Newdow V Roberts DC-Cir Pet For Rehearing

Case: 09-5126 Document: 1248825 Filed: 06/09/2010 Page: 1
CASE NO. 09-5126
IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT
MICHAEL NEWDOW, et al.
Plaintiffs-Appellants,
v.
HON. JOHN ROBERTS, JR., CHIEF JUSTICE OF THE U.S.

SUPREME COURT, et al.
Defendants-Appellees,
On Appeal from the United States District Court

for the District of Columbia
(District Court #1:08-cv-02248)
PLAINTIFFS-APPELLANTS’ PETITION FOR PANEL REHEARING OR

FOR REHEARING EN BANC
MICHAEL NEWDOW ROBERT V. RITTER

In pro per and Plaintiffs’ counsel AHA
PO BOX 233345 1777 T STREET, NW
SACRAMENTO, CA 95823 WASHINGTON, DC 20009
(916) 424-2356 (202) 238-9088

NewdowLaw@gmail.com BRitter@americanhumanist.org
TABLE OF CONTENTS
TABLE OF CITATIONS.................................................................................. ii
STATEMENT REQUIRED BY FRAP 35(b)(1)..............................................1
PRELIMINARY NOTE .....................................................................................2
SUMMARY OF THE ARGUMENT ................................................................3
ARGUMENT.......................................................................................................4
(I) The Right to Challenge Executive Branch Actions Has

Been a Constant in the Supreme Court’s Jurisprudence
Since 1803 .................................................................................................4
(II) There is Redressability in This Case .....................................................5
A. That the President is the Ultimate Decision-Maker Does
Not Warrant a Lack of Redressability Ruling ................................6
B. That No Mandate Exists to Have an Inaugural Ceremony
Does Not Warrant a Lack of Redressability Ruling.......................7
C. That the President Could Find Others to Commit the
Constitutional Violation Does Not Warrant a Lack of
Redressability Ruling.........................................................................8
CONCLUSION .................................................................................................15
i
TABLE OF CITATIONS
CASES
Barlow v. Collins, 397 U.S. 159 (1970).....................................................................2
Bowsher v. Synar, 478 U.S. 714 (1986).....................................................................4
Chicago & Southern Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S.
103 (1948) ...............................................................................................................8
Clinton v. City of New York, 524 U.S. 417 (1998) ........................................... 11, 12
Clinton v. Jones, 520 U.S. 681 (1997)...................................................................4, 6
Douglas v. Preston, 559 F.3d 549 (2009)..............................................................7, 8
Ex parte Levitt, 302 U.S. 633 (1937) .........................................................................5
Franklin v. Massachusetts, 505 U.S. 788 (1992).......................................... 6, 13, 15
Hamdan v. Rumsfeld, 548 U.S. 557 (2006) ...............................................................8
Hamdi v. Rumsfeld, 542 U.S. 507 (2004) ..................................................................5
Kilbourn v. Thompson, 103 U.S. 168 (1881).............................................................4
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ......................................... 9, 10
Lynch v. Donnelly, 465 U.S. 668 (1984) ...................................................................3
Marbury v. Madison, 5 U.S. 137 (1803).......................................................... passim
Marsh v. Chambers, 463 U.S. 783 (1983) .................................................................2
Mississippi v. Johnson, 71 U.S. (4 Wall.) 475 (1867) .............................................12
Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26 (1976).................................. 9, 10
Swan v. Clinton, 100 F.3d 973 (D.C. Cir. 1996) .....................................................13
United States v. Nixon, 418 U.S. 683 (1974).............................................................5
ii
STATUTES
36 U.S.C. § 501........................................................................................................12
S.Con.Res. 67, 110th Cong., 2nd Sess. (2008)...........................................................12
OTHER AUTHORITIES
New England Primer, or, An easy and pleasant guide to the art of reading:
Adorned with cuts; to which is added, the Catechism. (Boston: Massachusetts
Sabbath School Society; 1843) ...............................................................................2
iii
STATEMENT REQUIRED BY FRAP 35(b)(1)
(I) The decision of the panel majority conflicts with existing case law
The panel majority’s opinion in this case conflicts with Marbury v.
Madison, 5 U.S. 137, 163 (1803), and every subsequent decision where
standing to challenge an executive branch action was deemed to exist due to
an alleged abrogation of an individual’s vested right.
(II) This proceeding involves questions of exceptional importance
Is judicial review no longer available to ensure that the actions of the
executive branch do not infringe on individual liberties? By ruling that such
an action is not redressable in this case, the panel majority has opened the
door to far-reaching abuses by eliminating one of the most important
safeguards against unchecked governmental power. This is clearly a matter
of exceptional importance.
Also of exceptional importance is the Establishment Clause issue that
forms the gravamen of the Complaint. Because Plaintiffs stipulate that their
“capable of repetition but evading review” argument has been lost for the
2009 inauguration, op. at 9-11, it would be frivolous to petition for this issue
at this time. Rather, they will relitigate at the 2013 inaugural (after the actual
defendants become known, op. at 12-13) once redressability is
acknowledged here.
1
PRELIMINARY NOTE
This case is about government-sponsored (Christian) Monotheism at the
inauguration of the President. Specifically, every four years, the Chief Justice of
the United States proclaims to a vast audience that this nation adheres to the view
that there exists a God. This purely religious claim (contrary and offensive to the
religious views of Plaintiffs and many others) is then reinforced with the intrusion
of (Christian) Monotheistic clergy leading a public audience in (Christian)
Monotheistic prayer. Cf. Marsh v. Chambers, 463 U.S. 783 (1983) (prayer
intended principally for our legislators, not for the public, is permissible).
The panel majority held that Plaintiffs lack redressability. Plaintiffs submit
that this resulted largely from a belief that the Plaintiffs should lose on the merits.
“Too often these various questions have been merged into one confused inquiry.”
Barlow v. Collins, 397 U.S. 159, 176 (1970) (Brennan, J., concurring and
dissenting). Had the Chief Justice added “and Jews stink!” to the end of the oath,
or the Presidential Inaugural Committee (“PIC”) aided Protestant ministers in
criticizing Catholicism and asking the audience to join in proclaiming, “Abhor that
errant whore of Rome,”1 redressability would likely have been found.
1
See New England Primer, or, An easy and pleasant guide to the art of reading:
Adorned with cuts; to which is added, the Catechism. (Boston: Massachusetts
Sabbath School Society; 1843) p. 25.
2
SUMMARY OF THE ARGUMENT
The government of the United States has been emphatically

