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

FILED

JUN 12 207

OFFICE OF THE CLERK

>) RhEME COURT US]

atv. 16-1436

IN THE

Supreme Court of the United States

Eee

DONALD J. TRUMP, et al.,

Petitioners,

v.

INTERNATIONAL REFUGEE ASSISTANCE

PROJECT, et al.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

FOURTH CIRCUIT

—

BRIEF OF SOUTHEASTERN LEGAL

FOUNDATION AS AMICUS CURIAE IN

SUPPORT OF PETITIONERS

Kimberly S. Hermann William S. Consovoy

SOUTHEASTERN LEGAL Counsel of Record

FOUNDATION CONSOVOY MCCARTHY

2255 Sewell Mill Road, PARK PLLC

Suite 320 3033 Wilson Blvd.,

Marietta, GA 30062 Suite 700

(770) 977-2131 Arlington, VA 22201

(703) 243-9423

will@consovoymccarthy.com

Counsel for Amicus Curiae

June 12, 2017

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TABLE OF CONTENTS

Page

TABLE OF CITED AUTHORITIES .......................... ii

IDENTITY & INTEREST OF AMICUS CURIAE .....1

SUMMARY OF THE ARGUMENT.....................-ceeeee 2

iniiiietiicatiiiininaeiiianbiatiaiiininapadeisiasesaicecadneshees iegsotin 3

I. The Fourth Circuit impermissibly ventured

beyond the text to determine the Order’s

Il. The Fourth Circuit impermissibly consulted

unofficial campaign statements to determine

Gy IIIS, sacchininascnnesceestctcncreninseceinades 8

Ill. The Fourth Circuit's finding that the Order

has an impermissible purpose is untenable

even considering all of the evidence. ........... 15

EE erste tee on Ae Ie Lee 23

UL

TABLE OF CITED AUTHORITIES

Page

CASES

ACLU of Ky. v. Grayson Cty.,

ee fg eee Y

ACLU of Ky. v. Grayson Cty.,

605 F.3d 426 (6th Cir. 2010)........ deiceaitiaadaat SOREL ea 11

Adland v. Russ,

is euciseeictionel )

Catholic League for Religious & Civil Rights v. City

& Cty. of San Francisco,

567 F.3d 595 (9th Cir. 2009).........c000.--cecccccececeeese. 16

Comm. For Pub. Ed. & Religious Liberty v. Nyquist,

ey Cs spsgemedanicunsiiens wuiunmann 4

Edwards v. Aguillard,

I 220 009.8929 2h os 3, 15

Engine Mfrs. Assn. v. S. Coast Air Quality Mgmt.

Dist.,

EEC SE BREE EE eRe 5

Evans v. Stephens,

387 F.3d 1220 (11th Cir. 2004) (en bance) ............. 13

Everson v. Bd. of Ed. of Ewing Twp.,

RRA SARA SEN A eR eel ee 4

Fiallo v. Bell,

SO EC Eee 5, 6, 7, 8

Hamdan v. Rumsfeld,

I 9

til

Cited Authorities

Holder v. Humanitarian Law Project,

| ESERIES ST eayalibe RON e ee eon 6

Illinois v. Krull,

NEN AE Ear SRR A eR 4

INS v, Aguirre-Aguirre,

I i pga 6

INS v. Chadha,

3 8 ao SANS eC EA YE 8

Kerry v. Din,

I 5,6

Kleindienst v. Mandel,

I 5, 7

McCray v. United States,

I eet 4

McCreary Cty. v. ACLU of Ky.,

I 9, 23

McCutcheon v. FEC,

ESTEE Sree REPL. Sie 14

McGowan v. Maryland,

I a ee )

