# Amicus Curiae Brief — Trump v. Int'l Refugee Assistance Project, 138 S. Ct. 50 (2017) (No. 16-1436)

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0753%3A009

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2017

## Text

| Style: ai, us
FILED

JUN -9 2017

OFFICE OF THE CLERK
—

Nos. 16-1436, 16A1190

Bn the
Supreme Court of the United States

DONALD J. TRUMP, PRESIDENT OF THE
UNITED STATES, ET AL., Petitioners,

—y

v.

INTERNATIONAL REFUGEE ASSISTANCE
PROJECT, ET AL., Respondents.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR «HE FOURTH CIRCUIT

UNOPPOSED MOTION FOR LEAVE AND BRIEF
OF AMICUS CURIAE AMERICAN CENTER FOR
LAW AND JUSTICE IN SUPPORT OF
PETITIONERS’ STAY APPLICATION AND
CERTIORARI PETITION

EDWARD L. WHITE III

ERIK M. ZIMMERMAN

AMERICAN CENTER FOR LAW
AND JUSTICE

3001 Plymouth Rd., Ste. 203

Ann Arbor, MI 48105

FRANCIS J. MANION

GEOFFREY R. SURTEES

AMERICAN CENTER FOR LAW
AND JUSTICE

6375 New Hope Rd.

New Hope, KY 40052

Counsel for amicus curiae

JAY ALAN SEKULOW
Counsel of Record
STUART J. ROTH
COLBY M. MAY
ANDRE’¥ J. EKONOMOU
JORDAN SEKULOW
CRAIG L. PARSHALL
MATTHEW R. CLARK
BENJAMIN P. SISNEY
AMERICAN CENTER FOR LAW
AND JUSTICE
201 Maryland Ave., NE
Washington, DC 20002
Tel.: 202-546-8890
Email: sekulow@aclj.org

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TABLE OF CONTENTS

UNOPPOSED MOTION FOR LEAVE TO
FILE BRIEF IN SUPPORT OF STAY
APPLICATION AND CERTIORARI PETITION...... ]

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I iis ogi Sis Nath osegiiinas daviadichachicunpanemiinine weiner 2

I. The Fourth Circuit’s decision conflicts
with this Court’s precedent because it
failed to review the Executive Order
under the deferential standards
applicable to the immigration
policymaking and enforcement decisions
of the political branches, which the
I des ebeiantnniaseveseers 2

A. Judicial review of the immigration-
related actions of the political
I ir III istic cesddssestcnsassiossecsones 3

B. The Executive Order is constitutional
under this Court’s deferential
standards applicable to constitutional
challenges to the political branches’
immigration-related actions...................60..06: 5

Il. The Executive Order is constitutional
even under a traditional Establishment

NE STE RESTS LONE, ST 7

IED iin iAiciscinidisimanccsvesssseutinitenverscustbantersetions 15

i]
TABLE OF AUTHORITIES

Supreme Court Cases

Bd. of Educ. v. Mergens,

SD UE. SE Ee iivcciensencetsicn.ck ene 1,12
Bowen v. Kendrick,

Ge TI, Pe i incwecvevencisusistissindhainiua 14
Clinton v. Jones,

Fee CAB Ge CED vtevececcnvicesisianathciscaessanuede 12
Edwards v. Aguillard,

GS WF. Be Ce cvecsocecenansasonastiattddaaantackmanee 13
FEC v. Wisc. Right to Life,

