Intl. Refugee Assistance v. Donald J. Trump

Filing 55

AMICUS CURIAE BRIEF by American Center for Law and Justice as Amicus Curiae in electronic and paper format. Method of Filing Paper Copies: courier. Date Paper Copies Mailed, Dispatched, or Delivered to Court: 11/01/2017. [1000184588] [17-2231, 17-2232, 17-2233, 17-2240] Edward White [Entered: 11/01/2017 09:32 AM]

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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 Inside Cover] BRIEF OF AMICUS CURIAE, THE AMERICAN CENTER FOR LAW AND JUSTICE, SUPPORTING DEFENDANTS-APPELLANTS ON THE MERITS AND URGING REVERSAL. BRIEF FILED WITH THE CONSENT OF THE PARTIES. 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, 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. 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 i TABLE OF CONTENTS CORPORATE DISCLOSURE STATEMENT ......................................................... i TABLE OF AUTHORITIES ................................................................................... iii CERTIFICATION PURSUANT TO FED. R. APP. P. 29(A)(4)(E) ........................1 STATEMENT OF INTEREST OF AMICUS CURIAE.............................................1 SUMMARY OF THE ARGUMENT ........................................................................2 ARGUMENT .............................................................................................................3 I. Supreme Court precedent dictates that the challenged Presidential Proclamation be reviewed under the deferential standards applicable to the immigration policymaking and enforcement decisions of the political branches, which the Proclamation satisfies................................................................................ 3 A. Judicial review of the immigration-related actions of the political branches is deferential.........................................................................................................4 B. The Presidential Proclamation is constitutional under the Supreme Court’s deferential standards applicable to constitutional challenges to the political branches’ immigration-related actions. ...............................................................6 II. The Presidential Proclamation is constitutional even under a traditional Establishment Clause analysis. ................................................................................ 10 CONCLUSION ........................................................................................................17 CERTIFICATION PURSUANT TO FED. R. APP. P. 29 AND 32 .......................18 CERTIFICATE OF SERVICE ................................................................................19 ii TABLE OF AUTHORITIES CASES ACLU v. Schundler, 168 F.3d 92 (3d Cir. 1999) .................................................................................15 Bd. of Educ. v. Mergens, 496 U.S. 226 (1990) ....................................................................................... 1, 13 Bowen v. Kendrick, 487 U.S. 589 (1988) ............................................................................................14 Clinton v. Jones, 520 U.S. 681 (1997) ............................................................................................12 Evans v. Stephens, 387 F.3d 1220 (11th Cir. 2004)………………………………………………..16 FEC v. Wis. Right to Life, Inc., 551 U.S. 449 (2007) ..............................................................................................1 Fiallo v. Bell, 430 U.S. 787 (1977) ..........................................................................................4, 7 Harisiades v. Shaughnessy, 342 U.S. 580 (1952) ..............................................................................................4 INS v. Chadha, 462 U.S. 919 (1983)..........…………………………………………………16 Int'l Refugee Assistance Project v. Trump, 2017 U.S. Dist. LEXIS 171879 (D. Md. 2017)……………………………10, 15 Int'l Refugee Assistance Project v. Trump, 857 F.3d 554 (4th Cir. 2017) ................................................................................1 Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963) ..............................................................................................4 iii Kerry v. Din, 135 S. Ct. 2128 (2015) ..........................................................................................6 Kleindienst v. Mandel, 408 U.S. 753 (1972) ..............................................................................................6 Lamb's Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384 (1993).…………………………………………………….…..1 Landon v. Plasencia, 459 U.S. 21 (1982) ................................................................................................4 Lemon v. Kurtzman, 403 U.S. 602 (1971) ............................................................................................11 Lynch v. Donnelly, 465 U.S. 668 (1984) ............................................................................................14 McConnell v. FEC, 540 U.S. 93 (2003) ................................................................................................1 McCreary Cty. v. ACLU, 545 U.S. 844 (2005) ...................................................................................... 12-15 Moss v. Spartanburg Cty. Sch. Dist., 683 F.3d 599 (4th Cir. 2012) ..............................................................................11 Mueller v. Allen, 463 U.S. 388 (1983)………………………………………………………..13 Pleasant Grove City v. Summum, 555 U.S. 460 (2009)…………………………………………………………1 Rajah v. Mukasey, 544 F.3d 427 (2d Cir. 2008) ........................................................................... 