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

nt. U.S.

preme

AUG 16 2017

OFFICE OF THE CLERK

Nos. 16-1436, 16-1540

Hu the

Supreme Court of the United States

DONALD J. TRUMP, E7'AL., Petitioners,

Vv.

INTERNATIONAL REFUGEE ASSISTANCE PROJECT, ET AL.,

Respondents.

DONALD J. TRUMP, ET AL., Petitioners,

v,

STATE OF HAWAII, E7'AL., Respondents.

ON WRITS OF CERTIORARI TO THE

UNITED STATES COURTS OF APPEALS FOR THE

FOURTH AND NINTH CIRCUITS

BRIEF OF AMICUS CURIAE AMERICAN CENTER

FOR LAW AND JUSTICE IN SUPPORT OF

PETITIONERS AND URGING REVERSAL

EDWARD L. WHITE III JAY ALAN SEKULOW

ERIK M. ZIMMERMAN Counsel of Record

AMERICAN CENTER FOR LAW STUART J. ROTH

AND JUSTICE COLBY M. MAY

3001 Plymouth Rd., Ste. 203 ANDREW J. EKONOMOU

Ann Arbor, MI 48105 JORDAN SEKULOW

CRAIG L. PARSHALL

FRANCIS J. MANION MATTHEW R. CLARK

GEOFFREY R. SURTEES BENJAMIN P. SISNEY

AMERICAN CENTER FOR LAW AMERICAN CENTER FOR LAW

AND JUSTICE AND JUSTICE

6375 New Hope Rd. 201 Maryland Ave., NE

New Hope, KY 40052 Washington, DC 20002

Tel.: 202-546-8890

Email: sekulow@aclj.org

August 2017 Counsel for amicus curiae

oo”. eee

1

TABLE OF CONTENTS

STATEMENT OF INTEREST ......................22.-.20+

|. The Executive Order should be reviewed

under the deferential standards applicable

to the immigration policymaking and

enforcement decisions of the political

branches, which the Executive Order

RRC, Ae ate RR EEE ay Ate tae Laie Glee Pare

A. Judicial review of the immigration-

related actions of the political

branches is deferential .....................ccececeesee

B. The Executive Order is constitutional

under this Court’s deferential

standards applicable to challenges to

the political branches’

immigration-related actions...................0.65

ll. The Executive Order is constitutional

even under a traditional Establishment

ESSERE LEE Eas ose r eee

ERR OE, Uae A Se RO A eee es

il

TABLE OF AUTHORITIES

Supreme Court Cases

Bd. of Educ. v. Mergens ex rel. Mergens,

Be BF Ce CEI cess ccadsnsncccsscsusedeccessoecess

Bowen v. Kendrick,

ee es I Sis ce wistain a snntnnirinehenunensess

Clinton v. Jones,

SE Ory Ge CAGED cccccccccecepsccsccesescvssoneveses

Edwards v. Aguillard,

EE ET ED IE Phase cisecencesesnessescessenasosess

FEC v. Wis. Right to Life,

BER UB. SE Gs) cccorccsisccveessescccesscesesesees

Fiallo v. Bell,

SE Uae FRE CBRE ED sv nccnsesesscscssccescvencosseies

Harisiades v. Shaughnessy,

Ue. Be CED ow vcccstvncccccscsesescecsvscsesess

Kennedy v. Mendoza-Martinez,

Ee Re BIG CRIED csvcsescteisiccoesascoscnescnssosee

Kerry v. Din,

135 BS. Cl. SUIZS CAOUB) ...00.c0c.cccsessescrvccscesees

Kleindienst v. Mandel,

BIB UB. TOS (EBT ED nc 00ccccses00s-scceseesoee eave

il

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

ee CE Ps SIU CIE si ccdcinccosesdesccchcoesbaswdscaces ]

Landon v. Plasencia,

I 5

Lemon v. Kurtzman,

SE EE PTD sscicocsccccasceccocivaseiccionecceds passim

Lynch v. Donnelly,

SER re ne Re 16

McConnell v. FEC,

ee Me PN I a cc cancanvcanseuesvddncenedcaseecucesstens 1

McCreary Cnty. v. ACLU,

545 U.S. 844 (2005)..................... 13, 14, 15, 16, 18

Mueller v. Allen,

EN Es SII ocd cscecnsacccsccnsvevecoseesisawessdenceds 15

Pleasant Grove City v. Summum,

i casbpaueieded l

Republican Party of Minn. v. White,

Na a i. sdciideansvesunveoswesexes 14

Shaughnessy v. United States ex rel. Mezei,

a as Ss sanipetreaneee 5

United States v. Texas,

ee Cs EE Oe ID bs oicvcccivesenvcssdececersevesnseeececcsse ]

