Amicus Curiae Brief — Trump v. Hawaii, 138 S. Ct. 923 (2018) (No. 17-965)

Supreme Court brief2018

Ask Donna

What actually matters in this document.

Text

No. 17-965

——————_—{E&x¥_>—>_>_>=K&z{=_=_<_L_—______>=

IN THE

Supreme Court of the United States

DONALD J. TRUMP, PRESIDENT OF THE UNITED

STATES, ET AL., Petitioners,

STATE OF HAWAII, ET AL., Respondents.

On Writ of Certiorari

to the United States Courts of Appeals

for the Ninth Circuit

BRIEF AMICUS CURIAE OF THE FOUNDATION

FOR MORAL LAW IN SUPPORT OF PETITIONERS

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

TABLE OF CONTENTS

Page

pp OP oe fs, Ee iv

INTEREST OF AMICUS CURIAE.............................. l

SUMMARY OF ARGUMENT ......................0..:0cceeeeeees 2

IIE Gicticientiectasindacisanasnhccinnteahheipennsiinsibiedenastiiiantn 2

|. The travel ban does not violate the

NEE RENEE TO 2

A. The Establishment Clause has a

narrower application to foreign affairs

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

B. Proclamation 9645 clearly passes the

TINIE edi talddctagintndhantaslbadeigatnadcsiases 5

Bs. RR Br iaisnecinescescsnretiocnveccuness 6

2. The principle or primary effect of

the Proclamation neither

advances nor inhibits religion........... 10

3. The Proclamation does not foster

“excessive entanglement” of

government with religion. ................. 13

II.

III.

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. God ordained governments to protect

people from evildoers.............................

B. Although the Bible forbids oppression

of foreigners, it does not require a

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

C. The President's Proclamation is

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

The universal injunctions issued in these

cases violate Article II1 of the Constitution.

A. This case is not a class action. ..............

B. A court has no power to issue a decree

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

C. The lower courts’ practice of issuing

universal injunctions violates the

limits on judicial power stated in

BE BU ad ntnininstratastinndintennenidaincsinaine

D. The meager reasoning offered by the

Ninth Circuit in justification of its

universal injunction is unpersuasive....

acne

wee 20

satel

woe dl

me > 7

woe 20

Kk. Collateral damage: the nullification of

SY Sy Ms EE Es cennccasedenscasnnendinisodees 28

Fr. 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

III icdiesicedstensesencccucntevesstessescasndses 30

G. This case offers the Court the

opportunity for a long overdue course

correction in the use of equitable

power by the lower courts. ........................ 31

SPRAIN s 'sscnccace sapeisdssuinkcssenaquosendsacenacépineuiceeniecs 32

TABLE OF AUTHORITIES

Page

Cases

Additive Controls & Measurement Sys. v.

Flowdata, Inc., 96 F.3d 1390 (Fed. Cir. 1996).......... 22

Allen v. Wright, 468 U.S. 737 (1984)................ccsee000 23

Arizona v. Evans, 514 U.S. 1 (1995) ...................20000. 27

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

Ir cxincccuinidscicmcashoisica tuuedian nabdcteciieitniaianigpeuaviainiqenianssases 28

Califano v. Yamasaki, 442 U.S. 682 (1979).............. 30

Camreta v. Greene, 131 S. Ct. 2020 (2011)............... 29

City of Kirkwood v. Venable, 173 S.W.2d 8

Sf Sa eee Ssidicebe icliniiiae siee Maneuaplasencameeamantaenaie 7

Edwards v. Aguillard, 482 U.S. 578 (1987)................ 9

Frothingham v. Mellon, 262 U.S. 447 (1923) ........... 25

Gregory v. Litton Systems, Inc., 472 F. ' 631

ei ccsccsaccedcesdcaniantdinenstineiektecatinideduiaicabetiouinl 29

Henderson v. Mayor of New York, 92 U.S.

es icsiseitiechtincineah nnn pacanpuansinins tounqecsiiasmustiadsens 7,8

Hudson v. American Oil Co., 152 F. Supp.

