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

7 Swe tg Wee

FILE COPY MOTION FILED

AUG 14 2017

Scott S. Harris,

Nos. 16-1436 and 16-1540 Clerk

~

IN THE

Supreme Court of the Anited States

DONALD J. TRUMP, PRESIDENT OF THE UNITED

STATES, ET AL., Petitioners,

v.

INTERNATIONAL REFUGEE ASSISTANCE PROJECT,

ET AL., Respondents.

DONALD J. TRUMP, PRESIDENT OF THE UNITED

STATES, ET AL., Petitioners,

v.

STATE OF HAWALL, ET AL., Respondents.

ee

On Writs of Certiorari to the United States Courts of

Appeals for the Fourth and Ninth Circuits

MOTION FOR LEAVE TO FILE AND BRIEF AMICUS

CURIAE OF THE FOUNDATION FOR MORAL LAW

IN SUPPORT OF PETITIONERS

JOHN EIDSMOF

MATTHEW J. CLARK

Counsel of Record

FOUNDATION FOR MORAL LAW

One Dexter Avenue

Montgomery AL 36104

(334) 262-1245

matt@morallaw.org

Counsel] for Amicus Curiae

NN _—————_———————

l

MOTION OF FOUNDATION FOR MORAL LAW

FOR LEAVE TO FILE AMICUS BRIEF

IN SUPPORT OF PETITIONERS

The Foundation for Moral Law respectfully moves

for leave of Court to file the accompanying amicus

brief under Supreme Court Rule 37.3(b). Counsel for

the petitioner has filed a blanket consent. The

Foundation has been unable to obtain consent from

all the respondents.

Amicus Curiae Foundation for Moral Law (“the

Foundation”) (www.morallaw.org) is a national

public-interest organization based in Montgomery,

Alabama, dedicated to the strict interpretation of the

Constitution as written and intended by its Framers

and the right to acknowledge God in the public arena.

The Foundation believes America was founded as

a constitutional republic based upon legal and moral

principles set forth in the Bible. Those principles are

reflected in the Establishment Clause, at issue in this

case. In conformity with its mission to further a

Biblical understanding of law, the Foundation desires

for the Court to have an understanding of Biblical

principles about immigration. In furtherance of its

mission of strictly interpreting the Constitution, the

Foundation also wishes to explain why the

nationwide injunctions issued in these cases fail to

conform with the limits of judicial power defined in

Article IT] of the Constitution.

2

For these reasons, The Foundation for Moral Law

requests that the Court grant leave to file its amicus

brief.

August 17, 2017

Respectfully submitted,

JOHN EIDSMOE

MATTHEW J. CLARK

Counsel of Record

FOUNDATION FOR MORAL LAW

One Dexter Avenue

Montgomery AL 36104

(334) 262-1245

matt@morallaw.org

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

Page

a OO BT I cccccesccccccctccssscesossstvccsmvceees iv

INTEREST OF AMICUS CURIAB.............ccccccccccceeeee 1

SUMMARY OF ARGUMENT. ..000.0.......cccccossecsscseeeseee 2

LEN IE SEEEE ICA tah LS a 2

|. The travel ban does not violate the

Establishment Clause. ..................ccescsescc0--«--..... 2

A. The Establishment Clause has a

narrower application to foreign affairs

than to domestic matters. ........................... 2

B. By failing to give proper weight to the

national-security purpose of the travel

ban, the Fourth Circuit misapplied the

“secular purpose” prong of Lemon. ............. 5

Il. The teaching of the Bible is compatible

with limiting the immigration of foreign

nationals who may be seeking entry into a

country to harm its people.. ................cccccceceeeeee 11

A. God ordained governments to protect

people from evildoers. ...............c0.cssesc0eeee- 12

IT].

Although the Bible forbids oppression

of foreigners, it does not require a

country to have open borders. .................

The President's Executive Order is

compatible with Biblical teaching...........

The universal injunctions issued in these

cases violate Article III of the Constitution. ....19

A.

B.

F.

Neither case is a class action. ..................

A court has no power to issue a decree

for the benefit of a nonparty. ...................

The lower courts’ practice of issuing

universal injunctions violates the

limits on judicial power stated in

I Te cctcttacansincisiesemimisennnnabbiessinnnseueveste

The meager reasoning offered by the

courts of appeals in justification of

their universal injunctions is

i ccisiisniintnascuansttiocindinemmididetsisids

Collateral damage: the nullification of

ED Sy ls GI Be cemtencnstccessconcesecstece

The practice of deliberately selecting

venues perceived as amenable to the

issuance of universal injunctions

undermines the reputation of the

14

.19

.21

.22

.26

iil

federal judiciary for fair and neutral

AAjUAICACION. .....-.-----eeecceeeeeeeeeereernnennennneeens 27

G. This case offers the Court the

opportunity for a long overdue course

correction in the use of equitable

power by the lower courts. ......-..---0-:--0++ 29

CONCLUSION. .....cccccccecceeneeeeeeeeeecrenenerarereeseenenennanenes 30

iv

TABLE OF AUTHORITIES

Page

Cases

Additive Controls & Measurement Sys. v.

Flowdata, Inc., 96 F.3d 1390 (Fed. Cir. 1996).......... 21

Allen v. Wright, 468 U.S. 737 (1984)............0....0000000 21

Arizona v. Evans, 514 U.S. 1 (1995) ..........ccccccceecneees 25

Bresgal v. Brock, 843 F. 2d 1163 (9th Cir.

i seepeduncuececns 25,26

Califano v. Yamasaki, 442 U.S. 682 (1979).............. 27

Camreta v. Greene, 131 S. Ct. 2020 (2011) ......0........ 25

Edwards v, Aguillard, 482 U.S. 578 (1987)................ 6

Gregory v. Litton Systems, Inc., 472 F. 2d 631

a ecssunenetnse 27

Intl Refugee Assistance Project v. Trump,

857 F.3d 564 (4th Cir. 2017) ..................... 8, 19, 20, 24

Kleindienst v. Mandel, 408 U.S. 753 (1972) ..........0.... 2

Lemon v. Kurtzman, 403 U.S. 602 (1971)......... 5, 6, 10

Lewis v. Casey, 518 U.S. 343 (1996)...........ccccccccceeeee, 21

Lujan v. Defenders of Wildlife, 504 U.S. 555

i snuttinennonnenannetoce 21

Vv

Lynch v. Donnelly, 465 U.S. 668 (1984).................. 5,7

Marsh v. Chambers, 463 U.S. 783 (1983) ................... 6

Martin v. Wilks, 490 U.S. 755 (1989)..................cc000e 26

Plaut v. Spendthrift Farm, Inc., 514 U.S. 211

ee 23, 24

Regal Knitwear Co. v. NLRB, 324 US. 9

REID cnveiiiceietsinntesnenmapuatenedsuinientitinnsnecsentantianminmnemmisdcnnitl 21

