| FORM 990-EZ, PART I, LINE 16 - OTHER EXPENSES |
DESCRIPTION: LITIGATION ACTIVITIES. AMOUNT: 32,066. DESCRIPTION: LEGAL DEFENSE INFORMATION SERVICES AND REPORTS. AMOUNT: 650. DESCRIPTION: MANAGEMENT AND GENERAL OPERATING EXPENSES. AMOUNT: 2,030. DESCRIPTION: RESOURCE DEVELOPMENT. AMOUNT: 3,500. TOTAL TO FORM 990-EZ, LINE 16: 38,246. |
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MARYLAND SHALL ISSUE, INC. V. MOORE, CASE NO. 24-373. AMICUS BRIEF IN SUPPORT OF PETITION FILED NOVEMBER 1, 2024. SEE DISCUSSION OF THIS CASE IN THE U.S. COURTS OF APPEALS SECTION (BELOW). THE SUPREME COURT DENIED THE PETITION ON JANUARY 13, 2025. |
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SNOPE V. BROWN, CASE NO. 24-203. AMICUS BRIEF IN SUPPORT OF PETITION FILED SEPTEMBER 23, 2024. (DAVID SNOPE IS THE LEAD PETITIONER BECAUSE DOMINIC BIANCHI, THE LEAD PLAINTIFF-APPELLANT BELOW, NO LONGER LIVES IN MARYLAND.) THIS IS A CHALLENGE TO THE MARYLAND "FIREARMS SAFETY ACT OF 2013" ("THE ACT"), WHICH EFFECTIVELY BANNED PRIVATE POSSESSION OF MANY SEMIAUTOMATIC WEAPONS IN THE STATE. PLAINTIFFS PREVIOUSLY FILED A PETITION FOR WRIT OF CERTIORARI WITH THE SUPREME COURT, BUT THE CASE WAS VACATED AND REMANDED TO THE U.S. COURT OF APPEALS FOR THE FOURTH CIRCUIT FOR FURTHER CONSIDERATION UNDER THE RECENTLY DECIDED N.Y. STATE RIFLE & PISTOL ASS'N V. BRUEN, 597 U.S. 1 (2022). UPON REHEARING EN BANC, THE FOURTH CIRCUIT UPHELD THE ACT, OVER A FIVE JUDGE DISSENT, CONCLUDING THAT BRUEN DID NOT FORECLOSE LEGISLATIVE DETERMINATIONS THAT "ASSAULT WEAPONS" ARE NOT PROTECTED ARMS. SEE BIANCHI V. BROWN, 2024 U.S. APP. LEXIS 19624 AT *4-5 (4TH CIR. 2024). INSTEAD OF APPLYING THE PLAIN TEXT OF THE SECOND AMENDMENT, THE FOURTH CIRCUIT INTERPRETED THE SECOND AMENDMENT AGAINST ITS "HISTORICAL AND LEGAL BACKDROP," A PHRASE THAT DOES NOT APPEAR IN BRUEN, TO UPHOLD MARYLAND'S SUPPOSED RIGHT TO CRIMINALIZE POSSESSION OF SEMIAUTOMATIC RIFLES, HANDGUNS, AND SHOTGUNS ARTIFICIALLY CHARACTERIZED AS "ASSAULT WEAPONS", WHICH ARE AT CORE ORDINARY SEMIAUTOMATIC WEAPONS AND ARE "COMMONLY USED," IF NOT UBIQUITOUS AMONG THE GUN OWNING PUBLIC, EXCEPT WHERE BANNED BY A FEW STATES. THIS APPROACH ALLOWED MARYLAND TO PREVAIL WITHOUT PROVING THE EXISTENCE OF ANY RELEVANT HISTORICAL ANALOGUES THAT SUPPORT ITS LAW. OUR BRIEF ARGUES, AMONG OTHER THINGS, THAT MILITARY TYPE "ARMS" ARE PROTECTED BECAUSE THE FRAMERS WANTED TO PROTECT THE SORT OF WEAPONS WHICH THEY HAD JUST USED TO WIN A WAR AGAINST THE BRITISH. INDEED, IT WAS THOSE ARMS WHICH THE FRAMERS OF THE SECOND AMENDMENT BELIEVED WERE "NECESSARY TO THE SECURITY OF A FREE STATE" SHOULD THE PEOPLE EVER NEED TO RESIST TYRANNY AND RECONSTITUTE THEIR GOVERNMENT. WE GIVE EXAMPLES OF FREED BLACK AMERICANS AND KOREAN AMERICANS DEFENDING THEIR COMMUNITIES WHEN LAW ENFORCEMENT FAILED TO DO SO. THE CASE WAS FULLY BRIEFED AS OF NOVEMBER 25, 2024, AND WE ARE AWAITING THE COURT'S DECISION WHETHER TO GRANT THE PETITION. |
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LITTLE, GOVERNOR OF IDAHO V. HECOX, CASE NO. 24-38. AMICUS BRIEF IN SUPPORT OF PETITION FILED AUGUST 14, 2024. THIS CASE INVOLVES IDAHO'S FAIRNESS IN WOMEN'S SPORTS ACT, IDAHO CODE 33-6201-06 (2020), WHICH MANDATES THAT ONLY BIOLOGICAL FEMALES MAY COMPETE ON INTERSCHOLASTIC WOMEN'S AND GIRLS' TEAMS IN IDAHO STATE SCHOOLS, RESTRICTING BIOLOGICAL MALES TO MEN'S AND BOYS' TEAMS AND TEAMS IN DESIGNATED MIXED SPORTS, THUS PROTECTING GIRLS' SPORTS FROM BIOLOGICAL MALES WHO CLAIM TO IDENTIFY AS FEMALE. THE LAW WAS CHALLENGED BY A BIOLOGICAL MALE WISHING TO TRY OUT FOR THE WOMEN'S CROSS COUNTRY AND TRACK TEAMS AT BOISE STATE UNIVERSITY. THE U.S. DISTRICT COURT FOR THE DISTRICT OF IDAHO ENJOINED THE ACT, DECLARING IT VIOLATED THE FOURTEENTH AMENDMENT'S EQUAL PROTECTION GUARANTEE. HECOX V. LITTLE, 479 F. SUPP. 3D 930, 988-989 (D. ID. 2020) ("HECOX I"). THE NINTH CIRCUIT AFFIRMED, HECOX V. LITTLE, 79 F.4TH 1009 (9TH CIR. 2023), BUT AFTER THE SUPREME COURT'S RULING IN LABRADOR V. POE, 144 S. CT. 921 (2024), THE NINTH CIRCUIT ISSUED AN AMENDED OPINION, HECOX V. LITTLE, 2024 U.S. APP. LEXIS 13929 (2024) ("HECOX II"), REMANDING THE CASE AND STATING THAT "THE SCOPE OF THE INJUNCTION IS NOT CLEAR. . . . [T]HE COURT'S ORDER DOES NOT SPECIFY WHETHER ENFORCEMENT OF THE ACT IS ENJOINED IN WHOLE OR IN PART. . . . ON REMAND, THE DISTRICT COURT SHOULD TAILOR THE INJUNCTION TO PROVIDE . . . SPECIFICITY." HECOX II AT *60-61. THE NINTH CIRCUIT THEN DENIED PETITIONS FOR REHEARING EN BANC AS MOOT. HECOX V. LITTLE, 2024 U.S. APP. LEXIS 14077 (9TH CIR. 2024). OUR BRIEF ARGUES THAT THE NINTH CIRCUIT GROUNDED ITS OPINION ON THE ERRONEOUS NOTION THAT THE NEW CONCEPT OF TRANSGENDERISM MUST DISPLACE THE CONCEPT OF BIOLOGICAL SEX. IT VIEWS ALL DISTINCTIONS IN LAW BETWEEN MALES AND FEMALES ARE INHERENTLY SUSPECT IF THEY ARE NOT SUBORDINATED TO TRANSGENDER IDENTITY. WE ARGUE THAT EVEN WHERE SPECIAL RIGHTS HAVE BEEN GRANTED TO HOMOSEXUALS, THAT HAS BEEN BASED ON THE NOTION THAT HOMOSEXUALITY IS AN INHERENT AND IMMUTABLE CHARACTERISTIC LIKE RACE. IN STARK CONTRAST, TRANSGENDERISM IS BASED ON "FEELINGS AND HOW ONE CURRENTLY "IDENTIFIES"--THE POLAR OPPOSITE OF AN IMMUTABLE CHARACTERISTIC. WE ALSO ARGUE THAT NOTHING IS "ARBITRARY OR IRRATIONAL" ABOUT IDAHO APPLYING BIOLOGICAL DISTINCTIONS BETWEEN MEN AND WOMEN. A LAW AGAINST MALES BEING ALLOWED IN SITUATIONS WHERE THEY CAN HARM FEMALES IS AN EFFORT TO PROTECT FEMALES, NOT TO DISCRIMINATE AGAINST MALES. THIS CASE WAS FULLY BRIEFED AS OF OCTOBER 29, 2024, AND WE ARE AWAITING THE COURT'S DECISION WHETHER TO GRANT THE PETITION. |
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CROUCH V. ANDERSON, CASE NO. 24-90. AMICUS BRIEF IN SUPPORT OF PETITION FILED AUGUST 28, 2024. WEST VIRGINIA PROHIBITED ITS STATE MEDICAID PROGRAM FROM PROVIDING COVERAGE FOR CERTAIN SEX CHANGE SURGERIES. THE FOURTH CIRCUIT EN BANC DECIDED THIS CASE IN THE SAME OPINION AS FOLWELL V. KADELL, HOLDING THAT WEST VIRGINIA'S LAW VIOLATES THE EQUAL PROTECTION CLAUSE, AS WELL AS THE MEDICAID ACT AND THE AFFORDABLE CARE ACT. SEE KADEL V. FOLWELL, 100 F.4TH 122 (4TH CIR. 2024). OUR AMICUS BRIEF URGES THE SUPREME COURT TO REVIEW A FOURTH CIRCUIT DECISION ORDERING WEST VIRGINIA MEDICAID TO PAY FOR GENDER TRANSITION PROCEDURES. THE OPINION WAS BASED ON MODERN TRANSGENDER IDEOLOGY, FINDING NO DIFFERENCE BETWEEN REMOVAL OF CANCEROUS TISSUE AND REMOVING HEALTHY BODY PARTS. THE FOURTH CIRCUIT BASED ITS DECISION ON ITS GRIMM V. GLOUCESTER CO. SCHOOL BOARD CASE, WHICH HELD THAT A GIRL SUFFERING FROM "GENDER DYSPHORIA" WAS ENTITLED TO USE THE BOYS' RESTROOM. NOW THAT SEEMINGLY INNOCUOUS (AND ERRONEOUS) PRECEDENT IS BEING BADLY MISUSED. THE CIRCUIT COURT RELIED ON STANDARDS OF CARE OF THE WORLD PROFESSIONAL ASSOCIATION FOR TRANSGENDER HEALTH ("WPATH"), BUT RECENTLY AN ABUNDANCE OF EVIDENCE HAS SURFACED THAT WPATH IS AN ADVOCACY GROUP, NOT AN INDEPENDENT MEDICAL ORGANIZATION. EVEN THE AMERICAN SOCIETY OF PLASTIC SURGEONS RESCINDED ITS SUPPORT FOR AND IS REASSESSING ITS POSITION ON TRANSGENDER SURGERY. THERE WAS NO JUSTIFICATION TO EXPAND THE EQUAL PROTECTION CLAUSE TO REQUIRE DANGEROUS AND IRREVERSIBLE PROCEDURES TO MAKE PERSONS SUFFERING A TYPE OF MENTAL DISORDER FEEL BETTER ABOUT THEMSELVES. THIS CASE WAS FULLY BRIEFED AS OF NOVEMBER 12, 2024, AND WE ARE AWAITING THE COURT'S DECISION WHETHER TO GRANT THE PETITION. |
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FOLWELL V. KADELL, CASE NO. 24-99. NORTH CAROLINA'S HEALTH PLAN FOR STATE EMPLOYEES AND TEACHERS DOES NOT PROVIDE COVERAGE FOR SEX CHANGE SURGERIES. THIS CASE WAS DECIDED WITH CROUCH V. ANDERSON, BY THE FOURTH CIRCUIT IN ONE OPINION. KADEL V. FOLWELL, 100 F.4TH 122 (4TH CIR. 2024). THE COURT HELD THAT THE NORTH CAROLINA HEALTH PLAN VIOLATES THE EQUAL PROTECTION CLAUSE. WE DID NOT FILE AN AMICUS BRIEF IN THIS CASE, BELIEVING THAT OUR BRIEF IN CROUCH WAS SUFFICIENT. THIS CASE WAS FULLY BRIEFED AS OF NOVEMBER 13, 2024, AND WE ARE AWAITING THE COURT'S DECISION WHETHER TO GRANT THE PETITION. |
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STATE OF WEST VIRGINIA V. B.P.J., CASE NO. 24-43. AMICUS BRIEF IN SUPPORT OF PETITION FILED AUGUST 15, 2024. SEE HISTORY OF THIS CASE REVIEWED UNDER U.S. COURTS OF APPEALS SECTION BELOW. WEST VIRGINIA FILED A PETITION FOR WRIT OF CERTIORARI ON JULY 11, 2024, ASKING THE SUPREME COURT TO DECIDE TWO ISSUES: (1) "WHETHER TITLE IX PREVENTS A STATE FROM CONSISTENTLY DESIGNATING GIRLS AND BOYS' SPORTS TEAMS BASED ON BIOLOGICAL SEX DETERMINED AT BIRTH; AND (2) "WHETHER THE EQUAL PROTECTION CLAUSE PREVENTS A STATE FROM OFFERING SEPARATE BOYS AND GIRLS' SPORTS TEAMS BASED ON BIOLOGICAL SEX DETERMINED AT BIRTH." OUR BRIEF POINTS OUT, "ACTUALLY, SEX IS DETERMINED BEFORE BIRTH AT CONCEPTION. . . . IT CAN BE ESTABLISHED GENETICALLY. IT IS IMMUTABLE." BR. AT 7, N.3. WE SHOW THAT RECENT LEGAL DEVELOPMENTS ARE "BASED ON THE STANDARDS OF CARE PUBLISHED BY THE WORLD PROFESSIONAL ASSOCIATION FOR TRANSGENDER HEALTH ("WPATH"). DESPITE ITS NOBLE-SOUNDING NAME, THAT ORGANIZATION HAS BEEN EXPOSED AS HAVING BEEN MORE A POLITICAL PLAYER IN THE TRANSGENDER WARS THAN A NEUTRAL MEDICAL ORGANIZATION FOCUSED ON ACTUAL HEALTH ISSUES." BR. AT 4. WE DEMONSTRATE THAT WPATH IS HIGHLY POLITICIZED AND HEAVILY FUNDED BY PERSONS PUSHING TRANSGENDERISM RATHER THAN AN OBJECTIVE MEDICAL STANDARDS ORGANIZATION. BR. AT 12-18. IT REMOVED MINIMUM AGE LIMITS FOR TRANSGENDER SURGERY AT THE BEHEST OF THE BIDEN ADMINISTRATION. BR. AT 19-20. NOT A SINGLE DRAFTING COMMITTEE MEMBER WANTED TO REMOVE THE MINIMUM AGE LIMITS. BR. AT 20. WE ALSO DEMONSTRATE THAT, RATHER THAN BEING A NEW PHENOMENON, TRANSGENDERISM HAS ANCIENT SPIRITUAL ROOTS AND TYPICALLY MANIFESTS ITSELF IN LATE PHASES OF CULTURE, AS RELIGIOUS, POLITICAL, AND FAMILY TRADITIONS WEAKEN AND CIVILIZATIONS BEGIN TO DECLINE. BR. AT 23-24. THIS CASE WAS FULLY BRIEFED AS OF OCTOBER 29, 2024, AND WE ARE AWAITING THE COURT'S DECISION WHETHER TO GRANT THE PETITION. |
