William J. Olson P.C.
Files 50th Supreme Court Brief
On May 13, 2011, with our amicus curiae brief in the Daniel Chapter One case, our firm had the privilege of making its 50th filing with the U.S. Supreme Court. This includes various types of filings: Petition for Certiorari, Jurisdictional Statement, Appellants' Brief, Reply Brief, Brief for Intervenor-Respondents, Amicus Brief at the Petition Stage, and Amicus Brief on the Merits.
Of course, most of these briefs have been amicus curiae (friend of the court) briefs, and many have addressed a wide variety of Constitutional issues --
Article I Section 1 (Delegation Doctrine)
Article I Section 2 (Census, Apportionment Clause)
Article I Section 4 (Time, Places and Manners of Elections)
Article I Section 6 (Speech & Debate Clause)
Article I Section 8 (Commerce Clause, Naturalization Clause, General Welfare Clause, Necessary & Proper Clause)
Article II Section 1 (Delegation Doctrine)
Article II Section 2 (Invasion)
Article II (Appointments Clause, Commander-in-Chief)
Article III, Section 2 (Case and Controversy, Standing, Political Question)
Article III Section 1 (Judicial Power)
Article IV Section IV (Republican Form of Government, Invasion)Article VI (Preemption)
First Amendment (Establishment Clause, Free Exercise Clause, Freedom of Speech, Freedom of Press, Right to Assemble, Right to Petition Government)
Fifth Amendment (Due Process, Equal Protection Component)
Fourteenth Amendment (Due Process, Equal Protection, Privileges & Immunities)
Other briefs have addressed important statutory issues (U.N. Participation Act, Gun Control Act, National Firearms Act, Firearms Owners Protection Act, Uniform Code of Military Justice, Federal Election Campaign Act, etc.).
Our first Supreme Court filing was October 16, 1981, supporting the legality of President Reagan's action against striking air traffic controllers, which translates into 50 briefs in 30 years -- but we have been picking up the pace lately. Of course, we have also filed many other briefs in various U.S. District Court, U.S. Courts of Appeals, State Supreme Courts, etc. (All of these filings since the late 1990's and some earlier briefs are available on this website, and we are working to post the older filings as well.)
Today we filed an amicus curiae brief in the Supreme Court in the case of Abigail Alliance v. VonEschenbach, Commissioner of the FDA. The U.S. Supreme Court had been asked by an alliance of terminally ill patients with no conventional medical alternatives to overturn an en banc decision of the U.S. Court of Appeals for the D.C. Circuit which allows the FDA to bar these patients’ access to certain drugs, even after the FDA has approved them for Phase II testing.
Although the issue presented to the Court relates only to terminally ill patients, the underlying constitutional issue applies to any patient and his or her right to make health care choices.
The case involves the "life" and "liberty" rights protected by the Fifth Amendment, and the concept of Substantive Due Process. The brief calls upon the Court to reject its ever-evolving and arbitrary Substantive Due Process test, as set out in Washington v. Glucksberg, and to examine the text of the Fifth Amendment to learn the framers' "authorial intent." Of course, "life" and "liberty" in the Fifth Amendment followed the framers’ use in the Declaration of Independence, where they are identified as being sourced in our Creator. The brief explains how the Commentaries of William Blackstone are the best evidence to explain what the framers meant by these terms, and that Blackstone views these rights as being best described in Holy Scriptures. Our brief then examines the Holy Scriptures to understand the type of God-given "life" and "liberty" rights that the framers intended to protect. Lastly, the brief explains that common law procedural guarantees were individualized and judicial, completely unlike the FDA procedures, which apply to the populace generally, and are merely administrative.
Gold Anti-Trust Action Committee, Inc.
FOIA Requests filed with
Federal Reserve Board
and Treasury Department
December 7, 2007
Today, on behalf of GATA, we filed Freedom of Information Act (FOIA) Requests with the Federal Reserve Board and the U.S. Treasury Department seeking information on the nation's gold stock specifically, records since 1990 "gold swaps" reflected in the U.S. reserve assets, including any gold swaps entered into by the federal government with foreign countries and foreign banks.
