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    • Abstract: No. _________IN THESupreme Court of the United StatesMICHAEL NEWDOW, ET AL.;Petitioners,v.JOHN G. ROBERTS, JR., CHIEF JUSTICE OF THEUNITED STATES, ET AL.;Respondents.

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No. _________
IN THE
Supreme Court of the United States
MICHAEL NEWDOW, ET AL.;
Petitioners,
v.
JOHN G. ROBERTS, JR., CHIEF JUSTICE OF THE
UNITED STATES, ET AL.;
Respondents.
ON PETITION FOR WRIT OF CERTIORARI TO THE
UNITES STATES COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT
PETITION FOR WRIT OF CERTIORARI
Michael Newdow
In pro per and Counsel of
Record for Petitioners
Post Office Box 233345
Sacramento, CA 95823
(916) 427-6669
[email protected]
QUESTION PRESENTED
Whether the United States Court of Appeals for the
District of Columbia Circuit erred by ruling that
there is no redressability when a plaintiff’s rights are
abridged by individuals carrying out the President’s
wishes?
i
LIST OF ALL PARTIES
(1) Plaintiffs
a. Individuals
(1) Newdow, Michael
(2) Schempp, Ellery
(3) Lipman, Mel
(4) Barker, Dan
(5) Gaylor, Annie-Laurie
(6) Sherman, Robert
(7) Berkshire, August
(8) Castle, Marie
(9) Bechman, Stuart
(10) Silverman, Herb
(11) Torpy, Jason
(12) Greenberger, Harry
(13) Hornbeck, Kirk
(14) Wingrove, Richard
(15) Arntzen, Christopher
(16) Stoltenberg, John
(17) LaClair, Katherine
(18) Altman, Louis
(19) Case, Paul
(20) Schiffelbein, Jerry
(21) Richardson, Anne
(22) Richardson, Jay
(23) Dugan, Dan
(24) Andrews, Anna Mae
(25) Sutton, Eliza
(26) Ressman, Richard
(27) Abelman, Marsha W.
(28) A-Doe11
1On May 14, 2009, Plaintiffs filed in the Court of Appeals an
unopposed Motion for Leave to Submit Child-Identifying
ii
(29) Aldred, Stephen
(30) A-Doe2
(31) Allewalt, Linda
(32) Alman, Isadora
(33) A-Doe3
(34) Avery, Timothy G.
(35) Balzano, Donald P.
(36) B-Doe1Parent1
(37) Barnes, Chad
(38) B-Doe2
(39) Beat, Lawrence W.
(40) Becker, Zachary
(41) Beekhuis, G. J.
(42) Benedict, Marc J.
(43) B-Doe3
(44) Berger, Gary Lee
(45) Berry, James H.
(46) B-Doe4
(47) Blazo, Al
(48) Borrell, Lorraine A.
(49) Borrell, Richard M.
(50) Bossom, Chris
(51) Brabander, Gregory T.
(52) Brandt, Marle
(53) Braun, Burkhard R.
(54) B-Doe5
(55) B-Doe6
(56) B-Doe7
Information Under Seal. (#1180977). This motion was granted
on July 10, 2009. (#1195744). Pursuant to the instructions
provided by the Clerk’s Office in a phone call on September 16,
2010, the names of the parties covered by that motion are being
submitted (under seal) in an envelope accompanying this
Petition.
iii
(57) B-Doe8
(58) B-Doe1Parent2
(59) B-Doe1Child1
(60) B-Doe1Child2
(61) Burke, Julianne F.
(62) Burke, Michael
(63) Butcher, Linda
(64) Cassels, Jean
(65) C-Doe1
(66) C-Doe2
(67) C-Doe3
(68) Cox, Christopher
(69) Cramer, Sally J.
(70) C-Doe4
(71) Crow, Gail M.
(72) Dabbs, Edward J.
(73) Darwin, Steven P.
(74) Davidson, Joseph
(75) Davis Jr., Herbert A.
(76) Destler, David M.
(77) D-Doe1
(78) E-Doe1
(79) Eisenberg, Bernard
(80) Ellis, Brian P.
(81) Farren, Jamie L.
(82) Fleming, David J.
(83) Floyd, Lauren
(84) Gahagan, Gary
(85) Garvin, Jonathan
(86) Ghermann, Ernst F.
(87) Gilthorpe, Stefan
(88) Gleason, Bruce
(89) Goodman, Joseph P.
(90) Grimaudo, Leonard T.
iv
(91) Grimes, Richard O.
(92) Guardino, Beverly J.
(93) Guillen, Gary A.
(94) Gulledge, Christopher J.
(95) Gulsby Sr., John A.
(96) Guzman, Louis E.
