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Amicus Briefs in Constitutional Cases Across the Country

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Amicus Briefs in Constitutional Cases Across the Country Case: 17-10448, 04/29/2019, ID: 11281152, DktEntry: 64, Page 1 of 49 No. 17-10448 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff/Appellee, v. JOSEPH M. ARPAIO, Defendant/Appellant. Appeal from the United States District Court for the District of Arizona, No. 2:16-CR-01012 The Honorable Susan R. Bolton BRIEF OF AMICI LAURENCE H. TRIBE; MARTIN H. REDISH; LAWRENCE FRIEDMAN; WILLIAM D. RICH; CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON; THE COALITION TO PRESERVE, PROTECT AND DEFEND; FREE SPEECH FOR PEOPLE; MOVEON; THE PROTECT DE- MOCRACY PROJECT; REPUBLICANS FOR THE RULE OF LAW; AND THE RODERICK AND SOLANGE MACARTHUR JUSTICE CENTER IN SUPPORT OF THE SPECIAL COUNSEL AND AFFIRMANCE Case: 17-10448, 04/29/2019, ID: 11281152, DktEntry: 64, Page 2 of 49 Jean-Jacques Cabou Steven A. Hirsch Shane R. Swindle Ian Bassin Katherine E. May Justin Florence PERKINS COIE LLP Aditi Juneja 2901 N. Central Ave., Ste. 2000 Anne Tindall Phoenix, AZ 85012-2788 THE PROTECT DEMOCRACY Telephone: (602) 351-8000 PROJECT, INC. 2020 Pennsylvania Ave. NW, #163 Washington, DC 20006 Telephone: (202) 831-2837 Noah A. Messing Messing & Spector LLP 333 E. 43rd St., Lobby 1 New York, NY 10017 Telephone: (212) 960-3720 April 29, 2019 Case: 17-10448, 04/29/2019, ID: 11281152, DktEntry: 64, Page 3 of 49 TABLE OF CONTENTS Page STATEMENT PURSUANT TO FED. R. APP. P. 29(A)(4)(E) ............................... 1 AMICI’S IDENTITY, INTERESTS, AND AUTHORITY TO FILE ............................. 2 INTRODUCTION ............................................................................................ 5 ARGUMENT .................................................................................................. 8 I. THE ARPAIO PARDON’S VALIDITY IS PROPERLY BEFORE THIS COURT. .............................................................................................. 8 II. THE ARPAIO PARDON IS UNCONSTITUTIONAL AND THEREFORE INVALID. ........................................................................................... 11 A. Courts recognize that the President’s pardon powers are subject to constitutional limitations. .............................. 11 B. The Arpaio pardon violates the separation of powers by undermining the ability of federal courts to protect individual rights. ................................................................... 15 1. The judiciary plays a unique constitutional role in protecting individual rights. ........................................ 17 2. The Arpaio pardon thwarted the court’s power to vindicate the individual rights of the Melendres plaintiffs. ...................................................................... 21 C. The Arpaio pardon violates due process by depriving plaintiffs of an effective judicial remedy for their injuries. .................................................................................. 24 1. The Knote rule: A pardon cannot interfere with the due-process rights of third parties. ....................... 26 2. The Grossman rule: A pardon cannot interfere with a coercive judicial order necessary to furnish a plaintiff with an effective remedy. ............................ 29 i Case: 17-10448, 04/29/2019, ID: 11281152, DktEntry: 64, Page 4 of 49 3. The Knote/Grossman synthesis: The President cannot pardon even a “completed” contempt if doing so would undermine the efficacy of a continuing constitutional remedy. ............................... 32 D. The Arpaio pardon violates the President’s duty to take care that the laws be faithfully executed. ............................ 34 CONCLUSION ............................................................................................. 36 CERTIFICATE OF COMPLIANCE .................................................................. 39 CERTIFICATE OF SERVICE ......................................................................... 40 ii Case: 17-10448, 04/29/2019, ID: 11281152, DktEntry: 64, Page 5 of 49 TABLE OF AUTHORITIES Page(s) CASES Abourezk v. Reagan, 785 F.2d 1043 (D.C. Cir. 1986), aff’d, 484 U.S. 1 (1987) ...................... 4 Aleman v. Glickman, 217 F.3d 1191 (9th Cir. 2000) ............................................................. 10 Bartlett v. Bowen, 816 F.2d 695 (D.C. Cir. 1987) ............................................................. 26 Battaglia v. Gen. Motors Corp., 169 F.2d 254 (2d Cir. 1948) ................................................................ 25 Biddle v. Perovich, 274 U.S. 480 (1927) (Holmes, J.) .................................................. 12, 35 Bond v. United States, 564 U.S. 211 (2011) ............................................................................. 