The U.S. Court of Appeals for the Fifth Circuit heard oral argument today in the Ramos/Compean appeal. Our local counsel, Mark Brewer, was in attendance and sat at counsel table with the attorneys for appellants Ramos and Compean.
While much of the oral argument addressed the evidence surrounding the "victim" and his subsequent criminal activity, the panel did address the wording and working of 18 U.S.C. § 924(c)(1), including the points we raised in our amicus curiae brief. This issue consumed about one-half of the government counsel's time, and some of Mr. Botsford's time.
Judge Higgenbotham expressed concern there was no meaningful predicate crime. He asked Mr. Stelmach, the government attorney, if officers of the law found guilty of using excessive force while carrying a gun are subject to penalty under 18 U.S.C. § 924(c)(1), and, remarkably, Stelmach responded in the affirmative.
The amicus curiae brief which we filed for Congressman Walter Jones, Congressman Virgil Goode, Congressman Ted Poe, Gun Owners Foundation, and U.S. Border Control Foundation was featured in a report on the Ramos and Compean case on the Lou Dobbs Show on CNN today. View this segment below.
Today, on behalf of the Free Speech Coalition, Inc. and the Free Speech Defense and Education Fund, Inc., Jeremiah Morgan of our firm testified before the Federal Election Commission at its Hearings on Notice of Proposed Rulemaking: Definition of “Electioneering Communications.”
Bill Olson was quoted in an article in Broadcasting & Cable on proposed Federal Election Commission Regulations relating to electioneering ads in the aftermath of the Supreme Court's decision in Wisconsin Right to Life II.
On behalf of the Association of Priority Mail Users, Inc., our firm filed Comments on Regulations Establishing a System of Ratemaking (PRC Docket No. RM2007-1) in response to Postal Regulatory Commission Order No. 26. This is the fourth filing of comments by APMU in this most important docket. We are attempting to fend off efforts to impose too high an overhead burden on competitive products, including Priority Mail.
An Associated Press article discussed the case now pending in the 10th Circuit in which we filed an amicus brief for Gun Owners' Foundation on behalf of the State of Wyoming. Herb Titus of our firm was interviewed for the article, and quoted as saying "the Wyoming case is significant because the issue of whether restoration of gun rights is defined by federal regulations or state law is pending in trial courts around the country."
Today, we filed comments with the Federal Election Commission (“FEC”) on behalf of Free Speech Coalition and Free Speech Defense and Education Fund (“FSC/FSDEF”) regarding the FEC’s proposed rulemaking in response to the U.S. Supreme Court’s June 25, 2007 decision in FEC v. Wisconsin Right to Life (WRTL II). That decision upheld WRTL’s unrestricted right to publish issue ads during pre‑election periods, so long as it did not engage in “express advocacy or its functional equivalent.”
The FEC proposed two approaches to revise its rules to attempt to satisfy the Court’s decision. The comments strongly opposed both approaches because neither protects the free speech rights of issue advocacy groups. Either approach would increase, not decrease, the continued the FEC editorial control of the speech and press rights of advocacy groups by using either the time proximity or the context of issue ads to determine if election advocacy had occurred. The minor definitional changes proposed fell far short of a practical means to avoid the FEC role of national censor of political speech during the most important seasons of national debate.
Instead, the comments urged the to FEC promulgate a new, narrowly‑tailored definition of “express advocacy and its functional equivalent” consistent with WRTL II and clarify that the FEC’s reporting and disclosure requirements extend no further than that narrow definition.
Today Bill Olson was a guest on the Glen Beck Program on CNN Headline News to discuss the amicus brief filed in the Ramos/Compean case, and how the brief explains that Ramos and Compean were charged with, tried for, and convicted of a federal crime that does not exist.
On behalf of TREA Senior Citizens League (“TSCL”), we filed comments with the Food and Drug Administration (“FDA”) in opposition to the FDA’s “Draft Guidance for Industry on Evidence-Based Review System for the Scientific Evaluation of Health Claims.” http://www.cfsan.fda.gov/~dms/hclmgui5.html.
