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

Nos. 16-1436, 16-1540 ——— =

—FITED

IN THE AUG 17 2017

Supreme Court of the United) Stat eg 01-2.

DONALD J. TRUMP, et al.,

Petitioners,

v.

INTERNATIONAL REFUGEE

ASSISTANCE PROJECT, et al.,

Respondents.

On Writ oF CERTIORARI TO THE UNITED STATES

Court oF APPEALS FOR THE Fourts CIRcuIT

BRIEF OF SOUTHEASTERN LEGAL

FOUNDATION AS AMICUS CURIAE IN

SUPPORT OF PETITIONERS

KIMBERLY S. HERMANN WILLIAM 8S. Consovoy

SOUTHEASTERN LEGAL Counsel of Record

FOUNDATION J. MICHAEL CONNOLLY

2255 Sewell Mill Road, Consovoy McCartTuy

Suite 320 Park PLLC

Marietta, GA 30062 3033 Wilson Boulevard,

(770) 977-2131 Suite 700

Arlington, VA 22201

(703) 243-9423

will@consovoy mecarthy.com

Counsel for Amicus Curiae

August 17, 2017

274543 ce

COUNSEL PRESS

(800) 274-3321 * (800) 359-6859

i

TABLE OF CONTENTS

Page

po Fg TET TEE TE ee i

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

IDENTITY & INTEREST OF AMICUS CURIAE ...1

SUMMARY OF THE ARGUMENT................ 2

PEE Se eked er eessanbiecddnedacdsunaunea 3

I. The Fourth Circuit impermissibly ventured

beyond the text to determine the Order’s

SP. ons BUD cd bhvaeeeseeuseneeasenvecess 3

Il. The Fourth Circuit impermissibly

consulted unofficial campaign statements

to determine the Order’s purpose. ............ 8

lil. The Fourth Circuit’s finding that the Order

has an impermissible purpose is untenable

even considering all of the evidence........... 14

ND os od dave vec el sereaGaes kieewewnds 24

12

TABLE OF CITED AUTHORITIES

Cases

ACLU of Ky. v. Grayson Cty.,

591 F.3d 837 (6th Cir. 2010)..............-..

ACLU of Ky. v. Grayson Cty.,

605 F.3d 426 (6th Cir. 2010).................

Adland v. Russ,

307 F.3d 471 (6th Cir. 2002)..............-..

Catholic League for Religious & Civil Rights v.

City & Cty. of San Francisco,

567 F.3d 595 (9th Cir. 2009) .............0..

Comm. For Pub. Educ. & Religious Liberty v.

Nyquist,

PD es vi ca eeesdsechvsasecs

Edwards v. Aguillard,

6 Knipe bonis cetevewesece

Engine Mfrs. Assn. v.

S. Coast Air Quality Mgmt. Dist.,

oo ee ee ee

Evans v. Stephens,

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

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

Se cake bss earcen esse vieteaces

Page

TT. 9

tet

Cited Authorities

Page

Fiallo v. Bell,

> Se re 5, 6, 7, 8

Hamdan v. Rumsfeld,

i sto eek ee ced ecesdon eeu )

Holder v. Humanitarian Law Project,

ES abs CuCuee 65 pe eeaes sc wwnes Oenee 6

Illinois v. Krull,

a Sci tide gees Gone ches tekes 4

INS v. Aguirre-Aguirre,

ee eh vec cacne beeen seen ius 6

INS v. Chadha,

ck wsdncdetsceneedouuenesa 8

Kerry v. Din,

eer errr er 5, 6

Kleindienst v. Mandel,

CE se chccccssvcusdviceses 5, 6, 7,8

McCray v. United States,

coh ngdk ia steetntewdeenensed 4

McCreary Cty. v. ACLU of Ky,.,

PEED Clos ubsoveccpocdceesecd 8, 9, 23

iv

Cited Authorities

Page

McCutcheon v. FEC,

sd Be FF rere ery 13

McGowan v. Maryland,

SO Tare Sr Ns oc cbs ob icestecbacnndessueuel 8

Modrovich v. Allegheny Cty.,

ee fg fe ere re 9

Mueller v. Allen,

GEE Uy I 0s 0d pce scadnctcuevesenesa 4

Phelps v. Hamilton,

GD F.3d 1668 CGth Cir. 1906)... .vcveccsccsncs 13

Prof'ls & Patients for Customized Care v.

Shalala,

OS Fe ee nC BO ooo ev ccccvinunspeeckea 9

Summum v. City of Ogden, |

207 F.3d 906 CLOth Cir. BOOZ) .....cecccccccsccess 9

Tilton v. Richardson,

og re ee 4

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

kk rrr rt or 5,8

United States v. O’Brien,

SOE TE See CH ov bcc ovccecevuceubeus beau 3,4

Vv

Cited Authorities

Page

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

ee ren cd keecdcecadececcesc 4

Wallace v. Jaffree,

css cckceubscedsesessecceces 8, 19

Washington v. Trump,

847 F.3d 1161 (9th Cir. 2017)............... passim

Zadvydas v. Davis,

iE 8

Zubik v. Burwell,

ies cca eins beeeseseceses 14

Statutes & Constitutional Provisions

ee

Liat a vcdeceseseccesenes 12

EE 12

Cn vecdknvecccece 13

ee ee ee eeccoteee 13

vi

Cited Authorities

Other Authorities

1 Robert North Roberts et al., Presidential

Campaigns, Slogans, Issues, and Platforms:

The Complete Encyclopedia (2012)...........