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PARENTS PROTECTING OUR CHILDREN, UA V. EAU CLAIRE AREA SCHOOL DISTRICT, WISCONSIN, CASE NO. 23-1280. AMICUS BRIEF IN SUPPORT OF PETITION FILED JULY 8, 2024. IN THIS CASE, WE SUPPORT THE RIGHT OF PARENTS TO BE INVOLVED IN ANY TRANSGENDER COUNSELING OR DECISION-MAKING INVOLVING THEIR CHILDREN. THE SCHOOL POLICY IN THIS CASE CUTS PARENTS OUT, AND THE SCHOOL HELPS CHILDREN "TRANSITION" BEHIND THEIR PARENTS BACKS. THE U.S. DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN DISMISSED THE CASE ON GROUNDS THAT PLAINTIFF PARENTS ORGANIZATION TO PROTECT CHILDREN DID NOT HAVE STANDING TO CHALLENGE THE SCHOOL POLICY. THE U.S. COURT OF APPEALS FOR THE SEVENTH CIRCUIT AFFIRMED. THE PARENTS ORGANIZATION THEN FILED A PETITION FOR A WRIT OF CERTIORARI WITH THE U.S. SUPREME COURT URGING IT TO TAKE THIS CASE TO ESTABLISH THAT PARENTS SUBJECT TO SUCH POLICIES HAVE STANDING TO CHALLENGE THEM. OUR BRIEF ARGUES THAT THE RIGHTS OF PARENTS TO DIRECT THE UPBRINGING OF THEIR CHILDREN ARE "PERHAPS THE OLDEST OF THE FUNDAMENTAL LIBERTY INTERESTS RECOGNIZED BY THIS COURT." TROXEL V. GRANVILLE, 530 U.S. 57, 65 (2000) (PLURALITY OP.). THESE RIGHTS HAVE LONG SINCE BEEN "ESTABLISHED BEYOND DEBATE." WISCONSIN V. YODER, 406 U.S. 205, 232 (1972). WE ARGUE THAT, AT A MINIMUM, PETITIONER HAS SHOWN THE RISK OF REAL HARM TO A STATUTORILY PROTECTED INTEREST (THE RIGHT OF PARENTS TO INSPECT THE SCHOOL RECORDS OF THEIR CHILDREN PER 20 U.S.C. 1232(G) OF THE FAMILY EDUCATIONAL RIGHTS AND PRIVACY ACT) AND THUS SATISFIED THE REQUIREMENT OF CONCRETENESS TO HAVE STANDING. THE COURT DENIED THE PETITION ON DECEMBER 9, 2024, ENDING THE CASE. JUSTICE KAVANAUGH WOULD HAVE GRANTED THE PETITION. JUSTICE ALITO, WITH WHOM JUSTICE THOMAS JOINED, DISSENTED FROM THE DENIAL OF CERTIORARI, EXPRESSING THE CONCERN THAT "SOME FEDERAL COURTS ARE SUCCUMBING TO THE TEMPTATION TO USE THE DOCTRINE OF ARTICLE III STANDING AS A WAY OF AVOIDING SOME PARTICULARLY CONTENTIOUS CONSTITUTIONAL QUESTIONS." |
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FREE SPEECH COALITION, INC. V. PAXTON, CASE NO. 23-1122, FORMERLY FREE SPEECH COALITION, INC. V. COLMENERO, FIFTH CIRCUIT NO. 23-50627. MERITS AMICUS BRIEF FILED NOVEMBER 22, 2024. WE ORIGINALLY FILED AN AMICUS BRIEF IN THE U.S. COURT OF APPEALS FOR THE FIFTH CIRCUIT ON SEPTEMBER 25, 2023, SUPPORTING THE VALIDITY OF TEXAS' LAW REQUIRING PROTECTIONS TO KEEP MINORS FROM ACCESSING ONLINE PORN. THE U.S. DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS, AUSTIN DIVISION, HAD HELD THE STATUTE UNCONSTITUTIONAL UNDER THE FIRST AMENDMENT TO THE U.S. CONSTITUTION, CONCLUDING THAT PROTECTING MINORS FROM PORNOGRAPHY "IS NOT ENOUGH FOR A LAW TO SURVIVE STRICT SCRUTINY," A JUDICIALLY CREATED BALANCING TEST THAT OFTEN LEADS JUDGES TO DECLARE LAWS UNCONSTITUTIONAL. THE FIFTH CIRCUIT ISSUED A DECISION ON MARCH 7, 2024, UPHOLDING THE AGE VERIFICATION REQUIREMENT AND DISSOLVING THE INJUNCTION AS TO THAT, BUT AFFIRMING THE INJUNCTION AS TO HEALTH WARNINGS. OUR BRIEF AT THE FIFTH CIRCUIT PROVIDED SOME "MISSING BACKGROUND TO REVEAL HOW WE HAVE COME TO PRIZE ADULT ACCESS TO PORNOGRAPHY SO HIGHLY THAT FEDERAL COURTS ARE WILLING TO MISUSE THE FIRST AMENDMENT TO OVERRIDE STATE POLICE POWER, ALL WHILE KNOWING THAT THEIR RULINGS WILL HARM OUR CHILDREN." AMICUS BRIEF, P. 10. FREE SPEECH COALITION, INC. FILED A PETITION FOR A WRIT OF CERTIORARI WITH THE U.S. SUPREME COURT ON APRIL 12, 2024, AND APPLIED FOR A STAY OF THE FIFTH CIRCUIT DECISION REGARDING THE AGE VERIFICATION REQUIREMENT, WHICH THE COURT DENIED ON APRIL 30, 2024. THE SUPREME COURT GRANTED THE CERT PETITION ON JULY 2, 2024. OUR MERITS AMICUS BRIEF IN THE SUPREME COURT MADE SUBSTANTIALLY THE SAME ARGUMENTS WE MADE AT THE FIFTH CIRCUIT. ORAL ARGUMENT WAS HELD ON JANUARY 15, 2025. WE AWAIT A DECISION. |
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TRUMP V. ANDERSON, CASE NO. 23-719. MERITS AMICUS BRIEF FILED JANUARY 18, 2024. OUR AMICUS BRIEF OPPOSED THE EFFORT TO REMOVE PRESIDENT TRUMP FROM THE PRIMARY BALLOT IN COLORADO. THE CHALLENGERS CLAIMED THAT TRUMP ENGAGED IN "INSURRECTION AND THUS WAS INELIGIBLE TO BE PRESIDENT UNDER SECTION 3 OF THE FOURTEENTH AMENDMENT, AND THE COLORADO SUPREME COURT AGREED IN A 4-3 DECISION. THE CENTRAL ISSUE HERE AND IN SOME 60 OTHER BALLOT CHALLENGES WAS WHETHER SECTION 3 OF THE FOURTEENTH AMENDMENT APPLIED AND, IF SO, WHETHER PRESIDENT TRUMP ENGAGED IN AN INSURRECTION AGAINST THE UNITED STATES. OUR BRIEF TOOK THE POSITION THAT SECTION 3 DOES NOT APPLY TO THE OFFICE OF THE PRESIDENT AND THAT THE EVENTS OF JANUARY 6 DID NOT CONSTITUTE AN INSURRECTION. ON MARCH 4, 2024, THE SUPREME COURT ISSUED A 9-0 DECISION HOLDING THAT THE STATES HAVE NO ROLE IN DETERMINING WHETHER A CANDIDATE FOR FEDERAL OFFICE IS DISQUALIFIED FROM THE BALLOT UNDER SECTION 3. THIS WAS A PER CURIAM OPINION, MEANING THAT THE JUSTICES AGREED ON THE RESULT, BUT NOT ON THE REASONING. NONETHELESS, FIVE JUSTICES AGREED ON THE MAJORITY OPINION. |
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CONSUMER FINANCIAL PROTECTION BUREAU V. COMMUNITY FINANCIAL SERVICES ASSOCIATION OF AMERICA, LTD, CASE NO. 22-448. MERITS AMICUS BRIEF FILED ON JULY 10, 2023. THIS CASE CHALLENGED THE CFPB'S INDEPENDENCE FROM CONGRESSIONAL OVERSIGHT THROUGH THE APPROPRIATIONS PROCESS IN VIOLATION OF ART. I, 9, CL. 7 OF THE U.S. CONSTITUTION. THE CFPB DRAWS ITS OPERATING FUNDS FROM THE FEDERAL RESERVE, WHICH IS ALSO ESTABLISHED TO OPERATE INDEPENDENTLY OF CONGRESS. THE CFPB IS CHARGED WITH "IMPLEMENT[ING] AND "ENFORCE[ING]" CONSUMER PROTECTION LAWS TO "ENSUR[E] THAT ALL CONSUMERS HAVE ACCESS TO MARKETS FOR CONSUMER FINANCIAL PRODUCTS AND SERVICES" THAT "ARE FAIR, TRANSPARENT, AND COMPETITIVE." 12 U.S.C. 5511(A). THE U.S. COURT OF APPEALS FOR THE FIFTH CIRCUIT HELD THE CFPB'S FUNDING MECHANISM VIOLATED THE APPROPRIATIONS CLAUSE OF THE CONSTITUTION. CMTY. FIN. SERVS. ASS'N OF AM. V. CONSUMER FIN. PROT. BUREAU, 51 F.4TH 616, 638 (5TH CIR. 2022). THE CFPB FILED A PETITION FOR A WRIT OF CERTIORARI IN THE U.S. SUPREME COURT ON NOVEMBER 14, 2022, AND THE COURT GRANTED THE PETITION ON FEBRUARY 27, 2023. THE CASE WAS ARGUED ON OCTOBER 3, 2023. ON MAY 16, 2024, IN A 7-2 OPINION, THE SUPREME COURT HELD "THE STATUTE THAT AUTHORIZES THE BUREAU TO DRAW MONEY FROM THE COMBINED EARNINGS OF THE FEDERAL RESERVE SYSTEM TO CARRY OUT ITS DUTIES SATISFIES THE APPROPRIATIONS CLAUSE." SLIP OP. AT 22. ACCORDINGLY, THE COURT REVERSED THE FIFTH CIRCUIT JUDGMENT AND REMANDED THE CASE FOR FURTHER PROCEEDINGS. ID. |
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GARLAND V. CARGILL, CASE NO. 22-976. MERITS AMICUS BRIEF FILED JANUARY 29, 2024. THIS CASE DEALS WITH WHETHER BUMPSTOCKS ARE RIGHTLY CATEGORIZED AS MACHINEGUNS, AS THE ATF HAS DONE THROUGH RULEMAKING, REVERSING ITS PRIOR RULE ON ORDERS FROM PRESIDENT TRUMP AFTER THE SHOOTING THAT OCCURRED AT THE MANDALAY BAY HOTEL IN LAS VEGAS, NEVADA ON OCTOBER 1, 2017. THE U.S. COURT OF APPEALS FOR THE FIFTH CIRCUIT, SITTING EN BANC, HELD 13-3: THE DEFINITION OF "MACHINEGUN" AS SET FORTH IN THE NATIONAL FIREARMS ACT AND GUN CONTROL ACT DOES NOT APPLY TO BUMP STOCKS. AND IF THERE WERE ANY DOUBT AS TO THIS CONCLUSION, WE CONCLUDE THAT THE STATUTORY DEFINITION IS AMBIGUOUS, AT THE VERY LEAST. THE RULE OF LENITY THEREFORE COMPELS US TO CONSTRUE THE STATUTE IN CARGILL'S FAVOR. EITHER WAY, WE MUST REVERSE. [CARGILL V. GARLAND, 57 F.4TH 447, 451 (5TH CIR. 2023).] THE U.S. SUPREME COURT AFFIRMED THE FIFTH CIRCUIT DECISION 6-3 ON JUNE 14, 2024, HOLDING THAT BUMPSTOCK-EQUIPPED SEMIAUTOMATIC RIFLES DO NOT MEET THE STATUTORY DEFINITION OF "MACHINEGUN AND THEREFORE, THE ATF'S NEW REGULATION WAS UNSUPPORTED BY THE STATUTORY LANGUAGE AND INVALID. |
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NATIONAL RIFLE ASSOCIATION V. VULLO, CASE NO. 22-842. AMICUS BRIEF IN SUPPORT OF PETITION FILED MAY 24, 2023. MERITS AMICUS BRIEF FILED JANUARY 16, 2024. NEW YORK STATE'S DEPARTMENT OF FINANCIAL SERVICES, WHICH REGULATES BANKS, INSURANCE COMPANIES, AND OTHER FINANCIAL INSTITUTIONS, ADVISED THOSE ENTITIES NOT TO DEAL WITH THE NRA, LEST THEY SUFFER "REPUTATIONAL RISK," ESSENTIALLY BLACKLISTING THE NRA. ACCORDING TO THE NRA'S PETITION FOR A WRIT OF CERTIORARI, "NUMEROUS FINANCIAL INSTITUTIONS PERCEIVED [NY'S] ACTIONS AS THREATENING AND, THEREFORE, CEASED BUSINESS ARRANGEMENTS WITH THE NRA OR REFUSED NEW ONES." PETITION AT 3. THE SUPREME COURT GRANTED THE PETITION ON NOVEMBER 3, 2023, LIMITED TO THE QUESTION: DOES THE FIRST AMENDMENT ALLOW A GOVERNMENT REGULATOR TO THREATEN REGULATED ENTITIES WITH ADVERSE REGULATORY ACTIONS IF THEY DO BUSINESS WITH A CONTROVERSIAL SPEAKER, AS A CONSEQUENCE OF (A) THE GOVERNMENT'S OWN HOSTILITY TO THE SPEAKER'S VIEWPOINT OR (B) A PERCEIVED "GENERAL BACKLASH" AGAINST THE SPEAKER'S ADVOCACY? OUR FIRST BRIEF ARGUED THAT NY ABRIDGES THE NRA'S FIRST AMENDMENT RIGHT TO ADVOCATE FOR SECOND AMENDMENT RIGHTS, THUS INFRINGING TWO CONSTITUTIONAL RIGHTS, BY DISCRIMINATING AGAINST THE POLITICALLY DISFAVORED GUN RIGHTS GROUP IN COMPLIANCE ACTIONS, DRIVING AWAY INSURANCE COMPANIES. WE ARGUED THAT "REGULATORS MAY NOT ABUSE THEIR GOVERNMENT POWERS TO SILENCE THEIR POLITICAL OPPONENTS." PETITION AMICUS BRIEF AT 6. OUR SECOND BRIEF ARGUED THAT NEW YORK'S EFFORTS TO SILENCE POLITICAL OPPONENTS ILLUSTRATE HOW SOME OFFICE HOLDERS ARE WEAPONIZING GOVERNMENT POWER TO CENSOR POLITICAL OPPONENTS. THERE MUST BE ONLY ONE RULE, I.E., UNDER THE FIRST AMENDMENT, REGULATORS MAY NOT ABUSE THEIR GOVERNMENT POWERS TO SILENCE THEIR POLITICAL OPPONENTS. MERITS AMICUS BRIEF AT 4-5. THE CASE WAS ARGUED ON MARCH 18, 2024. ON MAY 30, 2024, THE SUPREME COURT, IN A UNANIMOUS 9-0 DECISION, HELD "THE NRA PLAUSIBLY ALLEGED THAT RESPONDENT VIOLATED THE FIRST AMENDMENT BY COERCING DFS-REGULATED ENTITIES TO TERMINATE THEIR BUSINESS RELATIONSHIPS WITH THE NRA IN ORDER TO PUNISH OR SUPPRESS THE NRA'S ADVOCACY." SLIP OP. AT 2. "ULTIMATELY, THE CRITICAL TAKEAWAY IS THAT THE FIRST AMENDMENT PROHIBITS GOVERNMENT OFFICIALS FROM WIELDING THEIR POWER SELECTIVELY TO PUNISH OR SUPPRESS SPEECH, DIRECTLY OR (AS ALLEGED HERE) THROUGH PRIVATE INTERMEDIARIES." SLIP OP. AT 19. THE COURT VACATED THE SECOND CIRCUIT'S DECISION TO THE CONTRARY AND REMANDED THE CASE FOR FURTHER PROCEEDINGS. SLIP OP. AT 20. |
