The Conservative Legal Defense and Education Fund (CLDEF) is a non-profit educational foundation. Since 1985 it has promoted Constitutional interpretation based on fidelity to the actual text of the Constitution.
Personhood Oklahoma v. Brittany Mays Barber, et al., Amicus Brief
On August 31, 2012 an amicus brief was filed on behalf of CLDEF in the case of Personhood Oklahoma v. Brittany Mays Barber, et al. in the United States Supreme Court in support of petitioner's petition for writ of certiorari.
By striking the proposed initiative amending the Oklahoma constitution by defining “person” as it appears in the state constitution, the court below misused Planned Parenthood v. Casey to deprive the people of Oklahoma of a power reserved them by the Tenth Amendment. Our amicus brief argues that the petition for a writ of certiorari should be granted because the petition presents a question of momentous significance to the powers reserved by the Tenth Amendment to the people. The definition of “person” in the proposed amendment is not repugnant to any provision in the U.S. Constitution, and therefore, the initiative is not outside the powers of the people reserved to them by the Tenth Amendment.
Our amicus brief also argues that the petition for a writ of certiorari should be granted because it presents an important question concerning the exercise of judicial review that cannot be settled except by the Supreme Court. The decision of the court below is based squarely upon the mistaken doctrine of judicial supremacy — that the Supreme Court’s Casey decision is the supreme law of the land, and thus, legally binding upon the people of Oklahoma in the exercise of their inherent power to amend the State constitution. The Supreme Court, however, is not the final arbiter of the U.S. Constitution, in the way that the court below ruled. Rather, its decisions bind only the parties to a case. The people who constitute the government of Oklahoma remain supreme, possessing the inalienable right to propose, ratify, and amend the State constitution as they see fit, so long as the changes are not repugnant to the U.S. Constitution, as it is written, not as it is interpreted and applied in specific cases by the Supreme Court.
Dennis Hollingsworth, et al. v. Kristin M. Perry, et al., Amicus Brief
On August 31, 2012 an amicus brief was filed on behalf of CLDEF in the case of Dennis Hollingsworth, et al. v. Kristin M. Perry, et al. in the United States Supreme Court in support of petitioner's petition for writ of certiorari.
Brought as a challenge to California Proposition 8, this case concerns whether homosexuals desiring the benefits of marriage have a constitutional right to compel that marriage be redefined to accommodate their sexual preferences. Our amicus brief urges that the petition for a writ of certiorari be granted to correct the badly flawed opinions below, and to reconsider the Supreme Court’s decision in Romer.
Our amicus brief argues that the opinion of the court below demonstrates the confusion that has been wrought by the Supreme Court's jurisprudence granting special status to homosexuals. Further, the circuit court's opinion is based on a false and illegitimate inquiry into the motivations of the people. Finally, the Supreme Court's decision in Romer v. Evans has departed from the constitutional text, has sown confusion, and should be reconsidered and overturned.
Raymond Woollard, et al. v. Denis Gallagher, et al., Amicus Brief
On August 6, 2012 an amicus brief was filed on behalf of CLDEF in the case of Raymond Woollard, et al. v. Denis Gallagher, et al. in the United States Court of Appeals for the Fourth Circuit in support of plaintiffs-appellees and affirmance.
This case involves a challenge to the constitutionality of the State of Maryland’s handgun permit statute and regulatory scheme. Maryland requires an applicant for a license to carry a handgun to demonstrate that he has “good and substantial reason” to carry a handgun. Plaintiff Woollard previously had been granted a handgun carry permit. Unable to produce evidence of a current threat, Woollard’s request for a renewal of the permit was denied. Woollard and an association of gun owners, Second Amendment Foundation, challenged the Maryland license requirement, arguing that the “good and substantial reason” requirement violates the Second Amendment right to “keep and bear arms.”
The district court found “Maryland’s requirement ... is insufficiently tailored to the State’s interest in public safety and crime prevention” and “impermissibly infringes the right to keep and bear arms, guaranteed by the Second Amendment.” Our amicus brief urges the court of appeals to affirm the decision of the district court to overturn the Maryland statutory scheme but without reference to any judicial balancing or standard of review and based on the text of the Second Amendment.