termed a government of laws, and not of men. It will certainly
cease to deserve this high appellation, if the laws furnish no
remedy for the violation of a vested legal right.2
This case has potentially huge ramifications. In the wake of the panel
majority’s ruling, the executive branch is now armed to violate the basic liberties
of every American with impunity. Not only is this directly contrary to Chief Justice
Marshall’s edict in 1803, but it conflicts with the consistent warnings given by the
Supreme Court ever since.
The right vested in this case has been phrased in numerous ways. Whether
described as a right not to be turned (by the government) into “outsiders, not full
members of the political community”3 on the basis of religious belief, or a right not
to be forced to suffer a “sense of anguish and outrage”4 due to the government’s
advocacy for what an individual believes to be a religious falsehood, that right is
being violated every four years at the nation’s “transcendent ritual.”
2
Marbury v. Madison, 5 U.S. 137, 163 (1803).
3
Lynch v. Donnelly, 465 U.S. 668, 688 (1984) (O’Connor, J., concurring).
4
Op. (Kavanaugh, J., concurring) at 6.
3
ARGUMENT
(I) The Right to Challenge Executive Branch Actions Has Been a

Constant in the Supreme Court’s Jurisprudence Since 1803
Plaintiffs agree that the independence of the executive branch is essential to
the proper functioning of our government. As Chief Justice Marshall emphasized
in Marbury v. Madison, 5 U.S. 137, 170 (1803), for the courts “to intermeddle with
the prerogatives of the executive … [would be] [a]n extravagance, so absurd and
excessive, [it] could not have been entertained for a moment.”
However, the Chief Justice also noted that this applies only when “[t]he
subjects are political [and t]hey respect the nation, not individual rights.” 5 U.S.
at 166 (emphasis added). After all, “[t]he Framers recognized that, in the long
term, structural protections against abuse of power were critical to preserving
liberty.” Bowsher v. Synar, 478 U.S. 714, 730 (1986). Thus, “we have long held
that when the President takes official action, the Court has the authority to
determine whether he has acted within the law.” Clinton v. Jones, 520 U.S. 681,
703 (1997). Similarly, the Supreme Court stated in Kilbourn v. Thompson, 103
U.S. 168, 199 (1881) that:
[L]iving under a written constitution, … it is the province and

