Criminal No. 84-385
Judge Oberdorfer





Preliminary Statement

This Honorable Court has heard much of the vigil of Ellen Thomas and her husband, William, as a result of the several actions brought by the government against them, among others. The chief complaint of this motion is unconstitutionally loose legislating by the executive. The crux of the matter is the unique character of Lafayette Park as a forum. Whether by broad (spatially and temporally) reseeding or repaving initiatives, or by regulation encroaching on rights of dissent, there has been and continues to be an undeniable curtailment of dissent in the President's Park.

Reasons of aesthetics have been offerred to sustain the regulation of conduct in front of the White House.1/ Legal rationalizations aside, do reasons of aesthetics lurk behind restriction of the homeless and dissidents in front of the White House?


1/ See

White House Vigil for the ERA Committee v. Clark,

U.S.App.D.C.__, No. 83-1243 (decided October 26, 1984).

Reasons of security are similarly offered to sustain regulation of activity in front of the White House and in Lafayette Park.2/ Are not concerns of world security against nuclear holocaust significant in balance against safety of park property, particularly in the context of this and other prosecutions against Ellen Thomas where no evidence of damage to any person or property has been adduced?

It is upon the foregoing tension between Ellen Thomas' dissent and executive suppression thereof that this motion is grounded.


The power to legislate criminal laws is an inherently legislative power. Delegating power to the National Park Service to promulgate regulations (i.e. by, of and for the executive), the violation of which subjects the individual to a potential of 6 months incarceration, violates the fundamental separation of powers principles which define our constitutional scheme of government.


2/ Id, slip op at 29 et seq. See also Clark v. Community for

Creative Non-Violence, 104 S.Ct. 3065, 3072 (1983) (regarding security of Dark property).

Alexander Hamilton, writing in support of the Constitution, observed that "The legislature . . . prescribes the rules by which the duties and rights of every citizen are to be regulated." A. Hamilton, The Federalist Papers 465 (No. 78) (New American Library 1961). The duty of the judicial branch, on the other hand, is to ensure the fundamental law enshrined in our Constitution is respected by the other two branches. Where the executive or legislative branch exercises a power either not entrusted to it by a specific constitutional grant of power or affirmatively withheld from it, then the judiciary has a duty to negate the unconstitutionally exercised power. As Hamilton explained:

The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains

certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the

like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.

Id. at 466 (No. 78).

Thus, promulgation of Sections 50.10(a) and (c), inter alia, must be invalidated as an unconstitutional delegation of legislative power to the executive branch.

The delegation of power is contained in 16 U.S.C., Section 3 which provides that the "Secretary of the Interior shall make and publish such rules and regulations as he may deem necessary or proper for the use and management of the parks, monuments, and reservations under the jurisdiction of the National Park Service . . . " The White House sidewalk and Lafayette Park have been within the jurisdiction of the U.S. Park Service since 1898. See A Quaker Action Group v. Hickel, 421 F.2d 1111, 1113 (D.C. Cir. 1969) (Quaker Action I); Act of July 1, 1898, 30 Stat. 571, Section 6.

This broad delegation of authority is similar to that struck down by the Supreme Court in Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935). The deficiencies of the delegation at issue in Schecter Poultry, as here, were that it "prescribed no method of attaining" the desired goal "to rehabilitate industry and to conserve natural resources." Yakus v. United States, 321 U.S. 414, 424 (1944). Moreover, "[i]t provided no standards to which those codes were to conform." Id.

The point is that Congress cannot delegate to an administrative agency the important policy decisions inherent in curtailing expressive activity in the park in front of the seat of the executive branch. Assigning the same agency that administers Yellowstone National Park the task of policing the White House seems incongruous in contemporary society. The President, as the representative of the nation, is the most appropriate object of opinion addressing national issues. The use of symbolic speech in the President's Park can only be curtailed by narrowly drawn regulations that impose no greater restrictions than necessary to protect the government's interest.

Congress has legislated a comprehensive scheme concerning grounds of the Capitol, 40 U.S.C., Section 193a et seq., as well as the grounds of the Supreme Court. See 40 U.S.C., Section 13a et seq. Congress is the appropriate body to determine the need to regulate activity in the President's Park. At a minimum it should set forth the policies to be pursued and specific standards to guide implementation of those policies. See, e.g., FEA v. Algonquin SNG, Ing, 426 U.S. 548 (1976); Brotherhood of Locomotive Trainmen and Engmn. v. Chicago, 331 F.2d 1020(D.C. Cir.), cert. denied, 377 U.S. 918 (1964). Moreover, particular care must be taken where the vagueness of the delegation impacts on First Amendment interests. See Banzhaff v. FCC, 405 F.2d 1082 (D.C. Cir.), cert. denied sub. nom. American Broadcasting Cos. v. FCC, 396 U.S. 842 (1969).

Aside from any delegation of powers issue, giving the executive branch power to legislate the criminal law pertinent to itself and, as in this case, pertinent to the chief executive, raises grave due process and separation of powers questions.

The purpose of the presentment clause, Art. I, Section 7, cl. 2, and the bicameral requirement of Art. I, Section 7, cl. 3, are to provide the opportunity for debate, give and take, and the checks and balances of allowing the President to veto legislation, subject to subsequent passage by at least 2/3 of the members of both houses. These procedural requirements were intended by the Framers, according to the Supreme Court in INS v. Chadha, to protect the people from the tendency of any one branch from assuming tyrannical powers. Id., 103 S.Ct. 2764, 2782 et seq.

Respectfully submitted,
/s/Stephen G. Milliken
Milliken & Van Susteren, P.C.
511 E Street, N.W.
Washington, D.C. 20001

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