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.)
In a hard hitting essay first published in the Fall 2011 issue of the William & Mary Journal of Women in the Law, Herb Titus critically tracks the process by which the 111th Congress repealed "Don’t Ask Don’t Tell." Titus maintains that from start to finish, the Democratic leadership chose to bring about repeal, utilizing an unconstitutional strategy that breached House rules, divested Congress of its legislative powers, and upended the legislative process by entrusting unelected bureaucrats with the power to prescribe the rules of governing sexual behavior in the nation’s land and naval forces. Titus concludes that, by disregarding the constitutional principles of separation of powers, checks and balances, and federalism, an irresponsible legislature has set a precedent that will threaten powers reserved to the States over their own militia, and increase the unconstitutional law-making powers already usurped by the courts.
Today our firm filed a petition for writ of certiorari 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 petition for writ of certiorari argues that the Fischer decision conflicts with the decisions of six other United States Courts of Appeals. The lower courts confused factual conduct with the legal element. Neb. Rev. Stat. Section 28-310(1)(a) is not a MCDV. Further, the Fischer decision conflicts with two decisions within the Eighth Circuit, sowing confusion among the circuits. Finally, the Fischer decision conflicts with controlling Supreme Court precedents -- United States v. Hayes and the categorical approach to predicate criminal offenses. This appendix was also filed with the petition for writ of certiorari.
Today our firm filed an amicus brief 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 filed on behalf of Virginia Delegate Bob Marshall, et al. 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.
Our amicus brief was filed on behalf of Virginia Delegate Bob Marshall, Former Virginia Delegate Dick Black, Downsize DC Foundation, DownsizeDC.org, Inc., Gun Owners of America, Inc., Gun Owners Foundation, The Liberty Committee, Arizona State Chapter of the Association of American Physicians and Surgeons, U.S. Justice Foundation, Conservative Legal Defense and Education Fund, and The Lincoln Institute for Research and Education.
Bill Olson Quoted and Heller v. District of Columbia Amicus Brief Discussed in The United States Law Week Article "D.C. Handgun Registration Requirement, Ban on Assault Weapons, Big Magazines OK"
October 11, 2011
Bill Olson was quoted in The United States Law Week article "D.C. Handgun Registration Requirement, Ban on Assault Weapons, Big Magazines OK" on October 11, 2011 by Bernard J. Pazanowski discussing the recent decision of the U.S. Court of Appeals for the District of Columbia Circuit in Heller v. District of Columbia (Heller 2) and the amicus brief filed by our firm in this case for Gun Owners of America, et al.
The article appears below and is reproduced with permission from The United States Law Week, 80 USLW 449 (Oct. 11, 2011). Copyright 2011 by The Bureau of National Affairs, Inc. (800-372-1033) <http://www.bna.com>:
Today our firm filed an amicus brief 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.
The Solicitor General's reply brief makes the case that the Fourth Amendment has been so weakened by prior Supreme Court decisions that it provides virtually no protection against electronic monitoring of Americans, even without warrants having been issued. That is precisely why our amicus brief urges the Court to use this case to undertake a complete review of Fourth Amendment jurisprudence, returning to the text and context of that Amendment.
The Supreme Court opinion was issued on January 23, 2012, holding that "the Government’s installation of a GPS device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a 'search.'"
Bill Olson spoke at LPAC 2011 -- The Liberty Political Action Conference -- in Reno, Nevada. On Friday, September 16th, he spoke on "Executive Orders, States of Emergency, & Emergency Powers." On Saturday, September 17th, he first spoke on "Reinvigorating the Fourth Amendment" and, then was on a panel entitled "Civil Liberties Update" together with Larry Pratt, Executive Director of Gun Owners of America, Inc. and former Texas Congressman Steve Stockman.
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' 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.
Today our firm filed appellant's petition for rehearing en banc in the case of Delroy Fischer v. United States of America in the United States Court of Appeals for the Eighth Circuit.
