Amicus Curiae Brief — Donald J. Trump, President of the United States, et al., Petitioners v. Hawaii, et al.

No. 17-965

In the

Supreme Court of the United States

DONALD J. TRUMP, ET AL., Petitioners,

v.

STATE OF HAWAII, ET AL., Respondents.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF OF AMICUS CURIAE AMERICAN CENTER

FOR LAW AND JUSTICE IN SUPPORT OF

PETITIONERS AND URGING REVERSAL

EDWARD L. WHITE III

ERIK M. ZIMMERMAN

AMERICAN CENTER FOR LAW

AND JUSTICE

3001 Plymouth Rd., Ste. 203

Ann Arbor, MI 48105

FRANCIS J. MANION

GEOFFREY R. SURTEES

AMERICAN CENTER FOR LAW

AND JUSTICE

6375 New Hope Rd.

New Hope, KY 40052

February 2018

JAY ALAN SEKULOW

Counsel of Record

STUART J. ROTH

COLBY M. MAY

ANDREW J. EKONOMOU

JORDAN SEKULOW

CRAIG L. PARSHALL

MATTHEW R. CLARK

BENJAMIN P. SISNEY

AMERICAN CENTER FOR LAW

AND JUSTICE

201 Maryland Ave., NE

Washington, DC 20002

Tel.: 202-546-8890

Email: sekulow@aclj.org

Counsel for amicus curiae

i

TABLE OF CONTENTS

STATEMENT OF INTEREST .................................... 1

SUMMARY OF THE ARGUMENT ............................ 2

ARGUMENT ............................................................... 4

I. The Proclamation meets the deferential

standards applicable to the immigration

policymaking and enforcement

decisions of the political branches. ........................ 4

A. Judicial review of the immigrationrelated actions of the political

branches is deferential. .................................... 5

B. The Proclamation is constitutional

under this Court’s deferential

standards applicable to challenges to

the political branches’

immigration-related actions. ............................ 7

II. The Proclamation is constitutional

even under a traditional Establishment

Clause analysis. ................................................... 12

CONCLUSION .......................................................... 20

ii

TABLE OF AUTHORITIES

Supreme Court Cases

Bd. of Educ. v. Mergens,

496 U.S. 226 (1990) .......................................... 2, 16

Boumediene v. Bush,

553 U.S. 723 (2008) .............................................. 10

Bowen v. Kendrick,

487 U.S. 589 (1988) .............................................. 17

Clinton v. Jones,

520 U.S. 681 (1997) .............................................. 14

Edwards v. Aguillard,

482 U.S. 578 (1987) .............................................. 16

FEC v. Wis. Right to Life,

551 U.S. 449 (2007) ................................................ 1

Fiallo v. Bell,

430 U.S. 787 (1977) ........................................ 5, 8, 9

Hamdan v. Rumsfeld,

548 U.S. 557 (2006) .............................................. 15

Harisiades v. Shaughnessy,

342 U.S. 580 (1952) ................................................ 5

Holder v. Humanitarian Law Project,

561 U.S. 1 (2010) .................................................. 10

iii

Kennedy v. Mendoza-Martinez,

372 U.S. 144 (1963) ................................................ 5

Kerry v. Din,

135 S. Ct. 2128 (2015) ............................................ 8

Kleindienst v. Mandel,

408 U.S. 753 (1972) ........................................ 7, 8, 9

Lamb’s Chapel v. Ctr. Moriches Union Free Sch.

