Intl. Refugee Assistance v. Donald J. Trump
Filing
54
MOTION by American Center for Law and Justice Amicus Curiae to file amicus curiae brief (FRAP 29(e)) with consent of all parties on appeal within time allowed by FRAP 29(e).. Date and method of service: 11/01/2017 ecf. [1000184583] [17-2231, 17-2232, 17-2233, 17-2240] Edward White [Entered: 11/01/2017 09:26 AM]
Nos. 17-2231(L), 17-2232, 17-2233, 17-2240 (Consolidated)
IN THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
NO. 17-2231(L)
INTERNATIONAL REFUGEE ASSISTANCE PROJECT, et al.,
Plaintiffs-Appellees,
v.
DONALD J. TRUMP, President of the United States, et al.,
Defendants-Appellants.
On Appeal from Entry of Preliminary Injunction
United States District Court for the District of Maryland
Case No. 8:17-cv-361-TDC, Hon. Theodore D. Chuang
[Caption Continues on Next Page]
CONSENT MOTION FOR LEAVE TO FILE BRIEF OF AMICUS CURIAE,
THE AMERICAN CENTER FOR LAW AND JUSTICE, SUPPORTING
DEFENDANTS-APPELLANTS ON THE MERITS AND URGING REVERSAL
JAY ALAN SEKULOW
Counsel of Record
STUART J. ROTH
COLBY M. MAY
ANDREW J. EKONOMOU*
JORDAN SEKULOW*
CRAIG L. PARSHALL
MATTHEW R. CLARK*
BENJAMIN P. SISNEY
AMERICAN CENTER FOR LAW
AND JUSTICE
201 Maryland Avenue, NE
Washington, DC 20002
Tel.: 202-546-8890
Email: sekulow@aclj.org
* Not admitted to Fourth Circuit Bar
EDWARD L. WHITE III
ERIK M. ZIMMERMAN*
AMERICAN CENTER FOR LAW
AND JUSTICE
3001 Plymouth Road, Suite 203
Ann Arbor, Michigan 48105
Tel.: 734-680-8007
Email: ewhite@aclj.org
FRANCIS J. MANION
GEOFFREY R. SURTEES*
AMERICAN CENTER FOR LAW
AND JUSTICE
6375 New Hope Road
New Hope, Kentucky 40052
Tel.: 502-549-7020
Email: fmanion@aclj.org
Counsel for amicus curiae
NO. 17-2232
IRANIAN ALLIANCES ACROSS BORDERS, et al.,
Plaintiffs-Appellees,
v.
DONALD J. TRUMP, President of the United States, et al.,
Defendants-Appellants.
On Appeal from Entry of Preliminary Injunction
United States District Court for the District of Maryland
Case No. 8:17-cv-2921-TDC, Hon. Theodore D. Chuang
NO. 17-2233
EBLAL ZAKZOK, et al.,
Plaintiffs-Appellees,
v.
DONALD J. TRUMP, President of the United States, et al.,
Defendants-Appellants.
On Appeal from Entry of Preliminary Injunction
United States District Court for the District of Maryland
Case No. 1:17-cv-2969-TDC, Hon. Theodore D. Chuang
NO. 17-2240
INTERNATIONAL REFUGEE ASSISTANCE PROJECT, et al.,
Plaintiffs-Appellants,
v.
DONALD J. TRUMP, President of the United States, et al.,
Defendants-Appellees.
On Appeal from Entry of Preliminary Injunction
United States District Court for the District of Maryland
Case No. 8:17-cv-361-TDC, Hon. Theodore D. Chuang
CORPORATE DISCLOSURE STATEMENT
Pursuant to Fed. R. App. P. 29(a)(4)(A) and Circuit Rule 26.1, the amicus
curiae, the American Center for Law and Justice (“ACLJ”), makes the following
disclosures:
1. The ACLJ is a non-profit organization that has no parent corporation.
2. No publicly held corporation or other publicly held entity owns any
portion of the ACLJ.