Our amicus brief argues that Maryland provides no analysis of the text of the Second Amendment and misrepresents the applicability of English historical antecedents. Further, Maryland's argument rests on a misleading overview of the Supreme Court's decision in Heller. Our brief shows that the Supreme Court decisions in Heller and McDonald preclude lower courts from using judicial balancing. Heller actually requires that reviewing courts identify and apply the Second Amendment with the scope intended by the founders.
Bipartisan Legal Advisory Group of the United States House of Representatives v. Nancy Gill, et al., Amicus Brief
On August 2, 2012 an amicus brief was filed on behalf of CLDEF in the case of Bipartisan Legal Advisory Group of the United States House of Representatives v. Nancy Gill, et al. in the United States Supreme Court in support of petitioner's petition for writ of certiorari.
Our amicus brief argues that the petition for a writ of certiorari should be granted, but not limited to petitioner's two questions, both of which rest upon the assumption that the Fifth Amendment’s Due Process Clause imposes an “equal protection” limit on the exercise of Congress’s Taxing and Spending Powers. Our amicus brief urges the Supreme Court to add to the questions to be addressed whether section 3 of the Defense of Marriage Act (“DOMA”) violates the Fifth Amendment Due Process guarantee as it is written, not as it has been construed by the Supreme Court.
Additionally our brief urges the Supreme Court if not persuaded by the textual argument, that it grant the petition to review whether its various balancing tests, including strict scrutiny, intermediate scrutiny, and rational basis, are wholly unsuitable to the task of objective judicial review, as demonstrated by an illustrative review of the Supreme Court’s decisions and the decision of the court below. Unmoored from the constitutional text, the Supreme Court’s tests have been, and if not abandoned will continue to be, used inconsistently by unelected judges in the unchecked exercise of raw legislative power.
Center for Individual Freedom, et al. v. Chris Van Hollen, et al., Amicus Brief
On June 27, 2012 an amicus brief was filed on behalf of CLDEF in the case of Center for Individual Freedom, et al. v. Chris Van Hollen, et al. in the United States Court of Appeals for the District of Columbia Circuit in support of appellants and reversal.
Our brief argues that the BCRA section 201 provision requiring disclosure of the names and addresses of all contributors who contributed an aggregate of $1,000 or more is subject to the rule of statutory construction to avoid serious constitutional problems. The Supreme Court did not address or resolve in Citizens United the constitutionality of whether the disclosure requirement applied to any donor who gave money generally to the publisher of an electioneering communication without direction as to how the funds should be used. Forced disclosures are subject to “exacting scrutiny” requiring proof of a strong governmental interest in the prevention of corruption or the appearance of corruption. The government interest in a better informed public, standing by itself, is not sufficient to override the well-established anonymity principle undergirding the freedoms of speech and the press. To avoid compromising that principle, BCRA’s disclosure provision should be construed to require proof that the “contributor who contributed” did so with the specific purpose of supporting an electioneering communication.
Moreover, there is no constitutionally legitimate basis to require any reporting and disclosure for any communication merely because it mentions the name of a candidate for federal office. To label such communications as anything more than issue advocacy is to apply a misnomer. Additionally, to justify such disclosure requirements as furthering the interest of the government in a better informed public camouflages the real purpose — to protect incumbent office holders at the expense of their challengers. Forced disclosure is anathema to this nation’s founding commitment to a self-governing people’s marketplace of ideas free from licensure and censorship by the government.
Christopher Hedges v. Barack Obama, et al., Amicus Brief
On April 16, 2012 an amicus brief was filed on behalf of CLDEF in the case of Christopher Hedges v. Barack Obama, et al. in the United States District Court for the Southern District of New York in support of plaintiffs. This lawsuit challenges the National Defense Authorization Act of 2012's illegal detention provision.