Dist., 508 U.S. 384 (1993) .................................. 1, 2

Landon v. Plasencia,

459 U.S. 21 (1982) .................................................. 5

Lemon v. Kurtzman,

403 U.S. 602 (1971) .............................. 4, 13, 17, 18

Lynch v. Donnelly,

465 U.S. 668 (1984) .............................................. 17

McConnell v. FEC,

540 U.S. 93 (2003) .................................................. 1

McCreary Cnty. v. ACLU of Ky.,

545 U.S. 844 (2005) ............................ 14, 16, 17, 18

Mueller v. Allen,

463 U.S. 388 (1983) .............................................. 16

Pleasant Grove City v. Summum,

555 U.S. 460 (2009) ................................................ 1

Republican Party of Minn. v. White,

536 U.S. 765 (2002) .............................................. 14

iv

Shaughnessy v. United States ex rel. Mezei,

345 U.S. 206 (1953) ................................................ 5

Trump v. Hawaii,

No. 16-1540, 2017 U.S. LEXIS 4322

(U.S. July 19, 2017)................................................ 1

Trump v. Hawaii,

No. 17A550, 2017 U.S. LEXIS 7357

(U.S. Dec. 7, 2017) .................................................. 3

Trump v. Int’l Refugee Assistance Project,

137 S. Ct. 2080 (2017) ............................................ 1

Trump v. Int’l Refugee Assistance Project,

No. 16-1436, 2017 U.S. LEXIS 6265

(U.S. Oct. 10, 2017) .............................................. 16

Trump v. Int’l Refugee Assistance Project,

No. 17A560, 2017 U.S. LEXIS 7358

(U.S. Dec. 4, 2017) .................................................. 3

United States v. Texas,

136 S. Ct. 2271 (2016) ............................................ 1

Van Orden v. Perry,

545 U.S. 677 (2005) .............................................. 17

Wallace v. Jaffree,

472 U.S. 38 (1985) ............................................... 16

Youngstown Sheet & Tube Co. v. Sawyer,

343 U.S. 579 (1952) ................................................ 6

v

Ziglar v. Abbasi,

137 S. Ct. 1843 (2017) ............................................ 7

Zivotofsky ex rel. Zivotofsky v. Kerry,

135 S. Ct. 2076 (2015) ............................................ 6

Other Cases

ACLU of N.J. ex rel. Lander v. Schundler,

168 F.3d 92 (3d Cir. 1999) ................................... 18

Int’l Refugee Assistance Project v. Trump,

No. 17-2231, 2018 U.S. App. LEXIS 3513

(4th Cir. Feb. 15, 2018) ................................ passim

Int’l Refugee Assistance Project v. Trump,

857 F.3d 554 (4th Cir. 2017) .......................... 16, 17

Rajah v. Mukasey,

544 F.3d 427 (2d Cir. 2008) ........................... 11, 12

Roark v. S. Iron R-1 Sch. Dist.,

573 F.3d 556 (8th Cir. 2009) ................................ 18

Sarsour v. Trump,

245 F. Supp. 3d 719 (E.D. Va. 2017) ............. 18, 19

Washington v. Trump,

847 F.3d 1151 (9th Cir. 2017) ................................ 2

Washington v. Trump,

853 F.3d 933 (9th Cir. 2017) .................................. 9

vi

Constitutions, Statutes, Executive Orders,

and Regulations

8 U.S.C. § 1182(f) (2012) ............................................. 6

Enhancing Vetting Capabilities and

Processes for Detecting Attempted Entry

Into the United States by Terrorists or

Other Public-Safety Threats,

Proclamation No. 9645, 82 Fed. Reg. 45,161

(Sept. 27, 2017) ...................................................... 2

Other Authorities

Jay A. Sekulow & Erik M. Zimmerman,

Posting the Ten Commandments is a

“Law Respecting an Establishment of

Religion”?: How McCreary County v.

ACLU Illustrates the Need to Reexamine

the Lemon Test and its Purpose Prong,

23 T.M. Cooley L. Rev. 25 (2006) ......................... 13

1

AMICUS CURIAE BRIEF IN SUPPORT OF

PETITIONERS AND URGING REVERSAL

OF THE DECISION BELOW

AND VACATION OF THE

PRELIMINARY INJUNCTION

In this brief, amicus curiae, the American Center

for Law and Justice (“ACLJ”), addresses the

President’s broad discretion over immigration

matters and demonstrates how the Proclamation

challenged in this case does not violate the

Establishment Clause. Counsel for the parties

consent to the filing of this brief.1

STATEMENT OF INTEREST

The ACLJ is an organization dedicated to the

defense of constitutional liberties secured by law.

Counsel for the ACLJ have presented oral argument,

represented parties, and submitted amicus curiae

briefs before this Court and other courts around the

country in cases involving the Establishment Clause

and immigration law. See, e.g., Trump v. Hawaii, No.

16-1540, 2017 U.S. LEXIS 4322 (U.S. July 19, 2017);

Trump v. Int’l Refugee Assistance Project, 137 S. Ct.

2080 (2017); United States v. Texas, 136 S. Ct. 2271

(2016); Pleasant Grove City v. Summum, 555 U.S.

460 (2009); FEC v. Wis. Right to Life, 551 U.S. 449

(2007); McConnell v. FEC, 540 U.S. 93 (2003);

Lamb’s Chapel v. Ctr. Moriches Union Free Sch.