Modrovich v. Allegheny Cty.,

385 F.3d 397 (8d Cir. 2004) ...............cccsesersscessssseees 9

Mueller v. Allen,

I 4,15

LU

Cited Authorities

Phelps v. Hamilton,

59 F.3d 1058 (10th Cir. 1995)............ccccceeeeeeeeeeeeees 14

Profs & Patients for Customized Care v. Shalala,

56 F.8d GOR (Sth Cir. 1006).........cccrcccccccrcrscccseccssereoes 9

Summum v, City of Ogden,

297 F.3d 995 (10th Cir. 2002)...............ccccceeeeeeeeeeeees 9

Tilton v. Richardson,

I a necerdndnismigcbstarebecsohmarsinenens 4

U.S. ex rel. Knauff v. Shaughnessy,

RE ee Ce Ci incsesccenassssscccssectvevecetevsseccesvscese 5, 8

United States v. O’Brien,

. Bot it, rei 3, 4

W.Va. Univ. Hosps., Inc. v. Casey,

ie Bi i Rivcestsiccacsoncivcdectsccosecosnscscetonsestavociess 4

Wallace v. Jaffree,

I I oon ci cxacciniennetsninanvonsectomednens 8, 9,19

Washington v. Trump,

847 F.3d 1161 (Oth Ci. 9017). .....ccvcccecessreese. passim

Zadvydas v. Davis,

I Oe Ce IE Pas secvcescccessiccsecevensecerscsarsneesessesonsess 8

Zubik v. Burwell,

sb F Ro og) op | a eerrrrrrrtrer tence 14

v

Cited Authorities

STATUTES & CONSTITUTIONAL PROVISIONS

PPM BM aicithinerivenivshssntidusecnciuc ie. 6

U.S. Comat. art. IE, $2 o......scesceccececsssessossesse.,....... 13, 14

On MONO MO, os oh Lf 13

U.S. Const. art. IT, RT Er oP eae tester ES 14

en RR Wins clae ) L on ita 14

OTHER AUTHORITIES

1 Robert North Roberts et al., Presidential

Campaigns, Slogans, Issues, and Platforms: The

Complete Encyclopedia _ NERS ee 13

11A Fed. Prac. & Proc. Civ. § 2948.3 (3d ed.).......... 20

Akhil Reed Amar, Some Opinions on the Opinion

Clause, 82 Va. L. Rev. 647 ASRS Soe 16

Alexander M. Bickel, The Least Dangerous Branch

SPI ailavicthintearadtdidininanitsdonie tiie cacti cia 14

Att’y Gen. Jeff Sessions, Remarks on Revised

Executive Order Protecting the Nation from

Foreign Terrorist Entry (Mar. 6, ej lt a 16

Conway: Trump Will Not Pursue Immigration Ban

Based Solely on Religion, CNN (Dec. 22, 2016),

is en te SE TIES 26

Dkt. 171-3 at 61, Hawaii v. Trump, No. 17-cv-00050

PPE rdeschsninnsyotsiescstnachoactseasesicansseh sect kk 25

UL

Cited Authorities

Donald Trump Back-Pedals on Banning Muslims

from U.S., Wall Street Journal (June 28, 2016),

EERIE OCR ee ee er eR EEO IED —

Donald Trump: “I Think Islam Hates Us”, CNN

(Mar. 10, 2016), goo.gl/wceLcF’7.................2-.2220.000+- 29

Here’s What President Donald Trump’s Immigration

Executive Order Means, ABC (Jan. 29, 2017),

2 i tnceatede silane abeenbinedasien 27

Katherine Krueger, Trump Pivots: Only Muslims

from ‘Terrorist Countries’ Would Be Banned,

Talking Points Memo (June 25, 2016),

a aninbaiieleomancisiapidibeneilin lachlan 23

Kilmeade’s Wide-Ranging Interview w/ Donald

Trump, Fox News Radio (May 11, 2016),

a cenl mtlesuaduseenataiaiae 21

Miller: New Order Will Be Responsive to the Judicial

Ruling, Fox News (Feb. 21, 2017), goo.gl/wcHvHH

chiadd ka smantinaadabaddincaniatdsabdanbdidecesnasesiamananddeiamenmamniepsindies 28

Obama Angers Midwest Voters with Guns and

Religion Remark, The Guardian (Apr. 14, 2008),

a cd aeagsigensiiebeapiabdonauhanita 18

President Trump’s Speech to the Arab Islamic

American Summit, White House (May 21, 2017),

https://www.whitehouse.gov/the-press-office/2017/

05/21/president-trumps-speech-arab-islamic-

IIE, cn i ricosnisgastipdadedusnaussgenininbemehnesinees 29

vil

Cited Authorities

Press Gaggle by Press Secretary Sean Spicer, White

House (Mar 6, 2017), https://www.whitehouse.gov/

the-press-office/20 17/03/06/press-gaggle-press-

I in cocneccnciproneieciupsectaneepsieiciobien 28

Press Release, Donald J. Trump Addresses

Terrorism, Immigration, and National Security

(June 13, 2016), goo.gi/Tr6aZa) ...........00..ccceccscerseees 22

Richard M. Re, Promising the Constitution, 110 Nw.

Se Be BIEN niccciinnicsonndtuascammuneaiipcacsesatecssents 17

Roy F. Baumeister, The Cultural Animal (2005).....15

Sec’y John Kelly, Statement on President’s Executive

Order Signed Today (Mar. 6, 2017) ............::ccc0008 16

Sec’y Rex Tillerson, Remarks on the President's

Executive Order Signed Today (Mar. 6, 2017)...... 16

Stephen J. Wayne, Road to the White House 2016

I ao eldbenbceiabeaninnacuiandn 13

The Final Push: Clinton, FactCheck.org (Nov. 4,

I Se ss cscs cdandivngninandpapanccosiink 23

Transcript, David Muir Interviews President Trump,

ABC News (Jan. 25, 2017), goo.gl/qSMNDV......... 27

Transcript, Meet the Press (July 24, 2016),

EERSTE ENC PEN ey ee 24

Trump Changing Muslim Ban to Countries with

Terror Links, Newsmax (June 27, 2016),

TT RRR IE Patter oe ne RR ee CR A SOON 23

ULL

Cited Authorities

Trump on Latest Iteration of Muslim Ban, CNN (July

D4, SOUG), ee AI OOT oa seceos ice cccscncoceccesesececeeses 22

Trump: ‘Frankly, We're Having Problems with the

Muslims’, The Hill (Mar. 22, 2016),

SSE SER AENEID A AGA Ua eRe UES eo Pee wen es 29

What Is Donald Trump Even Running on Anymore?

His “Muslim Ban” Shift Sells Out His Core

Constituents, Vox (June 28, 2016), goo.gl/nopqpn 22

1

IDENTITY & INTEREST OF AMICUS CURIAE”

Southeastern Legal Foundation is a nonprofit,

public-interest law firm and policy center. Founded in

1976, SLF is dedicated to advocating for individual

liberties in the cours of law and public opinion. SLF’s

interest in this case stems from its profound

commitment to protecting America’s legal heritage.

That heritage includes the separation of powers, a

critical safeguard of individual liberty.

SLF submits this brief to address one particularly

disturbing aspect of the decision below: the Fourth

Circuit’s reliance on media statements to discern the

“real purpose” behind Executive Order 13,780.

Consulting these statements intrudes on the

prerogative of the Executive Branch by allowing

individuals outside the Article II hierarchy to speak

for the President. Worse still, the Fourth Circuit

consulted these statements to override the President’s

assessment of national security. And it read them in

the worst possible light for the President, refusing to

give him the presumption of regularity commensurate

with his office. None of this bodes well for the

separation of powers.

