensure that the actions of the

executive branch do not infringe on individual liberties? By ruling that such

an action is not redressable in this case, the panel majority has opened the

door to far-reaching abuses by eliminating one of the most important

safeguards against unchecked governmental power. This is clearly a matter

of exceptional importance.

Also of exceptional importance is the Establishment Clause issue that

forms the gravamen of the Complaint. Because Plaintiffs stipulate that their

capable of repetition but evading review argument has been lost for the

2009 inauguration, op. at 9-11, it would be frivolous to petition for this issue

at this time. Rather, they will relitigate at the 2013 inaugural (after the actual

defendants become known, op. at 12-13) once redressability is

acknowledged here.



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PRELIMINARY NOTE

This case is about government-sponsored (Christian) Monotheism at the

inauguration of the President. Specifically, every four years, the Chief Justice of

the United States proclaims to a vast audience that this nation adheres to the view

that there exists a God. This purely religious claim (contrary and offensive to the

religious views of Plaintiffs and many others) is then reinforced with the intrusion

of (Christian) Monotheistic clergy leading a public audience in (Christian)

Monotheistic prayer. Cf.Marsh v. Chambers, 463 U.S. 783 (1983) (prayer

intended principally for our legislators, not for the public, is permissible).

The panel majority held that Plaintiffs lack redressability. Plaintiffs submit

that this resulted largely from a belief that the Plaintiffs should lose on the merits.

Too often these various questions have been merged into one confused inquiry.

Barlow v. Collins, 397 U.S. 159, 176 (1970) (Brennan, J., concurring and

dissenting). Had the Chief Justice added and Jews stink! to the end of the oath,

or the Presidential Inaugural Committee (PIC) aided Protestant ministers in

criticizing Catholicism and asking the audience to join in proclaiming, Abhor that

errant whore of Rome,1

redressability would likely have been found.

1See New England Primer, or, An easy and pleasant guide to the art of reading:

Adorned with cuts; to which is added, the Catechism. (Boston: Massachusetts

Sabbath School Society; 1843) p. 25.



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SUMMARY OF THE ARGUMENT

The government of the United States has been emphatically

termed a government of laws, and not of men. It will certainly

cease to deserve this high appellation, if the laws furnish no

remedy for the violation of a vested legal right.2

This case has potentially huge ramifications. In the wake of the panel

majoritys ruling, the executive branch is now armed to violate the basic liberties

of every American with impunity. Not only is this directly contrary to Chief Justice

Marshalls edict in 1803, but it conflicts with the consistent warnings given by the

Supreme Court ever since.

The right vested in this case has been phrased in numerous ways. Whether

described as a right not to be turned (by the government) into outsiders, not full

members of the political community3

on the basis of religious belief, or a right not

to be forced to suffer a sense of anguish and outrage4

due to the governments

advocacy for what an individual believes to be a religious falsehood, that right is

being violated every four years at the nations transcendent ritual.

2Marbury v. Madison, 5 U.S. 137, 163 (1803).

3Lynch v. Donnelly, 465 U.S. 668, 688 (1984) (OConnor, J., concurring).

4Op. (Kavanaugh, J., concurring) at 6.



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ARGUMENT

(I) The Right to Challenge Executive Branch Actions Has Been aConstant in the Supreme Courts Jurisprudence Since 1803

Plaintiffs agree that the independence of the executive branch is essential to

the proper functioning of our government. As Chief Justice Marshall emphasized

inMarbury v. Madison, 5 U.S. 137, 170 (1803),for the courtsto intermeddle with

the prerogatives of the executive [would be] [a]n extravagance, so absurd and

excessive, [it] could not have been entertained for a moment.