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MOYLE V. UNITED STATES AND UNITED STATES V. IDAHO, CASE NOS. 23-726 & 23-727. MERITS AMICUS BRIEF FILED FEBRUARY 27, 2024. IN AUGUST 2022, THE JUSTICE DEPARTMENT SUED IDAHO CLAIMING THAT ITS DEFENSE OF LIFE ACT, PASSED IN 2020, VIOLATED A POST-DOBBS V. JACKSON WOMEN'S HEALTH ORG., 597 U.S. 215 (2022), INTERPRETATION THE SECRETARY OF THE DEPARTMENT OF HEALTH AND HUMAN SERVICES ("HHS") HAS GIVEN TO THE "EMERGENCY MEDICAL TREATMENT AND ACTIVE LABOR ACT OF 1986" ("EMTALA"), 42 U.S.C. 1395DD.2, TO FORCE HOSPITAL EMERGENCY ROOMS AND PHYSICIANS, WHICH RECEIVE FEDERAL FUNDS, TO PROVIDE ABORTIONS IF THAT IS DEEMED TO BE THE "STABILIZING TREATMENT" A "PREGNANT PATIENT" NEEDS, OR TRANSFER THE "PREGNANT PATIENT" TO A FACILITY THAT WILL PROVIDE SUCH "TREATMENT" IRRESPECTIVE OF STATE LAWS TO THE CONTRARY. HHS IS IMPLEMENTING PRESIDENT BIDEN'S DIRECTIVE THAT HHS "TAKE STEPS TO ENSURE THAT . . . POLITICIANS CANNOT INTERFERE IN THE DECISIONS THAT SHOULD BE MADE BETWEEN A WOMAN AND HER DOCTOR." THE WHITE HOUSE, "REMARKS BY PRESIDENT BIDEN ON THE SUPREME COURT DECISION TO OVERTURN ROE V. WADE" (JUNE 24, 2022). OUR AMICUS BRIEF ARGUED THAT THE SECRETARY'S INTERPRETATION EXCEEDED HIS AUTHORIZATION UNDER THE STATUTE, IN FACT, IS CONTRARY TO THE STATUTE, AND REPRESENTS AN ATTEMPT TO TAKE OVER THE GENERAL POLICE POWER RESERVED TO THE STATES BY THE TENTH AMENDMENT. DURING BRIEFING AND SUPREME COURT CONSIDERATION OF THE CASE, IDAHO LAW CHANGED, THE FEDERAL GOVERNMENT'S POSITION CHANGED, AND A CONSTITUTIONAL SPENDING ISSUE AROSE, CALLING INTO QUESTION THE PRUDENCE OF THE COURT DECIDING THE CASE WITHOUT FULL BENEFIT OF PROCEEDINGS BELOW. CONCURRING OPINION OF JUSTICE BARRETT. ON JUNE 27, 2024, THE SUPREME COURT DISMISSED THE WRITS OF CERTIORARI BEFORE JUDGMENT AS IMPROVIDENTLY GRANTED AND VACATED THE STAYS ENTERED BY THE COURT ON JANUARY 5, 2024, ALLOWING THE CASES TO PROCEED NORMALLY IN THE COURTS BELOW. SEE NINTH CIRCUIT REPORT, BELOW, FOR FURTHER INFORMATION. |
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O'HANDLEY V. WEBER & TWITTER, INC., CASE NO. 22-1199. AMICUS BRIEF FILED AUGUST 25, 2023, IN SUPPORT OF O'HANDLEY'S PETITION FOR A WRIT OF CERTIORARI. IT APPEARS THE COURT HELD THE CASE PENDING ITS DECISION IN MURTHY V. MISSOURI, WHICH RAISES SIMILAR GOVERNMENT CENSORSHIP CLAIMS AND IS DISCUSSED BELOW. THIS CASE CHALLENGES THE CALIFORNIA OFFICE OF ELECTION CYBERSECURITY ("OEC"), WHICH EXISTS TO CENSOR WHAT AMERICANS ARE PERMITTED TO SAY ON SOCIAL MEDIA SUCH AS TWITTER, INC. (NOW "X"). OEC PRESSURED TWITTER TO DEPLATFORM, I.E., CENSOR AND SUPPRESS, O'HANDLEY'S COMMENTARY ON ALLEGED ELECTION FRAUD IN 2020, IN VIOLATION OF THE FIRST AMENDMENT TO THE U.S. CONSTITUTION. THE DISTRICT DISMISSED ON GROUNDS THAT O'HANDLEY LACKED STANDING. THE U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT DISAGREED WITH RESPECT TO STANDING, BUT AFFIRMED THE DISMISSAL ON GROUNDS THAT THE CALIFORNIA GOVERNMENT WAS NOT RESPONSIBLE FOR ANY OF TWITTER'S CONTENT-MODERATION DECISIONS WITH RESPECT TO O'HANDLEY," O'HANDLEY V. WEBER, 62 F.4TH 1145, 1162 (9TH CIR. 2023), AND CALIFORNIA ITSELF HAD FIRST AMENDMENT RIGHTS, AN OXYMORON AS THE FIRST AMENDMENT PROTECTS INDIVIDUALS FROM GOVERNMENT ACTION. IT DOES NOT PROVIDE ANY RIGHTS TO THE GOVERNMENT. IN THIS CASE, CALIFORNIA WAS NOT SIMPLY PUBLICIZING ITS OWN VIEWS, WHICH WOULD BE ALLOWABLE GOVERNMENT SPEECH. INSTEAD, IT WAS COVERTLY CONSPIRING TO HAVE A PRIVATE PARTY (TWITTER) CENSOR THE OPPOSING VIEW--WHILE IMPLICITLY THREATENING THAT PRIVATE PARTY IF IT FAILED TO COOPERATE. AS THE SUPREME COURT HAS NOTED, "A STATE MAY NOT INDUCE, ENCOURAGE OR PROMOTE PRIVATE PERSONS TO ACCOMPLISH WHAT IT IS CONSTITUTIONALLY FORBIDDEN TO ACCOMPLISH." NORWOOD V. HARRISON, 413 U.S. 455, 465 (1973). NONETHELESS, AFTER MURTHY V. MISSOURI WAS DECIDED IN FAVOR OF THE FEDERAL GOVERNMENT, THE COURT DENIED O'HANDLEY'S CERT PETITION ON JULY 2, 2024. |
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MURTHY V. MISSOURI, CASE NO. 23-411. MERITS AMICUS BRIEF IN SUPPORT OF RESPONDENTS MISSOURI ET AL. FILED FEBRUARY 9, 2024. (SEE THE DISCUSSION OF MISSOURI V. BIDEN IN THE U.S. COURTS OF APPEAL SECTION FOR A REPORT ON THE LOWER COURT PROCEEDINGS.) TWO STATES AND FIVE INDIVIDUAL SOCIAL-MEDIA USERS SUED DOZENS OF EXECUTIVE BRANCH OFFICIALS AND AGENCIES, ALLEGING THAT THE FEDERAL GOVERNMENT PRESSURED THE PLATFORMS TO CENSOR THEIR COVID-19 RELATED SPEECH IN VIOLATION OF THE FIRST AMENDMENT. FOLLOWING EXTENSIVE DISCOVERY, THE DISTRICT COURT ISSUED A PRELIMINARY INJUNCTION. THE FIFTH CIRCUIT AFFIRMED IN PART AND REVERSED IN PART HOLDING THAT BOTH THE STATE PLAINTIFFS AND THE INDIVIDUAL PLAINTIFFS HAD ARTICLE III STANDING TO SEEK INJUNCTIVE RELIEF. ON THE MERITS, THE COURT HELD THAT THE GOVERNMENT ENTITIES AND OFFICIALS, BY "COERC[ING] OR "SIGNIFICANTLY ENCOURAG[ING]" THE PLATFORMS' MODERATION DECISIONS, TRANSFORMED THOSE DECISIONS INTO STATE ACTION. THE COURT THEN MODIFIED THE DISTRICT COURT'S INJUNCTION TO STATE THAT THE DEFENDANTS SHALL NOT COERCE OR SIGNIFICANTLY ENCOURAGE SOCIAL-MEDIA COMPANIES TO SUPPRESS PROTECTED SPEECH ON THEIR PLATFORMS. THE BIDEN ADMINISTRATION FILED AN APPLICATION FOR A STAY OF THE INJUNCTION AND ASKED THAT ITS APPLICATION BE TREATED AS A PETITION FOR A WRIT OF CERTIORARI. THE SUPREME COURT GRANTED BOTH REQUESTS ON OCTOBER 20, 2023, AND SET AN EXPEDITED MERITS BRIEFING SCHEDULE. ON JUNE 26, 2024, IN A 6-3 DECISION, THE SUPREME COURT HELD THAT NEITHER THE INDIVIDUALS NOR THE STATE PLAINTIFFS HAD ESTABLISHED ARTICLE III STANDING TO SEEK AN INJUNCTION AGAINST ANY DEFENDANT. ACCORDINGLY, THE COURT REVERSED THE FIFTH CIRCUIT DECISION AND REMANDED THE CASE FOR FURTHER PROCEEDINGS CONSISTENT WITH THE COURT'S OPINION. JUSTICE ALITO, ALONG WITH JUSTICES THOMAS AND GORSUCH, DISSENTED, REASONING THAT "[T]HIS CASE INVOLVES WHAT THE DISTRICT COURT TERMED "A FAR-REACHING AND WIDESPREAD CENSORSHIP CAMPAIGN" CONDUCTED BY HIGH-RANKING FEDERAL OFFICIALS AGAINST AMERICANS WHO EXPRESSED CERTAIN DISFAVORED VIEWS ABOUT COVID-9 ON SOCIAL MEDIA. . . . IF THE LOWER COURTS' ASSESSMENT OF THE VOLUMINOUS RECORD IS CORRECT, THIS IS ONE OF THE MOST IMPORTANT FREE SPEECH CASES TO REACH THIS COURT IN YEARS." DISSENT SLIP OP. AT 1-2. IN THE VIEW OF THE DISSENTERS, "THE COURT . . . SHIRKS [ITS] DUTY AND THUS PERMITS THE SUCCESSFUL CAMPAIGN OF COERCION IN THIS CASE TO STAND AS AN ATTRACTIVE MODEL FOR FUTURE OFFICIALS WHO WANT TO CONTROL WHAT THE PEOPLE SAY, HEAR, AND THINK." DISSENT SLIP OP. AT 4. |
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TRUMP V. UNITED STATES, CASE NO. 23-939, ON WRIT OF CERTIORARI TO THE U.S. COURT OF APPEALS FOR THE D.C. CIRCUIT. MERITS AMICUS BRIEF FILED MARCH 19, 2024, ADDRESSING THE QUESTION BEFORE THE COURT: WHETHER AND IF SO TO WHAT EXTENT DOES A FORMER PRESIDENT ENJOY PRESIDENTIAL IMMUNITY FROM CRIMINAL PROSECUTION FOR CONDUCT ALLEGED TO INVOLVE OFFICIAL ACTS DURING HIS TENURE IN OFFICE. WE REPHRASED THE QUESTION AS, "WHETHER AMERICA WILL JOIN THE RANKS OF COUNTRIES WHERE THOSE WIELDING GOVERNMENTAL AUTHORITY ABUSE POWER TO IMPRISON THEIR POLITICAL OPPONENTS. AND WE POINTED OUT THAT THIS IS THE FIRST TIME IN AMERICAN HISTORY THAT A PRESIDENT HAS BEEN INDICTED FOR ACTIONS TAKEN DURING HIS PRESIDENCY-THOSE ACTIONS BEING THE RIGHT TO CHALLENGE WHETHER THE 2020 ELECTIONS WERE CONDUCTED PROPERLY AND VOTES WERE COUNTED ACCURATELY. WE ARGUED, INTER ALIA, THAT PROSECUTING THE PRESIDENT WITH RESPECT TO OFFICIAL ACTS VIOLATES THE SEPARATION OF POWERS, PLACING THE EXECUTIVE BRANCH UNDER THE SUPERVISION OF THE JUDICIAL BRANCH. ON JULY 1, 2024, IN A 5 - ALMOST 6-3 DECISION (JUSTICE BARRETT DISAGREED WITH AN EVIDENTIARY ISSUE), THE SUPREME COURT DECIDED THE CASE ON SEPARATION OF POWERS GROUNDS HOLDING: (1) THAT CORE OFFICIAL ACTS OF THE PRESIDENT ARE IMMUNE FROM PROSECUTION; (2) THE PRESIDENT IS ENTITLED TO PRESUMPTIVE IMMUNITY FOR ALL HIS OFFICIAL ACTS; (3) THAT IMMUNITY APPLIES EQUALLY TO ALL OCCUPANTS OF THE OVAL OFFICE; (4) THERE IS NO IMMUNITY FOR UNOFFICIAL ACTS; (5) IN DIVIDING OFFICIAL FROM UNOFFICIAL ACTS, COURTS MAY NOT INQUIRE INTO THE PRESIDENT'S MOTIVES; (6) PRESIDENT TRUMP IS ABSOLUTELY IMMUNE FROM PROSECUTION FOR THE ALLEGED CONDUCT INVOLVING HIS DISCUSSIONS WITH JUSTICE DEPARTMENT OFFICIALS; AND (7) THE PRESIDENT POSSESSES EXTRAORDINARY POWER TO SPEAK TO HIS FELLOW CITIZENS AND ON THEIR BEHALF, TRUMP V. HAWAII, 585 U. S. 667, 701, SO MOST OF PRESIDENT TRUMP'S PUBLIC COMMUNICATIONS IN CONNECTION WITH THE EVENTS OF JANUARY 6 ARE LIKELY TO FALL COMFORTABLY WITHIN THE OUTER PERIMETER OF HIS OFFICIAL RESPONSIBILITIES. ON JULY 1, 2024, THE CASE WAS REMANDED TO THE COURT OF APPEALS AND THEN TO THE U.S. DISTRICT COURT FOR THE DISTRICT OF COLUMBIA FOR FURTHER PROCEEDINGS CONSISTENT WITH THE DECISION OF THE SUPREME COURT. ON NOVEMBER, 25, 2024, U.S. DISTRICT JUDGE TANYA CHUTKAN DISMISSED THE CASE FOLLOWING DONALD TRUMP'S REELECTION TO THE PRESIDENCY ON NOVEMBER 5 AND SPECIAL COUNSEL JACK SMITH'S MOTION TO DISMISS, CITING JUSTICE DEPARTMENT POLICY AGAINST PROSECUTING A SITTING PRESIDENT. |
