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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0806%3A39

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2018

## 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,
v

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

iv

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

Vv
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

vi
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

vu

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,

ix
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.

2
SUMMARY OF ARGUMENT

e The Establishment Clause applies less
stringently in foreign affairs, and the travel
ban has a secular national-security purpose.

e The travel ban is compatible with the teaching
of the Bible on immigration.

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-

3

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).

4

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).

5

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.

6

(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.

7

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

8

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:

9

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

10

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

11

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.

12

(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)).

13

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

14

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

15

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).

16

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.

17

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

18

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

19

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

20

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

21

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.

22

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.

23

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

24

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.

25

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

26

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.

27
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).

28

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).

29

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?

30

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).

31

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).

32

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.

33

Respectfully submitted,

JOHN EIDSMOE
MATTHEW J. CLARK

Counsel of Record
FOUNDATION FOR MORAL LAW
One Dexter Avenue
Montgomery AL 36104
(334) 262-1245
matt@morallaw.org

Counsel for Amicus Curiae

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0806%3A39. Public record. Not legal advice.