However, the Chief Justice also noted that this applies only when [t]he

subjects are political [and t]hey respect the nation, not individual rights. 5 U.S.

at 166 (emphasis added). After all, [t]he Framers recognized that, in the long

term, structural protections against abuse of power were critical to preserving

liberty.Bowsher v. Synar, 478 U.S. 714, 730 (1986). Thus, we have long held

that when the President takes official action, the Court has the authority to

determine whether he has acted within the law. Clinton v. Jones, 520 U.S. 681,

703 (1997). Similarly, the Supreme Court stated in Kilbourn v. Thompson, 103

U.S. 168, 199 (1881) that:

[L]iving under a written constitution, it is the province andduty of the judicial department to determine in cases regularly

brought before them, whether the powers of any branch of the

government have been exercised in conformity to the

Constitution; and if they have not, to treat their acts as null and

void.



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Thus, a private individual [may] invoke the judicial power to determine the

validity of executive or legislative action.Ex parte Levitt, 302 U.S. 633 (1937).

No Supreme Court case has limited this power in situations such as that

involved here. On the contrary, as the Supreme Court recently noted:

[Even] a state of war is not a blank check for the President

when it comes to the rights of the Nations citizens. Whatever

power the United States Constitution envisions for the

Executive it most assuredly envisions a role for all three

branches when individual liberties are at stake.

Hamdi v. Rumsfeld, 542 U.S. 507, 536 (2004) (citations omitted). Thus, when

examined in the federal courts, exercises of power by the Executive Branch

have been found invalid as in conflict with the Constitution. United States v.

Nixon, 418 U.S. 683, 703 (1974).

(II) There is Redressability in This CaseDespite the foregoing, the panel majority contended that redressability is

absent, writing that [d]eclaratory and injunctive relief against the defendants

actually named would not prevent the claimed injury. Op. at 13. This contention

is wholly without merit. By either declaratory or injunctive means, the injuries to

Plaintiffs will certainly be prevented once the Court issues the requested relief.

The panel majority appears to base its conclusion on three facts. The first is

that it is the President, not the named defendants, who is the ultimate decision-

maker. The second is that there is no mandate to have an inaugural ceremony. The



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last is that if the Court were to prevent the named Defendants from committing the

constitutional violations, the President could simply find others to take their place.

None of these facts warrant a lack of redressability ruling.

A. That the President is the Ultimate Decision-Maker Does NotWarrant a Lack of Redressability Ruling

Plaintiffs do not dispute that the President is the ultimate decision-maker in

regard to the challenged activity. See Op. at 14 (noting that [t]he committees are

only authorizednot obligatedto assist or make arrangements; andthat [t]he

PIC also has no authority or duty to sponsor or determine the contents of the

inaugural ceremony).5

But this is generally true for executive branch actions. In

fact, even when the Presidents underlings have authority, that authority can

frequently be superseded by the Chief Executive. Franklin v. Massachusetts, 505

U.S. 788, 800 (1992) (noting the Presidents usual superintendent role and his

accustomed supervisory powers over his executive officers). See also Clinton v.

Jones, 520 U.S. at 713 (Breyer, J., concurring) ([A] President, though able to

delegate duties to others, cannot delegate ultimate responsibility or the active

obligation to supervise that goes with it.) Thus, that the President is the ultimate

decision-maker has no probative value in terms of redressability.

5As far as the Chief Justice and what may be added to the presidential oath, op.

at 14, the ultimate decision-maker is the Constitution, not the President.



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Perhaps recognizing this, an identically comprised panel majority never

mentioned redressability inDouglas v. Preston, 559 F.3d 549 (2009). Somewhat

analogous to the instant case,Douglas involved a racial discrimination claim in

regard to a Presidential Rank Award. As here, [t]he President of the United

States makes the final call.Id. at 551. To be sure, any conclusion regarding

redressability inDouglas can only be made sub silentio. See In re Navy

Chaplaincy, 534 F.3d 756, 764 (D.C. Cir. 2008). Nonetheless, one would have

expected the panel to have mentioned redressability had it been lacking. This is

especially true since theDouglas Court took a more circuitous route to reach its

holding; delving into the speculative nature of the injury, and relating that to

whether an adverse employment action had occurred.6

B. That No Mandate Exists to Have an Inaugural Ceremony Does NotWarrant a Lack of Redressability Ruling

The second fact noted by the panel majority is that there is no law

mandating that the President or the President-elect even carry out an inaugural

ceremony [which] is subject to the Presidents or President-elects discretion.