Se I Wy Me icictacconddsensccspsacossemsnsceicnsdbemetuaeniinds i

Kessler v. City of Indianapolis, 157 N.E. 547

NEE, THT nk; csasunsecciuniianemanecsenepsbsstanienepdisnintbetesonacuesestes 7

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

Lemon v. Kurtzman, 403 U.S. 602 (1971)........... 5, 6,9

Lewis v. Casey, 518 U.S. 343 (1996).....................0000 23

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

I eh oe aptapedesuninaemcdsaidaedi 23

Lynch v. Donnelly, 465 U.S. 668 (1984).................. 6,9

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

Martin v. Wilks, 490 U.S. 755 (1989).................. 28, 29

New York v. Roberts, 171 U.S. 658 (1898).................. 8

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

SI coc ieaeccae ie cious cco cise lp selina dels anton 25

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

a el SE A RE Ea lel el Ae a A 22

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

i, y & by, Yo Ls a. Ree 28, 29

State ex rel. City of Creve Coeur v. Weinstein,

329 S.W.2d 399 (Mo. App. 1959)...............c:ccceceeeeeeeeees 7

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

I SRSA aS RAF. Spr SPRINTS Nee BEE ARTE en on Sed Ra 27

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

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

Valley Forge Christian College v. Americans

United for Separation of Church and State,

Bs A ee er ED a icieiercsceetenevestiemnatntanegnictinies 24, 25

Virginia Soc. for Human Life v. F.E.C., 263

Fe ey NG SE scimcasticednctivemmcnincetsoernansinnin 27

Constitutions, Statutes, and Rules

ey Ns TINY BiG reaciecsaudennndeinvraicienptanersiniesitis 23, 24, 26

Be a I ost cccetrntiemnainaicininiioonahnnied passim

ee PS ee 8,9

The Declaration of Independence (1776)............. 14, 15

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

Se a Sr I aaicieiesinctnecternessccrencinnninnsaeintaesan 12, 13

The Northwest Ordinance (1787) ....................c:eceee000 5

Proclamation 9645, 82 Fed. Reg. 45,161 (Sep.

BP ee iiics dub sciscinccecinetiuadeqneiptncuapanaleacisatecinineinteal passim

BE Cy ls Gs. Gs Bs cecssivaceecuntereerntstanteicmieenienns 28, 29

ey es Se Oe od et ceeeoteneeaiiniean 29

is WINING Gis IG, Bs iientonigtrniviinsnintleinstnss nines eT 23

nn sesacinapabtaviaoeebasedl 26, 27

8 U.S.C. §§ 1182(f) and 1185(a)..................::cccceseeeees 20

Other Authority

David Barton, Original Intent: the Courts,

the Constitution, and Religion (2008). ...................... 17

David Benjamin and Steven Simon, The Age

of Sacred Terror: Radical Islam’s War

ee ee I aikik i cernccnsdeditisteiertsseatstneteinnies ll

Getzel Berger, Nationwide Injunctions

Against the Federal Government: A

Structural Approach, 92 N.Y.U. L. Rev. 1068

a a adeadiaiatieidapenedminabahniadsenen 31, 32

Black’s Law Dictionary (4th ed. 1968).................... 6,7

Black's Law Dictionary (10th ed. 2014).................... 15

William Blackstone, Commentaries on the

Lawse of England (1765-GB) ............ccccccsesessecerecesessees 15

Samuel L. Bray, Multiple Chancellors:

Reforming the National Injunction, 131

SO Bi, BUUUs BET GPa GD cccscccccsieseccctensins 29, 30, 21, 32

Robert L. Cord, Separation of Church and

State: Historical Fact and Current Fiction

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

Vili

Gregg Costa, An Old Solution to the

Nationwide Injunction Problem, Harvard

Law Review Blog (Jan. 25, 2018)........................ 27, 31

John Ejidsmoe, Christianity and _ the

SN a. ccadapguapboundueniaens 16, 17

Wayne Grudem, Politics According to the

IIE isuccteseniserndercctebinsnetevibiniensinsiinis 16, 18, 19

James Hoffmeier, The Immigration Crisis:

