Amicus Curiae Brief — James R. McHenry, III, Acting Attorney General, et al., Applicants v. Texas Top Cop Shop, Incorporated, et al.

No. 24A653

IN THE

Supreme Court of the United States

————————————————

MERRICK GARLAND, ATTORNEY GENERAL, ET AL.,

Applicants,

v.

TEXAS TOP COP SHOP, INCORPORATED, ET AL.

————————————————

On Application for a Stay of the Injunction Issued by the United States District

Court for the Eastern District of Texas

————————————————

BRIEF OF AMICUS CURIAE EAGLE FORUM EDUCATION &

LEGAL DEFENSE FUND IN OPPOSITION TO THE APPLICATION

————————————————

ANDREW L. SCHLAFLY

Attorney at Law

939 Old Chester Rd.

Far Hills, NJ 07931

(908) 719-8608

aschlafly@aol.com

Counsel for Amicus Curiae

Eagle Forum Education &

Legal Defense Fund

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002

TABLE OF CONTENTS

Pages

Table of Contents ........................................................................................................... ii

Table of Authorities ...................................................................................................... iii

Interest of Amicus Curiae ............................................................................................. 1

Summary of Argument .................................................................................................. 1

Argument ....................................................................................................................... 2

I.

The District Court Found Irreparable Harm to First and Fourth

Amendment Rights, which the Application Mischaracterizes and

Waives any Objection to. ...................................................................................... 2

II.

The Government Misstates the Legal Standard Here, and then

Fails to Satisfy It. ................................................................................................. 3

III.

The CTA and Its Rule Violate the First Amendment. ........................................ 4

IV.

The CTA and Its Rule Violate the Fourth Amendment. ..................................... 7

V.

The Government’s Speculation about Foreign Opinions of the United

States Does Not Justify the CTA and Its Rule. ................................................... 9

VI.

The Boilerplate Invocation of “Money Laundering” and “Financing of

Terrorism” Is Too Conclusory and Superficial to Warrant any Judicial

Deference. ........................................................................................................... 10

VII. The Nationwide Scope of Plaintiffs’ Proposed Injunction Is Proper. ............... 12

VIII. This Use of the Shadow Docket by the Government Should Be

Rejected, as There Is No Emergency Here. ....................................................... 13

Conclusion .................................................................................................................... 14

ii

TABLE OF AUTHORITIES

Pages

Cases

Ashcroft v. Iqbal, 556 U.S. 662 (2009) ................................................................................. 11

Book People, Inc. v. Wong, 91 F.4th 318 (5th Cir. 2024) .............................................. 3

Brown v. Texas, 443 U.S. 47 (1979)............................................................................... 7

Cal. Bankers Ass’n v. Shultz, 416 U.S. 21 (1974) ..................................................... 8, 9

Compasscare v. Hochul, Nos. 22-951-cv (L), 22-1076-cv,

2025 U.S. App. LEXIS 6 (2d Cir. Jan. 2, 2025) ......................................................4, 5

Elhady v. Kable, 993 F.3d 208 (4th Cir. 2021).................................................................... 11

Elrod v. Burns, 427 U. S. 347 (1976) ........................................................................... 6

Roberts v. U.S. Jaycees, 468 U.S. 609 (1984) .........................................................................5

Roman Catholic Diocese v. Cuomo, 592 U.S. 14 (2020) ................................................ 6

Rostker v. Goldberg, 448 U.S. 1306 (Brennan, J., in chambers) ......................................3, 4

Trump v. Hawaii, 585 U.S. 667 (2018) ....................................................................... 13

Trump v. Mazars USA, 591 U.S. 848 (2020) .............................................................. 11

United States v. Lopez, 514 U.S. 549 (1995) ..........................................................................2

United States v. Morrison, 529 U.S. 598 (2000) ....................................................... 1, 4

Statutes, Rules, and Legislative History

18 U.S.C. § 922(g)(1) ...................................................................................................... 6