* The parties received timely notice of amicus’s intent

to file this brief, and they provided written consent to its

filing. No counsel for any party authored this brief in whole

or in part; and no person or entity, other than amicus and

its counsel, made a monetary contribution intended to fund

its preparation or submission.

2

SUMMARY OF THE ARGUMENT

Over the past few months, federal courts have been

invoking the Establishment Clause to enjoin an

executive order that bars certain aliens from entering

the United States. According to these courts, the

Order targets Muslims. But that conclusion 1s

untenable. The Order's text is not discriminatory: it

treats all religions the same. The Order’s effect is not

discriminatory: it targets countries known to have

weak vetting procedures. And the Order’s purpose 1s

not discriminatory: the official statements about the

Order show that it was enacted to promote national

security. Yet, for the first time in our history, courts

have enjoined a President’s order based on things he

said on the campaign trail. That is precisely what the

Fourth Circuit did here.

These unprecedented injunctions, including the

one that the Fourth Circuit upheld below, warrant the

Court’s immediate attention. Such evidence is not

relevant, appropriate, or persuasive. When it comes to

the admission of aliens, courts must defer to the

political branches. They do not look behind the text of

an order to discover its “real” purpose. Moreover,

presidential candidates are not the President and,

constitutionally, they cannot speak for him. Nor are

their statements especially probative; proclamations

on the campaign trail are contradictory, ambiguous,

and quickly forgotten.

Courts should not evaluate federal laws this way.

But if courts are going to consult these statements,

they should at least give the speaker the benefit of the

doubt and require much more proof of animus than

the Fourth Circuit had here. In fact, the better reading

3

of the evidence is that Donald Trump abandoned the

idea of a “Muslim ban” during the campaign in favor

of an entirely legitimate territory-based policy. In

short, the Fourth Circuit relied not only on statements

from the 2016 campaign, but a heavily revisionist

version of them. This Court should grant certiorari

and reverse the judgment below.

ARGUMENT

Review is warranted when a court of appeals “has

decided an important federal question in a way that

conflicts with relevant decisions of this Court.”

Sup. Ct. R. 10(c). It is difficult to think of a case that

more obviously meets this criterion for certiorari.

Whether a Presidential order issued to ensure

national security should be enjoined for violating the

Establishment Clause is a quintessentially important

question. Accordingly, the pertinent question is

whether the Fourth Circuit’s decision is wrong. For

the reasons set forth below, it clearly is.

1. The Fourth Circuit impermissibly ven-

tured beyond the text to determine the

Order’s purpose.

As Chief Justice Warren cautioned nearly fifty

years ago, “[i]nquiries into [the government’s] motives

or purposes are a hazardous matter.” United States v.

O’Brien, 391 U.S. 367, 383 (1968). For one thing,

“discerning ... subjective motivation,” even for “a

single [actor],” is “almost always an impossible task.”

Edwards v. Aguillard, 482 U.S. 578, 636-37 (1987)

(Scalia, J., dissenting). For another, judicial

evaluation of a law’s purpose can easily morph into

evaluation of a law’s wisdom. “|T]hat the judiciary

4

may restrain the exercise of lawful power on the

assumption that a wrongful purpose or motive has

caused the power to be exerted” is tempting in theory,

but dangerous in practice. McCray v. United States,

195 U.S. 27, 56 (1904). Indulging it “would destroy all

distinction between the powers of the respective

departments of the government, would put an end to

that confidence and respect for each other which it

was the purpose of the Constitution to uphold, and

would thus be full of danger to the permanence of our

institutions.” Jd. at 54-55. Courts therefore must

evaluate the purpose of a law “with the most extreme

caution.” Everson v. Bd. of Ed. of Ewing Twp., 330

U.S. 1, 6 (1947). “[T]he stakes are sufficiently high for

[courts] to eschew guesswork.” O’Brien, 391 U.S. at

383-84.

To that end, courts generally look to the text of a

law to determine its purpose. See, e.g., Comm. For

Pub. Ed. & Religious Liberty v. Nyquist, 413 U.S. 756,

773 (1973); Tilton v. Richardson, 403 U.S. 672, 678-79

(1971). Because courts “presume that [the govern-

ment] act[s] in a constitutional manner,” Illinois v.

Krull, 480 U.S. 340, 351 (1987), they are “reluctan|[t]

to attribute unconstitutional motives” to it “when a

plausible secular purpose ... may be discerned from

the face of the [law].” Mueller v. Allen, 463 U.S. 388,

394-95 (1983). And because the “text” of a law is the

only thing that the government actually “adopted,” it

is the “best evidence of [the law’s] purpose.” W.Va.

Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 98 (1991).

That is why courts “must begin with the language

employed by [the law] and the assumption that the

5

ordinary meaning of that language accurately ex-

presses [its] purpose.” Engine Mfrs. Assn. v. S. Coast

Air Quality Mgmt. Dist., 541 U.S. 246, 252 (2004).

The judicial inquiry must end there, too, when the

law regulates the admission of aliens into the United

States. In Kleindienst v. Mandel, this Court held that

“the Executive” need only offer “a facially legitimate

and bona fide reason” for denying entry to aliens. 408

U.S. 753, 770 (1972) (emphasis added). Once the

Executive does so, “courts will neither look behind the

exercise of that discretion, nor test it by balancing its

justification against’ the constitutional interests” of

the affected individuals. Kerry v. Din, 135 S.Ct. 2128,

2140 (2015) (Kennedy, J., concurring in judgment).

There are no exceptions. This Court has applied

Mandel to claims of discrimination under the First

Amendment, 408 U.S. at 765-70, and the Fifth

Amendment, Fiallo v. Bell, 430 U.S. 787, 791-99

(1977).