(97) Haider, William R.
(98) Halasz, Richard
(99) Haley, Jeffrey T.
(100) Hall, William J.
(101) Hamel, David O.
(102) Hart, Diane
(103) Hart, Brian
(104) Hawkins, Gary D.
(105) H-Doe1
(106) Heard, Gloria J.
(107) Hecker, Walter G.
(108) Helton, Robert S.
(109) Hoaks, Trina J.
(110) Holste, Peter N.
(111) Hommerding, Emily
(112) Honnigford, Bruce N.
(113) Hughes, Wendy
(114) Humston, Jill L.
(115) Hunn Jr., Wilfred A.
(116) Hunsberger, Virginia M.
(117) Huntsman, David P.
(118) Jacobson, Michael
(119) Jochums Jr., Robert E.
(120) Johnson, Troy P.
(121) Jones, Linda W.
(122) J-Doe1
(123) Jones, Ronald A.
(124) Kane, George F.
v
(125) Kaplan, Wendy
(126) Kessinger, M.D., Rovena L.
(127) Kirby, Susan L.
(128) Knox, Donna J.
(129) K-Doe1
(130) Koch, Don
(131) Kottow, Travis
(132) LaCourt, Marilyn
(133) L-Doe1
(134) Lapinsky, ZoAnn
(135) Last, Eric R.
(136) Leach, Christopher
(137) Lerner, Lawrence S.
(138) Leung, Carol
(139) Leung, Granville
(140) Lewis, Gerald J.
(141) Li, June H.
(142) Lieb, Anne-Rosemarie
(143) L-Doe2
(144) Lipp, Dallas W.
(145) Lobdell, James E.
(146) Lubin, Donald P.
(147) Mack, Anthony
(148) Mack, Jillian
(149) Mack, Susan
(150) Mansker III, Andrew J.
(151) Marchetti, Peter
(152) Marquis, Victor O.
(153) Marquisee, Eleanor
(154) Marquisee, Mark
(155) Martin, Richard M.
(156) Mauriello, David
(157) Maxwell, Sarah A.
(158) McCollum, James T.
vi
(159) McCormick, Andrea H.
(160) M-Doe1Parent1
(161) M-Doe1Parent2
(162) Mitteldorf, Harriet
(163) Monllor, Javier
(164) Monroe, Phillip
(165) M-Doe2
(166) Morgan, Thomas J.
(167) Morris, Garrett
(168) Muñoz, Anthony
(169) Murphy, Michael J.
(170) Nagornyy, Viktor
(171) Nelson, Connie B.
(172) Neubauer, Steven
(173) Norman, Jeanette M.
(174) Nydick, Barbara A.
(175) Oliver, Dale
(176) Pabian, David P.
(177) Paige, Jennifer
(178) Park, Carolie
(179) Petry, Marsha
(180) PlazinskI, Lori
(181) Price, Joel W.
(182) Purdon, Jeffrey R.
(183) R-Doe1
(184) R-Doe2
(185) Rapp, Robert C.
(186) Ready Jr., Robert F.
(187) Reeder, Gregory L.
(188) R-Doe3
(189) Ridder, Martin
(190) Riddering, Thomas K.
(191) Robinson, Susan P.
(192) Rodosovich, Ted
vii
(193) Romanowski, Scott
(194) Rose, David
(195) Rosenthal, Neal
(196) Rothstein, Polly
(197) Saia, Chris
(198) Saltzman, Jonah
(199) Sanden, Mary
(200) S-Doe1
(201) Schaich, David
(202) Schlueter, Roger S.
(203) S-Doe2
(204) Sellnow, Paul
(205) S-Doe3
(206) Sierichs Jr., William C.
(207) Silverman, Sarah A.
(208) Silverman, Carl H.
(209) Sitzes, Charlie C.
(210) Skomer, Debra A.
(211) Smith, Nancy S.
(212) Smith, Mike
(213) Solomon, Steven L.
(214) S-Doe4
(215) Stauffer, M. Laura
(216) Stauffer, Ronald P.
(217) Steiner, John
(218) S-Doe5
(219) Stone, Martin M.
(220) Storey, Paul
(221) Straus, Marvin
(222) Stubbs, Eric M.
(223) Swales, Gregory F.
(224) Tanner, Victor
(225) T-Doe1
(226) T-Doe2
viii
(227) T-Doe3
(228) Theris, Niko
(229) Thorlin III, John F.
(230) Tierney, Sean M.
(231) Tjaden, Paul J.
(232) Tracey, Teri L.
(233) T-Doe4
(234) Trezos, Thanos
(235) Tucker, George K.
(236) VanTussenbrook, Scott V.