Akhil Reed Amar, Some Opinions on the Opinion

Clause, 82 Va. L. Rev. 647 (1996)...........5.

Alexander M. Bickel, 7'he Least Dangerous

aS £.04600066eueebnnnbsueeens

Att’y Gen. Jeff Sessions, Remarks on Revised

Executive Order Protecting the Nation from

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

Conway: Trump Will Not Pursue Immigration

Ban Based Solely on Religion, CNN

GP EE ES 4 cnc obdesecctnccdseccsoseucs

Donald Trump Back-Pedals on Banning

Muslims from U.S., Wall Street Journal

GE NED Vv cdccwctecccasseveceteséone

Donald Trump: “I Think Islam Hates Us”,

Se SE SEE ocd c cacdeucutvssucedens

Donald Trump Says His Muslim Friends

Support His Muslim Ban, Seattle Post-

Intelligencer, 2015 WLNR 37529330

GPU CRG UE ob 06 cc cvdeenecdssacesaccence

vii

Cited Authorities

Here’s What President Donald Trump's

Immigration Executive Order Means,

REO GR GRD «oo. ciccesevesassscess

Katherine Krueger, Trump Pivots: Only

Muslims from ‘Terrorist Countries’

Would Be Banned, Talking Points Memo

GEE ED ccc vvcreccncccccccecessevees

Kilmeade’s Wide-Ranging Interview w/ Donald

Trump, Fox New~ Radio (May 11, 2016).......

Miller: New Order Will Be Responsive to the

Judicial Ruling, Fox News (Feb. 21, 2017) ....

MSNBC Morning Joe Interview with Donald

Trump (R), Presidential Candidate, Regarding

Muslims in America and Homeland Security,

MSNBC, 2015 WLNR 36290582 (Dec. 8, 2015)...

Obama Angers Midwest Voters with Guns

and Religion Remark, The Guardian

SSRIS i a eH

President Trump’s Speech to the Arab

Islamic American Summit, White House

PE oo ccc Nocceveckiegusckrs oan

Press Gaggle by Press Secretary Sean Spicer,

White House (Mar 6, 2017)...............05.

.16

vrit

Cited Authorities

Press Release, Donald J. Trump Addresses

Terrorism, Immigration, and National Security

En cs ccagadensaedbueecesueeun

Richard M. Re, Promising the Constitution,

110 Nw. U. L. Rev. 299 (2016)..............-.

Roy F. Baumeister, 7'he Cultural Animal (2005) . .

Sec’y John Kelly, Statement on President’s

Enecutive Order Signed Today (Mar. 6, 2017). .

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

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

Stephen J. Wayne, Road to the White House 2016

eG Es ov ccccsccvcoccvcescucceseuss

The Final Push: Clinton, FactCheck.org

Ge GN os vec ccccccsnceccssasseseccense

The War on Terror, the Political Equation,

Fox: O’Reilly Factor, 2015 WLNR 35053429

Ge UG EES oo <owovscccccedcccvesesecuees

Transcript, David Muir Interviews President

Trump, ABC News (Jan. 25, 2017) ...........

Transcript: Donald Trump’s National

Security Speech, Politico (June 13, 2016) ......

ix

Cited Authorities

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

Trump Changing Muslim Ban to Countries with

Terror Links, Newsmax (June 27, 2016).......

Trump on Latest Iteration of Muslim Ban,

CNN (uly 24, 2016).........cceeeesneseeees

Trump: ‘Frankly, We’re Having Problems

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

What Is Donald Trump Even Running on

Anymore? His “Muslim Ban” Shift

Sells Out His Core Constituents, Vox

LS oc s ny ppahhe tee ataburaueess

World News Tonight with David Muir,

ABC World News, 2015 WLNR 34794508

Dc cedeeestncceceseekeuaenanse

1

IDENTITY & INTEREST OF AMICUS CURIAE”

Southeastern Legal Foundation (“SLF’”’) is a nonprofit,

public-interest law firm and policy center. Founded

in 1976, SLF is dedicated to advocating for individual

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

interest in this case stems from its profound commitment

to protecting America’s legal heritage. That heritage

includes the separation of powers, a critical safeguard of

individual liberty.

SLF submits this brief principally to address one

particularly disturbing aspect of the decision below: the

Fourth Circuit’s reliance on media statements to discern

the “real purpose” behind Executive Order 13,780.

Consulting these statements intrudes on the prerogative

of the Executive Branch by allowing individuals outside

the Article II hierarchy to speak for the President. Worse

still, the Fourth Circuit consulted these statements to

override the President’s assessment of national security.

And it read them in the worst possible light for the

President, refusing to give him the presumption of

regularity commensurate with his office. None of this

bodes well for separation of powers.

* Pursuant to this Court’s Rule 37.6, counsel for amicus

curiae certifies that this brief was not authored in whole or in part

by counsel for any party and that no person or entity other than

amicus curiae or its counsel has made a monetary contribution

to the preparation or submission of this brief. The parties have

consented to the filing of this brief.