The reasons that underlie Mandel’s “narrow

standard of review” are the same “reasons that

preclude judicial review of political questions.” /d. at

796. The Constitution generally commits questions

concerning the admission of aliens to the political

branches—not the courts. Congress has “plenary ...

power to make policies and rules for exclusion of

aliens,” which it “has delegated ... to the Executive.”

Mandel, 408 U.S. at 769-70; U.S. ex rel. Knauff v.

Shaughnessy, 338 U.S. 537, 542-43 (1950); see

8 U.S.C. § 1182(f. “[O]ver no conceivable subject is

the legislative power of Congress more complete”

because “the admission of aliens” is “a fundamental

sovereign attribute.” Fiallo, 430 U.S. at 792. In this

6

area, courts are ill-equipped to weigh the competing

concerns. The admission of aliens involves “a wide

variety of classifications [that] must be defined in the

light of changing political and economic circum-

stances,” and the “decisions in these matters may

implicate our relations with foreign powers.” Jd. at

796. “The judiciary is not well positioned to shoulder

primary responsibility for assessing the likelihood and

importance of such diplomatic repercussions.” INS v.

Aguirre-Aguirre, 526 U.S. 415, 425 (1999).

The Mandel rule “has particular force in the area

of national security.” Din, 135 S.Ct. at 2140 (Kennedy,

J., concurring in judgment). “[W]hen it comes to

collecting evidence and drawing factual inferences” on

questions of national security, “the lack of competence

on the part of the courts is marked.” Holder v. Human-

itarian Law Project, 561 U.S. 1, 34-35 (2010). When

the political branches act in the national-security

realm, courts should be hard-pressed to discard their

stated purpose. After all, “most federal judges” do not

“begin the day with briefings that may describe new

and serious threats to our Nation and its people.” Jd.

at 34. It is simply “not the judicial role in cases of this

sort to probe and test the justifications for the

[government’s] decision.” Fiallo, 430 U.S. at 799.

The Ninth Circuit has concluded that Mandel

applies only to “an individual visa application,” not

the “promulgation of sweeping immigration policy ...

at the highest levels of the political branches.”

Washington v. Trump, 847 F.3d 1151, 1162 (9th Cir.

2017). But this distinction “cannot withstand the

gentlest inquiry.” Washington, 2017 WL 2468700, at

*10 (Bybee, J., dissental). Mandel applies to “a wide

7

variety” of “decisions made by the Congress or the

President,” including whether “particular classes of

aliens ... shall be denied entry altogether.” Fiallo, 430

U.S. at 796.

The Fourth Circuit wisely acknowledged that

Mandel applies to the Order, but it nevertheless found

that the Order’s national-security justifications were

not “facially legitimate and bona fide.” Pet. App. 42a-

47a. The Fourth Circuit interpreted “bona fide” to

require that the proffered reason for the Order be the

actual, primary reason—to be determined by con-

sulting all of the extratextual evidence. That ruling

finds no support in this Court’s decisions.

The word “facially” in Mandel modifies both

“legitimate” and “bona fide”; just like its legitimacy,

the Order’s bona fides must be determined based on

the text alone. See Pet. App. 162a-65a (Niemeyer, J.,

dissenting). Otherwise, Mandel is meaningless. As the

Fourth Circuit acknowledged, the Lemon test already

requires courts to assess a law’s primary purpose. /d.

at 46a (majority op.). Mandel was not meant to simply

duplicate this analysis; it requires the political

branches to prove less out of respect for their authority

over the admission of aliens. Hence, Mandel asks

whether the Executive offered “a facially legitimate

and bona fide reason,” not whether that reason was

the primary one. 408 U.S. at 770 (emphasis added).

Searching for the primary purpose would require

courts to enter the forbidden territory of “look[ing]

behind” the Executive’s justifications, id., and

“prob[ing] and test[ing]” them, Fiallo, 430 U.S. at 799.

Here, for example, a federal court could conclude that

national security was not the primary purpose of the

8

Order only by first rejecting the accuracy of the

President’s national-security determinations. Indeed,

the Fourth Circuit stated that the Order is based on

“weak evidence” and does not “diminish the threat of

potential terrorist activity.” Pet. App. 44a. The specter

of courts telling the President what national security

requires is precisely what Mandel seeks to avoid.

The Fourth Circuit’s principal rejoinder—that the

immigration power “is still ‘subject to important

constitutional limitations,” Pet. App. 40a-41la, 45a-

46a—is unhelpful. It begs the question of what the

constitutional limitations are in this context. The two

deportation cases that the Fourth Circuit cited—

Zadvydas v. Davis, 533 U.S. 678 (2001), and INS v.

Chadha, 462 U.S. 919 (1983)—are not relevant.

“Whatever the rule may be concerning deportation,” it

does not apply to “the determination of the political

branch of the Government to exclude a given alien.”

Knauff, 338 U.S. at 543. When the Executive does the

latter, Mande/l provides that courts can review only

whether it offered a facially legitimate and bona fide

reason. This is not a “no judicial review” standard; it

is a “limited judicial review” standard. Fiallo, 430 U.S.

at 795 n.6. The President’s Order easily satisfies it.

See Pet. App. 165a-68a (Niemeyer, J., dissenting).

Il. The Fourth Circuit impermissibly con-

sulted unofficial campaign statements to

determine the Order’s purpose.

When a law does not regulate the admission of

aliens into this country, courts sometimes search more

broadly for evidence of its purpose. But the judicial

inquiry must remain “deferential and limited.” Wall-

ace vu. Jaffree, 472 U.S. 38, 74-75 (1985) (O’Connor, J.,

9

concurring in judgment). Courts cannot engage in

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

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

(2005). Accordingly, courts usually limit their search

to “the face of the legislation,” “its legislative history,”

and “its operative effect.” McGowan v. Maryland, 366

U.S. 420, 453 (1961); accord Jaffree, 472 U.S. at 74-75

(O’Connor, J., concurring in judgment). In all events,

the evidence of purpose must be some “official act.”

