Appendix
| Jurisdiction | United States |
| Publication year | 2021 |
Amicus Curiae Brief of 36 Appellate Lawyers Supporting Respondents, Trump v. Hawaii, 138 S. Ct. 2420 (Dkt. 17-965, Mar. 27, 2018)
No. 17965
In The Supreme Court of the United States
Donald J. Trump, President of the United States, et al., Petitioners,
v.
State of Hawaii, et al. Respondents
On Writ Of Certiorari To The United States Courts of Appeals for the Ninth Circuit
AMICUS CURIAE BRIEF OF 36 APPELLATE LAWYERS SUPPORTING RESPONDENTS
----------------------------------
CHARLES A. BIRD
Counsel of Record
4182 Ingalls St.
San Diego, CA 92103
(619) 699-2406
birdamicus17@gmail.com
Counsel for Amicus Curiae
The 36 citizens listed post, pages 35-41, submit this brief as amici curiae supporting respondent.1
Amici are 36 appellate lawyers admitted to the bar of this Court. We write as citizens on our own behalf and not for employers, legal-practice organizations in which we have an interest, or clients. Please attribute the words and positions stated in this brief solely to the named amici.
The interest of amici is to preserve the rule of law. As officers of the Court, many of whom have briefed and argued cases in the Court for clients, we owe our highest duty to the rule of law. We perceive the rule of law to be threatened by actions that gave rise to this case. Our duty to the rule of law calls us to write this brief to expose and resist the threat.
Appellate review of executive orders that legislate should embrace all verifiable evidence of a President's motive or intent when motive or intent is relevant. In the Nation's intentionally divided government, Congress legislates and the President faithfully executes.2 When Congress broadly delegates legislative power, the President becomes an authorized autocrat. Then the judicial branch must assure the President does not "trench upon fundamental rights."3 When a President as a sole state actor would abridge civil rights or the rights of a minority in the name of enhancing security or prosperity, the Court uniquely owes the people a duty to scrutinize the abridgment with full attention to whether its true motive is repression. As a matter of judicial process that means considering all verifiable evidence of the President's motives.
This brief explains how lessons of recent history favor considering everything verifiable that a President says about the purposes for issuing an executive order. Amici show what perils attend a judiciary's failing to take a leader at his or her word. Disregarding expressions of repressive motive or will to act outside the rule of law contributes to social breakdowns greater than those embodied in a particular case.
Part I documents how the judiciary in another rule-of-law nation—Germany in 1933—failed to see clearly and question deeply when facing a would-be totalitarian. Seduced by popular nationalism and cowed by factions angry over unemployment and underemployment, the German judiciary—like many other thoughtful German leaders and later world leaders—appeased when it should have stood its ground under its nation's constitution and rule-of-law tradition. The courts facilitated the plurality government's descent into totalitarianism. The result was not security or prosperity. It was tens of millions of deaths and Germany's destruction.
Part II shows that Germany's catastrophic experience is pertinent to the United States today. American courts—even this Court 70 years ago—have sometimes blinded themselves to real and knowable reasons for oppressive measures. They have accepted palpably meritless excuses invoking national security or tranquility. But the words of this Court and individual justices have often advocated the constitutional duty to prevent presidential trenching on fundamental rights, and the Court has invalidated executive acts—including in times of crisis.
Part III applies the lessons of parts I and II to show why the Court should take a President at his or her word—wherever or however uttered verifiably—for the meaning and purpose of an executive order being challenged or interpreted under the Constitution or laws of the United States. The conditions in which this case arrives at the Court have salient analogies to the histories in parts I and II. As the Nation's chief guardian of the Constitution and the rule of law, this Court must examine thoroughly and deeply, and then thoughtfully stand on the ground of the rule of law.