16 Boumediene v. Bush, 553 U.S. 723 (2008) ....................................................................... 19, 20 Burdick v. United States, 236 U.S. 79 (1915) ......................................................................... 12, 13 Clark v. Martinez, 543 U.S. 371 (2005) ............................................................................. 10 CREW v. Trump, 302 F. Supp. 3d 127 (D.D.C. 2018) ..................................................... 34 Dep’t of Transp. v. Ass’n of Am. R.R.s, 135 S. Ct. 1225 (2015) ......................................................................... 16 Ex parte Garland, 71 U.S. 333 (1866) ............................................................................... 12 iii Case: 17-10448, 04/29/2019, ID: 11281152, DktEntry: 64, Page 6 of 49 Ex parte Grossman, 267 U.S. 87 (1925) ....................................................................... passim Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477 (2010) ............................................................................. 35 Hamdi v. Rumsfeld, 542 U.S. 507 (2004) (plurality opinion) .................................. 16, 24, 33 Hand v. Scott, 285 F. Supp. 3d 1289 (N.D. Fla. 2018) ............................................... 15 Hart v. United States, 118 U.S. 62 (1886) ............................................................................... 13 Hoffa v. Saxbe, 378 F. Supp. 1221 (D.D.C. 1974) .................................................. 12, 13 Int’l Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821 (1994) ............................................................................... 1 Knote v. United States, 95 U.S. 149 (1877) ....................................................................... passim Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) .............................................................. 25 Melendres v. Arpaio, 695 F.3d 990 (9th Cir. 2012) ....................................................... passim N.L.R.B. v. Noel Canning, 573 U.S. 513 (2014) ............................................................................. 16 Ohio Adult Parole Authority v. Woodard, 523 U.S. 272 (1998) ....................................................................... 13, 14 Schick v. Reed, 419 U.S. 256 (1974) ....................................................................... 12, 13 U.S. Nat’l Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439 (1993) ............................................................................. 10 iv Case: 17-10448, 04/29/2019, ID: 11281152, DktEntry: 64, Page 7 of 49 United States v. Arpaio, 2017 WL 4839072 (D. Ariz. Oct. 19, 2017) ........................................... 5 Wilson v. U.S. Dist. Ct. for N. Dist. of Cal., 161 F.3d 1185 (9th Cir. 1998) ............................................................. 15 Young v. Hayes, 218 F.3d 850 (8th Cir. 2000) ............................................................... 15 Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787 (1987) ................................................................. 21, 22, 23 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) (Frankfurter, J., concurring) ............................. 15 RULES FED. R. APP. P. 29(A)(4)(E) ......................................................................... 1 REGULATIONS Letter from Thomas Jefferson to James Madison (Mar. 15, 1789), http://www.let.rug.nl/usa/presidents/thomas- jefferson/letters-of-thomas-jefferson/jefl76.php ................................. 20 OTHER AUTHORITIES 1 ANNALS OF CONG. 423 (1789) (Joseph Gales ed. 1834) ........................ 20 Brian M. Hoffstadt, Normalizing the Federal Clemency Power, 79 TEX. L. REV. 561 (2001) .......................................... 13, 24, 36 Daniel T. Kobil, The Quality of Mercy Strained: Wresting the Pardoning Power from the King, 69 TEX. L. REV. 569 (1991) ................................................................................. 11, 12, 13, 15 Dawn E. Johnsen, Presidential Non-Enforcement of Constitutionally Objectionable Statutes, 63 LAW & CONTEMP. PROBS., 7 (2000) ................................................................. 36 v Case: 17-10448, 04/29/2019, ID: 11281152, DktEntry: 64, Page 8 of 49 Douglas Laycock, Individual Liberty and Constitutional Architecture: The Founders’ Prompt Correction of Their Own Mistake, 16 HARV. J.L. & PUB. POL’Y 75 (1993) ............. 17, 18, 19 Edward S. Corwin, The Doctrine of Due Process of Law Before the Civil War, 24 HARV. L. REV. 366 (1911)............................... 8 Equal Protection Clause .......................................................................... 14 Ethan J. Leib & Jed Handelsman Shugerman, Fiduciary Constitutionalism: Two Legal Conclusions, 3–6 (2018), https://papers.ssrn.com/sol3/papers.cfm? abstract_id=3177968
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