Rumsfeld v. Forum for Academic &

Institutional Rights, Inc., 547 U.S. 47 (2006)........... 19

Sandford v. R.L. Coleman Realty Co., Inc.,

8s 8, f | ed 26

State of Hawaii v. Trump, 859 F.3d 741 (9th

GIG TEU sienscnsnssicusienenenidasenerinqunennnmneenanniets 20, 24, 25

Summers v. Earth Island Inst., 555 U.S. 488

ee 29

Trump v. Intl Refugee Assistance Project,

Nos. 16-1436 and 16-1540 (June 26, 2017)......... 19, 20

United States v. Texas, 136 S. Ct. 2271

Valley Forge Christian College v. Americans

United for Separation of Church and State,

PE Re ee 23

vi

Virginia Soc. for Human Life v. F_E.C., 263

fo 0 UU) 5. ee 25

Constitutions, Statutes, and Rules

RS eee 1, 2, 19, 22, 23

The Declaration of Independence (1776)............. 11, 12

Exec. Order No. 13780, 82 Fed. Reg. 13209

SE, Sik BE Petterncnnncsnctecnimpeninniatninstitiaencinteantenseiie 17, 18

8 RN 8 eee 26, 27

pO a 21

BI EG Ss ti icndepnianicsinncerenidataietanainienineniinepenaidinnnesmentniaphns 25

8 U.S.C. §§ 1182(f) and 1185(a)...........cccccececeeeeeeeeeene 17

Other Authority

David Barton, Original Intent: the Courts,

the Constitution, and Religion (2008). ...................... 14

David Benjamin and Steven Simon, The Age

of Sacred Terror: Radical Islam's War

ee iicrinictenitctentnictnintincnenneieancipeniiinninns 8

Getzel Berger, Nationwide Injunctions

Against the Federal Government: A

Structural Approach, 92 N.Y.U. L. Rev.

Black’s Law Dictionary (10th ed.)....................0+. 10, 11

vii

William Blackstone, Commentaries on the

Samuel L. Bray, Multiple Chancellors:

Reforming the National Injunction, 131

Harv. L. Rev. (forthcoming 2017) ................. 27, 28, 29

Robert L. Cord, Separation of Church and

State: Historical Fact and Current Fiction

(Baker Book House 1988) (1982) ..............cccccc00e. 3, 4,5

John Eidsmoe, Christianity and the

RR TE 12, 13, 14

Wayne Grudem, Politics According to the

EES CRE, eens a aR oe 13, 15, 16

James Hoffmeier, The Immigration Crisis:

Immigrants, Aliens, and the Bible (2009)................. 15

TERE AST Oe aaa ee EDEL EET AF passim

Thomas Jefferson, Second Inaugural Address

STi till cichcaccincireiesicinainbiciinesiiesbiecttataedneeibdsinkeaaathiaaaniabeiieaaaait 2,3

Efraim Karsh, Islamic Imperialism: A

RRR ESS Ty aE Se ee CEE 8

RI cicecinteseitsianiciceiiahaciaateenite ett et 8

John Locke, Second Treatise of Government

(1689) (quoting King James I), reprinted in

Classics of Political and Moral Philosophy

(Steven M. Cahn ed., 2002) .............cccccccccccccccccseseeeeee 12

Donald Lutz, The Origins of American

a ES SOTO re 14

Michael T. Morley, De Facto Class Actions?

Plaintiff- and Defendant-Oriented

Injunctions in Voting Rights, Election Law,

and Other Constitutional Cases, 39 Harv.

cee, 8, SEES eno 29

, Nationwide Injunctions, Rule

23(BY(2), and the Remedial Powers of the

Lower Courts, 97 B.U. L. Rev. 615 (2017) ................ 27

Pew Research Center,

Muslim-Majority Countries (Jan. 27, 2011),

irre cnntnrenseniiniinnmntentanpebdndnienies )

Pew Research Center,

Table: Muslim Population by Country (Jan.

27, 2011), https://goo.gV/aT6k Vk... ccccececeeeeeeeeeeeee g

Rousas John Rushdoony, The Institutes of

PNR RE SRO Se Fs 15

Joseph Story, Commentaries on the

RS LR SAS SN YB ONT DRPERE eD 3

Quran in English (Talal Itani, trans.),

http://www.clearquran.com ................csecccceeeeeeeeeereereees 7

1

INTEREST OF AMICUS CURIAE!

Amicus Curiae Foundation for Moral Law (“the

Foundation”) (www.morallaw.org) is a national

public-interest organization based in Montgomery,

Alabama, dedicated to the strict interpretation of the

Constitution as written and intended by its Framers

and the right to acknowledge God in the public arena.

The Foundation believes America was founded as

a constitutional republic based upon legal and mora!

principles set forth in the Bible. Those principles are

reflected in the Establishment Clause, at issue in this

case. In conformity with its mission to further a

Biblical understanding of law, the Foundation desires

for the Court to have an understanding of Biblical

principles about immigration. In furtherance of its

mission of strictly interpreting the Constitution, the

Foundation also wishes to explain why the

nationwide injunctions issued in these cases fail to

conform with the limits of judicial power defined in

Article III of the Constitution.

' Counsel for the petitioner has filed a blanket consent. The

Foundation has been unable to obtain consent from all the

respondents. Pursuant to Rule 37.6, no party or party’s counsel

authored this brief in whole or in part, or contributed money

that was intended to fund its preparation or submission; and no

person other than the amici curiae, their members, or their

counsel, contributed money that was intended to fund the

preparation or submission of this brief.

2

SUMMARY OF ARGUMENT

e« The Establishment Clause applies less

stringently in foreign affairs, and the travel

ban has a secular national-security purpose.

e The travel ban is compatible with the teaching

of the Bible on immigration.

