The Defendants WILLIAM JEFFERSON CLINTON, PRESIDENT OF THE UNITED STATES and the UNITED STATES CONGRESS, by and through the undersigned Assistant U.S. Attorney, hereby respectfully request that, pursuant to Rules 12(b)(1) and 23, Fed. R. Civ. P, the Court dismiss this action on the basis of lack of jurisdiction over the subject matter due to Plaintiff's lack of standing, and failure to satisfy the prerequisites to maintain a class action.

RELEVANT PROCEDURAL BACKGROUND

The following is a recitation of the relevant procedural history of the case:

1. On March 2, 2000, Plaintiff filed the Complaint herein. On April 6, 20-Go, summonses were issued for the United States through Janet Reno, Attorney General-, Thomas Scott, United States Attorney, the United States Senate through Senator Strom Thurmond, the United States House through Representative Denny Hastert, and the President of the United States, William Jefferson Clinton. The US Attorney's Office and Senator Thurmond, respectively, were served on April 11, 2000, and April 26, 2000, According to the docket sheet, the President was served on My 12, 2000, as were the Attorney General and Representative Denny Hastert.
2. The Complaint states no facts relating to the district court's jurisdiction over this action. However, Plaintiff asserts that Article 111, Sections I & 2, of the U.S. Constitution confer jurisdiction. Docket No. 1, p. 1. Plaintiff also cites various sections of the Constitution as his authority to maintain this action. Docket No. 1, p. 2.
3. In essence, Plaintiff's overall concern is that the General Agreement on Tariffs and Trade ("GATT"), and the World Trade Organization Agreement ("WTO") are unconstitutional for several reasons, and that the President and Congress have exceeded Constitutional limitations on their authority.
4. As "relief," Plaintiff seeks a ruling from the district court that GATT, and the participation of United States in the World Trade Organization, "is [sic] repugnant to the provisions of our Constitution and therefore, unconstitutional." Plaintiff also seeks an order requiring Defendants to stop participating in the WTO, restore un-particularized laws affected by the WTO's mediator, and pay costs. Docket No. 1, p. 15.

MEMORANDUM OF LAW

Plaintiff would have this Court address matters of foreign affairs which fall squarely within the purview of the political branches of government. Without stating a concrete and particular (as opposed to generalized and theoretical) injury he suffered by such actions, Plaintiff asks this court to review the manner in which the Executive and Legislative branches have negotiated and enacted international agreements. Specifically, Plaintiff complains that the political branches have ceded too much authority to international organizations.

The arguments presented by Plaintiff are very similar to those presented by the voter/citizen in Made in the USA Foundation, et al., v. U.S., 56 F.Supp.2d 1226, (N.D. AL 1999) (hereafter referred to as "Foundation").' In that case, various classes of plaintiffs including organizations such as unions ("institutional plaintiffs"), challenged the constitutional validity of the North America Free Trade Agreement, as well as the GATT and WTO agreements. Ultimately, in a 99-page opinion, Senior District Judge Propst granted the government's motion for dismissal. In particular, the court dismissed the citizen/voter plaintiffs for lack of standing due to their inability to allege anything other than "I an asserted right to have the Government act in accordance with the law [which] is not sufficient standing alone, to confer jurisdiction . . . '." ibid., at 1236 (citing Whitmore vs. Arkansas, 495 U.S. 149, 160 (1990) ). Further, with regard to institutional plaintiffs, the court acknowledged that the Commerce Clause, coupled with the Necessary and Proper Clause and the President's foreign relations powers, provided sufficient authority for the completion of NAFTA and NAFTA Implementation Act. On that account, the court also dismissed the claims of the institutional plaintiffs.

(The Foundation matter is presently on appeal before the Eleventh Circuit in Made in the USA Foundation, et il. vs. U.S., CA 1 lth, Case No. 13138. Oral argument was heard on June 22, 2000, by Judges Tjoflat, Wilson and Fletcher.)

