Amicus Curiae Brief — California, et al., Petitioners v. Texas, et al.

Nos. 19-840 & 19-841

IN THE

Supreme Court of the United States

————

STATE OF CALIFORNIA, ET AL.,

Petitioners,

v.

STATE OF TEXAS, ET AL.,

Respondents.

————

UNITED STATES HOUSE OF REPRESENTATIVES,

Petitioner,

v.

STATE OF TEXAS, ET AL.,

Respondents.

————

On Petitions for Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

————

BRIEF OF THE ASSOCIATION OF AMERICAN

PHYSICIANS AND SURGEONS AS AMICUS

CURIAE IN OPPOSITION TO THE PETITIONS

————

DAVID P. FELSHER

488 Madison Ave.

New York, NY 10022

(212) 308-8505

dflaw2@earthlink.net

ANDREW L. SCHLAFLY

Counsel of Record

939 Old Chester Road

Far Hills, NJ 07931

(908) 719-8608

aschlafly@aol.com

Counsel for Amicus Curiae

February 3, 2020

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D. C. 20002

i

QUESTIONS PRESENTED

In National Federation of Independent

Business v. Sebelius, 567 U.S. 519 (2012), this

Court upheld 26 U.S.C. § 5000A, a provision of

the Affordable Care Act, as a valid exercise of

Congress’s taxing power because the provision

offered individuals a lawful choice between

purchasing insurance and paying a tax, known as

a “shared responsibility payment.” In December

2017, Congress eliminated the Act’s monetary

incentive to purchase insurance by reducing the

shared responsibility payment to zero, such that

Section 5000A now offers individuals a choice

between purchasing insurance and paying a tax

of $0. In this case, the court of appeals held that

Section 5000A, as amended, exceeds Congress’s

constitutional authority and that the Act’s

thousands of other provisions may be invalid as a

result.

The questions presented are:

1. Whether the individual and state plaintiffs

(respondents here) possess Article III

standing to challenge the constitutionality

of Section 5000A?

2. Whether Section 5000A, as amended,

exceeds

Congress’s

constitutional

authority?

3. Whether, if Section 5000A is invalid, the

provision is severable from the remainder

of the Act?

ii

TABLE OF CONTENTS

Pages

QUESTIONS PRESENTED ......................................... i

TABLE OF CONTENTS.............................................. ii

TABLE OF AUTHORITIES ....................................... iii

INTEREST OF AMICUS CURIAE ............................. 1

SUMMARY OF ARGUMENT ...................................... 3

ARGUMENT ................................................................ 6

I. THE PURELY SPECULATIVE INJURIES TO THE

INTERVENOR STATES DO NOT JUSTIFY THEIR

INTERVENTION IN THE DISTRICT COURT .................... 6

A. The State Intervenors’ Allegations

Expressed Their Wishes, Not Actual

Injuries. ........................................................ 8

B. Any Future Flow of Federal Funds To

The States Is Contingent Upon Further

Federal Legislation Enacted by Future

Houses, Future Senates and Future

Presidents. ................................................... 9

II. AS IMPROPER INTERVENORS IN THE

DISTRICT COURT, THE INTERVENOR STATES DID

NOT BECOME “PARTIES” THAT COULD APPEAL TO

THE FIFTH CIRCUIT OR THIS COURT. ....................... 11

III. THE HOUSE’S INTERVENTION IN THE FIFTH

CIRCUIT WAS IMPROPER BECAUSE THE HOUSE

SUFFERED NO INSTITSUTIONAL INJURY, ITS

MEMBERS SUFFERED NO INDIVIDUAL INJURIES,

AND APPELLATE INTERVENTION IS NOT

CONTEMPLATED BY THE FEDERAL RULES OF

APPELLATE PROCEDURE. ......................................... 12

CONCLUSION ......................................................... 14

iii

TABLE OF AUTHORITIES

Pages

Cases

Arizonans for Official English v. Arizona,

520 U.S. 43 (1997) ......................................... 4, 8

Ass’n of Am. Physicians & Surgs. v. Clinton,

997 F.2d 898 (D.C. Cir. 1993) ........................... 2

Ass’n of Am. Physicians & Surgs. v. Mathews,

423 U.S. 975 (1975) ........................................... 2

Ass’n of Am. Physicians & Surgs. v. Tex. Med.