2

SUMMARY OF THE ARGUMENT

The Fourth Circuit has invoked the Establishment

Clause to enjoin an executive order that bars certain

aliens from entering the United States. See Executive

Order No. 13,780, 82 Fed. Reg. 13,209 (Mar. 9, 2017)

(“Order”). According to the court of appeals, the Order

targets Muslims. But that is untenable. The Order’s text

is not discriminatory: it treats all religions the same. The

Order’s effect is not discriminatory: it targets countries

known to have weak vetting procedures. And the Order’s

purpose is not discriminatory: the official statements

about the Order show that it was enacted to promote

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

courts have enjoined a President’s order based on things

he said on the campaign trail. That is precisely what the

Fourth Circuit did here.

This unprecedented ruling should be reversed. The

evidence is not relevant, appropriate, or persuasive.

When it comes to the admission of aliens, courts must

defer to the political branches. Courts do not look behind

the text of an order to discover its “real” purpose.

Moreover, presidential candidates are not the President

and, constitutionally, they cannot speak for him. Nor are

their statements especially probative; proclamations on

the campaign trail are ambiguous, contradictory, and

quickly forgotten. Put simply, the decision is built on an

illegitimate legal foundation. Courts should not evaluate

federal] laws this way.

But if courts are going to consult these statements,

they should at least give the speaker the benefit of the

doubt and require much more proof of animus than the

Fourth Circuit had here. There is ample evidence that,

3

from the start, the so-called “Muslim ban” was not born

of religious animus. But even if the Court disagrees, the

better reading of the evidence is that Donald Trump

abandoned that type of idea during the campaign in favor

of an entirely legitimate territory-based policy. In other

words, the Fourth Circuit relied not only on statements

from the 2016 campaign, but a heavily revisionist version

of them. This Court should reverse the decision below.

ARGUMENT

The Fourth Circuit’s decision is indefensible. First,

the Order’s legality must be determined based on its

text. Second, even if courts can go beyond the Order’s

text, unofficial campaign statements cannot be used

to determine the Order’s purpose. Third, and last, the

ruling below is wrong even if this evidence is relevant to

proving an Establishment Clause claim. It does not show

anti-Muslim bias.

I. The Fourth Circuit impermissibly ventured beyond

the text to determine the Order’s purpose.

As Chief Justice Warren cautioned nearly fifty

years ago, “(iJnquiries into [the government’s] motives

or purposes are a hazardous matter.” United States

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

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

{actor],” is “almost always an impossible task.” Edwards

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

dissenting). For another, judicial evaluation of a law’s

purpose can easily morph into evaluation of a law’s

wisdom. “[{T Jhat the judiciary may restrain the exercise of

lawful power on the assumption that a wrongful purpose

or motive has caused the power to be exerted” is tempting

4

in theory, but dangerous in practice. McCray v. United

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

all distinction between the powers of the respective

departments of the government, would put an end to that

confidence and respect for each other which it was the

purpose of the Constitution to uphold, and would thus be

full of danger to the permanence of our institutions.” /d.

at 54-55. Courts therefore must evaluate the purpose of

a law “with the most extreme caution.” E’verson v. Bd. of

Educ. of Ewing Twp., 330 U.S. 1, 6 (1947). “(T]he stakes

are sufficiently high for [courts] to eschew guesswork.”

O’Brien, 391 U.S. at 384.

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

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

Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 773

(1973); Tilton v. Richardson, 403 U.S. 672, 678-79 (1971).

Because courts “presume that [the government) act{s] in a

constitutional manner,” J/llinois v. Krull, 480 U.S. 340, 351

(1987), they are “reluctan(|t] to actribute unconstitutional

motives” to it “when a plausible secular purpose ... may be

discerned from the face of the [law].” Mueller v. Allen, 463

U.S. 388, 394-95 (1983). And because the “text” of a law is

the only thing that the government actually “adopted,” it

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

Hosps., Inc. v. Casey, 499 U.S. 83, 98 (1991). That is why

courts “must begin with the language employed by [the

law] and the assumption that the ordinary meaning of

that language accurately expresses [its] purpose.” Hngine

Mfrs. Assn. v. S. Coast Air Quality Mgmt. Dist., 541 U.S.

246, 252 (2004).

The judicial inquiry must end there, too, when the

law regulates the admission of aliens into the United

5

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

“the Executive” need only offer “a facially legitimate and

bona fide reason” for denying entry to aliens. 408 U.S.

753, 770 (1972) (emphasis added). Once the Executive does

so, “courts will neither look behind the exercise of that

discretion, nor test it by balancing its justification against’

the constitutional interests” of the affected individuals.

Kerry v. Din, 135 8. Ct. 2128, 2140 (2015) (Kennedy, J.,

concurring in judgment). There are no exceptions. This

Court has applied Mandel to claims of discrimination

under the First Amendment, zd. at 765-70, and the Fifth

Amendment, Fiallo v. Bell, 480 U.S. 787, 791-99 (1977):

see also Brief for the Petitioners (“Pet. Br.”) 63-65.

The reasons that underlie Mandel’s “narrow standard

of review” are the same “reasons that preclude judicial

review of political questions.” Fiallo, 430 U.S. at 796. The

Constitution generally commits questions concerning

the admission of aliens to the political branches—not

the courts. Congress has “plenary ... power to make

policies and rules for exclusion of aliens,” which it “has

delegated ... to the Executive.” Mandel, 408 U.S. at

769-70; U.S. ex rel. Knauff v. Shaughnessy, 338 U.S.