While the Foundation court specifically addressed issues relating to NAFTA, the Foundation court analyzed the GATT and WTO as an historical basis for NAFTA, and also as analogous "fast-track" international agreement legislation. 56 F.Supp.2d at 1279 -1317. This analysis addressed arguments made by the institutional plaintiffs in Foundation, and did not apply to the voter/citizen plaintiffs because the latter group did not have standing. Nevertheless, for the purpose of understanding the framework within which issues in the present case arise, the foundation opinion may be instructive. Defendants seek to dismiss the Complaint on several grounds. First, pursuant to Ruled 2 (b)(1), Fed. R. Civ. P., the Court lacks of jurisdiction over the subject matter. Next, pursuant to Rule 23, ibid., Defendants seek an order dismissing Plaintiff's attempt to (1) maintain this suit as a class action, and (2) represent the class of "U.S. Citizens".

1 . Threshold Analysis.

The Court must consider subject matter jurisdiction issues under Rules 12(b)(1) before considering any other basis for dismissal. McMaster vs. U.S.. et al., 177 F3d 936, 939 (1 1 th Cir. 1999). In McMaster, the Eleventh Circuit ruled that, in a motion to dismiss an action:

(A defendant may attack subject matter jurisdiction in two different ways-facially and factually. Lawrence v. Dunbar, 919 F.2d 1525, 1528-29 (1 I th Cir. 1 990) (per curiam). " 'Facial attacks' on the complaint 'require[ ] the court merely to look and see if [the] plaintiff has sufficiently alleged a basis of subject matter jurisdiction, and the allegations in his complaint are taken as true (citation omitted).)

(2 The negotiations that led to the GATT and WTO agreements were conducted in accordance with the Omnibus Trade and Competitiveness Act of 1988, 19 U.S.C. § 2901, et seq., and the Trade Act of 1974,,19 U.S.C.-§ 2101, et seq., under the so-called "fast track" procedure. Under that procedure, Congress was consulted by and provided advice to the President at each stage of the negotiations for each agreement, as well as during the drafting of those agreements and the proposed implementing legislation.)

(The United States here is making a factual attack on the district court's subject matter jurisdiction. " 'Factual attacks,' ... challenge 'the existence of subject matter jurisdiction in fact, irrespective of the pleadings, and matters outside the pleadings, such as testimony and affidavits, are considered ' "' Lawrence v. Dunbar, 919 F.2d 1525, 1529 (1 lth Cir.1 990) (per curiam) (citation omitted). "'[N]o presumptive truthfulness attaches to plaintiffs allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.' " Id. (citation omitted). In response to a factual attack, a court should dismiss the complaint for lack of subject matter jurisdiction "'Where the federal claim is clearly immaterial or insubstantial.' " Id. (citation omitted).)

177 F.3d at 940. In this case, the United States attacks the Complaint on its face. To that end, Defendants will first present arguments under Rule 12(b)(1).

In order for the Court to have subject matter jurisdiction, Plaintiff must first allege facts sufficient to show that he has standing. In Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, *102, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998), the U.S. Supreme Court ruled that:

Having reached the end of what seems like a long front walk, we finally arrive at the threshold jurisdictional question: whether respondent, the plaintiff below, has standing to sue. Article 111, § 2 of the Constitution extends the "judicial Power" of the United States only to 'Cases' and 'Controversies.'

(Emphasis added.) Likewise, in Vermont Agency of Natural Resources v. U.S. ex rel. Stevens, 120 S.Ct. 1858, 1861-1862 (2000), the Court explained the rules governing Article III standing as follows:

As we have frequently explained, a plaintiff must meet three requirements in order to establish Article III standing. See, e.g., Friends of Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S - ----- ----- 120 S.Ct. 693, 704, 145 L.Ed.2d 610 (2000). First, he must demonstrate "injury in fact"--a harm that is both "concrete" and "actual or imminent, not conjectural or hypothetical." Whitmore v. Arkansas, 495 U.S. 149-1,155,,-l 1 0 S.Ct. 1717, 109 L.Ed.2d 135 (1990) (internal quotation marks and citation omitted). Second, he must establish causation--a"fairly ... trace [able]" connection between the alleged injury in fact and the alleged conduct of the defendant. Simon v. Eastern Ky. Welfare Rights