duty of the judicial department to determine in cases regularly
brought before them, whether the powers of any branch of the
government … have been exercised in conformity to the
Constitution; and if they have not, to treat their acts as null and
void.
4
Thus, “a private individual [may] invoke the judicial power to determine the
validity of executive or legislative action.” Ex parte Levitt, 302 U.S. 633 (1937).
No Supreme Court case has limited this power in situations such as that
involved here. On the contrary, as the Supreme Court recently noted:
[Even] a state of war is not a blank check for the President

when it comes to the rights of the Nation’s citizens. Whatever
power the United States Constitution envisions for the
Executive … it most assuredly envisions a role for all three
branches when individual liberties are at stake.”
Hamdi v. Rumsfeld, 542 U.S. 507, 536 (2004) (citations omitted). Thus, when
examined in the federal courts, “exercises of power by the Executive Branch …
have been found invalid as in conflict with the Constitution.” United States v.
Nixon, 418 U.S. 683, 703 (1974).
(II) There is Redressability in This Case
Despite the foregoing, the panel majority contended that redressability is
absent, writing that “[d]eclaratory and injunctive relief against the defendants
actually named would not prevent the claimed injury.” Op. at 13. This contention
is wholly without merit. By either declaratory or injunctive means, the injuries to
Plaintiffs will certainly be prevented once the Court issues the requested relief.
The panel majority appears to base its conclusion on three facts. The first is
that it is the President, not the named defendants, who is the ultimate decision-
maker. The second is that there is no mandate to have an inaugural ceremony. The
5
last is that if the Court were to prevent the named Defendants from committing the
constitutional violations, the President could simply find others to take their place.
None of these facts warrant a lack of redressability ruling.
A. That the President is the Ultimate Decision-Maker Does Not

Warrant a Lack of Redressability Ruling
Plaintiffs do not dispute that the President is the ultimate decision-maker in
regard to the challenged activity. See Op. at 14 (noting that “[t]he committees are
only authorized—not obligated—to assist or make arrangements;” and that “[t]he
PIC also has no authority or duty to sponsor or determine the contents of the
inaugural ceremony”).5 But this is generally true for executive branch actions. In
fact, even when the President’s underlings have authority, that authority can
frequently be superseded by the Chief Executive. Franklin v. Massachusetts, 505
U.S. 788, 800 (1992) (noting “the President’s usual superintendent role” and his
“accustomed supervisory powers over his executive officers”). See also Clinton v.
Jones, 520 U.S. at 713 (Breyer, J., concurring) (“[A] President, though able to
delegate duties to others, cannot delegate ultimate responsibility or the active
obligation to supervise that goes with it.”) Thus, that the President is the ultimate
decision-maker has no probative value in terms of redressability.
5
As far as the Chief Justice and “what may be added to the presidential oath,” op.
at 14, “the ultimate decision-maker” is the Constitution, not the President.
6
Perhaps recognizing this, an identically comprised panel majority never
mentioned redressability in Douglas v. Preston, 559 F.3d 549 (2009). Somewhat
analogous to the instant case, Douglas involved a racial discrimination claim in
regard to a “Presidential Rank Award.” As here, “[t]he President of the United
States makes the final call.” Id. at 551. To be sure, any conclusion regarding
redressability in Douglas can only be made “sub silentio.” See In re Navy
Chaplaincy, 534 F.3d 756, 764 (D.C. Cir. 2008). Nonetheless, one would have
expected the panel to have mentioned redressability had it been lacking. This is
especially true since the Douglas Court took a more circuitous route to reach its
holding; delving into the speculative nature of the injury, and relating that to
whether an “adverse employment action” had occurred.6
B. That No Mandate Exists to Have an Inaugural Ceremony Does Not