537, 542-43 (1950); see 8 U.S.C. § 1182(f). “‘[O]ver no

conceivable subject is the legislative power of Congress

more complete” because “the admission of aliens” is “a

fundamental sovereign attribute.” Fiallo, 430 U.S. at

792. In this area, courts are ill-equipped to weigh the

competing concerns. The admission of aliens involves “a

wide variety of classifications [that] must be defined in the

light of changing political and economic circumstances,”

and the “decisions in these matters may implicate our

relations with foreign powers.” Jd. at 796. “The judiciary is

not well positioned to shoulder primary responsibility for

assessing the likelihood and importance of such diplomatic

6

repercussions.” /NS v. Aguirre-Aguirre, 526 U.S. 415,

425 (1999).

The Mandel rule “has particular force in the area of

national security.” Din, 135 8S. Ct. at 2140 (Kennedy, J.,

concurring in judgment). “[WJhen it comes to collecting

evidence and drawing factual inferences” on questions

of national security, “the lack of competence on the part

of the courts is marked.” Holder v. Humanitarian Law

Project, 561 U.S. 1, 34 (2010). When the political branches

act in the national-security realm, courts should be hard-

pressed to discard their stated purpose. After all, “most

federal judges” do not “begin the day with briefings that

may describe new and serious threats to our Nation and

its people.” /d. It is simply “not the judicial role in cases

of this sort to probe and test the justifications for the

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

The Ninth Circuit has concluded that Mandel

applies only to “an individual visa application,” not the

“nromulgation of sweeping immigration policy ... at

the highest levels of the political branches.” Washington

v. Trump, 847 F.3d 1151, 1162 (9th Cir. 2017). But this

distinction “cannot withstand the gentlest inquiry.”

Washington v. Trump, 858 F.3d 1168, 1179 (9th Cir. 2017)

(Bybee, J., dissental). Mandel applies to “a wide variety”

of “decisions made by the Congress or the President,”

including whether “particular classes of aliens ... shall be

denied entry altogether.” Fiallo, 430 U.S. at 796.

The Fourth Circuit wisely acknowledged that

Mandel applies to the Order, but it nevertheless found

that the Order’s national-security justifications were not

“facially legitimate and bona fide.” Pet. App. 42a-47a.

7

The Fourth Circuit interpreted “bona fide” to require

that the proffered reason for the Order be the actual,

primary reason—to be determined by consulting all of

the extratextual evidence. That ruling finds no support

in this Court’s decisions.

The word “facially” in Mandel modifies both

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

Order’s bona fides must be determined based on the text

alone. See Pet. App. 162a-65a (Niemeyer, J., dissenting).

Otherwise, Mandel is meaningless. As the Fourth Circuit

acknowledged, the Lemon test already requires courts to

assess a law’s primary purpose. /d. at 46a (majority op.).

Mandel was not meant to simply duplicate this analysis; it

requires the political branches to prove less out of respect

for their authority over the admission of aliens. Hence,

Mandel asks whether the Executive offered “a facially

legitimate and bona fide reason,” not whether that reason

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

Searching for the primary purpose would require

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

behind” the Executive's justifications, id., and “prob[ing]

and test[ing]” them, Fiallo, 4830 U.S. at 799. Here, for

example, a federal court could conclude that national

security was not the primary purpose of the Order

only by first rejecting the accuracy of the President’s

national-security determinations. Indeed, the Fourth

Circuit stated that the Order is based on “weak evidence”

and does not “diminish the threat of potential terrorist

activity.” Pet. App. 44a. The specter of courts telling the

President what national security requires is precisely

what Mandel seeks to avoid.

8

The Fourth Circuit’s principal rejoinder—that

the immigration power “is still ‘subject to important

constitutional limitations,” Pet. App. 40a-41a, 45a-46a—is

unhelpful. It begs the question of what the constitutional

limitations are in this context. The two deportation cases

that the Fourth Circuit cited—Zadvydas v. Davis, 533

U.S. 678 (2001), and JNS v. Chadha, 462 U.S. 919 (1983)—.

are not relevant. “Whatever the rule may be concerning

deportation,” it does not apply to “the determination of

the political branch of the Government to exclude a given

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

the latter, Mandel provides that courts can review only

whether it offered a facially legitimate and bona fide

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

“limited judicial review” standard. Fiallo, 430 U.S. at 795

n.6. The President’s Order easily satisfies it. See Pet. App.

165a-68a (Niemeyer, J., dissenting); see also Pet. Br. 65-69.

Il. The Fourth Circuit impermissibly consulted

unofficial campaign statements to determine the

Order’s purpose.

When a law does not regulate the admission of aliens

into this country, courts sometimes search more broadly

for evidence of its purpose. But the judicial inquiry must

remain “deferential and limited.” Wallace v. Jaffree, 472

U.S. 38, 74-75 (1985) (O’Connor, J., concurring in judgment).

Courts cannot engage in “judicial psychoanalysis of a

drafter’s heart of hearts.” McCreary Cty. v. ACLU of

Ky., 545 U.S. 844, 862 (2005). Accordingly, courts usually

limit their search to “the face of the legislation,” “its

legislative history,” and “its operative effect.” McGowan

v. Maryland, 366 U.S. 420, 453 (1961); accord Jaffree, 472

U.S. at 74-75 (O’Connor, J., concurring in judgment). In

9g

all events, the evidence of purpose must be some “official

act.” McCreary, 545 U.S. at 862; see Pet. Br. 73-76.

This principle has two important corollaries. First,

courts should not rely on the views of private citizens to

determine a law’s purpose. See Modrovich v. Allegheny

Cty., 385 F.3d 397, 411 (8d Cir. 2004); Summum v. City

of Ogden, 297 F.3d 995, 1010 (10th Cir. 2002). Obviously,

only the government can violate the Establishment Clause.