Immigrants, Aliens, and the Bible (2009)................. 18

Fe I EE pictsscvssenccumtbtetavessctnieensesentbatensesnes passim

Thomas Jefferson, Second Inaugural Address

EIIEE scincasentsotbernsnacdinccinaetyecstekcsennnslaleubeiaqamateeasiaceuante 3

Efraim Karsh, Islamic Imperialism: A

SI III sc oncacrctuptias dish lacenoicheibbeapoiatianencendimanesinds 11

Pe ie cchaiiiteeatceedsincstdeiestssdepihsiiociniahdacnnshegeitenebaaaniaacaosabiand 10

John Locke, Second Treatise of Government

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

Classics of Political and Moral Philosophy

OU Cire: GE Og TIED cccitcdincscccccwocctdontoubscnecen 15, 16

Donald Lutz, The Origins of American

Ce CR arciccsiccici cecccecccecissccseccscerenneseas 17

Michael T. Morley, De Facto Class Actions?

Plaintiff- and Defendant-Oriented

Injunctions in Voting Rights, Election Law,

and Other Constitutional Cases, 39 Harv.

te Ae eG Ie Ce pirtierctsintcniienseecinevonscescotonsess 32

, Nationwide Injunctions, Rule

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

Lower Courts, 97 B.U. L. Rev. 615 (2017) ................ 30

Pew Research Center,

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

aac dectcndsdnconsnciontbabosetounis 11

Pew Research Center,

Table: Muslim Population by Country (Jan.

27, 2011), https://goo.gV/a76kVk......................002. 11, 28

Rousas John Rushdoony, The Institutes of

Ny PR IIIT 5 ciccisabaseensssinsiintesapienidénotediocctenenios 18

Joseph Story, Commentaries on _ the

cE ED Ane Oe TA 3

Quran in English (Talal Itani, trans.),

http://www.clearquran.com ..................:::sssseeeeeeeeeeeees 10

Howard Wasserman, Another Unwarranted

Universal / Nationwide Injunction,

Prawfsblawg.com (May 23, 2017) ....................... 25, 26

Howard M. Wasserman, Universal, Not

Nationwide, and Never Appropriate: On the

Scope of Injunctions in Constitutional

Litigation, 22 Lewis & Clark L. Rev.

SUN Uo cslsuilinpenisannies 32

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 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 injunctiors issued in these cases fail to

conform with the limits of judicial power defined in

Article III of the Constitution.

' All parties have consented to the filing of this brief.

Pursuant to Rule 37.6, no party or party's counsel authored this

brief in whole or in part. 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.

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.

e The universal injunctions issued in these cases

violate Article III of the Constitution.

ARGUMENT

I. The travel ban does not violate the

Establishment Clause.

Although the Ninth Circuit did not base its

opinion on the Establishment Clause of the First

Amendment, this Court has asked the parties to brief

the Establishment Clause issue which the State of

Hawaii raised in its Response as it had below.

Because the defense of religious liberty is a central

purpose of the Foundation for Moral Law, we will

seek to assist the Court in analyzing this question.

A. The Establishment Clause has a

narrower application to foreign affairs

than to domestic matters.

The United States correctly asserts that

constitutional challenges to immigration matters are

governed by Kileindienst v. Mandel, 408 U.S. 753

(1972), which subjected such challenges to a low-

scrutiny rational basis test. Amer «* history

supports this conclusion.

Thomas Jefferson, an ardent advocate of

separation of church and state, said in his Second

Inaugural Address:

In matters of religion | 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 concluded:

[Rjegarding religion, the First Amendment

was intended to accomplish three purposes.

First, it was intended to prevent the

establishment of a national church or

2 Thomas Jefferson, Second Inaugural Address (1805),

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

8 Joseph Story, Commentaries on the Constitution § 1879

(1833).

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 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 religion clauses of the

First Amendment—preventing federal interference

with the States in their dealing with religion—

clearly does not apply to the Federal Government in

questions of foreign affairs such as immigration.

Consequently, early Presidents such as Jefferson

interacted with religion in foreign affairs in ways

that they would not have done in domestic matters.