26 U.S.C. § 527(a) .....................................................................................................................5

26 U.S.C. § 527(e)(1).................................................................................................................5

31 U.S.C. § 5336(a)(11)(B)(xix)(II) ..........................................................................................5

31 U.S.C. § 5336(b)(2)(A)(iii) ..................................................................................... 2, 7

Violence Against Women Act of 1994, § 40302, 108 Stat. 1941-1942 .......................... 1

31 C.F.R. § 1010.380(b)(1)(ii)(C)................................................................................ 2, 7

“Beneficial Ownership Information Reporting Requirements,”

87 Fed. Reg. 59498 (Sept. 30, 2022)

(codified at 31 C.F.R. pt. 1010) ........................................................................... 4

Customer Due Diligence (CDD) Rule,

81 Fed. Reg. 29398 (May 11, 2016) .................................................................. 11

iii

108 Cong. Rec. 17666 (1962) (daily ed. Aug. 27, 1962)................................................. 7

Other

“Editorial: Real ID was supposed to make air travel safer 15 years ago. America is

still waiting,” Chicago Tribune (Jan. 4, 2023)

https://www.chicagotribune.com/2023/01/04/editorial-real-id-wassupposed-to-make-air-travel-safer-15-years-ago-america-is-still-waiting/ .... 14

Andres Fernandez, et al., “FinCEN Reference Guide Clarifies Beneficial

Ownership Reporting Requirements,” Holland & Knight Alert

(July 31, 2024)

https://tinyurl.com/yjdbnh2v ............................................................................ 12

Alexis de Tocqueville, Democracy in America (London: 1835)

https://gutenberg.org/files/815/815-h/815-h.htm................................................ 6

Nadine Yousif and Joe Tidy, “US Treasury says it was hacked by China in

‘major incident,’” BBC (Dec. 31, 2024)

https://www.bbc.com/news/articles/c3weye2j0e7o ............................................. 9

iv

INTEREST OF AMICUS CURIAE1

Amicus curiae Eagle Forum Education & Legal Defense Fund (“Eagle Forum

ELDF”) was founded in 1981 by Phyllis Schlafly, and for more than two decades has

filed many appellate amicus briefs in federal and state courts. Eagle Forum ELDF

has long advocated against power grabs by the federal government at the expense of

individual rights, and in support of the sovereign authority of states. For example,

Eagle Forum ELDF as represented by Phyllis Schlafly filed an amicus brief in the

landmark case of United States v. Morrison, 529 U.S. 598 (2000), successfully

urging the U.S. Supreme Court to invalidate a provision in the Violence Against

Women Act of 1994, § 40302, 108 Stat. 1941-1942, as beyond congressional

authority. Eagle Forum ELDF has a strong interest in opposing overreach by the

federal government’s infringement on individual rights as presented here.

SUMMARY OF ARGUMENT

The government’s Application unfortunately mischaracterizes the district court

decision below, distorts the legal standard for review here, relies on speculation about

foreign opinion, and ignores that the protection of First Amendment associative rights

and Fourth Amendment privacy rights requires a nationwide injunction. The

government exploits the shadow docket to seek an unwarranted presumption its favor.

The government further misstates that the Corporate Transparency Act (CTA) is

inapplicable to any tax-exempt political organizations (App. 7 n.1), when it does apply.

1 Pursuant to Rule 37.6, counsel for amicus curiae authored this brief in whole, no counsel for a party

authored this brief in whole or in part, and no such counsel or a party made a monetary contribution

intended to fund the preparation or submission of this brief. No person or entity – other than amicus,

its members, and its counsel – contributed monetarily to the preparation or submission of this brief.

1

The CTA and its implementing regulation infringe on constitutionally protected

associative activities, by creating a new federal power police power for monitoring,

investigating, and potentially prosecuting 32.6 million Americans with a penalty of two

years’ incarceration. This Court has never sided with a broad federal police power

before, and should not do so here. See, e.g., United States v. Lopez, 514 U.S. 549, 564

(1995) (rejecting “a general federal police power”).