iV

Van Orden v. Perry,

ei hk ae RA ey: 16

Wallace v. Jaffree,

i RIE Mos Sade Se 15

Youngstown Sheet & Tube Co. v. Sawyer,

Pe APs MET Ue C IID vic acwncsavsdcdereceeumsedceccn te Dcicae 6

Ziglar v. Abbasi,

Fe Ws ORs) I NE OP ecocisecnsiiestensienae. nen fe 7

Zivotofsky ex rel. Zivotofsky v. Kerry,

SL, Rema a ne IRE at” 6

Other Cases

ACLU of Ky. v. Rowan Cnty.,

513 F. Supp. 2d 889 (E.D. Ky. 2007) .................. 19

ACLU of N.J. ex rel. Lander v. Schundler,

168 F.3d 92 (3d Cir. 1999) .........cccccccocosooscocccceee.. 18

Hawaii v. Trump,

859 F.3d 741 (9th Cir. 2017) .0....e.ccccccccccccceccsccceees 2

Int'l Refugee Assistance Project v. Trump,

857 F.3d 554 (4th Cir. 2017) .....00.000000 2, 15

Rajah v. Mukasey,

544 F.3d 427 (2d Cir. 2008)..................... 10, 11, 12

Roark v. S. Iron R-1 Sch. Dist.,

573 F.3d 556 (8th Cir. 2009) ..0...00....ceccecccce eee. 18

Sarsour v. Trump,

2017 U.S. Dist. LEXIS 43596

i I ids sean bapvagannboasasseneatoceveceoress 17, 18

Washington v. Trump,

847 F.3d 1151 (9th Cir. 2017)........................ dices 2

Washington v. Trump,

868 F.3d 933 (Sth Cir. 2017)............0.....-200- me 9

Washington v. Trump,

868 F.3d 1168 (9th Cir. 2017).................csseceeeeee: 14

Constitutions, Statutes, Executive Orders,

and Regulations

es Oe I vrcccccscscecssscecscesouecesotoneses 6, 12

Exec. Order No. 13,780 (Protecting the

Nation from Foreign Terrorist Entry into

the United States), 82 Fed. Reg. 13,209

on conmmeneaceueces passim

Other Authorities

Seung-Whan Choi & Idean Salehyan,

No Good Deed Goes Unpunished:

Refugees, Humanitarian Aid, and

Terrorism, 30 CONFLICT MGMT. &

PEACE SCI. 53 (2013) (abstract) ........................+0. A

v1

Mark Krikorian, Comey: 15 Percent of Terror

Cases Came as Refugees, NATL REVIEW

(May 8, 2017, 4:50 PM), www.national-

review.com/corner/447423/comey-terror-

RE De alt rite AR cit

Read the full testumony of James Comey

in which he discusses Clinton email

investigation, WASHINGTON Post (May

3, 2017), 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/?utm_term=.874b0288f409.......

Jay A. Sekulow & Erik M. Zimmerman,

Posting the Ten Commandments is a

“Law Respecting an Establishment of

Religion”?: How McCreary County v.

ACLU Illustrates the Need to Reexamine

the Lemon Test and its Purpose Prong,

23 T.M. CoOOLEy L. REV. 25 (2006) ..................

U.S. Dep’t of State, Country Reports on

Terrorism 2015, June 2016, www.state.

gov/documents/organization/258249.pdf........

one

1

AMICUS CURIAE BRIEF IN SUPPORT OF

PETITIONERS AND URGING REVERSAL

OF THE DECISIONS BELOW

AND VACATION OF THE

PRELIMINARY INJUNCTIONS

In this brief, amicus curiae, the American Center

for Law and Justice, addresses the President’s broad

discretion over immigration matters and

demonstrates how the Executive Order does not

violate the Establishment Clause (the second

question presented). Counsel for the parties consent

to the filing of this brief.'

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 curiae briefs before

this Court and other courts around the country in

cases involving the Establishment Clause and

immigration law. See, e.g., United States v. Texas,

136 S. Ct. 2271 (2016); Pleasant Grove City uv.

Summum, 555 U.S. 460 (2009); FEC v. Wis. Right to

Life, 551 U.S. 449 (2007); McConnell v. FEC, 540

U.S. 93 (2003); Lamb’s Chapel v. Ctr. Moriches Union

Free Sch. Dist., 508 U.S. 384 (1993); Bd. of Educ. 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

Mergens ex rel. Mergens, 496 U.S. 226 (1990);

Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017);

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

Refugee Assistance Project v. Trump, 857 F.3d 554

(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 250,000 Americans who have

stood in support of the President’s Executive Order

Protecting the Nation from Foreign Terrorist Entry

into the United States.