Bd., 627 F.3d 547 (5th Cir. 2010) ..................... 2

Bender v. Williamsport Area School Dist.,

475 U.S. 534 (1986) ........................................... 3

Clinton v. City of New York, 524 U.S. 417

(1998) ................................................................. 9

Diamond v. Charles, 476 U.S. 54, 106 S. Ct.

1697, 90 L. Ed. 2d 48 (1986) ............................. 4

District of Columbia v. Heller, 554 U.S. 570

(2008) ................................................................. 2

Hertz Corp. v. Friend, 559 U.S. 77 (2010) ............ 3

Immigration and Naturalization Service v.

Chadha, 462 U.S. 919 (1983) ............................ 9

In re W.R. Grace & Co., 591 F.3d 164 (3d Cir.

2009), cert. denied, 562 U.S. 839 (2010) ........... 4

Marino v Ortiz, 484 U.S. 301(1988) ................... 11

National Federation of Independent Business

v. Sebelius, 567 U.S. 519 (2012)......................... i

OPM v. Richmond, 496 U.S. 414 (1990) ............ 10

iv

Raines v Byrd, 521 U.S. 811 (1997) ............... 5, 12

Rochester Pure Waters District v EPA, 960

F.2d 180 (D.C. Cir. 1992) .................................. 9

Springer v. Henry,

435 F.3d 268 (3d Cir. 2006) .............................. 2

Stenberg v. Carhart, 530 U.S. 914 (2000) ............ 2

Texas v United States,

945 F.3d 355 (5th Cir. 2019) .............................. 2

United States v. Natale, 719 F.3d 719 (7th

Cir. 2013) ........................................................... 2

U.S. Department of the Navy v. Federal Labor

Relations Authority, 665 F.3d 1339 (D.C.

Cir. 2012) ........................................................... 9

Wittman v. Personhuballah, 195 L. Ed. 2d 37

(2016) .............................................................. 4-5

Constitution and Statutes

U.S. CONST. art. I .................................................. 6

U.S. CONST. art. I, sec. 1 ....................................... 9

U.S. CONST. art. I, sec. 7, cl. 2 .............................. 9

U.S. CONST. art. I, sec. 9, cl. 7 ........................ 9, 10

U.S. CONST. art. II ................................................ 6

U.S. CONST. art. III ........................................... 4, 7

U.S. CONST. art. V ........................................... 7, 10

26 U.S.C. § 5000A .................................................. i

28 U.S.C. § 530D ........................................... 12, 14

Line Item Veto Act, Pub. L. 104-130,

110 Stat. 1200 (1996) ........................................ 5

v

Federal Rules

Federal Rules of Appellate Procedure

Rule 1 .............................................................. 13

Rule 1(a)(1)...................................................... 13

Rule 15 ............................................................ 13

Rule 28(a)(4)(B)............................................... 11

Federal Rules of Civil Procedure

Rule 24 ............................................................ 13

Rule 24(a)(1) ............................................. 12, 14

Rule 24(b)(1)(B)......................................... 12, 13

S. Ct. Rule 14(b)(i) .............................................. 11

S. Ct. Rule 37.6 ..................................................... 1

Articles, Reports

John G. Roberts, Jr., Article III Limits on

Statutory Standing,

42 Duke L. J. 1219 (1993)................................. 5

Wilson C. Freeman and Kevin M. Lewis,

Congressional Participation in

Litigation: Article III and Legislative

Standing, CRS Report No. R45636

(November 8, 2019) ....................................... 5, 6

Nos. 19-840 & 19-841

IN THE

Supreme Court of the United States

STATE OF CALIFORNIA, ET AL.,

Petitioners,

v.

