# 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%3A024

## Record

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

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0753%3A024. Public record. Not legal advice.