First Amendment associative rights are chilled and infringed by this sweeping

new reporting requirement, as it burdens ordinary associations for political, religious,

civic, and many other lawful purposes. As to the Fourth Amendment, clear precedents

of this Court stand against this extensive infringement, including this Court banning a

general police power to require identification. For those who seek to keep their home

addresses private, FinCEN has gone further than the CTA by requiring disclosure of

this and other highly personal information. Compare 31 C.F.R. § 1010.380(b)(1)(ii)(C)

with 31 U.S.C. § 5336(b)(2)(A)(iii). The burdensome intrusion at issue here improperly

deters many from volunteering to lead or perform management duties for local entities.

ARGUMENT

I.

The District Court Found Irreparable Harm to First and Fourth

Amendment Rights, which the Application Mischaracterizes and

Waives any Objection to.

The district court’s injunction expressly found that irreparable harm would occur

if the CTA and its implementing regulation were to take full effect:

[I]f Plaintiffs must comply with an unconstitutional law, the bell has been

rung. Absent injunctive relief, come January 2, 2025, Plaintiffs would have

disclosed the information they seek to keep private under the First and Fourth

Amendments …. Independent of the specter of compliance costs on the horizon,

2

Plaintiffs have met their burden to show the threat of irreparable harm because

the CTA and Reporting Rule substantially threaten their constitutional rights.

(App. 49a-50a, relying on the First Amendment precedent in Book People, Inc. v.

Wong, 91 F.4th 318, 340 (5th Cir. 2024)). When the district court later mentioned

that it was unnecessary to reach First and Fourth Amendment issues, that was

merely in the context of discussing the likelihood of success on the merits (App. 91a)

and only after it had already found irreparable harm on these grounds.

Despite this clear holding by the district court, the government ignores it here

and instead states that “the court found it unnecessary to address respondents’ First

and Fourth Amendment claims.” (App. 7, citing App. 91a.) Yet implicit in the district

court’s finding of irreparable harm to First and Fourth Amendment rights is that

plaintiffs have a substantial likelihood of prevailing on these claims. The district court

also found that the CTA exceeded the enumerated powers of Congress, such that it was

unnecessary to delve further into the individual rights at stake. The government fails to

address – and thereby waives – this central issue of infringement on individual rights.

II.

The Government Misstates the Legal Standard Here, and then

Fails to Satisfy It.

The proper standard of review is set forth in Justice Brennan’s chambers’ opinion

in the landmark Rostker v. Goldberg case, which the government cites but then failed to

apply:

[A] four-part showing [must be] made. First, it must be established that there is a

“reasonable probability” that four Justices will consider the issue sufficiently

meritorious to grant certiorari or to note probable jurisdiction. Second, the

applicant must persuade me that there is a fair prospect that a majority of the

Court will conclude that the decision below was erroneous. … Third, there must

be a demonstration that irreparable harm is likely to result from the denial of a

3

stay. And fourth, in a close case it may be appropriate to “balance the equities” –

to explore the relative harms to applicant and respondent, as well as the interests

of the public at large.

Rostker v. Goldberg, 448 U.S. 1306, 1308 (Brennan, J., in chambers, inner citations

omitted).

The government’s Application falls far short of its burden on these elements of

the required standard, and instead misstates the standard as a “presumption of

constitutionality” in favor of the government without ever addressing the elements in

depth substantively. The government inexplicably relies heavily on dicta in United

States v. Morrison, 529 U.S. 598 (2000) (cited by App. 11, 12), where this Court

struck down a federal provision as unconstitutional: “Congress’ effort in § 13981 to

provide a federal civil remedy can be sustained neither under the Commerce Clause

nor under § 5 of the Fourteenth Amendment.” Id. at 627.

III.

The CTA and Its Rule Violate the First Amendment.