For example:

e The Preamble to the Northwest Ordinance of

1787 + states: “Religion, morality

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.

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

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

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

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.”®

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 1807.7

These examples indicate that Jefferson and his

contemporaries understood the Establishment Clause

to restrict them to a lesser degree in foreign affairs

than in domestic matters.

B. Proclamation 9645 clearly passes the

“Lemon test.”

Although the Foundation questions whether the

tripartite test of Lemon v. Kurtzman, 403 U.S. 602

5 Id. at 41.

8 Id.

7 Id. at 38-39.

(1971), is an appropriate framework for analysis of

this case*, the Proclamation, as explained below,

clearly satisfies all three prongs of that test.

1. Secular Purpose

Hawaii has focused primarily on _ unofficial

campaign statements by the President as to what he

wants in an immigration policy as evidence that

Proclamation 9645 lacks a secular purpose. But the

law makes a clear distinction between motive and

purpose. A motive is what impels a person to take

action. A purpose is what the person intends to

achieve by the action. Black’s Law Dictionary (4th ed.

1968) defines motive as the “[c]jause or reason that

moves the will and induces action,” and adds:

In the popular mind intent and “motive”

are sometimes confused, but in law they

are clearly distinguished. “Motive” is the

moving power which impels to action for a

definite result. Intent is the purpose to use

a particular means to effect such result.

“Motive” is that which incites or stimulates

a person to do an act. People v. Weiss, 252

App. Div. 463, 300 N.Y.S. 249, 255.

* A more appropriate framework approach 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. The

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

does not apply because there is not the slightest suggestion of

endorsement of any religion.

Black’s, at 1164. The President’s “motive” in wanting

immigration reform is only marginally relevant to the

“purpose” of the immigration policy that is ultimately

enacted.

“Purpose” is “[t}hat which one sets before him to

accomplish; an end, intention, or aim, object, plan,

project.” Jd. at 1400 (citations omitted).

This distinction is clear in the case law. An

Indiana case held that “motive” is that which

prompts the choice or moves the will thereby inciting

or inducing action, while “purpose” is that which one

sets before himself as the result to be kept in view or

the object to be attained. Kessler v. City of

Indianapolis, 157 N.E. 547, 549 (Ind. 1927). The

Missouri Supreme Court held that in determining

whether condemned land has been taken for a “public

purpose” as required by statute, the words “purpose”

and “motive” are distinguishable, and motive is that

which prompts the choice or moves the will, thereby

inciting or inducing action. City of Kirkwood v.

Venable, 173 S.W.2d 8, 12 (Mo. 1943). See similarly

State ex rel. City of Creve Coeur v. Weinstein, 329

S.W.2d 399, 405 (Mo. App. 1959) (holding that

“motive” is that which prompts the choice or moves

the will thereby inciting or inducing action, while

“purpose is that which one sets before himself as the

end, aim, effect, or result to be kept in view); Hudson

v. American Oil Co., 152 F. Supp. 757, 770 (E.D. Va.

1957) (same).

The United States Supreme Court has spoken to

this point. In Henderson v. Mayor of New York, 92

U.S. 259 (1876), the Court held that the purpose of

legislation is to be determined by its “natural and

reasonable effect.” Jd. at 268. Justice Harlan later

elaborated this holding, stating: “In a legal sense the

object or purpose of legislation is to be determined by

its natural and reasonable effect, whatever may have

been the motives upon which legislators acted.” New

York v. Roberts, 171 U.S. 658, 681 (1898) (Harlan, J.,

dissenting) (emphasis added).

To illustrate the difference between motive and

purpose, let us go back five decades to the

consideration of the Civil Rights Act of 1964 in

Congress. Four congressmen decide to support the

bill:

e Congressman A, a fervent Christian, supports

the bill because he _ believes racial

discrimination is contrary to the Bible and the

will of God.

e Congressman B, a humanitarian, supports the

bill because he believes racial discrimination is

inhumane and unkind.

e Congressman C, a member of a minority race,

supports the bill because he does not like being

the victim of racial discrimination.

e Congressman D, a_ pragmatic politician,

supports the bill even though he doesn’t care at

all about civil rights, because he knows the bill

is popular in his district and voting yes will

help him get reelected.