¢ The universal injunctions issued in these cases

violate Article ITI of the Constitution.

ARGUMENT

Il The travel ban does not violate the

Establishment Clause.

A. The Establishment Clause has a

narrower application to foreign affairs

than to domestic matters.

The United States correctly asserts that this

Court has uniformly held that when the Executive

exercises the power to exclude aliens “on the basis of

a facially legitimate and bona fide reason, the courts

will [not] look behind the exercise of that discretion.”

Kleindienst v. Mandel, 408 U.S. 753, 770 (1972).

The early history of this country supports the

conclusion that establishment concerns are more

attenuated in regard to foreign affairs.

One of the most ardent advocates of separation of

church and state, Thomas Jefferson, said in his

Second Inaugural Address,

3

In matters of religion I have considered

that its free exercise is placed by the

Constitution independent of the powers of

the General Government. | have therefore

undertaken on no occasion to prescribe the

religious exercise suited to them, but have

left them, as the Constitution found them,

under the direction and discipline of the

church or state authorities acknowledged

by the several religious societies.?

Justice Joseph Story stated that “the whole power

over the subject of religion is left exclusively to the

State governments, to be acted upon according to

their own sense of justice and the State

Constitutions.”®

From these and other statements of the Framers,

Professor Robert L. Cord concludes:

[Rlegarding religion, the First Amendment

was intended to accomplish three purposes.

First, it was intended to prevent the

establishment of a national church or

religion, or the giving of any religious sect

or denomination a preferred status. Second,

it was designed to safeguard the right of

freedom of conscience in religious beliefs

against invasion solely by the national

Government. Third, it was so constructed

® Thomas Jefferson, Second Inaugur../ Address (1805),

http://avalon.law.yale.edu/19th_century/jefinau2.asp.

3 Joseph Story, Commentaries on the Constitution § 1879

(1833).

4

in order to allow the States, unimpeded, to

deal with religious establishments and aid

to religious institutions as they saw fit.‘

This third purpose of the First Amendment—

preventing federal interference with the States in

their dealing with religion— clearly does not apply to

the Federal Government in its dealings in foreign

affairs such as immigration. Consequently, the

Confederation Congress and early Presidents such as

Jefferson interacted with religion in foreign affairs in

ways that they would not have done in domestic

matters.

For example:

¢ The Preamble to the Northwest Ordinance of

1787 states: “Religion, morality and

knowledge, being necessary to good

government and the happiness of mankind,

schools and the means of education shall

forever be encouraged.” Because the Northwest

Ordinance applied to territories that were not

yet states, it was not seen as conflicting with

the later-adopted First Amendment.

e Another Act of Congress in 1787 reserved

special lands “for the sole use of Christian

Indians” and reserved lands for the Moravian

Brethren “for civilizing the Indians and

promoting Christianity." This act was

* Robert L. Cord, Separation of Church and State: Historical

Fact and Current Fiction 15 (Baker Book House 1988) (1982).

5 Td. at 41.

5

renewed in 1796 as “An Act regulating the

grants of land appropriated for Military

services and for the Society of the United

Brethren for propagating the Gospel among

the Heathen.”®

e In 1803 Congress ratified a treaty proposed by

the Jefferson Administration with the

Kaskaskia Indians that provided, among other

things, for a federal stipend of $100 annually

for seven years for the support of a Catholic

priest to minister to the Kaskaskia Indians.

Similar treaties were made with the

Wyandotte Indians in 1806 and with the

Cherokees in 1807.’

These and other examples indicate that Jefferson

and other early Presidents did not understand the

Establishment Clause to restrict them in foreign

affairs to the same extent that it restricted them in

domestic matters.

B. By failing to give proper weight to the

national-security purpose of the travel

ban, the Fourth Circuit misapplied the

“secular purpose” prong of Lemon.

In light of the historical analysis above, it is

doubtful whether the Lemon test, Lemon ov.

Kurtzman, 403 U.S. 602 (1971), or the “endorsement

test,” Lynch v. Donnelly, 465 U.S. 668 (1984),

provides an appropriate framework for analysis of

6 Td.

7 Id. at 38-39.

6

this case. A more fitting framework is the “historical

precedent” test of Marsh v. Chambers, 463 U.S. 783

(1983), in which this Court held that uninterrupted

practices which predate the First Amendment, such

as legislative chaplains, are sanctioned and approved

by the First Amendment.

However, even if the Lemon test is appropriate in

this case, the Fourth Circuit misapplied the secular

purpose prong.

The first prong of the Lemon test asks whether

there is a secular purpose. It does not require that

the secular purpose be the only purpose nor does it

even require that the secular purpose be the main

purpose. It requires only that there be a secular

purpose that is legitimate and not a sham.

The purpose of the travel ban—protecting

America from terrorism—is as clear a_ secular

purpose as anyone could possibly imagine. Candidate

Trump’s motives in advocating a travel ban—

whether to gain votes or any other purpose—are

irrelevant.

Although determining subjective intent is a

perilous enterprise, see, e.g., Edwards v. Aguillard,

482 U.S. 578, 636-39 (1987) (Scalia J. dissenting)

(explaining the impossibility of accurately discerning

the motives that underlie passage of legislation in a

multi-member body), the existence of any secular

purpose is sufficient to satisfy Lemon. The national-

security purpose that is evident on the face of the

executive order, far from being pretextual, has sound

evidentiary support that dispels the allegation that

7

the purpose of the order was to “disapprove of

religion.” Lynch v. Donnelly, 465 U.S. 668, 690

(O’Connor, J., concurring).

Nowhere can the Fourth Circuit bring itself to

deny that there is a genuine concern about terrorism

in the United States and worldwide, that the six

nations under the travel ban have been the origin of

many terrorists, that abundant evidence exists that

these six nations have fomented and supported

terrorism, or that these six nations have been unable

to “vet” those who would emigrate to determine

which of them might have criminal backgrounds or

tendencies toward terrorism. Nor can the Fourth

Circuit deny that combating terrorism is a legitimate

secular purpose. Each of these individually, and all of

them combined, certainly constitute a _ secular

purpose for the travel ban.