(237) Viceroy, Andrew D.
(238) Vix, Damon P.
(239) V-Doe1
(240) V-Doe2
(241) Ward, Don C.
(242) W-Doe1Parent1
(243) Wayne, Frank R.
(244) W-Doe 2
(245) Westphal, Karla
(246) Weyers, Joseph D.
(247) W-Doe1Parent2
(248) Wittmann, Dustin
(249) York II, Earl D.
(250) Young, Andrew M.
(251) Zehrer, Terrence
(252) Zerba, George W.
(253) Zerba, Mary P.
(254) Ziolkowski, Steven
(255) Zumach, Henry H.
b. Organizational Plaintiffs
(1) The American Humanist Association
(2) Freedom From Religion Foundation
ix
(3) Military Association of Atheists &
Freethinkers
(4) Minnesota Atheists
(5) Atheists for Human Rights
(6) Atheist Alliance International
(7) Atheists United
(8) New Orleans Secular Humanist
Association
(9) University Of Washington Secular
Student Union
(10) Seattle Atheists
(11) Atheists of Florida
(12) Central Minnesota Friends Free of
Theism
(13) Humanist Society of Santa Barbara
(14) Freethinkers of Colorado Springs, Inc.
(15) Atheists of Broward County, FL, Inc.
(16) Humanists of Washington
(17) Pennsylvania Nonbelievers
(18) Freethought Society of Greater
Philadelphia
(19) Boston Atheists
(2) Defendants
(1) Hon. John Roberts, Jr., Chief Justice of
the United States
(2) Other Unnamed Oath Administrator(s)2
(3) Presidential Inaugural Committee (“PIC”)
(4) Other PIC Defendants2
2 These defendants were named in the First Amended
Complaint (“FAC”). Inasmuch as the District Court dismissed
the case before ruling on Plaintiffs’ Motion for Leave to Submit
First Amended Complaint, these defendants were never served.
See App. 13-14 n.3.
x
(5) Joint Congressional Committee On
Inaugural Ceremonies (“JCCIC”)
(6) Senator Dianne Feinstein, Chairperson,
JCCIC
(7) Armed Forces Inaugural Committee
(“AFIC”)
(8) Major General Richard J. Rowe Jr.,
Chairperson, AFIC
(9) United States Secret Service (“USSS”)2
(10) Mark Sullivan, Director, USSS2
(11) United States Marshals Service
(“USMS”)2
(12) John F. Clark, Director, USMS2
(13) Other Governmental “Roe” Defendants2
(14) Rev. Rick Warren
(15) Rev. Joe Lowery
(16) Other Unnamed Clergy2
xi
CORPORATE DISCLOSURE STATEMENT
For none of the Organizational Plaintiffs is
there a parent or publicly held company owning 10%
or more of the corporation’s stock. No member of any
Organizational Plaintiff has issued shares or debt
securities to the public.
xii
TABLE OF CONTENTS
QUESTION PRESENTED .................................... i
LIST OF ALL PARTIES....................................... ii
(1) Plaintiffs ....................................................... ii
a. Individuals............................................... ii
b. Organizational Plaintiffs .................... ix
(2) Defendants ................................................... x
CORPORATE DISCLOSURE
STATEMENT .......................................................xii
TABLE OF AUTHORITIES ............................... xv
OPINION BELOW..................................................1
JURISDICTION .....................................................1
CONSTITUTIONAL PROVISIONS
INVOLVED..............................................................1
STATEMENT OF THE CASE...............................2
RULING OF THE COURT OF APPEALS..........4
REASONS FOR GRANTING THE
PETITION ...............................................................4
xiii
I. THIS COURT SHOULD RESOLVE
THE CIRCUIT SPLIT THAT
EXISTS REGARDING THE
REDRESSABILITY COMPONENT
OF STANDING AS IT INVOLVES
THE EXECUTIVE BRANCH.......................4
II. THE PANEL MAJORITY HAS
DECIDED AN IMPORTANT
QUESTION OF FEDERAL LAW
THAT APPEARS TO CONFLICT
WITH RELEVANT DECISIONS OF
THIS COURT, ALTHOUGH THAT
QUESTION HAS NOT BEEN, BUT
SHOULD BE, DEFINITIVELY
SETTLED BY THIS COURT .....................10
CONCLUSION ......................................................14
APPENDIX
Court of Appeals’ Opinion filed May
7, 2010 ................................................. App. 1
Court of Appeals’ Order denying
appellants’ petition for panel
rehearing filed June 29, 2010 ....... App. 43
Court of Appeals’ Order denying
appellants’ petition for rehearing
en banc filed June 29, 2010 ........... App. 45
District Court’s Dismissal Order filed
March 12, 2009 ................................. App. 47
xiv
TABLE OF AUTHORITIES
Cases
Chamber of Commerce of the United States v.