I. How a Society Based on the Rule of Law Descended Into the Abyss
From 1871 until 1919, the Constitution of the German Reich provided the German Empire's organic law. That constitution provided for a civil society under the rule of law, much like a republic.4
A. The Weimar Constitution provided for civil rights and for the rule of law administered by an independent judiciary
After the First World War, Germany adopted a new constitution, the Reich Constitution of August 11, 1919, often called the Weimar Constitution.5 The Weimar Constitution began similarly to the opening phrases of the United States Constitution: "The German people, united in its tribes and inspirited with the will to renew and strengthen its Reich in liberty and justice, to serve peace inward and outward and to promote social progress, has adopted this constitution." Article 1 declared: "The German Reich is a republic. State authority derives from the people."
Germans enjoyed freedoms declared in terms similar to those of the Bill of Rights. Article 109 of the Weimar Constitution expressed the substance of the Equal Protection Clause. Articles 114, 115, and 117 declared key principles of the Fourth, Fifth, and Sixth amendments, adding an explicit right of privacy. Article 116 could not be distinguished from the Ex Post Facto Clause. In articles 118, 123, 124, and 135, the Weimar Constitution laid out the principles of First Amendment freedoms of expression, assembly, and religion. Articles 136 and 137 further implemented freedom of religion by prohibiting religious tests for public office, prohibiting any state church, and guaranteeing the right to form religious communities. Article 153 required just compensation for taking of property.
German civil rights were protected by the rule of law under an independent judiciary with life tenure. Judges swore an oath of "loyalty to the Constitution, obedience to the law, and conscientious fulfillment of the duties of my office . . . ."6 Express constitutional provisions included:
Article 102—"Judges are independent and subject only to the law."
Article 104—"Judges serving ordinary jurisdiction are appointed for lifetime. Against their will they can only be suspended temporarily or forced into early retirement or transferred to another location if a judge decided so, based on reasons and according to procedures determined by law. Legislation may establish an age limit, at which judges retire." Also, under Article 105, the government could not create extraordinary courts or subject civilians to military jurisdiction.
Sadly for the German people and the world, the Weimar Constitution embedded its own potential nullification by providing in Article 48(2) that the Reich President could suspend many individual rights "[i]n case public safety is seriously threatened or disturbed . . . to reestablish law and order. . . ."
B. The German judiciary betrayed the rule of law
Before 1933, virtually no judges were members of the National Socialist German Workers' Party ("Nazi Party").7 But some had eroded the rule of law by allowing criminal convictions for truthful journalism and acquittals for major crimes when the defendant's conduct supported Germany's illegal rearming.8
On January 30, 1933, Reich President Hindenberg appointed the leader of the Nazi Party, Adolf Hitler, to be chancellor.9 The Nazi Party held barely more than one-third of the seats in Germany's parliament, the Reichstag. But that was the largest party bloc.10
On February 27, 1933, someone—according to the Nazi Party a terrorist—set fire to the Reichstag building.11 The next day, Hindenburg issued a decree suspending most of the civil rights and liberties of the German people until further notice under Article 48(2) of the Weimar Constitution.12 A German who "provokes, or appeals for, or incites the disobedience of the orders" implementing the decree was guilty of a crime and subject to unlimited imprisonment.13
Less than three weeks later, the German Federation of Judges capitulated to Hindenburg by issuing a declaration approving "'the will of the new government to put an end to the immense suffering of the German people'" and expressing full confidence in the government. The Federation declared "'German judges have always been loyal to the nation and aware of their responsibility.'"14
On March 24, Hindenburg declared that the Reichstag had, the day before, validly amended the constitution with a Law to Remedy the Distress of the People and the Reich.15 Commonly called the Enabling Act, this law permitted the Reich Government to enact laws without engaging the Reichstag: "Laws enacted by the Reich Government may deviate from the Constitution as long as they do not affect the institutions of the Reichstag and the Reichsrat."16
A week later, on April 1, the government suspended all Jewish judges and prosecutors. A week after that, the government enacted a law removing all Jewish officials from civil service. This put 643 judges out of office in Prussia alone. The chairman of the German Federation of Judges expressed complete confidence in the chancellor, claiming the independence of judges would be maintained.17 In parallel, the government, with help from the remaining judges, began to purge Jewish lawyers from the bar.18
The Law to Secure the Unity of the Party and the State declared on December 10, 1933: "After the victory of the National Socialist revolution, the...
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