The FDA Draft Guidance asserts that the FDA is authorized by the NLEA to treat health claims for both conventional food and health claims for dietary supplements in virtually the same manner. In 1990, Congress adopted a “significant scientific agreement” standard applicable to “conventional food health claims” and the FDA subsequently purported, by regulation, to extend that same standard to “dietary supplements health claims,” even though the statute provided that this standard did not apply to dietary supplements.
Moreover, the Draft Guidance would adopt an evidence-based scientific model more suitable to tracing the cause and effect between a single, potentially-toxic pharmaceutical and a disease, rather than to the identification of the complex manner in which foods and dietary supplements are used by the body in achieving overall health wellness. Instead of submitting such claims to a review process that would assess the series of interconnections, cross-connections, and recombinations of nutrition in order to assess the effectiveness of appropriate combinations to achieve health wellness, health claims for foods and dietary supplements are assessed by studies that evaluate “the relationship between a substance and a disease.”
If the Draft Guidance were adopted, TSCL submits that the FDA will have exceeded its statutory authority, and violated senior citizens’ constitutional right to have important information about dietary supplements on the label of the product. While appearing to comply with the instructions given in a 1999 D.C. Circuit decision (Pearson v. Shalala), designed to make it easier to obtain health claim approval, the FDA instead is attempting to tighten its grasp on health claims.
Our comments urged the FDA to withdraw its Draft Guidance on the grounds that its proposal to regulate dietary supplement health claims as food health claims not only has not been authorized by Congress, but also appears to contradict the legislative authorization for an FDA standard in this area.
Herb Titus was interviewed on the MyTechnologyLawyer Radio Show by Scott Draughon regarding the Amicus Brief our firm filed in the U.S. Supreme Court Case Federal Election Commission v. Wisconsin Right to Life. The interview can be heard by clicking the link above.
Today we filed a Brief Amicus Curiae for Gun Owners Foundation in the U.S. Court of Appeals for the Tenth Circuit in support of the State of Wyoming and Wyoming Attorney General Patrick J. Crank. The Bureau of Alcohol Tobacco and Firearms (“BATF”) argued that Wyoming Stat. Ann. § 7-13-1502(k), which provides for the expungement with regards to restoring firearms rights to a person convicted of the misdemeanor crime of domestic violence (“MCDV”), (a) is insufficient as an exemption from the NICS background check and (b) does not authorize the person eligible to purchase a firearm.
In a letter dated August 6, 2004, BATF advised the Wyoming AG that, after review of the Wyoming MCDV expungement statute, it had concluded that Wyoming law did not meet the federal “complete expungement” standard governing MCDV convictions, as set forth in 18 U.S.C. § 921(a)(33). In response to BATF’s final ruling against Wyoming’s statute, Wyoming’s AG filed a complaint against BATF in U.S. District Court for the District of Wyoming as being “arbitrary and capricious, and in direct violation of federal law” and, therefore, in violation of 5 U.S.C. § 706(2)(A). The district court ruled against the State, adopting BATF’s interpretation of the disputed firearms statutes.
Our brief argued that the district court, contrary to relevant and controlling case law precedent, erroneously upheld BATF’s ruling, because Congress has directly and unambiguously established that expungements of state criminal convictions are to be determined by state law, not by an overriding federal standard, and that BATF’s ruling violates 5 U.S.C. § 706(2)(A).
Congressman Walter Jones submitted a statement to the Senate Judiciary Committee, urging the Committee to use its power and influence to persuade the President to pardon Ramos and Compean, two border patrol agents wrongfully convicted of a crime that does not exist. In support of his plea, Mr. Jones cited the amicus brief filed by this firm on his behalf and others in support of the agents' appeal in the Fifth Circuit. At the heart of Jones' appeal to the Committee was the contention in our amicus brief "that no person should stand charged with, and convicted of, a crime that was never defined by Congress. Indeed, in our system of separation of powers, the rule of law demands that prosecutors enforce the law as Congress has defined it, not as the prosecution would like it to be."
On behalf of Gun Owners Foundation, our firm authored “BATF Firearm Civil Forfeiture Procedures and Policies: An Attorney's Guide.” The guide is intended to provide a procedural overview for attorneys unfamiliar with civil forfeiture law as it applies to firearms, including what to expect from the BATF, and how to go about recovering seized assets.
