Plaintiffs' Petition for Rehearing en banc was denied because, of the 15 judges who considered it, "no judge who concurred in the (initial 3rd Circuit) decision ... asked for rehearing, and a majority of the circuit judges of the circuit in regular active service (did) not (vote) for rehearing...."

Hence, Plaintiffs' counsel - attorneys, students, and volunteers - are heading back to the library, this time to prepare a "Writ of Certiorari," which is the title of the document that asks the Supreme Court to consider this case out of the many that the Highest Court in the Land will receive this year. I suspect the support of "friends" will be very helpful. Absent extensions, Plaintiffs have 90 days to file the Writ, according to Rule 13 of the Rules of the Supreme Court of the United States. See: www.supremecourt.gov/ctrules/2010RulesoftheCourt.pdf | cached).

[Please note that Plaintiffs identified me as a volunteer with them, in their brief to the Court of Appeals. The views expressed on this website have been, and remain, my own.]

What now? Well, plaintiffs have a choice. One - Appeal! This would involve filing a writ of certiorari with the Supreme Court, requesting that they consider our appeal. Two - accept that we lost and ask the court to reconsider. Three - accept that we lost, and give up.

After coming all this way, with plaintiffs who believe strongly in their case and the need to address the wrongs they have suffered, will they be willing to cover the expenses of continuing this litigation? Will we have the heart and the energy to push on with this? After all, we are not getting paid and life is short; the legacy of June 1, 1787 is clear and the only Supreme Court cases are in our favor; but, those cases are pretty old (from the start of the 1800's) and recent lower court cases (since the start of the Vietnam era) are voluminous. Maybe in the interests of - what? tiredeness (to mix metaphors: "you can't fight city hall," "why make a federal case out of it"), governmental efficiency, national security, and social harmony? - we should just give up. Hmmmmm. Let me ponder this a moment. What would you do?

By the way, in thinking about this, I am reminded that some founders and framers thought: that some purposes of government are paramount to the goal of efficiency; that the nation is more secure when the President is able to use the Army and Militia to defend it and, yet, must wait for Congress before ordering the military to take action against another country; and, that "harmony" comes when a unifying goal is achieved through free and robust debate that is then reflected in recorded roll-call votes by individual members of the House and Senate.

Right after oral argument - after all rose and the Judge left the Courtroom - the Court Reporter asked Plaintiffs' counsel if they would be ordering a transcription of the record. She explained that the Judge liked being able to have a print-out of the oral argument in front of him as he prepared his Order. After some discussion with Plaintiffs, counsel informed the Court Reporter that, yes, they would order a copy of the transcript.

The issues argued to the Court concerned the procedural questions of "standing" and "political question." In a nutshell,

• "Standing" is whether the plaintiffs have a right to be in this court, and
• "Political Question" is whether the issues brought by the plaintiffs are ones that a Court can decide or are questions better decided by - or given by the Constitution to - elected officials.

At the moment, to me, the reason for this distinction - which probably goes back at least to John Marshall's time - is hazy. I certainly understand the desirability of community input into some decisions. That is why we have a political process. Yet, we have a jury system. Juries are supposed to bring the community into the courtroom. So, it would seem that rather than taking a pass on "hot" issues on which "The People" should have a say, the judicial system could provide jury trials for such issues.

Plaintiffs filed their Response to Defendant President's second Motion to Dismiss. Defendant filed his Reply to Plaintffs' Response today, Monday, December 8, 2008. The Court could have scheduled oral argument as soon as Monday, December 15, 2008. However, the Court has informed the parties that there will be no oral argument, and no decision, in December.

The Court does not have to schedule oral argument at all. The judge may decide that there is enough information in the pleadings to make a decision on Defendant's request. On the other hand, the Court may decide that having the lawyers in the courtroom, to judge their demeanor and possibly cross-examine them, could be useful in the Court's decision-making process. Therefore, at this time, we do not know what will happen next, or when it will happen, and must wait for the Court to let us know.

"Judges are randomly chosen by a computer database, similar to a deck of cards. When one judge is assigned, the cards are shuffled again for the next selection. The Clerk's Office has no discretion in the assignment of cases."

The Defendant, the President of the United States, has at least until June 4 to file an Answer.

A Defendant has the right to file an Answer. If an Answer is to be filed, it must be timely filed. According to the Federal Rules of Civil Procedure, Rule 12(a)(1)(A)(1)(i)(http://www.law.cornell.edu/rules/frcp/Rule12.htm) a Defendant must file an Answer "within 20 days after being served with the summons and complaint," unless granted more time. Thus, the President's Answer should be due on Wednesday, June 4. However, there are more exceptions.

According to Rule 6, http://www.law.cornell.edu/rules/frcp/Rule6.htm, for a period like this of 11 days or more, the day of the event that begins the period, the filing of the Complaint in this situation, is not counted while the last day is counted "unless it is a Saturday, Sunday, legal holiday, or if the act to be done is filing a paper in court a day on which weather or other conditions make the clerk's office inaccessible." [Emphasis added.]

Thus, it will be June 4, unless the creeks rise, or there is some other good reason for the Clerk's office to be inaccessible, or some other exception applies.

Will the President file an Answer? I don't know - my crystal ball broke some time ago. It is most probable that he will.

Presidents have fought hard against limits on their discretion to use our military force. Recently, that has been especially true in regards to the War Powers Resolution, which was originally vetoed by a President and has never been recognized by a President as binding on the Commander-in-Chief, though Presidents have fairly consistently followed the WPR as a guideline about when and how to report to the Congress on their Presidential use of our military.

However, this case does not ask the Judiciary to require the President to do anything. So, maybe he won't bother.

If a Defendant does not to file an Answer, then the Plaintiff wins by default.

That sounds pretty good for the Plaintiff, but there are some procedures to follow. As you might expect, they are specified in the Federal Rules of Civil Procedure (FRCP). Rule 55 to be exact, which may be found at http://www.law.cornell.edu/rules/frcp/Rule55.htm.

Since the Plaintiffs are not asking for money, other than the fees and costs of bringing this lawsuit, sub-part (b)(2) most likely applies:

The court may conduct hearings or make referrals - preserving any federal statutory right to a jury trial - when, to enter or effectuate judgment, it needs to:
(A) conduct an accounting;
(B) determine the amount of damages;
(C) establish the truth of any allegation by evidence; or
(D) investigate any other matter.

Thus, in a case which does not call solely for money damages, and relies heavily on history, with little judicial "gloss" on the Constitution, a Defendant would probably get a hearing, even if no Answer is filed.

This is especially true in this case, as sub-part (d) of Rule 55 provides:

"A default judgment may be entered against the United States, its officers, or its agencies only if the claimant establishes a claim or right to relief by evidence that satisfies the court."

Thus, without doing more, the President would likely get his day in Court, would be able to inform the Judge of his arguments, and have a chance to persuade the Judge of the righteousness of those arguments.

Is there any more reason why the President would do this? Perhaps. After all, by doing so, he can take the Plaintiffs completely by surprise. As this hearing would be merely to determine the contours of a judgment, there might be little or no discovery. The Plaintiffs would have no benefit of mountains of defense briefs on which to hone their arguments.

There was no deluge June 4, but no answer either. The government got more time.

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