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JOSEPH FISHER V. UNITED STATES, CASE NO. 23-5572. AMICUS BRIEF IN SUPPORT OF PETITION FILED OCTOBER 13, 2023. MERITS AMICUS BRIEF FILED FEBRUARY 5, 2024. OUR BRIEFS ARGUED, INTER ALIA, THAT 18 U.S.C. 1512(C)(2), A PORTION OF THE SARBANES-OXLEY STATUTE ENACTED TO ADDRESS FINANCIAL DESTRUCTION OF EVIDENCE CRIMES COMMITTED IN CONNECTION WITH THE ENRON DOCUMENT SHREDDING SCANDAL, SHOULD NOT BE EXPANDED BY INTERPRETATION TO CHARGE AMERICANS EXERCISING THEIR FIRST AMENDMENT RIGHT TO ASSEMBLE AND PETITION THEIR GOVERNMENT FOR REDRESS OF GRIEVANCES, AS HAPPENED WITH MANY JANUARY 6, 2021 DEFENDANTS, THE OSTENSIBLE PURPOSE OF WHICH WAS TO DOUBLE THE POSSIBLE JAIL TIME UPON CONVICTION FROM 10 YEARS TO 20 YEARS. IN A 6-3 DECISION ISSUED ON JUNE 28, 2024, THE SUPREME COURT HELD THAT TO PROVE A VIOLATION OF 18 U.S.C. 1512(C)(2), THE GOVERNMENT MUST ESTABLISH THAT THE DEFENDANT IMPAIRED THE AVAILABILITY OR INTEGRITY FOR USE IN AN OFFICIAL PROCEEDING OF RECORDS, DOCUMENTS, OBJECTS, OR OTHER THINGS USED IN AN OFFICIAL PROCEEDING, OR ATTEMPTED TO DO SO. FISHER FORCING HIS WAY INTO THE CAPITAL BUILDING ON JANUARY 6, BREAKING WINDOWS, AND ASSAULTING POLICE TO INTERFERE WITH THE COUNTING AND CERTIFICATION OF VOTES IN THE 2020 PRESIDENTIAL ELECTION DID NOT INVOLVE SUCH RECORDS, ETC. THE D.C. CIRCUIT'S DECISION UPHOLDING FISHER'S CONVICTION UNDER 1512(C)(2) WAS VACATED AND THE CASE WAS REMANDED TO THE D.C. CIRCUIT FOR FURTHER PROCEEDINGS CONSISTENT WITH THE SUPREME COURT'S DECISION. |
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LOPER BRIGHT ENTERPRISES V. RAIMONDO, CASE NO. 22-451 (CHEVRON DEFERENCE). MERITS AMICUS BRIEF IN SUPPORT OF LOPER BRIGHT ENTERPRISES FILED JULY 24, 2023. FOUR NEW ENGLAND HERRING FISHING FAMILIES CHALLENGED A RULE ADOPTED BY THE NEW ENGLAND FISHERY MANAGEMENT COUNCIL ("NEFMC"), AN AGENCY OF THE U.S. DEPARTMENT OF COMMERCE ("DOC"), REQUIRING FISHERMEN TO PAY THE COSTS OF ON-BOARD MONITORS THAT ENSURE COMPLIANCE WITH FISHING REGULATIONS. THE FAMILIES CONTEND THAT THE STATUTE DOES NOT AUTHORIZE CHARGING FISHERMEN; THEREFORE, THE REGULATION USURPS CONGRESSIONAL LEGISLATIVE AUTHORITY AND IS A VIOLATION OF CONSTITUTIONAL SEPARATION OF POWERS. PETITIONERS (THE FISHING FAMILIES) LOST IN THE U.S. COURT OF APPEALS FOR THE D.C. CIRCUIT. THE U.S. SUPREME COURT GRANTED THEIR PETITION FOR A WRIT OF CERTIORARI ON MAY 1, 2023. OUR AMICUS BRIEF ARGUED THAT JUDICIAL DEFERENCE TO AGENCY POLICY-MAKING DECISIONS, AS OCCURRED HERE, IS ITSELF A VIOLATION OF SEPARATION OF POWERS, INASMUCH AS COURTS TURN OVER THEIR OBLIGATION TO DETERMINE "WHAT THE LAW IS" TO THE EXECUTIVE BRANCH. THE SUPREME COURT HAD SIGNALED THAT IT WAS INTERESTED IN REVIEWING THE QUESTION OF JUDICIAL DEFERENCE TO AGENCY ACTION AND COULD USE THIS CASE TO DO JUST THAT. OVER 40 AMICUS BRIEFS WERE FILED IN THIS CASE. ON JUNE 28, 2024, IN A 6-3 DECISION, THE SUPREME COURT OVERRULED CHEVRON U. S. A. INC. V. NATURAL RESOURCES DEFENSE COUNCIL, INC., 467 U. S. 837 (1984), HOLDING THAT THE ADMINISTRATIVE PROCEDURE ACT (APA) REQUIRES COURTS TO EXERCISE THEIR INDEPENDENT JUDGMENT IN DECIDING WHETHER AN AGENCY HAS ACTED WITHIN ITS STATUTORY AUTHORITY, AND COURTS MAY NOT DEFER TO AN AGENCY INTERPRETATION OF THE LAW SIMPLY BECAUSE A STATUTE IS AMBIGUOUS. ARTICLE III OF THE CONSTITUTION ASSIGNS TO THE FEDERAL JUDICIARY THE RESPONSIBILITY AND POWER TO ADJUDICATE "CASES AND "CONTROVERSIES" AMONG PARTIES BEFORE THE COURTS, AND THE APA REQUIRES A REVIEWING COURT TO DECIDE ALL RELEVANT QUESTIONS OF LAW AND INTERPRET STATUTORY PROVISIONS. 5 U.S.C. 706. CHEVRON DEFERENCE IS AT ODDS WITH THESE JUDICIAL DUTIES. THE SUPREME COURT VACATED THE COURT OF APPEALS' JUDGMENT AND REMANDED THE CASE FOR FURTHER PROCEEDINGS. |
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UNITED STATES V. DANIELS, FIFTH CIRCUIT NO. 22-60596. LETTER AMICUS BRIEF FILED JULY 24, 2024. APPELLANT DANIELS WAS CHARGED WITH "KNOWINGLY POSSESSING A FIREARM WHILE AN UNLAWFUL USER OF A CONTROLLED SUBSTANCE," IN VIOLATION OF 18 U.S.C. 922(G)(3). UNITED STATES V. DANIELS, 610 F. SUPP. 3D 892 (S.D. MISS. 2022) ("DANIELS I"). THE DISTRICT COURT DENIED DANIELS' MOTION TO DISMISS, ASSERTING "CONGRESS ENACTED THE EXCLUSIONS IN 922(G)" TO CATEGORICALLY "KEEP GUNS OUT OF THE HANDS OF PRESUMPTIVELY RISKY PEOPLE." ID. AT 897. THE FIFTH CIRCUIT REVERSED, FINDING THAT, IN APPLYING N.Y. STATE RIFLE & PISTOL ASS'N V. BRUEN, 597 U.S. 1 (2022), "[J]UST AS THERE WAS NO HISTORICAL JUSTIFICATION FOR DISARMING A CITIZEN OF SOUND MIND, THERE IS NO TRADITION THAT SUPPORTS DISARMING A SOBER CITIZEN WHO IS NOT CURRENTLY UNDER AN IMPAIRING INFLUENCE." UNITED STATES V. DANIELS, 77 F.4TH 337, 340 (5TH CIR. 2023) ("DANIELS II"). THE GOVERNMENT PETITIONED FOR CERTIORARI, AFTER WHICH THE SUPREME COURT DECIDED UNITED STATES V. RAHIMI, 219 L. ED. 2D 351 (2024). THEN, THE SUPREME COURT GRANTED CERTIORARI IN DANIELS, VACATED THIS COURT'S JUDGMENT, AND REMANDED THE CASE FOR RECONSIDERATION IN LIGHT OF RAHIMI. IN RAHIMI, THE SUPREME COURT MERELY APPLIED THE METHODOLOGY IT ENUNCIATED IN BRUEN. THE BURDEN WAS PLACED ON THE GOVERNMENT TO DEMONSTRATE A FOUNDING-ERA HISTORICAL ANALOGUE THAT WAS "'RELEVANTLY SIMILAR' TO LAWS THAT OUR TRADITION IS UNDERSTOOD TO PERMIT, 'APPLY[ING] FAITHFULLY THE BALANCE STRUCK BY THE FOUNDING GENERATION TO MODERN CIRCUMSTANCES.'" RAHIMI AT 363. OUR AMICUS BRIEF ARGUES THAT THE FIFTH CIRCUIT'S DECISION IN DANIELS II FAITHFULLY FOLLOWED BRUEN AND IS ENTIRELY CONSISTENT WITH RAHIMI. IN THIS CASE, THE GOVERNMENT OFFERED THREE GROUPS OF COLONIAL-ERA LAWS AS POSSIBLE HISTORICAL ANALOGUES. DANIELS II AT 345-346 & 350-351. AFTER REVIEWING THEM, THIS COURT CONCLUDED THAT, WHILE "HISTORY AND TRADITION MAY SUPPORT SOME LIMITS ON AN INTOXICATED PERSON'S RIGHT TO CARRY A WEAPON . . . IT DOES NOT JUSTIFY DISARMING A SOBER CITIZEN BASED EXCLUSIVELY ON HIS PAST DRUG USAGE." ID. AT 340. RAHIMI DEALT WITH A VERY NARROW SITUATION GOVERNED BY 18 U.S.C. 922(G)(8)(C)(I), WHICH INVOLVES A COURT ORDER ISSUED AFTER ACTUAL NOTICE AND A HEARING AT WHICH THE TARGETED PERSON HAD AN OPPORTUNITY TO PARTICIPATE THAT RESTRAINS THE PERSON FROM HARASSING, STALKING, OR THREATENING AN INTIMATE PARTNER, ETC., AND WHICH INCLUDES A FINDING THAT SUCH PERSON REPRESENTS A CREDIBLE THREAT TO THE PHYSICAL SAFETY OF SUCH INTIMATE PARTNER, ETC. THE COURT EMPHASIZED: "[O]UR ANALYSIS STARTS AND STOPS WITH SECTION 922(G)(8)(C)(I) BECAUSE THE GOVERNMENT OFFERS AMPLE EVIDENCE THAT THE SECOND AMENDMENT PERMITS THE DISARMAMENT OF INDIVIDUALS WHO POSE A CREDIBLE THREAT TO THE PHYSICAL SAFETY OF OTHERS." RAHIMI AT 364. WE ARGUE THAT THE BAN CHALLENGED HERE INVOLVES NONE OF THOSE ELEMENTS. THUS, RAHIMI DOES NOT ALTER THIS COURT'S EVALUATION OF THE CONSTITUTIONALITY OF SECTION 922(G)(3). SUBSECTION 3 IS CATEGORICAL AND NOT INDIVIDUALIZED. IT NEITHER REQUIRES NOR EVEN PERMITS ANY JUDICIAL DETERMINATION OF DANGEROUSNESS, BUT SIMPLY PREEMPTIVELY LABELS AN ENTIRE CATEGORY OF CITIZENS AS TOO DANGEROUS TO POSSESS WEAPONS, NO MATTER THEIR PRESENT SOBRIETY. WE ASK THE COURT TO REACH THE SAME RESULT IT PREVIOUSLY DID, EXPLAINING THAT RAHIMI LEAVES THE COURT'S RATIONALE UNCHANGED. |
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KENNEDY V. BIDEN, FIFTH CIRCUIT NO. 24-30252. AMICUS BRIEF FILED SEPTEMBER 25, 2024. AMICUS BRIEF ON REHEARING EN BANC FILED NOVEMBER 25, 2024. OUR FIRST BRIEF SUPPORTED ROBERT F. KENNEDY, JR. AND CHILDREN'S HEALTH DEFENSE ("CHD") IN THEIR FIGHT AGAINST THE GOVERNMENT'S CENSORSHIP ENTERPRISE. THE GOVERNMENT INTERPRETS THE SUPREME COURT'S RECENT MURTHY V. MISSOURI DECISION TO MAKE IT IMPOSSIBLE FOR AMERICANS WHOSE VOICES HAVE BEEN SECRETLY THROTTLED OR EVEN EXTINGUISHED BY THE GOVERNMENT TO GET THEIR DAY IN COURT. WE EXPLAINED WHY THE KENNEDY PLAINTIFFS HAD STANDING UNDER MURTHY. GOVERNMENT PROMISES TO BEHAVE CANNOT BE TRUSTED. FUTURE OFFENSES CAN BE EXPECTED THAT SHOULD BE ENJOINED, AS THE SAME FBI WHICH CENSORED STORIES ABOUT THE HUNTER BIDEN LAPTOP TO ELECT BIDEN-HARRIS CAN BE EXPECTED TO DO SO AGAIN TO TRY TO ELECT HARRIS-WALZ. WE CALLED OUT THE GOVERNMENT'S ONGOING CENSORSHIP OF SOCIAL MEDIA PLATFORMS, BACKED BY THREATS, WHICH THEY EUPHEMISTICALLY DESCRIBE AS "CONTENT MODERATION." OUR SECOND BRIEF EMPHASIZED WHITE HOUSE EFFORTS TO DEPLATFORM KENNEDY AND CHD, SHORTLY AFTER WHICH FACEBOOK REPORTED TO SURGEON GENERAL MURTHY THAT IT HAD CENSORED EVERY MEMBER OF THE "DISINFORMATION DOZEN," INCLUDING KENNEDY AND CHD. THIS ESTABLISHED A SYMBIOTIC RELATIONSHIP BETWEEN FACEBOOK AND THE WHITE HOUSE SUFFICIENT TO ESTABLISH JOINT ACTION. THUS, THE GOVERNMENT AND BIG TECH WERE PARTNERING TO SUPPRESS DISSENTING SPEECH, A VIOLATION OF THE FIRST AMENDMENT, WHICH ESTABLISHED STANDING TO LITIGATE THE CASE. OUR AMICUS BRIEF FILING GOT US MENTIONED IN A NOVEMBER 29, 2024, NEWSWEEK ARTICLE BY SEAN O'DRISCOLL REPORTING ON THE CASE. HTTPS://WWW.NEWSWEEK.COM/DONALD-TRUMP-RFK-JR-COVID-VACCINE-CONSPIRACY-TH EORY-MICHAEL-FLYNN-1993344. |
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UNITED STATES V. IDAHO AND MOYLE V. UNITED STATES, NINTH CIRCUIT NOS. 23-35440 & 23-35450. AMICUS BRIEF FILED SEPTEMBER 19, 2024 IN SUPPORT OF IDAHO AND MOYLE. WE FILED ESSENTIALLY THE SAME AMICUS BRIEF IN THE U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT AS WE HAD IN THE U.S. SUPREME COURT (SEE ABOVE). WE POINT OUT THAT FEDERAL LAW IS MORE PRO-LIFE THAN THE BIDEN ADMINISTRATION ACKNOWLEDGES, SUCH AS TITLE XXI OF THE SOCIAL SECURITY ACT, ENACTED IN 1997, WHICH AUTHORIZES FEDERAL GRANTS TO STATES FOR THE PROVISION OF CHILD HEALTH ASSISTANCE TO UNINSURED, LOW-INCOME CHILDREN, KNOWN AS THE CHIP PROGRAM. FOR PURPOSES OF THAT PROGRAM, 42 C.F.R. 457.10 DEFINES "CHILD" AS "AN INDIVIDUAL UNDER THE AGE OF 19 INCLUDING THE PERIOD FROM CONCEPTION TO BIRTH." IN ADDITION, EMTALA ITSELF REQUIRES MEDICAL STAFF TO TREAT AN "UNBORN CHILD" AS A PATIENT WHEN MAKING A DETERMINATION ABOUT WHETHER AN EMERGENCY MEDICAL CONDITION EXISTS AND, IF SO, WHAT TREATMENT MAY BE REQUIRED. WE URGE THE NINTH CIRCUIT TO REJECT HHS'S ATTEMPT TO USURP IDAHO'S POLICE POWERS AND ARROGATE ALL POLICE POWERS OVER ABORTION REGULATION TO THE FEDERAL GOVERNMENT IN DEFIANCE OF THE DOBBS DECISION RETURNING ABORTION REGULATION TO THE STATES. |
