Press Release: 08/26/2019

The Pre-motion Conference Was Held for the Lawsuit Against Government Shutdown


New York City, NY: Today, the pre-motion conference was held for the lawsuit against government shutdown at 4:00 p.m., in Courtroom 618 of the Thurgood Marshall Courthouse, 40 Foley Square, Manhattan. District Court Judge Katherine Polk Failla presided the conference.

On January 25, 2019 Equal Vote America Corp. (EVA) filed a civil lawsuit against the current Congress and the current Administration at the U.S. District Court for the Southern District of New York (CASE #: 1:19-cv-00777) on the ground that the 35-day federal government shutdown was unconstitutional.

The following individuals are named defendants:

  1. Nancy Pelosi in her official capacity as the Speaker of the House of the Representatives;
  2. Kevin McCarthy in his official capacity as the House Minority Leader;
  3. Mitch McConnell in his official capacity as the Senate Majority Leader;
  4. Charles Schumer in his official capacity as the Senate Minority Leader;
  5. Donald J. Trump in his official capacity as the President of the United States.

On February 20, 2019, the Court ordered the Plaintiffs to show cause on the issue of “mootness” since the government shutdown ended on the same day as the lawsuit was filed.

On March 6, 2019, the Plaintiffs filed a Response to the Court explaining why the case is not “moot”, and should be allowed to proceed.

On May 7, 2019, Judge Katherine Polk Failia issued the following order to allow the case to proceed:

“The Court finds that Plaintiffs have provided reasons that the litigation should continue at this time and will await Defendants’ answer or response before taking further action in this litigation. The Court will issue under separate cover a notice of initial pretrial conference.”

On May 13, 2019, Judge Failla ordered the pretrial conference to be held on August 26.

During the conference today, after Judge Failla opened the session, the Plaintiff’s attorney summarized the case to the Court:

  1. Original Intent: the Founding Fathers replaced the Articles of Confederation with the Constitution in 1787 because they precisely wanted to establish a functioning federal government.
  2. Textualism: throughout the Constitution and its amendments, there is no textual provision that delegates the power to shut down government to anyone.
  3. Prior to AG Benjamin Civiletti’s opinion in 1980, funding gaps never resulted in government shutdown. Shutting down government based on one person’s opinion is certainly not the rule of law.
  4. Due Process: shutting down government without any vote in both chambers of Congress and without any signature of the Executive branch is certainly a violation of legislative due process.
  5. The federal government belongs to “We the People”, and paid for by all taxpayers, thus shall not be treated as if a privately-owned LLC that can be shut down by any individual.
  6. There has never been any legal challenge to the constitutionality of government shutdown, and such constitutional question is precisely within the Court’s power and duty to review.

The Defendants’ attorney expressed his intention to file motion to dismiss citing mootness, standing, political question doctrine, sovereign immunity, speech or debate immunity, and so on.

After several rounds of questions and answers, Judge Failla ordered:

  1. the Defendants to submit the motion to dismiss by September 30, 2019,
  2. the Plaintiffs to respond by November 1, 2019,
  3. the Defendants to reply by November 15, 2019.

The Court adjourned.  

As of today, fellow Americans from 21 states have joined the lawsuit as Co-Plaintiffs by signing this Online Affidavit (full name, full address and email address are required).

Together, let’s defend the Constitution against any overreach of power, and defend our constitutional rights to life, liberty and property guaranteed by the rule of law and protected by a functioning government as intended by our Founding Fathers.

A Betray of Our Founding Fathers’ Intention

It is well-documented that George Washington had to beg for money or supplies from a helpless Congress during the American Revolution, and appealed his officers not to rebel in 1783. By 1787 the union between the states was unraveling and our founding fathers had to replace the Articles of Confederation with the Constitution in Philadelphia because they wanted to establish a strong, effective, and functioning federal government to save the young nation and fulfill the mission mandated in the Preamble of the Constitution.

Chief Justice John Marshall emphatically affirmed in McCulloch v. Maryland (1819) regarding the Sovereignty, the source of power, the sole purpose for an effective government, and the principle that only granted power can be exercised:

The government proceeds directly from the people; is “ordained and established” in the name of the people… “in order to form a more perfect union, establish justice, insure domestic tranquility, and secure the blessings of liberty to themselves and to their posterity.”…it was deemed necessary to change this alliance into an effective Governmenta Government of the peopleIts powers are granted by them…  and for their benefit…. The principle that it can exercise only the powers granted… is now universally admitted.

Government Belongs to and Serves the People

Our country is a constitutional Republic, in which the federal government belongs to the People, serves the People, and safeguards the Republic; more importantly, the federal government is NOT a privately-owned LLC that can be shut down at will by anyone.