Freedom of association as a First Amendment right is well-established by this

Court, and was recently summarized and applied by the Second Circuit to rule in favor

of pro-life groups and a Baptist church that asserted it. See Compasscare v. Hochul,

Nos. 22-951-cv (L), 22-1076-cv, 2025 U.S. App. LEXIS 6, at *12-23 (2d Cir. Jan. 2, 2025)

(Merriam, J.) The CTA and its Rule burden this right by requiring 32.6 million

Americans to disclose with whom they associate, along with their personal information,

to the federal government for law enforcement purposes, including investigation and

prosecution. “Beneficial Ownership Information Reporting Requirements,” 87 Fed. Reg.

59498 (Sept. 30, 2022) (codified at 31 C.F.R. pt. 1010) (the “Rule”).

4

Judge Merriam explained as follows on behalf of the Second Circuit earlier this

month: “The Supreme Court has made clear that the right to engage in activities

protected by the First Amendment includes an implicit ‘right to associate with others in

pursuit of a wide variety of political, social, economic, educational, religious, and

cultural ends.’” Compasscare v. Hochul, 2025 U.S. App. LEXIS 6, at *12 (quoting

Roberts v. U.S. Jaycees, 468 U.S. 609, 622 (1984)). Any chilling or other type of

infringement on this right triggers application of strict scrutiny and a requirement that

the law be narrowly tailored to legitimate ends. The CTA and its Rule completely fail

this test.

The government misstates in its Application that “[t]he CTA’s reporting

requirements do not apply to tax-exempt political organizations.” (App. 7 n.1, citing 31

U.S.C. § 5336(a)(11)(B)(xix)(II)). As the government’s own cited provision expressly

states, the political exemption applies only to a type of “political organization (as defined

in section 527(e)(1) of such Code [26 USCS § 527(e)(1)]) that is exempt from tax under

section 527(a) of such Code [26 USCS § 527(a)].” Id. Local political organizations formed

to support or oppose ballot initiatives are an example of entities that do not qualify for

this exemption. Yet this political organizing is a core First Amendment right, and the

CTA and its Rule cannot possibly survive the exacting standard of strict scrutiny. The

injunction below was expressly based on its finding of irreparable harm to First

Amendment rights, which the government has not contested on appeal.

Associations have been a foundation of American prosperity and happiness since

at least the days of Alexis de Tocqueville, who observed that “[i]n no country in the

5

world has the principle of association been more successfully used, or more

unsparingly applied to a multitude of different objects, than in America.” Alexis de

Tocqueville, Democracy in America, Chapter XII (London: 1835).2 Moreover, “‘[t]he

loss of First Amendment freedoms, for even minimal periods of time,

unquestionably constitutes irreparable injury.’” Roman Catholic Diocese v. Cuomo,

592 U.S. 14, 19 (2020) (quoting Elrod v. Burns, 427 U. S. 347, 373 (1976) (plurality

opinion)). If this Court stays the injunction, then 32.6 million Americans would

suddenly be required to disclose their private, personal information to FinCEN,

under threat of imprisonment of two years if they decline or fail to report. This

constitutes an infringement on their core First Amendment rights.

In addition, the roughly 100 million Americans who cherish their Second

Amendment rights are deterred by the CTA from associating locally, because a CTA

reporting violation can cause a loss in Second Amendment rights. A frequently

prosecuted statute is 18 U.S.C. § 922(g)(1), which renders gun possession unlawful

by anyone convicted of a crime punishable by imprisonment for more than one year,

as the CTA imposes. FinCEN, or merely a teenage computer hacker, could easily

compare the CTA-generated database to the public information made available by

each state about who are directors of small local organizations, and the millions of

Americans who do not report to FinCEN would suddenly be exposed as criminals

under the CTA. The burden of CTA compliance is not merely time and money,

2 https://gutenberg.org/files/815/815-h/815-h.htm (viewed Jan. 5, 2025).