Organization, 426 U.S. 26, 41, 96 S.Ct. 1917,48 L.Ed.2d 450 (1976). And third, he must demonstrate redressability--a "substantial likelihood" that the requested relief will remedy the alleged injury in fact. Id., at 45, 96 S.Ct. 1917. These requirements together constitute the "irreducible constitutional minimum" of standing, Lugan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992), which is an "essential and unchanging part" of Article III's case-or-controversy requirement, ibid., and a key factor in dividing the power of government between the courts and the two political branches, see id., at 559-560,112 S.Ct. 2130. See also Raines v. Byrd, U.S. _ , 117 S. Ct. 2312, 2317-18 (1997) (citations omitted). If a plaintiff or plaintiffs "fail to make the necessary allegations, they have no standing." FW/PBS Inc. v. City of Dailas, 493 U.S. 215, 231 (1990) (citations and internal quotation marks omitted).

(Emphasis added.) Therefore, to maintain this action Plaintiff must allege (and ultimately prove) that (1) he has suffered an injury, (2) such injury was caused by government action, and (3) redressability. For the following reasons, Plaintiff's Complaint fails to meet this basic threshold.

a. Plaintiff's Claims of injury are Not Sufficiently Particularized to Confer Standing, and Amount Instead to a Generalized Grievance.

In an effort to establish standing, Plaintiff asserts that he is a resident of Broward County, Florida. Plaintiff also alleges that, "(i)f . . . a portion of the legislative power of Congress is now vested in the WTO, then Article 1, Section 1 of the Constitution has been violated." Likewise, Plaintiff argues that "if the voting citizens of this Nation no longer vote for those who establish 'all' of our laws, the voting rights of Americans have been abridged in violation of Article 1, Sections I & 2 of our Constitution." Complaint, at 5 - 6. In addition to these claims of harm, he contends that "the enactment of GATT and our membership in the WTO, is repugnant to our Constitution and unconstitutional."

Plaintiff makes a similar argument with regard to the Judiciary. See Complaint at 6. He also alleges that GATT and membership in the WTO contravenes the Commerce Clause. See Complaint at 6, referring to Article 1, Section 8. Defendants' arguments with regard to Senators and Representatives, apply with equal force to these complaints, and need not be repeated.

Plaintiff fails to allege facts indicating that he "stand[s] to profit in some personal interest" by a judgment in his favor. Allen v. Wright, 468 U.S. 737, 766 (1984) (quoting Eastern Kentucky Welfare Rights Org., 426 U.S. at 39). The cited cases demonstrate that the Supreme Court has "consistently stressed that a plaintiffs complaint must establish that he has a 'personal stake' in the alleged dispute, and that the alleged injury suffered is particularized as to him." Raines, 117 S. Ct.. at 2317 (citations omitted). By "particularized," the Court means that the "injury must affect the plaintiff in a personal and individual way." Defenders of Wildlife, 504 U.S. at 560 n.l. Accord Citizens for a Better Environment, 118 S. Ct. at 1017 n.5 (the touchstone is whether a plaintiff "personally would benefit in a tangible way from the court's intervention") (quotation and citation omitted ).4 The asserted injuries here, however, are neither "concrete," "particularized," nor do they affect Plaintiff in a "personal and individual way." To the contrary, Plaintiff files the Complaint on his own behalf as well as for "the Citizens of America as a class."' in so doing, Plaintiff indicates that all citizens in the United States are equally affected by the government action of which he complains.

Indeed, Plaintiff has not alleged that he suffers a specific and unique injury compared to the "generalized interest of all citizens in constitutional governance." See Raines, 1 1 7 S. Ct. at 2324 (Souter, J., concurring in judgment). Plaintiff asserts that "the voting citizens of the Nation . . . the voting rights of Americans have been abridged in Violation of Article 1, Sections I and 2….". Docket No 1, p. 8. With these statements

(The "requirement that the party seeking review be himself among the injured," Defenders of Wildlife, 504 U.S. at 563 (citation and quotation omitted), ensures that the federal courts resolve disputed legal questions "only in the last resort, and as a necessity in the determination of real, earnest and vital controversy." Valley Forg-e- @5-4 U.S. at 471 (quotation and citation omitted).)