1 No counsel for any party authored this brief in whole or in

part, and no entity or person, aside from amicus curiae, its

members, and its counsel, made any monetary contribution

toward the preparation or submission of this brief.

2

Dist., 508 U.S. 384 (1993); Bd. of Educ. v. Mergens,

496 U.S. 226 (1990); Washington v. Trump, 847 F.3d

1151 (9th Cir. 2017); Int’l Refugee Assistance Project

v. Trump, 857 F.3d 554 (4th Cir. 2017).

The ACLJ has actively defended, through

advocacy and litigation, common sense immigrationrelated policies that protect American citizens. This

brief is supported by members of the ACLJ’s

Committee to Defend Our National Security from

Terror. The Committee represents more than

280,000 Americans who support the President’s

efforts to protect our national security, which are at

issue in this case.

SUMMARY OF THE ARGUMENT

The federal government’s primary job is to keep

this nation safe. The Presidential Proclamation at

issue here is designed to do just that. See Enhancing

Vetting Capabilities and Processes for Detecting

Attempted Entry Into the United States by

Terrorists

or

Other

Public-Safety

Threats,

Proclamation No. 9645, 82 Fed. Reg. 45,161 (Sept.

27, 2017) (“Procl.”).

As directed by the President, the Department of

Homeland Security (“DHS”), the Department of

State, and the Office of the Director of National

Intelligence conducted a thorough review to

determine which foreign governments provide

sufficient information to allow for proper screening of

aliens seeking entry into the United States and, also,

which countries are known or potential terrorist safe

havens. After DHS identified 16 countries having

3

significant

risk

factors

and/or

inadequate

information-sharing practices, in addition to 31 other

countries posing similar security concerns, the State

Department engaged in discussions with numerous

governments concerning these issues, and many

countries made substantial improvements.

DHS then recommended entry restrictions for

certain nationals of eight countries: Chad, Iran,

Libya, North Korea, Somalia, Syria, Venezuela, and

Yemen. The President subsequently issued the

Proclamation, which suspended entry into the

United States of some foreign nationals from these

eight countries (subject to waivers and certain

exceptions).

The district court below entered a nationwide

injunction barring enforcement of the Proclamation,

except as to aliens from two countries. The United

States Court of Appeals for the Ninth Circuit

affirmed except with respect to persons who lack a

credible claim of a bona fide relationship with a

person or entity in the United States.2

The Proclamation is valid and should be upheld

in its entirety. Under the Constitution and federal

statutes, the President has broad power to exclude

aliens from this country for national security

This Court stayed the injunctions against the

Proclamation imposed by the Hawaii and Maryland federal

courts and has allowed the Proclamation to go into effect

pending the outcome of the litigation. Trump v. Hawaii, No.

17A550, 2017 U.S. LEXIS 7357 (U.S. Dec. 7, 2017); Trump v.

Int’l Refugee Assistance Project, No. 17A560, 2017 U.S. LEXIS

7358 (U.S. Dec. 4, 2017).

2

4

reasons. Courts generally defer to the exercise of the

President’s power in this area (for good reason),

which is what the lower courts should have done

here. The Proclamation is a valid exercise of

executive authority that should be upheld.

Moreover, suggestions of possible religious or

anti-religious motives, mined from past comments of

a political candidate or his supporters uttered on the

campaign trail as private citizens, is not enough to

defeat the Proclamation. Even under Lemon’s

purpose prong (which should not apply in this case),

all that is needed to establish the constitutionality of

a government action is that it has a secular purpose

and was not motivated wholly by religious or antireligious considerations. The Proclamation clearly

serves a genuine secular purpose—protecting our

national security—and is not motivated by antireligious considerations.

The decision below should be reversed and the

preliminary injunction vacated to permit the

Proclamation to be enforced in full to protect our

nation from foreign terrorists.

ARGUMENT

I. The Proclamation meets the deferential

standards applicable to the immigration

policymaking and enforcement decisions of

the political branches.

This case involves the special context of a

proclamation, enacted pursuant to the President’s

constitutional and statutory authority, that limits

5

entry into the United States of certain nationals of

eight countries that raise significant national

security concerns due to their practice of being

terrorist safe havens and/or their inadequate

information-sharing practices. Procl. § 1.