McCreary, 545 U.S. at 862.

This principle has two important corollaries. First,

courts should not rely on the views of private citizens

to determine a law’s purpose. See Modrovich uv.

Allegheny Cty., 385 F.3d 397, 411 (8d Cir. 2004);

Summum ov. City of Ogden, 297 F.3d 995, 1010 (10th

Cir. 2002). Obviously, only the government can violate

the Establishment Clause. “Private purpose” is thus

not relevant unless “there is evidence that the

government has adopted [it].” ACLU of Ky. v. Grayson

Cty., 591 F.3d 837, 850-51 (6th Cir. 2010).

Second, courts should not consult informal media

statements to determine a law’s purpose. See Hamdan

v. Rumsfeld, 548 U.S. 557, 624 n.52 (2006); Adland uv.

Russ, 307 F.3d 471, 483 n.3 (6th Cir. 2002).

Statements to the media are not “official acts.” And

they are unreliable indicia of purpose. Such “informal

communications often exhibit a lack of ‘precision of

draftsmanship,” and “internal inconsistencies are not

unexpected.” Profls & Patients for Customized Care v.

Shalala, 56 F.3d 592, 599 (5th Cir. 1995).

The Fourth Circuit ignored these principles. It

concluded that the Order is a “Muslim ban” in disguise

based largely on press releases, media interviews, and

10

news articles from the 2016 campaign. This

“evidentiary snark hunt” is not normal: “[n]o Supreme

Court case ... sweeps so widely in probing politicians

for unconstitutional motives.” Washington, 2017 WL

2468700, at *5 (Kozinski, J., dissental). These media

statements from nongovernmental actors all suffer

from the defects mentioned above. And because most

were made by a political candidate in the heat of a

campaign, the statements present still more concerns.

If statements to the media are unreliable, then

statements to the media by a politician in the thick of

a campaign are doubly unreliable. A candidate’s goal

is “to get elected,” not to make policy. Jd. To get

elected, the candidate must first win the primary,

which requires drawing attention to himself. See

Stephen J. Wayne, Road to the White House 2016, at

120 (10th ed. 2015) (“Candidates cannot win if they

are not known. Recognition as a political leader is

most important at the beginning of the nomination

cycle ....”). “[I]nflammatory” statements often help in

this regard. Washington, 2017 WIL 2468700, at *5

(Kozinski, J., dissental). Over the course of the

campaign, moreover, a candidate must win over

primary voters and the general electorate—two very

different groups—al] while reacting to shifting poll

numbers and swirling media narratives. Unsurpris-

ingly, “subtle (or not-so-subtle) changes in a cand-

idate’s position during the course of the campaign are

common.” 1 Robert North Roberts et al., Presidential

Campaigns, Slogans, Issues, and Platforms: The

Complete Encyclopedia 160 (2012). But to avoid the

dreaded label of a “flip flop,” candidates also tend to

insist that their position has been the same all along.

ll

All of these dynamics result in a smatter of contra-

dictory, chaotic, and ambiguous statements—not the

kind of evidence that should decide the fate of a

federal law.

The Fourth Circuit insisted that judges should not

“shut our eyes to such evidence when it stares us in

the face.” Pet. App. 60a. But that is exactly what

judges should do:

[T]he Court ought to shut its mind to much of

what all others think they see. That is precisely

what courts are for. They try things out on

evidence, by process of proof and refutation,

and shut their minds to the kind of surmise by

which the general public may reach politically

sufficient conclusions. No doubt, ... courts as

triers of fact draw inferences concerning

matters of common knowledge in the shared

experience of the community. But such common

knowledge is not common gossip, or common

political judgment.... [A court should not] infer,

along with common gossip, that a legislature is

corrupt, or that a politician is a self-seeking

powermonger rather than a _ disinterested

statesman|.]

Alexander M. Bickel, The Least Dangerous Branch

220 (1962). In fact, in any other case, many of the

sources cited here would be disregarded as “hearsay”

remarks that “do not constitute legal evidence.” ACLU

of Ky. v. Grayson Cty., 605 F.3d 426, 430 (6th Cir.

2010). “[T]o rely in any way on what these /sources/ say

various [government officials] said is both incorrect

and inappropriate.” ACLU of Ky., 605 F.3d at 430.

12

Nor can a court assume that the positions an

official takes during the campaign match the policies

he enacts once in office. Officials “change their own

thinking as a function of whether they are running for

office or having to make the hard choices that come

with power.... A politician who is not in office can

make strong promises and claims .... Once in office,

however, ... their speech and thinking become more

complex than they were during the campaign....” Roy

F. Baumeister, The Cultural Animal 236 (2005).

Beyond these practical differences, our constitu-

tional structure rejects any attempts to conflate a

presidential candidate with the President. The

President is not just a person; the President is an

“Office.” U.S. Const. art. II, §1. While the

Constitution vests “[t]he executive Power” in the

President alone, id., the President can appoint

“Officers of the United States” and “require the

Opinion, in writing, of the principal Officer in each of

the executive Departments, upon any Subject relating

to the Duties of their respective Offices,” id. § 2. This

last part—the Opinion Clause—‘“place[s] the

President at the apex of [an] awesome pyramid[] of

power ... as Chief Administrator of the Executive

Bureaucracy.” Akhil Reed Amar, Some Opinions on

the Opinion Clause, 82 Va. L. Rev. 647, 652 (1996). A

presidential candidate thus does not have access to,

and is not part of, this constitutional hierarchy. Here,

for example, the Cabinet officials tasked with

enforcing the Order agree that it is a vital national-

security measure and targets countries with weak

vetting procedures—not Muslims. See Sec’y John

Kelly, Statement on President’s Executive Order

Signed Today (Mar. 6, 2017); Sec’y Rex Tillerson,

13

Remarks on the President’s Executive Order Signed

Today (Mar. 6, 2017); Att'y Gen. Jeff Sessions,

Remarks on Revised Executive Order Protecting the

Nation from Foreign Terrorist Entry (Mar. 6, 2017).