SUMMARY OF THE ARGUMENT

The federal government’s primary job is to keep

this nation safe. The President’s revised national

security Executive Order (“EO”)? is designed to do

just that. The EO temporarily pauses entry into the

United States of refugees and nationals from six

unstable and/or terrorism-infested countries to allow

time for needed improvements to the immigration

and refugee screening processes.

Under the Constitution and federal statutes, the

President has broad power to exclude aliens from this

country for national security reasons. Courts

2 Exec. Order No. 13,780 (Protecting the Nation from

Foreign Terrorist Entry into the United States), 82 Fed. Reg.

13,209 (Mar. 9, 2017).

3

generally defer to the exercise of the President's

power in this area, which is what the lower courts

should have done here. The EO is a valid exercise of

President Trump’s authority that should not be

disturbed.

Moreover, the mere suggestion of a_ possible

religious or anti-religious motive, mined from past

comments of a political candidate or his supporters

uttered on the campaign trial as private citizens, is

not enough to defeat the EO. Even under Lemon’s

purpose prong, all that is needed to establish the

constitutionality of a government action is that it

have a secular purpose and was not motivated wholly

by religious considerations. The EO clearly serves a

genuine secular purpose—protecting our national

security—and is not motivated by anti-religious

considerations.

The decisions below should be reversed and the

preliminary injunctions should be vacated to permit

the EO to be enforced in full to protect our nation

from foreign terrorists.

4

ARGUMENT

I. The Executive Order should be reviewed

under the deferential standards applicable

to the immigration policymaking and

enforcement decisions of the _ political

branches, which the Executive Order

satisfies.

These cases involve the special context of an EO

concerning the entry into the United States of

refugees as well as nationals of six countries of

particular concern, enacted pursuant to the

President's constitutional and statutory authority.®

3 The six countries of concern are [ran, Libya, Somalia,

Sudan, Syria, and Yemen primarily becanse they are terrorist

breeding grounds. E.g., Exec. Order No. 13,780, 82 Fed. Reg.

13,209, § 1 (findings supporting national security basis for EO);

U.S. Dep’t of State, Country Reports on Terrorism 2015, June

2016, www.state.gov/documents/organization/258249.pdf, at 11-

12 (discussing terrorism in Somalia), 165-66 (describing Syria,

Libya, and Yemen as primary theaters of terrorist activities),

299-302 (designating Iran, Sudan, and Syria as state sponsors

of terrorism). Moreover, as noted in sociological literature, large

numbers of incoming refugees, particularly those without

adequate background verification, can pose the potential for a

higher risk of terrorist activity to a welcoming nation. As one

study explains, “[a] cross-national time-series data analysis of

154 countries from the years 1970-2007 shows evidence that

countries with many refugees are more likely to experience both

domestic and international terrorism.” Seung-Whan Choi &

Idean Salehyan, No Good Deed Goes Unpunished: Refugees,

Humanitarian Aid, and Terrorism, 30 CONFLICT MGMT. &

PEACE Scl. 53, 53 (2013) (abstract).

5

As discussed herein, 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, which

is what the lower courts should have done here.

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, 430 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

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 do the decisions below undermine the

President's national security authority, they also

undercut the considered judgment of Congress (in

bolstering the President’s broad discretion) that

6

[w]lhenever 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) (emphasis added).

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

and should be upheld in full. As this Court recently

noted,

[njational-security policy is the prerogative of

the Congress and President. Judicial inquiry

into the national-security realm raises

concerns for the separation of powers in

trenching on matters committed to other

branches. . For these and other reasons,

courts have shown deference to what the

Executive Branch has determined .. . is

essential to national security. Indeed, courts

7

traditionally have been reluctant to intrude

upon the authority of the Executive in military

and national security affairs unless Congress

specifically has provided otherwise. Congress

has not provided otherwise here.

Ziglar v. Abbasi, 137 S. Ct. 1843, 1861 (2017)

(citation and internal quotation marks omitted).

B. The Executive Order is constitutional

under this Court’s deferential standards

applicable to 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

8

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.

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, this 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 illegitimate

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.

9

Id. at 792 (citation 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. Furthermore, 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,” id. at 799, and concluded

that the plaintiffs raised “policy questions entrusted

exclusively to the _ political branches of our

Government.” Jd. at 798.