(Plaintiff has failed to satisfy the class action prerequisites set forth at Rule 23, Fed.R.Civ.P. and cannot maintain this action as the representative of all U.S. citizens. See disc., infra.)

Plaintiff takes the position that Defendant's alleged constitutional failures resulted in injuries which are undifferentiated and common to all members of the public. Cf. United States v. Richardson, 418 U.S. 166,177 (1974). In cases such as this, the U.S. Supreme Court has consistently held that a plaintiff: raising only a generally available grievance about government -- claiming only harm to his and every citizen's interest in the proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large -- does not state an Article III case or controversy.

Defenders of Wildlife, 504 U.S. at 575-74. See also Fairchild v. Hughes, 258 U.S. 126, 128 (1922) (dismissing a suit challenging the propriety of the process by which the Nineteenth Amendment was ratified as a generalized grievance, despite claims by the plaintiffs that, inter alia, the "effectiveness of their votes would be diminished"). Accordingly, the Court must dismiss this Complaint due to Plaintiff's lack of standing on his own behalf, or as the representative of all U.S. citizens.

b. Causation.

To the degree that Plaintiff has suffered any injury since Congress and the President approved the GATT and WTO accords, he has not alleged sufficient facts to show causation. Plaintiff has attempted to allege that he and all United States citizens have suffered generalized injuries. Nevertheless, Plaintiff has failed to state a direct or indirect causal relationship between that approval and/or implementation of GATT and WTO, and particular and concrete injuries he personally has suffered. In the absence of any plain statement of a particularized injury, and the causation thereof, this Court must dismiss the present Complaint. Furthermore, this Court cannot find such a causal relationship where there is no qualifying injury.

C. Redressability.

In this Complaint, Plaintiff has demanded declarations that the GATT and WTO are repugnant to the provisions of our Constitution, and therefor unconstitutional." Docket 1, p. 15. Also, Plaintiff would have this Court enjoin the Defendants from further participation in the WTO, and restore any law modified by the WTO's Dispute Settlement Body. Ibid. Finally, Plaintiff seeks an order directing the Defendants to pay his costs and fees. However, Plaintiff has not made any allegation suggesting how such relief would remediate any concrete or particularized injury upon which he might assert standing to maintain this cause.

Because Plaintiff has failed to make an allegation showing that he "personally would benefit in a tangible way from the court's intervention," 118 S. Ct. at 1017 n.5, his Complaint should be dismissed.

2. Plaintiff has failed to allege facts sufficient to give the Court subject matter Jurisdiction.

The only allegation Plaintiff makes regarding jurisdiction follows: "Jurisdiction of this action is conferred by Article III, Sections 1 and 2 of the Constitution of the United States of America." Standing alone, as is discussed above, this is not sufficient. Aside from his lack of standing under article 111, Plaintiff has failed to state any statutory basis-upon which he might have standing to raise his complaints. Similarly, Plaintiff has not alleged a waiver of immunity from suit either of the Political branches of government. Accordingly, Plaintiff has failed to state an alternative basis upon which this Court could find that he has standing to bring or maintain the instant action.

3. Plaintiff is not a proper representative of the class of United States Citizens.

The instant pro se Plaintiff lacks standing to be heard on the instant Complaint. Likewise, he has failed to state a basis upon which the Court might treat this action as a class action pursuant to Rule 23, Fed. R. Civ. P. As Plaintiff lacks standing, he cannot represent the class of all U.S. Citizens. Moreover, as he fails to allege facts to satisfy the requirements of Rule 23 (a) and (b), this Court should issue an order determining that a class action based upon the instant Complaint cannot be maintained in accordance with Rule 23(c).

4. Plaintiff has failed to state a basis for this matter to be heard by a three-judge panel.

Plaintiff has failed to state a basis upon which the present cause might be heard by a three-judge panel. Cf.28USC§2284 (circumstances under which district court of three judges will be convened); see also Rule 62, Fed. R. Civ. P. and Advisory Notes thereto. Plaintiff does assert that GATT and WTO violate the voting rights of all Americans. However, nothing in the Complaint even remotely suggests that Defendants' actions affected "the apportionment of congressional districts." Cf. 28 USC § 2284 (a). Accordingly, the Court must deny Plaintiffs request for the appointment of a three-judge panel.