6

where are significant enough, but also the cost of being branded a criminal to be

deprived of gun rights. Fewer would volunteer locally amid that risk.

IV.

The CTA and Its Rule Violate the Fourth Amendment.

The CTA unjustifiably treats millions of Americans who are involved in

beneficial local associations like a criminal suspect by requiring disclosure of highly

personal information for the purpose of law enforcement, without any reasonable basis

or a warrant. The Rule goes even further than the CTA requires, by compelling

disclosure of home addresses to FinCEN. Compare 31 C.F.R. § 1010.380(b)(1)(ii)(C) with

31 U.S.C. § 5336(b)(2)(A)(iii).

This Court held in Brown v. Texas against allowing a generalized demand for

identification, which is conceptually identical to the FinCEN requirement:

Even assuming that [a valid] purpose is served to some degree by stopping and

demanding identification from an individual without any specific basis for

believing he is involved in criminal activity, the guarantees of the Fourth

Amendment do not allow it.

443 U.S. 47, 52 (1979). The CTA requires what Brown prohibits: a sweepingly broad

demand for personal identification, for federal law enforcement purposes, of millions of

Americans who have not done anything wrong.

In the current political climate of swatting and even the assassination of a

private citizen, such as the United Healthcare CEO, having to disclose one’s home

address is a deterrent for millions of prominent, controversial or outspoken Americans

as a condition of volunteering with local organizations. Even slight burdens can deter

volunteer activities, just as even the slightest of poll taxes is unconstitutional. See, e.g.,

108 Cong. Rec. 17666 (1962) (daily ed. Aug. 27, 1962) (“While the amount of the poll tax

7

now required is small, there should not be any price tag or any kind of tax on the right

to vote.”) (statement Representative Edward Boland of Massachusetts about the 24th

Amendment, as echoed by other congressmen).

The federal obligation for banks to report information about large cash

transactions was upheld by this Court in an easily distinguishable decision. Cal.

Bankers Ass’n v. Shultz, 416 U.S. 21 (1974). The obligation in Shultz was upheld

against banks, not individuals, and was narrowly tailored to certain transactional

information having a “high degree of usefulness in criminal, tax, or regulatory

investigations or proceedings.” Id. at 26 (emphasis added). Moreover, in addition to

three blistering dissents, the concurrence by Justice Powell in Shultz, as joined by

Blackmun, stated their opposition to a broader reporting requirement:

A significant extension of the regulations’ reporting requirements, however, would

pose substantial and difficult constitutional questions for me. … At some point,

governmental intrusion upon these areas would implicate legitimate expectations

of privacy. Moreover, the potential for abuse is particularly acute where, as here,

the legislative scheme permits access to this information without invocation of the

judicial process. In such instances, the important responsibility for balancing

societal and individual interests is left to unreviewed executive discretion, rather

than the scrutiny of a neutral magistrate.

Id. at 78-79 (Powell, J., concurring).

The CTA extends broadly and demands intrusive reporting obligations by

ordinary law-abiding Americans about their local associative, sometimes political or

religious, entities without any “high degree of usefulness” for any legitimate law

enforcement by government, and without any protection by a neutral magistrate. As

Justice Douglas dissented in Shultz, “Where fundamental personal rights are involved –

as is true when as here the Government gets large access to one’s beliefs, ideas, politics,

8

religion, cultural concerns, and the like – the Act should be ‘narrowly drawn’ to meet

the precise evil.” Id. at 85-86 (Douglas, J., dissenting, citation omitted). The CTA is not

narrowly tailored as required.

No one would be surprised if the personal information gathered by FinCEN were

hacked into and ultimately posted on the internet. As explained last week by the BBC:

Chinese state-sponsored hackers broke into the US Treasury Department’s

systems earlier this month and were able to access employee workstations and

some unclassified documents, American officials have said.

