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

Supreme Court briefFeb 28, 2018

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No. 17-965

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IN THE

Supreme Court of the United States

____________________

DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES,

ET AL., Petitioners,

STATE OF HAWAII, ET AL., Respondents.

____________________

On Writ of Certiorari to the United States Court of

Appeals for the Ninth Circuit

____________________

Brief Amicus Curiae of Citizens United,

Citizens United Foundation,

Conservative Legal Defense and Education

Fund, Public Advocate of the United States,

Gun Owners Foundation, Gun Owners of

America, Inc., English First, English First

Foundation, Policy Analysis Center, and

Restoring Liberty Action Committee in

Support of Petitioners

____________________

JOSEPH W. MILLER

RESTORING LIBERTY

ACTION COMMITTEE

P.O. Box 83440

Fairbanks, AK 99708

Attorney for Amicus Curiae

RLAC

*Counsel of Record

February 28, 2018

WILLIAM J. OLSON*

HERBERT W. TITUS

ROBERT J. OLSON

JEREMIAH L. MORGAN

WILLIAM J. OLSON, P.C.

370 Maple Ave. W., Ste. 4

Vienna, VA 22180

(703) 356-5070

wjo@mindspring.com

Attorneys for Amici Curiae

444444444444444444444444444444444444444444

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . iii

INTEREST OF THE AMICI CURIAE . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . 2

SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . 4

ARGUMENT

THE CLAIM THAT THE PRESIDENTIAL

PROCLAMATION VIOLATES THE

ESTABLISHMENT CLAUSE IS BOGUS . . . . . . . . . . 7

A. The Establishment Claim Rests Entirely

Upon the Ground that the Proclamation

Disfavors the Muslim Religion . . . . . . . . . . 8

B. The Establishment Clause Does Not

Apply to Laws that Disfavor Religion . . . . 10

C. The Establishment Clause Claim Here

Should Not Be Appraised by the Lemon

Test . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

II. THE MATTER BEFORE THIS COURT DOES NOT

RISE TO THE LEVEL OF AN ARTICLE III CASE

OR CONTROVERSY . . . . . . . . . . . . . . . . . . . . . . . 16

A. It Is Not the Role of Article III Courts to

Redress Hurt Feelings . . . . . . . . . . . . . . . . 17

B. It Is Not the Role of Courts to Inquire

into Motivations of a Coordinate Branch. . 21

C. Article III Courts Do Not Have a Free

Wheeling Mandate to “Do Justice” . . . . . . 25

III. THE DISTRICT COURT’S INJUNCTION, AS MODIFIED

BY THE NINTH CIRCUIT, IS CONSTITUTIONALLY

INFIRM, EXCEEDING THE JUDICIAL POWER OF THE

FEDERAL COURTS . . . . . . . . . . . . . . . . . . . . . . . 26

A. The District Court’s Global Injunction

Granted Relief to Persons Not Parties to

the Litigation . . . . . . . . . . . . . . . . . . . . . . . 26

B. The District Court Global Injunction Was

Unauthorized by Law. . . . . . . . . . . . . . . . . 28

C. The Ninth Circuit’s Modification of Judge

Watson’s Injunction Cured Nothing . . . . . 29

D. The Ninth Circuit’s Injunction Does Not

Arise from a Class Action. . . . . . . . . . . . . . 31

E. The Nationwide Injunction Violates

United States v. Mendoza . . . . . . . . . . . . . 33

F. The Nationwide Injunction Below

Exceeded the Judicial Power of the

United States . . . . . . . . . . . . . . . . . . . . . . . 35

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

iii

TABLE OF AUTHORITIES

Page

U.S. CONSTITUTION

Article III . . . . . . . . . . . . . . . . . . . . . . . . . . 17, passim

Amendment I . . . . . . . . . . . . . . . . . . . . . . . . 3, passim

STATUTES

5 U.S.C. § 706(2). . . . . . . . . . . . . . . . . . . . . . . . . . . 29

CASES

Abington v. Schempp, 374 U.S. 203 (1963) . . . . . . 14

Bowen v. Kendrick, 487 U.S. 589 (1988) . . . . . . . . 15

Bresgal v. Brock, 843 F.2d 1163 (9th Cir. 1987) . . 31

Califano v. Yamasaki, 442 U.S. 682 (1979). . . 32, 34

Church of Lukumi Babalu Aye v. City of

Hialeah, 508 U.S. 520 (1993). . . . . . . . . . . . . . 12

Committee for Public Educ. and Religious

Liberty v. Regan, 444 U.S. 646 (1980) . . . . . . 15

Cooper v. Aaron, 358 U.S. 1 (1958) . . . . . . . . . . . . 37

County of Allegheny v. A.C.L.U., 492 U.S. 573

(1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

DaimlerChrysler Corp. v. Cuno, 547 U.S. 332

(2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Edwards v. Aguillard, 482 U.S. 578 (1987) . . . . . . 14

Epperson v. Arkansas, 393 U.S. 97 (1968) . . . . . . 14

Everson v. Board of Education, 330 U.S. 1 (1946) 14

Hawaii v. Trump, 859 F.3d 741 (2017) . . . . . . . . . . 3

Int’l Refugee Assistance Project v. Trump, 857

F.3d 554 (4th Cir. 2017). . . . . . . . . . . . . . . . . . . 3

Int’l Refugee Assistance Project v. Trump, 2018

U.S. App. LEXIS 3513 (4th Cir. 2018) . 4, passim

Kleindienst v. Mandel, 408 U.S. 753 (1972) . . . 7, 18

Lamb’s Chapel v. Center Moriches Union Free

Sch. Dist., 508 U.S. 384 (1993) . . . . . . . . . . . . 15

Larson v. Valente, 456 U.S. 228 (1982). . . . . . . 7, 13

Lemon v. Kurtzman, 403 U.S. 602

(1971) . . . . . . . . . . . . . . . . . . . . . . . . 5, 13, 14, 15

Lynch v. Donnelly, 465 U.S. 668 (1984) . . . . . . . . 14

Madsen v. Women’s Health Ctr., Inc., 512 U.S.

753 (1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

Marbury v. Madison, 5 U.S. 137 (1803) . . . . . 25, 35

McCreary County v. ACLU of Ky., 545 U.S. 844

(2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 14, 24

McGowan v. Maryland, 366 U.S. 420 (1961). . . . . 12

Moss v. Spartanburg County School District

Seven, 683 F.3d 599 (4th Cir. 2012) . . . . . . . . . 19

Mueller v. Allen, 463 U.S. 388 (1983) . . . . . . . . . . 14

Muskrat v. United States, 219 U.S. 346 (1911) . . 35

Texas v. United States, 809 F.3d 134 (5th Cir.

2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 28, 31

Trump v. Hawaii, 138 S.Ct. 377 (Oct. 24, 2017) . . . 3

United States v. Mendoza, 464 U.S. 154

(1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 33, 34

Valley Forge Christian Coll. v. Americans United

for Separation of Church & State, 454 U.S.