STATE OF TEXAS, ET AL.,

Respondents.

UNITED STATES HOUSE OF REPRESENTATIVES,

Petitioner,

v.

STATE OF TEXAS, ET AL.,

Respondents.

On Petitions for Writ of Certiorari to the United States

Court of Appeals for the Fifth Circuit

INTEREST OF AMICUS CURIAE1

Amicus curiae Association of American Physicians

and Surgeons (“AAPS”) is a national association of

physicians. Founded in 1943, AAPS is dedicated to

1 Amicus files this brief after providing the requisite ten days’

prior written notice and receiving written consent by all the

parties. Pursuant to Rule 37.6, counsel for amicus curiae

authored this brief in whole, no counsel for a party authored this

brief in whole or in part, and no such counsel or a party made a

monetary contribution intended to fund the preparation or

submission of this brief. No person or entity – other than

amicus, its members, and its counsel – contributed monetarily to

the preparation or submission of this brief.

2

the highest ethical standards of the Oath of

Hippocrates and to preserving the sanctity of the

patient-physician relationship. AAPS has been a

litigant in this Court and in other appellate courts.

See, e.g., Ass’n of Am. Physicians & Surgs. v.

Mathews, 423 U.S. 975 (1975); Ass’n of Am.

Physicians & Surgs. v. Tex. Med. Bd., 627 F.3d 547

(5th Cir. 2010); Ass’n of Am. Physicians & Surgs. v.

Clinton, 997 F.2d 898 (D.C. Cir. 1993).

This Court has expressly made use of amicus

briefs submitted by AAPS. See, e.g., Stenberg v.

Carhart, 530 U.S. 914, 933 (2000); id. at 959, 963

(Kennedy, J., dissenting); District of Columbia v.

Heller, 554 U.S. 570, 704 (2008) (Breyer, J.,

dissenting). The Third and Seventh Circuits have

also made use of amicus briefs by AAPS. See United

States v. Natale, 719 F.3d 719, 739 (7th Cir. 2013);

Springer v. Henry, 435 F.3d 268, 271 (3d Cir. 2006).

Amicus AAPS files this brief to assist the Court in

addressing issues raised by the United States House

of Representatives (“House”) in its petition, dated

January 3, 2020 (No. 19-841) (“House Petition” or

“Petition ‘841”) and by the State Intervenors, in their

Petition, also dated January 3, 2020 (No. 19-840)

(“State Petition” or “Petition ‘840”). Both petitions

seek review of the same Fifth Circuit opinion. Texas v

United States, 945 F.3d 355 (5th Cir. 2019). A petition

for rehearing en banc was denied on January 29,

2020.

AAPS filed an amicus brief with the Fifth Circuit

in this case below, and has a strong interest in

opposing these petitions for a writ of certiorari.

3

SUMMARY OF ARGUMENT

The House and State Intervenors cannot and do

not speak for the United States, and when the United

States informed the Fifth Circuit that it was no

longer challenging the District Court’s decision, the

appeal should have been dismissed immediately.

Both the House and State Intervenors lacked

standing below and thereby lack standing to petition

for certiorari here.

It is incumbent on this Court to assess its own

federal subject matter jurisdiction and to dismiss a

petition if its subject matter jurisdiction is lacking.

The Fifth Circuit incorrectly allowed the intervention

and did not reverse the intervention that was

permitted by the District Court. Amicus AAPS

suggests that de novo review of both interventions is

warranted. Such review will establish that none of

the intervenors were parties, let alone aggrieved

parties, who can properly petition this Court as

parties.

In our federal system, “[c]ourts have an

independent obligation to determine whether subjectmatter jurisdiction exists, even when no party

challenges it.” Hertz Corp. v. Friend, 559 U.S. 77, 94

(2010) (internal citations omitted). Moreover, “every

federal appellate court has a special obligation to

‘satisfy itself not only of its own obligation, but also

that of the lower courts in a cause under review,’ even

though the parties are prepared to concede it.”