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LOUISIANA V. U.S. DEPARTMENT OF EDUCATION, FIFTH CIRCUIT NO. 24-30399. AMICUS BRIEF IN SUPPORT OF PLAINTIFFS-APPELLEES FILED SEPTEMBER 26, 2024. THIS SUIT CHALLENGES A FINAL U.S. DEPARTMENT OF EDUCATION (DOE) REGULATION ISSUED ON APRIL 29, 2024, TO IMPLEMENT AN EXECUTIVE ORDER PRESIDENT BIDEN SIGNED ON HIS FIRST DAY IN OFFICE, JANUARY 20, 2021, ORDERING EACH FEDERAL AGENCY TO CHANGE THE DEFINITION OF "SEX DISCRIMINATION" TO INCLUDE "SEXUAL ORIENTATION AND "GENDER IDENTITY." THE FINAL RULE DECLARES THAT "'[D]ISCRIMINATION ON THE BASIS OF SEX INCLUDES DISCRIMINATION ON THE BASIS OF SEX STEREOTYPES, SEX CHARACTERISTICS, PREGNANCY OR RELATED CONDITIONS, SEXUAL ORIENTATION OR GENDER IDENTITY.'" LOUISIANA V. UNITED STATES DEP'T OF EDUC., 2024 U.S. DIST. LEXIS 105645, *5 (W.D. LA. 2024) ("LOUISIANA"). THE RULE, INTER ALIA, "REQUIRES STUDENTS TO BE ALLOWED TO ACCESS BATHROOMS AND LOCKER ROOMS BASED ON THEIR GENDER IDENTITY [AND] ... REQUIRES SCHOOLS TO USE WHATEVER PRONOUNS THE STUDENT REQUIRES...." ID. AT *4. LOUISIANA, MISSISSIPPI, MONTANA, AND IDAHO, AS WELL AS A GROUP OF LOUISIANA PARISH SCHOOL BOARDS, SUED DOE ALLEGING THAT TITLE IX, WHICH BANS DISCRIMINATION ON THE BASIS OF SEX IN FEDERAL EDUCATION FUNDING, WAS INTENDED TO REMEDY DISCRIMINATION AGAINST BIOLOGICAL WOMEN, AND THAT DOE'S FINAL RULE CONSTITUTED A LEGISLATIVE DETERMINATION THE DOE HAD NO AUTHORITY TO MAKE. ID. AT *25. THEY ALSO ALLEGED THAT REQUIRING TEACHERS AND STATE EDUCATION OFFICIALS TO USE THE PREFERRED PRONOUNS OF STUDENTS VIOLATED THE FIRST AMENDMENT'S PROHIBITION ON COMPELLED SPEECH. ID. AT *32. THE U.S. DISTRICT COURT FOR THE WESTERN DISTRICT OF LOUISIANA AGREED AND ISSUED AN INJUNCTION AGAINST ENFORCING THE RULE IN THE PLAINTIFF STATES. BOTH THE COURT OF APPEALS AND THE U.S. SUPREME COURT DECLINED TO ISSUE A STAY OF THE DISTRICT COURT'S INJUNCTION. SEE AUGUST 16, 2024, PER CURIAM OPINION IN SUPREME COURT CASE NO. 24A-78. OUR BRIEF ARGUES THAT THE RULE HAS NO STATUTORY BASIS AND, IN FACT, UNDERMINES THE PROTECTIONS FOR ACTUAL WOMEN AND GIRLS THAT TITLE IX WAS INTENDED TO PROTECT. IT IMPOSES AND INSTITUTIONALIZES DISCRIMINATION AGAINST BIOLOGICAL FEMALES AND DESTROYS THE PERSONAL PRIVACY AFFORDED WOMEN AND GIRLS BY USE OF THEIR OWN BATHROOMS AND LOCKER ROOMS, AS WELL AS THREATENING THEIR SAFETY. WE ALSO ARGUE THAT THE RULE REQUIRES BOTH TEACHERS AND STUDENTS TO SAY WHAT ALL KNOW IS FALSE, IN SERVICE TO THE COLLECTIVE, IN VIOLATION OF FIRST AMENDMENT FREE SPEECH RIGHTS. OUR BRIEF ARGUES THAT THE RULE IS ENTITLED TO NO DEFERENCE AND SHOULD BE REJECTED UNDER THE RECENTLY DECIDED U.S. SUPREME COURT CASE LOPER BRIGHT ENTERPRISES V. RAIMONDO, 144 S. CT. 2244 (2024). |
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JANE DOE V. SURGEON GENERAL, STATE OF FLORIDA, ELEVENTH CIRCUIT NO. 24-11996. AMICUS BRIEF IN SUPPORT OF FLORIDA FILED SEPTEMBER 4, 2024. THIS CASE ALLEGES THAT FLORIDA'S BAN ON PUBERTY BLOCKERS AND CROSS-SEX HORMONES FOR MINORS VIOLATES THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT. ON JUNE 11, 2024, THE DISTRICT COURT DECLARED BOTH THE STATUTE AND IMPLEMENTING RULES UNCONSTITUTIONAL AND ENJOINED ENFORCEMENT OF THE LAW. DOE V. LADAPO, 2024 U.S. DIST. LEXIS 105334, *108-109 (N.D. FL. 2024) ("DOE"). THE COURT BELIEVED THAT THE FLORIDA LEGISLATURE WAS MOTIVATED BY "ANIMUS" AGAINST INDIVIDUALS IDENTIFYING AS "TRANSGENDER," EQUATING TRANSGENDERISM TO RACISM. ID. AT *46-51, 56. THE COURT OF APPEALS STAYED THE INJUNCTION PENDING APPEAL, FINDING THE DEFENDANTS LIKELY TO SUCCEED ON THE MERITS. DOE V. SURGEON GEN., 2024 U.S. APP. LEXIS 21601 (11TH CIR. 2024). THE COURT NOTED THAT THE DISTRICT COURT CONCEDED "THAT THERE WAS 'EVIDENCE ON EACH SIDE' [ON THE QUESTION OF ANIMUS], AND EVEN THAT 'ONCE THE ISSUE CAME UP, A SIGNIFICANT NUMBER OF LEGISLATORS--MORE LIKELY THAN NOT A MAJORITY--WERE ALSO MOTIVATED BY THEIR DESIRE TO ENSURE THAT PATIENTS RECEIVE ONLY PROPER MEDICAL CARE.' THAT SHOULD HAVE BEEN THE END OF IT." ID. AT *10. OUR BRIEF ARGUES THAT THE FLORIDA LEGISLATORS ARE SIMPLY TRYING TO PROTECT MINORS FROM TREATMENTS THAT MAY BE DAMAGING AND IRREVERSIBLE FOR A DEVELOPMENTAL STAGE THAT ANY NUMBER OF MINORS GO THROUGH WHILE MATURING AND THAT THEY TYPICALLY GROW OUT OF. WE ALSO ARGUE THAT TRANSGENDER STATUS IS A CHOICE, WHEREAS RACE IS AN IMMUTABLE CHARACTERISTIC, AND THAT EQUAL PROTECTION ARGUMENTS HAVE NO PLACE IN THIS CASE. |
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TENNESSEE, ET AL. V. CARDONA, SIXTH CIRCUIT NO. 24-5588. AMICUS BRIEF FILED SEPTEMBER 3, 2024. SIX STATES CHALLENGED THE DEPARTMENT OF EDUCATION'S ("DOE") FINAL RULE, 89 FED. REG. 33474 (APR. 29, 2024), CHANGING THE DEFINITION OF "SEX" IN TITLE IX OF THE CIVIL RIGHTS ACT (RELATING TO EDUCATION) TO INCLUDE "DISCRIMINATION ON THE BASIS OF SEX STEREOTYPES, SEX CHARACTERISTICS, PREGNANCY OR RELATED CONDITIONS, SEXUAL ORIENTATION, AND GENDER IDENTITY." NEW 34 C.F.R. 106.10, ID. AT 33886. THE DISTRICT COURT PRELIMINARILY ENJOINED ENFORCEMENT OF THE RULE IN THE SIX STATES CHALLENGING THE RULE. TENNESSEE V. CARDONA, 2024 U.S. DIST. LEXIS 106559 AT *131 (E.D. KY. 2024) ("CARDONA I"). THE SIXTH CIRCUIT DECLINED TO STAY THE PRELIMINARY INJUNCTION, BUT EXPEDITED THE APPEAL. TENNESSEE V. CARDONA, 2024 U.S. APP. LEXIS 17600 (6TH CIR. 2024) ("CARDONA II"). THE SUPREME COURT LIKEWISE DECLINED TO STAY THE PRELIMINARY INJUNCTION. SEE DEP'T OF EDUC. V. LOUISIANA, 2024 U.S. LEXIS 2983 (AUG. 16, 2024). OUR BRIEF ARGUES THAT DOE'S DEFINITION IS INCONSISTENT WITH THE TEXT, CONTEXT, AND PURPOSE OF TITLE IX AND THUS ULTRA VIRES, AND THAT IT UNDERMINES THE PROTECTIONS FOR ACTUAL WOMEN AND GIRLS THAT TITLE IX WAS INTENDED TO PROTECT--THEIR PERSONAL PRIVACY AND SAFETY, AND THEIR ABILITY TO PARTICIPATE SAFELY AND FAIRLY IN SPORTS. WE ARGUE THAT THE RULE IS ENTITLED TO NO DEFERENCE UNDER THE SUPREME COURT'S RECENT DECISION IN LOPER BRIGHT ENTER'S. V. RAIMONDO, 603 U.S. 369 (2024). WE URGE THE SIXTH CIRCUIT TO AFFIRM THE DISTRICT COURT. THE DISTRICT COURT RULED AGAINST THE DEPARTMENT OF EDUCATION ON THE MERITS ON JANUARY 9, 2025, VACATING THE FINAL RULE ON GROUNDS, INTER ALIA, THAT THE RULE AND ITS CORRESPONDING REGULATIONS EXCEED THE DEPARTMENT'S AUTHORITY UNDER TITLE IX, VIOLATE THE FIRST AMENDMENT, AND ARE THE RESULT OF ARBITRARY AND CAPRICIOUS AGENCY ACTION. CORRESPONDINGLY THE COURT GRANTED THE STATES' MOTION FOR SUMMARY JUDGMENT AND DENIED THE DEPARTMENT'S MOTION FOR SUMMARY JUDGMENT. THE COURT EXPRESSLY STATED THAT IT WAS EXERCISING "ITS INDEPENDENT JUDGMENT IN INTERPRETING TITLE IX AND DETERMINING WHETHER THE DEPARTMENT ACTED WITHIN ITS STATUTORY AUTHORITY," CITING LOPER BRIGHT AT 412-13. |
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RHODE V. BONTA, NINTH CIRCUIT NO. 24-542. AMICUS BRIEF FILED JULY 31, 2024. CALIFORNIA LAW REQUIRES A BACKGROUND CHECK EVERY TIME SOMEONE SEEKS TO BUY AMMUNITION. RHODE V. BONTA, 2024 U.S. DIST. LEXIS 17052 AT *2-3 (S.D. CAL. 2024) ("RHODE III"). THE LAW RESULTED IN "GUN OWNERS IN CALIFORNIA UNDERGO[ING] BACKGROUND CHECKS MORE THAN ONE MILLION TIMES EACH YEAR SIMPLY TO BUY AMMUNITION." ID. AT *4. THE LAW ALSO PROHIBITED CALIFORNIANS FROM PURCHASING AMMUNITION OUT OF STATE FOR POSSESSION IN THE STATE. ID. THE LAW WAS CHALLENGED BY SEVEN INDIVIDUAL CALIFORNIA GUN OWNERS, THREE FIREARMS DEALERS, AND THE CALIFORNIA RIFLE & PISTOL ASSOCIATION, INC. IN 2020, THE DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA GRANTED PLAINTIFFS' MOTION FOR A PRELIMINARY INJUNCTION, FINDING THAT THE LAW OFFENDED THE SECOND AMENDMENT, AS WELL AS THE FEDERAL DORMANT COMMERCE CLAUSE, DUE TO ITS IMPORTATION RESTRICTIONS. RHODE V. BECERRA, 445 F. SUPP. 3D 902, 910-911 (S.D. CAL. 2020) ("RHODE I"). AFTER THE SUPREME COURT'S DECISION IN N.Y. STATE RIFLE & PISTOL ASS'N V. BRUEN, 597 U.S. 1 (2022), THE NINTH CIRCUIT VACATED AND REMANDED THE RULING FOR FURTHER CONSIDERATION. SEE RHODE V. BONTA, 2022 U.S. APP. LEXIS 32554 (9TH CIR. 2022) ("RHODE II"). ON REMAND, THE DISTRICT COURT FOUND THAT UNDER BRUEN "[T]HE AMMUNITION BACKGROUND CHECKS LAWS HAVE NO HISTORICAL PEDIGREE AND OPERATE IN SUCH A WAY THAT THEY VIOLATE THE SECOND AMENDMENT RIGHT OF CITIZENS TO KEEP AND BEAR ARMS [AND T]HE ANTI-IMPORTATION COMPONENTS VIOLATE THE DORMANT COMMERCE CLAUSE. . . ." RHODE III AT *43. THE COURT FURTHER FOUND THAT THE STATUTE IS PREEMPTED BY 18 U.S.C. 926A, WHICH PROVIDES, NOTWITHSTANDING ANY OTHER PROVISION OF ANY LAW . . . OF A STATE . . . ANY PERSON WHO IS NOT OTHERWISE PROHIBITED BY THIS CHAPTER FROM TRANSPORTING, SHIPPING, OR RECEIVING A FIREARM SHALL BE ENTITLED TO TRANSPORT A FIREARM FOR ANY LAWFUL PURPOSE FROM ANY PLACE WHERE HE MAY LAWFULLY POSSESS AND CARRY SUCH FIREARM TO ANY OTHER PLACE WHERE HE MAY LAWFULLY POSSESS AND CARRY SUCH FIREARM." ID. AT *39-40. OUR BRIEF SUMMARIZES THE LONG HISTORY OF CALIFORNIA, FROM 1923 TO THE PRESENT, TO RESTRICT AND BURDEN THE EXERCISE OF SECOND AMENDMENT RIGHTS. ON JUNE 8, 2023, GOVERNOR NEWSOM WENT SO FAR AS TO PROPOSE A CONVENTION OF STATES TO PASS A NEW CONSTITUTIONAL AMENDMENT TO OVERTURN THE SECOND AMENDMENT. (PRESS RELEASE, "GOVERNOR NEWSOM PROPOSES HISTORIC 28TH AMENDMENT TO THE UNITED STATES CONSTITUTION TO END AMERICA'S GUN VIOLENCE CRISIS" (JUNE 8, 2023).) CALIFORNIA IS THE ONLY STATE CALLING FOR REPEAL OF THE SECOND AMENDMENT. WE ARGUE THAT THE DISTRICT COURT DECISIONS WERE CORRECT AND SHOULD BE AFFIRMED UNDER BRUEN AND THE RECENT UNITED STATES V. RAHIMI, 144 S.CT. 1889 (2024), DECIDED ON JUNE 21, 2024. THE DISTRICT COURT EXPLAINED: THE STATE'S AMMUNITION BACKGROUND CHECK REGIME . . . TREATS ALL CITIZENS AS IF THEY DO NOT ENJOY A RIGHT TO BUY AMMUNITION. IT FORCES AMERICANS TO ENTREAT AND SUPPLICATE THE STATE FOR PERMISSION. ONLY WHEN THE STATE IS SATISFIED THAT A CITIZEN HAS PROVEN THAT THEY MEET THE QUALIFICATIONS--ONLY THEN--DOES THE STATE ISSUE ITS STAMP OF AUTHORIZATION. [RHODE III AT 34-35.] RAHIMI DOES NOTHING TO WEAKEN THE BRUEN CALCULUS FOR ANALYZING AMMUNITION BACKGROUND CHECKS. INDEED, IT UPHOLDS BRUEN'S CONSTITUTIONAL PRESUMPTION IN FAVOR OF THE EXERCISE OF THE RIGHT TO KEEP AND BEAR ARMS--AND THE AMMUNITION THEY REQUIRE TO FUNCTION. WE AWAIT FURTHER ACTION BY THE NINTH CIRCUIT. |