“Private purpose” is thus not relevant unless “there is

evidence that the government has adopted [it].” ACLU of

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

Second, courts should not consult informal media

statements to determine a law’s purpose. See Hamdan

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

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

the media are not “official acts.” And they are unreliable

incicia of purpose. Such “informal communications

often exhibit a lack of ‘precision of draftsmanship,” and

“internal inconsistencies are not unexpected.” Profs &

Patients for Customized Care v. Shalala, 56 F.3d 592,

599 (5th Cir. 1995).

The Fourth Circuit ignored these principles. It

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

based largely on press releases, media interviews, and

news articles from the 2016 campaign. This “evidentiary

snark hunt” is not normal: “[njo Supreme Court case ...

sweeps so widely in probing politicians for unconstitutional

motives.” Washington, 858 F.3d at 1174 (Kozinski, J.,

dissental). These media statements from nongovernmental

actors all suffer from the defects mentioned above. And

because most were made by a political candidate in the

10

heat of a campaign, the statements present still more

concerns.

If statements to the media are unreliable, then

statements to the media by a politician in the thick

of a campaign are doubly unreliable. A candidate’s

goal is “to get elected,” not to make policy. /d. To get

elected, the candidate must first win the primary, which

requires drawing attention to himself. See Stephen J.

Wayne, Road to the White House 2016, at 120 (10th ed.

2015) (“Candidates cannot win if they are not known.

Recognition as a political leader is most important at the

beginning of the nomination cycle ....”). “[I]nflammatory”

statements often help in this regard. Washington, 858 F.3d

at 1173 (Kozinski, J., dissental). Over the course of the

campaign, moreover, a candidate must win over primary

voters and the general electorate—two very different

groups—all while reacting to shifting poll numbers and

swirling media narratives. Unsurprisingly, “subtle (or

not-so-subtle) changes in a candidate’s position during

the course of the campaign are common.” 1 Robert North

Roberts et al., Presidential Campaigns, Slogans, Issues,

and Platforms: The Complete Encyclopedia 160 (2012).

But to avoid the dreaded label of a “flip flop,” candidates

also tend to insist that their position has been the same

all along. All of these dynamics result in a smattering of

contradictory, chaotic, and ambiguous statements—not

the kind of evidence that should decide the fate of a federa!

law or executive order.

The Fourth Circuit insisted that judges should not

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

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

should do:

1]

|T}he Court ought to shut its mind to much of

what all others think they see. That is precisely

what courts are for. They try things out on

evidence, by process of proof and refutation,

and shut their minds to the kind of surmise by

which the general public may reach politically

sufficient conelusions. No doubt, ... courts

as triers of fact draw inferences concerning

matters of common knowledge in the shared

experience of the community. But such common

knowledge is not common gossip, or common

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

along with common gossip, that a legislature

is corrupt, or that a politician is a self-seeking

powermonger rather than a disinterested

statesman{,]

Alexander M. Bickel, The Least Dangerous Branch 220

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

here would be disregarded as “hearsay” remarks that “do

not constitute legal evidence.” ACLU of Ky. v. Grayson

Cty., 605 F.3d 426, 430 (6th Cir. 2010). “[T]o rely in any way

on what these /sources/ say various [| government officials]

said is both incorrect and inappropriate.” ACLU of Ky.,

605 F.3d at 430.

Nor can a court assume that the positions an official

takes during the campaign will match the policies he

enacts once in office. Officials “change their own thinking

as a function of whether they are running for office or

having to make the hard choices that come with power. ...

A politician who is not in office can make strong promises

and claims .... Once in office, however, ... their speech and

thinking become more complex than they were during the

12

campaign....” Roy F. Baumeister, The Cultural Animal

236 (2005).

Beyond these practical differences, our constitutional

structure rejects any attempts to conflate a presidential

candidate with the President. The President is not just a

person; the President is an “Office.” U.S. Const. art. II,

§ 1. While the Constitution vests “[t]he executive Power”

in the President alone, id., the President can appoint

“Officers of the United States” and “require the Opinion,

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

Departments, upon any Subject relating to the Duties

of their respective Offices,” id. § 2. This last part—the

Opinion Clause—“place{s] the President at the apex of [an]

awesome pyramid[)} of power ... as Chief Administrator

of the Executive Bureaucracy.” Akhil Reed Amar, Some

Opinions on the Opinion Clause, 82 Va. L. Rev. 647, 652

(1996). A presidential candidate thus does not have access

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

for example, the Cabinet officials tasked with enforcing

the Order agree that it is a vita] national-security measure

and targets countries with weak vetting procedures—not

Muslims. See Sec’y John Kelly, Statement on President’s

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

Tillerson, Remarks on the President’s Executive Order

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

Remarks on Revised Executive Order Protecting the

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

Also unlike the President, a presidential candidate has

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

§ 1. The oath requires the President to “swear” that he

will “preserve, protect and defend the Constitution,” id.,

and it activates his duty to “take Care that the Laws be

13

faithfully executed,” id. § 3. The oath is not a formality:

it triggers the presumption that the President’s actions

are constitutional. Hvans v. Stephens, 387 F.3d 1220, 1222

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

requires all officials to take an oath, U.S. Const. art. VI,

Article II actually spells out the presidential oath with

“emphatic language,” Richard M. Re, Promising the

Constitution, 110 Nw. U. L. Rev. 299, 338 (2016). This

distinction “indicates that the President’s promise may be

especially demanding and unyielding.” Jd. But conflating

the pre-oath intentions of a candidate with the post-oath

policies of a President treats that oath as a nullity.