ae _, , RTT Remi erie 1
Fiallo v. Bell,

Se SA Fe Ce Oe ves vnccsitienteiidin bee 3, 6, 7
Harisiades v. Shaughnessy,

ED ie ET CE aniicesncocsnnsecainesdtieaaemmcumnia 4
Kennedy v. Mendoza-Martinez,

UE CF UN Ci tsccectcnsnnacocssseorseeeieeesceaen 4
Kerry v. Din,

BO Bes CR, RT Ge vvcccceceesticdiskecicincccascnan 6
Kleindienst v. Mandel,

SF Rs FT CR FID steep essnccssreinsiciniinaemmeaia 5, 6, 7

il}

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

I ME ED os sv cncccccnsaseseseuceoceuessensces l
Landon v. Plasencia,

a scpsbncesecncssine 3, 4
Lemon v. Kurtzman,

I I I BD so .cnccesscssccececcecencessenen 8. 10. 14
Lynch v. Donnelly,

SE 14
McConnell v. FEC,

i cesigueecones 1
McCreary Cnty. v. ACLU,

SN IIE... sc cancceccecccsscncccccnces 10, 11, 12
Mueller v. Allen,

a sen csumboennonee 12

Pleasant Grove v. Summum,
Nee TT cc sccessuesceucneen I

Republican Party of Minn. v. White,

a sca usenesenesswcnssoes 12
Shaughnessy v. United States ex rel. Mezei,

ss cca panic sesbsencooncouves eee 3
United States v. Texas,

Ss savenebaneness 1
Wallace v. Jaffree,

Nn . cnconsarasnseacson 13

iV

Youngstown Sheet & Tube Co. v. Sawyer,
EE CC: III cc shicencncetundcodiehecnstbnaadindventevadians 4

Zivotofsky ex rel. Zivotofsky v. Kerry,
I i laa 4

Other Cases

ACLU of Ky. v. Rowan Cnty.,
513 F. Supp. 2d 889 (E.D. Ky. 2007).................. 11

ACLU of N.J. v. Schundler,
af | fo 4 | omer 10

Int'l Refugee Assistance Project v. Trump,
2017 U.S. App. LEXIS 9109 (4th Cir. 2017)........ 2

Rajah v. Mukasey,
544 F.3d 437 (2d Cir. 2006) ........0..0-ccccccessecceee. 8, 9

Roark v. S. Iron R-1 Sch. Dist.,
578 F.3d 656 (8th Cir. 2009)............................... 10

Sarsour v. Trump,
2017 U.S. Dist. LEXIS 43596 (E.D. Va. 2017)... 10

Washington v. Trump,
847 F.3d 1151 (9th Cir. 2017)...................0...0088 1,2

Washington v. Trump,
ca Te CUE I SINE Wiccan scioriestasaseiinesiiinainionten 7

\

Constitutions, Statutes, Executive Orders, and
Regulations

| RRA ES Rae 4
Executive Order No. 13,780, 82 Fed.

eg ff 6 | ly, eres: passim
I a a asm passim
Other Authorities

Mark Krikorian, Comey: 15 Percent of Terror
Cases Came as Refugees, www.national-
review.com/corner/447423/comey-terror-
ER ed WEA Se aa OS TS 14

Transcript of Testimony of James Comey,
www.washingtonpost.com/news/post-politics/
wp/2017/05/03/read-the-full-testimony-of-fbi-
director-james-comey-in-which-he-discusses-
clinton-email-investigation.........................cc0e0008 14

1

UNOPPOSED MOTION FOR LEAVE TO FILE
BRIEF IN SUPPORT OF STAY APPLICATION
AND CERTIORARI PETITION

Amicus American Center for Law and Justice
respectfully moves for leave of Court to file the
accompanying brief in support of Petitioners’
application for a stay and petition for a writ of
certiorari concerning a _ preliminary injunction
barring enforcement of Section 2(c) of Executive
Order No. 13,780, 82 Fed. Reg. 13,209 (Mar. 9, 2017)
(“EO”). Counsel for all parties have been notified of
this brief and consent to its filing.

STATEMENT OF INTEREST!