Bender v. Williamsport Area School Dist., 475 U.S.

534, 541 (1986) (internal citations omitted).2

2 Whether or not this Court has subject matter jurisdiction is a

question of law and should be addressed de novo. See, e.g., In re

4

“The standing Article III requires must be met by

persons seeking appellate review, just as it must be

met by persons appearing in courts of first instance.”

Arizonans for Official English v. Arizona, 520 U.S.

43, 64 (1997). “The decision to seek review is not to be

placed in the hands of concerned bystanders, persons

who would seize it as a vehicle for the vindication of

value interests.” Id. at 64-65 (internal quotation

marks and citation omitted).

In this case, the House and State Intervenors are

mere bystanders. The Plaintiffs-Appellees3 did not

seek (nor would they) any relief from the House and

the House did not make any claim against the

Plaintiffs-Appellees.

Similarly,

the

PlaintiffsAppellees did not seek (nor would they) any relief

from the State Intervenors and the State Intervenors

did not make any claim against the PlaintiffsAppellees. The appeal should have been dismissed,

and these petitions denied.

An intervenor cannot plug a gaping jurisdictional

deficiency unless it independently satisfies Article III

standing. As this Court explained in Wittman:

[A]n “intervenor cannot step into the shoes of the

original party” (here, the Commonwealth) “unless

the intervenor independently ‘fulfills the requirements of Article III.’” [Arizonans for Official English, 520 U.S.] at 65, 117 S. Ct. 1055, 137 L. Ed. 2d

170 (quoting Diamond v. Charles, 476 U.S. 54, 68,

106 S. Ct. 1697, 90 L. Ed. 2d 48 (1986)).

W.R. Grace & Co., 591 F.3d 164, 170 n.7 (3d Cir. 2009), cert.

denied, 562 U.S. 839 (2010).

The Plaintiffs-Appellees are Respondents in connection with

Petition ‘840 and Petition ‘841.

3

5

Wittman v. Personhuballah, 195 L. Ed. 2d 37, 42

(2016).

The importance of standing cannot be overstated.

See, e.g., Raines v Byrd, 521 U.S. 811 (1997) (denying

standing to the four United States Senators and two

Members of the House in connection with a challenge

to the constitutionality of the Line Item Veto Act,

Pub. L. 104-130, 110 Stat. 1200 (1996)); John G.

Roberts, Jr., Article III Limits on Statutory Standing,

42 Duke L. J. 1219, 1220 (1993) (“[I]t may be

worthwhile to recall that the Supreme Court for some

time has recognized standing as a constitutionally

based doctrine designed to implement the Framers’

concept of the proper – and properly limited – role of

the courts in a democratic society.”) (internal

quotations and citations omitted); Wilson C. Freeman

and Kevin M. Lewis, Congressional Participation in

Litigation: Article III and Legislative Standing, CRS

Report No. R45636 (November 8, 2019) (“CRS

Report”) (examining, in depth, the issues of

legislative and interventional standing).

The Fifth Circuit addressed both the question of

standing of the Intervenor States in the District

Court and the question of the House’s ability to

intervene in the Court of Appeals. The Court of

Appeals answered both questions affirmatively.

Petition ‘840 at 14a-19a; Petition ‘841 at 13a-19a.

The Fifth Circuit erred with respect to both the

House’s and Intervening States’ standing and,

because of those errors, neither of the petitions for

certiorari should be granted. If and when another

petition (emanating from the Fifth Circuit’s decision)

is filed, the House and State Intervenors will still be

able to participate as amicus curiae:

6

If Congress (or a unit or individual Member

thereof) cannot participate as a full party to a

particular lawsuit due to one or more of the

constitutional,

statutory,

procedural,

and

prudential obstacles discussed [in this Report], it

may still be able to participate in the case in a

more limited capacity as an amicus curiae.