C. No personal jurisdiction over President or Congress.

Even if the Complaint is sufficient to supply Plaintiff with standing to maintain this action, it must be dismissed for lack of jurisdiction over the President or Congress. Cf. Foundation (with regard to institutional plaintiffs, court has jurisdiction to review the actions of the President and Congress).

1. Presidential Immunity.

If this Court found it had jurisdiction and that a justiciable question was before it, the Court, at most, could only issue a declaration as to the constitutionality of the procedure used to approve the NAFTA. This Court cannot order the President to terminate an international agreement.

In a proper case, the Court can declare whether an international agreement is constitutional or otherwise has effect as domestic law of the United States. See Reid v. Covert, 354 U.S. 1, 16-18 (1957); Restatement (Third) of Foreign Relations Law § 1 1 5(3) (1987) (hereinafter "Restatement") ("a provision of an international agreement of the United States will not be given effect as law in the United States if it is inconsistent with the United States Constitution") (emphasis added). Courts, however, generally do not have jurisdiction to direct or enjoin the President in the performance of his official duties. Franklin v. Massachusetts, 505 U.S. 788, 802-03 (1992); id. at 826 (Scalia, J., concurring in part and concurring in the judgment); Mississippi v. Johnson, 71 U.S. (4 Wall.) 475, 501 (1 866); Swan v. Clinton, 1 00 F.3d 973, 976-77 (D.C. Cir. 1996). While the Supreme Court has left open the question of whether the President might be subject to an injunction to perform a purely ministerial act, Franklin, 505 U.S. at 802, the President's decision whether to withdraw from an international trade agreement could hardly be considered ministerial or non-discretionary.

Only the President has the authority and discretion to bind the United States under international law. Pink, 315 U.S. at 228 (the President "is the 'sole organ of the federal government in the field of international relations ... ) (quoting United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1936)) (emphasis added); Restatement § 339(c); see Louis Henkin, Foreign Affairs and the United States Constitution 214 (2d ed. 1996).' An international agreement, such as the GATT, which was negotiated and entered into by the President, is binding on the United States under international law. See The Vienna Convention on the Law of Treaties, art. 26; Restatement §§ 302-303. Even if such an agreement were declared unconstitutional by a federal court, that would not necessarily relieve the United States of its obligations under the agreement as a matter of international law. See Vienna Convention on the Law of Treaties art. 46; Restatement § 311(3) & comment c; id. § III comment a; id. § 11 5(b) & comment b; see also Pigeon River Improvement, Slide & Boom Co. v. Charles W. Cox, Ltd., 291 U.S. 138,160 (1934) (while later Act of Congress that conflicted with treaty provision "would control in our courts as the later expression of our [domestic] law ... the international obligation [would] remains unaffected"). The courts cannot compel the President to terminate an agreement and abrogate our Nation's international obligations; that is solely the responsibility of the President. See Clark v. Allen, 331 U.S. 503, 509 (1947) (it is for President or Congress to denounce or

(For example, courts will not question the position taken by the President on issues of recognition of foreign nations, see Pfizer@,--tnc. v. Government of India, 434 U.S. 308, 219-20 (1978); Jones v. United States, 137 U.S. 202, 212 (1890); sovereignty over territory, see Foster v. Neilson, 27 U.S. (2 Pet.) 253, 307 (1 829); or declaring or denying sovereign immunity, see Republic of Mexico v. Hoffman, 324 U.S. 30, 35-36 (I 945); Ex parte Republic of Peru, 318 U.S. 578, 588-89 (1943).)

terminate a treaty); Van Der Weyde v. Ocean Transp. Co., 297 U.S. 114, 118 (1936) (Congress requested and directed President to terminate treaties inconsistent with domestic legislation; President then decided whether to terminate specific treaty and took appropriate steps to effect termination); Charlton v. Kelly, 229 U.S. 447, 474-76 (1913) (President decides whether treaty has been terminated); Terlinden v. Ames, 184 U.S. 270, 283 (1902) (same); Restatement § 339 (President has the power to terminate an international agreement or to elect in a particular case not to terminate an agreement).