The American Center for Law and Justice
(“ACLJ”) is an organization dedicated to the defense
of constitutional liberties secured by law. Counsel for
the ACLJ have presented oral argument,
represented parties, and submitted amicus briefs
before this Court and other courts around the
country in cases involving the Establishment Clause
and immigration law. See, e.g., United States uv.
Texas, 136 S. Ct. 2271 (2016); Pleasant Grove uv.
Summum, 555 U.S. 460 (2009); FEC v. Wisc. Right to
Life, 551 U.S. 449 (2007); McConnell v. FEC, 540
U.S. 93 (2003); Lamb’s Chapel v. Center Moriches
Union Free Sch. Dist., 508 U.S. 384 (1993); Bd. of
Educ. v. Mergens, 496 U.S. 226 (1990); Washington v.

' No counsel for any party authored this brief in whole or in
part, and no entity or person, aside from amicus curiae, its
members, and its counsel, made any monetary contribution
toward the preparation or submission of this brief.

2

Trump, 847 F.3d 1151 (9th Cir. 2017); Intl Refugee
Assistance Project v. Trump, 2017 U.S. App. LEXIS
9109 (4th Cir. 2017).

The ACLJ has actively defended, through
advocacy and litigation, immigration-related policies
that protect American citizens. This brief is
supported by members of the ACLJ’s Committee to
Defend Our National Security from Terror, which
represents more than 230,000 Americans who
support the President’s Executive Order Protecting
the Nation from Foreign Terrorist Entry into the
United States.

ARGUMENT

This brief addresses the challenged Executive
Order’s constitutionality under the Establishment
Clause of the First Amendment, which is an issue
that has a direct bearing on the various factors
considered when a stay application or certiorari
petition is filed.

1. The Fourth Circuit’s decision conflicts with
this Court’s precedent because it failed to
review the Executive Order under the
deferential standards applicable to the
immigration policymaking and enforcement
decisions of the political branches, which
the Order satisfies.

The United States Court of Appeals for the
Fourth Circuit accepted Respondents’ invitation to
treat this case as if it were a _ run-of-the-mill
Establishment Clause case. It is not. The cases that

the court of appeals primarily relied upon, which
green-lighted a detailed inquiry into the primary
purpose of the government’s actions, involved factual
contexts such as the public display of the Ten
Commandments. See, e.g., App. to Pet. Cert. 47a-48a
(S.Ct. No. 16-1436).

In stark contrast, the case at hand involves the
special context of an EO concerning the entry into
the United States of refugees and nationals of six
countries of particular concern, enacted pursuant to
the President’s constitutional and _ statutory
authority. When this Court has_ considered
constitutional challenges to immigration-related
actions of this sort, it has declined to subject those
actions to the same level of scrutiny applied to non-
immigration-related actions, choosing instead to take
a considerably more deferential approach. The EO is
valid under this standard.

A. Judicial review of the immigration-
related actions of the political branches
is deferential.

This Court has “long recognized the power to
expel or exclude aliens as a fundamental sovereign
attribute exercised by the Government’s political
departments largely immune from judicial control.”
Fiallo v. Bell, 480 U.S. 787, 792 (1977) (quoting
Shaughnessy v. United States ex rel. Mezei, 345 U.S.
206, 210 (1953)). Indeed, “an alien seeking initial
admission to the United States requests a privilege
and has no constitutional rights regarding his
application, for the power to admit or exclude aliens
is a sovereign prerogative.” Landon v. Plasencia, 459

qd

U.S. 21, 32 (1982). Moreover, the Constitution “is not
a suicide pact,” Kennedy v. Mendoza-Martinez, 372
U.S. 144, 160 (1963), and the President has broad
national security powers that may be exercised
through immigration restrictions. See Harisiades v.
Shaughnessy, 342 U.S. 580, 588-89 (1952).

Not only does the Fourth Circuit’s decision
undercut the President’s national security powers, it
also undermines the considered judgment of

Congress that

[w]henever the President finds that the entry
of any aliens or of any class of aliens into the
United States would be detrimental to the
interests of the United States, he may by
proclamation, and for such period as he shall
deem necessary, suspend the entry of all
aliens or any class of aliens as immigrants or
nonimmigrants, or impose on the entry of
aliens any restrictions he may deem to be

appropriate.