Reich, 74 F.3d 1322 (D.C. Cir. 1996)....................... 5
Clinton v. Jones, 520 U.S. 681 (1997) ...................... 13
Ex parte Levitt, 302 U.S. 633 (1937) ........................ 13
Franklin v. Massachusetts, 505 U.S. 788
(1992)...................................................... 5, 11, 12, 14
INS v. St. Cyr, 533 U.S. 289 (2001).......................... 14
Japan Whaling Assoc. v. American Cetacean
Soc., 478 U.S. 221 (1986) ......................................... 9
Kilbourn v. Thompson, 103 U.S. 168 (1881) ............ 12
Lujan v. Defenders of Wildlife, 504 U.S. 555
(1992)................................................................ 10, 12
Made in the USA Foundation v. United States,
242 F.3d 1300 (11th Cir. 2001)................................. 5
Mississippi v. Johnson, 71 U.S. 475 (1866) ............... 6
Newdow v. Roberts, 603 F.3d 1002 (D.C. Cir.
2010) ......................................................................... 1
Raines v. Byrd, 521 U.S. 811 (1997)........................... 9
Soucie v. David, 448 F.2d 1067 (D.C. Cir.
1971) ......................................................................... 7
Swan v. Clinton, 100 F.3d 973 (D.C. Cir. 1996) .... 5, 6
Talenti v. Clinton, 102 F.3d 573 (D.C. Cir.
1996) ......................................................................... 6
United States v. Nixon, 418 U.S. 683 (1974)............ 13
Utah v. Evans, 536 U.S. 452 (2002) ......................... 14
Valley Forge Christian College v. Americans
United for Separation of Church and State,
Inc., 453 U.S. 464 (1982)........................................ 10
Williams v. Fanning, 332 U.S. 490 (1947) ............... 13
Youngstown Sheet & Tube Co. v. Sawyer, 343
U.S. 579 (1952)....................................................... 13
xv
Statutes
10 U.S.C. § 950 (2006) ................................................ 8
12 U.S.C. § 2278 (2006) .............................................. 8
14 U.S.C. § 13 (2006) .................................................. 8
15 U.S.C. § 719 (2006) ................................................ 8
22 U.S.C. § 1502 (2006) .............................................. 8
24 U.S.C. § 81 (2006) .................................................. 8
26 U.S.C. § 7428 (2006) .............................................. 8
28 U.S.C. § 1254 (2006) .............................................. 1
28 U.S.C. § 1391 (2006) .............................................. 8
29 U.S.C. § 1612 (2006) .............................................. 8
30 U.S.C. § 1276 (2006) .............................................. 8
36 U.S.C. § 1202 (2006) .............................................. 9
37 U.S.C. § 251 (2006) ................................................ 8
42 U.S.C. § 423 (2006) ................................................ 9
42 U.S.C. § 7607 (2006) .............................................. 8
42 U.S.C. 1973 (2006) ................................................. 8
45 U.S.C. § 150 (2006) ................................................ 9
45 U.S.C. § 719 (2006) ................................................ 8
47 U.S.C. § 402 (2006) ................................................ 8
49 U.S.C. § 386 (2006) ................................................ 9
5 U.S.C. § 702 (2006) .................................................. 9
5 U.S.C. § 7123 (2006) ................................................ 8
5 U.S.C. §§ 500-504 (2006) ......................................... 9
7 U.S.C. § 1463 (2006) ................................................ 8
9 U.S.C. § 590 (2006) .................................................. 8
xvi
Other Authorities
Carl Tobias, Forum: Stuck Inside the Heartland with
Those Coastline Clerking Blues Again, 1995 Wis. L.
Rev. 919 (1995)......................................................... 7
Erwin Chemerinsky, Constitutional Law: Principles
and Policies (3rd ed. 2006)...................................... 10
John G. Roberts, Jr., What Makes the D.C. Circuit
Different? A Historical View, 92 Va. L. Rev. 375
(2006)........................................................................ 5
Louis Henkin, Symposium: The Bicentennial
Celebration of the Courts of the District of
Columbia Circuit: Two Hundred Years of
Constitutional Confrontations in the D.C. Courts,
90 Geo. L.J. 725 (2002) ............................................ 7
Patricia M. Wald, Women of the Courts
Symposium: Six Not-So-Easy Pieces: One Woman
Judge’s Journey to the Bench and Beyond, 36 U.