3. The ACLJ is unaware of any publicly held corporation or other publicly
held entity that has a direct financial interest in the outcome of this litigation.
4. This case does not arise out of a bankruptcy proceeding.
CONSENT MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF
Movant,
the
American
Center
for
Law
and
Justice (“ACLJ”),
respectfully seeks leave of Court to file its Amicus Curiae Brief in support of the
position on the merits of the Defendants-Appellants, President Donald J.
Trump, et al., and urging reversal of the lower court’s decision. A copy of
the proposed amicus curiae brief has been submitted with this consent motion.
I.
THE PARTIES CONSENT TO THE FILING OF THE AMICUS
CURIAE BRIEF
Pursuant to Circuit Rule 27(a), the undersigned informed counsel for
Plaintiffs-Appellees/Plaintiffs-Appellants,
International
Refugee
Assistance Project, et al. (Nos. 17-2231, 17-2240), counsel for Plaintiffs1
Appellees, Iranian Alliances Across Borders, et al. (No. 17-2232),
counsel for Plaintiffs-Appellees, Eblal Zakzok, et al. (No. 17-2233), and
counsel
for
Defendants-Appellants/Defendants-Appellees,
President
Donald J. Trump, et al. (Nos. 17-2231, 17-2232, 17-2233, 17-2240), via
electronic mail on October 27, 2017, of the intended filing of an amicus
curiae brief by the ACLJ in support of Defendants-Appellants’ position
on the merits and urging reversal of the lower court’s decision and sought
their position on the filing of the brief.
Attorney Omar Jadwat, counsel for Plaintiffs-Appellees/PlaintiffsAppellants, International Refugee Assistance Project, et al., Attorney
Sirine Shebaya, counsel for Plaintiffs-Appellees, Iranian Alliances
Across Borders, et al., Attorney Gadeir Abbas, counsel for PlaintiffsAppellees, Eblal Zakzok, et al., and Attorney Sharon Swingle, counsel
for Defendants-Appellants/Defendants-Appellees, President Donald J. Trump, et
al., informed the undersigned that their clients consent to the filing of
the ACLJ’s amicus curiae brief.
II.
INTEREST OF THE MOVANT
The ACLJ is an organization dedicated to the defense of constitutional
liberties secured by law. Counsel for the ACLJ have presented oral argument,
represented parties, and submitted amicus curiae briefs before the Supreme Court
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of the United States, this Court, and other courts around the country in cases
involving the Establishment Clause and immigration law. See, e.g., United States v.
Texas, 136 S. Ct. 2271 (2016); Pleasant Grove City v. Summum, 555 U.S. 460
(2009); FEC v. Wis. Right to Life, 551 U.S. 449 (2007); McConnell v. FEC, 540
U.S. 93 (2003); Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S.
384 (1993); Bd. of Educ. v. Mergens, 496 U.S. 226 (1990); Washington v. Trump,
847 F.3d 1151 (9th Cir. 2017); Int’l Refugee Assistance Project v. Trump, 857 F.3d
554 (4th Cir. 2017).
The ACLJ has actively defended, through advocacy and litigation,
immigration-related policies that protect American citizens. The ACLJ’s proposed
amicus curiae brief is supported by members of the ACLJ’s Committee to Defend
Our National Security from Terror, which represents more than 276,000
Americans who have stood in support of the President’s efforts to protect this
nation from the entry of foreign terrorists.
The ACLJ believes it can offer this Court information or perspective that
will assist it in deciding the pending issues. The proposed amicus curiae is in support
of Defendants-Appellants’ position on appeal and urges this Court to reverse the
decision below. The ACLJ respectfully submits that its participation as amicus
curiae o n t h e m e r i t s will aid this Court in resolving this case, and it
requests that this Court grant this consent motion for leave to appear as amicus
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curiae and to accept for filing its attached amicus curiae brief.
III.
MOVANT’S BRIEF IS TIMELY AND USEFUL TO THE DISPOSITION
OF THE ISSUES BEFORE THE COURT.
