UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

John Henry Ryskamp,

No. 18-17324
Petitioner-Appellant

v. MOTION TO CERTIFY
QUESTION TO THE UNITED
STATES SUPREME COURT

Commissioner of Internal Revenue,

Respondent-Appellee.

Under Supreme Court Rule 19, this Court may certify a question to the United States

Supreme Court. This Court cannot adjudicate the instant appeal without instruction from the

Supreme Court on the nature of the Constitutional regime. Therefore, I move that the Court certify

the following question:

Is the scrutiny regime still the Constitutional regime?

The elevation of Justice Kavanaugh and the Janus case have put the Constitutional regime

at issue. The Janus case prompts seven questions which underly the question which I move the

Court certify to the Supreme Court.

In the context of tax collection, I have asserted that the Constitutional regime is no longer

the scrutiny regime promulgated by, among other cases, West Coast Hotel v. Parrish, United States

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v. Carolene Products and Chevron v. Natural Resources Defense Council. I assert that tax

collection must enforce individually enforceable rights which flow from a new Constitutional

regime.

I assert that the doctrine of the Constitutional regime is that the law does one thing only: it

maintains unchanging facts of human experience. I assert that unchanging facts of human

experience are individually enforceable rights, and that the test for an individually enforceable

right derives from West Virginia v. Barnette, which, I assert, says that an unchanging fact of human

experience is an individually enforceable right and that that the test for an unchanging fact of

human experience is as follows. If a fact is

1. a fact of human experience

2. which history demonstrates

3. is unaffected by assaults upon it

then it is an unchanging fact of human experience, and so, an individually enforceable right. Is

the Constitutional regime the doctrine I assert?

I also assert that the Supreme Court has, in the Janus case, overruled the holdings in West

Coast Hotel, Carolene Products and Chevron, and thereby eliminated the scrutiny regime as the

Constitutional regime. The holding in the Janus case leaves the Court of Appeals unable to

adjudicate the appeal because the Constitutional regime has been made uncertain, so the Court is

left without standards to apply to the case.

The uncertainty as to the nature of Constitutional regime, cannot be better stated than in

response to Justice Kagan’s dissent in Janus. This dissent prompts specific questions as to the

legal status of doctrines of the scrutiny regime, and the regime itself. She asserts that the case ends

the scrutiny regime. Is she correct? And if so, what is the doctrine of the new Constitutional

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regime? There are seven questions prompted by her dissent, which put the nature of Constitutional

regime at issue:

FIRST QUESTION

On page 2 of her Janus slip opinion dissent, Justice Kagan asserts:

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.

Is Justice Kagan correct in asserting that Janus disrupted, that is, overruled, the scrutiny

regime?

SECOND QUESTION

Justice Kagan asserts on page 5 that, previous to Janus, the Court “struck a balance”

between employer and protected speech rights, but that, in the Janus case, the Supreme Court has

overruled balancing. Is Justice Kagan correct in her assertion?

THIRD QUESTION

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 Justice Kagan asserts, on page 5, that previously the Court sustained “the ‘important

government interests’ in having a stably funded bargaining partner justify ‘the impingement upon’

public employees’ expression,” but that Janus has overruled the scrutiny regime doctrine of

important interests. Is Justice Kagan correct in her assertion?

FOURTH QUESTION

Justice Kagan asserts, on page 16, that “This Court has [previously] rejected all attempts

by employees to make a ‘federal constitutional issue’ out of basic ‘employment matters, including

working 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’).”

However, she asserts that the Court has established a new Constitutional regime, with a doctrine

which makes Federal Constitutional issues of “employment matters, including working conditions,

pay, discipline, promotions, leave, vacations, and terminations.” Since, as Justice Kagan asserts,

the conduct found unconstitutional in Janus is a “tax” (at page 15), taxation is a Federal

Constitutional issue, and that, in adjudicating tax cases under the new Constitutional regime,

“budgetary consequences” (at page 17) must be adjudicated. Is Justice Kagan correct in her

assertions?

FIFTH QUESTION

Justice Kagan asserts (at page 26) that, under the new Constitutional regime promulgated

in Janus, “judges, now and in the future, [must] intervene in economic and regulatory policy.” Is

Justice Kagan correct in her assertion?

SIXTH QUESTION

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 Justice Kagan asserts (at page 27) that under the new Constitutional regime promulgated

in Janus, judges are required to “pick the winning side” rather than enforce “workaday economic

and regulatory policy.” Is Justice Kagan correct in her assertion?

SEVENTH QUESTION

Justice Kagan asserts that the holding in Janus overrules the scrutiny regime because, in

finding a factual speech component in taxation, the Court has found an individually enforceable

speech indicium in every law, rule and regulation promulgated by the scrutiny regime, thereby

overruling the scrutiny regime, specifically, the scrutiny regime as it relates to all economic and

regulatory policy: “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.” At pages 26-27. Is Justice Kagan correct in her assertions?

__________________________

Dated: October 6, 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 Motion to Certify Question to the United
States Supreme Court, were served on October 6, 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: October 6, 2018