But the Fourth Circuit ignored these legitimate

concerns and secular purposes and focused instead

upon statements by Donald Trump, most of them

before he was elected or inaugurated, that supposedly

indicate a religious purpose or motive for the travel

ban.

The Fourth Circuit did not consider the extent to

which terrorist attacks in the United States and

worldwide are conducted by Muslims, or the extent to

which Muslim terrorists are motivated by their

understanding of Islam to commit terrorist acts.* The

§ Passages in the Koran which some have interpreted to call

for jihad include 2:190-93, 216, 217, 246; 4:74-78, 91, 104; 9:5,

29, 36, 41, 84, 123; and 47:4-6. See Quran in English (Talal

Itani, trans.), http://www.clearquran.com. For evidence of the

8

Fourth Circuit did not consider the question whether,

if in fact a religious group is promoting terrorism,

there is a secular purpose in identifying the source of

that terrorist ideology, even if Candidate Trump did

not identify that source with the precision he might

have used later in the campaign or during his

Presidency. Instead, the Fourth Circuit took out of

context a few statements made by Candidate Trump,

imputed them to President Trump and all those in

his Administration who had a role in developing and

implementing the travel ban.

The Fourth Circuit effectively accused President

Trump of duplicity by first identifying the problem as

Muslim terrorism and then limiting the travel ban to

specific countries. The opinion cites former New York

City Mayor Rudolph Giuliani as claiming Trump told

him to “Put a commission together. Show me the

right way to do it legally.” Intl Refugee Assistance

Project v. Trump, 857 F.3d 654, 577 (4th Cir. 2017).

The most sensible interpretation is that Mr. Trump,

who is not a lawyer, sincerely wanted to find a way to

stop radical terrorism in a way that does not violate

the Constitution. But the Fourth Circuit

misconstrued this to mean that the President was

trying to evade the Constitution rather than comply

with it.

The Fourth Circuit also overlooked the reality

that the six nations directly affected by the travel

ban—Iran, Libya, Somalia, Sudan, Syria, and

violent side of Islam, see David Benjamin and Steven Simon,

The Age of Sacred Terror: Radical Islam's War Against America

(2005); Efraim Karsh, Islamic Imperialism: A History (2006).

9

Yemen - have a combined population of about 166

million people.® Since the global Muslim population is

about 1.6 billion,’ then only 10.4% of the world’s

Muslims are affected by the travel ban. Moreover,

those six countries range from Sudan which is 71.4%

Muslim to Iran which is 99.7% Muslim.!! Christians,

Jews, and persons of other religions who live in those

countries are also affected by the ban.

Furthermore, other nations with significant

Muslim populations (some with higher percentages

than those nations included in the ban) are not

included in the ban because they do not export

terrorism or are able to “vet” their potential

emigrants. Those include Afghanistan (99.8%

Muslim), Algeria (98.2%), Azerbaijan (98.4%),

Bahrain (81.2%), Bangladesh (90.4%), Comoros

(98.3%), Djibouti (97%), Egypt (94.7%), Gambia

(95.3%), Guinea (84.2%), Indonesia (88.1%, and the

largest Muslim populatior of any nation in the

world), Iraq (98.9%), Jordai .¥8.8%), Kosovo (91.7%),

Kuwait (86.4%), Kyrgyzstan (88.8%), Maldives

(98.4%), Mali (92.4%), Mauritania (99.2%), Mayotte

(98.8%), Morocco (99.9%), Niger (98.3%), Oman

(87.7%), Pakistan (96.4%), Palestinian Territories

(97.5%), Qatar (77.5%), Saudi Arabia (97.1%),

Senegal (95.9%), Tajikistan (99%), Tunisia (99.8%),

Turkey (98.6%), Turkmenistan (93.3%), United Arab

® These population figures are for 2010. Pew Research

Center, Table: Muslim Population by Country (Jan. 27, 2011),

https://goo.gl/a76kVk.

10 Pew Research Center, Muslim-Majority Countries (Jan.

27, 2011), https://goo.gl/cRwapt.

11 Muslim Population by Country, supra n.9.

10

Emirates (76%), Uzbekistan (96.5%), and Western

Sahara (99.6).!2

It is difficult to understand how a travel ban that

applies to only six nations that are known to export

terrorism and cannot or will not “vet” prospective

emigrants, that also applies to non-Muslims living in

those six countries, that applies to only 10.4% of the

world’s Muslims, and that does not apply to at least

35 majority-Muslim nations, is aimed at religion, is

motivated by religious “animus,” and has no secular

purpose.

Furthermore, the travel ban has been further

tailored so that it does not restrict people who

already have visas, and is in effect for only 90 days

for the six nations and 120 days for all refugees.

The United States has definitely satisfied the

“secular purpose” prong of the Lemon test. Keeping

the American people safe from terrorism is as clear

and important a secular purpose as one can

imagine.14

12 Td.

13 Because the Fourth Circuit did not reach the second and

third prongs of the Lemon test, the Foundation also does not

address them.

ll

Il. The teaching of the Bible is compatible

with limiting the immigration of foreign

nationals who may be seeking entry into a

country to harm its people.

A number of religious organizations, including

those with an emphasis on refugee resettlement, filed

an amicus brief earlier in this case suggesting that

Biblical principles required them to support the

respondents. See Case Nos. 16A1190 & 16A1191,

Brief for Interfaith Group of Religious and

Interreligious Organizations as Amici Curiae

Supporting Respondents’ Oppositions to the Stay

Applications (June 12, 2017). Similarly, other

religious organizations suggested last year in United

States v. Texas, 136 S. Ct. 2271 (2016) that their

Christian principles required them to support

President Obama’s executive order granting amnesty

to millions of illegal immigrants. Case No. 15-674,

Amicus Curiae Brief of Faith-Based Organizations In

Support of the United States and Reversal, at 10

(quoting Leviticus 19:33-34).

As a Christian organization, the Foundation

would like to provide a fuller perspective on what the

Bible says about immigrants.

At the inception of America as a nation, the

Declaration of Independence (1776) invoked “the laws

of nature and of nature’s God” as justification for

separation from Britain. /d., para. 1.14 Blackstone

“4 The United States Code recognizes the Declaration of

Independence as part of this nation’s “organic laws.” Black’s

Law Dictionary defines “organ’: law” as “[t]he body of laws (as

12

explained that the “law of nature” is “the will of

[man’s] Maker{[.}” 1 William Blackstone,

Commentaries on the Laws of England *39. Although

God made the law of nature accessible through

human reason, He also delivered that law through

“an immediate and direct revelation.” Id. at *42.