The use of campaign statements to find violations of

the Establishment Clause raises other concerns too. For

starters, it is impossible to apply. See Pet. App. 170a-71a

(Niemeyer, J., dissenting); Washington, 858 F.3d at 1178

(Kozinski, J., dissenta]). And it invites courts to make

decisions based on their subjective beliefs about the

character of government officials. Moreover, the Fourth

Circuit’s reasoning turns the First Amendment against

itself. “I'o view [campaign] statements as indicative of bad

faith ... would ... chill political debate during campaigns

... in contravention of First Amendment values.” Phelps

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

“our most basic free speech principles have their ‘fullest

and most urgent application precisely to the conduct of

campaigns for political office.” Washington, 858 F.3d at

1173 (Kozinski, J., dissental) (quoting McCutcheon v. FEC,

134 S. Ct. 1434, 1441 (2014)).

The Fourth Circuit tried to limit its ruling by

emphasizing the “highly unique” and “direct” evidence in

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

14

an example. During the 2008 presidential campaign, then-

Senator Obama made a statement about “bitter” people in

“small towns” who “cling to guns or religion ... to explain

their frustrations” —a statement that many perceived to

be anti-Christian. Obama Angers Midwest Voters with

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

goo.gl/ICSSVi. After he was elected, President Obama’s

administration issued a regulation requiring Catholic

nonprofits to, in their view, facilitate contraceptive

coverage and violate their deeply held religious beliefs. See

Zubik v. Burwell, 136 8. Ct. 1557, 1559 (2016). Is Senator

Obama’s statement from the 2008 campaign evidence

that he is an anti-Catholic bigot and, thus, evidence that

the regulation has an unconstitutional purpose under the

Establishment Clause? Under the Fourth Circuit’s logic,

a court would at least have to consider the possibility.

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

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

another. This is where we are headed under the Fourth

Circuit’s approach.

Indeed, given the sheer amount of times that

politicians reference the Bible in political campaigns,

other possible scenarios abound. That is why considering

this sort of evidence would be a “huge, total disaster.”

Washington, 858 F.3d at 1174 (Kozinski, J., dissental).

This Court should not countenance it.

Ill. The Fourth Circuit’s finding that the Order has

an impermissible purpose is untenable even

considering all of the evidence.

As just explained, courts should not consider unofficial

statements from political candidates or nongovernmental]

1

actors when evaluating the purpose of a federal law. But

even under the no-holds-barred approach of the Fourth

Circuit, there is not enough evidence here to conclude

that the Order was enacted for an impermissible purpose.

Under the Lemon test, the government must show

that the purpose on the face of the Order is “not a sham.”

Edwards, 482 U.S. at 587. This is a low bar. Courts do not

invalidate laws when “a plausible secular purpose ... may

be discerned from the [text].” Mueller, 463 U.S. at 394-95.

The statements that the Fourth Circuit consulted here

do not even come close to establishing that the Order’s

national-security justifications are a “sham.”

In fact, a court could arrive at that conclusion only by

plucking statements about the Order out of context and

reading them in the worst possible light for the President.

“(T]he purpose inquiry is not,” however, “an invitation

to courts to cherry pick.” Catholic League for Religious

& Civil Rights v. City & Cty. of San Francisco, 567 F.3d

595, 601 n.7 (9th Cir. 2009). And if courts are going to

treat politicians like government officials, then they

should at least give political statements the deference and

presumptive regularity that government officials receive.

With these principles in mind, the statements about

the Order paint a very different picture: the best reading

of the evidence is that the President was never motivated

by anti-Muslim bias. Rather, he was always concerned with

national security. His decision to abandon his initial call for

a “Muslim ban” in favor of a policy focused on geography

instead of religion made that abundantly clear.

16

The first statement that the Fourth Circuit considered

was the “Statement on Preventing Muslim Immigration”

that Mr. Trump posted on his campaigr website in

December 2015. Pet. App. 49a. True, this statement—

made two months before the Iowa Caucus and over a

year before President Trump signed the first executive

order—focused on “Muslims.” Notably, however, it was

concerned with national security. It was made in response

to the terrorist attack in San Bernardino, and it discussed

the need to prevent the country from being “the victims

of horrendous attacks.” Jd. at 10a n.5.

Moreover, statements he made during that same

timeframe show that Mr. Trump never harbored anti-

Muslim bias. Mr. Trump repeatedly explained that he

believes that Muslims are “good people.” The War on

Terror, the Political Equation, Fox: O’Reilly Factor,

2015 WLNR 35053429, (Nov. 26, 2015); see World News

Tonight with David Muir, ABC World News, 2015 WLNR

34794508 (Nov. 23, 2015) (same). His position was clear:

“most Muslims are good, wonderful people” and it is

only when “they become radicalized” that “they become

different people.” MSNBC Morning Joe Interview with

Donald Trump (R), Presidential Candidate, Regarding

Muslims in America and Homeland Security, MSNBC,

2015 WLNR 86290582 (Dec. 8, 2015); see Special Report,

ABC News, 2015 WLNR 87932408 (Dec. 22, 2015) (“One

thing I have to say, I have tremendous friendships in the

Muslim community.... They’re great people.”); Donald

Trump Says His Muslim Friends Support His Muslim

Ban, Seattle Post-Intelligencer, 2015 WLNR 37529830

(Dec. 16, 2015) (“I have many, many friends who are

Muslim and they’re great people,’ Trump said. ‘And some

of them, not all of them ... but many of them called me and

17

they said, ‘You know what, Donald? You’re right. We have

a problem.””).