CRS Report at 39-40 (footnote omitted).

ARGUMENT

I. THE PURELY SPECULATIVE INJURIES TO THE

INTERVENOR STATES DO NOT JUSTIFY THEIR

INTERVENTION IN THE DISTRICT COURT.

The State Petitioners have argued at length

against standing by the individuals and states which

initiated this action, but the State Petitioners

themselves lack the standing required: (1) to have

intervened in the District Court, (2) to have appealed

to the Fifth Circuit, and (3) to have filed the ‘840

Petition.

The State Intervenors cannot step into the shoes

of the United States as a party. Thus, when the

United States informed the Fifth Circuit that it was

no longer challenging the District Court’s decision,

that should have been the end of this case. Moreover,

the State Intervenors should have been denied the

ability to intervene in the District Court, and thus

they should not have had any ability to appeal to the

Fifth Circuit. They thereby lack standing to file

Petition ‘840.

Article I vests the power to make law in Congress

and Article II vests the power to execute the law in

the Executive Branch. Therefore the Executive

Branch has the exclusive authority under the

7

Constitution to defend a federal law notwithstanding

any statute or rule to the contrary.4 Perhaps the

State Intervenors could sue the United States to

compel such enforcement should the Executive

Branch decline to defend the law, but the State

Intervenors cannot pretend to be the United States in

order to defend federal law.

A State can have standing to challenge a federal

law, but it does not follow that a State has standing

to defend federal law, as the State Intervenors

attempt here.

The State Intervenors are not

consumers of medical care, in contrast with the

Individual Plaintiffs-Appellees, Neill Hurley and

John Nantz, and thus the State Intervenors further

lack standing on that basis.

Put another way, one group of States pitted

philosophically against another group of States on

appeal over the constitutionality of a federal law

amounts to an Article III absurdity, not a legitimate

“case” or “controversy”. Once the United States

conceded the Plaintiffs’ position, that should have

meant that the Plaintiffs had won and that the

federal appellate subject matter jurisdiction

evaporated. The State Intervenors have no more

standing to replace the United States as a defendant

in litigation over the constitutionality of a federal law

than an average American voter would, which is nil.

The requirements for Article III standing – which

the Supreme Court has ruled must “be extant”

throughout the life of the lawsuit – are not met here,

4 No statute may expand or contract the powers of any branch

(even with the consent of the affected branch). Reallocation in

power of that magnitude is not permitted without the ratification of an Article V amendment.

8

Arizonans for Official English, 520 U.S. at 67, by the

State Intervenors. Petition ‘840 should therefore be

dismissed.

A. The State Intervenors’ Allegations

Expressed Their Wishes, Not Actual

Injuries.

The alleged “interest” or “injury” to the State

Intervenors was that they would lose “hundreds of

billions of dollars” of anticipated federal funds.

Motion to Intervene and Memorandum in Support

Thereof by State Intervenors in Texas v. United

States (N.D. Tex. Civil Action No. 4:18-cv-00167-O),

at 12. Such alleged injuries were and are entirely

speculative and are dependent upon events that may

never occur, i.e. the enactment of future federal

appropriations – enacted through and subject to

future federal legislation. Such future legislation

may only be enacted by the future concurrences

between future Houses, future Senates and future

Presidents.

Consequently, the State Intervenors

should have been relegated in the District Court to

the status of mere amici curiae rather than having

been elevated to the status of IntervenorsDefendants. Once properly understood to have been

nothing more than mere amici curiae in the District

Court, it follows that the State Intervenors lack the

requisite standing to have appealed to the Fifth

Circuit and to have filed Petition ‘840.

As Amicus explains in Argument I-B, it is

impossible for the State Intervenors to have any

legally cognizable expectation of future federal funds

unless and until an interceding event occurs, i.e.

Congress enacts further appropriations.