When this Court has considered constitutional

challenges to immigration-related actions of this

sort, it has declined to subject those actions to the

same level of scrutiny applied to non-immigrationrelated actions, choosing instead to take a

considerably more deferential approach. That is

what the lower courts should have done here.

A. Judicial review of the immigrationrelated actions of the political branches

is deferential.

This Court has “long recognized the power to

expel or exclude aliens as a fundamental sovereign

attribute exercised by the Government’s political

departments largely immune from judicial control.”

Fiallo v. Bell, 430 U.S. 787, 792 (1977) (quoting

Shaughnessy v. United States ex rel. Mezei, 345 U.S.

206, 210 (1953)). Indeed, “an alien seeking initial

admission to the United States requests a privilege

and has no constitutional rights regarding his

application, for the power to admit or exclude aliens

is a sovereign prerogative.” Landon v. Plasencia, 459

U.S. 21, 32 (1982). Moreover, the Constitution “is not

a suicide pact,” Kennedy v. Mendoza-Martinez, 372

U.S. 144, 160 (1963), and the President has broad

national security powers that may be exercised

through immigration restrictions. See Harisiades v.

Shaughnessy, 342 U.S. 580, 588–89 (1952).

6

Not only do the decisions below undermine the

President’s national security authority, they also

undercut the considered judgment of Congress (in

bolstering the President’s broad discretion) that

[w]henever the President finds that the entry of

any aliens or of any class of aliens into the

United States would be detrimental to the

interests of the United States, he may by

proclamation, and for such period as he shall

deem necessary, suspend the entry of all aliens or

any class of aliens as immigrants or

nonimmigrants, or impose on the entry of aliens

any restrictions he may deem to be appropriate.

8 U.S.C. § 1182(f) (2012) (emphasis added).

Where, as here, the President’s action is

authorized by Congress, “his authority is at its

maximum, for it includes all that he possesses in his

own right plus all that Congress can delegate.”

Zivotofsky ex rel. Zivotofsky v. Kerry, 135 S. Ct. 2076,

2085–84 (2015) (quoting Youngstown Sheet & Tube

Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Frankfurter,

J., concurring)). The Proclamation falls squarely

within the President’s constitutional and statutory

authority and should be upheld in full. As this Court

recently noted,

[n]ational-security policy is the prerogative of the

Congress and President. Judicial inquiry into the

national-security realm raises concerns for the

separation of powers in trenching on matters

committed to other branches. . . . For these and

other reasons, courts have shown [that] deference

7

to what the Executive Branch has determined . . .

is essential to national security. Indeed, courts

traditionally have been reluctant to intrude upon

the authority of the Executive in military and

national security affairs unless Congress

specifically has provided otherwise. Congress has

not provided otherwise here.

Ziglar v. Abbasi, 137 S. Ct. 1843, 1861 (2017)

(citation and internal quotation marks omitted).

B. The Proclamation is constitutional under

this

Court’s

deferential

standards

applicable to challenges to the political

branches’ immigration-related actions.

In Kleindienst v. Mandel, 408 U.S. 753, 770

(1972), the Court rejected a First Amendment

challenge to the Attorney General’s decision to

decline to grant a waiver that would have allowed a

Belgian scholar to enter the country on a visa in

order to speak to American professors and students.

The Court held that “the power to exclude aliens is

‘inherent in sovereignty, necessary for maintaining

normal international relations and defending the

country against foreign encroachments and

dangers—a power to be exercised exclusively by the

political branches of government.’” Id. at 765

(citations omitted). The Court concluded by stating

that

plenary congressional power to make policies and

rules for exclusion of aliens has long been firmly

established. In the case of an alien excludable

under § 212(a)(28), Congress has delegated

8

conditional exercise of this power to the

Executive. We hold that when the Executive

exercises this power negatively on the basis of a

facially legitimate and bona fide reason, the

courts will neither look behind the exercise of

that discretion, nor test it by balancing its

justification against the First Amendment

interests

of

those

who

seek

personal

communication with the applicant.

Id. at 769–70; see also Kerry v. Din, 135 S. Ct. 2128,

2139–41 (2015) (Kennedy, J., concurring) (the

government’s statement that a visa application was

denied due to suspected involvement with terrorist

activities “satisf[ied] Mandel’s ‘facially legitimate

and bona fide’ standard”).