9-10 Republican Party of Minn. v. White, 536 U.S. 765 (2002) ............................................................................................12 iv Roark v. S. Iron R-1 Sch. Dist., 573 F.3d 556 (8th Cir. 2009) ..............................................................................15 Shaughnessy v. Mezei, 345 U.S. 206 (1953)…………………………………………………………4 United States v. Texas, 136 S. Ct. 2271 (2016) ..........................................................................................1 Van Orden v. Perry, 545 U.S. 677 (2005) ..................................................................................... 10, 14 Wallace v. Jaffree, 472 U.S. 38 (1985) ..............................................................................................14 Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017) ..............................................................................1 Washington v. Trump, 853 F.3d 933 (9th Cir. 2017) ................................................................................8 Washington v. Trump, 858 F.3d 1168 (9th Cir. 2017) ............................................................................13 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)…………………………………………………………5 Ziglar v. Abbasi, 137 S. Ct. 1861 (2017) ..........................................................................................6 Zivotofsky v. Kerry, 135 S. Ct. 2076 (2015) ..........................................................................................5 STATUTES AND RULES 8 U.S.C. § 1182(f) ......................................................................................................5 Circuit Rule 26.1 ........................................................................................................ i Fed. R. App. P. 29 ............................................................................................ i, 1, 18 v Fed. R. App. P. 32 ....................................................................................................18 OTHER AUTHORITIES Presidential Proclamation Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats, 82 Fed. Reg. 45,161 (Sept. 24, 2017), http://www.whitehouse.gov/the-press-office/2017/09/24/enhancingvetting-capabilities-and-processes-detecting-attempted-entry ............... 2, passim vi CERTIFICATION PURSUANT TO FED. R. APP. P. 29(A)(4)(E) Pursuant to Fed. R. App. P. 29(a)(4)(E), the American Center for Law and Justice (“ACLJ”) affirms that no counsel for a party authored this brief in whole or in part and that no person other than the amicus curiae, its members, or its counsel made any monetary contributions intended to fund the preparation or submission of this brief. STATEMENT OF INTEREST OF AMICUS CURIAE 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 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. This brief is supported 1 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. This brief supports the position of the Defendants-Appellants, President Donald J. Trump, et al., on the merits and urges the reversal of the lower court’s decision. The parties have consented to the filing of this brief. SUMMARY OF THE ARGUMENT The federal government’s primary job is to keep this nation safe. The Presidential Proclamation at issue in this case is designed to do just that.1 Under the Constitution and federal statutes, the President has broad power to exclude aliens from this country for national security reasons. Courts generally defer to the exercise of the President’s power in this area, which is what the district court should have done here. The Proclamation is a valid exercise of President Trump’s authority that should not be disturbed. Moreover, the mere suggestion of a possible religious or anti-religious motive, mined primarily from past comments of a political candidate or his supporters uttered on the campaign trial as private citizens, is not enough to defeat 1 Presidential Proclamation Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other PublicSafety Threats,” 82 Fed. Reg. 45,161 (Sept. 24, 2017), http://www.whitehouse. gov/the-press-office/2017/09/24/enhancing-vetting-capabilities-and-processesdetecting-attempted-entry. 2 the validity of the Proclamation, even under Lemon’s “purpose prong.” The Proclamation clearly serves a genuine secular purpose—protecting our national security—and is not motivated by anti-religious considerations. The decision below should be reversed and the preliminary injunction should be vacated to permit the Proclamation to be implemented in full to protect our nation from foreign terrorists. ARGUMENT I. The Presidential Proclamation should be reviewed under the deferential standards applicable to the immigration policymaking and enforcement decisions of the political branches, which the Proclamation satisfies. This case involves the special context of a Presidential Proclamation concerning the entry into the United States of nationals of eight countries, enacted pursuant to the President’s constitutional and statutory authority to protect national security. The governing purpose of the Proclamation is to protect our “citizens from terrorist attacks” and other public-safety threats. Procl. § 1(a). As the Proclamation explains, Screening and vetting protocols and procedures associated with visa adjudications and other immigration processes play a critical role in implementing that policy. They enhance our ability to detect