The Treasury Department deemed the breach a “major incident” after disclosing

it via a letter notifying lawmakers to the incident. …

China denied any involvement, calling the accusation “baseless” and saying it

“consistently opposes all forms of hacking.”3

Promises of confidentiality in a government database, while the government pledges to

share it widely as FinCEN will, are not reassuring.

V.

The Government’s Speculation about Foreign Opinions of the

United States Does Not Justify the CTA and Its Rule.

Going beyond reliance on foreign law as a basis for decisions about the U.S.

Constitution, which is widely criticized, the government speculates here about foreign

opinions of the United States concerning the injunction as a reason for this Court to

issue a stay. (App. 29) The government insists that “the injunction undermines the

United States’ credibility among other nations and impairs our ability to push other

3 Nadine Yousif and Joe Tidy, “US Treasury says it was hacked by China in ‘major incident,’” BBC

(Dec. 31, 2024), https://www.bbc.com/news/articles/c3weye2j0e7o (viewed Jan. 5, 2025). China’s

adamant denial of the accusation is noteworthy; computer hackers frequently utilize foreign proxy IP

addresses to mask their own geographic location, and it is unclear how the federal government could

confidently know the true geographic origin of such a hack against the Treasury Department.

9

countries to reform their anti-money laundering and counterterrorism regimes.” (Id.,

inner quotations omitted)

Our constitutional rights do not properly hinge on speculation about how

foreigners may perceive us, or on a desire to “push other countries” towards adopting

certain policies for themselves. Other countries, like China as displayed in a map linked

to by the government (App. 29a), do not recognize constitutional rights and thus it is

unsurprising that other countries may impose centralized, even tyrannical, monitoring

of associative conduct. Foreign countries lack the structure of federalism that the

United States has. A goal of pushing other countries toward certain policies is not a

justification for infringing on constitutional rights here. Something more – far more –

than unfounded speculation about foreign opinions concerning the credibility of the

United States is needed before infringing on constitutional rights domestically.

VI.

The Boilerplate Invocation of “Money Laundering” and

“Financing of Terrorism” Is Too Conclusory and Superficial to

Warrant any Judicial Deference.

One of the worst-kept secrets in D.C. is to assert purported national security

concerns, such as supposedly combatting terrorism, as a pretextual justification for

vastly expanding federal prosecutorial power. As observed by the U.S. Court of Appeals

for the Fourth Circuit:

Of course, courts must not uncritically defer to such national security claims.

Otherwise, national security will become a talisman summoned by the

government to avoid scrutiny of infringements of constitutional rights. … The very

breadth of the term “national security” can make it an unduly tempting

explanation for dubious actions that have little or no connection to national

security at all.

10

Elhady v. Kable, 993 F.3d 208, 228 (4th Cir. 2021) (emphasis added). Indeed, this Court

rejected similar pretextual reasons by the House of Representatives for attempting to

enforce a subpoena for Trump family banking records in Trump v. Mazars USA, 591

U.S. 848 (2020).

Yet the government here relies on boilerplate, conclusory assertions about

“money laundering” (stated 18 times in the Application) and “terrorism” (8 times) that

would not even survive a motion to dismiss under the permissive standard for

evaluating allegations in a complaint. See, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 679

(2009) (“only a complaint that states a plausible claim for relief survives a motion to

dismiss”). When the congressional justifications for a vast increase in federal power are

no more substantive than what could have been written by Capitol Hill summer intern

or generated by an AI program, then judicial deference is unwarranted to the superficial

assertions.

The federal government has long had adequate, even powerful tools to track

financial transfers that might constitute money laundering or the financing of

terrorism, without unnecessarily burdening and infringing on the rights of 32.6

million law-abiding Americans. The existing Customer Due Diligence (CDD)

regulation, 81 Fed. Reg. 29398 (May 11, 2016), requires those who process financial

transactions to collect all the information the government legitimately needs: “With

respect to the information that the CDD and the CTA collect about entities, the

11

information is generally the same, with minor variances.”4 The CTA adds

nothing beneficial, while infringing on constitutional rights.