Kach of these congressmen has a different motive:

For A, the motive is religious; for B, humanitarian;

for C, personal; for D, pragmatic.

But all four have the same identical purpose: the

passage of the Civil Rights Act of 1964 and the

elimination of racial discrimination. See 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),

With good reason, Chief Justice Burger used the

term “purpose” rather than “motive” in crafting the

Lemon test. When we understand the true definition

of “purpose,” it is clear that Proclamation 9645 has a

secular purpose.

But note that 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.

Lynch v. Donnelly, 465 U.S. 668, 680 & n.6 (1984).

Nowhere can the State of Hawaii bring itself to

deny that there is a genuine concern about terrorism

in the United States and worldwide, that the eight

nations under the Travel Ban have been the origin of

many terrorists, that abundant evidence exists that

these eight nations have fomented and supported

terrorism, or that these eight nations have been

unable to “vet” those who would emigrate to

determine which of them might have criminal

backgrounds or tendencies toward terrorism. Nor

does Hawaii 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.

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.

Most of the nations under the travel ban have

fomented and supported terrorism either by

government action or by tolerance of terrorist groups

within their borders. All have been unable to “vet”

those who would emigrate to determine which might

have criminal backgrounds or tendencies toward

terrorism. These secular national-security purposes

are valid and indisputable.

2. The principle or primary effect of

the Proclamation neither advances

nor inhibits religion.

The principal or primary effect of the

Proclamation, like its secular purpose, is to combat

terrorism and thereby protect the safety of the

American people and the people of the world.

Even if Muslim terrorists are motivated by their

understanding of Islam to commit terrorist acts,°

® 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

preventing terrorism does not have the principal or

primary effect of inhibiting the religion of Islam. A

policeman is not prohibited from arresting a mass

murderer solely because the mass murderer was

motivated by religious fanaticism.

The six nations directly affected by the 90-day

EO-2 travel ban—lIran, Libya, Somalia, Sudan, Syria,

and Yemen—had a combined population of about 166

million people.'!° Thus, only 10.4% of the global

Muslim population of 1.6 billion'! was affected by

that ban. Moreover, those six countries ranged from

Sudan which is 71.4% Muslim to Iran which is 99.7%

Muslim.'2 Christians, Jews, and persons of other

religions who lived in those countries were also

affected by the ban.

Furthermore, other nations with significant

Muslim populations (some with higher percentages

than those nations included in the ban) were not

included in the ban because they did not export

terrorism or were able to “vet” their potential

emigrants. Those included 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

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).

1© These population figures are for 2010. Pew Research

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

https://goo.g/a76kVk. Other sources give varying figures.,

\! Pew Research Center, Muslim-Majority Countries (Jan.

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

12 Muslim Population by Country, supra n.10.

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

largest Muslim population of any nation in the

world), Iraq (98.9%), Jordan (98.8%), 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

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

Sahara (99.6).!°

But the Proclamation differs from EO-2. It

removes Sudan from the list and adds Chad, North

Korea, and Venezuela.'* This modification reduces

the degree to which the ban affects Muslims. Unlike

Sudan which is about 97% Muslim, Chad is only

about 53.1% (some say 58%) Muslim, about 34.3%

Christian, 7.3% animist, and others. North Korea is

officially atheist. Although some Christians and

Buddhists practice their faith underground, very few

Muslims are found there. Venezuela is officially

about 88% Christian (some estimates say higher),

with Muslims constituting about 0.4% of the

population.

What do these eight nations have in common?

Certainly not the religion of Islam. Instead they all

are centers in which terrorism is fomented, and they

13 Td.

'# Although not restricting entry, the Proclamation does

recommend “additional scrutiny” for nationals from Iraq. Pet.

App. 127a (§ 1(g)).

do not adequately “vet” potential emigrants to the

United States for terrorist propensities.