6It might be incidentally mentioned that standing can exist in certain

circumstances even if any alleged harm is speculative.Douglas, 559 F.3d at 552-

53. In the instant case, of course, the harm is not speculative at all. On the contrary,

it is substantially probable that the Presidential oath at the next Inauguration will

include so help me God and that there will be prayers during the Inaugural

ceremony. Op. (Kavanaugh, J., concurring) at 3.



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Op. at 14. This, too, is true for many of the decisions the Chief Executive makes.

[E]ven a purely discretionary [act] can be actionable.Douglas, 559 F.3d at 552.

InHamdan v. Rumsfeld, 548 U.S. 557 (2006), as one of numerous possible

examples, there was no mandate for the president to issue the military order under

which the plaintiff claimed his rights were violated. Yet never was there a claim

that his asserted injury was not redressable because no law obligate[d] the

President to issue the order. Op. at 14.

C. That the President Could Find Others to Commit the ConstitutionalViolation Does Not Warrant a Lack of Redressability Ruling

Judgments within the powers vested in courts by the Judiciary Article of

the Constitution may not lawfully be revised, overturned or refused faith and credit

by another Department of Government.Chicago & Southern Air Lines, Inc. v.

Waterman S.S. Corp., 333 U.S. 103, 113 (1948). Despite this clear edict from the

Supreme Court, the panel majority wrote that the future President could simply

find other willing assistants not subject to the injunction to carry out his wishes.

Op. at 15. Obviously, that would be refus[ing] faith and credit.7

7To be sure, the Supreme Court ruled in Waterman that it lacked the power to

review the Presidents decision. But that ruling was only because the case involved

executive decisions as to foreign policy, id. at 111, that were of a kind for

which the Judiciary has neither aptitude, facilities nor responsibility and which has

long been held to belong in the domain of political power not subject to judicial

intrusion or inquiry.Id. Obviously, that is not the situation here.



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(1)The Panel Majority Misconstrued the Third Party IssueIn terms of redressability, there are two third party types that can be of

concern. The first is comprised of third parties who may be recipients (or

objects) of the given injury. Thus, inLujan v. Defenders of Wildlife, 504 U.S. 555,

561-62 (1992), the Supreme Court discussed whether the plaintiff is himself an

object of the action (or forgone action) at issue. If he is, there is ordinarily little

question that the action or inaction has caused him injury, and that a judgment

preventing or requiring the action will redress it. As recipients of the unwanted

Monotheistic intrusions, Plaintiffs here are object[s] of the action at issue.

Accordingly, from this recipient standpoint, there are no third parties, and their

injuries are redressable.

The other third parties are those who may cause the given injury. In

examining this matter, the panel majority made a gross error, which (if

uncorrected) may result in huge abrogations of individual rights in this circuit.

According to the panel majority, redressability was lacking because:

The future President is therefore a third party not before the

court whose independent action results in the alleged injury,

Lujan, 504 U.S. at 560, and courts cannot redress injury . . .

that results from [such] independent action, Simon v. E. Ky.Welfare Rights Org., 426 U.S. 26, 4142 (1976).

Op. at 15. The case at bar, however, is readily distinguishable fromLujan and

Simon. In those earlier lawsuits, the named defendants acted first, and any



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infringements of the plaintiffs rights resulted from the subsequentactions of

unnamed third parties. That is why the Supreme Court wrote:

Art. III still requires that a federal court act only to redress

injury that fairly can be traced to the challenged action of the

defendant, and not injury that results from the independent

action of some third party not before the court.