Warrant a Lack of Redressability Ruling
The second fact noted by the panel majority is that “there is no law
mandating that the President or the President-elect even carry out an inaugural
ceremony … [which] is subject to the President’s or President-elect’s discretion.”
6
It might be incidentally mentioned that standing can exist in certain
circumstances “even if any alleged harm is speculative.” Douglas, 559 F.3d at 552-
53. In the instant case, of course, the harm is not speculative at all. On the contrary,
“it is substantially probable that the Presidential oath at the next Inauguration will
include ‘so help me God’ and that there will be prayers during the Inaugural
ceremony.” Op. (Kavanaugh, J., concurring) at 3.
7
Op. at 14. This, too, is true for many of the decisions the Chief Executive makes.
“[E]ven a purely discretionary [act] can be actionable.” Douglas, 559 F.3d at 552.
In Hamdan v. Rumsfeld, 548 U.S. 557 (2006), as one of numerous possible
examples, there was no mandate for the president to issue the military order under
which the plaintiff claimed his rights were violated. Yet never was there a claim
that his asserted injury was not redressable because “no law obligate[d] the
President” to issue the order. Op. at 14.
C. That the President Could Find Others to Commit the Constitutional

Violation Does Not Warrant a Lack of Redressability Ruling
“Judgments within the powers vested in courts by the Judiciary Article of
the Constitution may not lawfully be revised, overturned or refused faith and credit
by another Department of Government.” Chicago & Southern Air Lines, Inc. v.
Waterman S.S. Corp., 333 U.S. 103, 113 (1948). Despite this clear edict from the
Supreme Court, the panel majority wrote that “the future President could simply
find other willing assistants not subject to the injunction to carry out his wishes.”
Op. at 15. Obviously, that would be “refus[ing] faith and credit.”7
7
To be sure, the Supreme Court ruled in Waterman that it lacked the power to
review the President’s decision. But that ruling was only because the case involved
“executive decisions as to foreign policy,” id. at 111, that were “of a kind for
which the Judiciary has neither aptitude, facilities nor responsibility and which has
long been held to belong in the domain of political power not subject to judicial
intrusion or inquiry.” Id. Obviously, that is not the situation here.
8
(1) The Panel Majority Misconstrued the “Third Party” Issue
In terms of redressability, there are two “third party” types that can be of
concern. The first is comprised of “third parties” who may be recipients (or
objects) of the given injury. Thus, in Lujan v. Defenders of Wildlife, 504 U.S. 555,
561-62 (1992), the Supreme Court discussed “whether the plaintiff is himself an
object of the action (or forgone action) at issue. If he is, there is ordinarily little
question that the action or inaction has caused him injury, and that a judgment
preventing or requiring the action will redress it.” As recipients of the unwanted
Monotheistic intrusions, Plaintiffs here are “object[s] of the action … at issue.”
Accordingly, from this recipient standpoint, there are no “third parties,” and their
injuries are redressable.
The other “third parties” are those who may cause the given injury. In
examining this matter, the panel majority made a gross error, which (if
uncorrected) may result in huge abrogations of individual rights in this circuit.
According to the panel majority, redressability was lacking because:
The future President is therefore a “third party not before the

court” whose “independent action” results in the alleged injury,
Lujan, 504 U.S. at 560, and courts cannot “redress injury . . .
that results from [such] independent action,” Simon v. E. Ky.
Welfare Rights Org., 426 U.S. 26, 41–42 (1976).
Op. at 15. The case at bar, however, is readily distinguishable from Lujan and
Simon. In those earlier lawsuits, the named defendants acted first, and any
9
infringements of the plaintiffs’ rights resulted from the subsequent actions of
unnamed “third parties.” That is why the Supreme Court wrote:
Art. III still requires that a federal court act only to redress
injury that fairly can be traced to the challenged action of the
defendant, and not injury that results from the independent
action of some third party not before the court.
Simon, 426 U.S. at 41–42. In the instant case, the situation is reversed. Here, the
unnamed “third party” (i.e., the President) acts first, after which Plaintiffs’ rights
are infringed upon by the named defendants carrying out the President’s orders:
Through the PIC, President Obama invited two private