464 (1982). . . . . . . . . . . . . . . . . . . . . . . 14, 20, 21

Wallace v. Jaffree, 472 U.S. 38 (1985). . . . . . . . . . 14

Zelman v. Simmons-Harris, 536 U.S. 639 (2002) . 15

Zepeda v. INS, 753 F.2d 719 (9th Cir. 1983) . . . . . 33

MISCELLANEOUS

W. Blackston, Commentaries. . . . . . . . . . . . . . . . . 38

D. Brody, “Brody File Exclusive: President

Trump Says Persecuted Christians Will Be

Given Priority As Refugees,” CBN News

(Jan. 27, 2017) . . . . . . . . . . . . . . . . . . . . . . . . . 23

D. Diaz, “Obama: Why I won’t say ‘Islamic

terrorism,’” CNN (Sept. 29, 2016) . . . . . . . . . . 16

Executive Order No. 13,769 (Feb. 1, 2017) . . . . 2, 22

Executive Order No. 13,780 (Mar. 9, 2017). . . . . . . 3

P. Holley, “‘Radical Islamic terrorism’: Three

words that separate Trump from most of

Washington,” The Washington Post (Mar. 1,

2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Presidential Proclamation 9645 . . . . . . . . . 3, passim

K. Ravishankar, “The Establishment Clause

Hydra: The Lemon Test in the Circuit

Courts,” 41 Univ. Dayton L. Rev. 262 (2006) . 15

A. Scalia & B. Garner, Reading Law (West:

2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

J. Story, Commentaries on the Constitution,

(Little, Brown: 5th ed. 1891). . . . . . . . . . . . . . . 11

N. Webster, Third International Dictionary

(1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

INTEREST OF THE AMICI CURIAE1

Citizens United, Public Advocate of the United

States, Gun Owners of America, Inc., and English

First are nonprofit social welfare organizations,

exempt from federal income tax under Internal

Revenue Code (“IRC”) section 501(c)(4). Citizens

United Foundation, Conservative Legal Defense and

Education Fund, Gun Owners Foundation, English

First Foundation, and Policy Analysis Center are

nonprofit educational and legal organizations, exempt

from federal income tax under IRC section 501(c)(3).

Restoring Liberty Action Committee is an educational

organization. These organizations were established,

inter alia, for purposes related to participation in the

public policy process, including conducting research,

and informing and educating the public on the proper

construction of state and federal constitutions, as well

as statutes related to the rights of citizens, and

questions related to human and civil rights secured by

law. These amici filed seven previous amicus briefs in

this and related cases in the Fourth and Ninth

Circuits, and in this Court:

• Washington v. Trump, Brief Amicus Curiae of

U.S. Justice Foundation, et al., Ninth Circuit

(Feb. 6, 2017);

• Washington v. Trump, Brief Amicus Curiae of

U.S. Justice Foundation, et al., Ninth Circuit

(Feb. 16, 2017);

It is hereby certified that counsel for the parties have consented

to the filing of this brief; that no counsel for a party authored this

brief in whole or in part; and that no person other than these

amici curiae, their members, or their counsel made a monetary

contribution to its preparation or submission.

• IRAP v. Trump, Brief Amicus Curiae of U.S.

Justice Foundation, et al., Fourth Circuit (Mar.

31, 2017);

• Hawaii v. Trump, Brief Amicus Curiae of U.S.

Justice Foundation, et al., Ninth Circuit (Apr.

21, 2017); and

• Trump v. IRAP, Brief Amicus Curiae of

Citizens United, et al., U.S. Supreme Court

(June 12, 2017).

• Trump v. IRAP, Brief Amicus Curiae of

Citizens United, et al., U.S. Supreme Court

(August 17, 2017).

• Hawaii v. Trump, Brief Amicus Curiae of

Citizens United, et al., Ninth Circuit

(November 22, 2017).

STATEMENT OF THE CASE

On February 1, 2017, newly inaugurated President

Trump issued an Executive Order designed to

implement a pause in the immigration policies of

President Obama, as he sought to staff a new

Administration fashioning new and improved

immigration policies and practices as he had promised

the American people while on the campaign trail.

That Executive Order triggered much litigation

primarily in the Ninth and Fourth Circuits.

A. President Trump’s First Two Executive

Orders.

The First Executive Order (No. 13,769 (Feb. 1,

2017)) immediately became the subject of litigation

around the country. It was replaced by the Second

Executive Order (Executive Order No. 13,780 (Mar. 9,

2017)), which imposed a temporary suspension (“a

brief period of 90 days”) of immigration from seven

specifically named countries, for a specific purpose: to

review “existing screening and vetting procedures were

under review.”

Id., Sec. 1(b)(ii).

In enjoining

enforcement, both Maryland and Hawaii district court

judges actually went so far as to enjoin the President

himself — an almost unprecedented act. The Fourth

Circuit and the Ninth Circuit removed the injunctions

against the President, but upheld injunctions as to

other defendants, the Fourth limiting it to Section 2(c)

of the Second Executive Order,2 and the Ninth limiting

it to both Sections 2 and 6.3 This Court granted

certiorari to review the decisions of both circuits, but

after the expiration of the Second Executive Order

ordered the lower courts to vacate the injunctions and

dismiss those cases as moot . See Trump v. Hawaii,

138 S.Ct. 377 (Oct. 24, 2017).

B. Presidential Proclamation 9645

On September 24, 2017, the President issued his

third presidential directive: Proclamation 9645. The

Ninth Circuit affirmed a nationwide injunction

imposed by the District Court in Hawaii, on statutory

grounds, without reaching the Establishment Clause

claim. Hawaii v. Trump, 878 F.3d 662, 702 (9th Cir.

2017). The Government filed a petition for certiorari

Int’l Refugee Assistance Project v. Trump, 857 F.3d 554, 572

(4th Cir. 2017) (“IRAP”).

Hawaii v. Trump, 859 F.3d 741, 755 (9th Cir. 2017).

and Respondents urged this Court to add the

Establishment Clause question because the alleged

Establishment Clause violation “would be sufficient by

itself to justify the affirmance of the preliminary

injunction.” Brief in Opposition at 34. On January 19,

2018, this Court granted certiorari to review the

decision of the Ninth Circuit and directed the parties

to address the Establishment Clause question.

On February 15, 2018, the Fourth Circuit upheld

the Maryland District Court’s nationwide injunction as

before, on the ground that it violated the

Establishment Clause. See Int’l Refugee Assistance

Project v. Trump, 2018 U.S. App. LEXIS 3513, *61 (4th

Cir. 2018). On February 23, 2018, the Maryland

plaintiffs also filed a petition for certiorari (No. 171194), seeking review of one question decided against

it in the Fourth Circuit, and requesting consolidation

with the Ninth Circuit case. This amicus brief

addresses, as has the Government, the Establishment

Clause claim as it was decided by the Fourth Circuit.

Brief for Petitioners (“Pet. Br.”) at 17, 58.

SUMMARY OF ARGUMENT

The Establishment Clause claim rests entirely

upon the mistaken assumption that, because the

Proclamation disfavors the Muslim religion, it is an

unconstitutional law respecting an establishment of a

religion. This claim is erroneous both as a matter of

logic and of history. Logically, to establish is to favor,

not disfavor, something. Historically, this Court has

consistently recognized that the Establishment Clause

was designed to prohibit laws that “prefer” one religion

over another, not laws that disfavor a religion as

alleged here. Thus, reliance on the Lemon test – a test

developed in Establishment Clause cases to appraise

the constitutionality of a law designed to benefit

religion – is totally misplaced here. Or “has no place

here.”

The Fourth Circuit plaintiffs were never able to

demonstrate they suffered judicially cognizable harm.

The injuries alleged were expressed in terms of

feelings and expectations. Efforts to show injury to

plaintiffs, through assertions that some third parties

discriminated against Muslims, or that the “faciallylegitimate” Proclamation itself was offensive, were

unavailing. To the extent that there was any other

type of injury alleged, it was to foreign nationals who

have no protectable First Amendment rights.