The ACLJ timely submitted this consent motion and proposed amicus
curiae brief on November 1, 2017, which is within the deadline set by this Court
for the filing of amicus curiae briefs in support of Defendants-Appellants on the
merits. CTA Order, Dkt. # 52. The proposed amicus brief complies with the
governing Federal Rules of Appellate Procedure and Fourth Circuit Rules. The
issues presented before this Court are complex matters of constitutional and
national security law. The ACLJ’s team of constitutional lawyers is uniquely
situated to provide insight into the matters before this Court. The ACLJ’s attached,
proposed amicus curiae brief will provide this Court with unique or helpful
information in the following summarized ways:
1. The amicus brief explains that this case is not a standard Establishment
Clause case. Rather, this case involves the special context of a Presidential
Proclamation, enacted pursuant to the President’s constitutional and statutory
authority, concerning the admission of aliens into the United States. When the
Supreme Court has considered constitutional challenges to immigration-related
actions of this sort, it has declined to subject those actions to the same level of
scrutiny applied to non-immigration-related actions. As the Supreme Court has
held, “when the Executive exercises [the power to exclude an alien] on the basis of
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a facially legitimate and bona fide reason, the courts will neither look behind the
exercise of that discretion, nor test it by balancing its justification against”
opposing interests. Kleindienst v. Mandel, 408 U.S. 753, 770 (1972). The
Proclamation is valid under the governing standards.
2. Even if the Proclamation were subject to traditional Establishment Clause
analysis, however, it still passes constitutional muster. It satisfies the “purpose
prong” of Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971), by furthering the
secular purpose of protecting national security. Moreover, any attempt to sidestep
the Proclamation’s obvious secular purpose by focusing on miscellaneous
comments made by then-candidate Trump, or by his advisors, is flawed for several
reasons, including:
The Supreme Court has emphasized, in the context of legislative
enactments, that “what is relevant is the legislative purpose of the statute, not the
possibly religious motives of the legislators who enacted the law.” Bd. of Educ. v.
Mergens, 496 U.S. 226, 249 (1990) (plurality opinion). The Proclamation, on its
face, serves the secular purpose of protecting national security;
Miscellaneous comments by a candidate for public office, or his or her
proxies, while on the campaign trail and as a private citizen(s) do not constitute
“contemporaneous legislative history” or “official acts,” which are what matter for
Establishment Clause analysis. See McCreary Cnty. v. ACLU, 545 U.S. 844, 862,
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895 (2005). Indeed, “one would be naive not to recognize that campaign promises
are—by
long
democratic
tradition—the
least
binding
form
of
human
commitment.” Republican Party of Minn. v. White, 536 U.S. 765, 780 (2002);
The mere suggestion of a possible religious or anti-religious motive,
mined from past comments of a political candidate or his supporters is not enough
to doom government action. The Supreme Court has explained that “all that Lemon
requires” is that government action have “a secular purpose,” not that its purpose
be “exclusively secular,” and a policy is invalid under this test only if the
government acts with a predominant purpose of advancing religion. Lynch v.
Donnelly, 465 U.S. 668, 680-81 & n.6 (1984) (emphasis added); McCreary Cty.,
545 U.S. at 860; see also Van Orden v. Perry, 545 U.S. 677, 703 (2005) (Breyer,
J.) (upholding government action that “serv[ed] a mixed but primarily nonreligious
purpose”); Bowen v. Kendrick, 487 U.S. 589, 602 (1988) (“[A] court may
invalidate a statute only if it is motivated wholly by an impermissible purpose. . .