ministers—Revs. Rick Warren and Joseph Lowery—to lead
invocation and benediction prayers, respectively, at the
inaugural ceremony. President Obama also communicated his
wish to John Roberts, Jr., Chief Justice of the United States,
that the Chief Justice administer the presidential oath of office
at the ceremony and append the phrase “So help me God” to
conclude the oath.
Op. at 5.8 In other words, in terms of redressability, this case has what was missing
in Lujan and Simon: the named defendants being the final actors causing the injury.
To argue, as the panel majority did, that there is no redressability because
the President instigated the constitutional infirmities as an independent third party
is tantamount to completely obliterating judicial review. Any time the President
directs his subordinates to act, there is this same “independent action” of a “third
8
With twenty consecutive similar inaugurations, it can be presumed that the same
decision will be made in 2013 and 2017. See note 6, page 7, supra.
10
party.” In fact, there is no reason to limit this “logic” to the executive branch. For
most of the laws it passes, there is nothing “mandating” Congress to act, either.
Thus, under the panel majority’s ruling here, there would be no redressability for
harms resulting from statutory laws as well, since those would also result from the
“independent action” of a “third party” (i.e., Congress).
(2) The Panel Majority Misconstrued Clinton v. City of New York
In multiple ways, the panel majority misconstrued Clinton v. City of New
York, 524 U.S. 417 (1998). For instance, importance seemed to be placed on the
fact that the President was one of the named defendants. Op. at 15-16 (“We put
aside the fact that plaintiffs in that case (unlike plaintiffs in this case) actually
named the President in their suit.”). Clinton, however, specifically highlighted that
“neither set of plaintiffs sought injunctive relief against the President," 524 U.S. at
426 n.9, and (as the quote that the panel majority chose to disregard makes clear):
“[T]raceability and redressability are easily satisfied [when]

injury is traceable to the President’s [acts] and would be
redressed by a declaratory judgment that the [acts] are invalid.”
Op. at 15 (citing Clinton, 524 U.S. at 433 n.22).
That Clinton was “a basic case of judicial review of legislation” fares no
better in terms of the lack of redressability argument. First of all, nothing in the
Supreme Court’s jurisprudence limits judicial review of presidential actions only to
situations that involve legislation. See, e.g., Marbury v. Madison. Secondly, just as
11
the challenged action occurred within the confines of legislation in Clinton, it
occurs within the confines of legislation in this case, as well. See 36 U.S.C. § 501
et seq (authorizing the PIC); S. Con. Res. 67, 110th Cong., 2nd Sess. (2008)
(authorizing the JCCIC). Admittedly, there is nothing in the legislation that
specifically addresses introducing (Christian) Monotheism into the inaugural
ceremonies, but – as with Clinton – it is still legislation that enables the
constitutional wrong.
The Clinton discussion concluded with two inapt citations and a straw man.
First came a citation to Mississippi v. Johnson, 71 U.S. (4 Wall.) 475, 499 (1867):
(“An attempt on the part of the judicial department . . . to

enforce the performance of [executive and political] duties by
the President [is] ‘an absurd and excessive extravagance.’”)
(quoting Chief Justice John Marshall)
Op. at 16. As noted previously, see page 4, supra, this misses the basic distinction
Chief Justice Marshall emphasized in Marbury: “[When] [t]he subjects are
political [and t]hey respect the nation, not individual rights, … the decision of the
executive is conclusive.” Marbury, 5 U.S. at 166 (emphasis added). As the Chief
Justice had enunciated earlier:
The very essence of civil liberty certainly consists in the right

of every individual to claim the protection of the laws,
whenever he receives an injury. … The government of the
United States has been emphatically termed a government of
laws, and not of men. It will certainly cease to deserve this high
appellation, if the laws furnish no remedy for the violation of a
vested legal right.
12
5 U.S. 163. This edict would become a nullity under the panel majority’s approach.
The second citation, to Swan v. Clinton, 100 F.3d 973, 976 n.1 (D.C. Cir.
1996), is extraordinary inasmuch as Swan specifically stated:
[T]he bedrock principle [is] that our system of government is