Similarly, in Fiallo, this Court rejected a

challenge to statutory provisions that granted

preferred immigration status to most aliens who are

the children or parents of United States citizens or

lawful permanent residents, except for illegitimate

children seeking that status by virtue of their

biological fathers, and the fathers themselves. 430

U.S. at 788–90. The Court stated:

At the outset, it is important to underscore the

limited scope of judicial inquiry into immigration

legislation. This Court has repeatedly emphasized

that “over no conceivable subject is the legislative

power of Congress more complete than it is over”

the admission of aliens.

Id. at 792 (citation omitted).

9

The Court noted that it had previously “resolved

similar challenges to immigration legislation based

on other constitutional rights of citizens, and has

rejected the suggestion that more searching judicial

scrutiny is required.” Id. at 794. Additionally, the

Court stated, “[w]e can see no reason to review the

broad congressional policy choice at issue here under

a more exacting standard than was applied in

Kleindienst v. Mandel, a First Amendment case.” Id.

at 795. Furthermore, the Court emphasized that “it

is not the judicial role in cases of this sort to probe

and test the justifications for the legislative

decision,” id. at 799, and concluded that the plaintiffs

raised “policy questions entrusted exclusively to the

political branches of our Government.” Id. at 798.

The legality of proclamations or executive orders

related to immigration does not turn on a judicial

guessing game of what the President’s subjective

motives were at the time the order was issued.

Instead, Mandel, Fiallo, and other cases dictate that

courts should rarely look past the face of such orders.

See Int’l Refugee Assistance Project v. Trump, No. 172231, 2018 U.S. App. LEXIS 3513 at *320-35, 353-60

(4th Cir. Feb. 15, 2018) (en banc) (Niemeyer, J.,

dissenting) (noting that this Court’s cases counsel

against looking behind the text of the Proclamation);

Washington v. Trump, 853 F.3d 933, 939 n.6 (9th

Cir. 2017) (Bybee, J., dissenting from denial of

reconsideration en banc) (the panel’s “unreasoned

assumption that courts should simply plop

Establishment Clause cases from the domestic

context over to the foreign affairs context ignores the

realities of our world”).

10

The Proclamation is closely tethered to wellestablished discretionary powers vested in the

Executive Branch by the Constitution and statute.

The global review conducted by DHS, the

Department of State, and the Office of the Director of

National Intelligence was comprehensive. Their

determination of which foreign governments provide

sufficient information to allow for proper screening of

aliens seeking entry into the United States, and also

which countries are known or potential terrorist safe

havens—which the President relied upon in issuing

the Proclamation—must be afforded significant

deference.

Such deference is particularly critical where, as

here, it involves “the evaluation of the facts by the

Executive” regarding the risks to the American

homeland from terrorism, as that implicates

“sensitive and weighty interests of national security

and foreign affairs.” See Holder v. Humanitarian

Law Project, 561 U.S. 1, 33-34 (2010) (broadly

outlawing the provision of material support to

foreign terrorist organizations was upheld against

claim of First Amendment violation). This Court has

noted that “‘neither the Members of this Court nor

most federal judges begin the day with briefings that

may describe new and serious threats to our Nation

and its people.’” Id. at 34 (quoting Boumediene v.

Bush, 553 U.S. 723, 797 (2008)). Furthermore,

“demanding hard proof—with ‘detail,’ ‘specific facts,’

and ‘specific evidence’ [delineating the risk of terror

attacks] . . . would be a dangerous requirement. In

this context, conclusions must often be based on

informed

judgment

rather

than

concrete

evidence. . . .” Id. at 34-35.

11

Notably, the Proclamation does not single out

Muslims for disfavored treatment. The countless

millions of non-American Muslims who live outside

the eight countries of particular concern are not

restricted by the Proclamation. Neither does the

Proclamation limit its application to Muslims in the

designated countries; instead, it applies irrespective

of an individual’s religion. There is ample

justification for the determination of multiple

administrations that the designated countries pose a

particular risk to American national security.

Respondents’ objection to the Proclamation is a

policy dispute that should be resolved by petitioning

the political branches, not by asking the federal

courts to overturn the reasoned decision-making of

the political branches.

The Proclamation is similar in some respects to

the National Security Entry Exit Registration

System (“NSEERS”) implemented after the terrorist

attacks of September 11, 2001, which was upheld by

numerous federal courts. Rajah v. Mukasey, 544 F.3d

427, 438–39 (2d Cir. 2008) (citing cases). Under this

system, the Attorney General imposed special

requirements upon foreign nationals present in the

United States who were from specified countries. A

total of twenty-four Muslim majority countries and

North Korea were eventually designated. Id. at 433

n.3.