Dept. of Health and Human Services, et al. v. State of Florida, et al. (Obamacare), Amicus Brief
On February 13, 2012 an amicus brief was filed on behalf of CLDEF in the case of Dept. of Health and Human Services, et al. v. State of Florida, et al. (Obamacare) in the United States Supreme Court in support of respondents (minimum coverage provision). The brief asked the Court to overturn two of its most extreme, and controversial, Commerce Clause holdings:
"The Government believes that this law is fully justified under this Court’s Commerce Clause jurisprudence, particularly relying on United States v. Darby and Wickard v. Filburn. These revolutionary Supreme Court decisions cast aside settled constitutional doctrine for reasons of political expediency in the wake of President Franklin D. Roosevelt’s threat to pack the Court. The time has come that they should be re-examined and overturned, lest Congress conclude that it can compel whatever behavior it believes would make us a more healthy People — leading us to a totalitarian state where everything not prohibited is mandated."
State of Arizona et al. v. United States, Amicus Brief (on the Merits)
On February 13, 2012 an amicus brief was filed on behalf of CLDEF in the case of State of Arizona et al. v. United States in the United States Supreme Court in support of petitioners.
Our amicus brief argues that S.B. 1070 is a constitutional exercise of Arizona’s inherent power of self-preservation, the purpose of which is “attrition” of the numbers of illegal aliens living in Arizona. As an exercise of the State's concurrent power over immigration, Arizona's S.B. 1070 is not preempted by federal law. Arizona's S.B. 1070 is an exercise of its constitutional power to engage in war against an actual invasion. The current illegal immigration into Arizona constitutes an “actual invasion,” and Arizona’s “policy of attrition by enforcement” is a proper exercise of its express power to defend against an actual invasion. Instead of performing its constitutional duty to protect Arizona against invasion, the federal government has undermined the State, placing upon it unfunded mandates that attract illegal aliens into the State, and bestowing benefits upon illegal aliens for political reasons.
Louisiana v. Bryson, Amicus Brief
On January 13, 2012 an amicus brief was filed on behalf of CLDEF in the case of Louisiana v. John Bryson in the United States Supreme Court in support of plaintiffs' motion for leave to file a bill of complaint, challenging the constitutionality of the 2010 Census.
The United States Census Bureau maintains that it “is required by the U.S. Constitution to count everyone living in this country, regardless of immigration or citizenship status.” Our amicus brief argues that the Census Bureau claim is demonstrably untrue.
First, the United States Constitution did not create the Census Bureau, or even the Department of Commerce, of which the Census Bureau is a part. Thus, the Constitution vests no power directly in the Census Bureau. Rather, the Census Bureau is a creature of the United States Congress. As such, its powers and duties are determined by statute, not by the Constitution. Even then, the law establishing the Census Bureau must itself be “made in pursuance” of the Constitution in order for it to be the law of the land. See U.S. Constitution, Art. VI, Cl. 2.
Further, the Constitution does not require, or even authorize, a census “count [of] everyone living in this country.” Rather, Article I, Section 1, Clause 3, as amended by Section 2 of the 14th Amendment, authorizes a targeted decennial census of the “respective numbers” of the People of the several States, not a wholesale count of the numbers of persons found “living” in the United States. Only by such a tailored count can the constitutionally authorized decennial census serve the purpose for which that census has been required — the apportionment of representation of the people of the several states in the U.S. House of Representatives.
Lastly, it is manifestly untrue that the decennial census ordained by the Constitution is to be taken without regard to a person’s “immigration or citizenship status.” The decennial census is conducted for the apportionment of representation in the House of Representatives, the members of which are “chosen every second Year by the People of the several States.” The first sentence of the 14th Amendment establishes a symbiotic relationship between a person’s United States citizenship and that person’s State citizenship. Thus, whether a person is part of the People of a State is largely, if not exclusively, dictated by a person’s “immigration or citizenship status.” Any census that ignores that connection is fatally flawed.
Virginia v. Sebelius, Amicus Brief
On November 3, 2011 an amicus brief was filed on behalf of CLDEF in the case of Virginia v. Kathleen Sebelius in the United States Supreme Court in support of petitioner. This petition presents to the Supreme Court a clash between a federal law mandating the individual purchase of its approved healthcare insurance -- the Patient Protection and Affordable Care Act (“PPACA”) -- and a state law securing to state residents the freedom to choose whether or not to purchase such insurance -- the Virginia Health Care Freedom Act (“VHCFA”).