Therefore, the Court should never have reached the

issues of supposed bias and animus by a coordinate

branch of government. Candidate Trump repeatedly

expressed his plan to limit entry into the country from

certain majority-Muslim countries and, based on that,

the American people voted him into office. A court

that imputes animus to the President also levels that

charge against the American people who elected him,

and the judiciary has no role to second-guess the

results of an election. Despite denying it did so, the

Fourth Circuit conducted precisely what this Court

has prohibited — a “judicial psychoanalysis of a

drafter’s heart of hearts.”

The Hawaii and Maryland District Court

injunctions, as upheld by the Ninth and Fourth

Circuits, were not limited to granting relief to the

parties before the court, but purported to bind the

Trump Administration worldwide from implementing

its travel restrictions. The extraordinary nature of the

remedy was given little attention by the courts below,

as illustrated by Judge Watson’s observation

“[n]ationwide relief seems appropriate in light of the

likelihood of success” on the merits. The courts below

relied on the 2015 injunction against President

Obama’s DAPA program entered in Texas, et al. v.

United States, but they failed to recognize, or at least

failed to point out, that case was inapposite, as it

involved a violation of the Administrative Procedure

Act which authorized courts to “set aside” illegal

agency action.

The Ninth Circuit appeared to justify the scope of

its injunction based on the need to allow “lesbian, gay,

bisexual, transgender, and queer (“LGBTQ”)

individuals “to safely bring their partners home to

them,” even though this claim was never before the

Court. And the case cited by the Ninth Circuit as

authority for a nationwide injunction involved a class

action, also not involved in this case. The injunctions

entered below violate this Court’s rule in United

States v. Mendoza, designed to provide this Court with

the benefit of multiple, different circuit court decisions.

Lastly, these injunctions exceeded the judicial power

of the United States, going beyond resolving disputes

into making and implementing laws and rules for the

nation.

ARGUMENT

THE CLAIM THAT THE PRESIDENTIAL

PROCLAMATION VIOLATES THE

ESTABLISHMENT CLAUSE IS BOGUS.

In its opening brief, the Government erroneously

assumes that the Establishment Clause claim

tendered in this case is genuine, but that it fails on its

merits — either because the Presidential Proclamation

(i) “rests on a ‘facially legitimate and bona fide reason’”

in compliance with this Court’s ruling in Kleindienst

v. Mandel, 408 U.S. 753 (1972); or (ii) has an “‘official

objective’ [that] is religion-neutral” in compliance with

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

(2005). Pet. Br. at 16, 58-71. In fact, however, the

Establishment Clause challenge to the Proclamation

fails without resort to the merits, because it rests upon

a claim that the Proclamation “disfavors” the Muslim

religion, whereas the Establishment Clause condemns

only laws that “prefer” some religion over another. See

Larson v. Valente, 456 U.S. 228, 244-46 (1982). As

this Court has explained in Larson:

Since [1947] this Court has adhered to the

principle, clearly manifested in the history and

logic of the Establishment Clause, that no

State can “pass laws which aid one religion” or

that “prefer one religion over another.” [Id..

at 246 (emphasis added).]

Because the Establishment Clause claim here, both on

its face and as a matter of fact, rests on alleged

“animus” toward the Muslim faith, not on a preference

for any religion, the claim is not a genuine

Establishment Clause claim, and thus, fails to

constitute a claim upon which relief can be granted

under F.R.Civ.P. Rule 12(b)(6).

A. The Establishment Claim Rests Entirely

Upon the Ground that the Proclamation

Disfavors the Muslim Religion.

As Petitioners make clear in their brief, the

Establishment Clause objection to the Proclamation

was based on the allegation that it was “infused with

religious animus ... ‘denigrat[ing]’” the Muslim

religion. Pet. Br. at 17, 28, 65-66. As the Petitioners

further explained, it was on the basis of this allegation

that the Fourth Circuit rendered its decision that “EO2 was the product of religious animus, and then

contend[ing] that the Proclamation failed to ‘cure the

“taint.”’” Pet. Br. at 65-66. Indeed, the Fourth Circuit

went to great lengths to establish that the

Proclamation violated the Establishment Clause solely

on the ground that the Proclamation and its

predecessor executive orders “disfavored the Muslim

faith.” IRAP v. Trump, 2018 U.S.App. LEXIS 3513,

*17-18, *28-29, *32-33 (4th Cir. 2018). See also id. at

*33, *37. So convinced by its evidentiary survey, the

Fourth Circuit concluded that “the Proclamation’s

invocation of national security is a pretext for an antiMuslim religious purpose”:

Plaintiffs here do not just plausibly allege with

particularity that the Proclamation’s purpose

is driven by anti-Muslim bias, they offer

undisputed evidence of such bias: the words of

the President.

This evidence includes

President Trump’s disparaging comments and

tweets regarding Muslims; his repeated

proposals to ban Muslims from entering the

United States.... [Id. at *48-49.]

Completely absent from the Fourth Circuit opinion is

any evidence that the Proclamation purposes to favor

a religion. To be sure, the Fourth Circuit did note that

the President had previously stated that “EO-1 would

give preference to Christian refugees” (id. at *18), but

it never ruled that the purpose of the Proclamation

was to “prefer” Christianity over Islam. See id. at *5354. Rather, the Fourth Circuit found only that, as a

matter of fact, “EO-1 ... provided exemptions for

Christians,” negating “any asserted evidence

indicating a genuine national security purpose,” but

rather to reinforce the claim that EO-1’s overarching

“purpose was to discriminate against Muslims,” not to

prefer Christians. Indeed, whatever preference that

EO-1 may have given to “Christian refugees,” that

provision was entirely removed from subsequent

iterations of the travel ban, including the

Proclamation. To the contrary, after “[e]xamining

official statements from President Trump and other

executive branch officials, along with the Proclamation

itself,” the Fourth Circuit “conclud[ed] that the

Proclamation is unconstitutionally tainted with

animus toward Islam.” Id. at *33. If so tainted, it

taxes one’s credulity how the Proclamation can be a

law respecting an establishment of religion, when that

very Proclamation is touted as one that disfavors a

religion.

This is Alice in Wonderland logic,

unsupported either by the plain meaning of the words

“establishment” and “disfavor,” or by the historical

context of the Establishment Clause.

B. The Establishment Clause Does Not Apply

to Laws that Disfavor Religion.

The Fourth Circuit opinion, as it is written, is

inconsistent. On the one hand, it has stated that the

plaintiffs have “claimed that the Proclamation violated

the Establishment Clause’s prohibition on disfavoring

religion....” Id. at *29. On the other hand, it has

stated that the “Plaintiffs here have alleged that the

Proclamation violates the Establishment Clause,

which bars government action that establishes or

disfavors religion.” Id. at *36 (emphasis added). See

also id. at *37. In its first statement, the Fourth

Circuit appears to have embraced the novel notion that

the word “establishment” comprehends “disfavor.”

However, in its second statement, the Fourth Circuit

makes clear that it understands those two words have

distinctly different meanings. According to Webster,

“disfavor” means “the state or fact of not being favored

or in favor.”4 In contrast, Webster defines “establish”:

“to assist, nurture so that stability and continuance

are assured.” Id. at 778. Thus, establishment means

an “act of bringing into existence, creating, founding,

originating or setting up so that certain continuance is

assured.” Id. In contrast “disfavor” means “the

condition of being deprived of favor or under

displeasure; or absence of loss of that which favors

one’s standing or cause.” Id. at 649. Thus, synonyms

N. Webster, Third International Dictionary 649 (1982).

for disfavor are “disadvantage” or “dislike” (id.),

whereas “establish” calls to mind words like “appoint,”

“entitle,” or “ordain.” Id. at 778. Rather than the two

words having compatible meanings, they are quite the

opposite. The ordinary meaning of the phrase5 — “no

law respecting an establishment of religion” — would

preclude only those laws conferring favor on a religion,

not laws that would disfavor.