In one illustrative NSEERS case, the United

States Court of Appeals for the Second Circuit

rejected arguments that are strikingly similar to the

arguments offered by Respondents here:

12

There was a rational national security basis for

the Program. The terrorist attacks on September

11, 2001 were facilitated by the lax enforcement of

immigration laws. The Program was [rationally]

designed to monitor more closely aliens from

certain countries selected on the basis of national

security criteria. . . .

To be sure, the Program did select countries that

were, with the exception of North Korea,

predominantly Muslim. . . . However, one major

threat of terrorist attacks comes from radical

Islamic groups. The September 11 attacks were

facilitated by violations of immigration laws by

aliens from predominantly Muslim nations. The

Program was clearly tailored to those facts. . . .

The program did not target only Muslims: nonMuslims from the designated countries were

subject to registration. There is therefore no basis

for petitioners’ claim.

Id. at 438–49 (emphasis added) (citation omitted).

Similarly, the Proclamation at issue here is

constitutional.

II. The Proclamation is constitutional even

under a traditional Establishment Clause

analysis.

As noted previously, consideration of the

Proclamation must take into account the deferential

nature of judicial review of immigration-related

actions.

Nevertheless,

the

Proclamation

is

constitutional even under traditional Establishment

Clause jurisprudence, something this Court has

13

never applied “to matters of national security,

foreign affairs, and immigration. . . .” Int’l Refugee

Assistance Project, No. 17-2231, 2018 U.S. App.

LEXIS 3513 at *360 (Niemeyer, J., dissenting).

Assuming the “purpose prong” of the Lemon v.

Kurtzman, 403 U.S. 602 (1971), test applies, the

Proclamation clearly satisfies it.3 The Proclamation’s

predominant purpose is its stated objective, namely,

protecting national security, and, therefore, the

government action here has a “secular legislative

purpose.” Id. at 612–13.

Those who oppose the Proclamation sidestep its

obvious secular purposes by focusing primarily on

miscellaneous comments made by then-candidate

Trump, or his campaign advisors, despite the

subsequent well-founded statements provided by the

Trump Administration concerning its efforts to

protect this country from the entry of foreign

terrorists. This approach is flawed for at least four

reasons.

First, this Court has stated that the primary

purpose inquiry concerning statutes may include

consideration of the “plain meaning of the statute’s

3 The suggestion that the Proclamation should be reviewed

under Lemon’s purpose prong is particularly troubling given the

flawed and inconsistent nature of the test. See Jay A. Sekulow

& Erik M. Zimmerman, Posting the Ten Commandments is a

“Law Respecting an Establishment of Religion”?: How McCreary

County v. ACLU Illustrates the Need to Reexamine the Lemon

Test and Its Purpose Prong, 23 T.M. Cooley L. Rev. 25 (2006)

(discussing the irrational and inconsistent results produced by

application of the Lemon test, especially the purpose prong).

14

words, enlightened by their context and the

contemporaneous legislative history [and] the

historical context of the statute, . . . and the specific

sequence of events leading to [its] passage.”

McCreary Cnty. v. ACLU of Ky., 545 U.S. 844, 862

(2005) (citation and internal quotation marks

omitted); see also id. (noting that the primary

purpose inquiry is limited to consideration of “the

‘text, legislative history, and implementation of the

statute,’ or comparable official act”) (citation omitted

and emphasis added).

Respondents rely upon several quotes, made as

long ago as 2015, by then-candidate Trump and/or

individuals holding some non-governmental position

within his political campaign. Clearly, comments

made, or actions taken, by a private citizen while a

candidate for public office (or his or her advisors)

while on the campaign trail are not “official”

government

acts,

and

do

not

constitute

“contemporaneous legislative history.” Id. at 862; cf.

Clinton v. Jones, 520 U.S. 681, 686 (1997) (alleged

misconduct occurring before Bill Clinton became

President was not an “official” act).

Indeed, “one would be naive not to recognize that

campaign promises are—by long democratic

tradition—the least binding form of human

commitment.” Republican Party of Minn. v. White,

536 U.S. 765, 780 (2002). This Court should limit its

inquiry to official acts or statements in conducting

its Establishment Clause analysis. Presidential

campaign rhetoric is inherently unofficial and

unreliable and should not be considered. See Int’l

Refugee Assistance Project, No. 17-2231, 2018 U.S.

