UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

John Henry Ryskamp,

No. 18-17324
Petitioner-Appellant

v.

Commissioner of Internal Revenue,

Respondent-Appellee.

PETITIONER-APPELLANT’S INFORMAL REPLY BRIEF

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

course, this Court grants my motion.

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

case, not the end.

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

her Janus slip opinion dissent, Justice Kagan correctly observes:

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

justifications for reversing Abood. It has proved workable. No recent developments

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

laws underpin thousands of ongoing contracts involving millions of employees.

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

principle that the Constitution is to be considered in court as a paramount law…[by] maintaining

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

Commissioner decides to give it. Don’t make that mistake.

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

regime game is up. Does this Court?

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

ordered you to do that—forthwith.

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.

__________________________

Dated: September 1, 2018

John Ryskamp
1677 Arch Street
Berkeley, CA 94709
510-848-6898
philneo2001@yahoo.com

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CERTIFICATE OF SERVICE

Case Name: John Henry Ryskamp v. Commissioner of Internal Revenue

9th Cir. Case No.: 18-71324

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