Tol. L. Rev. 979 (2005) ............................................. 7
Constitutional Provisions
U.S. Const. amend. I................................................... 1
U.S. Const. art II, § 2.................................................. 5
U.S. Const. art. III, § 2 ........................................... 1, 9
xvii
OPINION BELOW
The opinion of the United States Court of
Appeals for the District of Columbia is available at
Newdow v. Roberts, 603 F.3d 1002 (D.C. Cir. 2010). It
is reprinted in the attached Appendix. App. 1-42.
JURISDICTION
The United States Court of Appeals for the
District of Columbia Circuit filed its decision on May
7, 2010, and entered an order denying petitioners’
motion for rehearing on June 29, 2010. By writ of
certiorari, this Court has jurisdiction under 28
U.S.C. § 1254 (2006) (1) to review a court of appeals
decision.
CONSTITUTIONAL PROVISIONS INVOLVED
The merits issues in this case are based
primarily on the First Amendment’s Religion Clauses
(“Congress shall make no law respecting an
establishment of religion, or prohibiting the free
exercise thereof”). However, this Petition concerns
only the Court of Appeals’ ruling on standing, which
stems from Article III, Section 2 of the Constitution
of the United States (“The judicial Power shall
extend to all Cases, in Law and Equity, arising under
this Constitution, the Laws of the United States, and
Treaties made, or which shall be made, under their
Authority;--to all Cases affecting Ambassadors, other
public ministers and Consuls;--to all Cases of
admiralty and maritime Jurisdiction;--to
Controversies to which the United States shall be a
Party; …”).
1
STATEMENT OF THE CASE
Although this case involves a challenge to the
infusion of (Christian) monotheism into the nation’s
Presidential inaugural ceremonies, the panel
majority never reached the merits issue, dismissing
the case instead on standing grounds. Accordingly,
Petitioners need not burden the Court with details of
the merits issues in this Petition for Certiorari
challenging only the lack of standing ruling. Suffice
it to say that, every four years, the President3 makes
decisions as to how he4 would like the inauguration
to proceed, which individuals and entities (such as
defendants named in this case) carry out.
Those individuals and entities can be placed
into three categories. Only one individual falls into
the first category at each inaugural: the person
chosen by the President to administer the oath of
office. As a matter of tradition, that individual has
been the Chief Justice of the United States. Since
1932, each Chief Justice administering the
Constitutionally-prescribed presidential oath of office
has – with no lawful authority – altered it by
appending the purely religious phrase “so help me
God.”
3 In actuality, it may be a sitting President or a President-elect
who is in the position of responsibility. Although, theoretically,
that distinction might have ramifications in terms of the merits
issues, it has no bearing on the standing issue raised in this
Petition. For that reason, only “President” will be used
henceforth.
4 Because the English language lacks an epicene third person
singular pronoun and because, to date, only males have served
as President, the masculine third person singular pronoun will
be used in this Petition.
2
The second category is comprised of the clergy
Defendants who are invited to offer prayers to God
(i.e., invocations and benedictions) during the
inaugural exercises.
Lastly, there are those individuals and entities
entrusted with the logistics in terms of putting the
President’s desires into effect. In other words, these
defendants – listed in numbers (3)-(13) at page x,
supra – are like the “sound technician” alluded to in
the panel majority’s opinion, App. 18, who is
responsible for “turning the … microphone on.” Id.5
With their claims arising under the
Constitution of the United States, Petitioners filed
this lawsuit pursuant to 28 U.S.C. § 1331.
Jurisdiction was also felt to arise under 28 U.S.C. §
1346(a)(2). In their attempt to prevent Defendants
from bringing to fruition what they believe are
unconstitutional infusions of (Christian) monotheism
into the nation’s Presidential inaugural ceremonies,
Petitioners sought declaratory relief pursuant to 28
U.S.C. § 2201(a) and § 2202, and injunctive relief
pursuant to 28 U.S.C. §§ 1343(a)(3) and (a)(4).
5
Perhaps if the panel majority employed an analogy involving a harm the
judges sensed more acutely, the opinion’s flaws would be recognized.
Surely redressability would exist if an usher, following the President’s
orders, attempted to keep all Atheists (or all Jews or all whites or all
blacks) out of the first five hundred rows of seats.
3
RULING OF THE COURT OF APPEALS
In a split decision, the Court of Appeals held
that Petitioners lacked standing, giving three
reasons for reaching this conclusion.6 It is only the
third reason, with its frightening potential to
immunize from judicial review an extraordinary
array of executive branch actions, which Petitioners
seek to have reviewed.
According to the panel majority, Petitioners’
claims were not redressable because “[a] President
could simply find other willing assistants not subject
to the injunction to carry out his wishes.” App. 19. As
a result, “declaratory and injunctive relief against
the defendants actually named would not prevent the
claimed injury.” App. 17.