The distinction between a government act favoring

religion, as contrasted with disfavoring religion, is not

just a semantic one, but also stems from the fact that

the two religion clauses in the First Amendment were

designed to protect two quite different rights. As

Joseph Story has explained, the Establishment Clause

addresses the “limits to which the government may

rightfully go in fostering and encouraging religion.”

Id., 2 J. Story, Commentaries on the Constitution,

Section 1872, at 628 (Little, Brown: 5th ed. 1891). On

the other hand, the Free Exercise Clause addresses the

limits to which the government may rightfully go in

“excluding” individual religious beliefs and practices.

Id. at 629. Although the two rights are interrelated,

Story opined that “the duty of supporting religion,

especially the Christian religion, is very different from

the right to force the consciences of other men or to

punish them for worshiping God in the manner which

they believe their accountability to him requires.” Id.

at Section 1876. This reading of the Establishment

Clause is compatible with the history of the two

“The ordinary-meaning rule is the most fundamental semantic

rule of interpretation.” A. Scalia & B. Garner, Reading Law at 69

(West: 2012).

religion guarantees as they appear in the First

Amendment.

A quarter century ago, this essential distinction

between Establishment and Free Exercise claims was

marked by this Court. In Church of Lukumi Babalu

Aye v. City of Hialeah, 508 U.S. 520 (1993), the Court

observed that, in cases involving claims of a

government “attempt to disfavor [one’s] religion[,] the

Free Exercise Clause is dispositive.” Id. at 532

(emphasis added). In contrast, the Court further

noticed that “Establishment Clause cases ... for the

most part6 have addressed governmental efforts to

benefit religion or particular religions.” Id. (emphasis

added). In the eyes of this Court, then, there are two

kinds of religion cases — Establishment and Free

Exercise — each of which “deal[s] with a question

different ... in its formulation and emphasis.” Id.

In Free Exercise cases, discriminatory actions

taken against a religion require proof that the action

“prohibits” one’s “exercise” of one’s religious faith. See

id. at 532. See McGowan v. Maryland, 366 U.S. 420,

429 (1961). Thus, as applied to the Lukumi Babalu

plaintiffs, they were able to sustain a Free Exercise

claim because the law targeted the church’s “religious

exercise” of animal sacrifices. Id. at 542. Such is not

Even if the Establishment Clause might be invoked in a case

involving government action disparaging a religion, the Court’s

“for the most part” qualifier does not allow courts to disregard the

presumptive rule that government attempts to disfavor religion or

religious practice are not governed by the Establishment Clause,

but rather by the Free Exercise Clause.

the case here. No one is contending that any one is

prohibited from exercise of their religious faith by the

President’s Proclamation. Instead, the claim is

phrased as an Establishment one, asserting that the

Proclamation “send[s] a message to non-adherents of

a particular religion that they are outsiders, not full

members of the political community.” See IRAP at 36

(italics original, bold added). To sustain such a claim,

a court must first discern whether the law or activity

in question is one that is conferring a benefit upon a

favored religious group, and on account of this favor,

unconstitutionally causes “feelings of marginalization

and exclusion” in non-adherents of the preferred

religious faith. Id. at 43.

C. The Establishment Clause Claim Here

Should Not Be Appraised by the Lemon

Test.

Having assumed that the Establishment Clause

applies even to laws that do not prefer or in some other

way benefit religion, the Fourth Circuit assumed that

this Court’s three-part test set forth in Lemon v.

Kurtzman, 403 U.S. 602 (1971) would apply. Slip Op.

at 44. The Fourth Circuit is mistaken — on two

counts.

First, as already established, there is no finding

that the Proclamation preferred any religious

denomination over another, such as in Larson v.

Valente, 456 U.S. 228, 244 (1982); nor was there any

effort expended upon an inquiry whether one could

infer from the alleged anti-Muslim rhetoric that the

real purpose was to benefit any competing religious

faith. See, e.g., Epperson v. Arkansas, 393 U.S. 97

(1968). The Lemon test, however, has been tailored to

sort out those laws that permissibly benefit religion

from those that do not, requiring proof of: (i) a

“secular purpose,” (ii) a primary effect that neither

advances not inhibits religion, and (iii) no “foster[ing]

[of] ‘an excessive government entanglement with

religion.” Id. at 612-13. Each prong of the test makes

sense only if the Establishment Clause challenge is

limited to claims that one has been injured by a

government benefit conferred on a favored religious

group, such as the placement of a Ten Commandments

monument on public property,7 the erection of a creche

scene during the Christmas season on the county

courthouse lawns,8 teaching “creation” in a public

school classroom,9 prayer and Bible reading as part of

the public school curriculum,10 conferring monetary

benefits upon private religious schools,11 conferring

monetary benefits upon parents who send their

children to private religious schools,12 or providing tax

See, e.g., McCreary County v. ACLU of Ky., 545 U.S. 844 (2005).

See, e.g., County of Allegheny v. ACLU, 492 U.S. 573 (1989);

Lynch v. Donnelly, 465 U.S. 668 (1984).

See, e.g., Edwards v. Aguillard, 482 U.S. 578 (1987).

See, e.g., Wallace v. Jaffree, 472 U.S. 38 (1985); Abington v.

Schempp, 374 U.S. 203 (1963).

See, e.g., Everson v. Board of Education, 330 U.S. 1 (1947);

Valley Forge Christian Coll. v. Americans United for Separation

of Church & State, 454 U.S. 464 (1982).

See, e.g., Mueller v. Allen, 463 U.S. 388 (1983).

breaks and other monetary benefits to support private

counseling organizations with ties to certain religious

denominations.13

Second, and in any event, federal court judges are

ill-advised to grant preliminary injunctive relief in

Establishment Clause cases based on the application

of the Lemon test. Such preliminary relief is available

only when one is likely to succeed on the merits, and it

is not obvious that the Court would even apply the

Lemon test, much less render a decision favorable to

plaintiffs on the merits. See K. Ravishankar, “The

Establishment Clause Hydra: The Lemon Test in the

Circuit Courts,” 41 U. DAYTON L. REV. 262 (2006).

Indeed, for years, the Court’s Establishment Clause

jurisprudence has been severely criticized by former

members of this Court. See, e.g., Zelman v. SimmonsHarris, 536 U.S. 639, 688 (2002) (Souter, J.,

dissenting) (Establishment Clause jurisprudence has

reached “doctrinal bankruptcy”); Lamb’s Chapel v.

Center Moriches Union Free Sch. Dist., 508 U.S. 384,

399 (1993) (Scalia, J., concurring) (“Establishment

Clause [cases constitute a] geometry of crooked lines

and wavering shapes”); Committee for Public Educ.

and Religious Liberty v. Regan, 444 U.S. 646, 671

(1980) (Stevens, J., dissenting) (“the ‘blurred,

indistinct, and variable barrier’ described in Lemon.”).

See, e.g., Bowen v. Kendrick, 487 U.S. 589 (1988).

II. THE MATTER BEFORE THIS COURT DOES

NOT RISE TO THE LEVEL OF AN ARTICLE

III CASE OR CONTROVERSY.