Our amicus brief argues that the Supreme Court should grant the Petition for a Writ of Certiorari to the U.S. Court of Appeals for the Fourth Circuit for the following reasons.
First, the court of appeals decision lacks respect for the principles of federalism upon which our nation is based. According to the court of appeals, no one may challenge the constitutionality of PPACA’s individual mandate. The court of appeals demonstrated a lack of respect for the VHCFA, Virginia’s elected officials, and Virginia’s constitutional challenge. Virginia’s challenge to PPACA’s individual mandate is fully consistent with the principles of federalism.
Finally, the court of appeals ruling that Virginia has no standing conflicts with the Supreme Court's decision in Bond v. United States. As a sovereign state, Virginia has standing to protect both the liberties of its people and its prerogatives and responsibilities reserved by the Tenth Amendment.
United States v. Antoine Jones, Amicus Brief (on the Merits)
On October 3, 2011 an amicus brief was filed on behalf of CLDEF in the case of United States v. Antoine Jones in the United States Supreme Court in support of respondent, Antoine Jones. Our amicus brief argues that the government's extreme position that the Fourth Amendment does not apply to GPS surveillance on public roadways is insupportable.
The government’s extreme view that the Fourth Amendment is completely irrelevant is made possible only by the Supreme Court’s mistaken jurisprudence that the Fourth Amendment only applies to situations wherein persons have a “reasonable expectation of privacy.” The "expectation of privacy" test for searches and seizures arose without support in the text or historical context of the Fourth Amendment, and has proven wholly inadequate to protect the American people from their government. Had the Supreme Court previously adhered to the original text of the Fourth Amendment, rather than substituting their own language, the right of the people to be “secure in their persons, houses, papers, and effects” would have preserved their privacy by a permanent wall of the unalienable right of private property.
The Fourth Amendment secures two related but distinct property rights. Its first guarantee secures the unalienable right of the people to private property unless the government demonstrates a superior property right, and the Fourth Amendment’s prohibition against general warrants protects persons and their property from indiscriminate and surreptitious searches. Lastly, our amicus brief argues that the attachment and use of the GPS tracking device in this case violated the Fourth Amendment ban on unreasonable searches and seizures.
Our amicus brief urges the Supreme Court to take the opportunity presented in this case to return to the text of the Fourth Amendment, to acknowledge its property basis, and to review the decision of the court of appeals within that framework.
State of Arizona et al. v. United States, Amicus Brief (on the Petition for Writ of Certiorari)
On September 12, 2011 an amicus brief was filed on behalf of CLDEF in the case of State of Arizona et al. v. United States in the United States Supreme Court in support of petitioners' petition for a writ of certiorari. Our brief argues that it is the preeminent duty of the Supreme Court to preserve the balance between the federal and state governments struck by the United States Constitution.
While Article VI of the Constitution provides that constitutional federal law is the supreme law of the land, it is incumbent upon the courts to remember that the powers of Congress are few and definite, while the powers of the State are many and indefinite. Indeed, it is even more critical to recall that the governments of the original 13 states preceded the government of the United States both in time and in right. If this truth is forgotten, the Supremacy Clause will be misused, subordinating the several states to the national government when the Constitution is replete with provisions designed to preserve the States as sovereign political communities with reserved powers to protect and to preserve themselves as free and independent states.
Purporting to apply the Supreme Court’s preemption doctrine, the U.S. Court of Appeals for the Ninth Circuit disregarded this fixed federalist principle. Instead of applying the ordinary presumption against preemption, the Ninth Circuit presumed that an Arizona law designed “to discourage and to deter the unlawful entry and presence of aliens” was a regulation of immigration and naturalization, and was therefore, within the exclusive province of the federal government.
Had the Ninth Circuit correctly applied the presumption against preemption, it would have recognized that the States have traditionally inquired into the status of their residents’ United States citizenship to determine whether they met the constitutional standard of state citizenship as defined by the Fourteenth Amendment. Because one’s U.S. citizenship determines whether a resident of a state is a state citizen, states have a legitimate interest in the enforcement of the nation’s immigration and naturalization laws, lest they be overrun politically and economically by persons illegally residing in the state.