The doctrines thus delivered we call the

revealed or divine law, and they are to be

found only in the holy scriptures. ...

Upon these two foundations, the law of

nature and the law of revelation, depend all

human laws; that is to say, no human laws

should be suffered to contradict these.

Id. The Declaration’s invocation of divine law makes

Biblical analysis peculiarly relevant to American law.

A. God ordained governments to protect

people from evildoers.

As John Locke recognized, mankind has the

authority to establish earthly governments

“according to that pact[] which God made with Noah

after the deluge.” John Locke, Second Treatise of

Government § 200 (1689) (quoting King James J),

reprinted in Classics of Political and Moral

Philosophy 496 (Steven M. Cahn ed., 2002) See also

John Eidsmoe, Christianity and the Constitution 61

in a constitution) that define and establish a government.”

Black's Law Dictionary 1274 (10th ed. 2014).

13

n.20 (2008) (citing other parts of Locke’s writings

that reflect this proposition).

Government is a mechanism to create and enforce

laws. Thus, a prime function of government is to

punish lawbreakers. The first indication in Scripture

of authorization for government by earthly rulers

appears among the commands that God gave to Noah

after the flood: “Whoso sheddeth man’s blood, by man

shall his blood be shed: for in the image of God made

he man.” Genesis 9:6..5 Agreeing with Locke,

theologian Wayne Grudem argues that this passage

is the “first indication of God’s establishment of civil

government in human society,” reasoning that this

mandate gave man the authority to execute the

greatest punishment for the greatest crime as well as

lesser punishments for lesser crimes. Wayne

Grudem, Politics According to the Bible 77 (2010).16

Thus, the first command in the Bible of a

governmental! nature provided for the punishment of

those who hurt innocent people. The New Testament

likewise affirms that civil government exists to

protect the innocent and punish those who do evil.

See Romans 13:3-4 (stating that the ruler “is the

minister of God, a revenger to execute wrath upon

© All Scripture quoted herein is from the King James

Version unless otherwise noted.

6 The first mention of formal government appears one

chapter later in Genesis 10:10 (speaking of the beginning of the

“kingdom” of Nimrod), a further indication that Genesis 9:6 was

the first mandate for civil government. God gave governmental

authority to mankind in general, but it appears that mankind

quickly vested this power in civil governments in order to avoid

anarchy.

14

him that doeth evil”); J Peter 2:13-14 (noting that

rulers “are sent by him for the punishment of

evildoers, and for the praise of them that do well”).

Those two passages were cited more than any

other Bible passages during America’s founding era.

Donald Lutz, The Origins of American

Constitutionalism 140 (1988). Indeed, the Bible was

the most cited source during America’s founding

period. Id. at 141. Accord Eidsmoe, supra, at 52;

David Barton, Original Intent: the Courts, the

Constitution, and Religion 232 (2008). Thus, the view

that the primary purpose of government is to protect

the innocent and punish the evildoer is not only

fundamentally Biblical but also fundamentally

American.

B. Although the Bible forbids oppression

of foreigners, it does not require a

country to have open borders.

The Bible teaches that God “hath made of one

blood all nations of men for to dwell on all the face of

the earth, and hath determined the times before

appointed, and the bounds of their habitation.” Acts

17:26 (emphasis added). Contrary to the liberal

notion of borderless nations, the Bible teaches not

only that nations are authorized to establish borders,

but also that those borders have been established by

God. Returning to Genesis, we see that the same God

who ordered humanity to fill the earth (impliedly

giving mankind the right to travel) also scattered

mankind over the face of the earth so that they

formed separate nations. See Genesis 9:1 (ordering

mankind to “be fruitful and multiply” and “fill the

15

earth”); 10:32 (noting that “the nations [were] divided

in the earth after the flood”). Because God

established both nation-states and their boundaries,

it is reasonable to infer that a nation’s government

may exclude aliens for good cause if it is in the best

interests of the nation. See Grudem, supra, at 472

(arguing, at the end of a Biblical analysis of

immigration, that it is appropriate “to exclude those

with a criminal record, those who have communicable

diseases, or those who otherwise give indication that

their overall contribution would likely be negative

rather than positive in terms of advancing the well-

being of the nation.”) .

It is certainly true that God commanded the

Israelites to be kind to the strangers among them.

See, e.g., Exodus 22:21 (“Thou shalt neither vex a

stranger, nor oppress him: for ye were strangers in

the land of Egypt.”); Leviticus 19:33-34 (“And if a

stranger sojourn with thee in your land, ye shall not

vex him. But the stranger that dwelleth with you

shall be unto you as one born among you, and thou

shalt love him as thyself; for ye were strangers in the

land of Egypt: I am the LORD your God.”). However,

the Bible uses different Hebrew words when talking

about different groups of aliens. The word used in

Exodus 22:21 and Leviticus 19:33-34 for “stranger” is

“ger,” which refers to “a person who entered Israel

and followed legal procedures to obtain recognized

standing as a resident alien.” Grudem, supra, at 470-

71 (quoting James Hoffmeier, The Immigration

Crisis: Immigrants, Aliens, and the Bible 52 (2009)).

See also 1 Rousas John Rushdoony, The Institutes of

Biblical Law 530 (19738) (describing the “strangers” in

these verses as “permanent residents of the

16

community”). Other Hebrew words were used to

designate foreigners who were not necessarily

entitled to the same privileges. See Grudem, supra, at

471. Thus, as long as all foreigners are “dealt with in

a humane manner,” it is both “legally and morally

acceptable” to exclude non-resident aliens for good

cause. Id.

The Old Testament has multiple examples of

immigration restric\ions. Perhaps the best example is

found in Deuterono,..y 23:3-4, which reads:

An Ammonite or Moabite shall not enter

into the congregation of the LORD; even to

their tenth generation shall they not enter

into the congregation of the LORD for ever:

Because they met you not with bread and

with water in the way, when ye came forth

out of Egypt; and because they hired

against thee Balaam the son of Beor of

Pethor of Mesopotamia, to curse thee.