REASONS FOR GRANTING THE PETITION
I. THIS COURT SHOULD RESOLVE THE
CIRCUIT SPLIT THAT EXISTS
REGARDING THE REDRESSABILITY
COMPONENT OF STANDING AS IT
INVOLVES THE EXECUTIVE BRANCH
Prior to the opinion in the instant action,
redressability in the District of Columbia Circuit (as
6 The panel majority first found that Petitioners’ challenge to
the 2009 inauguration is moot because they “failed to appeal
the district court’s denial of their preliminary injunction
motion.” App. 12. It also found that Petitioners’ request for
relief against unnamed future defendants cannot be granted
since “a court will not entertain a suit unless the defendant has
been made a party by service of process.” App. 16.
4
it pertains to executive branch actions) was in accord
with the instructions of this Court. See e.g., Chamber
of Commerce of the United States v. Reich, 74 F.3d
1322, 1328 (D.C. Cir. 1996) (“That the ‘executive’s’
action here is essentially that of the President does
not insulate the entire executive branch from judicial
review.”); Swan v. Clinton, 100 F.3d 973, 976 n.1
(D.C. Cir. 1996) (“[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].”). The panel
majority, however, has essentially reversed this
approach.
In the other circuits, there appears to be a
dearth of cases dealing with this issue. Perhaps this
is because of “the D. C. Circuit’s unique character, as
a court with special responsibility to review legal
challenges to the conduct of the national
government.” John G. Roberts, Jr., What Makes the
D.C. Circuit Different? A Historical View, 92 Va. L.
Rev. 375, 389 (2006). In fact, Petitioners have found
only one on-point case, decided by the Eleventh
Circuit nearly a decade ago. In Made in the USA
Foundation v. United States, 242 F.3d 1300, 1310-11
(11th Cir. 2001), the constitutionality of the North
American Free Trade Agreement (“NAFTA”) (which
President Clinton signed into law without abiding by
the requirements of the Constitution’s Article II,
Section 2 “Treaty Clause”) was challenged. Standing
was at issue in that case, with special attention paid
to redressability vis-à-vis executive branch actions.
Citing Franklin v. Massachusetts, 505 U.S. 788
(1992), Swan v. Clinton, 100 F.3d 973 (D.C. Cir.
5
1996), and Mississippi v. Johnson, 71 U.S. 475
(1866), the Eleventh Circuit noted, “we believe that
even short of directly ordering the President to
terminate our nation’s participation in NAFTA, a
judicial order instructing subordinate executive
officials to cease their compliance with its provisions
would suffice for standing purposes.”
In contrast to the rarity of this question arising
in the other circuits, the D.C. Circuit appears to
encounter it relatively frequently. Never before,
however, has the Circuit concluded (as the panel
majority did here) that redressability is lacking
because the President can simply replace those
whom a court enjoins with other subordinates (who
would then do what that court had deemed
unconstitutional). To be sure, redressability may not
exist for other reasons. In Talenti v. Clinton, 102
F.3d 573 (D.C. Cir. 1996), for example, the Circuit
ruled that, since the President was specifically
authorized, by statute, to act in a manner that would
not have provided the plaintiffs with their desired
relief, there was no redressability. The Circuit did
not, however, even remotely suggest that declaratory
or injunctive relief against lower level executive
branch officials was unavailing because the
President could simply find others to disregard the
judicial mandate.
Swan v. Clinton, supra, was another D.C.
Circuit case dealing with redressability in regard to
the executive branch, with the issue involving an
action of the President himself. The panel there
expressly noted that “any conflict between the desire
to avoid confronting the elected head of a coequal
branch of government and to ensure the rule of law
6
can be successfully bypassed, because the injury at
issue can be rectified by injunctive relief against
subordinate officials.” Id. at 978. This followed the
same approach seen in Soucie v. David, 448 F.2d
1067 (D.C. Cir. 1971): “[C]ourts have power to compel
subordinate executive officials to disobey illegal
Presidential commands.” Id. at 1072 n.12.
Obviously, the holding in the instant case is
completely contrary to the holdings in the cases just
mentioned. The argument that a President can deal
with declaratory and/or injunctive relief against
subordinate officials by “find[ing] other willing
assistants not subject to the injunction to carry out
his wishes,” App. 19, could have been made before.
Yet, until the instant case, that claim was never even
alluded to, despite myriad on-point situations.