15

App. LEXIS 3513 at *357 (Niemeyer, J., dissenting)

(noting that this Court “has never, ‘in evaluating the

legality of executive action, deferred to comments

made by such officials to the media.’ The Court’s

reluctance to consider statements made in the course

of campaigning derives from good sense and a

recognition of the pitfalls that would accompany such

an inquiry.” (quoting Hamdan v. Rumsfeld, 548 U.S.

557, 623-24 n.52 (2006))).

Limiting the inquiry to official acts or statements

is especially advisable when dealing with comments

made to the media. If media statements by Executive

Branch officials, unartful as they may have been,

become the means by which orders and decisions by

the Executive Branch that are religiously neutral on

their face are attacked on Establishment Clause

grounds, three dangerous consequences would result:

(1) Presidents and Executive Branch staff will be

chilled in their dealings with the press, resulting in

their unwillingness to make public statements and

engage in interviews for fear that, like here, the

statements will be taken out of context by courts;

(2) it will decrease the amount of information given

by the Executive Branch to the public, clearly a

detriment in a constitutional republic, and (3) it will

make less information available to the press about

the activities of the Executive Branch, which will

limit, rather than expand, the freedom of the press

and its obligation to hold the government publicly

accountable.

Second, Respondents’ extensive reliance upon

purported evidence of a subjective, personal antiMuslim bias of the President and some of his

16

advisors is improper because “what is relevant is the

legislative purpose of the statute, not the possibly

religious motives of the legislators who enacted the

law.” Mergens, 496 U.S. at 249 (plurality opinion)

(emphasis added). In short, this Court should decline

Respondents’ invitation to engage in the kind of

“judicial psychoanalysis of a drafter’s heart of hearts”

that is foreclosed by this Court’s precedent.

McCreary Cnty., 545 U.S. at 862.

The Proclamation, on its face, serves multiple

secular purposes, and no amount of rehashing of

miscellaneous commentary can change that. A foray

into the malleable arena of legislative history is not a

requirement in all Establishment Clause cases. See

Mueller v. Allen, 463 U.S. 388, 394–95 (1983) (noting

this Court’s “reluctance to attribute unconstitutional

motives to the [government] particularly when a

plausible secular purpose . . . may be discerned from

the face of the statute”); see also Wallace v. Jaffree,

472 U.S. 38, 74 (1985) (O’Connor, J., concurring)

(explaining that inquiry into the government’s

purpose should be “deferential and limited”).

As Judge Niemeyer correctly explained in his

dissenting opinion from the en banc decision in

International Refugee Assistance Project v. Trump,

this Court “has never applied the Establishment

Clause to matters of national security and foreign

affairs.” 857 F.3d 554, 651 (4th Cir. 2017) (en banc)

(Niemeyer, J., dissenting), vacated by No. 16-1436,

2017 U.S. LEXIS 6265 (U.S. Oct. 10, 2017). In the

few cases in which the Court has invalidated

government actions based on a religious purpose, for

example, Edwards v. Aguillard, 482 U.S. 578 (1987),

17

“the Court found the government action inexplicable

but for a religious purpose, and it looked to extrinsic

evidence only to confirm its suspicion, prompted by

the face of the action, that it had religious origins.”

Int’l Refugee Assistance Project, 857 F.3d at 652

(Niemeyer, J., dissenting) (emphasis in original);

accord Int’l Refugee Assistance Project, No. 17-2231,

2018 U.S. App. LEXIS 3513 at *360-65 (Niemeyer,

J., dissenting). The official government acts in those

cases are manifestly distinguishable from the

Proclamation, which was drafted without reference

to religion and which was based upon the reasoned

determination of senior government officials after an

extensive worldwide review.

Third, the mere suggestion of a possible religious

or anti-religious motive, mined from past comments

of a political candidate or his supporters, and

intermixed with various secular purposes, is not

enough to doom government action (along with all

subsequent attempts to address the same subject

matter). “[A]ll that Lemon requires” is that

government action have “a secular purpose,” not that

its purpose be “exclusively secular,” Lynch v.