The Ammonites and Moabites were hostile

towards Israel from the moment that Israel tried to

enter the Promised Land; therefore God refused to

allow them to even enter His assembly. See Exodus

17:14-16 (declaring a permanent state of war with

the Amalekites because they attacked the Israelites

on their way from Egypt to the Promised Land). Even

foreigners from nations that God favored still had to

wait before they could join the congregation.

Deuteronomy 23:7-8 (providing that Egyptians and

Edomites could join the congregation “in their third

generation”). In addition, when the Israelites

17

returned from the exile in Babylon, they forbade both

Samaritans and Israelites who had intermarried with

surrounding the peoples (in violation of God's

command) from helping rebuild the Temple. See Ezra

4:1-3. See also Ezra 9-10. Thus, the Bible not only

permitted but required excluding foreigners for

national security or religious reasons under certain

circumstances.

Cc. The President’s Executive Order is

compatible with Biblical teaching.

In the executive order at issue in this case, the

President of the United States found that “conditions

in six [countries] demonstrate why their nationals

continue to present heightened risks to the security

of the United States[.]” Exec. Order No. 13780, 82

Fed. Reg. 13209, 13210 (Mar. 6, 2017). Finding that

the risk of “erroneously permitting entry of a national

of one of these countries who intends to commit

terrorist acts or otherwise harm the national security

of the United States is unacceptably high,” the

President imposed a temporary ban on the entry of

these nationals for 90 days while our screening

procedures were evaluated. Jd. at 13211. Congress

granted the President this authority under 8 U.S.C.

§§ 1182(f and 1185(a).

As demonstrated above, the first duty of

government is to punish the wicked and protect the

innocent. Genesis 9:5-6; Romans 13:1-7; IJ Peter 2:14-

15. The main responsibility of any civil government is

to protect its own people. By entering the

aforementioned executive order, the President

complied with the obligations of Scripture; he did not

18

violate them, as liberal religious groups would have

this Court believe. In addition, this case is very much

like Deuteronomy 23:3-4, where God imposed a severe

immigration restriction against nationals from Moab

and Ammon because of their people’s hostility

towards Israel. Of course, not every person from

“Moab or Ammon was hostile towards Israel, just as

every person from these six countries is not hostile

towards the United States. See Ruth 1:16 (Ruth the

Moabite pledging to make Israel’s God her God); ai

Samuel 10:2 (noting that Ammonite King Nahash

“shewed kindness” to Israelite King David). But the

friendliness of some Ammonites and Moabites

towards Israel did not negate God’s command, which

was based on those nations’ overall hostility towards

Israel. In the same way, the Bible does not prohibit

the President from implementing a temporary travel

ban as to six designated nations. ’

Both the general Biblical principles about the role

of government and the specific history of excluding

nationals from hostile countries demonstrate that

there is nothing unbiblical about the President's

executive order.

17 The executive order also allows for waivers on a case-by-

case basis. 82 Fed. Reg. 13214-15.

19

Ill. The universal injunctions issued in these

cases violate Article III of the Constitution.

A. Neither case is a class action.

Neither of the cases on appeal is a class action. In

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

554 (4th Cir. 2017) (“IRAP”), the court stated: “This

action was brought by six individuals, all American

citizens or lawful permanent residents who have at

least one family member seeking entry into the

United States from one of the Designated Countries,

and three organizations that serve or represent

Muslim clients or members.” Jd. at 577 (emphasis

added). After finding that plaintiff Doe #1 had

standing to litigate his Establishment Clause claim,

the Fourth Circuit did not bother to determine the

standing of the other plaintiffs. “[B)jecause we find

that at least one Plaintiff possesses standing, we

need not decide whether the other individual

Plaintiffs or the organizational Plaintiffs have

standing with respect to this claim.” Jd. at 586. See

Rumsfeld v. Forum for Academic & Institutional

Rights, Inc., 547 U.S. 47, 52 n. 2 (2006) (stating that

“the presence of one party with standing is sufficient

to satisfy Article JII’s case-or-controversy

requirement”). Thus, the Fourth Circuit affirmed a

national injunction for the benefit of every person in

the United States who might be affected by the

President’s executive order on the basis of a finding

that a single individual had standing to bring the

case. 8

‘8 And even that standing is now in question. See Trump v.

Intl Refugee Assistance Project, Nos. 16-1436 and 16-1540 (June

20

In State of Hawaii v. Trump, 859 F.3d 741 (9th

Cir. 2017) (“Hawaii”), the Court of Appeals held that

both of the plaintiffs, the State of Hawaii and Dr.

Ismail Elshikh, had standing. The Ninth Circuit, like

the Fourth Circuit, did not limit its relief to

redressing tlie grievances of the parties before it but

instead issued an injunction for the benefit of anyone

in the United States who might be affected by the

executive order at issue in the case.

Neither court of appeals provided a detailed

explanation of its decision to grant relief for the

benefit of unknown persons who were not before the

court. The Fourth Circuit’s justification of the

nationwide scope of relief covered only 1 1/2 pages in

a 79-page opinion. JRAP, 857 F.3d at 604-05. The

Ninth Circuit similarly devoted a mere 2 pages out of

81 to the scope of relief. Hawaii, 859 F.3d at 787-88.

Yet the impact of those orders on national

immigration policy depended as much on the scope of

the remedies as it did on the holdings on the merits.

Had the two courts of appeals limited their relief to

the plaintiffs before them, as the contours of judicial

power require in the absence of a class action, this

case would probably not be before the Court. But the

sweeping scope of the relief imposed necessitated

immediate review.

26, 2017), slip opinion, at 7 n.* (noting that counsel for Doe had

informed the Court that Doe's wife had recently received a visa).

21

B. A court has no power to issue a decree

for the benefit of a nonparty.

Laws by their nature apply to everyone but the

judgments of courts apply only to the parties in the

action.’ “Courts do not write legislation for members

of the public at large; they frame decrees and

judgments binding on the parties before them.”

Additive Controls & Measurement Sys. v. Flowdata,

Inc., 96 F.8d 1890, 1394 (Fed. Cir. 1996). Thus, in the

absence of a plaintiff who is suffering an actual or

imminent injury traceable to the actions of a

defendant and that is redressable by a _ judicial

decree, a court has no authority to act. Lujan uv.

Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). A

judgment binds the defendant for the benefit of the

plaintiff but extends no further.