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MARYLAND SHALL ISSUE, INC. V. MOORE, FOURTH CIRCUIT NO. 21-2017. AMICUS BRIEF IN SUPPORT OF APPELLANTS FILED MARCH 1, 2024. APPELLANTS CHALLENGED A MARYLAND HANDGUN LICENSE QUALIFICATION LAW, ENACTED IN 2013, REQUIRING THAT IN ORDER TO ACQUIRE A HANDGUN, A MARYLAND CITIZEN MUST FIRST PROVIDE FINGERPRINTS TO THE STATE, PASS A BACKGROUND CHECK, COMPLETE A FOUR-HOUR FIREARM SAFETY TRAINING COURSE INCLUDING FIRING AT LEAST ONE LIVE ROUND, AND WAIT 30 DAYS FOR APPROVAL. FAILURE TO COMPLETE THESE ALL STEPS LEAVES A CITIZEN DISQUALIFIED FROM SEEKING A LICENSE TO POSSESS A HANDGUN. ON NOVEMBER 21, 2023, A FOURTH CIRCUIT PANEL STRUCK DOWN THE MARYLAND LAW, RULING THAT THE REQUIREMENT TO "QUALIFY" FOR A LICENSE TO EXERCISE THE SECOND AMENDMENT RIGHT DID IN FACT BURDEN THAT RIGHT. MARYLAND SHALL ISSUE, INC. V. MOORE, 86 F.4TH 1038, 1045 (4TH CIR. 2023) (VACATED BY REH'G EN BANC). THE PANEL FURTHER FOUND THAT MARYLAND'S PROPOSED HISTORICAL ANALOGUES OF "DANGEROUSNESS" STATUTES WERE NOT RELEVANTLY SIMILAR, AS SUCH LAWS PERMITTED SEIZURE OF WEAPONS FROM PERSONS ADJUDICATED AS DANGEROUS, WHILE MARYLAND'S LAW REQUIRED ALL CITIZENS TO FIRST PROVE THEY ARE NOT "DANGEROUS" AS A PRECONDITION TO A LICENSE TO OWN A FIREARM AT ALL. ID. AT 1047. MARYLAND THEN SOUGHT AND WAS GRANTED REHEARING EN BANC, WHICH VACATED THE PANEL OPINION. MARYLAND SHALL ISSUE, INC. V. MOORE, 2024 U.S. APP. LEXIS 766 (4TH CIR. 2024). IN ITS EN BANC DECISION, MARYLAND SHALL ISSUE, INC. V. MOORE, 2024 U.S. APP. LEXIS 21378 (4TH CIR. 2024), THE FOURTH CIRCUIT USED WHAT IT CALLED "SUBSTANTIVE DICTUM" FROM FOOTNOTE NINE IN NEW YORK STATE RIFLE & PISTOL ASS'N, INC. V. BRUEN, 597 U.S. 1 (2022), TO EVISCERATE THE SUPREME COURT'S REQUIREMENT THAT REGULATION OF SECOND AMENDMENT RIGHTS BE GROUNDED IN HISTORICAL PRECEDENT. ID. *4. THE DISSENT ARGUED THAT THIS ALLOWED THE COURT TO "ESTABLISH A CARVEOUT FROM SUPREME COURT DOCTRINE AND THAT "MARYLAND HAS IDENTIFIED NO HISTORICAL BASIS FOR ITS LAW." ID. *53-*56. MARYLAND SHALL ISSUE FILED A PETITION FOR A WRIT OF CERTIORARI WITH THE U.S. SUPREME COURT ON SEPTEMBER 27, 2024. WE FILED AN AMICUS BRIEF IN SUPPORT OF THEIR PETITION ON NOVEMBER 1, 2024. SEE SUPREME COURT NOTE ON THIS CASE (ABOVE). |
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B.P.J. VS. WEST VIRGINIA STATE BOARD OF EDUCATION, FOURTH CIRCUIT NO. 23-1078, A CASE BROUGHT ON BEHALF OF A BOY CLAIMING TO BE A "TRANSGENDER GIRL" CHALLENGING A WEST VIRGINIA LAW THAT PRESERVES GIRL SPORTS TEAMS FOR GIRLS AND BARS BOYS SUFFERING FROM GENDER DISPHORIA FROM PLAYING ON GIRLS TEAMS. THE DISTRICT COURT UPHELD THE LAW. ON FEBRUARY 22, 2023, THE FOURTH CIRCUIT ENJOINED ENFORCEMENT OF THE LAW PENDING APPEAL, AND ON APRIL 6, 2023, THE U.S. SUPREME COURT DENIED AN EMERGENCY APPEAL TO VACATE THE FOURTH CIRCUIT'S INJUNCTION. THE CASE PROCEEDED IN THE FOURTH CIRCUIT. OUR AMICUS BRIEF SUPPORTING WEST VIRGINIA, FILED ON MAY 3, 2023, ARGUES: (1) PLAINTIFF'S CLAIM IS PREDICATED ON FALSEHOODS AND FEELINGS; (2) TITLE IX WAS DESIGNED TO REMEDY, NOT REQUIRE, DISCRIMINATION AGAINST FEMALES IN EDUCATION; (3) GENDER IDEOLOGY HARMS BOTH TRANSGENDER IDENTIFYING PERSONS AND THE REST OF SOCIETY ALIKE; AND (4) COURTS HAVE NO AUTHORITY TO REINTERPRET STATUTORY TEXT TO CREATE RIGHTS OUT OF WHOLE CLOTH. THE CASE WAS ARGUED IN THE FOURTH CIRCUIT ON OCTOBER 27, 2023. ON APRIL 16, 2024, THE COURT VACATED THE DISTRICT COURT'S DECISION IN PART, REVERSED IN PART, AND REMANDED THE CASE TO THE DISTRICT COURT WITH INSTRUCTIONS TO ENTER SUMMARY JUDGMENT FOR B.P.J. ON THE TITLE IX CLAIMS AND FOR FURTHER PROCEEDINGS, INCLUDING REMEDIAL PROCEEDINGS, CONSISTENT WITH THE FOURTH CIRCUIT OPINION. DISSENTING JUDGE AGEE CHARACTERIZED THE MAJORITY'S ANALYSIS AS "FLAWED FOR AT LEAST THREE REASONS: THE MAJORITY (1) WITHOUT EXPLANATION, ERRONEOUSLY CONCLUDES THAT B.P.J.--A BIOLOGICAL BOY--IS SIMILARLY SITUATED TO BIOLOGICAL GIRLS; (2) INCORRECTLY DETERMINES THAT THE ACT DISCRIMINATES AGAINST TRANSGENDER ATHLETES ON ITS FACE; AND (3) INACCURATELY DECIDES THAT THE ACT MAY NOT BE SUBSTANTIALLY RELATED TO WEST VIRGINIA'S IMPORTANT GOVERNMENT INTEREST IN ENSURING EQUAL OPPORTUNITIES FOR FEMALES AS APPLIED TO B.P.J." OP. AT 42. HE CLOSED WITH THE FOLLOWING OBSERVATIONS: IGNORING WHAT WOULD SEEM TO BE CLEAR LAW, THE MAJORITY ENSURES THAT POLICY PREFERENCES PRIORITIZING TRANSGENDER PERSONS TAKES PRECEDENCE. BUT WHERE WILL THIS COURT, OR ANY COURT, DRAW THE LINE? BOSTOCK ALLEGEDLY DREW THE LINE AT EMPLOYMENT DECISIONS UNDER TITLE VII. GRIMM WAS SPECIFIC TO BATHROOMS. YET, HERE WE ARE AGAIN, MILES AWAY FROM THE STRAIGHTFORWARD TEXT OF THE LAWS WE ARE CALLED TO APPLY, JUDICIALLY REWRITING THE EQUAL PROTECTION CLAUSE AND NULLIFYING TITLE IX'S PROMISE OF EQUAL ATHLETIC OPPORTUNITY FOR WOMEN. AND IF THE COMMONLY UNDERSTOOD AND ACCEPTED LIMITS ON RESTROOM USAGE AND SPORTS TEAMS ARE NEGATED BY JUDICIAL FIAT, I FAIL TO SEE WHERE THE COURT WILL EVER IMPOSE A LIMIT. NO UNELECTED JUDGE IS EMPOWERED TO DECIDE THAT THE EQUAL PROTECTION CLAUSE AND TITLE IX REQUIRE SCHOOLS TO ALLOW TRANSGENDER INDIVIDUALS TO SHARE LOCKER ROOMS AND SHOWERS WITH THE SEX THEY IDENTIFY WITH, ANATOMY NOTWITHSTANDING. YET THAT SEEMS TO BE THE NEXT STOP ON THIS RUNAWAY TRAIN. NEITHER THE DRAFTERS OF THE EQUAL PROTECTION CLAUSE NOR CONGRESS WHEN ENACTING TITLE IX INTENDED SUCH A RESULT. ID. AT 68. |
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MISSOURI V. BIDEN, FIFTH CIRCUIT NO. 23-30445. AMICUS BRIEF FILED AUGUST 7, 2023, IN SUPPORT OF MISSOURI, LOUISIANA, AND FIVE INDIVIDUAL PLAINTIFFS ALLEGING "A GARGANTUAN FEDERAL 'CENSORSHIP ENTERPRISE' ... [THAT] HAS STIFLED DEBATE AND CRITICISM OF GOVERNMENT POLICY ON SOCIAL MEDIA ABOUT SOME OF THE MOST PRESSING ISSUES OF OUR TIME." THE PLAINTIFFS ALLEGED THAT THE BIDEN ADMINISTRATION HAD PRESSURED SOCIAL MEDIA COMPANIES TO PROMOTE GOVERNMENT-APPROVED SPEECH AND CENSOR SPEECH CRITICAL OF THE ADMINISTRATION AND ITS POLICIES, INCLUDING WITH REGARD TO COVID, ELECTION INTERFERENCE, AND POSTS CRITICAL OF BIDEN PERSONALLY. AMICUS BRIEF AT 1-2 (CITATIONS OMITTED). OUR BRIEF ARGUED THAT THE GOVERNMENT HAS NO POWER TO PRESSURE SOCIAL MEDIA TO CENSOR OR SUPPRESS SPEECH. THAT IS SIMPLY A POWER NOT GRANTED TO THE FEDERAL GOVERNMENT IN OUR CONSTITUTION. WE ALSO ARGUED THAT THE GOVERNMENT ITSELF ILLEGALLY INFLUENCED THE 2020 ELECTIONS BY, FOR EXAMPLE, THE FBI PRESSURING TWITTER TO VIEW THE HUNTER BIDEN LAPTOP AS PART OF A RUSSIAN 'HACK AND LEAK' OPERATION. AMICUS BRIEF AT 11. ON SEPTEMBER 8, 2023, THE FIFTH CIRCUIT ISSUED ITS DECISION. IT UPHELD, BUT NARROWED THE KEY PROVISIONS OF THE DISTRICT COURT INJUNCTION AGAINST THE MOST OPPRESSIVE GOVERNMENT DEFENDANTS--THE WHITE HOUSE, CDC AND FBI, WHILE LETTING OFF THE HOOK NIAID, CISA, AND THE STATE DEPARTMENT BECAUSE OF INSUFFICIENT EVIDENCE. THE SCOPE OF THE INJUNCTION WAS NARROWED TO BANNING COMMUNICATIONS WHICH WERE "THREATENING, PRESSURING, OR COERCING" SOCIAL MEDIA COMPANIES. THE BIDEN ADMINISTRATION APPLIED TO THE U.S. SUPREME COURT FOR A STAY OF THE INJUNCTION. THE COURT GRANTED THE STAY AND TREATED THE APPLICATION AS A PETITION FOR A WRIT OF CERTIORARI. SEE THE DISCUSSION OF MURTHY V. MISSOURI IN THE U.S. SUPREME COURT SECTION, ABOVE, FOR A REPORT ON PROCEEDINGS IN THAT COURT. |
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STATE OF TENNESSEE V. DEPARTMENT OF EDUCATION, SIXTH CIRCUIT NO. 22-5807. AMICUS BRIEF FILED JANUARY 31, 2023, IN SUPPORT OF PLAINTIFFS OPPOSING THE U.S. DEPARTMENT OF EDUCATION'S NEW "INTERPRETATION" OF TITLE IX OF THE EDUCATION AMENDMENTS OF 1972, EXTENDING " 'TITLE IX'S PROHIBITION ON SEX DISCRIMINATION ... TO ENCOMPASS DISCRIMINATION BASED ON SEXUAL ORIENTATION AND GENDER IDENTITY' IN LIGHT OF THE [SUPREME COURT'S] BOSTOCK DECISION." THE EEOC ADOPTED SIMILAR "GUIDANCE." THE AGENCIES WARNED OF AGGRESIVE ENFORCEMENT ACTIONS AND THE DENIAL OF FEDERAL FUNDING FOR NONCOMPLIANT INSTITUTIONS. TENNESSEE AND 19 OTHER STATES SUED IN THE U.S. DISTRICT COURT FOR THE EASTERN DISTRICT OF TENNESSEE, AND THE DISTRICT COURT ENJOINED IMPLEMENTATION OF THE GUIDANCE DOCUMENTS AS TO PLAINTIFFS. THE COURT CONCLUDED THAT THE GUIDANCE DOCUMENTS CREATED RIGHTS WELL BEYOND WHAT THE SUPREME COURT RECOGNIZED IN BOSTOCK, AS WELL AS TITLE IX, OR IMPLEMENTING REGULATIONS, AND THAT THE AGENCIES FAILED TO COMPLY WITH THE APA'S NOTICE AND COMMENT REQUIREMENTS FOR RULEMAKINGS. SEE TENN. V. U.S. DEP'T OF EDUCATION, 2022 U.S. DIST. LEXIS 125684 (E. DIST. TENN. 2022). DEFENDANTS APPEALED. OUR AMICUS BRIEF ARGUED (1) THE BIDEN DOE GUIDANCE DOCUMENTS ARE NOT SUPPORTED BY BOSTOCK, BUT RATHER ARE YET ANOTHER EFFORT TO UNDERMINE THE MORALITY OF THE NATION; (2) DOE'S GUIDANCE DOCUMENTS WOULD HARM CHILDREN AND JEOPARDIZE THE SPECIAL PROTECTION AGAINST DISCRIMINATION TARGETING FEMALES IN TITLE IX; (3) DOE'S GUIDANCE DOCUMENTS WOULD ENDANGER ALL STUDENTS; AND (4) THE BIDEN GUIDANCE DOCUMENTS ELEVATE THE RELIGION OF SECULAR HUMANISM OVER BIBLICAL CHRISTIANITY. THE CASE WAS ARGUED ON APRIL 26, 2023. ON JUNE 14, 2024 THE SIXTH CIRCUIT RULED AGAINST DOE'S GUIDANCE DOCUMENTS, PRELIMINARILY ENJOINING ENFORCEMENT. EVENTS APPEAR TO HAVE OVERTAKEN THIS CASE. THE BIDEN ADMINISTRATION PUBLISHED A SOMEWHAT MORE LIMITED FINAL RULE THAT WENT INTO EFFECT AUGUST 1. THAT RULE IS BEING SEPARATELY CHALLENGED IN AT LEAST SEVEN SEPARATE SUITS, WHICH ARE BEING MONITORED FOR OPPORTUNITIES TO PARTICIPATE. ON AUGUST 15, 2024, THE U.S. SUPREME COURT DENIED A BIDEN ADMINISTRATION REQUEST TO STAY THE PRELIMINARY INJUNCTION (CASE NO. 24A70). |
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BAIRD V. BONTA, NINTH CIRCUIT NO. 24-565. AMICUS BRIEF FILED APRIL 25, 2024 IN SUPPORT OF MARK BAIRD CHALLENGING CALIFORNIA'S PRACTICAL BAN ON OPEN CARRY OF FIREARMS IN VIOLATION OF THE 2ND AMENDMENT. ONE OF OUR ARGUMENTS IS THAT BY CRIMINALIZING VIRTUALLY ALL LOADED OPEN CARRY, PARTICULARLY OF LONG GUNS, CALIFORNIA PREVENTS THE PEOPLE FROM ORGANIZING THEMSELVES INTO A WELL REGULATED MILITIA, AND TRAINING IN THE USE OF ARMS, A RIGHT PROTECTED AGAINST INFRINGEMENT BY THE SECOND AMENDMENT. WE ADDED, "ALTHOUGH THE CONSTITUTIONAL NOTION OF AN ARMED POPULACE AND PEOPLE'S "MILITIA" SEEMS TO HAVE BECOME ANATHEMA TO MANY MODERN JURISTS, THE SECOND AMENDMENT'S PROTECTIONS DO NOT DEPEND ON THE PREFERENCES OF MODERN JUDGES." AMICUS BRIEF AT 10-11. CALIFORNIA FILED ITS ANSWERING BRIEF ON JUNE 17, 2024. IN FOOTNOTE 8 ON PAGE 24, THE CALIFORNIA ASKED THE NINTH CIRCUIT TO DISREGARD OUR MILITIA ARGUMENT BECAUSE IT WAS RAISED BY US AMICI INSTEAD OF MARK BAIRD. THAT CALIFORNIA THOUGHT IT IMPORTANT TO SAY SOMETHING ABOUT OUR ARGUMENT IS A TESTAMENT TO ITS FORCE. WE'LL SEE WHAT THE NINTH CIRCUIT DOES WITH IT. |