The Proclamation:

e applies to eight nations that are known to

export terrorism and cannot or will not “vet”

prospective emigrants,

e includes two nations that have very few

Muslims,

e applies to non-Muslims living in those eight

countries,

e applies at most to only 14% of the world’s

Muslims, and

e does not apply to at least 36 majority-Muslim

nations.

These facts demonstrate that the Proclamation

neither advances nor inhibits religion and is not

motivated by religious “animus.”

3. The Proclamation does not foster

“excessive entanglement” of

government with religion.

The Proclamation does not inquire into or analyze

religious beliefs. It considers only whether a potential

immigrant comes from a country that either harbors

a substantial number of terrorists or fails to properly

“vet” for terrorist propensities. Those who come from

the eight nations identified in the order are denied

entry regardless of their religious beliefs. This policy

hardly constitutes entanglement of any kind, much

less excessive entanglement.

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, inc'uding

some with an emphasis on refugee resettlement, filed

an amicus brief in the last travel-ban 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 two years ago 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 « nation, the

Declaration of Independence (1776) invoked “the laws

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

separation from Britain. Jd., para. 1.'° Blackstone

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 deiivered that law through

“an immediate and direct revelation.” /d. 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 |),

reprinted in Classics of Political and Moral

‘6 The United States Code recognizes the Declaration of

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

Law Dictionary defines “organic law” as “[t]he body of laws (as

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

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

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

John Eidsmoe, Christianity and the Constitution 61

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.'° 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).

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

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”).

‘6 All Scripture quoted herein is from the King James

Version unless otherwise noted.

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. Jd. 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). 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 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 (1973) (describing the “strangers” in

these verses as “permanent residents of the

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. /d.

The Old Testament has multiple examples of

immigration restrictions. Perhaps the best example is

found in Deuteronomy 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

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 Proclamation is

compatible with Biblical teaching.

After conducting an extensive review of

immigration screening procedures, the President of

the United States found that eight countries “remain

deficient at this time with respect to their identity-

management and information-sharing capabilities,

protocols, and practices.” Proclamation 9645, 82 Fed.

Reg. 45,161 (Sep. 24, 2017). He also noted a

“significant terrorist presence” within some of those

countries. Jd. Based on this information, the

President imposed new restrictions and limitations

on people coming into the United States from those

eight countries. Jd. at 45,161-62. 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; I Peter 2:14-

15. The main responsibility of any civil government is

to protect its own people. By entering the

aforementioned proclamation, the President complied

with the obligations of Scripture; he did not 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 eight countries is not hostile

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

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

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 travel restrictions

as to the eight designated nations.'7

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

proclamation.

Ill. The universal injunction issued in this case

violates Article III of the Constitution.

A. This case is not a class action.

The plaintiffs in this case consist of the State of

Hawaii, three individuals, and the Muslim

Association of Hawaii. See Pet. App. 78a-87a. No

plaintiff class has been requested or certified.

Nonetheless, the Ninth Circuit did not limit itself to

redressing the grievances of the parties before it but

instead affirmed the issuance of an injunction for the

'? The proclamation also allows for waivers on a case-by-case

basis. 82 Fed. Reg. at 45, 168-69.

benefit of anyone in the United States who might be

affected by Proclamation 9645.

The Ninth Circuit provided a scant explanation of

its decision to grant relief for the benefit of unknown

persons not before the court. Although it conceded

that “[iJnjunctive relief must be ‘tailored to remedy

the specific harms[s]’ shown by the plaintiffs,” it

nonetheless held that “[bJecause this case implicates

immigration policy, a nationwide injunction was

necessary to give Plaintiffs a full expression of their

rights.” Pet. App. 62a (citation omitted). Had the

Ninth Circuit limited its relief to the plaintiffs in the

case, 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.

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.3d 1390, 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

'® 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.

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

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.

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 III.

“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 and _ 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

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. See also Frothingham

v. Mellon, 262 U.S. 447, 488 (1923) (“We have no

power per se to review and annul acts of Congress on

the ground that they are unconstitutional.”). As

envisioned by the Founders, “[t]he Judiciary would

be, ‘from the nature of its functions, ... the

[department] least 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).

