# 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%3A065

## Record

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

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0753%3A065. Public record. Not legal advice.