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FOUTS V. BONTA, NINTH CIRCUIT NO. 24-1039. AMICUS BRIEF FILED JUNE 14, 2024. THIS CASE PRESENTS A SECOND AMENDMENT CHALLENGE TO CALIFORNIA'S BAN ON "BILLY" CLUBS, I.E., "ANY LEADED CANE, OR ANY INSTRUMENT OR WEAPON OF THE KIND COMMONLY KNOWN AS A BILLY, BLACKJACK, SANDBAG, SANDCLUB, SAP, OR SLUNGSHOT." CALIFORNIA PENAL CODE 22210. UNDER THE SECOND AMENDMENT, THE PEOPLE HAVE THE RIGHT "TO KEEP AND BEAR ARMS." AFTER THE U.S. SUPREME COURT'S DECISION IN N.Y. STATE RIFLE & PISTOL ASS'N V. BRUEN, 597 U.S. 1 (2022), THE DISTRICT COURT FOUND THAT A BILLY IS AN "ARM AND THEREFORE COVERED BY THE PLAIN TEXT OF THE SECOND AMENDMENT. CALIFORNIA IS ASKING THE NINTH CIRCUIT TO OVERTURN THAT DECISION, ARGUING THAT BILLIES ARE NOT "ARMS" BECAUSE THEY "ARE NOT COMMONLY USED FOR SELF-DEFENSE." OUR BRIEF SHOWS THAT BILLYS ARE ARMS COMMONLY USED FOR SELF-DEFENSE AND HAVE BEEN SINCE THE FOUNDING OF THE COUNTRY AND EONS BEFORE THAT, REFERENCING I CHRONICLES 11:23 (NASB). (BENAIAH, A COMMANDER OF THE JEWISH KING DAVID'S ARMY, WHO CONFRONTED AN INVADING EGYPTIAN, "WENT DOWN TO HIM WITH A CLUB AND SNATCHED THE SPEAR FROM THE EGYPTIAN'S HAND AND KILLED HIM WITH HIS OWN SPEAR.") |
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UNITED STATES V. ABBOTT, FIFTH CIRCUIT NO. 23-50632, ON REHEARING EN BANC. AMICUS BRIEF FILED FEBRUARY 23, 2024 IN SUPPORT OF TEXAS'S RIGHT TO DEFEND ITS BORDER AGAINST THE INVASION OF ILLEGAL ALIENS WHEN THE FEDERAL GOVERNMENT NOT ONLY SHIRKS IT RESPONSIBILITY, BUT ACTIVELY ASSISTS AND ENCOURAGES THE INVASION. THE CASE CONCERNS GOVERNOR ABBOTT'S "OPERATION LONE STAR" BY WHICH THE GOVERNOR IS USING EVERY MEANS AT HIS DISPOSAL TO STOP THE INVASION OF TEXAS BY ILLEGAL ALIENS, INCLUDING THE INSTALLATION OF FLOATING BARRIERS AT CERTAIN CROSSING HOTSPOTS IN THE RIO GRANDE TO DISCOURAGE ILLEGAL BORDER CROSSINGS. THE BIDEN ADMINISTRATION SUED TO HAVE THE BARRIERS REMOVED FROM THE RIVER. THE DISTRICT COURT RULED IN FAVOR OF THE ADMINISTRATION, ENTERING A PRELIMINARY INJUNCTION, AND TEXAS APPEALED. THE MAJORITY OF A PANEL OF THE COURT OF APPEALS AFFIRMED, UPHOLDING THE INJUNCTION. THE COURT THEN GRANTED REHEARING EN BANC AND VACATED THE PANEL DECISION. OUR AMICUS BRIEF ARGUES IN SUPPORT OF TEXAS'S INHERENT RIGHT, AS A SOVEREIGN, TO DEFEND ITS OWN BORDERS AGAINST INVASION. U.S. CONSTITUTION, ART. I, SEC. 10, CL. 3 ("NO STATE SHALL, WITHOUT THE CONSENT OF CONGRESS, . . . ENGAGE IN WAR, UNLESS ACTUALLY INVADED, OR IN SUCH IMMINENT DANGER AS WILL NOT ADMIT OF DELAY."). THIS STATE'S RIGHT IS PARTICULARLY NECESSARY TODAY BECAUSE THE BIDEN ADMINISTRATION IS VIOLATING ITS DUTY TO "PROTECT EACH OF [THE STATES] AGAINST INVASION." U.S. CONSTITUTION, ART. IV, SEC. 4 (THE UNITED STATES . . . SHALL PROTECT EACH OF [THE STATES] AGAINST INVASION."). ON JULY 30, 2024, THE EN BANC COURT HELD "THAT THE DISTRICT COURT CLEARLY ERRED IN FINDING THAT THE UNITED STATES WILL LIKELY PROVE THAT THE BARRIER IS IN A NAVIGABLE STRETCH OF THE RIO GRANDE [GOVERNED BY THE RIVERS AND HARBORS APPROPRIATION ACT OF 1899, WHICH TEXAS ALLEGEDLY VIOLATED]. WE CANNOT SQUARE THE DISTRICT COURT'S FINDINGS AND CONCLUSIONS WITH OVER A CENTURY'S WORTH OF PRECEDENT, WHICH ON A FAIR AND FAITHFUL READING RENDERS INAPPLICABLE OR UNPERSUASIVE THE EVIDENCE ON WHICH THE DISTRICT COURT RELIES." UNITED STATES V. ABBOTT, 2024 U.S. APP. LEXIS 18854 *5. THE COURT REVERSED THE DISTRICT COURT'S ORDER GRANTING A PRELIMINARY INJUNCTION AND REMANDED WITH INSTRUCTIONS FOR THE DISTRICT COURT TO VACATE THE PRELIMINARY INJUNCTION AND FOR FURTHER PROCEEDINGS CONSISTENT WITH THE COURT'S OPINION. ID. AT *6. |
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UNITED STATES V. TEXAS AND LAS AMERICAS IMMIGRANT ADVOCACY CENTER V. MCCRAW, FIFTH CIRCUIT NO. 24-50149. AMICUS BRIEF FILED MARCH 13, 2024. THE DISTRICT COURT ENJOINED ENFORCEMENT OF NEW TEXAS LAW S.B. 4, WHICH MAKES ILLEGAL ENTRY ACROSS THE TEXAS BORDER A CRIMINAL MISDEMEANOR OFFENSE. THE COURT OF APPEALS ISSUED A TEMPORARY ADMINISTRATIVE STAY OF THE DISTRICT COURT'S INJUNCTION TO ALLOW THE PARTIES TO BRIEF THE CASE AND THE COURT TO HEAR AND DECIDE THE CASE. THE UNITED STATES ASKED THE U.S. SUPREME COURT TO INTERVENE AND STAY THE COURT OF APPEALS' ADMINISTRATIVE STAY, WHICH WOULD HAVE REINVIGORATED THE DISTRICT COURT'S INJUNCTION. ON MARCH 19, 2024, THE SUPREME COURT DENIED THE UNITED STATES' APPLICATION TO VACATE THE COURT OF APPEAL'S ADMINISTRATIVE STAY, LEAVING S.B. 4 ENFORCEABLE WHILE THE COURT OF APPEALS PROCESSES THE APPEAL BEFORE IT. A 5TH CIRCUIT PANEL THEN HELD AN EMERGENCY HEARING AND LIFTED THE ADMINISTRATIVE STAY, THEREBY REINSTITUTING THE DISTRICT COURT INJUNCTION. THE CASE IS PROGRESSING IN THE COURT OF APPEALS. OUR AMICUS BRIEF SUPPORTS TEXAS'S SOVEREIGN POWERS TO CONTROL ITS BORDERS AND TO PROTECT ITS PEOPLE FROM INVASION. U.S. CONSTITUTION, ART. I, SEC. 10, CL. 3 ("NO STATE SHALL, WITHOUT THE CONSENT OF CONGRESS, . . . ENGAGE IN WAR, UNLESS ACTUALLY INVADED, OR IN SUCH IMMINENT DANGER AS WILL NOT ADMIT OF DELAY."). |
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CONSUMER FINANCE PROTECTION BOARD V. TOWNSTONE FINANCIAL, INC., SEVENTH CIRCUIT NO. 23-1654 (CHEVRON DEFERENCE, CRITICAL RACE THEORY). AMICUS BRIEF FILED AUGUST 21, 2023, SUPPORTING TOWNSTONE. THE DISTRICT COURT DISMISSED THE CFPB'S COMPLAINT AGAINST TOWNSTONE BECAUSE THE CFPB'S REGULATIONS EXCEEDED ITS STATUTORY AUTHORITY TO REGULATE WITH RESPECT TO "APPLICANTS" FOR CREDIT. THE REGULATIONS ATTEMPT TO REGULATE "PROSPECTIVE APPLICANTS," ESSENTIALLY SUBJECTING ALL PUBLIC COMMUNICATIONS AND ADVERTISING TO CFPB OVERSIGHT. THE CFPB CHERRY PICKED A FEW REMARKS IN TOWNSTONE'S PUBLIC COMMUNICATIONS, APPLIED DEMOGRAPHIC STATISTICAL INFORMATION TO THEM, AND DECLARED THEM RACIST AND THUS, IN VIOLATION OF THE REGULATIONS. THE DISTRICT COURT LOOKED AT THE ACTUAL LANGUAGE OF THE STATUTE, WHICH USES THE TERM "APPLICANT," DECLARED THAT THE STATUTE WAS CLEAR ON ITS FACE, AND DECLARED THAT THE CFPB REGULATION CONCERNING "PROSPECTIVE APPLICANTS" EXCEEDED THE SCOPE OF CFPB'S AUTHORITY. THE CFPB APPEALED TO THE SEVENTH CIRCUIT. OUR AMICUS BRIEF ARGUED THAT THE CFPB WAS EXCEEDING ITS STATUTORY AUTHORITY AND ITS ENFORCEMENT ACTION IS BEST UNDERSTOOD AS AN EXERCISE IN CRITICAL RACE THEORY. ON JULY 11, 2024, THE SEVENTH CIRCUIT DECIDED THAT, WHEN THE TEXT OF THE EQUAL CREDIT OPPORTUNITY ACT (THE "ECOA"), 15 U.S.C. 1691 ET SEQ., "IS READ AS A WHOLE, IT IS CLEAR THAT CONGRESS AUTHORIZED THE IMPOSITION OF LIABILITY FOR THE DISCOURAGEMENT OF PROSPECTIVE APPLICANTS. REGULATION B'S PROHIBITION ON DISCOURAGING PROSPECTIVE APPLICANTS IS THEREFORE CONSISTENT WITH THE ECOA'S TEXT AND PURPOSE." SLIP OP. AT 2. THE COURT DID NOT, HOWEVER, RULE ON THE UNDERLYING MERITS OF THE CFPB'S CLAIM. SLIP OP. AT 15. ACCORDINGLY, THE COURT REVERSED THE DISTRICT COURT AND REMANDED THE CASE FOR FURTHER PROCEEDINGS CONSISTENT WITH THE COURT'S DECISION. ON NOVEMBER 7, 2024, THE DISTRICT COURT ENTERED A STIPULATED FINAL JUDGMENT AND ORDER SETTLING THE CASE WITHOUT ANY ADMISSION OR FINDING OF LIABILITY ON THE PART OF TOWNSTONE FINANCIAL. THIS CASE IS OVER. |
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BRANDT V. GRIFFIN, EIGHTH CIRCUIT NO. 23-2681. AMICUS BRIEF FILED NOVEMBER 14, 2023. DEFENDING ARKANSAS' LAW BANNING RADICAL TRANSGENDER TREATMENTS FOR MINORS. ON APRIL 6, 2021, THE ARKANSAS LEGISLATURE PASSED THE "ARKANSAS SAVE ADOLESCENTS FROM EXPERIMENTATION (SAFE) ACT." THE ACT "PROHIBITS A PHYSICIAN OR OTHER HEALTHCARE PROFESSIONAL FROM PROVIDING 'GENDER TRANSITION PROCEDURES' TO ANY INDIVIDUAL UNDER EIGHTEEN YEARS OF AGE AND FROM REFERRING ANY INDIVIDUAL UNDER EIGHTEEN YEARS OF AGE TO ANY HEALTHCARE PROFESSIONAL FOR 'GENDER TRANSITION PROCEDURES.'" BRANDT V. RUTLEDGE, 2023 U.S. DIST. LEXIS 106517, AT *5-6 (E.D. ARK. 2023) ("BRANDT"). THE ACT PROHIBITS, INTER ALIA, DISFIGURING SURGERIES TO ARTIFICIALLY ADD OR REMOVE BODY PARTS IN PURSUIT OF "GENDER TRANSITION, AND PUBERTY-BLOCKING HORMONES. ID. AT *6. THE ACT CREATES A PRIVATE RIGHT OF ACTION AGAINST ANY PHYSICIAN PERFORMING SUCH PROCEDURES. ID. AT *7. THE ACT WAS CHALLENGED BY A COALITION OF PLAINTIFFS, INCLUDING PHYSICIANS WISHING TO PERFORM "GENDER TRANSITION PROCEDURES FOR PROFIT, AND MINOR PLAINTIFFS BELIEVING THEMSELVES TO BE "TRANSGENDER," WHOSE PARENTS SUED ON THEIR BEHALF AS"FIRST FRIENDS." ID. AT *1. THE DISTRICT COURT RULED THAT THE ACT VIOLATED THE EQUAL PROTECTION CLAUSE FOR DISCRIMINATING ON THE BASIS OF SEX AND DISCRIMINATING AGAINST TRANSGENDER PEOPLE. BRANDT, AT *92-107. THE COURT ALSO RULED THAT THE ACT VIOLATED DUE PROCESS OF LAW FOR INFRINGING ON THE "FUNDAMENTAL LIBERTY INTEREST" OF THE MINOR PLAINTIFFS' PARENTS IN DIRECTING THE MEDICAL TREATMENT OF THEIR CHILDREN. ID. AT *107-110. FINALLY, THE COURT RULED THAT THE ACT VIOLATES THE FIRST AMENDMENT FOR REGULATING SPEECH BY PREVENTING DOCTORS FROM REFERRING FOR GENDER TRANSITION TREATMENT. ID. AT *110-113. OUR BRIEF ARGUES, INTER ALIA, THAT THE DISTRICT COURT'S FINDINGS OF FACT ASSUME THE LEGITIMACY OF MODERN "GENDER IDENTITY" THEORY, WHICH REJECTS THE UNIVERSALLY RECOGNIZED MEDICAL FACT THAT EVERY PERSON IS EITHER A MAN OR A WOMAN, AND NO ONE CAN SHIFT BETWEEN THE SEXES. THE COURT RECITED THE MANTRA THAT A PERSON HAS A SEX "ASSIGNED AT BIRTH," BUT THE NOTION THAT A PHYSICIAN OR NURSE "ASSIGNS" A SEX TO A NEONATE IS BUILDING BLOCK NUMBER 1 ON WHICH THE FRAUD OF TRANSGENDERISM IS BUILT. THE DISTRICT COURT THEN SHIFTED AWAY FROM THE