This manual has been revised as of January 30, 2009.
On behalf of the Association of Priority Mail Users, Inc., our firm filed reply comments in Postal Regulatory Commission (PRC) Docket No. RM2007-1 in response to PRC Order No. 15. The APMU comments respond to the UPS comments filed on June 18, 2007, in which UPS suggested that the PRC require that competitive products recover an additional amount above attributable and above institutional costs to account for the Postal Service's "advantages." APMU is opposed to any surcharge on competitive products.
God & Country Patriotic Celebration & Conference
July 1-3, 2007
Herb Titus spoke at the God & Country Patriotic Celebration & Conference" sponsored by the Institute on the Constitution. http://www.instituteontheconstitution.com/ On July 2, Herb Titus participated in a Panel Discussion entitled The Myth of Separation of Church and State (with Judge Roy Moore, John Eidsmoe, and Michael Peroutka). On July 3, he spoke on How the Commands of Scripture Relate to a Truly Just Civil Government.
On June 18, 2007, Congressman Walter Jones addressed the U.S. House of Representatives about the Ramos and Compean case. He explained the issues raised in the amicus brief we recently filed in the U.S. Court of Appeals for the Fifth Circuit. Congressman Jones explained how the agents were convicted of a crime which Congress never enacted into law. The Congressman has asked the House Judiciary Committee to investigate the matter and to ensure that justice be done.
On behalf of the Association of Priority Mail Users, Inc., our firm filed comments with the Postal Regulatory Commission in Docket No. RM2007-1 opposing either the attribution or assignment of assumed federal income taxes to specific competitive products and urging that they be treated as institutional costs of the Postal Service. The Postal Accountability and Enhancement Act ("PAEA"), P.L. 109-435 requires that assumed federal taxes on "competitive products" be calculated and paid annually into a fund to benefit "market dominant products."
A paper by John Haldi, Ph.D. and William J. Olson entitled "Economic Imperatives that Drive Further De-averaging of Postal Rates" was presented today by Dr. Haldi at the 15th Conference on Postal Delivery and Economics in Semmering, Austria.
Herb Titus debates Barry Lynn at
American Vision Superconference
May 31, 2007
Herb Titus squared off in a formal debate against Barry Lynn, Executive Director of the Americans United for Separation of Church and State before the American Vision Superconference held at the Ridgecrest Conference Center near Ashville, North Carolina. The topic was: "Does the No Establishment of Religion Guarantee Prohibit a Biblically-based Public Policy."
Lynn took the affirmative, asserting that the U.S. Constitution makes no mention of God and this mandates that public policy must rest wholly on "secular" grounds.
Titus asserted the negative, contending that the "no establishment" clause itself is based upon the Bible, and apart from that basis, can neither be rightfully understood or applied. Titus rested his case on the constitution's text and history, pointing out that Jefferson and Madison relied upon a definition of religion as a jurisdictional term dividing those duties - such as opinions and welfare -exclusively owed to God, as the Creator, which are enforcible only by reason and conviction from those duties - such as protecting innocent human life - which are also enforcible by the power of the State.
Lynn did not rebut this claim, preferring to concentrate on his contention that the Bible was so susceptible to a variety of interpretations that it was an unreliable source for public policy and that, as a religious book, the Bible was too divisive.
In response, Titus countered that, while there are differences of opinion about what the Bible says about public policy issues, that was no reason to make it constitutionally illegitimate as a source of public policy, as Lynn was contending.
It was Lynn's view. however, that because Bible interpretation was so unreliable and so divisive that it should be excluded from the public debate. Titus observed that, if Lynn's position were adopted as a matter of constitutional law, it would make second-class citizens those Americans who believe that the Bible does speak to public policy issues, as well as personal salvation.