During his campaign for the presidency, thencandidate Trump repeatedly invoked the term “radical

Islamic terrorism.”14 This rhetoric distinguished him

from President Obama, who for years had been widely

criticized because of his steadfast refusal to use the

words “Islamic” and “terrorism” in the same

sentence.15 President Trump apparently believed it

was little more than common sense to describe a

significant portion of the world’s terrorism in relation

to the religion openly espoused by the persons

committing it. President Obama, however, appeared

to believe that linking Islam to terrorism would paint

with too broad a brush, tying an entire religion to the

views of a subset of its most extreme and violent

adherents. At its essence, this rhetorical conflict

constituted a political dispute between two competing

positions embraced by different segments of the

American public.

Whether or not Fourth Circuit Chief Judge

Gregory and his Fourth Circuit colleagues who joined

his opinion approve, on November 8, 2016, the

American people voted for the very immigration

P. Holley, “‘Radical Islamic terrorism’: Three words that

separate Trump from most of Washington,” The Washington Post

(Mar. 1, 2017)

D. Diaz, “Obama: Why I won’t say ‘Islamic terrorism,’” CNN

(Sept. 29, 2016)

policies that President Trump has been attempting to

carry out with EO-1, EO-2, and the September

Proclamation. Indeed, President Trump’s statements

that the Chief Judge Gregory finds so “disparaging,”

“disturbing,” and “raw[]” (IRAP at *52, *55, *57) were

widely known by the American public prior to its

choosing to elect President Trump. Therefore, the

Court’s imputation of religious animus to President

Trump based on statements he made on the campaign

trail inescapably imputes those same motivations to

the American public who voted for the President’s

policies. This is dangerous ground for the judiciary to

stand, as it is fundamental to our nation that it is the

people who are sovereign.

The political dispute reflected in this case is

quintessentially the sort of matter in which judges

should have absolutely no role, aside from their role as

an individual citizen in casting an election ballot.16

Unfortunately, many federal judges appear to think

differently. But it is not the role of federal judges to

operate ‘behind enemy lines’ as a left-behind army,

tasked with impugning the President and impeding his

agenda.

A. It Is Not the Role of Article III Courts to

Redress Hurt Feelings.

As the Fourth Circuit’s en banc opinion makes

clear, the suit before it was based not on the First

Amendment rights of foreign nationals — as they have

See Judge Niemeyer’s dissent, IRAP at *325-26.

none (see Kleindienst v. Mandel, 408 U.S. 753, 762

(1972), see also IRAP at *339 (Judge Agee, dissenting))

— but on the rights of American citizens and persons.

Yet, as the Fourth Circuit admits, the plain language

of “[t]he Proclamation only applies to foreign nationals

who are outside the United States....” IRAP at *26.

One is left to wonder, then, how an American’s rights

can be violated by a policy that, by its terms, has

nothing to do with him. In order to reach that

conclusion, the Fourth Circuit was forced to engage in

a series of mental and emotional leaps, relying on a

series of precedents that in no way stand for the

principles that the Fourth Circuit claimed.

First, the Fourth Circuit attempts to bridge the

gap between persons explicitly targeted by the

Proclamation and persons allegedly affected, with its

conclusion that the U.S. plaintiffs in this case “have

sufficiently alleged personal contact with

unconstitutional religious animus.” IRAP at *34

(emphasis added). That is so, the court claims,

because “Establishment Clause injury-in-fact ‘may be

shown in various ways’....” Id. at *36. The court then

relies on a series of cases where Establishment Clause

standing was found — while not bothering to mention

that all of those cases dealt with laws or policies that

applied within the United States to United States

persons. See id. at *36-37; see also Pet. Br. at 61-62.

The court cites not one authority for the proposition

that policies directed only at those with no ties to this

country can injure domestic persons sufficiently to

create Article III standing.

Second, apparently recognizing the thinness of its

argument, the Fourth Circuit cites itself for the

proposition that “Establishment Clause injuries are

often ‘spiritual and value-laden, rather than tangible

and economic.’”

IRAP at *36 (citing Moss v.

Spartanburg County School District Seven, 683 F.3d

599, 607 (4th Cir. 2012)). But even if that were so, the

injuries the court alleges here do not even meet its own

test. The court claims that the plaintiffs are “suffering

‘[f]eelings of marginalization and exclusion,’” and “are

experiencing prolonged separation from close family

members who have been rendered categorically

ineligible for visas.” IRAP at *38. Indeed, plaintiffs’

case in the Fourth Circuit rises and falls on feelings —

giving a list of eight examples of how various plaintiffs

below “feel,” “feels,” or “felt.”17 IRAP at *39-40.

Even pretending that hurt feelings can establish

standing, the Fourth Circuit is utterly unable to tie the

alleged “injuries-in-fact” offered by the plaintiffs to the

alleged anti-Muslim “evidence” it marshals against

President Trump. It appears that most of the hurt

“feelings” to which the Fourth Circuit refers were not

As these amici noted in an earlier amicus brief in this case:

“Dr. Elshikh does not have standing just because President

Trump has made him sad.” As amici explained: “Being personally

offended by government action has never been sufficient to confer

standing for a federal judge to second guess the President of the

United States — at least before 2017 challenges to President

Trump’s two Executive Orders. Although this country may now

have entered an era where people often believe that they can go

to court any time their feelings have been hurt, the lawyers and

the district court should have known better.” Hawaii v. Trump,

Brief Amicus Curiae of USJF (Apr. 21, 2017) at 17-18.

caused by President Trump’s alleged anti-Muslim

statements directly, but rather because various

plaintiffs “‘heard anti-Islamic comments more

frequently,’ and he or someone he knows experiences

Islamophobia ‘[a]lmost every week,’” or because “a man

... said that I make this country worse,” or because

another plaintiff “gets ‘more suspicious looks from

more people’....” IRAP at *39-40. Apparently in the

Fourth Circuit, standing to challenge an executive

action can be established by an odd look from a

stranger. See IRAP at *343 (Agee, J., dissenting).

Additionally, even when the Fourth Circuit tries to tie

President Trump to the plaintiffs’ injuries, it is not

President Trump’s alleged anti-Muslim statements

that are the cause of the injuries, but rather the travel

ban itself. The lower court blames “the ban,” “the

travel restrictions,” “the first travel ban,” “the

Proclamation,” and “this new Proclamation” — a

Proclamation the court assumed was “facially

legitimate.” IRAP at *39-40, 47.

Finally, the Fourth Circuit makes one last attempt

to shore up its opinion by citing a 1982 opinion of this

Court. The Fourth Circuit alleges that hurt feelings

“are personal, particularized injuries cognizable under

Article III because they are suffered ‘as a consequence

of the alleged constitutional error.’” IRAP at *40-41

(citing Valley Forge Christian College v. Americans

United for Separation of Church & State, 454 U.S. 464,

485 (1982). In reality, Valley Forge says much more —

in fact, it says just the opposite.

Although respondents claim that the

Constitution has been violated, they claim

nothing else. They fail to identify any

personal injury suffered by them as a

consequence of the alleged constitutional error,

other than the psychological consequence

presumably produced by observation of

conduct with which one disagrees. [Valley

Forge at 485 (emphasis added).]

The Fourth Circuit’s machinations are unavailing

— there simply is no law for the sort of standing the

lower court “found” (manufactured) in this case. It is

entirely unclear how EO1, EO2, or the Proclamation

now under review make any of the plaintiffs feel like

they are “‘outsiders, not full members of the political

community’” (IRAP at *36), when the President’s

actions explicitly apply only to foreigners who quite

literally — and certainly legally — are “outsiders, not

full members of the political community.” See IRAP at

*339-40 (Judge Agee, dissenting).

B. It Is Not the Role of Courts to Inquire into

Motivations of a Coordinate Branch.