NOTION OF MALE OR FEMALE "SEX," PREFERRING TO USE THE TERM "GENDER." MISAPPLICATION OF THE TERM "GENDER"TO HUMAN BEINGS PROVIDES BUILDING BLOCK NUMBER 2 ON WHICH THE TRANS LOBBY RELIES. GENDER ORIGINALLY WAS A TERM USED TO DESCRIBE NOUNS IN THE ROMANCE LANGUAGES, WHICH WERE ARBITRARILY ASSIGNED A "GENDER" OF MASCULINE OR FEMININENOT MALE OR FEMALE. "WHY ARE THE ROMANCE LANGUAGES GENDERED?" BRITANNICA. THE TRANSGENDERISM MOVEMENT LATCHED ONTO THE TERM "GENDER" TO OBSCURE OBVIOUS REALITY THAT ONE'S SEX COULD NOT, IN FACT, BE CHANGED. IT WAS DETERMINED SCIENTIFICALLY AND EXCLUSIVELY BY ONE'S CHROMOSOMES. SEE, E.G., P. AATSHA, T. ARBOR, AND K. KRISHAN, "EMBRYOLOGY, SEXUAL DEVELOPMENT" ("AT THE GENETIC LEVEL, CHROMOSOMAL SEX IS DETERMINED BY THE CHROMOSOMAL COMPLEMENT AFTER FERTILIZATION, WHERE XY INDICATES A CHROMOSOMAL MALE AND XX INDICATES A CHROMOSOMAL FEMALE."). WE CRITICIZE THE DISTRICT COURT'S RELIANCE ON THE WORLD PROFESSIONAL ASSOCIATION FOR TRANSGENDER HEALTH ("WPATH") AND THE ENDOCRINE SOCIETY ("ES"), DEMONSTRATING THAT THEY ARE CONFLICTED BELLIGERENTS IN THE CULTURE WAR, NOT NEUTRAL UMPIRES. WPATH AND ES RECEIVE FUNDING FROM THE PHARMACEUTICAL INDUSTRY AND OTHERS WHO STAND TO PROFIT FROM TRANSGENDER TREATMENTS, WHICH IS A MULTI-BILLION DOLLAR INDUSTRY. THOSE WHO COMMENCE TREATMENTS END UP IN EXPENSIVE, LIFELONG RELATIONSHIPS WITH THE MEDICAL INDUSTRIAL COMPLEX. FINALLY, WE ARGUE THAT CHARACTERIZING TREATMENTS AS "GENDER REASSIGNMENT" DOES NOT ALTER THE FACT THAT STERILIZATION IS THE END RESULT, AND ARKANSAS MUST HAVE THE AUTHORITY TO PREVENT THE STERILIZATION OF CHILDREN ON THE SAY-SO OF A PARENT OR GUARDIAN. WE URGE THE COURT OF APPEALS TO REVERSE THE DISTRICT AND UPHOLD ARKANSAS'S LAW. |
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BOLAND V. BONTA, NINTH CIRCUIT NO. 23-55276. AMICUS BRIEF FILED JUNE 2, 2023, CHALLENGES CALIFORNIA'S APPROVED HANDGUN LIST UNDER THE SECOND AMENDMENT. THE LIST RESULTS FROM CALIFORNIA'S UNSAFE HANDGUN ACT, A "CONSUMER PROTECTION" LAW OSTENSIBLY ENACTED TO PROTECT THE PUBLIC FROM "UNSAFE" GUNS. UNDER THAT LAW, CALIFORNIA DETERMINES WHAT HANDGUNS CITIZENS MAY BUY AND WHAT HANDGUNS THEY MAY NOT BUY. WE SAY IN RESPONSE: CALIFORNIA[] TREATS HANDGUNS AS IF THEY WERE JUST ANY CONSUMER PRODUCT, WHERE THE RIGHT TO PURCHASE AND OWN IS A MATTER OF LEGISLATIVE GRACE AND WHERE THE GOVERNMENT HAS BROAD POLICE POWER TO PROTECT THE CONSUMER. THIS APPROACH DELIBERATELY IGNORES THE RICH HISTORY OF AND PURPOSE OF GUN RIGHTS--A RIGHT THAT WAS NOT CONFERRED BY GOVERNMENT, AND THUS WHICH MAY NOT BE TAKEN AWAY BY GOVERNMENT. AMICUS BRIEF AT 23. THE NINTH CIRCUIT HEARD ORAL ARGUMENT ON AUGUST 23, 2023. ON MARCH 25, 2024, THE PANEL DECIDED TO PAUSE THE CASE ("SUBMISSION OF THIS CASE IS VACATED") PENDING THE EN BANC DECISION IN DUNCAN V. BONTA, WHICH WAS ARGUED THE WEEK OF MARCH 18, 2024. |
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DUNCAN V. BONTA, NINTH CIRCUIT NO. 23-55805. AMICUS BRIEF FILED DECEMBER 28, 2023. THIS CASE CHALLENGES CALIFORNIA'S YEAR 2000 LAW PROHIBITING THE MANUFACTURE, IMPORTATION, SALE, AND TRANSFER OF SO-CALLED LARGE-CAPACITY MAGAZINES, WHICH IT DEFINES AS "ANY AMMUNITION FEEDING DEVICE WITH THE CAPACITY TO ACCEPT MORE THAN 10 ROUNDS," CALIFORNIA PENAL CODE 16740; CALIFORNIA'S 2016 LAW BANNING THE POSSESSION OF LARGE-CAPACITY MAGAZINES; AND THE NOVEMBER 2016 PROPOSITION 63, WHICH CALIFORNIA VOTERS APPROVED TO THE SAME EFFECT, AS VIOLATIONS OF THE SECOND AMENDMENT. THIS CASE HAS HAD A LONG HISTORY AND EVENTUALLY MADE IT TO THE U.S. SUPREME COURT AFTER AN EN BANC NINTH CIRCUIT DECISION REVERSED THE DISTRICT COURT AND UPHELD THE BAN. FOLLOWING ITS DECISION IN NEW YORK STATE RIFLE & PISTOL ASSOCIATION V. BRUEN, 142 S. CT. 2111 (2022), THE SUPREME COURT GRANTED THE PETITION FOR A WRIT OF CERTIORARI, VACATED THE NINTH CIRCUIT DECISION, AND REMANDED THE CASE TO THE NINTH CIRCUIT, DUNCAN V. BONTA, 142 S. CT. 2895 (2022), WHICH REMANDED THE CASE TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS. SEE DUNCAN V. BONTA, 49 F.4TH 1228 (9TH CIR. 2022). THE DISTRICT AGAIN HELD THE LAW UNCONSTITUTIONAL, DUNCAN V. BONTA, 2023 U.S. DIST. LEXIS 169577 (S.D. CAL. 2023), AND CALIFORNIA AGAIN APPEALED TO THE NINTH CIRCUIT. OUR BRIEF URGES THE NINTH CIRCUIT TO CEASE ITS LONG-STANDING HOSTILITY TO SECOND AMENDMENT RIGHTS AND THE U.S. SUPREME COURT'S SECOND AMENDMENT JURISPRUDENCE AND AFFIRM THE DISTRICT COURT'S POST-REMAND DECISION, ARGUING THAT IT IS FULLY CONSISTENT WITH BRUEN. THE NINTH CIRCUIT, SITTING EN BANC, HEARD ORAL ARGUMENT THE WEEK OF MARCH 18, 2024. WE AWAIT A DECISION. |
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MILLER V. BONTA, NINTH CIRCUIT NO. 23-2979. AMICUS BRIEF FILED DECEMBER 29, 2023. THIS CASE CHALLENGES CALIFORNIA'S ASSAULT WEAPONS CONTROL ACT OF 1989 AS AMENDED IN 1999 TO EXPAND ITS LIST OF "ASSAULT WEAPONS" TO INCLUDE SEMIAUTOMATIC FIREARMS WHICH HAD CERTAIN FEATURES: (A) A PISTOL GRIP THAT PROTRUDES CONSPICUOUSLY BENEATH THE ACTION OF THE WEAPON; (B) A THUMBHOLE STOCK; (C) A FOLDING OR TELESCOPING STOCK; (D) A GRENADE LAUNCHER OR FLARE LAUNCHER; (E) A FLASH SUPPRESSOR; OR (F) A FORWARD PISTOL GRIP. [CAL. PENAL CODE 30515(A)(1) ("AWCA").] FOLLOWING A TRIAL, THE U.S. DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA HELD THAT "AWCA AMOUNTED TO A BAN ON THE POSSESSION OF SUCH WEAPONS, AND THAT "[A] LAW THAT IMPOSES SUCH A SEVERE RESTRICTION ON THE FUNDAMENTAL RIGHT OF SELF-DEFENSE OF THE HOME THAT IT AMOUNTS TO A DESTRUCTION OF THE SECOND AMENDMENT RIGHT IS UNCONSTITUTIONAL UNDER ANY LEVEL OF SCRUTINY." THE COURT ENJOINED ENFORCEMENT OF THE CHALLENGED PROVISIONS. THE NINTH CIRCUIT STAYED THE INJUNCTION PENDING APPEAL. OUR AMICUS BRIEF PROVIDES HISTORICAL PERSPECTIVE TO THE RIGHT TO BEAR ARMS ENSHRINED IN THE SECOND AMENDMENT AND THEN ADDRESSES EACH OF THE PROHIBITED FEATURES IN TURN, SHOWING HOW SOME OF THE FEATURES HAVE NO EFFECT ON THE AMORPHOUS, ASSERTED "DANGEROUSNESS" OF THE WEAPON WHILE OTHERS ARE ERGONOMIC, SAFETY-INCREASING ITEMS THAT REDUCE OR ELIMINATE UNINTENDED HARM, ACTUALLY ENHANCING SAFETY. AMICUS BRIEF AT 13-18 & 24. THE NINTH CIRCUIT HEARD ORAL ARGUMENT ON JANUARY 24, 2024. WE ARE AWAITING A DECISION. |
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NGUYEN V. BONTA, NINTH CIRCUIT NO. 24-2036, A CHALLENGE TO CALIFORNIA'S ONE GUN A MONTH LAW. AMICUS BRIEF FILED JUNE 4, 2024. THE DISTRICT COURT ENJOINED ENFORCEMENT OF THE LAW ON THE GROUNDS THAT THE PLAIN TEXT OF THE SECOND AMENDMENT PROTECTS THE CONDUCT CRIMINALIZED BY THE CALIFORNIA LAW. THE COURT CONDUCTED HISTORICAL ANALYSIS TO DETERMINE WHETHER THE LAW'S CONDITIONS AND QUALIFICATIONS ON THE COMMERCIAL SALE OF ARMS IS "LONGSTANDING" UNDER NEW YORK STATE RIFLE & PISTOL ASS'N, INC. V. BRUEN, 597 U.S. 1 (2022) AND CONCLUDED THAT THE HISTORICAL LAWS OFFERED BY CALIFORNIA WERE NOT RELEVANTLY SIMILAR. ID. AT 28-29. ON APRIL 24, 2024, A NINTH CIRCUIT MOTIONS PANEL ISSUED A STAY OF THE DISTRICT COURT'S PERMANENT INJUNCTION PENDING APPEAL; HOWEVER, ON AUGUST 15, 2024, IN A PROMISING DEVELOPMENT, THE PANEL HEARING THE CASE REVERSED THE MOTIONS PANEL'S ORDER, ALLOWING THE DISTRICT COURT INJUNCTION TO AGAIN GO INTO EFFECT. OUR BRIEF ARGUES THAT THE RIGHT TO KEEP AND BEAR ARMS INCLUDES THE RIGHT TO ACQUIRE THEM, AND NOT JUST ONE A MONTH, BUT MORE THAN ONE, AS THE SECOND AMENDMENT USES THE PLURAL TERM "ARMS." WE ALSO SHOW THAT CALIFORNIA'S PROFERRED HISTORICAL JUSTIFICATIONS FOR THE LAW DO NOT SATISFY BRUEN. ORAL ARGUMENT WAS HELD ON AUGUST 14, 2024. WE AWAIT A DECISION. |
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NEW YORK V. DONALD TRUMP, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, NOS. 2023-04925, 2024-01134, & 2024-01135. AMICUS BRIEF FILED AUGUST 2, 2024. THIS CASE DEALS WITH ALLEGEDLY FALSE ENTRIES MADE IN THE ACCOUNTING RECORDS OF TRUMP BUSINESSES, WHICH ALLEGEDLY MISLED LENDERS AND ENABLED DEFENDANTS TO OBTAIN LOANS ON MORE FAVORABLE RATES THAN THEY OTHERWISE WOULD HAVE OBTAINED. THIS IS A NOVEL USE OF THE STATE'S CONSUMER PROTECTION LAWS. OUR BRIEF ARGUES THAT THE $435 MILLION CIVIL PENALTY JUDGMENT ENTERED AGAINST DONALD TRUMP, OTHER FAMILY MEMBERS AND ASSOCIATES, AND BUSINESSES IN WHICH HE HAD A CONTROLLING INTEREST EXCEEDED THE CASE'S STATUTORY BASIS AND VIOLATED THE FIRST, EIGHTH, AND FOURTEENTH AMENDMENTS TO THE CONSTITUTION OF THE UNITED STATES. ORAL ARGUMENT WAS HELD ON SEPTEMBER 26, 2024. JUSTICES ASKED NEW YORK'S LAWYERS WHETHER THERE WERE ANY LIMITS TO EXECUTIVE LAW 63(12) AND WHETHER THERE WERE ANY OTHER CASES WHERE THERE WERE NO ACTUAL VICTIMS, JUSTICE DAVID FRIEDMAN COMMENTING THAT HERE NOBODY "LOST ANY MONEY." WE AWAIT A DECISION. |
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DIANNE HENSLEY V. STATE COMMISSION ON JUDICIAL CONDUCT, TEXAS SUPREME COURT NO. 22-1145, REGARDING JUDGE'S FREEDOM OF RELIGION AND CONSCIENCE TO PERFORM OPPOSITE SEX MARRIAGES, BUT NOT SAME SEX MARRIAGES. AMICUS BRIEF FILED OCTOBER 10, 2023. THE TEXAS COMMISSION ON JUDICIAL CONDUCT ISSUED A PUBLIC WARNING ABOUT THE FITNESS OF JUSTICE OF THE PEACE HENSLEY TO SERVE BECAUSE HER CHRISTIAN FAITH PRECLUDED HER FROM CONDUCTING SAME SEX WEDDINGS. WHEN ASKED, SHE REFERRED THESE TO ANOTHER OFFICIANT, AND NO ONE COMPLAINED--EXCEPT FOR THOSE RUNNING THE COMMISSION ON JUDICIAL CONDUCT. HENSLEY SUED THE COMMISSION UNDER TEXAS'S RELIGIOUS FREEDOM RESTORATION ACT (TRFRA). THE TRIAL COURT DISMISSED HER CLAIMS AND THE COURT OF APPEALS AFFIRMED. THE TEXAS SUPREME COURT DECIDED THE CASE ON JUNE 28, 2024, HOLDING THAT HENSLEY'S TRFRA CLAIMS MUST BE ADDRESSED. THE CASE WAS REMANDED TO THE COURT OF APPEALS TO ADDRESS THE REMAINING CLAIMS. LOOKING TO THE FUTURE: THE FUND CONTINUES TO MONITOR DEVELOPMENTS IN THE AREAS OF FIRST AMENDMENT, SECOND AMENDMENT, FOURTEENTH AMENDMENT, SEPARATION OF POWERS, CAMPAIGN FINANCE AND REGULATION, AND OTHER CONSTITUTIONAL ISSUES WITH A VIEW TOWARD PARTICIPATING IN OR SUPPORTING ADDITIONAL LITIGATION WHEN THE OPPORTUNITY ARISES. |
Attach to Form 990 or Form 990-EZ.