8 U.S.C. § 1182(f) (2012). Where, as here, a
President’s action is authorized by Congress, “his
authority is at its maximum, for it includes all that
he possesses in his own right plus all that Congress
can delegate.” Zivotofsky ex rel. Zivotofsky v. Kerry,
135 S. Ct. 2076, 2084 (2015) (quoting Youngstown
Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952)
(Frankfurter, J., concurring)). The EO falls squarely
within the President’s constitutional and statutory

authority.

B. The Executive Order is constitutional
under this Court’s deferential standards
applicable to constitutional challenges to
the political branches’ immigration-
related actions.

In Kleindienst v. Mandel, 408 U.S. 753, 770
(1972), the Court rejected a First Amendment
challenge to the Attorney General’s decision to
decline to grant a waiver that would have allowed a
Belgian scholar to enter the country on a visa in
order to speak to American professors and students.
The Court held that “the power to exclude aliens is
‘inherent in sovereignty, necessary for maintaining
normal international relations and defending the
country against foreign encroachments and dangers--
a power to be exercised exclusively by the political
branches of government.” Jd. at 765 (citations
omitted). The Court concluded by stating that

plenary congressional power to make policies
and rules for exclusion of aliens has long been
firmly established. In the case of an alien
excludable under § 212 (a)(28), Congress has
delegated conditional exercise of this power to
the Executive. We hold that when the
Executive exercises this power negatively on
the basis of a facially legitimate and bona fide
reason, the courts will neither look behind the
exercise of that discretion, nor test it by
balancing its justification against the First
Amendment interests of those who seek
personal communication with the applicant.

6

Id. at 769-70; see also Kerry v. Din, 135 S. Ct. 2128,
2139-41 (2015) (Kennedy, J., concurring) (the
government's statement that a visa application was
denied due to suspected involvement with terrorist
activities “satisflied] Mandel’s ‘facially legitimate
and bona fide’ standard”).

Similarly, in Fiallo, the Court rejected a
challenge to statutory provisions that granted
preferred immigration status to most aliens who are
the children or parents of United States citizens or
lawful permanent residents, except for iulegitimate
children seeking that status by virtue of their
biological fathers, and the fathers themselves. 430
U.S. at 788-90. The Court stated:

At the outset, it is important to underscore the
limited scope of judicial inquiry into
immigration legislation. This Court has
repeatedly emphasized that ‘over no
conceivable subject is the legislative power of
Congress more complete than it is over” the
admission of aliens.

Id. at 792 (citations omitted). The Court noted that it
had previously “resolved similar challenges to
immigration legislation based on other constitutional
rights of citizens, and has rejected the suggestion
that more searching judicial scrutiny is required.” Jd.
at 794. Additionally, the Court stated, “[wJe can see
no reason to review the broad congressional policy
choice at issue here under a more exacting standard
than was applied in Kleindienst v. Mandel, a First
Amendment case.” Jd. at 795. The Court emphasized
that “it is not the judicial role in cases of this sort to

probe and test the justifications for the legislative
decision.” Jd. at 799.

Although this Court’s precedent establishes that
courts should not second-guess the wisdom of, or
evidentiary support for, the political branches’
decision-making concerning immigration, the Fourth
Circuit did exactly that. Contrary to what that court
held, the legality of executive orders related to
immigration does not turn on a judicial guessing
game of what the President’s subjective motives were
at the time; rather, Mandel, Fiallo, and other cases
dictate that courts should rarely look past the face of
such orders. See Washington v. Trump, 853 F.3d 933,
939 n.6 (9th Cir. 2017) (Bybee, J., dissenting from
denial of reconsideration en banc) (the panel’s
“unreasoned assumption that courts should simply
plop Establishment Clause cases from the domestic
context over to the foreign affairs context ignores the
realities of our world”). The EO is valid under this
standard. It is closely tethered to well-established
discretionary powers vested in the Executive Branch
by the Constitution and statute. Respondents’
objection to the EO is a policy dispute that should be
resolved by the political branches.

ll. The Executive Order is constitutional even
under a traditional Establishment Clause

analysis.