The government’s examples of possibly beneficial applications of the CTA to

reduce crime are to Russian and Iranian nationals who could simply be prohibited

by an executive order from setting up companies in the United States, or be tracked

through the CDD. (App. 27) It is unjustified to burden, punish, and infringe on the

constitutional rights of law-abiding millions of American citizens to address isolated

foreigner misconduct.

VII.

The Nationwide Scope of Plaintiffs’ Proposed Injunction Is

Proper.

The First Amendment freedom of association requires protecting the rights of

others to associate with a plaintiff who asserts this right. A plaintiff cannot exercise

his freedom to associate without others having the freedom to associate with him.

Limiting the injunction to plaintiffs’ rights to associate would be like ruling in favor

an audience’s right to applaud as long as they use only one of their hands to do so.

Plaintiffs are nationwide in geographic scope and membership, and thus the

injunction to protect the First Amendment associative rights at stake here must be

nationwide too. It is no remedy to protect the rights of nationwide plaintiffs to associate

when no one else has an uninfringed right to associate with them. “The District Court

did not abuse its discretion by granting nationwide relief. Given the nature of

the Establishment Clause violation and the unique circumstances of this case, the

Andres Fernandez, et al., “FinCEN Reference Guide Clarifies Beneficial Ownership Reporting

Requirements,” Holland & Knight Alert (July 31, 2024)

https://tinyurl.com/yjdbnh2v (emphasis added, viewed Jan. 8, 2025).

4

12

imposition of a nationwide injunction was “necessary to provide complete relief to the

plaintiffs.” Trump v. Hawaii, 585 U.S. 667, 751 n.13 (2018) (Sotomayor, J., dissenting,

inner quotation and citation omitted).

The government laments that foreigners are protected by the injunction, too, as

though that presents a special risk. (App. 33) But the government is being

disingenuous, as the Application does not seek relief of being allowed to impose the CTA

and the Rule against foreigners specifically. (App. 39) Without requesting this specific

relief, the government is making a strawman argument about enforceability against

foreigners.

VIII. This Use of the Shadow Docket by the Government Should Be

Rejected, as There Is No Emergency Here.

Faced with grave issues of infringement on First and Fourth Amendment

rights awaiting orderly litigation and resolution below, the government is

unjustified in rushing onto the shadow docket to insist on a preferential standard of

review that would largely moot this lawsuit in its favor. There should never be a

presumption in favor of infringing on First and Fourth Amendment rights. A procedural

tactic to feign an emergency when there is none, in order to moot a constitutional

dispute, should be criticized and rejected by this Court.

Delay is commonplace in implementing new, in this case unusual, government

requirements, and its claim of urgency here is pretextual. For example, the REAL ID

Act was enacted by Congress in 2005 in response to 9/11, to require more secure

identification by air travelers. It was set to take effect in 2008, which was nearly 20

years ago. The federal government has repeatedly postponed its effective date such

13

that it is not currently scheduled to go into effect until May 7, 2025. See “Editorial:

Real ID was supposed to make air travel safer 15 years ago. America is still

waiting,” Chicago Tribune (Jan. 4, 2023).5 Given that the screening for terrorists on

airplanes by requiring a secure ID is not an emergency, the government’s attempt

here to collect personal information before the constitutional issues can be litigated

below is not a genuine emergency either.

CONCLUSION

The Application for a stay of the injunction should be denied.

Respectfully submitted,

ANDREW L. SCHLAFLY

Attorney at Law

939 Old Chester Rd.

Far Hills, NJ 07931

Phone: (908) 719-8608

Fax: (908) 934-9207

Email: aschlafly@aol.com

Dated: January 9, 2025

Counsel for Amicus Curiae Eagle Forum

Education & Legal Defense Fund

5 https://www.chicagotribune.com/2023/01/04/editorial-real-id-was-supposed-to-make-air-travel-safer-

15-years-ago-america-is-still-waiting/ (viewed Jan. 8, 2025).

14