Following its creation of standing out of whole

cloth, the Fourth Circuit begins its Establishment

Clause analysis by noting that “[t]he Proclamation’s

stated purpose is ‘to protect [U.S.] citizens from

terrorism....’” IRAP at *47. However, the Court

apparently is not entirely sure that national security

is a valid governmental interest:

“[a]ssuming

without deciding that the proffered purpose of the

Proclamation is ‘facially legitimate’....” Id. (emphasis

added).

Rather, the court “‘look[s] behind’ the

Government’s proffered justification for its action,” and

concludes that “the Proclamation’s invocation of

national security is a pretext for an anti-Muslim

religious purpose.” Id. at *48.

The Fourth Circuit fabricates President Trump’s

alleged “pretext” out of bits of “evidence” about foreign

Muslims which, the court argues, leads to the

“‘commonsense conclusion’” that the President’s

actions were taken because of his “‘religious

animosity’” towards U.S. Muslims. See IRAP at *48,

*49, *51, *60. The government’s opening brief on the

merits in this case correctly criticizes the Fourth

Circuit for relying on “extrinsic material” rather than

the actual text and context of the Proclamation. Pet.

Br. at 17. The government notes that this Court’s

precedents do not “permit courts to ‘look behind’ the

Proclamation’s stated rationale and search for

pretext.” Pet. Br. at 61. Even so, the Fourth Circuit’s

“peek behind” the Proclamation does not reveal the

animus that the court claims.

On first glance, much of the court’s “evidence” is

nothing more than its perception of President Trump’s

attitude, rather than actual “evidence.” But, even the

so-called “evidence” on which the court relies is

misleading, at best. Early in its opinion, the court

claims that “President Trump stated in an interview

with the Christian Broadcasting Network that EO-1

would give preference to Christian refugees.” IRAP

at *18 (emphasis added). To be sure, that correctly

reflects the spin put on President Trump’s statement

by the interviewers, but what he actually said was far

different. In reality, what President Trump said was

that the disparity between Muslim and Christian

refugees was “very, very unfair” and “we are going to

help them.”18 A promise to stop discrimination against

one group of persons hardly rises to the level of an

intent to “prioritize” them, or to correspondingly

discriminate against others.

The Fourth Circuit also uses as “evidence” of the

President’s alleged animus the fact that he often has

made statements expressing his desire to ban Muslim

immigration from certain countries. IRAP at *19, *49,

*52 n.15.

The court apparently believes such

statements provide an open and shut case — that a

statement intending to crack down on Muslim

immigration is per se discrimination on the basis of

religion. See IRAP at *56. Nothing could be further

from the truth. In making this assumption, the

Fourth Circuit confuses President Trump’s “purpose”

with his “motivation.” Noting that this Court has

permitted courts to “‘look behind’ the Government’s

proffered justification” (IRAP at *48), the Fourth

Circuit claims to do just that by looking at evidence

that it believes is unambiguous — such as President

Trump’s statements that use the word “Muslim.” But

rather than the court looking behind the Proclamation

at President Trump’s statements, the court looks

behind those statements at a meaning the court

D. Brody, “Brody File Exclusive: President Trump Says

Persecuted Christians Will Be Given Priority As Refugees,” CBN

News (Jan. 27, 2017) https://www1.cbn.com/thebrodyfile/

archive/2017/01/27/brody-file-exclusive-president-trump-says-pe

rsecuted-christians-will-be-given-priority-as-refugees.

imputes to them.19 Indeed, while many of President

Trump’s statements may be clear, the motivation

behind them is not unambiguous. For example, the

President has said “that he wanted a ‘Muslim ban’....”

IRAP at *19. The Fourth Circuit believes this

statement is capable of only one interpretation —

President Trump must hate Muslims. But the

President never actually said “I want a Muslim ban

because I hate Muslims” — not even close. It is the

Fourth Circuit which imparts this unstated meaning

to the President’s words, by engaging in precisely what

this Court has prohibited — a “judicial psychoanalysis

of a drafter’s heart of hearts.” McCreary, 545 U.S. at

862; see Pet. Br. at 17, 64.

As President Trump has repeatedly stated, his

intent is to exclude terrorists from the United States.

President Trump clearly believes that the majority of

the terrorist threats that this nation faces come from

countries with Muslim populations, that this form of

terrorism is inextricably linked to the religion of those

who perpetrate it, and that excluding persons from

certain majority-Muslim countries is the best way to

exclude terrorists from their midst.20 While some may

disagree with some of those suppositions, they do not

constitute animus.

As Judge Niemeyer notes in his dissent, the majority’s

conclusion of animus came from “the unstated objective of

expressing anti-Muslim animus.” IRAP at *323 (emphasis added).

Judge Niemeyer concludes that “[u]nless corrected, the district

court's approach will become a sword for plaintiffs to challenge

any facially neutral government action, particularly an action

affecting regions dominated by a single religion.” IRAP at *325.

C. Article III Courts Do Not Have a Free

Wheeling Mandate to “Do Justice.”

In a speech to a bar association last year, Fourth

Circuit Chief Judge Gregory explained his belief that

the core of the Constitution was the phrase “establish

justice”21 contained in its Preamble — even though we

do not know what that is all the time. And, he

explained that a judge has “the power to make void

any act that is contrary to the manifest tenor of the

Constitution.... It’s not the height of our dedication to

the rule of law, but it’s the depth of our determination

to do justice....” Id. Reducing the Constitution to two

words — “do justice” — gives judges a fair bit of

latitude to strike down whatever they may believe is

against the “manifest tenor” of the Constitution, as

different judges may interpret that standardless

phrase.22 In overruling the President’s Proclamation

that was authorized by statute, Judge Gregory

apparently concluded that “the Rule of Law falls

short.” Id. Departing from the historic role of the

Courts to “say what the law is,”23 the Fourth Circuit

determined to do what the judges felt that justice

required.

See North Carolina Bar Association Annual Meeting (2017)

https://www.youtube.com/watch?v=0wsjrKFU-bc at 10:20.

Judge Niemeyer, writing in dissent, similarly faults the

majority for creating a “new rule that [] will enable a court to

justify its decision to strike down any executive action with which

it disagrees.” IRAP at *319.

Marbury v. Madison, 5 U.S. 137, 177 (1803).

III. THE DISTRICT COURT’S INJUNCTION, AS

MODIFIED BY THE NINTH CIRCUIT, IS

CONSTITUTIONALLY

INFIRM,

EXCEEDING THE JUDICIAL POWER OF

THE FEDERAL COURTS.

A. The District Court’s Global Injunction

Granted Relief to Persons Not Parties

to the Litigation.

This Court granted certiorari to determine

“[w]hether the global injunction is impermissibly

overbroad.” Petition for Certiorari at (1). In this case,

the overbreadth problem is not primarily an issue of

the injunction’s geographic scope, but rather whether

the district court had authority to grant relief to an

enormous class of persons who are not parties to the

litigation.

The five plaintiffs in this suit were identified as

the “State of Hawai’i ..., Ismail Elshikh, Ph.D., John

Doe 1, John Doe 2, and the Muslim Association of

Hawaii, Inc.” Hawai’i24 v. Trump, 265 F.Supp.3d 1140,

1145 (D. Haw. 2017). Although all of the individual

plaintiffs were residents of Hawaii and the claims of

all parties related to that state directly, these five

plaintiffs sought “a nationwide” injunction, as if they

had brought a class action on behalf of all Muslims

nationwide. Yet district court judge Derrick K.