The necessity for standing separates judicial from

executive or legislative power. “[T]he law of Art. III

standing is built on a single basic idea — the idea of

separation of powers,” Allen v. Wright, 468 U.S. 737,

752 (1984), and is “a constitutional principle that

prevents courts of law from undertaking tasks

assigned to the political branches.” Lewis v. Casey,

518 U.S. 343, 349 (1996). “[T]he core component of

standing is an essential and unchanging part of the

case-or-controversy requirement of Article III.”

Lujan, 504 U.S. 560. Nonparties by definition have

no standing to participate in a case.

‘8 Judgments also bind those “in privity” with a defendant.

Regal Knitwear Co. v. NLRB, 324 U.S. 9, 14 (1945). See Rule

65(d)(2), Fed. R. Civ. P.

22

Persons not parties to a case can argue the

persuasiveness of the ruling for adoption as a

precedent in cases to which they are a party but

cannot themselves enforce that judgment by

contempt proceedings against the defendant in the

original case. If a party who is found to lack standing

is not entitled to have its legal rights adjudicated by

a court, neither may a nonparty who never sought

standing at all enjoy the benefit of a judgment to

which it was not a party.

C. The lower courts’ practice of issuing

universal injunctions violates’ the

limits on judicial power stated in

Article ITI.

“The judicial Power of the United States shall be

vested in one supreme Court and in such inferior

Courts as the Congress may from time to time ordain

and establish.” U.S. Const. art. III, § 1. What is the

nature of that “judicial power”? “The judicial Power

shall extend to all cases, in Law and Equity, arising

under this Constitution, the Laws of the United

States, and Treaties made, or which shall be made,

under their authority[.!” Jd. § 2, cl. 1. The

Constitution lists additional “cases” to which the

judicial power extends aand_ also. certain

“controversies.” Jd. Hence arises the familiar phrase

“cases and controversies” as a constitutional

limitation on the exercise of federal judicial power.

Article III of the Constitution limits the

“Judicial power” of the United States to the

resolution of “cases” and “controversies.”

The constitutional power of federal courts

23

cannot be defined, and indeed has no

substance, without reference to the

necessity “to adjudge the legal rights of

litigants in actual controversies.”

Valley Forge Christian College v. Americans United

for Separation of Church and State, Inc., 454 U.S.

464, 471 (1982) (quoting Liverpool S. S. Co. v.

Commissioners of Emigration, 113 U. S. 33, 39

(1885)). A court may constitutionally decide only “the

legal rights of litigants.” It has no authority to

determine the legal rights of nonlitigants. A

nationwide injunction that purports to control the

actions of a defendant not merely against the plaintiff

but against anyone in the world is flatly

unconstitutional.

Federal courts have no general mandate to repeal

laws or nullify executive actions that they find

repugnant to the Constitution. The only power they

possess is to enforce judgments upon the parties

before the Court and no one else.

[T}he philosophy that the business of the

federal courts is correcting constitutional

errors, and that “cases and controversies”

are at best merely convenient vehicles for

doing so and at worst nuisances that may

be dispensed with when they become

obstacles to that transcendent endeavor ...

has no place in our constitutional scheme.

Valley Forge, 454 U.S. at 489. As envisioned by the

Constitution, “[t]he Judiciary would be, ‘from the

nature of its functions, ... the [department] least

24

dangerous to the political rights of the constitution’ ...

because the binding effect of its acts was limited to

particular cases and _ controversies.” Plaut v.

Spendthrift Farm, Inc., 514 U.S. 211, 223 (1995)

(emphasis added) (quoting The Federalist No. 78

(Alexander Hamilton), at 522).

D. The meager reasoning offered by the

courts of appeals in justification of

their universal injunctions is

unpersuasive.

Because a judgment of a court against a defendant

does not operate for the benefit of a nonparty, the

blithe assumption of the courts of appeals in these

cases that their judgments bound the defendant

against the world as opposed to the parties in the

case is completely unconstitutional. The policy

arguments they proffered to justify the universal

application of their judgments merely underscore the

unconstitutionality of their actions. The Fourth

Circuit claimed that its universal injunction was

necessary because “[pjlaintiffs are dispersed

throughout the United States.” JRAP, 857 F.3d at

605. How does that rationale justify extending the

injunction to nonplaintiffs?

The Fourth Circuit, as did the Ninth Circuit,

claimed that the requirement for “uniformity” in

immigration law necessitated a universal injunction.

See id.; Hawaii, 859 F.3d at 787. That policy

rationale, however, does not negate the Article LII

requirement that a judgment only binds the parties

to a case. Furthermore, lack of uniformity in the

application of laws is resolved through appellate

25

processes, not through district court ukases. See Sup.

Ct. R. 10 (listing a conflict between courts as a reason

for granting a petition for a writ of certiorari).?°

The Ninth Circuit quoted the Fourth Circuit for

the proposition that not extending the injunction to

nonparties would allow’ the = statutory’ or

constitutional violations, as the case may be, to

endure in all applications. Hawaii, 859 F.3d at 787.

True enough. But the remedy is not for the district

court to exercise power not bestowed by the

Constitution. Other affected persons may file suit for

their own benefit and argue that the reasoning in a

similar case in another district court should be

adopted in their own case. They may not, however,

receive the judicial gift of a judgment without an

adjudication.?! Such actions are illegal, protestations

of lower courts to the contrary notwithstanding. See,

e.g., Bresgal v. Brock, 843 F. 2d 1163, 1169 (9th Cir.

22 A related incongruity in the issuance of nationwide

injunctions for the benefit of nonparties is that the practice

“conflicts with the principle that a federal court of appeals’s

decision is only binding within its circuit.” Virginia Soc. for

Human Life v. F.E.C., 263 F.3d 379, 393 (4th Cir. 2001). One

circuit is not at liberty to impose its view of the law on all the

other circuits. Jd. at 394. Disagreement between circuits

provides the Supreme Court with a salutary vetting of the law.

“We have in many instances recognized that when frontier legal

problems are presented, periods of ‘percolation’ in, and diverse

opinions from, state and federal appellate courts may yield a

better informed and more enduring final pronouncement by this

Court.” Arizona v. Evans, 614 U.S. 1, 23 n.1 (1995) (Ginsburg,

J., dissenting).