Also unlike the President, a presidential candidate

has not “take[n] the ... Oath” in Article II. U.S. Const.

art. II, § 1. The oath requires the President to “swear”

that he will “preserve, protect and defend the

Constitution,” id., and it activates his duty to “take

Care that the Laws be faithfully executed,” id. § 3.

The oath is not a formality: it triggers the

presumption that the President’s actions are

constitutional. Evans v. Stephens, 387 F.3d 1220, 1222

(11th Cir. 2004) (en banc). Indeed, while the

Constitution requires all officials to take an oath, U.S.

Const. art. VI, Article II actually spells out the

presidential oath with “emphatic language.” Richard

M. Re, Promising the Constitution, 110 Nw. U. L. Rev.

299, 338 (2016). This distinction “indicates that the

President’s promise may be especially demanding and

unyielding.” Jd. But conflating the pre-oath intentions

of a candidate with the post-oath policies of a

President treats that oath as a nullity.

The use of campaign statements to find violations

of the Establishment Clause raises other concerns too.

For starters, it is impossible to apply. See Pet. App.

170a-71a (Niemeyer, J., dissenting); Washington,

2017 WL 2468700, at *5 (Kozinski, J., dissental). And

it invites courts to make decisions based on their

subjective beliefs about the character of government

officials. Moreover, the Fourth Circuit’s reasoning

turns the First Amendment against itself. “To view

[campaign] statements as indicative of bad faith ...

14

would ... chill political debate during campaigns ... in

contravention of First Amendment values.” Phelps v.

Hamilton, 59 F.3d 1058, 1068 (10th Cir. 1995). Yet

“our most basic free speech principles have their

‘fullest and most urgent application precisely to the

conduct of campaigns for political office.”” Washington,

9017 WL 2468700, at *5 (Kozinski, J., dissental)

(quoting McCutcheon v. FEC, 134 S.Ct. 1434, 1441

(2014)).

The Fourth Circuit tried to limit its ruling by

emphasizing the “highly unique” and “direct” evidence

in this case. Pet. App. 61a. But that is no limit at all.

Consider an example. During the 2008 presidential!

campaign, then-Senator Obama made a statement

about “bitter” people in “small towns” who “cling to

guns or religion ... to explain their frustrations’—a

statement that many perceived to be anti-Christian.

Obama Angers Midwest Voters with Guns and Relig-

ion Remark, The Guardian (Apr. 14, 2008), goo.gl/

ICSSVi. After he was elected, President Obama’s

administration issued a regulation requiring Catholic

nonprofits to, in their view, facilitate contraceptive

coverage and violate their deeply held religious

beliefs. See Zubik v. Burwell, 136 S.Ct. 1557, 1559

(2016). Is Senator Obama’s statement from the 2008

campaign evidence that he is an anti-Catholic bigot

and, thus, evidence that the regulation has an

unconstitutional purpose under the Establishment

Clause? Under the Fourth Circuit’s logic, a court

would at least have to consider the possibility. And

what may be “highly unique” and “direct” evidence of

President Obama’s motive to one judge may not be for

another. This is where we are headed under the

Fourth Circuit’s approach.

15

Indeed, given the sheer amount of times that

politicians reference the Bible in political campaigns,

other possible scenarios abound. That is why

considering this sort of evidence would be a “huge,

total disaster.” Washington, 2017 WL 2468700, at *6

(Kozinski, J., dissental). This Court should not count-

enance it.

Ill. The Fourth Circuit’s finding that the

Order has an impermissible purpose is

untenable even considering all of the

evidence.

As just explained, courts should not consider

unofficial statements from political candidates or

nongovernmental actors when evaluating the purpose

of a federal law. But even under the no-holds-barred

approach of the Fourth Circuit, there is not enough

evidence here to conclude that the Order was enacted

for an impermissible purpose.

Under the Lemon test, the government must show

that the purpose on the face of the Order is “not a

sham.” Edwards, 482 U.S. at 587. This is a low bar.

Courts do not invalidate laws when “a plausible

secular purpose ... may be discerned from the [text].”

Mueller, 463 U.S. at 394-95. And because the question

here is whether to grant a preliminary injunction, any

factual uncertainty requires reversal. See 11A Fed.

Prac. & Proc. Civ. § 2948.3 (3d ed.).

The statements that the Fourth Circuit consulted

here do not prove that the Order’s national-security

justifications are a “sham.” In fact, a court could arrive

at that conclusion only by plucking statements about

the Order out of context and reading them in the worst

16

possible light for the President. “|T]he purpose inquiry

is not,” however, “an invitation to courts to cherry

pick.” Catholic League for Religious & Civil Rights v.

City & Cty. of San Francisco, 567 F.3d 595, 601 n.7

(9th Cir. 2009). And if courts are going to treat

politicians like government officials, then they should

at least give political statements the deference and

presumptive regularity that government officials

receive. With these principles in mind, the statements

about the Order paint a very different picture: the best

reading of the evidence is that the President was

always concerned with national security, and he

abandoned his initial call for a “Muslim ban” in favor

of a policy that focused on geography instead of

religion.