Note that the district court used what it appeared to believe to

be a culturally sensitive name for the State of Hawaii, federal law

notwithstanding.

Watson obligingly responded, “the Court orders exactly

that.” Id. at 1148.

Actually, Judge Watson went even further than

requested, as the injunction he ordered could more

accurately be described as breathtakingly “global” in

scope, just short of galactic:

Defendant[s] ... are enjoined fully from

enforcing or implementing Sections 2(a), (b),

(c), (e), (g), and (h) of the Proclamation issued

on September 24, 2017 ... across the Nation.

Enforcement of these provisions in all places,

including the United States, at all United

States borders and ports of entry, and in the

issuance of visas is prohibited, pending further

orders from this Court. [Id. at 1160-61.]

Although Judge Watson could have issued an

injunction properly tailored to remedy the harm

allegedly suffered by the named plaintiffs, he chose to

bring a complete stop to the President’s Proclamation

of September 24, 2017, despite the fact that it was

plainly designed to protect United States “‘citizens

from terrorist attacks and other public safety threats,’

by preventing ‘foreign nationals who may ... pose a

safety threat ... from entering the United States’” (id.

at 1146-47, citing Proclamation). This injunction had

the effect of barring the new President of the United

States from implementing the immigration policies on

which he had campaigned, and on which he was

elected President of the United States by the American

people.25

B. The District Court Global Injunction Was

Unauthorized by Law.

Judge Watson’s only discussion of the scope of his

injunction was one paragraph:

Nationwide relief is appropriate in light of the

likelihood of success on Plaintiffs’ INA claims.

See Washington [v. Trump], 847 F.3d at 116667 (citing Texas [v. United States], 809 F.3d at

187-88); see also Hawaii [v. Trump], 859 F.3d

at 788 (finding no abuse of discretion in

enjoining on a nationwide basis Sections 2(c)

and 6 of EO-2, “which in all applications would

violate provisions of the INA”). [Id. at 1160.]

The extent of the consideration given to, and

justification for, the worldwide scope of Judge

Watson’s injunction was limited to two Ninth Circuit

decisions issued in similar litigation earlier that year,

supported by a decision issued by the Fifth Circuit —

Texas, et al. v. United States, 809 F.3d 134 (5th Cir.

2015).

The Fifth Circuit upheld a nationwide

injunction in a multi-state challenge to President

It also prevented the new President from changing the policies

of the former President of the United States — who happened to

have been Judge Watson’s classmate at Harvard Law School, and

who had appointed Judge Watson to the federal bench in 2013.

See A. Burns, “From a Placid Judge, a Cutting Rejection of

Trump’s Travel Ban,” New York Times (Mar. 16, 2017).

Obama’s implementation of DAPA — the Deferred

Action for Parents of Americans and Lawful

Permanent Residents. However, Judge Watson failed

to point out that the district court injunction in the

Texas case was based on a finding of a violation of the

Administrative Procedure Act (“APA”), and its

directive to federal courts that a:

reviewing court shall ... hold unlawful and set

aside agency action ... found to be — (A)

arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law ... [or]

authority, or limitations, or short of statutory

right. [5 U.S.C. § 706(2) (emphasis added).]

The APA grant of authority to “set aside” empowers a

federal district court to “vacate” agency action that

violates APA and, once that occurs, the agency has no

authority to act otherwise anywhere in the nation. At

bottom, that statute does not authorize nationwide

injunctions, but rather authorizes federal courts to

vacate illegal agency action. In contrast, there was no

reliance on an APA violation or other comparable

congressional authority undergirding Judge Watson’s

global injunction in Hawaii.

C. The Ninth Circuit’s Modification of Judge

Watson’s Injunction Cured Nothing.

On appeal, the Government argued that the

injunction was overbroad, for a variety of reasons.

Hawaii v. Trump, 878 F.3d 662, 701 (9th Cir. 2017).

Reviewing the scope of the preliminary injunction only

for an abuse of discretion, the Ninth Circuit agreed

that:

a nationwide injunction was necessary to

give Plaintiffs a full expression of their

rights. [Id. at 701 (emphasis added).]

The Court never explained why the injunction could

not have been narrowed and still provide full relief to

the named plaintiffs, nor did it make clear what it

meant by “full expression.” It may be a reference to a

“politically correct” comment that appears never to

have been raised by the parties, but gratuitously

added by the appellate court:

The Proclamation also risks denying lesbian,

gay, bisexual, transgender, and queer

(“LGBTQ”) individuals in the United States

the opportunity to reunite with their partners

from the affected nations....

The public

interest is not served by denying LGBTQ

persons in the United States the ability to

safely bring their partners home to them. [Id.

at 701.]

The Ninth Circuit purported to modify the district

court injunction, commenting that “a nationwide

injunction is permissible [while] a worldwide

injunction as to all nationals of the affected countries

extends too broadly.” Id. at 701. By omitting

protection for foreign nationals who have no “credible

claim of a bona fide relationship with a person or

entity in the United States” (id. at 702), the Ninth

Circuit purported to “narrow the scope of the

preliminary injunction” but it in no way converted a

worldwide injunction into a nationwide injunction.

D. The Ninth Circuit’s Injunction Does Not

Arise from a Class Action.

The Ninth Circuit cited two cases as authority for

a nationwide injunction: Bresgal v. Brock, 843 F.2d

1163 (9th Cir. 1987), and Texas, et al. v. United States,

supra. The Ninth Circuit followed the lead of the

district court in ignoring entirely the APA issue ruled

upon in the Texas case, discussed supra. As for

Bresgal, the Ninth Circuit stated:

[A]n injunction is not necessarily made overbroad by extending benefit or protection to

persons other than prevailing parties in the

lawsuit — even if it is not a class action — if

such breadth is necessary to give prevailing

parties the relief to which they are entitled.

[Hawaii at 701, citing Bresgal at 1170.]

However, omitted from the Ninth Circuit’s quotation

from Bresgal was the sentence immediately preceding

the excerpt quoted:

Where relief can be structured on an

individual basis, it must be narrowly

tailored to remedy the specific harm

shown. Id. at 727. On the other hand ...

[Bresgal at 1170 (emphasis added).]

The only Supreme Court authority cited by the

Ninth Circuit to support its reliance on Bresgal was

Califano v. Yamasaki, 442 U.S. 682 (1979) — but that

case does not stand for the proposition for which it was

cited. To be sure, Yamasaki does contain one sentence

(bolded below) that some may claim supports the

authority of district courts to issue nationwide or even

worldwide injunctions. But it must be remembered

that Yamasaki was a case involving a class action

under Rule 23 — with the procedural protections

afforded by that Rule — a very different situation from

the case under review, which was not brought as a

class action:

Nothing in Rule 23, however, limits the

geographical scope of a class action that is

brought in conformity with that Rule. Since

the class here was certified in accordance with

Rule 23 (b)(2), the limitations on class size

associated with Rule 23 (b)(3) actions do not

apply directly. Nor is a nationwide class

inconsistent with principles of equity

jurisprudence, since the scope of injunctive

relief is dictated by the extent of the

violation established, not by the

geographical extent of the plaintiff class.

Dayton Board, 433 U.S., at 414-420. If a class

action is otherwise proper, and if jurisdiction

lies over the claims of the members of the

class, the fact that the class is nationwide in

scope does not necessarily mean that the relief

afforded the plaintiffs will be more

burdensome than necessary to redress the

complaining parties.

[Yamasaki at 702

(emphasis added).]

