(DAILY CALLER OBTAINED) - As FILED BRIEF Feds For Medical Freedom CA5 Amicus - 2.9.22

Case: 22-40043 Document: 00516195830 Page: 1 Date Filed: 02/09/2022
No. 22-40043
In the United States Court of Appeals

for the Fifth Circuit
FEDS FOR MEDICAL FREEDOM, ET AL., Plaintiffs–Appellees,
v.
JOSEPH R. BIDEN, JR., IN HIS OFFICIAL CAPACITY AS PRESIDENT OF THE UNITED

STATES, ET AL., Defendants–Appellants.
On Appeal from the United States District Court

for the Southern District of Texas
No. 3:21-CV-356
BRIEF OF AMICI CURIAE 45 MEMBERS OF CONGRESS

IN SUPPORT OF PLAINTIFFS–APPELLEES
Kelly J. Shackelford Jordan E. Pratt

Jeffrey C. Mateer FIRST LIBERTY INSTITUTE
David J. Hacker 227 Pennsylvania Ave. SE
FIRST LIBERTY INSTITUTE Washington, D.C. 20003
2001 West Plano Parkway (972) 941-4444
Suite 1600 [email protected]
Plano, TX 75075
(972) 941-4444
Counsel for Amici Curiae
February 9, 2022
CERTIFICATE OF INTERESTED PERSONS
Amici Curiae certify that, in addition to those persons listed in the Parties’
certificates of interested persons, the following is a complete supplemental list of
interested persons as required by Federal Rule of Appellate Procedure 29(a)(4) and
Fifth Circuit Rule 29.2:
1. Allen, Rick W.
2. Arrington, Jodey
3. Biggs, Andy
4. Blackburn, Marsha
5. Boebert, Lauren
6. Braun, Mike
7. Budd, Ted
8. Cramer, Kevin
9. Cruz, Ted
10. Daines, Steve
11. Duncan, Jeff
12. Gaetz, Matt
13. Gohmert, Louie
14. Green, Mark E.
15. Greene, Marjorie Taylor
16. Guest, Michael
C-1 of 2
17. Hacker, David J.
18. Hagerty, Bill
19. Harris, Andy
20. Hartzler, Vicky
21. Hern, Kevin
22. Higgins, Clay
23. Hoeven, John
24. Huizenga, Bill
25. Inhofe, James M.
26. Johnson, Mike
27. Lamborn, Doug
28. Lankford, James
29. Mateer, Jeffrey C.
30. McKinley, David B.
31. Miller, Mary E.
32. Mooney, Alex X.
33. Norman, Ralph
34. Perry, Scott
35. Posey, Bill
36. Pratt, Jordan E.
37. Rodgers, Cathy McMorris
38. Rouzer, David
C-2 of 2
39. Roy, Chip
40. Sasse, Ben
41. Scott, Rick
42. Shackelford, Kelly J.
43. Simpson, Mike
44. Smith, Adrian
45. Smith, Jason
46. Stefanik, Elise
47. Sullivan, Dan
48. Thune, John
49. Walberg, Tim
As required by Federal Rule of Appellate Procedure 26.1, Amici Curiae
certify that no publicly traded company or corporation—aside from any that may be
identified in the Parties’ certificates of interested persons—has an interest in the
outcome of this case or appeal.
Dated: February 9, 2022 Respectfully submitted,
/s/ Jordan E. Pratt
Jordan E. Pratt
C-2 of 2
TABLE OF CONTENTS
CERTIFICATE OF INTERESTED PERSONS . . . . . . . . . . . . . . . . . . . . . . . . . .C-1
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
IDENTITY AND INTEREST OF AMICI CURIAE . . . . . . . . . . . . . . . . . . . . . . . .1
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
I. Our Constitution Separates Power to Secure Individual Liberty . . . . . . . 3
II. Executive Lawmaking Like the President’s Vaccine Mandate

Threatens Religious Liberty. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14
i
TABLE OF AUTHORITIES
Cases
Burwell v. Hobby Lobby,