On May 29, 2007, on behalf of TREA Senior Citizens League (“TSCL”), we filed comments with the Food and Drug Administration (“FDA”) in opposition to the FDA’s “Draft Guidance for Industry on Complementary and Alternative Medicine Products and Their Regulation.” http://www.fda.gov/cber/gdlns/altmed.htm. According to the Draft Guidance, the FDA asserted that it had authority to regulate products utilized by practitioners of Complementary and Alternative Medicine (“CAM”), with special emphasis upon its power to regulate vitamins, minerals, and dietary supplements as drugs, if those products were “intended” to be used by a CAM practitioners as part of a disease treatment program. Additionally, the FDA stated in its Draft Guidance that it had the right to regulate products used in chiropractic and massage as medical devices. If the Draft Guidance is adopted by the FDA, it could mean that ordinary foods such as raw vegetable juice would be subject to FDA “premarket review” just as is the case now for prescription drugs used in conventional allopathic medicine. Further, if the Guidance were adopted, the FDA presumably would make substantial intrusions into the regulation of alternative medicinal practices traditionally left to the states.
In our Comments submitted on behalf of TSCL, we urged the FDA to withdraw its Draft Guidance on the grounds that its proposal to regulate ordinary foods as drugs was both unauthorized and unworkable. Additionally, the Comments raised serious questions about the fairness of the Draft Guidance procedure, confusing to the public and prejudicing the rights of seniors by depriving them of adequate time to respond to the FDA’s far-reaching proposal. Finally, our comments pointed out the likely adverse effects of the Draft Guidance: (a) on the financial health of Medicare; (b) on Congressional policy encouraging CAM; (c) on the traditional role of state regulation of the practice of medicine; and (d) the constitutional rights of the free exercise of religion and of self-preservation.
Today we filed a Brief Amicus Curiae in the U.S. Court of Appeals for the Fifth Circuit supporting the appeal of Border Patrol Agents Ramos and Compean. Counts four and five of the indictment charge the two with “Discharge of a Firearm in Relation to a Crime of Violence,” under 18 U.S.C. section 924(c), which the Supreme Court has ruled is only a sentencing factor, not one of the three elements “using,” “carrying,” or “possessing” a firearm. See Harris v. United States, 536 U.S. 545 (2002).
Thus, the amicus brief asks the court to overturn the convictions of Ramos and Compean in the U.S. District Court for the Western District of Texas, on the ground that these two Border Patrol agents were each sentenced to 10 years in prison for committing a federal crime which does not exist.
On behalf of Gun Owners Foundation and the Conservative Legal Defense and Education Fund, we filed an amicus brief in the U.S. Supreme Court in the case of Watson v. United States. This brief asks the Court to overturn the decision of the U.S. Court of Appeals for the Fifth Circuit, and to re-establish the common law rule of strict construction of criminal statutes. In this case, an undercover agent sought to buy drugs from Watson, and offered a firearm as part of the purchase price. The federal government indicted Watson for not only the drug sale, but also for the “use” of a firearm in connection with a federal drug trafficking crime, which would greatly increase the sentence if convicted. Clearly, in the normal sense of the word, receiving a gun is not “using” a firearm in connection with a drug trafficking crime, but the Fifth Circuit interpreted the word “use” broadly to encompass receipt. Had the rule of strict construction been applied to this case, and “use” interpreted in its normal sense, Mr. Watson would not be faced with a mandatory additional minimum prison sentence of five years under 18 U.S.C. section 924(c). Our amicus brief also asks the Court to reject the modern “rule of lenity” that has proved to be no substitute for strict construction. Strict construction of federal criminal law is necessary to preserve constitutional separation of powers, as well as principles of federalism. Our amicus brief illustrates how allowing police and prosecutors to go beyond the words of the statute to define a crime opens up opportunities for abuse.
Today, on behalf of TREA Senior Citizens League, we filed with the FDA for both Clarification of, and Extension of, the deadline for comments in response to the FDA's rulemaking in Docket No. R2006D-0480, entitled "Draft Guidance for Industry on Complementary and Alternative Medicine Products and Their Regulation by Food and Drug Administration."
With the House of Representatives soon to vote on the lobbying reform bill, the Campaign Legal Center has issued a memo arguing that grassroots restrictions are clearly constitutional under existing law. We prepared this analysis for the Free Speech Coalition explaining why such restrictions are unconstitutional, and why the analysis of the Campaign Legal Center is flawed.