Appellant, Delroy Fischer, was indicted under 18 U.S.C. § 922(g)(9)1 for possession of a firearm after having been convicted of a misdemeanor crime of domestic violence. Our petition argues that Fischer, and Amerson before it, were wrongly decided and the Fischer panel decision conflicts with two of the Eighth Circuit’s prior opinions and with the U.S. Supreme Court’s decision in United States v. Hayes.
On August 1, 2011 the government filed brief of appellee in response to our petition for rehearing en banc. The United States Court of Appeals for the Eighth Circuit issued an order denying appellant's petition for rehearing en banc on August 29, 2011 and a mandate on September 12, 2011.
Today our firm filed an amicus reply brief in the case of United States v. Bernard von NotHaus in the U.S. District Court for the Western District of North Carolina Statesville Division on behalf of Gold Anti-Trust Action Committee (GATA). On June 10, 2011, the United States filed a reponse in oppostition to the GATA amicus brief, filed May 31, 2011.
Today our firm filed an amicus brief for Gun Owners of America, Inc., Gun Owners Foundation, and Virginia Citizens Defense League in the case of Montana Shooting Sports Association, et al. v. Eric H. Holder, Jr. in the U.S. Court of Appeals for the Ninth Circuit in support of reversal. We previously filed an amicus brief in the U.S. District Court for the District of Montana Missoula Division on April 12, 2010.
At issue in the case is whether Montana as a state may permit the intrastate manufacture, sale, and use of firearms without Montanans having to apply for federal firearms licenses.
Our brief argued that the federal licensure statutes are meant to “support ... state and local law enforcement” in enforcing state laws. In fact, Congress specifically prohibited courts from construing federal laws to “occupy the field” of gun control, to the exclusion of state regulation, seeking to allow states maximum flexibility to address their unique set of problems in their own way.
Rather, before striking down a state law, a court must find a “direct and positive” conflict between the state and federal laws so that they “cannot be reconciled or consistently stand together.” This was not done. Instead, the district court below addressed whether Congress had the authority to preempt state law, without addressing whether Congress had even done so.
The amicus brief filed by our firm in United States v. Bernard von NotHaus in the U.S. District Court for the Western District of North Carolina Statesville Division on behalf of Gold Anti-Trust Action Committee is discussed in The New York Sun editorial "Von NotHaus’ Question" on June 1, 2011.
Today our firm filed an amicus brief in the case of United States v. Bernard von NotHaus in the U.S. District Court for the Western District of North Carolina Statesville Division on behalf of Gold Anti-Trust Action Committee. We also filed Appendix A to our amicus brief.
Today our firm filed an amicus brief in the case of Russell Ernest Smith v. Commonwealth of Virginia in the Supreme Court of Virginia on behalf of Gun Owners of America, Inc. and Gun Owners Foundation in support of appellant Smith. The issue in this case was whether Smith "willfully and intentionally" made a false statement (on a Form 4473) that he was not under indictment, when in fact he had been indicted two days before but did not know it.
Our amicus brief argued that both the Commonwealth of Virginia and the Court of Appeals relied on federal case law to interpret a state statute, overlooking the fact that the statutes use materially different language. Further, the evidence was insufficient to establish a violation of Virginia Code 18.2-308.2:2 as Smith did not act with a “deliberate avoidance of learning the truth.” The court below unfairly inferred that smith's decision to buy a firearm was in deliberate disregard of the felony charge against him. Finally, Virginia Code § 18.2-308.2:2 makes it a felony to give a false answer on any form “required by federal law,” but Form 4473 is neither “required” nor even authorized by federal law.
On November 5, 2011 the opinion of the Virginia Supreme Court unanimously overturned Smith's conviction and dismissed the indictment against him. The Virginia Supreme Court reasoned that the words "willfully and intentionally" impose a "very strict standard of scienter." In doing so, the Supreme Court rejected the Virginia Court of Appeals' application of federal law standards to Virginia, "willfully and intentionally" statutory language, holding that they are "importantly different."