Simon, 426 U.S. at 4142. In the instant case, the situation is reversed. Here, the

unnamed third party (i.e., the President) acts first, after which Plaintiffs rights

are infringed upon by the named defendants carrying out the Presidents orders:

Through the PIC, President Obama invited two private

ministersRevs. Rick Warren and Joseph Loweryto lead

invocation and benediction prayers, respectively, at the

inaugural ceremony. President Obama also communicated his

wish to John Roberts, Jr., Chief Justice of the United States,

that the Chief Justice administer the presidential oath of office

at the ceremony and append the phrase So help me God to

conclude the oath.

Op. at 5.8

In other words, in terms of redressability, this case has what was missing

inLujan and Simon: the named defendants being the final actors causing the injury.

To argue, as the panel majority did, that there is no redressability because

the President instigated the constitutional infirmities as an independent third party

is tantamount to completely obliterating judicial review. Any time the President

directs his subordinates to act, there is this same independent action of a third

8With twenty consecutive similar inaugurations, it can be presumed that the same

decision will be made in 2013 and 2017. See note 6, page 7, supra.



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party. In fact, there is no reason to limit this logic to the executive branch. For

most of the laws it passes, there is nothing mandating Congress to act, either.

Thus, under the panel majoritys ruling here, there would be no redressability for

harms resulting from statutory laws as well, since those would also result from the

independent action of a third party (i.e., Congress).

(2)The Panel Majority Misconstrued Clinton v. City of New YorkIn multiple ways, the panel majority misconstrued Clinton v. City of New

York, 524 U.S. 417 (1998). For instance, importance seemed to be placed on the

fact that the President was one of the named defendants. Op. at 15-16 (We put

aside the fact that plaintiffs in that case (unlike plaintiffs in this case) actually

named the President in their suit.). Clinton, however,specifically highlighted that

neither set of plaintiffs sought injunctive relief against the President," 524 U.S. at

426 n.9, and (as the quote that the panel majority chose to disregard makes clear):

[T]raceability and redressability are easily satisfied [when]

injury is traceable to the Presidents [acts] and would be

redressed by a declaratory judgment that the [acts] are invalid.

Op. at 15 (citing Clinton,524 U.S. at 433 n.22).

That Clinton wasa basic case of judicial review of legislation fares no

better in terms of the lack of redressability argument. First of all, nothing in the

Supreme Courts jurisprudence limits judicial review of presidential actions only to

situations that involve legislation. See, e.g.,Marbury v. Madison. Secondly, just as



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the challenged action occurred within the confines of legislation in Clinton, it

occurs within the confines of legislation in this case, as well. See 36 U.S.C. 501

et seq (authorizing the PIC); S. Con. Res. 67, 110th

Cong., 2nd

Sess. (2008)

(authorizing the JCCIC). Admittedly, there is nothing in the legislation that

specifically addresses introducing (Christian) Monotheism into the inaugural

ceremonies, but as with Clinton it is still legislation that enables the

constitutional wrong.

The Clinton discussion concluded with two inapt citations and a straw man.

First came a citation toMississippi v. Johnson, 71 U.S. (4 Wall.) 475, 499 (1867):

(An attempt on the part of the judicial department . . . to

enforce the performance of [executive and political] duties by

the President [is] an absurd and excessive extravagance.)

(quoting Chief Justice John Marshall)

Op. at 16. As noted previously, see page 4, supra, this misses the basic distinction

Chief Justice Marshall emphasized inMarbury: [When] [t]he subjects are

political [and t]hey respect the nation, not individual rights, the decision of the

executive is conclusive. Marbury, 5 U.S. at 166 (emphasis added). As the Chief

Justice had enunciated earlier:

The very essence of civil liberty certainly consists in the rightof every individual to claim the protection of the laws,

whenever he receives an injury. The government of the

United States has been emphatically termed a government of

laws, and not of men. It will certainly cease to deserve this high

appellation, if the laws furnish no remedy for the violation of a

vested legal right.