The first statement that the Fourth Circuit

considered was the “Statement on Preventinz Muslim

Immigration” that Mr. Trump posted on his campaign

website in December 2015. Pet. App. 49a. True, this

statement—made two months before the lowa Caucus

and over a year before President Trump signed the

first executive order—focused on “Muslims.” Notably,

however, it was concerned with national security. It

was made in response to the terrorist attack in San

Bernardino, and it discussed the need to prevent the

country from being “the victims of horrendous

attacks.” Id. at 10a n.5.

What the Fourth Circuit did not appreciate is that

Mr. Trump clearly abandoned this initial proposal. In

May 2016, shortly before clinching the Republican

nomination, Mr. Trump stated on a radio interview

that his initial statement from December was “just a

suggestion.” Kilmeade’s Wide-Ranging Interview w/

17

Donald Trump, Fox News Radio (May 11, 2016), goo.

gl/C550eX. Then, on June 13—one day after the

nightclub shooting in Orlando—Mr. Trump

announced his new plan to “suspend immigration

from areas of the world when there is a proven history

of terrorism.” Press Release, Donald J. Trump

Addresses Terrorism, Immigration, and National

Security (June 13, 2016), goo.gi/Tr6aZJ. In the

ensuing weeks, members of the Trump campaign

explained that his new focus on “terror states” was a

“changed” position and a “pivot[]” away from the

initial statement he made in December. Trump on

Latest Iteration of Muslim Ban, CNN (July 24, 2016),

goo.gl/Ilu40E. And that is how the media covered it at

the time. See, e.g., Donald Trump Back-Pedals on

Bonning Muslims from U.S., Wall Street Journal

(June 28, 2016), goo.g/UATLkc; What Is Donald

Trump Even Running on Anymore? His “Muslim Ban”

Shift Sells Out His Core Constituents, Vox (June 28,

2016), goo.gl/nopqpn; Trump Changing Muslim Ban

to Countries with Terror Links, Newsmax (June 27,

2016), goo.gl/VzW79d; Katherine Krueger, Trump

Pivots: Only Muslims from “Terrorist Countries’ Would

Be Banned, Talking Points Memo (June 25, 2016),

goo.gl/qGxNGy; see also The Final Push; Clinton,

FactCheck.org (Nov. 4, 2016), goo.gl/Zg0x10 (“Trump

has clearly changed his initial call for a ‘total and

complete shutdown of Muslims entering the United

States.”’).

The Fourth Circuit asserted that Mr. Trump did

not really change positions, but rather “attempt[ed] to

circumvent scrutiny of the Muslim ban by formulating

it in terms of nationality.” Pet. App. 49a. This spec-

ulative theory is not supported by the evidence.

18

The Fourth Circuit pointed to an interview on

Meet the Press in July, where Mr. Trump was asked

whether his new policy was a “rollback” from his

original statement. /d. at 49a-50a. Mr. Trump

challenged the word “rollback” but confirmed that he

was “looking now at territories”:

I don’t think so. I actually don’t think it’s a

rollback. In fact, you could say it’s an

expansion. /'m looking now at territories. People

were so upset when I used the word Muslim.

Oh, you can’t use the word Muslim. Remember

this. And I’m okay with that, because I’m

talking territory instead of Muslim. But just

remember this: Our Constitution is great. But

it doesn’t necessarily give us the right to

commit suicide, okay? Now, we have a religious,

you know, everybody wants to be protected.

And that’s great. And that’s the wonderful part

of our Constitution. I view it differently. Why

are we committing suicide? Why are we doing

that? But you know what? I live with our

Constitution. I love our Constitution. | cherish

our Constitution. We're making it territorial.

We have nations and we'll come out, /’m going

to be coming out over the next few weeks with a

number of the places.

Transcript, Meet the Press (July 24, 2016),

goo.gl/jHc6aU (emphases added).

The Fourth Circuit read this statement as an

admission that “territory” is code for “Muslim,” but

that reading is implausible. Mr. Trump clearly stated

that he was not using religion and was now “looking

at territories” and “making it territorial.” His

19

characterization of the territory-based proposal as an

“expansion” of his initial proposal was true—looking

at territories is an “expansion” in the sense that it

involves considering people of all religions in a given

territory. This is not evidence of anti-Muslim purpose.

The Fourth Circuit concluded that Mayor Giuliani

confessed, during an interview on Fox News, that the

territory-based proposal was just a way to create a

Muslim ban that would stand up in court. Pet. App.

50a. Putting aside the absurdity of crediting a hearsay

statement from a nongovernmental consultant about

what the President said, see Jaffree, 472 U.S. at 74-75

(O'Connor, J., concurring in judgment), Mayor

Giuliani actually said the opposite:

OK. Ill tell you the whole history of it. So when

he first announced it he said “Muslim ban.” He

called me up and said, “Put a commission

together, show me the right way to do it

legally.” I put a commission together with

Judge Mukasey, with Congressman McCaul,

Pete King, a whole group of other very expert

lawyers on this. And what we did was we

focused on, instead of religion, danger. The

areas of the world that create danger for us.

Which is a factual basis. Not a religious basis.

Perfectly legal, perfectly sensible, and that’s

what the ban is based on. It’s not based on

religion. It’s based on places where there are

substantial evidence that people are sending

terrorists into our country.

Dkt. 171-3 at 61, Hawaii v. Trump, No. 17-cv-00050

(D. Haw.) (emphases added).

20

The Fourth Circuit read “show me the right way to

do it legally” to mean “show me how to discriminate

and get away with it.” But it could have just as

plausibly meant “show me how to prevent terrorism

without engaging in religious discrimination.” Indeed,

that is precisely what Mayor Giuliani said it meant in

the rest of his statement. Although the Fourth Circuit

credited the first two sentences of Mayor Giuliani’s

statement, it inexplicably did not credit his assur-

ances that “we focused on, instead of religion, danger”

and that the Order is “not based on religion.” The

omission is glaring.

