Herb Titus and Bill Olson wrote the article "Arizona v. United States: Reading the Tea Leaves of Oral Argument" published on AmericanThinker.com today. An excerpt from the article follows:

"Justices Scalia and Kennedy's questions seemed to track our brief's line of reasoning, asking whether Arizona had the power to exclude aliens who are not legally in the country. If so, then Arizona's policy of enforcement by attrition is perfectly permissible, General Verrilli's claims to the contrary notwithstanding. If Arizona has retained its inherent sovereign authority to defend its internal borders, except as specifically limited by the Constitution, then not one of the four contested provisions of the state's immigration law is preempted by federal law."

Today our firm filed an amicus brief 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. A notice of motion for leave to file amicus curiae brief and supporting documents were filed with the amicus brief.

Our amicus brief was filed on behalf of Virginia State Delegate Bob Marshall, Virginia State Senator Dick Black, Downsize DC Foundation, DownsizeDC.org, Inc., U.S. Justice Foundation, Institute on the Constitution, Gun Owners Foundation, Gun Owners of America, Inc., The Lincoln Institute for Research and Education, the Western Center for Journalism, Conservative Legal Defense and Education Fund, U.S. Border Control, Restoring Liberty Action Committee, Tenth Amendment Center, Center for Media and Democracy, Bill of Rights Defense Committee, Pastor Chuck Baldwin, Professor Jerome Aumente, and the Constitution Party National Committee.

On the same day we filed our amicus brief, April 16, the Hedges plaintiffs filed their Post Hearing Memorandum.

Today our firm joined with other co-counsel to file the following additional pleadings in the case of Sergeant Gary A. Stein v. Colonel C.S. Dowling, et al. in the United States District Court for the Southern District of California on behalf of plaintiff Sergeant Gary A. Stein:

Plaintiff's Renewed Ex Parte Application for Temporary Restraining Order and Order to Show Cause Why Preliminary Injunction Should Not Issue

Memorandum of Points and Authorities in Support of Renewed Motion for Temporary Restraining Order

Declaration of Gary Kreep

Plaintiff's Supplemental Brief as Requested by the Court

Proof of Service

At the conclusion of the hearing, the judge denied the temporary restraining order, but scheduled a hearing on the motion for a preliminary injunction for Friday, January 13.

The San Diego Union-Tribune article "Tea Party Marine sues to stop dismissal" by Gretel C. Kovach discusses our complaint in the case of Sergeant Gary A. Stein v. Colonel C.S. Dowling, et al.

Today our firm joined with other co-counsel to file the following documents in the case of Sergeant Gary A. Stein v. Colonel C.S. Dowling, et al. in the United States District Court for the Southern District of California on behalf of plaintiff Sergeant Gary A. Stein:

Complaint for Declaratory and Injunctive Relief

Plaintiff Stein's Ex Parte Motion for Temporary Restraining Order, and Order to Show Cause Why a Preliminary Injunction Should Not Issue

Memorandum of Points and Authorities in Support of Plaintiff's Motion for a Temporary Restraining Order

Declaration of Sergeant Gary A. Stein in Support of Plaintiff's Complaint for Declaratory and Injunctive Relief

This is a case about protecting a U.S. Marine against unconstitutional discharge in retaliation for protected speech. Sergeant Gary Stein has served with honor in the Marine Corps for almost nine years, yet he faces the imminent prospect of unfairly expedited proceedings to give him an “Other Than Honorable” discharge, with all its attendant stigma, solely because he has exercised his First Amendment right to speak on matters of public concern in ways that his superiors do not approve, particularly a Facebook page. The temporary restraining order was requested to stop and enjoin defendants from proceeding with administrative separation proceedings on April 5, 2012.

An order denying plaintiff's motion for temporary restraining order without prejudice was issued on April 4, 2012 by the district court judge.

We are working in this case as co-counsel with
Gary Kreep and Nathan Oleson of the U.S. Justice Foundation
Mark Brewer of Brewer & Pritchard,
Stewart Rhodes of Oath Keepers, and
David Loy of the San Diego ACLU.

"Surprising Coalition of Free Speech Advocates Join to Protect Marine’s Rights" (San Diego ACLU article disscusing the Stein case)

Herb Titus wrote a memorandum for Delegate Bob Marshall on H.B. 1160 — A bill to Prevent Virginia from Aiding the U.S. Military in the Detention of Virginians under the National Defense Authorization Act of 2012. The memorandum discusses the interplay between Virginia H.B. 1160 and the federal law that it addresses, the National Defense Authorization Act of 2012.

Delegate Bob Marshall sent this legal analysis of H.B. 1160 to Govenor Bob McDonnell, as discussed in this Washington Post blog article "Del. Marshall, again, urges McDonnell to sign detention bill" by Anita Kumar.