Our amicus brief was the only brief that made the argument that the federal standard should not be applied, and that Smith's conviction should thus be overturned. This was the reasoning adopted by the Virginia Supreme Court.
Today our firm filed an amicus brief in the case of United States v. Antoine Jones in the United States Supreme Court. Our amicus brief was filed on behalf of Gun Owners of America, Inc., Gun Owners Foundation, Institute on the Constitution, Restoring Liberty Action Committee, U.S. Justice Foundation, Conservative Legal Defense and Education Fund, Free Speech Coalition, Inc., Free Speech Defense and Education Fund, Inc., DownsizeDC.org, Downsize DC Foundation, and The Lincoln
Institute for Research and Education.
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.
Today our firm filed an amicus brief 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 was filed on behalf of U.S. Justice Foundation (www.usjf.net) and Conservative Legal Defense and Education Fund (www.cldef.org).
Our 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 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.
On behalf of Gun Owners Foundation, we filed comments today with the Bureau of Alcohol, Tobacco, Firearms and Explosives in response to ATF’s January 2011 “Study on the Importability of Certain Shotguns.”
Today our firm filed an amicus brief in the case of Commonwealth of Virginia v. Kathleen Sebelius in the United States Court of Appeals for the Fourth Circuit on behalf of Virginia Delegate Bob Marshall, Gun Owners of America, Inc., Gun Owners Foundation, American Life League, Inc., Institute on the Constitution, the Lincoln Institute for Research and Education, Public Advocate of the United States, Conservative Legal Defense and Education Fund, The Liberty Committee, Downsize DC Foundation, DownsizeDC.org, and Policy Analysis Center.
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.
The following video is of Delegate Bob Marshall's floor speech on the amicus brief:
Bill Olson and Herb Titus wrote "Federal Trade Commission v. Daniel Chapter One, A Story of Government Suppression of Alternative Medicine" which covers our firms representation of Daniel Chapter One, a historical perspective of the attack on alternative medicine, the federal assault on dietary supplements and alternative medicine, the story of Daniel Chapter One, and the litigation proceedings of the FTC’s abusive campaign against Daniel Chapter One.
GATA's litigation against the Fed that is being handled by our firm was discussed in this interview of GATA Secretary/Treasurer Chris Powell by James Turk, Director of GoldMoney Foundation.
FED Transmits Document Ordered Disclosed by District Judge Huvelle in FOIA Lawsuit
February 18, 2011
Today, our firm received the April 1997 minutes of a private meeting of the G-10 Gold and Foreign Exchange Committee. The significance of this document is discussed by our client GATA here -- http://www.gata.org/node/9624.
Today our firm filed an amicus brief 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 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.
On January 10, 2011, the United States District Court for the District of Columbia ordered the Board of Governors of the Federal Reserve System to produce to the court for in camera inspection redacted and unredacted copies of 20 documents by January 14, 2011, in this Freedom of Information Act lawsuit by Gold Anti-Trust Action Committee, Inc. arising from requests for records beginning in 2007 relating to “gold swaps.”
This William J. Olson, P.C. Web site, including all information and material appearing herein, is for general informational purposes only, and is not intended to -- and does not -- constitute legal advice, advertising, or solicitation. No one should rely or act on any information contained on this Web site, including other sites that may be referenced herein, without seeking professional advice or counsel. No advice or counsel is provided in or by this Web site. Furthermore, no attorney-client relationship is created, or established, between William J. Olson, P.C. or any of its attorneys and anyone by virtue of anyone accessing or using this Web site, transmitting information to the Web site or receiving information from the Web site. William J. Olson, P.C. does not recommend use of the Internet, including e-mail, for the transmission of confidential, proprietary, and/or otherwise sensitive information.