Thus, the Fourth Circuit did not even have enough

evidence, especially given the context of this lawsuit,

to establish that Mr. Trump ever harbored the kind of

animus needed to make out an Establishment Clause

claim. But even if that is incorrect, the Fourth Circuit

failed to appreciate that Mr. Trump clearly abandoned

the initial proposal.

In May 2016, just before clinching the Republican

nomination, Mr. Trump explained in a radio interview

that his initial statement from December was “just a

suggestion.” Kilmeade’s Wide-Ranging Interview with

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

C550eX. Then, on June 183—one day after the Orlando

nightclub shooting—Mr. Trump announced his new plan

to “suspend immigration from areas of the world when

there is a proven history of terrorism.” Transcript:

Donald Trump’s National Security Speech, Politico (June

13, 2016), https://goo.gl/rn28gr. In the ensuing weeks,

members of the Trump campaign explained that his new

focus on “terror states” was a “changed” position and

a “pivot{]” away from the initial statement he made in

December. Trump on Latest Iteration of Muslim Ban,

CNN (July 24, 2016), goo.gl/11u40E.

Notably, that is precisely how the media covered

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

on Banning Muslims from U.S., Wall Street Journal

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

Even Running on Anymore? His “Muslim Ban” Shift

Sells Out His Core Constituents, Vox (June 28, 2016),

18

goo.gl/nopqpn; Trump Changing Muslim Ban to

Countries with Terror Links, Newsmax (June 27, 2016),

goo.gl/VzW79d; Katherine Krueger, Trump Pivots: Only

Muslims from ‘Terrorist Countries’ Would Be Banned,

Talking Points Memo (June 25, 2016), goo.gl/qGxNGy;

see also The Final Push: Clinton, FactCheck.org (Nov.

4, 2016), goo.gl/Zg0x10 (“Trump has clearly changed his

initial call for a ‘total and complete shutdown of Muslims

entering the United States.’”).

The Fourth Circuit nevertheless asserted that

Mr. Trump did not really change positions, but rather

“attempt[ed] to circumvent scrutiny of the Muslim ban

by formulating it in terms of nationality.” Pet. App. 49a.

This speculative theory is not supported by the evidence.

The Fourth Circuit pointed to an interview on Meet

the Press in July, where Mr. Trump was asked whether his

new policy was a “rollback” from his original statement.

Id. at 49a-50a. Mr. Trump challenged the word “rollback”

but confirmed that he was “looking now at territories”:

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

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

I’m looking now at territories. People were

so upset when I used the word Muslim. Oh,

you can’t use the word Muslim. Remember

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

talking territory instead of Muslim. But just

remember this: Our Constitution is great.

But it doesn’t necessarily give us the right to

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

you know, everybody wants to be protected.

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

19

part of our Constitution. I view it differently.

Why are we committing suicide? Why are we

doing that? But you know what? I live with our

Constitution. I love our Constitution. I cherish

our Constitution. We’re making it territorial.

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

to be coming out over the next few weeks with

a number of the places.

Transcript, Meet the Press (July 24, 2016), goo.gl/jHc6aU

(emphases added).

The Fourth Circuit read this statement as an

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

reading is implausible. Mr. Trump clearly stated that he

was not using religion and was now “looking at territories”

and “making it territorial.” His characterization of

the territory-based proposal as an “expansion” of his

initial proposal was true—looking at territories is an

“expansion” in the sense that it involves considering people

of all religions in a given territory. This is not evidence of

anti-Muslim purpose.

The Fourth Circuit concluded that Mayor Giuliani

confessed, during an interview on Fox News, that the

territory-based proposal was just a way to create a Muslim

ban that would stand up in court. Pet. App. 50a. Putting

aside the absurdity of crediting a hearsay statement from

a nongovernmental consultant about what the President

said, see Jaffree, 472 U.S. at 74-75 (O’Connor, J., concurring

in judgment), Mayor Giuliani actually said the opposite:

OK. I’ll tell you the whole history of it. So when

he first announced it he said “Muslim ban.”

20

He called me up and said, “Put a commission

together, show me the right way to do it legally.” I

put a commission together with Judge Mukasey,

with Congressman McCaul, Pete King, a whole

group of other very expert lawyers on this.

And what we did was we focused on, instead

of religion, danger. The areas of the world that

create danger for us. Which is a factual basis.

Not a religious basis. Perfectly legal, perfectly

sensible, and that’s what the ban is based on.

It’s not based on religion. It’s based on places

where there are substantial evidence that

people are sending terrorists into our country.

Dkt. 171-3 at 61, Hawai'i v. Trump, No. 17-cv-00050 (D.

Haw.) (emphases added).

The Fourth Circuit read “show me the right way to

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

get away with it.” But it could have just as plausibly meant

“show me how to prevent terrorism from certain regions

without giving the misimpression that I’m engaging in

religious discrimination.” Indeed, that is precisely what

Mayor Giuliani said it meant in the rest of his statement.