Today our firm filed reply brief for petitioner in the case of Delroy Fischer v. United States of America in the United States Supreme Court. In this case, petitioner Fischer is asking the Supreme Court to resolve a circuit split over the question whether the use of force element of the predicate misdemeanor in a section 922(g)(9) prosecution is determined by factual findings found in the state court record, or by the text of the relevant misdemeanor statute.

Fischer was indicted for violation of 18 U.S.C. section 922(g)(9). Prior to trial, Fischer moved to dismiss the indictment on the ground that the predicate misdemeanor under which he was convicted — Nebraska Revised Statute (“Neb. Rev. Stat.”) section 28-310(1) — was not a misdemeanor crime of domestic violence ("MCDV"), as defined in 18 U.S.C. section 921(a)(33)(A)(ii). Fischer reserved his right to appeal the denial of his motion to dismiss.

Our reply brief makes the following arguments. First, the government admits that the court below relied solely on the factual record to determine that the state statute has the use of physical force as an element. Next, the Fischer decision is not consistent with the "modified categorical approach." Further, the government would create a federal standard to determine the elements of the state statute. The government has also erroneously assumed that "physical force" as stated in the federal statute includes "subtle and indirect force," and the government erroneously shifts to Fischer the burden to prove that use of physical force is not an element of the state statute. Finally, the government has provided additional reasons to grant Fischer's petition.

On November 21, 2011 our firm filed the petition for writ of certiorari in this case.

Today our firm filed an amicus brief 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."

Our amicus brief was filed on behalf of:
Virginia Delegate Bob Marshall
Virginia Senator Dick Black
Oklahoma Representative Charles Key
Institute on the Constitution
U.S. Justice Foundation
Gun Owners Foundation
The Lincoln Institute for Research and Education
The United States Constitutional Rights Legal Defense Fund, Inc.
Conservative Legal Defense and Education Fund
Policy Analysis Center
Downsize DC Foundation
Gun Owners of America, Inc.
The Liberty Committee
Public Advocate of the United States
American Life League, Inc.
DownsizeDC.org.

Today our firm filed an amicus brief 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.

Our amicus brief was filed on behalf of:
U.S. Border Control
U.S. Border Control Foundation
Policy Analysis Center
Institute on the Constitution
The Lincoln Institute for Research and Education
Conservative Legal Defense and Education Fund
Gun Owners of America, Inc.
Gun Owners Foundation
English First
English First Foundation
Virginia Delegate Bob Marshall
Oklahoma Representative Charles Key
Wyoming Senator Kit Jennings

Bill Olson and Herb Titus wrote the article "United States v. Jones Is Rebuilding The Property Foundation Of The Fourth Amendment" published by the Western Center for Journalism today. The article discusses today's Supreme Court decision in the case of United States v. Antoine Jones, which re-examined the foundations of the Fourth Amendment, and did much to reverse several decades of erosion of the people's protection against unlawful searches and seizures. Our firm filed two Supreme Court amicus briefs in this case, an amicus brief on the petition for writ of certiorari and an amicus brief on the merits.

Herb Titus and Bill Olson wrote the article "The Proposed Enemy Expatriation Act: Sending American Citizens into Exile" published on AmericanThinker.com today. An excerpt from the article follows:

"Introduced as S. 1698 in the Senate and as H.R. 3166 in the House of Representatives, the Enemy Expatriation Act is expressly designed to 'add engaging or supporting hostilities against the United States to the list of acts for which United States nationals would lose their nationality.' These bills are inconsistent with current law and Supreme Court precedent. They appear to be tailored to cow the American people, without regard for the 14th-Amendment guarantee prohibiting Congress from divesting an American citizen of his citizenship."

Today our firm filed an amicus brief 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.

Our amicus brief was filed on behalf of:
U.S. Border Control (www.usbc.org)
U.S. Border Control Foundation (www.usbcf.org)
U.S. Justice Foundation (www.usjf.net)
Institute on the Constitution (www.iotconline.com)
Gun Owners of America, Inc. (www.gunowners.org)
Gun Owners Foundation (www.gunowners.com)
English First, (www.englishfirst.org)
English First Foundation (www.englishfirstfoundation.org)
Conservative Legal Defense and Education Fund (www.cldef.org)
The Lincoln Institute for Research and Education (www.lincolnreview.com)
Public Advocate of the United States (www.publicadvocateusa.org)
Policy Analysis Center
Del. Bob Marshall (www.delegatebob.com)
Rep. Charles Key (www.charleskey.com)
Del. Don Dwyer (delegatedwyer.com)
Rep. Matt Shea (www.voteshea.com)
Sen. Kit Jennings
Bob Fanning (fanning-baldwin.com)
Chuck Baldwin (fanning-baldwin.com)