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A number of Washington residents got wind of this proposal and decided it was a very bad idea for a variety of reasons. Unable to come up with a name with a pronounceable acronym, they decided to call themselves the Coalition to Keep Attention Focused on the War on Terrorism (CKAFWT).

Upon discovering the proposed construction date, they decided urgent action of some kind was needed. Considering, and then abandoning, the options of street theater, or a little terrorism of their own, the cooler heads of some Washington-based Iowa law graduates persuaded the group it should go to court.

Accordingly, on January 15, 2002, 10 days prior to construction, CKAFWT filed suit in the U.S. District Court, District of Columbia (Judge Block presiding) in a case styled Coalition v. Dept. of the Interior.

Much to the surprise of the handful of non-lawyers in the group (it's hard to find many non-lawyers in Washington), and the relief of the somewhat apprehensive Iowa-trained lawyers, on January 20 Judge Block granted the group a temporary restraining order. Moreover, by January 23 he had issued a preliminary injunction pending trial on the merits. Needless to say, the group was pleased -- and the White House was not.

The basis of the Coalition's suit was that in approving the design and construction of the 9/11 Memorial, the defendant agencies violated the National Environmental Policy Act of 1969 § 102(2)(C), 42 U.S.C. § 4332(2)(C) (2000), the Commemorative Works Act §§ 1-10, 40 U.S.C. §§ 1001-1010 (2000), the National Historic Preservation Act §§ 106-113, 16 U.S.C. §§ 470f-470h-5 (2000), and the Federal Advisory Committee Act § 10(a), 5 U.S.C. app. § 10(a) (2000).

The agencies did not dispute that they had failed to comply with those statutes.

The defendant agencies argued that "exigent circumstances" justified their noncompliance. The "exigent circumstance" they asserted was "the need to bolster American morale following the horror of the terrorist attacks."

The trial proceeded on an expedited schedule, and by March 16, 2002, the District Court granted the Coalition's motion for summary judgment on the ground that "exigent circumstances" did not warrant bypass of the statutorily required procedural steps. Even if "exigent circumstances" might theoretically warrant such a bypass in some other hypothetical situation, the circumstance identified by the agencies was not "exigent." Bottom line: The court issued a permanent injunction preventing the construction of the proposed "9/11 Memorial."

The defendant agencies appealed the permanent injunction to the U.S. Court of Appeals for the District of Columbia Circuit. Briefs were filed and a three-judge panel heard arguments on October 3, 2002. The next day, in an unpublished memorandum order, the D.C. Circuit affirmed the District Court.

The defendant agencies sought relief in the U.S. Supreme Court, but the Supreme Court denied their petition for certiorari December 31, 2002.

The Coalition lawyers and other members figured that pretty well wrapped it up. A real, very solid win -- "all the way to the Supreme Court" -- something public interest organizations don't experience every day. The memorial would not be built -- at least not unless the agencies would "take it from the top" and go through the statutorily required procedures they should have used in the first place, each of which would offer the Coalition more opportunities for opposition and delay.

What they had not counted on was the election of November 5 and its consequences for their case.

In early 2003, the 108th session of Congress was sworn into office, with a change in party leadership in the Senate. Irate Republicans denounced the fact that "the honoring of valiant and heroic Americans who died in the Pentagon on September  11 was being bottled up by 'procedural nonsense'" (Senator Trent Lott's phrase).

With almost unanimous Republican support, as well as three-fourths of the Democrats, the Senate, and then the House, passed Public Law No. 108-1A, 117 Stat. ___ (2003), as its first order of business last week.

On January 21, in a massive ceremony on the north lawn of the Pentagon, with thousands seated in folding chairs, the President was surrounded by flowers and flanked by a Muslim mullah, a Jewish rabbi, a Catholic bishop, and Jerry Fallwell. He delivered what even the chattering classes granted was his best, emotionally-laiden, Reaganesque, speech to date. The bill was signed with 27 pens (which he immediately distributed to the Republican leadership), the Marine band played and F-16s flew in formation overhead. The ceremony led the evening news on, among other networks, ABC, CBS, NBC, and was rerun on the hour by Fox.

The Coalition members were not invited, did not endeavor to attend, watched only excerpts on C-SPAN, and those who were inclined to depression were advised by their doctors to get back on their meds.

What possibly could be in a law that would prompt such response from the White House and the Coalition?

The text follows:

Section 1. Approval of September 11 Memorial Site and Design.

Notwithstanding any other provision of law, the September 11  memorial described in plans approved by the Commission of Fine Arts on November 17, 2001, and in accordance with the special use permit issued by the Secretary of the Interior on January 25, 2002, and numbered NCR-NACC-9999-0027, shall be constructed expeditiously at the dedicated site in the District of Columbia in a manner consistent with such plans and permits, subject to design modifications, if any, approved in accordance with applicable laws and regulations.

Section 2. Application of Commemorative Works Act.

Elements of the memorial design and construction not approved as of the date of enactment of this Act shall be considered and approved in accordance with the requirements of the Commemorative Works Act §§ 1-10, 40 U.S.C. §§ 1001-1010 (2000).

Section 3. Judicial Review.

The decision to locate the memorial at the site in the District of Columbia, and the actions by the Commission of Fine Arts on November 17, 2001, and the issuance of the special use permit identified in section 1, shall not be subject to judicial review.

As luck would have it, you are Judge Block's new law clerk.  Judge Block wants a "bench memo" analyzing whether Public Law 108-1A is unconstitutional for the following reasons:

(1) It eliminates judicial review of agency decisions.  Judge Block thinks there's some Supreme Court case in the 1980s called Bowen, or something like that, speaking to this.

(2) It tells a federal court to go back and re-decide a case that it has already decided.

Note: The outgoing law clerk, whom you replaced, informs you that Judge Block has some peculiar idiosyncrasies. Some you have no need to know for purposes of this assignment. They are somewhat personal, embarrassing, and irrelevant to the preparation of bench memos. But those involving bench memos are: (a) they must be (but not exceed) seven double-spaced pages, (b) have one-inch margins, and (c) be in a font size equivalent to Courier 10 cpi or Times New Roman 12 point. (d) The judge insists that bench memos contain the following sections: (1) question(s) presented, where you identify the issue(s) you are analyzing; (2) short answer, where you provide a summary of your conclusion; and (3) analysis, which is your full discussion.

Additionally, Judge Block is a real stickler about deadlines. He spends a lot of his weekends reading briefs and bench memos. (This is a matter of a little tension between him and his young wife. There's no reason you can't call him at home over the weekends, but I just wanted you to know that in case Elizabeth answers the phone when you call and you think she's being brusque. It's not really about you, and when you meet her you'll find her friendly and really quite brilliant and charming.) The reason he wants memos by noon on Fridays is so that he can take them with him when he leaves to play tennis with judges and other tennis partners Friday afternoons, following which he goes directly home from the country club. He does not like to come all the way from his home in Potomac, Maryland, to his office in the federal building in downtown Washington just because you didn't get your memo in on time. Fair warning.

Oh, and since you are the only law clerk, do not put your name on your memo.