In the case of Arizona, the state’s interest is even more acute and pronounced. Faced with a veritable horde of foreign invaders from the south, the Arizona state legislature adopted a policy of “attrition” as a means of self-defense. Not only did the Ninth Circuit disregard this purpose, it ignored that, under Article IV, Section 4, the federal government was obliged to stop this invasion, and that Article I, Section 10 expressly reserved to the states the power to defend themselves against invaders.
The express reservation of power in the states to repel an invasion need not await an actual invasion, nor a declaration of war. It is enough that the state is in imminent danger for it to draw on its reserved power of self-preservation. According to the Ninth Circuit, however, Arizona must rely on the federal government’s discretion in the enforcement of its immigration and naturalization laws. But the federal government has contributed to — not alleviated — the danger by a decade of bi-partisan neglect of Arizona’s plight that threatens public solvency, especially in the provision of educational services to millions of illegal aliens and their families.
United States v. Antoine Jones, Amicus Brief (on the Petition for Writ of Certiorari)
On May 16, 2011 an amicus brief was filed on behalf of CLDEF in the case of United States v. Antoine Jones in the United States Supreme Court. Our amicus brief urges the Supreme Court to grant the petition for writ of certiorari in this case, not for the reasons stated in the government’s petition, but to resolve a split among the circuits on the Fourth Amendment’s relevance and application to covert installations of global positioning systems (“GPS”) on an American citizen’s automobile by restoring the Fourth Amendment to its original text and purpose. Our amicus brief argues that the original objective, property-based text and purpose of the Fourth Amendment should be revived and applied, while the current ad hoc subjective, privacy-based view of the Fourth Amendment should be rejected.
Daniel Chapter One v. Federal Trade Commission, Amicus Brief
On May 13, 2011 an amicus brief was filed on behalf of CLDEF in the case of Daniel Chapter One, et al. v. Federal Trade Commission in the United States Supreme Court in support of petitioners' petition for writ of certiorari.
Our amicus brief argues that the Court of Appeals erroneously allowed the FTC to assert jurisdiction over Daniel Chapter One and that requiring Daniel Chapter One to substantiate its product claims by “controlled clinical studies” is outside FTC’s statutory authority. Further our amicus brief argues that no government has authority to dictate the health care choices of competent individuals. Lastly, parts of the FTC’s order substantially burden Daniel Chapter One’s exercise of religion in violation of the Religious Freedom Restoration Act and contravene the First Amendment principle of speaker autonomy.
Virginia v. Sebelius, Amicus Brief
On April 4, 2011 an amicus brief was filed on behalf of CLDEF in the case of Commonwealth of Virginia v. Kathleen Sebelius in the United States Court of Appeals for the Fourth Circuit.
Our amicus brief supports the Commonwealth of Virginia’s challenge to the minimum coverage provision of the "Patient Protection and Affordable Care Act” ("PPACA") arguing 1) Virginia has standing to bring this action, 2) the individual mandate cannot be justified as a constitutional exercise of Congress’s power to regulate interstate commerce, and 3) PPACA constitutes federal take-over of health and medicine in violation of the power of the states and of the people secured by the Tenth Amendment.
Arizona Free Enterprise Club's Freedom Club PAC, et al. v. Ken Bennett, Amicus Brief
On January 20, 2011 an amicus brief was filed on behalf of CLDEF in the case of Commonwealth of Virginia v. Kathleen Sebelius in the United States Court of Appeals for the Fourth Circuit. Our amicus brief On January 20, 2011 an amicus brief was filed on behalf of CLDEF in the case of Arizona Free Enterprise Club's Freedom Club PAC, et al. v. Ken Bennett in the United States Supreme Court in support of petitioners.