founded on the rule of law, and it is sometimes a necessary
function of the judiciary to determine if the executive branch is
abiding by the terms of [the law].
100 F.3d at 978. Wishing to respect the special role of the President, the Swan
court then stated, “[i]f Swan’s injury can be redressed by injunctive relief against
subordinate officials, he clearly has standing.” Id. at 979. That is precisely the
circumstance in the instant case. Plaintiffs, therefore, “clearly ha[ve] standing.”
The straw man was the statement that, “plaintiffs fail to cite any authority
allowing this court to declare unlawful the personal religious expression of a
private citizen like the President-elect.” Op. at 16. As the majority itself noted,
Plaintiffs agreed from the outset that “[t]he President cannot be denied the
prerogative of making such a religious reference … because doing so would
abrogate his First Amendment rights.” Op. at 11-12.
(3) The Panel Majority Misconstrued Franklin v. Massachusetts
The panel majority’s ultimate discussion – of Franklin v. Massachusetts – is
also manifestly in error. First, there is the Franklin plurality’s key statement:
[W]e may assume it is substantially likely that the President and

other executive and congressional officials would abide by an
13
authoritative interpretation of the census statute and

constitutional provision by the District Court, even though they
would not be directly bound by such a determination.
505 U.S. at 803, which the panel majority here claimed is “not controlling on this
court.” Op. at 16. Plaintiffs disagree. Only one justice voiced any disagreement,
and that justice specifically noted:
Although only a plurality of the Court joins that portion of

JUSTICE O’CONNOR’s opinion which finds standing (Part
III), I must conclude that the Court finds standing since eight
Justices join Part IV of the Court’s opinion discussing the
merits of appellees’ constitutional claims.
505 U.S. at 824 n.1 (Scalia, J., concurring in part and concurring in the judgment).
Furthermore, that justice’s entire six page concurrence was spent on “recogniz[ing]
that the scope of Presidential immunity from judicial process differs
significantly from that of Cabinet or inferior officers.” id. at 826 (emphasis
added), and that “[r]eview of the legality of Presidential action can ordinarily
be obtained in a suit seeking to enjoin the officers who attempt to enforce the
President’s directive.” Id. at 828 (emphasis added). Thus, at least five (and
perhaps all nine) justices would have found redressability in the instant case.
The panel majority’s conclusion, therefore (that “[t]he future President is
free to use any decisionmaking process he desires when designing and staging an
inaugural ceremony and is not obligated to consult anybody or take any cognizance
of the opinions issuing from this court,” op. at 17) is simply a reiteration of the fact
14
that the President, himself, is a coequal with the judicial branch, and that he is
unlike “the officers who attempt to enforce the President’s directive.” Those latter
individuals (and the committees, agencies, etc., who also “attempt to enforce the
President’s directive”) are obligated to follow the Court’s directions.
CONCLUSION
In a split decision, the panel majority concluded that Plaintiffs here do not
have standing to bring this lawsuit. Specifically, the majority held that Plaintiffs’
injuries are not redressable because the courts do not have power to issue
injunctive or declaratory relief against the President – a fact with which Plaintiffs
agree. However, as the Supreme Court held in Franklin v. Massachusetts, the
courts certainly have power to issue such relief against his underlings.
Only the President’s underlings were named as defendants in this case. Thus,
the majority has set a precedent in this circuit that conflicts with Supreme Court
case law, and has potentially devastating consequences. This Petition should be
granted (and the panel majority’s decision reversed) to preclude that possibility.
15
Respectfully submitted,
s/ - Michael Newdow
In pro per and Plaintiffs’ counsel
PO Box 233345
Sacramento, CA 95823
(916) 424-2356
NewdowLaw@gmail.com
16
IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT
CASE NO. 09-5126
Newdow v. Roberts
CERTIFICATE OF SERVICE
I hereby certify that on June 9, 2010, I filed the following document:
PLAINTIFFS-APPELLANTS’ PETITION FOR PANEL REHEARING OR

FOR REHEARING EN BANC
electronically with the Clerk of the United States Court of Appeals for the District
of Columbia Circuit, using the CM/ECF system. Accordingly, service will
assumedly be made upon:
Counsel for Defendants Roberts, JCCIC, Feinstein, AFIC and Rowe:
Mark Stern mark.stern@usdoj.gov
Lowell Sturgill lowell.sturgill@usdoj.gov
Counsel for Defendants PIC and Beliveau:

Dominic F. Perella dfperella@hhlaw.com
Catherine Stetson cestetson@hhlaw.com
Counsel for Defendants Warren and Lowery:

Kevin E. Snider kevinsnider@pacificjustice.org
s/ - Michael Newdow
MICHAEL NEWDOW In pro per and Plaintiffs’ counsel

US COA (DC CIRCUIT) BAR #52321
PO BOX 233345
SACRAMENTO, CA 95831
(916) 424-2356
NewdowLaw@gmail.com

Newdow V Roberts DC-Cir Pet For Rehearing

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Case: 09-5126 Document: 1248825 Filed: 06/09/2010 Page: 1

CASE NO. 09-5126

IN THE UNITED STATES COURT OF APPEALS

MICHAEL NEWDOW, et al.