573 U.S. 682 (2014) ...............................................................................................8
Gateway City Church v. Newsom,
141 S. Ct. 1460 (2021) ...........................................................................................6
Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal,
546 U.S. 418 (2006) ...............................................................................................8
Morrison v. Olson,
487 U.S. 654 (1988) ...............................................................................................4
Nat’l Fed’n of Ind. Bus. v. OSHA,
142 S. Ct. 661 (2022) .............................................................................................6
Nat’l Fed’n of Indep. Bus. v. Sebelius,
567 U.S. 519 (2012) ...............................................................................................3
On Fire Christian Ctr., Inc. v. Fischer,
453 F. Supp. 3d 901 (W.D. Ky. 2020) ...............................................................5, 6
Roman Catholic Diocese of Brooklyn v. Cuomo,
141 S. Ct. 63 (2020) ...............................................................................................6
Sambrano v. United Airlines, Inc.,
19 F.4th 839 (5th Cir. 2021) ..................................................................................7
South Bay United Pentecostal Church v. Newsom,
141 S. Ct. 716 (2021) .............................................................................................6
Tandon v. Newsom,
141 S. Ct. 1294 (2021) ...........................................................................................6
U.S. Navy SEALs 1–26 v. Biden,
No. 4:21-CV-01236-O, 2022 WL 34443 (N.D. Tex. Jan. 3, 2022) ...................8, 9
Youngstown Sheet & Tube Co. v. Sawyer,
343 U.S. 579 (1952) ..................................................................................... passim
Statutes
42 U.S.C. § 2000bb ...................................................................................................7

42 U.S.C. § 2000bb–1 .............................................................................................10
42 U.S.C. § 2000e......................................................................................................7
42 U.S.C. § 2000e–16................................................................................................7
5 U.S.C. § 3301 .........................................................................................................3
5 U.S.C. § 3302 .........................................................................................................3
ii
5 U.S.C. § 7301 .........................................................................................................3
Other Authorities
Exec. Order 14042 .................................................................................................6, 7

Exec. Order 14043 .....................................................................................................7
Letter from 41 Members of Congress to President Joseph R. Biden, Jr. (Jan. 24,
2022), available at https://biggs.house.gov/sites/evo-
subsites/biggs.house.gov/files/evo-media-
document/1.24%20FDA%20President%20Biden%20Letter.pdf...........................9
Meredith Wadman, Abortion Opponents Protest COVID-19 Vaccines’ Use of Fetal
Cells, Science.org, https://www.science.org/content/article/abortion-opponents-
protest-covid-19-vaccines-use-fetal-cells (June 5, 2020) ......................................7
Constitutional Provisions
U.S. Const. art. I ......................................................................................................10

U.S. Const. art. II, § 2 ..............................................................................................10
iii
IDENTITY AND INTEREST OF AMICI CURIAE 1
Amici Curiae are 45 Members of the United States Congress. The amici from
the U.S. Senate are: Ted Cruz; Marsha Blackburn; Mike Braun; Kevin Cramer; Steve
Daines; Bill Hagerty; John Hoeven; James M. Inhofe; James Lankford; Ben Sasse;
Rick Scott; Dan Sullivan; and John Thune.
The amici from the U.S. House of Representatives are: Chip Roy (TX-21);
Mike Johnson (LA-04); Rick W. Allen (GA-12); Jodey Arrington (TX-19); Andy
Biggs (AZ-05); Lauren Boebert (CO-03); Ted Budd (NC-13); Jeff Duncan (SC-03);
Matt Gaetz (FL-01); Louie Gohmert (TX-01); Mark E. Green, M.D. (TN-07);
Marjorie Taylor Greene (GA-14); Michael Guest (MS-03); Andy Harris, M.D. (MD-
01); Vicky Hartzler (MO-04); Kevin Hern (OK-01); Clay Higgins (LA-03); Bill
Huizenga (MI-02); Doug Lamborn (CO-05); David B. McKinley, P.E. (WV-01);
Mary E. Miller (IL-15); Alex X. Mooney (WV-02); Ralph Norman (SC-05); Scott
Perry (PA-10); Bill Posey (FL-08); Cathy McMorris Rodgers (WA-05); David
1
Counsel for Amici Curiae authored this brief in its entirety. No party’s
counsel authored this brief, in whole or in part. No party or party’s counsel
contributed any money that was intended to fund the preparation or submission of
this brief. No person—other than Amici Curiae, their members, or their counsel—
contributed money that was intended to fund the preparation or submission of this
brief.
Amici Curiae file this document as a proposed brief accompanying an