Although the Fourth Circuit credited the first two

sentences of Mayor Giuliani’s statement, it inexplicably

did not credit his assurances that “we focused on, instead

of religion, danger” and that the Order is “not based on

religion.” The omission is glaring.

The Fourth Circuit also found it important that,

“fojn December 21, 2016, when asked whether recent

attacks in Europe affected his proposed Muslim ban,

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

21

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

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

Fourth Circuit assumed “plans” meant “Muslim ban,”

but the only “plan” that Mr. Trump had discussed for the

previous six months was his territory-based policy. As his

spokesperson Kellyanne Conway explained the next day:

“You're going back to over a year ago in what he said about

the ban” but later “he made it much more specific and

talked about countries.” Conway: Trump Will Not Pursue

Immigration Ban Based Solely on Religion, CNN (Dec.

22, 2016), goo.gl/OfDOq6. Before signing the first order,

moreover, President Trump told ABC News, “[N]o it’s not

the Muslim ban. But it’s countries that have tremendous

terror.” Transcript, David Muir Interviews President

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

The few post-inauguration statements that the Fourth

Circuit cited fare no better. When President Trump signed

the first order, he stated: “This is the ‘Protection of the

Nation from Foreign Terrorist Entry into the United

States.’ We all know what that means.” Pet. App. 50a. Any

judge who claims to know what “that” means is engaged in

psychoanalysis, not law. It likely does not mean “Muslim

ban”—a concept the President abandoned six months

earlier. Indeed, two days after signing the Order, the

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

What President Donald Trump’s Immigration Executive

Order Means, ABC (Jan. 29, 2017), goo.gl/apcek1X.

The Fourth Circuit also relied on two staffers who

said that the Order had the same “principles” and “basic

policies” as the first order with “mostly minor technical

differences.” Pet. App. 50a-51a. The President likewise

described the Order as a “watered down” version of the

29

first order. Pet. App. 51a. But these statements are only

relevant if the first order was a Muslim ban. And it was not,

as explained above. Indeed, both staffers emphasized that

the first order was a lawful) national-security measure.

See Miller: New Order Will Be Responsive to the Judicial

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

Gaggle by Press Secretary Sean Spicer, White House

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

office/2017/03/06/press-gaggle-press-secretary-sean-

spicer. Moreover, none of these statements was made with

respect to Muslims or the Establishment Clause. The

Order was a reaction to the Ninth Circuit’s decision in

Washington, which invalidated the first order under the

Due Process Clause only. The statements comparing the

Order with its predecessor were all made in that context.

At bottom, the statements that purportedly show

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

Undeterred, the Fourth Circuit concluded that the Order

was an attempt to discriminate against Muslims for

another reason: because Mr. Trump allegedly expressed

“anti-Muslim sentiment” on two occasions during the

campaign. Pet. App. 49a. But in the first statement—an

interview with CNN where Mr. Trump said “Islam hates

us”—he clarified that the reference was to “radical Islam,”

not all Muslims. Donald Trump: “I Think Islam Hates

Us”, CNN (Mar. 10, 2016), goo.gl/weLcF7. And in the

second statement—a response to the terrorist attack in

Brussels—Mr. Trump clarified that he was talking about

“yeople from the Middle East” and that he “didn’t say shut

it down ... I said you have to be very careful. We have to

be very, very strong and vigilant at the borders.” Trump:

‘Frankly, We’re Having Problems with the Muslims’,

The Hill (Mar. 22, 2016), goo.gl/MmBvKO. Further, the

23

Fourth Circuit did not credit more recent statements from

President ‘Trump, like his speech in Saudi Arabia where he

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

“tolerance and respect for each other.” President Trump's

Speech to the Arab Islamic American Summit, White

House (May 21, 2017), https://www.whitehouse.gov/the-

press-office/2017/05/21/president-trumps-speech-arab-

islamic-american-summit.

More troublingly, by resorting to these generic

statements, the Fourth Circuit was implying that the

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

action that he takes with respect to a majority-Muslim

country is ripe for invalidation under the Establishment

Clause. Even if his early comments were somehow

insensitive, they cannot “forever taint” his ability to take

actions in the Middle East. McCreary, 545 U.S. at 878-74.

The theory of the decision below is that Mr. Trump did not

mean it when he said, repeatedly, that he had changed his

initial proposal. This is not law; this is “psychoanalysis.”

Id. at 862.

In short, the decision below is not supported by the

record. Read fairlya accurately, the evidence indicates

that President Trump has maintained a bona fide interest

in national security and that any initial calls for a “Muslim

ban” were not evidence of religious animus and, in any

event, were ultimately abandoned for a geography-based

approach to an urgent national-security problem. ‘I'he

Fourth Circuit reached the opposite conclusion by cherry

picking snippets of statements and reading them in the

light least favorable to the President—just the opposite

of what the law requires.

24

CONCLUSION

For all these reasons, the Court should reverse the

Fourth Circuit.

Respectfully submitted,

KIMBERLY S. HERMANN WiuiaM 8S. Consovoy

SOUTHEASTERN LEGAL Counsel of Record

FOUNDATION J. MICHAEL CONNOLLY

2255 Sewell Mill Road, Consovoy McCartuy

Suite 320 ParK PLLC

Marietta, GA 30062 3033 Wilson Boulevard,

(770) 977-2131 Suite 700

Arlington, VA 22201

(703) 243-9423

will@consovoymecarthy.com

Counsel for Amicus Curiae

August 17, 2017