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 the order was issued. Instead, 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 closely tethered to well-established

discretionary powers vested in the Executive Branch

by the Constitution and statute. The EO temporarily

10

pauses entry into the United States of refugees under

the United States Refugee Admissions Program as

well as nationals of six unstable and/or terrorism-

infested countries, which were designated as such by

the prior administration, for the legitimate secular

purpose of allowing time for needed improvements to

the immigration and refugee screening processes.

The EO does not single out Muslims for disfavored

treatment. The countless millions of non-American

Muslims who live outside the six countries of

particular concern are not restricted by the EO.

Neither does it 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. There is ample justification for the

determination of multiple administrations that the

six designated countries pose a particular risk to

American national security. Respondents’ objection to

the EO is a policy dispute that should be resolved by

the political branches, not by the federal courts.

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

L1

twenty-four Muslim majority countries and North

Korea were eventually designated. Jd. 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 lower courts 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 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.

12

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

Similarly, the EO at issue here is constitutional.

Il. The Executive Order is constitutional even

under a traditional Establishment Clause

analysis.

As noted previously, consideration of the EO must

take into account the deferential nature of judicial

review of immigration-related actions. Nevertheless,

the EO is’ constitutional even under _ non-

immigration-related Establishment Clause

jurisprudence. The Fourth Circuit determined

(wrongly) that the EO likely’ violates’ the

Establishment Clause. Jt. App. at 236. The Ninth

Circuit did not reach the issue. Jd. at 1178.

Assuming the “purpose prong” of the Lemon uv.

Kurtzman, 403 U.S. 602(1971), test applies, the EO

clearly satisfies it. The EO’s predominant purpose is

its stated objective, namely, protecting national

4 In affirming parts of the preliminary injunction issued by

the Hawaii trial court, the Ninth Circuit employed a novel

reading of 8 U.S.C. § 1182(f) to conclude that the President

exceeded his statutory authority by not making sufficient

findings. Jt. App. at 1209. The Ninth Circuit's reading of

Section 1182(f) is wrong because it directly contradicts the

statute's unambiguous language providing the President with

broad discretion to suspend or restrict entry of aliens into our

country “whenever fie finds that [their entry] would be

detrimental to the interests of the United States.” (emphasis

added),

13

security, and, therefore, the government action here

has a “secular legislative purpose.” Jd. at 612-13.°

The Fourth Circuit sidestepped the EO’s obvious

secular purposes by focusing on miscellaneous

comments made by then-candidate Trump, or his

advisors, which is flawed for at least four 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. v. ACLU of Ky., 545 U.S. 844, 862

(2005) (citation and internal quotation marks

omitted); see also id. (noting that the primary

purpose inquiry is limited to consideration of “the

‘text, legislative history, and implementation of the

statute,’ or comparable official act”) (citation omitted

and emphasis added).

The Fourth Circuit relied upon several quotes,

made as long ago as 2015, by then-candidate Trump

5 The suggestion that the EO should be reviewed under

Lemon's purpose prong is particularly troubling given the

flawed and inconsistent nature of the test. See Jay A. Sekulow

& Erik M. Zimmerman, Posting the Ten Commandments is a

“Law Respecting an Establishment of Religion”?: How McCreary

County v. ACLU Illustrates the Need to Reexamine the Lemon

Test and Its Purpose Prong, 23 T.M. COOLEY L. REv. 25 (2006)

(discussing the irrational and inconsistent results produced by

application of the Lemon test, especially the purpose prong).

14

and/or individuals holding some non-governmental

position within his political campaign. Jt. App. at

219-22. Clearly, comments made, or actions taken, 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.” McCreary

Cnty., 545 U.S. at 862; 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,

536 U.S. 765, 780 (2002). Thus, the Fourth Circuit

failed to properly limit its inquiry to official acts or

statements in conducting its Establishment Clause

analysis. Presidential campaign rhetoric is

inherently unofficial and unreliable and should not

be considered. See Washington v. Trump, 858 F.3d

1168, 1173 (9th Cir. 2017) (Kozinski, J., dissenting

from denial of reconsideration en banc) (explaining

that, for Establishment Clause analysis, it “is folly”

to consider a political candidate’s campaign trail

rhetoric, which is_ often contradictory or

inflammatory).