Consideration of the EO must take into account
the deferential nature of judicial review of
immigration-related actions (as noted previously).
Nevertheless, the EO i: constitutional even under

non-immigration-related Establishment Clause
jurisprudence.

The EO satisfies the “purpose prong” of Lemon v.
Kurtzman, 403 U.S. 602 (1971), which asks whether
the challenged government action has “a secular
legislative purpose.” Jd. at 612-13. Here, the EO’s
predominant purpose is its stated purpose, namely,
protecting national security.

The EO is similar in principle to the National
Security Entry Exit Registration System
(“NSEERS’”), implemented after the terrorist attacks
of September 11, 2001, which was upheld by
numerous federal courts. Rajah v. Mukasey, 544 F.3d
427, 438-39 (2d Cir. 2008) (citing cases). Under this
system, the Attorney General imposed special
requirements upon foreign nationals present in the
United States who were from specified countries. The
first group of countries designated by the Attorney
General included Iran, Libya, Sudan and Syria, and
a total of twenty-four Muslim majority countries and
North Korea were eventually designated. /d. at 433
n.3.

In one illustrative NSEERS case, the United
States Court of Appeals for the Second Circuit
rejected arguments that are strikingly similar to the
arguments accepted by the Fourth Circuit here:

There was a rational national security basis
for the Program. The terrorist attacks on
September 11, 2001 were facilitated by the lax
enforcement of immigration laws. The
Program was [rationally] designed to monitor

9

more closely aliens from certain countries
selected on the basis of national security
criteria. ...

To be sure, the Program did select countries
that were, with the exception of North Korea,
predominantly Muslim. .. . However, one
major threat of terrorist attacks comes from
radical Islamic groups. The September 11
attacks were facilitated by violations of

immigration laws by aliens from
predominantly Muslim nations. The Program
was clearly tailored to those facts. .. . The

program did not target only Muslims: non-
Muslims from the designated countries were
subject to registration. There is therefore no
basis for petitioners’ claim.

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

Similarly, the EO at issue here is constitutional.
There is ample justification for the determination of
multiple administrations that the six designated
countries pose a particular risk to American national
security. The EO does not single out Muslims for
disfavored treatment. Rather, the countless millions
of non-American Muslims who live outside the six
countries of particular concern are not restricted by
the EO. Neither does the EO limit its application to
Muslims in the six designated countries; instead, it
applies to all citizens of the six enumerated countries
irrespective of their faith.

Furthermore, the fact that enforcement of a
previous order—which was substantively different

10

from the present EO in numerous ways—was
preliminarily enjoined on an expedited basis does not
support the Fourth Circuit’s decision here. Under the
Fourth Circuit’s analysis, any hypothetical future
immigration-related orders issued by the current
President will be irredeemably tainted by the alleged
subjective, predominantly anti-Muslim intent of the
President and his surrogates, which runs contrary to
this Court’s admonition that the government’s “past
actions” do not “forever taint any effort .. . to deal
with the subject matter.” McCreary Cnty. v. ACLU,
545 U.S. 844, 874 (2005).