With “[t]he Court of Appeals for the District of
Columbia Circuit ha[ving] been acclaimed as the
second most important court in the country,” Louis
Henkin, Symposium: The Bicentennial Celebration of
the Courts of the District of Columbia Circuit: Two
Hundred Years of Constitutional Confrontations in
the D.C. Courts, 90 Geo. L.J. 725, 725 (2002),7 it is
essential that this critical error in the case at bar be
remedied. After all, “Washington, D.C. is the political
center of the country,” Carl Tobias, Forum: Stuck
Inside the Heartland with Those Coastline Clerking
Blues Again, 1995 Wis. L. Rev. 919, 925 (1995), and
the D.C. Circuit’s physical and legal connection with
the nation’s capital inevitably guides the rest of the
7
See also Patricia M. Wald, Women of the Courts
Symposium: Six Not-So-Easy Pieces: One Woman Judge’s
Journey to the Bench and Beyond, 36 U. Tol. L. Rev. 979, 987
(2005).
7
country (in a manner second only to this Court) in
the appropriate relationship between the judiciary
and the executive branch.
Moreover, due to the venue provisions of 28
U.S.C. § 1391(b) (2006), cases against the President
and his subordinates often end up being heard by the
D.C. Circuit. Similarly, many statutes grant
jurisdiction exclusively to the D.C. Circuit’s courts,
thus placing the actions of many executive branch
agencies under its auspices as well. See, e.g., 10
U.S.C. § 950g (2006) (military commissions); 12
U.S.C. § 2278a-3(b) (2006) (Farm Credit System
Assistance Board); 14 U.S.C. § 13 (2006) (Federal
Aviation Administration Civil Penalty Actions); 15
U.S.C. § 719h (2006) (Alaska Natural Gas
Transportation Act); 24 U.S.C. § 81 (2006) (Housing
and Urban Development Review of Actions); 30
U.S.C. § 1276 (2006) (Abandoned Mine Land
Reclamation Program); 37 U.S.C. § 251 (2006)
(Patents, Trademarks, and Copyrights Arbitration
Royalty Panels); 42 U.S.C. 1973c (2006) (Voting
Rights Act); 42 U.S.C. § 7607 (2006) (Clean Air Act);
45 U.S.C. § 719 (2006) (United States Railway
Association); 47 U.S.C. § 402 (2006) (appeals from
orders of Federal Communications Commission).
Additionally, the D.C. Circuit also often has
concurrent jurisdiction. See, e.g., 5 U.S.C. § 7123
(2006) (decisions of the Federal Labor Relations
Authority); 7 U.S.C. § 1463 (2006) (Agriculture
Tobacco Transition Assessments); 9 U.S.C. § 590
(2006) (Egg Products Inspection Act); 22 U.S.C. §
1502 (2006) (Foreign Relations Records); 26 U.S.C. §
7428 (2006) (Internal Revenue Service 501(c)(3)
declarations); 29 U.S.C. § 1612 (2006) (Labor
8
Sunshine Act Regulations); 36 U.S.C. § 1202 (2006)
(Parks, Forests, and Public Property Request to
Amend Records); 42 U.S.C. § 423 (2006) (Public
Health Medicare Prescription Drug Benefits); 45
U.S.C. § 150 (2006) (CMS Enforcement in Group and
Individual Insurance Markets); 49 U.S.C. § 386
(2006) (Transportation proceedings).
These provisions place numerous executive
branch agencies within the D.C. Circuit’s
jurisdiction. Under the panel majority’s theory, that
jurisdiction would be largely sapped of consequence,
since the President could appoint other subordinate
officials and have them ignore the judiciary’s
conclusions. In fact, it would appear that the
provisions of the Administrative Procedures Act
(“APA”), 5 U.S.C. §§ 500-504 (2006), would be voided
to a great degree. To be sure, the right of judicial
review under the APA is granted by statute. 5 U.S.C.
§ 702 (2006). However, “Congress cannot erase
Article III’s standing requirements by statutorily
granting the right to sue to a plaintiff who would not
otherwise have standing.” Raines v. Byrd, 521 U.S.
811, 820 n.3 (1997). As this Court’s current case law
indicates, those requirements – including the
requirement of redressability – are met, even when
presidential acts are involved. See, e.g., Japan
Whaling Assoc. v. American Cetacean Soc., 478 U.S.
221 (1986) (finding that standing existed under the
APA, even when the Secretary of Commerce (an
executive branch official) is clearly effectuating the
policy choices of the President).
9
II. THE PANEL MAJORITY HAS DECIDED AN
IMPORTANT QUESTION OF FEDERAL
LAW THAT APPEARS TO CONFLICT WITH
RELEVANT DECISIONS OF THIS COURT,
ALTHOUGH THAT QUESTION HAS NOT
BEEN, BUT SHOULD BE, DEFINITIVELY
SETTLED BY THIS COURT
“[T]he concept of ‘Art. III standing’ has not
been defined with complete consistency.” Valley
Forge Christian College v. Americans United for
Separation of Church and State, Inc., 453 U.S. 464,
475 (1982). In fact, “[s]tanding frequently has been
identified by both justices and commentators as one
of the most confused areas of the law,”8 often with
“seeming incoherence.”9 By accepting this case, the
Court will be able to help remedy this confusion in a
focused manner, by limiting the discussion to one,
well-circumscribed standing issue: redressability in
the particular context of executive branch actions.