unopposed motion for leave to file under Rule 27 of the Federal Rules of Appellate
Procedure and Fifth Circuit Rule 27.1.
1
Rouzer (NC-07); Mike Simpson (ID-02); Adrian Smith (NE-03); Jason Smith (MO-
08); Elise Stefanik (NY-21); and Tim Walberg (MI-07).
As elected federal legislators, Amici have a crucial interest in maintaining the
Constitution’s separation of powers and ensuring that the President does not make
the law but instead faithfully executes it. Their interest in curbing Presidential
intrusions into Congress’ lawmaking power is especially strong where, as here, those
intrusions threaten religious liberty.
2
ARGUMENT
I. Our Constitution Separates Power to Secure Individual Liberty.
In this case, the President of the United States claims the awesome—and
heretofore unasserted—power to unilaterally compel a broad swath of American
workers to undergo a medical procedure. No federal statute confers this claimed
authority on the President. To the contrary, Congress has denied it. By limiting his
Section 3301 authority to “applicants” seeking “admission . . . into the civil service,”
5 U.S.C. § 3301; by enumerating which “rules governing the competitive service”
he may prescribe, 5 U.S.C. § 3302; and by empowering him to regulate only the
workplace conduct of federal employees, 5 U.S.C. § 7301, Congress implicitly has
withheld from the President the novel authority that he now claims.
In short, this is a case where the President’s power “is at its lowest ebb[.]”
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J.,
concurring in the judgment). Of course, the asserted power’s novelty alone cloaks it
with suspicion. See Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 549 (2012)
(opinion of Roberts, C.J.) (“[S]ometimes the most telling indication of [a] severe
constitutional problem . . . is the lack of historical precedent[.]” (cleaned up)). But
that is particularly true where, as here, “the President takes measures incompatible
with” Congress’ enactments. Youngstown Sheet & Tube Co., 343 U.S. at 637
(Jackson, J., concurring in the judgment). “Presidential claim to” such a power “must
3
be scrutinized with caution, for what is at stake is the equilibrium established by our
constitutional system.” Id. at 638. In that equilibrium, the President executes the law;
he does not make it. See id. at 587 (majority opinion) (“In the framework of our
Constitution, the President’s power to see that the laws are faithfully executed
refutes the idea that he is to be a lawmaker.”); accord id. at 633 (Douglas, J.,
concurring).
“The Founders of this Nation entrusted the lawmaking power to the Congress
alone in both good and bad times.” Id. at 589 (majority opinion). That choice comes
at a cost—“[a] scheme of government like ours no doubt at times feels the lack of
power to act with complete, all-embracing, swiftly moving authority.” Id. at 613
(Frankfurter, J., concurring); but cf. id. at 652 (Jackson, J., concurring in the
judgment) (noting Congress’ authority to confer emergency powers by statute). But
that cost is a calculated one. As the late Justice Scalia famously penned, “[w]hile the
separation of powers may prevent us from righting every wrong, it does so in order
to ensure that we do not lose liberty.” Morrison v. Olson, 487 U.S. 654, 710 (1988)
(Scalia, J., dissenting); accord Youngstown Sheet & Tube Co., 343 U.S. at 629
(Frankfurter, J., concurring) (“The doctrine of the separation of powers was adopted
by the Convention of 1787 not to promote efficiency, but to preclude the exercise of
arbitrary power.” (cleaned up)).
4
In adjudicating this case—which pits a novel assertion of Presidential power
against Congressional statutes that implicitly withhold that power—this Court
should resist the urge to “declare the existence of inherent powers ex necessitate to
meet an emergency[.]” Youngstown Sheet & Tube Co., 343 U.S. at 649 (Jackson, J.,
concurring in the judgment). Any other judicial response would provide “a ready
pretext for usurpation.” Id. at 650. As the Supreme Court warned nearly seventy
years ago, “[t]he accretion of dangerous power does not come in a day. It does come,
however slowly, from the generative force of unchecked disregard of the restrictions
that fence in even the most disinterested assertion of authority.” Id. at 594 (majority
opinion).
II. Executive Lawmaking Like the President’s Vaccine Mandate