Donnelly, 465 U.S. 668, 681 n.6, 700 (1984) (citation

omitted and emphasis added), and a policy is invalid

under this test only if “the government acts with the

ostensible and predominant purpose of advancing

religion.” McCreary Cnty., 545 U.S. at 860 (emphasis

added); see also Van Orden v. Perry, 545 U.S. 677,

703 (2005) (Breyer, J., concurring) (upholding

government action that “serv[ed] a mixed but

primarily nonreligious purpose”); Bowen v. Kendrick,

487 U.S. 589, 602 (1988) (“[A] court may invalidate a

18

statute only if it is motivated wholly by an

impermissible purpose.”) (emphasis added).

The Proclamation clearly serves secular purposes

and, therefore, it satisfies Lemon’s purpose test. See

Sarsour v. Trump, 245 F. Supp. 3d 719, 733–38 (E.D.

Va. 2017) (rejecting the claim that the executive

order (EO-2), which directed that the worldwide

review be conducted, violated the purpose prong of

Lemon, and noting that the order was a facially

lawful exercise of the President’s authority and that

the stated national security purpose was not a

pretext for discrimination against Muslims).

Lastly, under Respondents’ incorrect view of the

Establishment Clause, any hypothetical future

immigration-related orders issued by the current

President will be irredeemably tainted by the alleged

subjective, predominantly anti-Muslim intent of the

President and his surrogates, which runs contrary to

this Court’s admonition that the government’s “past

actions” do not “forever taint any effort . . . to deal

with the subject matter.” McCreary Cnty., 545 U.S.

at 874; see also ACLU of N.J. ex rel. Lander v.

Schundler, 168 F.3d 92, 105 (3d Cir. 1999) (Alito, J.)

(“The mere fact that Jersey City’s first display was

held to violate the Establishment Clause is plainly

insufficient to show that the second display lacked ‘a

secular legislative purpose,’ or that it was ‘intended

to convey a message of endorsement or disapproval of

religion.’”) (citation omitted); Roark v. S. Iron R-1

Sch. Dist., 573 F.3d 556, 564 (8th Cir. 2009)

(“Another reason we reject the district court’s Lemon

analysis is that . . . [it] would preclude the District

from ever creating a limited public forum in which

19

religious materials may be distributed

constitutionally neutral manner.”).

in

a

Moreover, the many substantive differences

between the original executive order and the

Proclamation

reveal

genuine

changes

in

constitutionally significant conditions that have

cured any actual or perceived Establishment Clause

deficiencies. See Int’l Refugee Assistance Project, No.

17-2231, 2018 U.S. App. LEXIS 3513 at *366-68

(Traxler, J., dissenting) (explaining that although he

voted to affirm the preliminary injunction against

the second executive order (EO-2) on Establishment

Clause grounds, he voted to vacate the preliminary

injunction against the Proclamation because it

addressed his previous Establishment Clause

concerns); see also Sarsour, 245 F. Supp. 3d at 737–

38 (“[T]he substantive revisions reflected in [the

second executive order (EO-2)] have reduced the

probative value of the President’s statements to the

point that it is no longer likely that Plaintiffs can

succeed on their claim that the predominant purpose

of [the order] is to discriminate against Muslims

based on their religion. . . .”).

In sum, the Proclamation does not violate the

Establishment Clause. Enjoining the Proclamation

jeopardizes our national security and improperly

obstructs the President from exercising his

constitutional and statutory duty to protect our

country. The Proclamation should be enforced in full.

20

CONCLUSION

This Court should reverse the decision below and

vacate the preliminary injunction.

Respectfully submitted,

EDWARD L. WHITE III

ERIK M. ZIMMERMAN

AMERICAN CENTER FOR LAW

AND JUSTICE

3001 Plymouth Rd.,

Ste. 203

Ann Arbor, MI 48105

FRANCIS J. MANION

GEOFFREY R. SURTEES

AMERICAN CENTER FOR LAW

AND JUSTICE

6375 New Hope Rd.

New Hope, KY 40052

February 2018

JAY ALAN SEKULOW

Counsel of Record

STUART J. ROTH

COLBY M. MAY

ANDREW J. EKONOMOU

JORDAN SEKULOW

CRAIG L. PARSHALL

MATTHEW R. CLARK

BENJAMIN P. SISNEY

AMERICAN CENTER FOR LAW

AND JUSTICE

201 Maryland Ave., NE

Washington, DC 20002

Tel.: 202-546-8890

Email: sekulow@aclj.org

Counsel for amicus curiae