21 District court opinions are not binding precedent in any

other court and, indeed, not even in the district court itself.

Camreta v. Greene, 131 S. Ct. 2020, 2033 n.7 (2011).

26

1987) (stating that “[t]here is no general requirement

that an injunction affect only the parties in the suit”).

E. Collateral damage: the nullification of

Rule 23, Fed. R. Civ. P.

The loose use of the universal injunction remedy

in the absence of a class action has become so

prevalent as to have found its way into the leading

treatise on federal practice as early as 1972. See

Sandford v. R.L. Coleman Realty Co., Inc., 573 F.2d

173, 178 (4th Cir. 1978) (identifying the “settled rule”

that “[wjhether plaintiff proceeds as an individual or

on a class suit basis, the requested [injunctive] relief

generally will benefit not only the claimant but all

other persons subject to the practice or the rule under

attack”) (quoting 7 Wright & Miller, Federal Practice

and Procedure, § 1771, at 663-664 (1972)).

Nonetheless, the fact remains: “A judgment or decree

among parties to a lawsuit resolves issues as among

them, but it does not conclude the rights of strangers

to those proceedings.” Martin v. Wilks, 490 U.S. 755,

762 (1989).

The practice of issuing injunctions for the benefit

of nonparties without drawing those persons into the

case through the class-action mechanism of Rule 23,

Fed. R. Civ. P., may be the most widespread

systematic violation of the Constitution by the lower

federal] courts today. That practice makes Rule 23,

adopted in 1966, a mere cosmetic formality that

courts may use or not use as they desire, but which

does not affect the scope of their powers. In a typical

statement the Sandford court said: “Since the

plaintiffs could receive the same injunctive relief in

27

their individual action as they sought by the filing of

their proposed class action, class certification was

unnecessary ....” 573 F.2d at 178 (footnote omitted).

But cf. Gregory v. Litton Systems, Inc., 472 F. 2d 631,

633 n.4 (9th Cir. 1972) (“[W]e can not hold ... that

Rule 23 is a meaningless formality which this court

should disregard.”). The widespread failure to heed

Rule 23 in ideologically charged cases such as those

before the Court is a further reason to rein in the

undisciplined use of equitable power by the lower

courts. See Samuel L. Bray, Multiple Chancellors:

Reforming the National Injunction, at 15 n.67, 131

Harv. L. Rev. (forthcoming 2017)?2 (stating that “Rule

23(b)(2) makes a class-wide injunctive remedy

available if certain conditions are met; by

implication, this remedy is available only if those

conditions are met”).?3

F. The practice of deliberately selecting

venues perceived as amenable to the

issuance of universal injunctions

undermines the reputation of the

federal judiciary for fair and neutral

adjudication.

The practice of issuing universal rather than

party-specific injunctions has proliferated in recent

years as a way of nullifying presidential actions.

22 Available at https://goo.gi/v1WqFw.

23 Even in the context of class actions, the Supreme Court

has urged courts to exercise caution in granting national

injunctions. See Califano v. Yamasaki, 442 U.S. 682, 701-03

(1979). See generally Michael T. Morley, Nationwide

Injunctions, Rule 23(B\(2), and the Remedial Powers of the

Lower Courts, 97 B.U. L. Rev. 615 (2017).

28

Alert lawyers identify jurisdictions, conservative or

liberal as the case may be, that are attuned to their

cause and file for a national injunction that, if

successful, preempts every other court except the

supervising appellate court from ruling differently.

To complete the coup, district judges are selected in

circuits that are likely to provide favorable review.

Thus, under President George W. Bush

environmentalists filed for national injunctions in the

Ninth Circuit. Under President Obama, opponents of

his more grandiose executive actions sought

nationwide relief in Texas courts in the Fifth Circuit.

Now that a Republican president is again in the

White House, liberals have sought to stymie his

executive actions by filing for universal injunctions in

the Ninth Circuit (Washington and Hawaii) and in

the newly liberal Fourth Circuit.24 The embarrassing

spectacle of agenda-driven lawyers successfully filing

for national decrees before handpicked judges in

carefully selected venues may eventually bring the

federal judiciary into disrepute. This Court has an

obligation to end that practice and to compel the

judges of the lower federal courts to respect the

constitutional limits on judicial power.

* For a survey of the relevant cases, see Bray, Multiple

Chancellors, at 8-10; Getzel Berger, Nationwide Injunctions

Against the Federal Government: A Structural Approach, at 3-4,

92 N.Y.U. L. Rev. (forthcoming 2017), available at

https://goo.g/MTTHaU.

29

G. This case offers the Court the

opportunity for a long overdue course

correction in the use of equitable

power by the lower courts.

The Supreme Court has had two recent

opportunities to rein in the improper practice of

issuing injunctions for the benefit of nonparties. See

Summers v. Earth Island Inst., 555 U.S. 488 (2009)

(resolving case on grounds of standing and therefore

not reaching “the question whether, if respondents

prevailed, a nationwide injunction would be

appropriate”); United States v. Texas, 136 S. Ct. 2271

(2016) (affirming Fifth Circuit decision upholding a

nationwide injunction “by an equally divided Court”

with no written opinions). This case presents another

opportunity to curtail the misuse of equitable judicial

power by the lower federal courts and to call a halt to

the unconstitutional practices described above.

Should respondents prevail in any degree on

justiciability, mootness, and the merits, the

opportunity will be ripe for this Court to address the

propriety of the remedies ordered below. In that

event, this Court will have an opportunity to remind

the lower courts that an injunction constrains the

defendant’s conduct against the plaintiff and no one

else.25

25 Ample and recent scholarship now exists plumbing this

issue in depth and surfacing multiple problems with the current

practices in the lower courts. In addition to Berger and Bray,

supra, see also Michael T. Morley, De Facto Class Actions?

Plaintiff- ard Defendant-Oriented Injunctions in Voting Rights,

Election Law, and Other Constitutional Cases, 39 Harv. J.L. &

Pub. Pol’y 487 (2016).

30

CONCLUSION

The judgments below should be reversed.

Respectfully submitted,

JOHN EIDSMOE

MATTHEW J. CLARK

Counsel of Record

FOUNDATION FOR MORAL LAW

One Dexter Avenue

Montgomery AL 36104

(334) 262-1245

matt@morallaw.org

Counsel for Amicus Curiae