.”). The Proclamation clearly serves a secular purpose—protecting our national
security—and satisfies Lemon’s purpose test; and,
Under the district court’s incorrect analysis, any hypothetical future
immigration-related actions taken by the current President or officials within his
Administration will be irredeemably tainted by the alleged subjective,
predominantly anti-Muslim intent of the President and his surrogates, which runs
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contrary to the Supreme Court’s admonition that the government’s “past actions”
do not “forever taint any effort . . . to deal with the subject matter.” McCreary Cty.,
545 U.S. at 874; see also ACLU v. Schundler, 168 F.3d 92, 105 (3d Cir. 1999);
Roark v. S. Iron R-1 Sch. Dist., 573 F.3d 556, 564 (8th Cir. 2009). The district
court’s starting point was a presumption that the Proclamation is unconstitutional
unless the government could bear the burden of proving that it is “a ‘purposeful’
curative action that establishes that the taint of EO-2 no longer underlies the travel
ban.” Int’l Refugee Assistance Project v. Trump, 2017 U.S. Dist. LEXIS 171879, at
*125–26 (D. Md. 2017). This approach is backwards. As the Supreme Court noted
in a case challenging part of the Immigration and Nationality Act, “[w]e begin, of
course, with the presumption that the challenged statute is valid. Its wisdom is not
the concern of the courts; if a challenged action does not violate the Constitution, it
must be sustained.” INS v. Chadha, 462 U.S. 919, 944 (1983); see also Evans v.
Stephens, 387 F.3d 1220, 1222 (11th Cir. 2004).
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IV.
CONCLUSION
The ACLJ respectfully requests that this Court grant this c o n s e n t
motion, allow it to participate as amicus curiae on the merits, and accept for
filing the amicus curiae brief submitted herewith.
Respectfully submitted,
/s/ Edward L. White III
EDWARD L. WHITE III
ERIK M. ZIMMERMAN*
AMERICAN CENTER FOR LAW
AND JUSTICE
3001 Plymouth Road, Suite 203
Ann Arbor, Michigan 48105
Tel.: 734-680-8007
Fax: 734-680-8006
Email: ewhite@aclj.org
JAY ALAN SEKULOW
Counsel of Record
STUART J. ROTH
COLBY M. MAY
ANDREW J. EKONOMOU*
JORDAN SEKULOW*
CRAIG L. PARSHALL
MATTHEW R. CLARK*
BENJAMIN P. SISNEY
AMERICAN CENTER FOR LAW
AND JUSTICE
201 Maryland Avenue, NE
Washington, DC 20002
Tel.: 202-546-8890
Fax: 202-546-9309
Email: sekulow@aclj.org
* Not admitted to Fourth Circuit Bar
FRANCIS J. MANION
GEOFFREY R. SURTEES*
AMERICAN CENTER FOR LAW
AND JUSTICE
6375 New Hope Road
New Hope, Kentucky 40052
Tel.: 502-549-7020
Fax: 502-549-5252
Email: fmanion@aclj.org
November 1, 2017
Counsel for amicus curiae
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CERTIFICATE OF COMPLIANCE
Pursuant to Fed. R. App. P. 32(g)(1), I hereby certify that the foregoing
motion complies with the type-volume limitations in Fed. R. App. P. 27(d)(2)(A).
According to the word count feature of Microsoft Word, the motion contains 1,442
words, excluding the exempted parts under Rule 32. The motion has been prepared
in a proportionally spaced typeface using Times New Roman in 14 point size.
Dated: November 1, 2017
Respectfully submitted,
/s/ Edward L. White III
EDWARD L. WHITE III
AMERICAN CENTER FOR LAW
AND JUSTICE
3001 Plymouth Road, Suite 203
Ann Arbor, Michigan 48105
Telephone: (734) 680-8007
Facsimile: (734) 680-8006
Email: ewhite@aclj.org
Counsel for amicus curiae
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CERTIFICATE OF SERVICE
I hereby certify that on November 1, 2017, I caused true and correct copies
of the foregoing motion and attached, proposed amicus curiae brief to be
electronically filed with the Clerk of Court for the United States Court of Appeals
for the Fourth Circuit using CM/ECF, which will send notification of such filings
to counsel of record.
Respectfully submitted,
/s/ Edward L. White III
EDWARD L. WHITE III
AMERICAN CENTER FOR LAW
AND JUSTICE
3001 Plymouth Road, Suite 203
Ann Arbor, Michigan 48105
Telephone: (734) 680-8007
Facsimile: (734) 680-8006
Email: ewhite@aclj.org
Counsel for amicus curiae
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