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5 U.S. 163. This edict would become a nullity under the panel majoritys approach.

The second citation, to Swanv. Clinton, 100 F.3d 973, 976 n.1 (D.C. Cir.

1996), is extraordinary inasmuch as Swan specifically stated:

[T]he bedrock principle [is] that our system of government is

founded on the rule of law, and it is sometimes a necessary

function of the judiciary to determine if the executive branch is

abiding by the terms of [the law].

100 F.3d at 978. Wishing to respect the special role of the President, the Swan

court then stated, [i]f Swans injury can be redressed by injunctive relief against

subordinate officials, he clearly has standing.Id. at 979. That is precisely the

circumstance in the instant case. Plaintiffs, therefore, clearly ha[ve] standing.

The straw man was the statement that, plaintiffs fail to cite any authority

allowing this court to declare unlawful the personal religious expression of a

private citizen like the President-elect. Op. at 16. As the majority itself noted,

Plaintiffs agreed from the outset that [t]he President cannot be denied the

prerogative of making such a religious reference because doing so would

abrogate his First Amendment rights. Op. at 11-12.

(3)The Panel Majority MisconstruedFranklin v. MassachusettsThe panel majoritys ultimate discussion ofFranklin v. Massachusetts is

also manifestly in error. First, there is the Franklin pluralitys key statement:

[W]e may assume it is substantially likely that the President and

other executive and congressional officials would abide by an



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authoritative interpretation of the census statute and

constitutional provision by the District Court, even though they

would not be directly bound by such a determination.

505 U.S. at803, which the panel majority here claimed is not controlling on this

court. Op. at 16. Plaintiffs disagree. Only one justice voiced any disagreement,

and that justice specifically noted:

Although only a plurality of the Court joins that portion of

JUSTICE OCONNORs opinion which finds standing (Part

III), I must conclude that the Court finds standing since eight

Justices join Part IV of the Courts opinion discussing the

merits of appellees constitutional claims.

505 U.S. at 824 n.1 (Scalia, J., concurring in part and concurring in the judgment).

Furthermore, that justices entire six page concurrence was spent on recogniz[ing]

that the scope of Presidential immunity from judicial process differs

significantly from that of Cabinet or inferior officers. id. at826 (emphasis

added), and that [r]eview of the legality of Presidential action can ordinarily

be obtained in a suit seeking to enjoin the officers who attempt to enforce the

Presidents directive.Id. at 828 (emphasis added). Thus, at least five (and

perhaps all nine) justices would have found redressability in the instant case.

The panel majoritys conclusion, therefore (that [t]he future President is

free to use any decisionmaking process he desires when designing and staging an

inaugural ceremony and is not obligated to consult anybody or take any cognizance

of the opinions issuing from this court, op. at 17) is simply a reiteration of the fact



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that the President, himself, is a coequal with the judicial branch, and that he is

unlike the officers who attempt to enforce the Presidents directive. Those latter

individuals (and the committees, agencies, etc., who also attempt to enforce the

Presidents directive) are obligated to follow the Courts directions.

CONCLUSION

In a split decision, the panel majority concluded that Plaintiffs here do not

have standing to bring this lawsuit. Specifically, the majority held that Plaintiffs

injuries are not redressable because the courts do not have power to issue

injunctive or declaratory relief against the President a fact with which Plaintiffs

agree. However, as the Supreme Court held in Franklin v. Massachusetts,the

courts certainly have power to issue such relief against his underlings.

Only the Presidents underlings were named as defendants in this case. Thus,

the majority has set a precedent in this circuit that conflicts with Supreme Court

case law, and has potentially devastating consequences. This Petition should be

granted (and the panel majoritys decision reversed) to preclude that possibility.



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Respectfully submitted,

s/ - Michael Newdow

In pro perand Plaintiffs counsel

PO Box 233345

Sacramento, CA 95823

(916) 424-2356

[email protected]



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newdow v roberts dc-cir pet for rehearing

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