The many substantive differences between the
prior executive order and the existing EO constitute
“genuine changes in constitutionally significant
conditions” that cured any actual or perceived
Establishment Clause deficiencies. See id.; Sarsour
v. Trump, 2017 U.S. Dist. LEXIS 43596, at *33 (E.D.
Va. 2017) (“[T]he substantive revisions reflected in
[the EO at issue here] have reduced the probative
value of the President’s statements to the point that
it is no longer likely that Plaintiffs can succeed on
their claim that the predominant purpose of [the EO]

2 See also ACLU of N.cJ. v. Schundler, 168 F.3d 92, 105 (3d Cir.
1999) (Alito, J.) (“The mere fact that Jersey City’s first display
was held to violate the Establishment Clause is plainly
insufficient to show that the second display lacked ‘a secular
legislative purpose,’ or that it was ‘intended to convey a
message of endorsement or disapproval of religion.”’) (citations
omitted); Roark v. S. Iron R-1 Sch. Dist., 573 F.3d 556 (8th Cir.
2009) (“Another reason we reject the district court’s Lemon
analysis is that . . . [it] would preclude the District from ever
creating a limited public forum in which religious materials
may be distributed in a constitutionally neutral manner.”).

11

is to discriminate against Muslims based on their
religion and that [the EO] is a pretext or a sham for
that purpose.”).

The EO was narrowly crafted to address concerns
raised during litigation over the prior order, with the
secular goal of protecting national security in mind.
Addressing actual or perceived flaws in previous
iterations of a law or policy, in order to bolster the
likelihood that it will be upheld in litigation, is itself
a valid secular purpose. See, e.g., ACLU of Ky. v.
Rowan Cnty., 513 F. Supp. 2d 889, 904 (E.D. Ky.
2007) (in Establishment Clause cases, changing a
policy in “an attempt to avoid litigation .. . is an
acceptable purpose”).

Moreover, the Fourth Circuit’s decision to
sidestep the EO’s obvious secular purposes by
focusing on comments made by then-candidate
Trump, or one of his advisors, is flawed for at least
three reasons.

First, this Court has stated that the primary
purpose inquiry concerning statutes may include
consideration of the “plain meaning of the statute's
words, enlightened by their context and the
contemporaneous legislative history [and] the
historical context of the statute .. . and the specific
sequence of events leading to [its] passage.”
McCreary Cnty., 545 U.S. at 862; see also id. (noting
that the inquiry is limited to consideration of “the
‘text, legislative history, and implementation of the
statute, or comparable official act”) (citation
omitted). Although the Fourth Circuit relied upon
quotes made by then-candidate Trump and

12

individuals holding some non-governmental position
within his political campaign, comments made by a
private citizen while a candidate for public office (or
his or her advisors) while on the campaign trail are
not “official” government acts, and do not constitute
“contemporaneous legislative history.” Id.; cf. Clinton
v. Jones, 520 U.S. 681, 686 (1997) (alleged
misconduct occurring before Bill Clinton became
President was not an “official” act). Indeed, “one
would be naive not to recognize that campaign
promises are—by long democratic tradition—the
least binding form of human commitment.”
Republican Party of Minn. v. White, 53€ U.S. 765,
780 (2002).

Second, the Fourth Circuit's reliance upon
purported evidence of a subjective, personal anti-
Muslim bias of the President and some of his
advisors is improper because “what is relevant is the
legislative purpose of the statute, not the possibly
religious motives of the legislators who enacted the
law.” Bd. of Educ. v. Mergens, 496 U.S. 226, 249
(1990) (plurality opinion) (emphasis added). The
Fourth Circuit engaged in the kind of “judicial
psychoanalysis of a drafter’s heart of hearts” that is
foreclosed by this Court’s precedent. McCreary Cnty.,
545 U.S. at 862. The EO, on its face, serves secular
purposes, and no amount of rehashing of
miscellaneous campaign trail commentary can
change that. A foray into the malleable arena of
legislative history is not a requirement in all
Establishment Clause cases. See, e.g., Mueller uv.
Allen, 463 U.S. 388, 394-95 (1983) (noting the Court’s
“reluctance to attribute unconstitutional motives to
the [government], particularly when a plausible

13

secular purpose . .. may be discerned from the face of
the statute”); Wallace v. Jaffree, 472 U.S. 38, 74
(1985) (O’Connor, J., concurring) (inquiry into the
government's purpose should be “deferential and
limited”).