HON. JOHN ROBERTS, JR., CHIEF JUSTICE OF THE U.S.

On Appeal from the United States District Court

(District Court #1:08-cv-02248)

PLAINTIFFS-APPELLANTS’ PETITION FOR PANEL REHEARING OR

MICHAEL NEWDOW ROBERT V. RITTER

(916) 424-2356 (202) 238-9088

STATEMENT REQUIRED BY FRAP 35(b)(1)..............................................1

PRELIMINARY NOTE .....................................................................................2

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

(I) The Right to Challenge Executive Branch Actions Has

Barlow v. Collins, 397 U.S. 159 (1970).....................................................................2

Bowsher v. Synar, 478 U.S. 714 (1986).....................................................................4

Clinton v. Jones, 520 U.S. 681 (1997)...................................................................4, 6

Douglas v. Preston, 559 F.3d 549 (2009)..............................................................7, 8

Ex parte Levitt, 302 U.S. 633 (1937) .........................................................................5

Franklin v. Massachusetts, 505 U.S. 788 (1992).......................................... 6, 13, 15

Hamdan v. Rumsfeld, 548 U.S. 557 (2006) ...............................................................8

Hamdi v. Rumsfeld, 542 U.S. 507 (2004) ..................................................................5

Kilbourn v. Thompson, 103 U.S. 168 (1881).............................................................4

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ......................................... 9, 10

Lynch v. Donnelly, 465 U.S. 668 (1984) ...................................................................3

Marbury v. Madison, 5 U.S. 137 (1803).......................................................... passim

Marsh v. Chambers, 463 U.S. 783 (1983) .................................................................2

Mississippi v. Johnson, 71 U.S. (4 Wall.) 475 (1867) .............................................12

Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26 (1976).................................. 9, 10

Swan v. Clinton, 100 F.3d 973 (D.C. Cir. 1996) .....................................................13

United States v. Nixon, 418 U.S. 683 (1974).............................................................5

S.Con.Res. 67, 110th Cong., 2nd Sess. (2008)...........................................................12

Adorned with cuts; to which is added, the Catechism. (Boston: Massachusetts

Sabbath School Society; 1843) ...............................................................................2

STATEMENT REQUIRED BY FRAP 35(b)(1)

The panel majority’s opinion in this case conflicts with Marbury v.

standing to challenge an executive branch action was deemed to exist due to

an alleged abrogation of an individual’s vested right.

(II) This proceeding involves questions of exceptional importance

Is judicial review no longer available to ensure that the actions of the

executive branch do not infringe on individual liberties? By ruling that such

door to far-reaching abuses by eliminating one of the most important

safeguards against unchecked governmental power. This is clearly a matter

Also of exceptional importance is the Establishment Clause issue that

defendants become known, op. at 12-13) once redressability is

This case is about government-sponsored (Christian) Monotheism at the

of (Christian) Monotheistic clergy leading a public audience in (Christian)

or the Presidential Inaugural Committee (“PIC”) aided Protestant ministers in

errant whore of Rome,”1 redressability would likely have been found.

SUMMARY OF THE ARGUMENT

The government of the United States has been emphatically

Supreme Court ever since.

to be forced to suffer a “sense of anguish and outrage”4 due to the government’s

advocacy for what an individual believes to be a religious falsehood, that right is

being violated every four years at the nation’s “transcendent ritual.”

(I) The Right to Challenge Executive Branch Actions Has Been a

Plaintiffs agree that the independence of the executive branch is essential to

the proper functioning of our government. As Chief Justice Marshall emphasized

excessive, [it] could not have been entertained for a moment.”

term, structural protections against abuse of power were critical to preserving

U.S. 168, 199 (1881) that:

[L]iving under a written constitution, … it is the province and

involved here. On the contrary, as the Supreme Court recently noted: