Beruflich Dokumente
Kultur Dokumente
v.
Respondent-Appellee.
The Commissioner’s brief is an invitation to this Court to start with a clean Constitutional
regime slate. No attempt is made by the Commissioner to answer any question, much less address
any issue, raised in my brief. The reason is that there is no objection which can be made. The
message is clear from the Commissioner’s approach in his brief. The brief is pure boilerplate—
cut and paste. The Commissioner’s “argument” is that a Notice of Determination is a Notice of
Determination is a Notice of Determination—the words on the piece of paper, foreclose any further
inquiry by the Court into substantive Due Process. That this “argument” dictates the outcome, has
already been refuted by the Tax Court itself, which has repeatedly said that it is the Court which
decides what is a Notice of Determination, and that the words on a piece of paper do not dictate
whether the Court has jurisdiction. But this is obvious in each and every case which comes before
any Court. The Commissioner is relying on this Court reflexively relying on scrutiny regime
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doctrines which supposedly allow it to brush aside substantive Due Process arguments. But I warn
the Court, as I explain below, that no scrutiny regime doctrine is any longer good law. And guess
what? Justice Kagan agrees with me. So I will let Justice Kagan do my talking for me—until, of
The new Constitutional regime doctrine is that the Court is required by substantive Due
Process to look behind the face of documents to find all the relevant facts. In this new
Constitutional regime, when the Commissioner merely, as here, advances boilerplate, that is the
Commissioner signaling to the Court that it is not yet able to function in the new Constitutional
regime. This Court must function for the Commissioner. Too bad—but that’s the way it is.
This means that the Court begins with a clean slate. It must determine the substantive Due
Process issues raised by my brief—with no assistance from the Commissioner. My motion should
be granted: the Court requires the assistance of additional briefing in order to gain as many relevant
facts as it can, in shaping the relief in a new Constitutional regime. We are at the beginning of this
If the Court has any doubt that the West Coast Hotel/Carolene Products/Chevron scrutiny
regime is over, dead and buried, it need only consult Justice Kagan’s dissent in Janus—she sees
very clearly that the scrutiny regime is over. Needless to say, she is not happy the scrutiny regime
is no longer the Constitutional regime, and the D.C. Circuit was not all happy in its Ryskamp case
that I pointed out, as long ago as 2015, that the scrutiny regime was over—all it could do was to
assert that the substantive Due Process arguments I raised in my brief in that case were not part of
our law—another boilerplate assertion, meaning that the D.C. Circuit Court also, could not cope.
Can this Court cope? This Court must not do what the D.C. Circuit did in Ryskamp—it must not
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pretend that what has happened, has not happened. It has happened. Live with it. On page 2 of
Rarely if ever has the Court overruled a decision—let alone one of this import—
with so little regard for the usual principles of stare decisis. There are no special
have eroded its underpinnings. And it is deeply entrenched, in both the law and the
real world. More than 20 States have statutory schemes built on the decision. Those
Reliance interests do not come any stronger than those surrounding Abood. And
likewise, judicial disruption does not get any greater than what the Court does
today.
So what happened? What happened, as Justice Kagan understands well, is that the Supreme Court
has recognized that there is a new Constitutional regime, and that the scrutiny regime is over, dead
and buried. This Court should not be alarmed. The Constitution only remains the governing order
as long as it accommodates changes of the Constitutional regime, and we have already had three:
the departmental regime, the doctrinal regime, and the scrutiny regime. No need for panic, no
need for sweaty palms. Instead, read G. Edward White, “Historicizing Judicial Scrutiny,”
http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=2ahUKEwjb8svF
o5rdAhXuY98KHZapA_EQFjAAegQIABAB&url=http%3A%2F%2Flaw.bepress.com%2Fcgi
%2Fviewcontent.cgi%3Farticle%3D1055%26context%3Duvalwps&usg=AOvVaw1y7ORNPvD
0pw5hO8tiicoc. In fact, this Court had better get used to requiring historical documentation of
facts, because one of the tests for determining whether a fact is an individually enforceable right
in the new Constitutional regime, is how it has existed throughout history with respect to assaults
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upon it. We are all going back to law school, that is, a new school of Constitutional law. Don’t
let prejudice or vanity interfere with what you are required now to learn.
This Court must not be like the Commissioner, one of “Those…who controvert the
that courts must close their eyes on the Constitution, and see only the law. This doctrine would
subvert the very foundation of all written Constitutions.” Marbury v. Madison, 5 U.S. 178 (1803).
Listen to John Marshall: he lived through the Revolution, you did not.
So let’s move on into the new Constitutional regime instead of proceeding, as the
Commissioner does in his brief, and as the D.C. Court of Appeals proceeded in Ryskamp, with
averted eyes.
Justice Kagan correctly notes on page 5 that the lower Court in Janus “struck a balance”
between employer and protected speech rights, and the Supreme Court has overridden this, so
balancing is out the window. What else? Well, she says, also on page 5, that the lower Court
sustained “the ‘important government interests’ in having a stably funded bargaining partner
justify ‘the impingement upon’ public employees’ expression,” and the Supreme Court has thrown
that out, too. So, the levels of scrutiny—the quintessence of the scrutiny regime—are also out the
window. Even “important government interests” (including all the interests the Commissioner has
asserted to justify any tax policy) are not good law anymore. This Court must decide what is.
Justice Kagan clearly sees the change. The Supreme Court has determined that results—
not the process by which outcomes are obtained—are now the Constitutional regime. It is no
longer about who decides—it is now all about what is decided: the result. Don’t make any mistake
about this. As she says on page 16, “This Court has [previously] rejected all attempts by employees
to make a ‘federal constitutional issue’ out of basic ‘employment matters, including working
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conditions, pay, discipline, promotions, leave, vacations, and terminations.’ Guarnieri, 564 U. S.,
at 391; see Board of Comm’rs, Wabaunsee Cty. v. Umbehr, 518 U. S. 668, 675 (1996) (stating that
public employees’ speech on merely private employment matters is unprotected’).” But no longer!
She understands, and this Court must understand, that so-called “social facts”—and not merely the
scrutiny regime’s “political facts”—are now federal Constitutional issues. “Social facts,” such as
housing (see my brief—there’s that pesky housing again! Tsk tsk!), were, under the scrutiny
regime, forbidden to be individually enforceable rights—but now they are individually enforceable
rights, because the Supreme Court has decided that results are the new Constitutional regime.
This Court must enforce this; it has no authority to contradict or ignore it.
The scrutiny regime—and all its attendant doctrines of minimum, intermediate and strict
scrutiny, and all its doctrines of deference and balancing—are no longer good law. The
Constitutional regime is now exclusively about rights and results. Justice Kagan goes on to note,
at page 17 of her Janus dissent, that this new Constitutional regime affects every issue of law and
government activity: “Of course, most of those issues have budgetary consequences: They ‘affect[
] how public money is spent.’” And of course, how that money is raised—taxation—and I have
already provided her remarks showing that she understands very well that what was at issue in
Janus is a tax, and therefore the Janus document I discuss in my brief is a Notice of Determination
in this new Constitutional regime, and the Supreme Court considers it as such. That alone should
tell this Court that it is simply not acceptable to bless the Commissioner’s decision about the
substantive Due Process consequences of a document simply by virtue of the name the
Janus extends to government employees, including the government employee who issued
the letter in the instant case. The Court’s Janus decision, Justice Kagan says at page 17, means
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that, “contrary to decades’ worth of precedent, government employers would then have far less
control over their workforces than private employers do.” And she is right. The person who issued
this letter has unfettered power, which is why the person had to undergo the appointments process,
and is not removable by the President. Kagan is no dummy—she understands that the scrutiny
Justice Kagan understands (page 26) that the new Constitutional regime requires “judges,
now and in the future, to intervene in economic and regulatory policy.” Doubt it? OK then, listen
to her again (page 26): “There is no sugarcoating today’s opinion. The majority overthrows a
decision entrenched in this Nation’s law—and in its economic life—for over 40 years.” She clearly
sees that in the new Constitutional regime, judges are required to “pick the winning side” rather
than enforce “workaday economic and regulatory policy” (page 27). The D.C. Circuit Court in
Ryskamp was inclined to hide—and it did hide. In case this Court is inclined to hide behind the
notion that Janus is restricted to protected speech, Justice Kagan has an answer for that as well (at
27-28): “Speech is everywhere—a part of every human activity (employment, health care,
securities trading, you name it). For that reason, almost all economic and regulatory policy affects
or touches speech. So the majority’s road runs long. And at every stop are black-robed rulers
overriding citizens’ choices.” Janus explicitly holds that speech is an indicium of taxation (thank
you, United States Supreme Court!). Obviously, it is irrational to assert that taxation, including an
inherent and inextricable speech indicium, is not an individually right, when speech itself is an
individually enforceable right. It is up to this Court to fully enforce this new doctrine.
Where else do we find this notion that “black-robed rulers” (who now include every judge
on the Ninth Circuit Court of Appeals) are the ones dictating results? Why, in the very case I cited
in my brief: Barnette. The Barnette Court says that the purpose of the Constitution is “to withdraw
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certain subjects from the vicissitudes of political controversy, to place them beyond the reach of
majorities and officials, and to establish them as legal principles to be applied by the courts.”
Emphasis added.
And what are those facts? How do we determine that? What is the
black-letter,
multi-pronged
factual
test for determining which facts are individually enforceable rights? I don’t say, “facts which
enjoy a higher level of scrutiny than minimum scrutiny,” because, as Justice Kagan correctly notes,
the levels of scrutiny can no longer be used. Goodbye deference. Goodbye discretion. Goodbye
reasonableness. Goodbye balancing. Wave them goodbye, because the Supreme Court has
There must be some new test, and the consequences of its application must be enforced by
the Court in every relevant instance. And this accords with James Madison’s view of the
Constitution: it is “an impenetrable bulwark against every assumption of power in the Legislature
or Executive….” 1 Annals of Congress 457 (1789); 5 Writings of James Madison, G. Hunt ed.
(Philadelphia: 1904), 385. Emphasis added. The required test is in Barnette, and I stated that
black-letter, multipronged, factual test in my brief. So now this Court knows where to start.
In its opinion, the Court should begin with the fact of taxation, and determine that it is
indeed an individually enforceable right in the new Constitutional regime, because it meets the
Barnette test, as I have shown in my brief and as the Founders understood perfectly well.
From there the Court must begin the process of unwinding both scrutiny regime doctrines
and their results as they relate to taxation. We must have new results and the Supreme Court has
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made it clear that this Court must provide them, and not run away frightened of its new
responsibilities.
__________________________
John Ryskamp
1677 Arch Street
Berkeley, CA 94709
510-848-6898
philneo2001@yahoo.com
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CERTIFICATE OF SERVICE
I certify that two copies of the Petitioner-Appellant’s Informal Reply Brief, were served on
September 1, 2018 by mail on the person listed below:
Gilbert S. Rothenberg
Chief, Appellate Section
Tax Division, United States Department of Justice
P.O. Box 502
Washington, D.C. 20044
__________________________
John Ryskamp
1677 Arch St.
Berkeley, CA 94709
Date Served: September 1, 2018