Threatens Religious Liberty.
A. Executive lawmaking threatens many freedoms, including religious liberty.
One need not search the distant past to discern that truth. Over just the past two years,
at all levels of government, America has witnessed a flurry of novel executive
actions that infringed religious freedom.
For example, in 2020, the mayor and city of Louisville “criminalized the
communal celebration of Easter” by “order[ing] Christians not to attend Sunday
services, even if they remained in their cars to worship—and even though it’s
Easter.” On Fire Christian Ctr., Inc. v. Fischer, 453 F. Supp. 3d 901, 905 (W.D. Ky.
2020). These city officials coupled their threats against churches with a failure to
5
impose similar restrictions on secular businesses, including liquor stores. Id. at 910.
The court described the defendants’ actions as “stunning” and held that they were,
“beyond all reason, unconstitutional.” Id. at 905 (cleaned up).
Statewide officials also rushed to restrict religious gatherings. New York’s
governor ordered “very severe restrictions on attendance at religious services” in
certain areas that “single out houses of worship for especially harsh treatment.”
Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 65–66 (2020) (per
curiam). Synagogues and churches remained empty while large crowds gathered in
stores, transportation hubs, factories, and schools. Id. at 66–67. The Supreme Court
enjoined the discriminatory restrictions, concluding that “[t]he applicants have made
a strong showing that the challenged restrictions violate the minimum requirement
of neutrality to religion.” Id. at 66 (cleaned up). The Court repeatedly enjoined
similar worship restrictions in California. See Tandon v. Newsom, 141 S. Ct. 1294
(2021) (per curiam); Gateway City Church v. Newsom, 141 S. Ct. 1460 (2021); South
Bay United Pentecostal Church v. Newsom, 141 S. Ct. 716 (2021).
B. Since 2021, the federal executive branch has responded to the COVID-19
pandemic with a novel policy of its own: vaccine mandates. As the Supreme Court
has held, these mandates are “no everyday exercise of federal power,” as they reach
well beyond any arguable workplace hazard and into all “daily life.” See Nat’l Fed’n
of Ind. Bus. v. OSHA, 142 S. Ct. 661, 665 (2022) (cleaned up); Exec. Order 14042;
6
Exec. Order 14043. And no less than worship restrictions, these mandates—
including the ones at issue in this case—pose a crisis of conscience for many
religious Americans. Sambrano v. United Airlines, Inc., 19 F.4th 839, 841 (5th Cir.
2021) (Ho, J., dissenting). This is especially true for those who received divine
instruction against vaccination or who oppose the use of aborted fetal cell lines in
vaccine development and testing.2
Of course, the President’s executive orders announce the possibility of
“exceptions.” Exec. Order 14042, § 2(b); Exec. Order 14043, § 2. Presumably this
would include religious accommodations required by the Religious Freedom
Restoration Act of 1993, 42 U.S.C. §§ 2000bb et seq. (“RFRA”), and Title VII of
the Civil Rights Act, 42 U.S.C. §§ 2000e–16, 2000e(j), both of which reflect
2
The Johnson & Johnson COVID-19 vaccine used the PER.C6 cell line in its
production process. That cell line derived from the retinal cells of an 18-week-old
fetus aborted in 1985. In addition, the Moderna and Pfizer COVID-19 vaccines were
tested with HEK-293, which derived from the kidney cells of a fetus aborted in the
early 1970s. See Meredith Wadman, Abortion Opponents Protest COVID-19
Vaccines’ Use of Fetal Cells, Science.org,
https://www.science.org/content/article/abortion-opponents-protest-covid-19-
vaccines-use-fetal-cells (June 5, 2020).
The use of aborted fetal cell lines in the production or testing of all three FDA-
approved COVID-19 vaccines poses serious moral questions for those who believe,
as a matter of religious faith, that abortion is the wrongful taking of human life. To
be sure, many believers have carefully considered those questions and concluded
that COVID-19 vaccination is permissible. But others have reached a firm
conviction that vaccination would constitute impermissible complicity in the act of
abortion or would compromise their religious duty to speak out against abortion.
7
Congress’ choice to accommodate the free exercise of religion in the federal
workplace. But for at least two reasons, there is ample basis to question whether the
Administration has complied with this critical protection for Americans of faith.
First, even where the Administration has offered a religious accommodation
process, it has been mere “theater.” U.S. Navy SEALs 1–26 v. Biden, No. 4:21-CV-
01236-O, 2022 WL 34443, at *1 (N.D. Tex. Jan. 3, 2022), interlocutory appeal filed,
No. 22-10077 (5th Cir.). Just a few weeks ago, the Northern District of Texas
enjoined the Navy and the Department of Defense from enforcing their vaccine
mandate against 35 Naval Special Warfare servicemembers who have sincere
religious objections to the COVID-19 vaccines. Id. at *14. In holding that the
plaintiffs presented a justiciable challenge, the court found, in part, that “the denial
of each [religious accommodation] request is predetermined.” Id. at *4.