foreign nationals who may commit, aid, or support acts of terrorism, or otherwise pose a safety threat, and they aid our efforts to prevent such individuals from entering the United States. Id. 3 As discussed herein, when the Supreme Court has considered constitutional challenges to immigration-related actions like the Proclamation, it has declined to subject those actions to the same level of scrutiny applied to non-immigrationrelated actions, choosing instead to take a considerably more deferential approach, which is what the district court should have done here. Under the appropriately deferential standard of review, the Proclamation is constitutionally sound. A. Judicial review of the immigration-related actions of the political branches is deferential. The Supreme Court has “long recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control.” Fiallo v. Bell, 430 U.S. 787, 792 (1977) (quoting Shaughnessy v. Mezei, 345 U.S. 206, 210 (1953)). Indeed, “an alien seeking initial admission to the United States requests a privilege and has no constitutional rights regarding his application, for the power to admit or exclude aliens is a sovereign prerogative.” Landon v. Plasencia, 459 U.S. 21, 32 (1982). Moreover, the Constitution “is not a suicide pact,” Kennedy v. Mendoza-Martinez, 372 U.S. 144, 160 (1963), and the President has broad national security powers that may be exercised through immigration restrictions. See Harisiades v. Shaughnessy, 342 U.S. 580, 588–89 (1952). 4 Not only does the decision below undermine the President’s national security authority, it also undercuts the considered judgment of Congress (in bolstering the President’s broad discretion) that: Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate. 8 U.S.C. § 1182(f) (2012) (emphasis added). Where, as here, a President’s action is authorized by Congress, “his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.” Zivotofsky v. Kerry, 135 S. Ct. 2076, 2084 (2015) (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Frankfurter, J., concurring)). The Proclamation falls squarely within the President’s constitutional and statutory authority and should be upheld in full. As the Supreme Court recently explained: National-security policy is the prerogative of the Congress and President. Judicial inquiry into the national-security realm raises concerns for the separation of powers in trenching on matters committed to other branches. . . . For these and other reasons, courts have shown [that] deference to what the Executive Branch has determined . . . is essential to national security. Indeed, courts traditionally have been reluctant to intrude upon the authority of the Executive in military and national security affairs unless Congress specifically has provided otherwise. Congress has not provided otherwise here. 5 Ziglar v. Abbasi, 137 S. Ct. 1843, 1861 (2017) (citation and internal quotation marks omitted). B. The Presidential Proclamation is constitutional under the Supreme Court’s deferential standards applicable to challenges to the political branches’ immigration-related actions. In Kleindienst v. Mandel, 408 U.S. 753, 770 (1972), the Court rejected a First Amendment challenge to the Attorney General’s decision to decline to grant a waiver that would have allowed a Belgian scholar to enter the country on a visa in order to speak to American professors and students. The Court held that “the power to exclude aliens is ‘inherent in sovereignty, necessary for maintaining normal international relations and defending the country against foreign encroachments and dangers—a power to be exercised exclusively by the political branches of government. . . .’” Id. at 765 (citations omitted). The Court concluded by stating that plenary congressional power to make policies and rules for exclusion of aliens has long been firmly established. In the case of an alien excludable under § 212(a)(28), Congress has delegated conditional exercise of this power to the Executive. We hold that when the Executive exercises this power negatively on the basis of 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 the First Amendment interests of those who seek personal communication with the applicant. Id. at 769–70; see also Kerry v. Din, 135 S. Ct. 2128, 2139–41 (2015) (Kennedy, J., concurring) (the government’s statement that a visa application was denied due 6 to suspected involvement with terrorist activities “satisf[ied] Mandel’s ‘facially legitimate and bona fide’ standard”). Similarly, in Fiallo, the Supreme Court rejected a challenge to statutory provisions that granted preferred immigration status to most aliens who are the children or parents of United States citizens or lawful permanent residents, except for illegitimate children seeking that status by virtue of their biological fathers, and the fathers themselves. 430 U.S. at 788–90, 799–800. The Court stated: At the outset, it is important to underscore the limited scope of judicial inquiry into immigration legislation. This Court has repeatedly emphasized that “over no conceivable subject is the legislative power of Congress more complete than it is over” the admission of aliens. Id. at 792 (citation omitted). The Court noted that it had previously “resolved similar challenges to immigration legislation based on other constitutional rights of citizens, and has rejected the suggestion that more searching judicial scrutiny is required.” Id. at 794. Additionally, the Court stated, “We can see no reason to review the broad congressional policy choice at issue here under a more exacting standard than was applied in Kleindienst v. Mandel, a First Amendment case.” Id. at 795. Furthermore, the Court emphasized that “it is not the judicial role in cases of this sort to probe and test the justifications for the legislative decision,” id. at 799, and concluded that the plaintiffs raised “policy questions entrusted exclusively to the political branches of our Government.” Id. at 798. 