Second, the Fourth Circuit's extensive 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

15

religious motives of the legislators who enacted the

law.” Bd. of Educ. v. Mergens ex rel. Mergens, 496

U.S. 226, 249 (1990) (plurality opinion) (emphasis

added). In short, the lower court 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, especially when

the content of the current EO is substantively

different from the now-repealed previous executive

order. In fact, a foray into the malleable arena of

legislative history is not even a requirement in all

Establishment Clause cases. See Mueller v. Allen,

463 U.S. 388, 394-95 (1983) (noting this Court's

“reluctance to attribute unconstitutional motives to

the [government] particularly when a _ plausible

secular purpose . . . may be discerned from the face of

the statute”); see also Wallace v. Jaffree, 472 U.S. 38,

74 (1985) (O’Connor, J., concurring) (explaining that

inquiry into the government’s purpose should be

“deferential and limited”).

As Judge Niemeyer explained in his dissenting

opinion in International Refugee Assistance Project,

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.” Jt. App. at 349

(Niemeyer, J., dissenting). In the few cases in which

the Court has invalidated government actions based

16

on a religious purpose, for example, Edwards uv.

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.” Jt. App. at 350-

51 (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].” 7d. at 351. “Conflicting

extrinsic statements made prior to the [EO]’s

enactment surely cannot supplant its facially

legitimate national security purpose.” Jd.

Third, 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,” Lynch uv.

Donnelly, 465 U.S. 668, 681, 700 n.6 (1984) (citation

omitted and emphasis added), and a policy is invalid

under this test only if “the government acts with the

ostensible and predominant purpose of advancing

religion.” McCreary Cnty., 545 U.S. at 860 (emphasis

added); see also Van Orden v. Perry, 545 U.S. 677,

703 (2005) (Breyer, J., concurring) (upholding

government action that “servjed] a mixed but

primarily nonreligious purpose”); Bowen v. Kendrick,

17

487 U.S. 589, 602 (1988) (“[A] court may invalidate a

statute only if it is motivated wholly by an

impermissible purpose.”) (emphasis added).

The EO clearly serves secular purposes and,

therefore, it satisfies Lemon’s purpose test. See

Sarsour v. Trump, 2017 U.S. Dist. LEXIS 43596, at

*24-34 (E.D. Va. 2017) (rejecting the claim that the

EO violates the purpose prong of Lemon and noting

that the EO is a facially lawful exercise of the

President’s authority and that the stated national

security purpose of the EO is not a pretext for

discrimination against Muslims).®

Lastly, 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,

6 Further evidence to dispel the notion that the EO is 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 the FBI has over 2,000 “violent extremist investigations”

and “about 300 of them [roughly 15%] are people who came to

the United States as refugees.” Read the full testimony of FBI

Director James Comey in which he discusses Clinton email

investigation, WASHINGTON POST (May _ 3, 2017)

www.washingtonpost.com/news/post-politics/wp/2017/05/03/rea

d-the-full-testimony -of-fbi-director-james-comey-in-which-he-di

scusses-clinton-email-investigation/?utm_term=.874b0288f409;

see also Mark Krikorian, Comey: 15 Percent of Terror Cases

Came as Refugees, NAT'L REVIEW (May 8, 2017, 4:50 PM),

www.nationalreview.com/corner/447423/comey-terror-cases-ref

ugees.

18

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., 545 U.S. at 874; see also ACLU of

N.J. ex rel. Lander 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.) (citation

omitted); Roark v. S. Iron R-1 Sch. Dist., 573 F.3d

556, 564 (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.’).

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 Sarsour, 2017

U.S. Dist. LEXIS 43596, at *33 (“[T]he substantive

revisions reflected in [the EO] 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 EQ] is to discriminate against Muslims based

on their religion and that [the EO] is a pretext or a

sham for that purpose.”).

19

The EO was narrowly crafted to address concerns

raised during litigation over the prior executive

order, with the secular goal of protecting national

security. 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”).

Plain and simple, the EO does not violate the

Establishment Clause. It should be enforced in full to

protect our nation from foreign terrorists. As Judge

Shedd properly noted in his dissenting opinion

regarding the preliminary injunction upheld by the

Fourth Circuit (words also applicable to the

preliminary injunction upheld by the Ninth Circuit):

the real losers in this case are the millions of

individual Americans whose _ security is

threatened on a daily basis by those who seek

to do us harm... . [T]he security of our nation

is indisputably lessened as a result of the

injunction. Moreover, the President and his

national security advisors (and perhaps future

Presidents) will be seriously hampered in their

ability to exercise their constitutional duty to

protect this country.

Jt. App. at 366-67 (Shedd, J., dissenting).

CONCLUSION

This Court should reverse the decisions below and

vacate the preliminary injunctions.

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

August 2017

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