On behalf of the Association of Priority Mail Users, Inc., our firm filed comments with the Postal Regulatory Commission addressing some of the problems associated with implementing the new Postal Accountability and Enhancement Act ("PAEA"), P.L. 109-435, which changes the manner in which rates are set for Priority Mail and other types of mail now classified by Congress as "competitive products."
We filed in the United States Supreme Court a reply to the Government's brief in opposition to former Army Specialist Michel G. New's petition for review of his January 1995 court-martial conviction (for violation of an order requiring him to wear the United Nations uniform prescribed for deployment to a U.N. operation in Macedonia).
After we had filed the Petition for Certiorari in November 2006, the Government filed a waiver with the Court, presumably indicating thereby that it considered New's petition to be without merit. In December 2006, however, the Court requested the Government to file a response which it did on March 20, 2007 with a brief in opposition.
In its opposition brief, the Government essentially conceded that there was conflict and confusion among the courts of appeals over the standard of review of court-martial convictions, some reviewing the military court decisions only for "fairness" and others for actual compliance with federal law and the constitution. Yet, the Government contended that New's petition would be a "poor vehicle" for the Court to resolve this conflict, (a) urging the Court to allow the standard of review issue to "percolate" before imposing a uniform rule and (b) maintaining that, no matter what standard of review would be applied, New's due process claims are without merit.
Our reply pointed out that the conflict and confusion among the courts of appeal had been "percolating" for over 50 years, and that New's petition would actually be the best opportunity for the Court to set a uniform rule governing collateral attacks on court-martial convictions in the federal courts. It also summarized the reasons why New's due process claims have substantial merit.
Indeed, New's petition presented the Court with a "unique opportunity" (a) to set a uniform rule ensuring due process of law - not just in some - but in all collateral attacks on court martial convictions; and (b) to set a rule to ensure real due process in the administration of a system of military justice based upon the principle that an American servicemember has a duty to obey only "lawful" orders.
Today we filed a Brief Amicus Curiae in the U.S. Supreme Court in the Wisconsin Right to Life case. The brief asks the Court to reconsider its prior holdings in the McConnell and Buckley cases, and to strike down the Congressional ban on "electioneering communications." (We had previously filed an amicus brief in support of Wisconsin Right to Life when the case came before the Court last year.)
The brief was filed in Support of the Appellee on behalf of Citizens United, Citizens United Foundation, Gun Owners of America, Inc., Gun Owners Foundation, Joyce Meyer Ministries, Conservative Legal Defense and Education Fund, Free Speech Coalition, Inc., Free Speech Defense and Education Fund, Inc., The Lincoln Institute for Research and Education, Public Advocate of the United States, DownsizeDC.org, and Downsize DC Foundation.
Maryland Shall Issue, Inc. commissioned our firm to prepare an analysis of a 13-year-old Opinion of the Maryland Attorney General currently being used in the Maryland General Assembly to support SB 43, the so-called "assault weapons" ban. Our analysis -- "The Right of the People of Maryland to Keep and Bear Arms: A Refutation of a 1994 Opinion of the Maryland Attorney General" -- was presented to the Maryland General Assembly at a hearing on February 27, 2007. The views presented in our paper are consistent with the subsequently-issued opinion of the U.S. Court of Appeals for the District of Columbia in the case of Parker v. District of Columbia, issued March 9, 2007.
The Campaign Legal Center recently issued a memorandum concluding that pending Senate restrictions on grassroots lobbying in Senate Bill 1 were clearly constitutional under existing law. We could not disagree more. Working with Free Speech Coalition Legal Co-Counsel Mark Weinberg of Weinberg & Jacobs, LLP (http://wjlaw.com),we drafted the attached constitutional analysis to set the record straight.
Bill Olson was quoted in this NewsMax.com article regarding the "frontal attack on the First Amendment and political speech" of the Public Citizen/Pelosi bill.
The Risk of War to Our Liberties
Bill Olson's 2001 statement about the increased risk to our liberties at times of war now appears in a collections of quotations about war at the following website: http://allthingswilliam.com/war.html
"There's no question that historically the liberties of a people are at greatest risk in times of war, because it is in times of war that people are willing to sacrifice liberty for security and for their country."
~ William J. Olson, in WorldNetDaily (September 2001). Executive power grab on tap at White House?
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