Although the Ninth Circuit also relied on another

of its own decisions, Zepeda v. INS, 753 F.2d 719 (9th

Cir. 1983), that decision undermines the case for

nationwide injunctive relief, making it even clearer

that such relief is insupportable:

We must vacate and remand, however,

because the scope of the injunction is too

broad. On remand, the injunction must be

limited to apply only to the individual

plaintiffs unless the district judge certifies a

class of plaintiffs.... A federal court may issue

an injunction if it has personal jurisdiction

over the parties and subject matter

jurisdiction over the claim; it may not

attempt to determine the rights of

persons not before the court. [Id. at 727

(citations omitted) (emphasis added).]

E. The Nationwide Injunction

United States v. Mendoza.

Violates

The Brief for Petitioners relies on United States v.

Mendoza, 464 U.S. 154 (1984), but space did not

permit it to do more than state the nub of its holding

— “rejecting application of nonmutual issue preclusion

against the government.” Pet. Br. at 75 (citing pages

160 and 162 of that decision).

In Mendoza, the Supreme Court reviewed a

decision of the Ninth Circuit which had affirmed a

district court judgment that the United States was

precluded from asserting a defense against an alien,

because that defense had been previously considered

and rejected in earlier litigation that did not involve

the same alien. This Court determined that the

United States was not restricted by collateral estoppel

from raising the defense to the suit by Mendoza, who

had not been involved in the earlier litigation. This

Court asserted several reasons for its decision,

including that applying “nonmutual offensive

collateral estoppel” would, in the eyes of this Court,

impede the development of competing views on

complex legal issues by freezing in place the first final

decision rendered on a particular legal issue. Mendoza

at 158. Justice Rehnquist explained:

We have long recognized that “the Government

is not in a position identical to that of a private

litigant” ... both because of the geographic

breadth of Government litigation and also,

most importantly, because of the nature of the

issues the Government litigates.... A rule

allowing nonmutual collateral estoppel against

the Government in such cases would

substantially thwart the development of

important questions of law by freezing the

first final decision rendered on a particular

legal issue.

Allowing only one final

adjudication would deprive this Court of

the benefit it receives from permitting

several courts of appeals to explore a

difficult question before this Court grants

certiorari. [Mendoza at 159-60 (citations

omitted) (emphasis added).]26

In his Mendoza decision, Justice Rehnquist cited Califano v.

Yamasaki, supra, signaling that he understood Mendoza to be

By extending its injunction nationwide, the Ninth

Circuit deprived this court of the benefit of multiple,

different appellate court decisions.

F. The Nationwide Injunction Below

Exceeded the Judicial Power of the

United States.

Article III, Section 2 provides that “[t]he judicial

Power shall extend to all Cases, in Law and Equity

[and] to Controversies to which the United States shall

be a Party...”

Madison’s Notes taken at the

Constitutional Convention indicate that the power of

the judiciary was “limited to cases of a Judiciary

Nature,”27 not a political nature. See Marbury v.

Madison, 5 U.S. 137, 163-67 (1803). This Court has

long recognized that judicial power is “‘the power of a

court to decide and pronounce a judgment and carry it

into effect between persons and parties who bring

a case before it for decision.’” Muskrat v. United

States, 219 U.S. 346, 356 (1911) (emphasis added).

“[N]o principle is more fundamental to the judiciary’s

proper role in our system of government than the

constitutional limitation of federal-court jurisdiction to

actual cases or controversies.” DaimlerChrysler Corp.

v. Cuno, 547 U.S. 332, 341 (2006). Cases and

controversies are disputes between litigants, and it is

the very nature of the judicial power to resolve

disputes between parties, rather than to make laws of

comparable with that decision rendered just five years before.

J. Madison, The Debates in the Federal Convention of 1787,

Aug. 27, 1787.

general applicability, which has the attributes of the

exercise of a legislative power vested in Congress, or

perhaps a power delegated to the Executive, but

certainly not a judicial power.

The injunction approved by the Ninth Circuit was

not limited to a resolution between the parties as it

should have been. Injunctions, under Rule 65 of the

Federal Rules of Civil Procedure, affect “the parties;

the parties’ officers, agents, servants, employees, and

attorneys; and other persons who are in active concert

or participation” with them if they have received

“actual notice” of the injunction. The injunction below

exceeded the scope of Rule 65, granting relief to

nonparties who had no involvement whatsoever in the

litigation. And, it impaired the ability of the President

to carry out the important responsibilities entrusted to

him by the Constitution and the laws of the land. As

this Court has stated: “‘injunctive relief should be no

more burdensome to the defendant than necessary to

provide complete relief to the plaintiffs.’” Madsen v.

Women’s Health Ctr., Inc., 512 U.S. 753, 765 (1994).

Injunctions which compel government action with

respect to nonparties violate this principle.

It could be said that nationwide injunctions issued

by courts in class action litigation give relief to

nonparties, but that relief is given pursuant to

numerous protections afforded by federal law and the

Federal Rules of Civil Procedure. It could be said that

striking down a regulation issued by an unelected

bureaucrat for failure to abide by the Administrative

Procedure Act has a similar effect to a nationwide

injunction, but at least the Court there acts pursuant

to an express congressional authorization. See Section

III.B., supra. Neither situation is comparable to or

provides authority for the type of injunctions issued

below, which do not resolve cases and controversies

between litigants, but rather allow judges to usurp the

powers of the President of the United States.

Allowing the lower federal courts to enjoy such

free-wheeling authority to trump the political decisions

of the President provides a compelling incentive to

forum shop and find that one district court judge,

situated in a friendly circuit, who most assuredly

would agree with the policy position of the plaintiff.

And, lastly, if such federal court injunctions are

seen by a President of the United States as a political

act designed to impede the exercise of his lawful

authority to protect the nation, it certainly would bring

closer the day that this or another president will

simply refuse to give effect to a court order, based on

the sound principles discussed infra. A presidential

decision to choose to lawfully protect the nation rather

than to obey an unlawful court order might well lead

to the unraveling of the insupportable claim of the

Supreme Court to supremacy first embraced in Cooper

v. Aaron, 358 U.S. 1 (1958), and re-establish the

historic rule that each branch of government has its

own independent duty to follow the Constitution, as

each perceives that duty. During the Founding Era,

and well into the history of our country, “[t]he

decisions ... of courts [were] held in the highest

regard,” but as Blackstone warned, they were not

“law” themselves, but only “evidence” of law, “[s]o that

the law, and the opinion of the judge are not always

convertible terms, or one and the same thing; since it

sometimes may happen that the judge may mistake

the law.”

I Blackstone’s Commentaries at 71

(emphasis original). Lastly, it is instructive to review

the words of Alexander Hamilton in Federalist 78,

concluding that the judiciary has “neither force nor

will, but merely judgment; and must ultimately

depend upon the aid of the executive arm even for the

efficacy of its judgments.” Courts should never be

entirely certain that their orders will be followed,

unless they are persuasive exercises of judgment, and

not acts of political will.

CONCLUSION

For the foregoing reasons, the decisions of the

Ninth and Fourth Circuits should be reversed.

Respectfully submitted,

JOSEPH W. MILLER

RESTORING LIBERTY

ACTION COMMITTEE

P.O. Box 83440

Fairbanks, AK 99708

Attorney for Amicus Curiae

RLAC

*Counsel of Record

February 28, 2018

WILLIAM J. OLSON*

HERBERT W. TITUS

ROBERT J. OLSON

JEREMIAH L. MORGAN

WILLIAM J. OLSON, P.C.

370 Maple Ave. W., Ste. 4

Vienna, VA 22180

(703) 356-5070

wjo@mindspring.com

Attorneys for Amici Curiae

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.