Our amicus brief argues that the Arizona system of public financing of campaigns for election to public office, the Arizona Citizens Clean Election Act, is unconstitutional to its core. Contrary to the analysis of the lower court, the public financing system approved in Buckley v. Valeo does not govern this case as Buckley permits only voluntarily-funded public financing of elections, while a ten percent surcharge on civil penalties and criminal fines unconstitutionally funds the Arizona public financing system. Further, the Arizona act unconstitutionally abridges petitioners’ privileges and immunities in violation of the Fourteenth Amendment. Our brief further argues that the Buckley rationale for public financing of election campaigns is fundamentally flawed and that the Arizona public financing scheme is antithetical to First Amendment principles.
Bond v. U.S., Amicus Brief
On December 10, 2010 an amicus brief was filed on behalf of CLDEF in the case of Carol Ann Bond v. United States in the United States Supreme Court in support of petitioner Bond. This case presents an unusual situation where the government has reconsidered its previous position and embraced the position of the criminal defendant petitioner Bond in seeking to overturn the decision of the court of appeals.
Our amicus brief argues three points. First, the opinion of the court of appeals was based on a fundamental misunderstanding of the federal government’s authority to criminalize behavior and the purpose of the Tenth Amendment to the U.S. Constitution. Next, prudential considerations cannot be invoked to deny standing to a defendant in a criminal case in a challenge to the constitutionality of a federal criminal statute. Lastly, granting petitioner standing in this case is necessary to preserve the constitutional role of the Supreme Court to check the federalization of criminal law.
Awad v. Ziriax, Amicus Brief
On November 16, 2010 an amicus brief was filed on behalf of CLDEF in the case of Muneer Awad v. Paul Ziriax, et al. in the U.S. District Court for the Western District of Oklahoma in opposition to the plaintiff's motion for temporary restraining order and preliminary injunction.
On November 2, 1010, the people of Oklahoma overwhelmingly approved State Question 755, which amends Article 7, Section 1, of the Oklahoma Constitution. The amendment restrains state courts from either deferring to or applying either international law or Sharia law. The plaintiff Awad, a self-described “practicing Muslim,” is seeking a temporary restraining order and preliminary injunction against the agency head and the three members of the Oklahoma State Board of Elections to prevent the board from certifying the passage of State Question 755. On November 9, 2010, the Court entered a temporary restraining order, enjoining defendants from certifying the election results for State Question 755 and scheduled a hearing on plaintiff’s request for a preliminary injunction for November 22, 2010.
The amicus brief filed on behalf of CLDEF in opposition to plaintiff's motion for temporary restraining order and preliminary injunction argues that the plaintiff has no standing to bring this case and that the plaintiff has failed to meet the four-part test required to support a preliminary injunction.
Skoien v. U.S., Amicus Brief
On November 15, 2010 an amicus brief was filed on behalf of CLDEF in the case of Steven Skoien v. United States in the United States Supreme Court in support of petitioner Skoien.
The issue before the court of appeals was whether petitioner Skoien, an American citizen, could be disqualified from possession of a lawful firearm because he had been convicted of a misdemeanor crime of domestic violence, as defined in 18 U.S.C. section 922(g)(9). The amicus brief filed on behalf of CLDEF urges the Court to grant certiorari as petitioner’s case presents a fundamental Second Amendment issue that needs to be resolved and so that the Court can address its decision in Heller. Specifically, the brief asks the Court to reconsider its “presumptively lawful” dictum in Heller; to reaffirm its ruling in Heller, as restated in McDonald, rejecting judicial interest balancing; and to restate, and apply in this case, the Heller ruling that the Second Amendment right “belongs to all Americans.”
Heller II, Amicus Brief
On July 30, 2010 an amicus brief was filed on behalf of CLDEF in the case of Dick Anthony Heller v. District of Columbia in the United States Court of Appeals for the District of Columbia Circuit. Our amicus brief was the only amicus brief filed in support of the challenge by appellant Dick Heller and others to portions of the D.C. Code that (i) require registration of all firearms, (ii) prohibit registration of so-called “assault weapons” and (iii) prohibit possession of so-called “high capacity” magazines.