In support of its factual finding, the court pointed to Navy officials’ public
boasts that they had not granted a single religious vaccine accommodation request
in the past seven years. Id. at *5. The court also pointed to a Navy memorandum that
funnels requests through a 50-step system that evades the individualized review that
RFRA requires, Burwell v. Hobby Lobby, 573 U.S. 682, 726 (2014) (quoting
Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 431
(2006)), and “merely rubber stamps each denial,” U.S. Navy SEALs 1–26, 2022 WL
34443, at **1, 5–6. As the court found, “the Plaintiffs’ requests are denied the
8
moment they begin.” Id. at *5. The court then held that the Navy’s punishment of
the plaintiffs—through immediate consequences like promotion freezes and
withheld medical treatment,3 and through impending consequences like involuntary
separation and recoupment of exorbitant training expenses—likely violated the First
Amendment and RFRA. Id. at **9–12.
Second, the Administration not only fails to seriously consider religious
accommodation requests, but also takes down the names of those who submit them.
As dozens of members of Congress have reported,4 at least 19 federal agencies—
including five Cabinet-level agencies—are creating lists to track federal employees
who seek a religious accommodation to the vaccine mandate. This data collection
“will have an immediate, chilling effect on an employee’s exercise of his
constitutionally protected right to freedom of religion.”5 And it casts further doubt
on the Administration’s compliance with federal-law religious liberty protections.
3
“In one egregious example, Plaintiff Navy SEAL 26 was approved for a four-
week program in Maryland to treat deployment-related traumatic brain injury. . . .
His commanding officer told him he was not allowed to travel because he was
unvaccinated. SEAL 26 missed the opportunity to receive treatment, despite his
pending religious accommodation request.” U.S. Navy SEALs 1–26, 2022 WL
34443, at *8.
4
Letter from 41 Members of Congress to President Joseph R. Biden, Jr. (Jan.
24, 2022), available at https://biggs.house.gov/sites/evo-
subsites/biggs.house.gov/files/evo-media-
document/1.24%20FDA%20President%20Biden%20Letter.pdf.
5
Id.
9
C. One might attribute all these threats against religious liberty to the policy
preferences of the state and federal executives who imposed them. Politics certainly
is an explanatory factor, but it isn’t the only one. Insensitivity to religious conscience
can result even from well-intentioned executive action, especially where it intrudes
on the legislative power. The problem, in other words, is not just that some executive
officials are insensitive to religious faith, but that they have strayed from the business
of enforcing the law to the business of creating it.
Executive power has its advantages within its proper sphere, of course. “The
President can act more quickly than the Congress.” Youngstown Sheet & Tube Co.,
343 U.S. at 629 (Douglas, J., concurring). “Legislative power, by contrast, is slower
to exercise. There must be delay while the ponderous machinery of committees,
hearings, and debates is put into motion.” Id.
But where lawmaking is concerned, the Executive’s virtues become vices.
Public, parliamentary deliberation and “ponderous machinery” do not aid the waging
of war. See U.S. Const. art. II, § 2. But they are critical tools in the crafting of just
legislation. See generally U.S. Const. art. I. This is particularly true of legislation
that respects religious conscience, as burdens on the free exercise of religion may
result even from neutral rules of general applicability. See 42 U.S.C. § 2000bb–1(a).
In short, the characteristics of executive power that make it so well suited to
its domain—dispatch, discretion, and decisiveness—often render it ill-suited to
10
make the sort of careful judgments needed to protect religious conscience for a
nation of diverse faiths. It therefore comes as little surprise that so many pandemic-
related religious freedom violations have sprung from a quick stroke of the executive
pen, rather than prolonged legislative deliberation. This certainly would not surprise
the Framers. “With all its defects, delays and inconveniences, men have discovered
no technique for long preserving free government except that the Executive be under
the law, and that the law be made by parliamentary deliberations.” Youngstown Sheet
& Tube Co., 343 U.S. at 655 (Jackson, J., concurring in the judgment).
***
If the President believes that a large swath of the American workforce should
be ordered to undergo vaccination or lose their jobs, he should ask Congress to enact
his policy goals into law. Perhaps because he knows the People’s representatives in
Congress do not share his view, the President has chosen a different path—a statute
clothed as an executive order. But our Constitution places the President under the
law, not above it. Amici Curiae respectfully ask this Court to enforce the
Constitution’s separation of powers in this case, and thereby preserve our freedom—
including our religious liberty.
11
CONCLUSION
This Court should deny Appellants’ motion for a stay of the District Court’s
preliminary injunction.
Dated: February 9, 2022