On this issue, a consensus among the justices is quite
likely, which will provide the lower courts with much
needed guidance.
That the lower courts need this guidance is
perhaps best seen by considering the case with which
the panel majority began its standing analysis:
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).
Although five justices joined Justice Scalia in the
main portions of that seminal standing opinion, only
three justices joined him in his redressability ruling.
8 Erwin Chemerinsky, Constitutional Law: Principles and
Policies (3rd ed. 2006) at 60.
9 Id.
10
Two weeks later the Court decided another
case where redressability – this time specifically
against the President – was considered. Again, there
was a consensus of only four justices in regard to
that standing component:
[W]e may assume it is substantially
likely that the President and other
executive and congressional officials
would abide by an 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.
Franklin v. Massachusetts, 505 U.S. 788, 803 (1992).
Although the panel majority here argued that “that
portion of the opinion did not garner the support of a
majority of the Supreme Court and is therefore not
controlling on this court,” App. 21, the fact is that
only one justice voiced any disagreement about
standing, and that justice specifically noted:
Although only a plurality of the
Court joins that portion of JUSTICE
O’CONNOR’s opinion which finds
standing (Part III), I must conclude
that the Court finds standing since
eight Justices join Part IV of the
Court’s opinion discussing the merits
of appellees’ constitutional claims.
11
505 U.S. at 824 n.1 (Scalia, J., concurring in part and
concurring in the judgment). Moreover, Justice
Scalia’s 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. at 826.
“Review of the legality of Presidential action,” he
continued, “can ordinarily be obtained in a suit
seeking to enjoin the officers who attempt to enforce
the President’s directive.” Id. at 828.
Thus, the panel majority has set as D.C. Circuit
precedent an important redressability policy that
appears to have this Court’s standing jurisprudence
completely backward. At least five – and perhaps all
nine – of the 1992 justices would have found
redressability in the circumstances found in this
case. Accordingly, the panel majority’s “invitation of
executive lawlessness,” Lujan, 504 U.S. at 601
(Blackmun, J., dissenting), ought to be reversed.
The idea that redressability exists when the
President’s actions abrogate fundamental rights is
not a novel wrinkle in this Court’s jurisprudence.
Since Chief Justice Marshall famously wrote that
“[t]he 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,” Marbury v.
Madison, 5 U.S. 137, 163 (1803), judicial review of
presidential decision-making has been recognized.
Thus, in Kilbourn v. Thompson, 103 U.S. 168, 199
(1881) the Court wrote:
12
[L]iving under a written
constitution, … it is the province and
duty 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.
Throughout the twentieth century, as well, this
view has been steadfastly maintained. See, e.g., Ex
parte Levitt, 302 U.S. 633 (1937) (noting that “a
private individual [may] invoke the judicial power to
determine the validity of executive or legislative
action”); Williams v. Fanning, 332 U.S. 490, 494
(1947) (finding the existence of redressability “if the
decree which is entered will effectively grant the
relief desired by expending itself on the subordinate
official who is before the court”); Youngstown Sheet &
Tube Co. v. Sawyer, 343 U.S. 579 (1952) (issuing a
declaratory judgment (and upholding the District
Court’s preliminary injunction) that the President
violated the constitution by seizing private steel
mills). 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). As the Court succinctly stated, “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).
13
No diminution of this redressability approach
has taken place since the millennium, either.
Although the context of habeas relief is substantially
different from the request for religious neutrality
that forms the gravamen of the complaint here, “the
historical use of habeas corpus to remedy unlawful
executive action,” INS v. St. Cyr, 533 U.S. 289, 303
(2001), is founded on the same principles. Those
principles were reinforced once more in Utah v.
Evans, 536 U.S. 452, 460 (2002) (citing Franklin with
approval).
In short, for more than two hundred years, the
Court has upheld the same idea:
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.
Marbury v. Madison, 5 U.S. 137, 163 (1803). That
“high appellation” ought not to remain undeserved in
the D.C. Circuit.
CONCLUSION
Petitioners respectfully petition for a writ of
certiorari to review the judgment of the United
States Court of Appeals for the District of Columbia
Circuit in this case.
14
Respectfully submitted,
Michael Newdow
Counsel of Record for Petitio


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