Our brief argues that the district court erred when it upheld the District’s laws employing “intermediate scrutiny” – a judicially created standard of review that permits laws that are “reasonably related to an important government interest.” Our brief demonstrates that the Supreme Court has rejected such “interest balancing” standards of review in both the Heller I and McDonald cases. Instead, once a court determines that a person is part of “the people” and that the weapon is one of the “arms” protected by the Second Amendment, the amendment provides its own standard of review — “shall not be infringed.”
Our brief then explaines why the District has no jurisdiction to require a citizen to obtain a permit from the city to possess a firearm protected by the Second Amendment, and why the “assault weapons” and “high capacity magazines” which the District of Columbia seeks to ban are protected “arms" under the Second Amendment, as provided in United States v. Miller (1939) and the Heller I decision.
Committee to Recall Robert Menendez v. Wells, Amicus Brief
On May 10, 2010 an amicus brief was filed on behalf of CLDEF in the case of Committee to Recall Robert Menendez from the Office of U.S. Senator v. Nina Mitchell Wells in the Supreme Court of New Jersey supporting the efforts of the plaintiff, the Committee to Recall Robert Menendez from the Office of U.S. Senator. On November 2, 1993, by an overwhelming majority, the people of New Jersey enacted an amendment to the New Jersey Constitution which allows the people to recall their representatives to the U.S. Congress, and directing the state legislature to promulgate laws to provide for recall elections, which the legislature did in May, 1995.
In September, 2009, the New Jersey Secretary of State refused to comply with these provisions, and declined to certify the plaintiff’s effort to recall Senator Menendez. In January of 2010, the New Jersey Superior Court, Appellate Division ordered that the recall effort must go forward. Senator Menendez joined the suit as an indispensable party. On April 27, 2010, he successfully sought expedited review of the decision by the New Jersey Supreme Court, where the case is now pending.
Our brief argues that the power to recall U.S. Senators is reserved to the people by the Tenth and Seventeenth Amendments. When the Constitution was ratified, the state legislatures had the power to choose representatives. This changed when the Seventeenth Amendment was adopted in 1913 to require the direct election of Senators by the people of the various states. Senator Menendez believes that the Amendment granted Congressmen an immunity from removal by the people they represent, even if they fail to faithfully represent the interests of their constituents. Neither the Seventeenth Amendment nor any other section of the Constitution prohibits the people of New Jersey from recalling their representatives.
Lastly, the Supreme Court’s decision in U.S. Term Limits v. Thornton does not foreclose this power. There, the Court held that the state legislatures may not add qualifications for members of Congress to supplement those in the Constitution. But the power to recall is not a qualification on whom the people may elect, but protects the people’s right to choose, giving the people another bite at the apple to elect someone who will better serve them.
Doe v. Reed, Amicus Brief
On March 4, 2010 an amicus brief was filed on behalf of CLDEF in the case of Doe v. Reed in the United States Supreme Court.
The brief argues that, contrary to what the state of Washington claims,freedom of speech principles do indeed apply to the Washington state referendum petition process. Moreover, anonymity for referendum petition signers in that state legislative process is protected from state abridgment by the Fourteenth Amendment as an individual privilege and immunity of United States citizenship secured under the republican form of government guarantee of Article IV, Section 4 of the United States Constitution.
The brief also explains that the forced disclosure of the names and addresses of the Referendum 71 petition signers violates the anonymity rights of the people -- who are sovereign in our system of government. The brief concludes with a primer on the law of anonymity as a guide to the Court's application of the anonymity principle in this new situation.
Otis McDonald v. City of Chicago, Amicus Brief
On November 23, 2009, an amicus brief was filed on behalf of CLDEF in the case of Otis McDonald v. City of Chicago in the United States Supreme Court in support of petitioners' challenge to an ordinance banning handguns in Chicago. The amicus brief argues that the Chicago handgun ban unconstitutionally abridges petitioners’ right to keep and bear arms, a privilege or immunity belonging to them as United States citizens protected by the Fourteenth Amendment. It also explains that no wholesale change in the Supreme Court's Fourteenth Amendment jurisprudence is required to rule that the Chicago ordinance unconstitutionally abridges petitioners’ right to keep and bear arms. Further, it asserts that incorporation of the right to keep and bear arms into the Due Process Clause would result in weak and potentially transitory protection of that right.