9

B. Any Future Flow of Federal Funds To

The States Is Contingent Upon Further

Federal Legislation Enacted by Future

Houses, Future Senates and Future

Presidents.

There is no question that any future flow of

federal funds to the states is contingent upon further

federal legislation enacted by future Houses, future

Senates, and future Presidents. This principle is

incorporated into the Appropriations Clause which

provides: “No Money shall be drawn from the

Treasury but in Consequence of Appropriations made

by Law.” U.S. CONST. art. I, sec. 9, cl. 7. The words

“by Law” implicate the Bicameral and Presentment

Clauses.

It is well-established that the United States

Constitution provides “a single, finely wrought and

exhaustively considered, procedure” for enacting

legislation. Immigration and Naturalization Service

v. Chadha, 462 U.S. 919, 951 (1983); see also Clinton

v. City of New York, 524 U.S. 417, 439-40 (1998).

Strict adherence to that procedure is required and is

set forth in the Bicameral Clause, U.S. CONST. art. I,

sec. 1, and the Presentment Clause, U.S. CONST. art.

I, sec. 7, cl. 2.

The Appropriations Clause is the Constitution’s

non-delegable bulwark against aggrandizement by

the Executive Branch. It is firmly established that

“Congress’s control over federal expenditures is

‘absolute.’” U.S. Department of the Navy v. Federal

Labor Relations Authority, 665 F.3d 1339, 1348 (D.C.

Cir. 2012); Rochester Pure Waters District v. EPA, 960

F.2d 180, 185 (D.C. Cir. 1992) (concerning Framers’

10

decision to give Congress “absolute control of the

moneys of the United States”).

The problem with the Intervening States’

argument is that it presumes a continuous flow of

funds from the Treasury to the states.

This

argument fails to consider that the Appropriations

Clause prevents any expectation of a permanent

appropriation. A permanent appropriation would

violate the Appropriations Clause by inverting the

Constitution’s default setting: from a default of “no

appropriation” without Congressional approval, to a

default of making an “appropriation” unless Congress

disapproves. U.S. CONST. art. I, § 9, cl. 7.

Simply stated, permanent appropriations would

fundamentally transform the political calculus and

are not authorized by the Constitution without an

Article

V

amendment.

Furthermore,

the

Appropriations

Clause

ensures

Congressional

involvement whenever money is to be withdrawn

from the Treasury. OPM v. Richmond, 496 U.S. 414,

424-26 (1990). Whenever any Congress enacts a

permanent appropriation, it blatantly removes the

requirement of future Congressional involvement.

Assuming arguendo that the Court determines

that the State Intervenors’ intervention in the

District Court was improper, the State Intervenors

would lack standing on appeal. Therefore, their

appeal should have been dismissed.

With an expectation of zero future federal

funding, the Intervening States’ standing to

intervene in the District disappears and, with it,

their ability to appeal to the Fifth Circuit and to

petition this Court.

11

II. AS IMPROPER INTERVENORS IN THE DISTRICT

COURT, THE INTERVENOR STATES DID NOT

BECOME “PARTIES” THAT COULD APPEAL TO THE

FIFTH CIRCUIT OR THIS COURT.

Once this Court determines that the State

Intervenors were improper intervenors in the District

Court, the State Intervenors may no longer be treated

as “parties”. Without such status, they may not

appeal. This Court has stated that “only parties to a

lawsuit, or those that properly become parties, may

appeal an adverse judgment.” Marino v Ortiz, 484

U.S. 301, 304 (1988) (per curiam).

The Federal Rules of Appellate Procedure

(“FRAP”), as well as the corresponding Local Rules

for the Fifth Circuit, contain many references to the

term “party” or “parties”. If the Intervening States

may not be deemed “parties”, then the jurisdictional

statement required by FRAP 28(a)(4)(B) is

insufficient.

In addition, this Court requires Petitioners to

supply: “[a] list of all parties to the proceeding in the

court whose judgment is sought to be reviewed …” S.