In a lawless failed-state, frightened residents have to pay mob bosses for protection. In a civilized society under the rule of law, law-biding citizens pay taxes for a functioning government. Between 2010 and 2011 for 589 days in Belgium, the political parties were unable to form a coalition government, and yet all government agencies remained funded at the existing level and fully functional. In fact, government shutdown is unheard of among all other developed democracies.

We, the People, have the obligation to pay taxes, hence also have the right to demand a functioning government for public services, safety and security. If the government can be shut down for 35 days, should we, the People, get tax-free for 35 days on our individual 1040?

America, once “the shining city upon a hill” has become the laughing stock around the world. Our allies were bewildered while our foes were giddily cheering for such self-inflicted dysfunction if not outright destruction, which has cost the economy $11 billion according to the CBO.

By shutting down the federal government, Congress and the current Administration have…

  1. brazenly disregarded our founding fathers’ intention for a strong, effective, and functioning federal government;
  2. grotesquely treated the Federal government as a privately-owned LLC that can be shut down at any time;
  3. dangerously undermined “justice, domestic tranquility, common defence and general welfare” demanded in the Preamble of the Constitution;


The Rule of Law & Precedents

The history of 27 amendments clearly demonstrates the basic principle for the Rule of Law that an existing law remains in force until it is replaced by a new law duly enacted. Noticeably, the Apportionment Act of 1911 remained in effect until the Reapportionment Act of 1929 was duly enacted because Congress failed to enact a reapportionment law after the 1920 Census even though the Constitution clearly requires reapportionment after every 10 years.

Note that Art. I Sec. 9 Par. 7 grants Congress the Power to draw funds through duly enacted appropriations, but does not specify any time limit for appropriation: “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.”

Since the Apportionment Act of 1911 was allowed to continue well beyond the explicit constitutional 10-year limit, then any annual appropriation should be allowed to continue until duly replaced when no such constitutional time limit was specified.

Congress and the Administration Have Violated the Constitution

More importantly, the Defendants have violated the Constitution…

  1. blatantly overreached the limit of powers enumerated by Article I and Article II, respectively;
  2. knowingly failed to comply the existing law, i.e. the Appropriation Act of 2018 (the aforementioned precedent of the Apportionment Act of 1911);
  3. arrogantly violated the Tenth Amendment as the Constitution grants NO such power to shut down government;
  4. carelessly infringed the People’s rights to life (national security, public health, food safety, preparation for natural disasters), liberty (travel, freedom from fear and anxiety), property (income, farm, small business, trade) without due process.

Even if someone can somehow prove the Constitution does grant the Defendants the power to shut down government, the fact that all government shutdowns have occurred with neither a single vote cast in Congress nor an authorized signature demonstrates such power – if indeed granted – was exercised without any legislative due process required by the Constitution. Under Article I Section 5 Clause 3 and the Rule of Law, every enumerated power must be executed through a due process, rather than arbitrarily and without any written record.

When the 2019 appropriation was not enacted by statutory deadline of October 1, 2018, the Defendants (and the 115th Congress) already committed an administrative failure in their constitutional duty. Rather than feeling any sense of contrition and shame, the Defendants allowed or even deliberately use such administrative failure to cause a government shutdown, thereby transforming their own administrative failure into an enormous – and gravely self-destructive – power that has never been granted by the Constitution in the first place. In any organization, if an employee intentionally fails to complete his/her assigned task, then uses such deliberate failure to “proudly” shut down the organization for his/her personal gain, such employee would certainly be fired and even held accountable at a court of a law.

In fact, according to TheWeek’s report on 01/23/2019, no government shutdowns occurred before1980 because all federal agencies continued their functions at the existing funding level. It was only after then-Attorney General Benjamin Civiletti gave an opinion that has enabled government shutdowns.

Were our founding fathers alive today, they would certainly be horrified and outraged by such self-inflicted destruction and overreach of constitutional limit of power by the Defendants. As President Lincoln declared at Gettysburg, “that government of the people, by the people, for the people, shall not perish from the earth.”

What is the Remedy?

 We, the Plaintiffs, simply ask the Court to review and made a declaratory judgement:

  1. The Constitution NEVER grants anyone the power to shut down the federal government, hence any federal government shutdown is unconstitutional.
  2. The Constitutional Due Process requires an existing appropriation law shall remain in force until the new appropriation law is duly enacted through the legislative due process.


Fellow Americans…

When the FDA was shut down, food safety was compromised; when the EPA was closed, pollution was unchecked; when more and more Air Traffic Controllers were calling sick leaves, 2.6 million airline passengers every day were endangered; when national parks were forced down, national treasure was damaged, when FBI ran out of budget, national security was undermined, and the list goes on and on.

Join our lawsuit as one of the co-plaintiffs by signing this Online Affidavit.

Together, let’s defend the Constitution against any overreach of power, and defend our constitutional rights to life, liberty and property guaranteed by the Rule of Law and protected by a functioning government as intended by our Founding Fathers.