2. Congressional Immunity under Speech and Debate Clause.

The Speech or Debate Clause provides that "for any Speech or Debate in either House, they [the Representatives and Senators] shall not be questioned in any other place." U.S. Const., art. 1, § 6, cl. 1. As a general proposition, the protections of the Speech or Debate Clause apply to all activities within the "legislative sphere". . . even though the conduct, if performed in other than legislative contexts, would in itself be unconstitutional or otherwise contrary to criminal or civil statutes. Doe v. McMillan, 412 U.S. 306, 312-13 (1973) (quoting Gravel v. U.S., 408 U.S. 606, 62425 (1972)).

The Speech or Debate privilege, as it has been construed by the Supreme Court and the lower courts, has two broad aspects. First, the clause provides immunity from lawsuits for all actions "within the 'legislative sphere,' . . . even though the B-GOnduCtif performed in other than legislative contexts, would in itself be unconstitutional or otherwise contrary to criminal or civil statutes." McMillan, 412 U.S. at 312-13 (quotinci Gravel, 408 U.S. at 624-25). This legislative immunity extends both to civil suits and criminal prosecutions. Second, the Speech or Debate Clause provides a testimonial privilege.

Gravel, 408 U.S. 606. The Supreme Court has drawn no distinctions between the immunity from suit and the testimonial aspects of the privilege. Rather, it has stated unequivocally that when the Speech or Debate privilege applies, it is "absolute." The question to be resolved is whether the actions of the petitioners fall within the "sphere of legitimate legislative activity." If they do, the petitioners "shall not be questioned in any other Place" about those activities since the prohibitions of the Speech or Debate Clause are absolute.

Eastland, 421 U.S. at 501 (emphasis added). Accordingly, this Court cannot compel the Congress, collectively, or its members, individually, to take any legislation action with regard to GATT and the WTO.

3. Political Question.

The Supreme Court has long recognized that "the President may enter into certain binding agreements with foreign nations without complying with the formalities required by the Treaty Clause of the Constitution." Weinberger v. Rossi, 456 U.S. 25, 30 n.6 (1982); accord Dames & Moore v. Regan, 453 U.S. 654, 679 (1981); United States v. Pink, 315 U.S. 203, 229-30 (1942); United States v. Belmont, 301 U.S. 324, 330-31 (1937); B. Altman & Co. v. United States, 224 U.S. 583, 601 (1912). Moreover, in this case, not only were the GATT and WTO agreements executed pursuant to the President's constitutional authority over foreign affairs, they were approved by Congress and implemented through legislation that was authorized under Congress' constitutional authority to regulate foreign commerce. Although these and other compelling reasons support the constitutionality of the procedure used to approve these agreements, two fundamental problems with plaintiffs' case preclude this Court from reaching the merits of their claim: (1) plaintiffs do not have standing, and (2) they are asking the Court to decide a non justifiable political question.

The power to conduct the Nation's foreign affairs and to regulate foreign commerce is committed by the text of the Constitution exclusively to the Executive and Legislative Branches. Although the Constitution expressly refers to agreements with foreign nations, it does not direct how or when international agreements other than treaties may be made. To decide that question, the Court would have to move beyond areas of judicial expertise into the realm of foreign relations. The need for our Nation to speak with one voice in the area of foreign affairs counsels strongly against judicial involvement in this matter. Finally, the respect due the political branches' considered judgment and experience in the conduct of foreign trade counsels against judicial intervention. For the foregoing reasons, the Court should dismiss this action.

CONCLUSION

WHEREFORE, defendants WILLIAM JEFFERSON CLINTON, PRESIDENT OF THE UNITED STATES and the UNITED STATES CONGRESS respectfully request that this Court dismiss the Complaint, for wont of subject matter jurisdiction due to Plaintiff's lack of standing and non-redressability. Further, Defendants respectfully request that the Court deny pro se Plaintiffs request that this matter be deemed a class action, and be heard by a three-judge panel.

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