The practice of issuing injunctions of limitless

scope is becoming the norm as trial judges seek to

outdo one another in the dramatic exercise of

equitable power. As one scholar states:

There is no reason, and no basis in

principles of equity and judgments, for one

district court in a non-class action to freeze

enforcement as to every other person

everywhere in the country. But we have

reached a point where universality is

automatic and unthinking. Every district

judge believes that every injunction barring

enforcement of a provision of federal law

must be universal.

Howard Wasserman, Another Unwarranted

Universal/ Nationwide Injunction, Prawfsblawg.com

(May 23, 2017), https://goo.gl/YaJd3pQ.

D. The meager reasoning offered by the

Ninth Circuit in justification of its

universal injunction 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 Ninth Circuit that its

judgment bound the petitioners against the world as

opposed to the parties in the case is completely

unconstitutional. The policy arguments proffered to

justify the universal application of the judgment

merely underscore the unconstitutionality of its

scope.

The Ninth Circuit, claimed that the requirement

for “uniformity” in immigration law necessitated a

universal injunction. Pet. App. 62a. That policy

rationale, however, does not negate the Article III

requirement that a judgment only binds the parties

to a case. Furthermore, lack of uniformity in the

application of laws is resolved through appellate

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).

A related incongruity in the issuance of universal

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. Thus, free coinage of universal

injunctions “subverts our judicial hierarchy as a

nationwide injunction issued by a single district

judge has greater effect than a court of appeals’

decision on the same issue in a noninjunction

posture.” Gregg Costa, An Old Solution to the

Nationwide Injunction Problem, Harvard Law

Review Blog (Jan. 25, 2018), https://goo.g/AZHgCx.'®

In the previous iteration of this case, 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. State of

Hawaii v. Trump, 859 F.3d 741, 787 (9th Cir. 2017).

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

'’ 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, 514 U.S. 1, 23 n.1 (1995) (Ginsburg, J., dissenting).

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.

Indeed, the Ninth Circuit was so bold as to cite one of

its precedents for the proposition that universal

injunctions, even in the absence of a class action, are

permissible. Pet. App. 62a. See Bresgal v. Brock, 843

F. 2d 1163, 1169 (9th Cir. 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 wavy 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 “[w]hether 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

20 District court opinions are not binding precedent in any

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

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

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

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 the one

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, 131 Harv. L. Rev.

417, 464 (2017) (stating that “Rule 23(b)(2) makes a

class-wide injunctive remedy available if certain

2! Rule 24, Fed. R. Civ. P., also becomes superfluous. Why

bother to intervene to obtain the benefit of an injunction when it

automatically runs for the benefit of all persons affected by the

challenged law?

conditions are met; by implication, this remedy is

available only if those conditions are met”).*”

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.

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

#2 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).

the Ninth Circuit (Washington and Hawaii) and in

the newly liberal Fourth Circuit.?*

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.

See Costa, Old Solution (stating that “the forum

shopping [that the availability of nationwide

injunctions] incentivizes on issues of substantial

public importance feeds the growing perception that

the courts are politicized”). This Court has an

obligation to end what petitioners correctly describe

as a “troubling” and “disturbing” trend and a

“misguided practice.” This Court has a supervisory

obligation to rein in the anarchic practices in the

lower courts and to instruct them to respect the

constitutional limits on judicial power.

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

*” 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, 92

N.Y.U. L. Rev. 1068, 1069-70 (2017).

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 the

merits, this Court will have to address the propriety

of the remedies ordered below. In that event, an

opportunity will arise to remind the lower courts that

an injunction constrains the defendant's conduct

against the plaintiff and no one else.**

CONCLUSION

The judgments below should be reversed.

** 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 Michael T. Morley, De Facto Class Actions? Plaintiff-

and Defendant-Oriented Injunctions in Voting Rights, Election

Law, and Other Constitutional Cases, 39 Harv. J.L. & Pub. Pol'y

487 (2016); Howard M. Wasserman, Universal, Not Nationwide,

(forthcoming 2018), available at https://goo.gl/x71uoN.

Respectfully submitted,