As Judge Niemeyer explained in his dissenting
opinion in the instant action, the majority’s use of
campaign statements to convert the facially neutral
EO into an Establishment Clause violation was
improper. The “Supreme Court has never applied the
Establishment Clause to matters of national security
and foreign affairs.” App. 173a (Niemeyer, J.,
dissenting). In the few cases in which the Court
invalidated government actions based on a religious
purpose, for example, Edwards v. Aguillard, 482
U.S. 578 (1987), “the Court found the government
action inexplicable but for a religious purpose, and it
looked to extrinsic evidence only to confirm its
suspicion, prompted by the face of the action, that it
had religious origins.” App. 173a-174a (Niemeyer, J.,
dissenting). Those cases are manifestly
distinguishable from the EO, which “is framed and
enforced without reference to religion, and the
government's proffered national security
justifications . . . are consistent with the stated
purposes of the [EO].” Jd. 175a. “Conflicting extrinsic
statements made prior to the [EO]’s enactment
surely cannot supplant its facially legitimate
national security purpose.” Jd.

3 Further evidence to dispel the notion that the EO 1s a cover for
anti-Muslim discrimination is found in the May 3, 2017,
testimony by then-FBI Director James Comey before the Senate
Judiciary Committee on FBI Oversight. Comey testified that

(Text of footnote continues on following page.)

14

Finally, the mere suggestion of a_ possible
religious or anti-religious motive, mined from past
comments of a political candidate or his supporters,
and intermixed with various secular purposes, is not
enough to doom government action (along with all
subsequent attempts to address the same subject
matter). “[A]ll that Lemon requires” is_ that
government action have “a secular purpose,” not that
its purpose be “exclusively secular,” and a policy is
invalid under this test only if it “was motivated
wholly by religious considerations.” Lynch ov.
Donnelly, 465 U.S. 668, 680-81 & n.6 (1984)
(emphasis added); see also Bowen v. Kendrick, 487
U.S. 589, 602 (1988) (“[A] court may invalidate a
statute only if it is motivated wholly by an
impermissible purpose ....”). The EO clearly serves
secular purposes and, therefore, it satisfies Lemon’s

purpose test.

the FBI has over 2000 “violent extremist investigations” and
“about 300 of them [roughly 15%] are people who came to the
United States as refugees.” Transcript of Testimony of James
Comey, www.washingtonpost.com/news/post-politics/wp/2017/
05/03/read-the-full-testimony-of-fbi-director-james-comey-in-

which-he-discusses-clinton-email-investigation/; see also Mark
Krikorian, Comey: 15 Percent of Terror Cases Came as Refugees,
www.nationalreview.com/corner/44 7423/comey-terror-cases-

refugees.

CONCLUSION

The stay application and certiorari

should be granted.

EDWARD L. WHITE III

ERIK M. ZIMMERMAN

AMERICAN CENTER FOR LAW
AND JUSTICE

3001 Plymouth Rd.

Ste. 203

Ann Arbor, M1 48105

FRANCIS J. MANION

GEOFFREY R. SURTEES

AMERICAN CENTER FOR LAW
AND JUSTICE

6375 New Hope Rd.

New Hope, KY 40052

June 9, 2017

petition

Respectfully submitted,

JAY ALAN SEKULOW
Counsel of Record
STUART J. ROTH
COLBY M. MAY
ANDREW J. EKONOMOU
JORDAN SEKULOW
CRAIG L. PARSHALL
MATTHEW R. CLARK
BENJAMIN P. SISNEY
AMERICAN CENTER FOR LAW
AND JUSTICE
201 Maryland Ave., NE
Washington, DC 20002
Tel.: 202-546-8890
Email: sekulow@aclj.org

Counsel for amicus curiae

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0753%3A009. Public record. Not legal advice.