Ct. Rule 14(b)(i). If the State Intervenors cannot be

deemed “parties”, then their Petition is defective.

12

III. THE HOUSE’S INTERVENTION IN THE FIFTH

CIRCUIT WAS IMPROPER BECAUSE THE HOUSE

SUFFERED NO INSTITUTIONAL INJURY, ITS

MEMBERS SUFFERED NO INDIVIDUAL INJURIES,

AND

APPELLATE

INTERVENTION IS NOT

CONTEMPLATED BY THE FEDERAL RULES OF

APPELLATE PROCEDURE.

In connection with Petition ‘841, the House did

not participate in the District Court case. Rather, the

House moved to intervene in the United States Court

of Appeals for the Fifth Circuit. The motion was

granted. Petition ‘841 at 113a-114a and Order dated

February 14, 2019 (“Order”). According to the Order,

the House had argued that it was entitled to

intervene as of right or, alternatively, it was entitled

to permissive intervention. While Fifth Circuit ruled

that the House had no right to intervene under Rule

24(a)(1) or under 28 U.S.C. § 530D, the lower

appellate court did grant intervention under Rule

24(b)(1)(B). The Fifth Circuit stated that the House

has “a claim or defense that shares with the main

action a common question of law or fact.” Order,

supra.

The Supreme Court rejected legislative standing

in Raines. There this Court denied standing to

Senator Byrd, three other Senators and two members

of the House of Representatives because they “alleged

no injury to themselves as individuals … [and] the

institutional injury they allege is wholly abstract and

widely dispersed ….” Raines, 521 U.S. at 829. This

case is conceptually not any different. Because the

House suffered no injury, it should have been

relegated below to the status of a mere amicus curiae

13

rather than having been elevated to the status of an

Intervenor-Appellant (and, now, Petitioner).

Likewise, the House of Representatives does not

speak for the United States. Thus, when the United

States informed the Fifth Circuit that it was no

longer challenging the District Court decision, the

appeal should have been dismissed immediately.

Here, the House intervened at the appellate level,

having failed to participate at the trial level. The

House tried to pursue the appeal despite how the

original defendant, the United States, had decided to

end the dispute. The jurisdictional defect is clear

with respect to the House.

The Fifth Circuit erred by basing the House’s

intervention on Rule 24 of the FRCP, which generally

does not contemplate appellate intervention. We

begin with the plain words of the FRAP and the

FRCP. Rule 1 of FRAP governs procedures in the

United States Courts of Appeals. FRAP Rule 1(a)(1)

(“These rules govern procedure in the United States

courts of appeals.”). There is no crossover of the rules

from the District Court to the Court of Appeals. The

Order of the Fifth Circuit, authorizing the permissive

intervention of the House pursuant to FRCP

24(b)(1)(B), was plainly in error.

FRAP contains a Rule regarding intervention,

Rule 15, which is quite limited in applicability. It

refers only to interventions in connection with the

review or enforcement of an agency order. Thus the

14

FRAP should be interpreted as excluding all other

forms of intervention.5

Assuming arguendo that this Court determines

that the intervention below by the House was

improper, the House would thereby lack standing to

petition here.

CONCLUSION

For the foregoing reasons, Petitions ‘840 and ‘841

should be denied.

Respectfully submitted,

DAVID P. FELSHER

488 MADISON AVENUE

NEW YORK, NY 10022

(212) 308-8505

dflaw2@earthlink.net

ANDREW L. SCHLAFLY

Counsel of Record

939 OLD CHESTER ROAD

FAR HILLS, NJ 07931

(908) 719-8608

aschlafly@aol.com

Counsel for Amicus

Dated: February 3, 2020

5 Amicus agrees with the Fifth Circuit that “[t]he House has no

right to intervene under Rule 24(a)(1) or under 28 U.S.C. §

530D.” Order, Petition ‘841 at 113a.