Respectfully submitted,
/s/ Jordan E. Pratt
Kelly J. Shackelford
Jeffrey C. Mateer
David J. Hacker
FIRST LIBERTY INSTITUTE
2001 West Plano Parkway
Suite 1600
Plano, TX 75075
(972) 941-4444
Jordan E. Pratt*
Florida Bar # 100958
FIRST LIBERTY INSTITUTE
227 Pennsylvania Ave. SE
Washington, DC 20003
(972) 941-4444
[email protected]
* Not yet admitted to the District of

Columbia Bar. Practicing law in the District
of Columbia pursuant to D.C. Court of
Appeals Rule 49(c)(8) under the supervision
of an attorney admitted to the District of
Columbia Bar.
12
CERTIFICATE OF COMPLIANCE
I hereby certify that this brief complies with the type-volume limitations of
Fed. R. App. P. 29(a)(5) and Fed. R. App. R. 27(d)(2) because this brief contains
2,534 words, excluding the parts of this brief exempted by Fed. R. App. P. 32(f).
This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5)
and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been
prepared in a proportionately spaced typeface using Microsoft Word in 14-point
Times New Roman font.
Dated: February 9, 2022 /s/ Jordan E. Pratt
Jordan E. Pratt
13
CERTIFICATE OF SERVICE
I hereby certify that I electronically filed the foregoing with the Clerk of Court
for the United States Court of Appeals for the Fifth Circuit by using the appellate
CM/ECF system on February 9, 2022. I certify that all participants in this case are
registered CM/ECF users and that service will be accomplished by the appellate
CM/ECF system.
Dated: February 9, 2022 /s/ Jordan E. Pratt
Jordan E. Pratt
14

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Case: 22-40043 Document: 00516195830 Page: 1 Date Filed: 02/09/2022

In the United States Court of Appeals

FEDS FOR MEDICAL FREEDOM, ET AL., Plaintiffs–Appellees,

JOSEPH R. BIDEN, JR., IN HIS OFFICIAL CAPACITY AS PRESIDENT OF THE UNITED

On Appeal from the United States District Court

BRIEF OF AMICI CURIAE 45 MEMBERS OF CONGRESS

Kelly J. Shackelford Jordan E. Pratt

Counsel for Amici Curiae

CERTIFICATE OF INTERESTED PERSONS

certificates of interested persons, the following is a complete supplemental list of

interested persons as required by Federal Rule of Appellate Procedure 29(a)(4) and

Fifth Circuit Rule 29.2:

10. Daines, Steve

11. Duncan, Jeff

12. Gaetz, Matt

13. Gohmert, Louie

14. Green, Mark E.

15. Greene, Marjorie Taylor

16. Guest, Michael

17. Hacker, David J.

18. Hagerty, Bill

19. Harris, Andy

20. Hartzler, Vicky

21. Hern, Kevin

22. Higgins, Clay

23. Hoeven, John

24. Huizenga, Bill

25. Inhofe, James M.

26. Johnson, Mike

27. Lamborn, Doug

28. Lankford, James

29. Mateer, Jeffrey C.

30. McKinley, David B.

31. Miller, Mary E.

32. Mooney, Alex X.

33. Norman, Ralph

34. Perry, Scott

35. Posey, Bill

36. Pratt, Jordan E.

37. Rodgers, Cathy McMorris

38. Rouzer, David

39. Roy, Chip

40. Sasse, Ben

41. Scott, Rick

42. Shackelford, Kelly J.

43. Simpson, Mike

44. Smith, Adrian

45. Smith, Jason

46. Stefanik, Elise

47. Sullivan, Dan

48. Thune, John

49. Walberg, Tim

As required by Federal Rule of Appellate Procedure 26.1, Amici Curiae

identified in the Parties’ certificates of interested persons—has an interest in the

outcome of this case or appeal.

Dated: February 9, 2022 Respectfully submitted,

/s/ Jordan E. Pratt

Counsel for Amici Curiae

CERTIFICATE OF INTERESTED PERSONS . . . . . . . . . . . . . . . . . . . . . . . . . .C-1

IDENTITY AND INTEREST OF AMICI CURIAE . . . . . . . . . . . . . . . . . . . . . . . .1

I. Our Constitution Separates Power to Secure Individual Liberty . . . . . . . 3

II. Executive Lawmaking Like the President’s Vaccine Mandate