The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The WilmerHale Complaint
Paul Clement and Erin Murphy brilliantly defend what shouldn't need defending, but does
Further to Eugene's post about the TRO that was entered in the suit filed by WilmerHale against the Trump Administration Executive Order, I highly recommend taking a look at the Complaint filed by the Paul Clement-Erin Murphy firm. The first six pages or so is as eloquent a defense of an independent legal enterprise as you are likely to read.
13. The Order violates the separation of powers twice over. The President's role is to enforce the law—not to create new law or adjudicate litigation conduct before the courts — and no statute or constitutional provision empowers him to unilaterally sanction WilmerHale in this manner. That is unsurprising; any legislative effort to restrict lawyers' access to government buildings, services, and materials just for representing disfavored clients or causes would be patently unconstitutional. And any executive-branch effort to deter private attorneys from representing particular clients or advancing particular arguments "threatens severe impairment of the judicial function," as courts depend on attorneys to "present all … reasonable and well-grounded arguments" on their clients' behalf. Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 545- 46 (2001).
14. On top of that, the Order flagrantly violates due process. It imposes severe consequences without notice or any opportunity to be heard; it uses vague, expansive language that does not adequately inform WilmerHale (or its clients) of what conduct triggered these extraordinary sanctions; and it unfairly singles out WilmerHale based on its perceived connections to disfavored individuals and causes.
Nicely put.