The Fourth Circuit also found it important that,

“fo]n December 21, 2016, when asked whether recent

attacks in Europe affected his proposed Muslim ban,

President-Elect Trump replied, “You know my plans.

All along, I’ve proven to be right. 100% correct.” Pet.

App. 49a. But this statement is horribly ambiguous.

The Fourth Circuit assumed “plans” meant “Muslim

ban,” but the only “plan” that Mr. Trump had

discussed for the previous six months was his terr-

itory-based policy. As his spokesperson Kellyanne

Conway explained the next day: “You’re going back to

over a year ago in what he said about the ban” but

later “he made it much more specific and talked about

countries.” Conway: Trump Will Not Pursue

Immigration Ban Based Solely on Religion, CNN (Dec.

22, 2016), goo.gl/0fDOqg6. Before signing the first

order, moreover, President Trump told ABC News,

“(N]o it’s not the Muslim ban. But it’s countries that

have tremendous terror.” Transcript, David Muir

Interviews President Trump, ABC News (Wan. 25,

2017), goo.gl/qSMNDV.

21

The few post-inauguration statements that the

Fourth Circuit cited fare no better. When President

Trump signed the first order, he stated: “This is the

‘Protection of the Nation from Foreign Terrorist Entry

into the United States. We all know what that

means.” Pet. App. 50a. Any judge who claims to know

what “that” means is engaged in psychoanalysis, not

law. It likely does not mean “Muslim ban”—a concept

the President abandoned six months earlier. Indeed,

two days after signing the Order, the President

reaffirmed that “[i]t’s not a Muslim ban.” Here’s What

President Donald Trump’s Immigration Executive

Order Means, ABC (Jan. 29, 2017), goo.gl/apck 1X.

The Fourth Circuit also relied on two staffers who

said that the Order had the same “principles” and

“basic policies” as the first order with “mostly minor

technical differences.” Pet. App. 50a-5la. The

President likewise described the Order as a “watered

down” version of the first order. Pet. App. 51a. But

these statements are only relevant if the first order

was a Muslim ban. And it was not, as explained above.

Indeed, both staffers emphasized that the first order

was a lawful national-security measure. See Miller:

New Order Will Be Responsive to the Judicial Ruling,

Fox News (Feb. 21, 2017), goo.gl/wcHvHH; Press

Gaggle by Press Secretary Sean Spicer, White House

(Mar 6, 2017), https://www.whitehouse.gov/the-press-

office/20 17/03/06/press-gaggle-press-secretary-sean-

spicer. Moreover, none of these statements was made

with respect to Muslims or the Establishment Clause.

The Order was a reaction to the Ninth Circuit’s

decision in Washington, which invalidated the first

22

order under the Due Process Clause only. The state-

ments comparing the Order with its predecessor were

all made in that context.

At bottom, the statements that purportedly show

the Order is a “Muslim ban” in disguise do not hold

up. Undeterred, the Fourth Circuit concluded that the

Order was an attempt to discriminate against

Muslims for another reason: because Mr. Trump

allegedly expressed “anti-Muslim sentiment” on two

occasions during the campaign. Pet. App. 49a. But in

the first statement—an interview with CNN where

Mr. Trump said “Islam hates us’—-he clarified that

the reference was to “radical Islam,” not all Muslims.

Donald Trump: “I Think Islam Hates Us”, CNN (Mar.

10, 2016), goo.gl/wcleF7. And in the _ second

statement—a response to the terrorist attack in

Brussels—Mr. Trump clarified that he was talking

about “people from the Middle East” and that he

“didn’t say shut it down ... I said you have to be very

careful. We have to be very, very strong and vigilant

at the borders.” Jrump: ‘Frankly, We're Having

Problems with the Muslims’, The Hill (Mar. 22, 2016),

goo.gl/MmBvKO. Further, the Fourth Circuit did not

credit more recent statements from President Trump,

like his speech in Saudi Arabia where he called Islam

“one of the world’s great faiths” and called for

“tolerance and respect for each other.” President

Trump’s Speech to the Arab Islamic American

Summit, White House (May 21, 2017), https://www.

whitehouse. gov/the-press-office/2017/05/2 1/president-

trumps-speech-arab-islamic-american-summit.

More troublingly, by resorting to these generic

statements, the Fourth Circuit was implying that the

23

President is generally anti-Muslim. By this logic, any

action that he takes with respect to a majority-Muslim

country is ripe for invalidation under the Establish-

ment Clause. Even if his early comments were

somehow insensitive, they cannot “forever taint” his

ability to take actions in the Middle East. McCreary,

545 U.S. at 873-74. The theory of the decision below is

that Mr. Trump did not mean it when he said,

repeatedly, that he had changed his initial proposal.

This is not law; this is “psychoanalysis.” Jd. at 862.

In short, the decision below is not supported by the

record. Read fairly and accurately, the evidence

indicates that President Trump has maintained a

bona fide interest in national security and that any

initial calls for a “Muslim ban” were abandoned, not

smuggled into the Order. The Fourth Circuit reached

the opposite conclusion by cherry picking snippets of

statements and reading them in the light least

favorable to the President—just the opposite of what

the law requires.

CONCLUSION

For all these reasons, the Court should grant

certiorari and reverse the Fourth Circuit.

24

Respectfully submitted,

/s/ William S. Consovoy

Kimberly S. Hermann William S. Consovoy

SOUTHEASTERN LEGAL CONSOVOY MCCARTHY

FOUNDATION PARK PLLC

2255 Sewell Mill Road, 3033 Wilson Blvd.,

Suite 320 Suite 700

Marietta, GA 30062 Arlington, VA 22201

(770) 977-2131 (703) 243-9423

Counsel for Amicus Curiae

June 12, 2017