7 The legality of Presidential orders related to immigration does not turn on a judicial guessing game of what the President’s subjective motives were at the time the order was issued. Instead, Mandel, Fiallo, and other cases dictate that courts should rarely look past the face of such orders. On its face, the Proclamation is designed to protect national security, and the analysis of the Proclamation’s legality under the Establishment Clause should end there. See Washington v. Trump, 853 F.3d 933, 939 n.6 (9th Cir. 2017) (Bybee, J., dissenting from denial of reconsideration en banc) (the panel’s “unreasoned assumption that courts should simply plop Establishment Clause cases from the domestic context over to the foreign affairs context ignores the realities of our world”). The mere fact that six of the eight countries designated by the Proclamation happen to have Muslim majority populations is not evidence of religious animus. Under such reasoning, the benefits that the government provides to military veterans would be rendered constitutionally suspect by the mere fact that approximately 85% of veterans happen to be male, even though there are many legitimate reasons for providing such benefits unrelated to any gender-based bias. Notably, the Proclamation does not single out Muslims (or people of any other faith, or no faith) for disfavored treatment. It is religiously neutral. The countless millions of non-American Muslims who live outside the designated countries are not restricted by the Proclamation. Neither does it limit its application 8 to Muslims in the designated countries; instead, it applies to nationals of the enumerated countries irrespective of their faith. Plaintiffs’ objection to the Proclamation is, at its core, a policy dispute that should be resolved by the political branches, not by the federal courts. The Proclamation is similar in principle to the National Security Entry Exit Registration System (“NSEERS”) implemented after the terrorist attacks of September 11, 2001, which was upheld by numerous federal courts. Rajah v. Mukasey, 544 F.3d 427, 438–39 (2d Cir. 2008) (citing cases). Under this system, the Attorney General imposed special requirements upon foreign nationals present in the United States who were from specified countries. The first group of countries designated by the Attorney General included Iran, Libya, Sudan and Syria, and a total of twenty-four Muslim majority countries and North Korea were eventually designated. Id. at 433 n.3. In one illustrative NSEERS case, the United States Court of Appeals for the Second Circuit rejected arguments that are strikingly similar to the arguments accepted by the lower court here: There was a rational national security basis for the Program. The terrorist attacks on September 11, 2001 were facilitated by the lax enforcement of immigration laws. The Program was [rationally] designed to monitor more closely aliens from certain countries selected on the basis of national security criteria. . . . To be sure, the Program did select countries that were, with the exception of North Korea, predominantly Muslim. . . . However, one major threat of 9 terrorist attacks comes from radical Islamic groups. The September 11 attacks were facilitated by violations of immigration laws by aliens from predominantly Muslim nations. The Program was clearly tailored to those facts. . . . The program did not target only Muslims: non-Muslims from the designated countries were subject to registration. There is therefore no basis for petitioners’ claim. Id. at 438–49 (emphasis added) (citation omitted). Similarly, the Proclamation at issue here is constitutional. It is premised upon sound, reasoned determinations made by the Secretary of Homeland Security. Rather than affording the Proclamation and the Secretary’s determinations substantial deference as controlling precedent requires, the district court improperly overrode those determinations with its own opinion of the national security interests served by the Proclamation and the opinions of “former national security officials” relied upon by Plaintiffs. Int’l Refugee Assistance Project v. Trump, 2017 U.S. Dist. LEXIS 171879, at *34–36, 121–25 (D. Md. 2017). This is precisely the kind of judicial second-guessing on matters of immigration and national security that is foreclosed by Supreme Court precedent. II. The Presidential Proclamation is constitutional even under a traditional Establishment Clause analysis. Justice Breyer’s controlling opinion in Van Orden v. Perry, 545 U.S. 677 (2005), observed that, “Where the Establishment Clause is at issue, tests designed to measure ‘neutrality’ alone are insufficient.” Id. at 699 (Breyer, J., concurring). Justice Breyer stated that in “difficult borderline cases . . . I see no test-related 10 substitute for the exercise of legal judgment . . . [which] must reflect and remain faithful to the underlying purposes of the [Religion] Clauses. . . .” Id. at 700. In this case, “the exercise of legal judgment” must take into account the deferential nature of judicial review of immigration-related actions such as the Proclamation. Nevertheless, the Proclamation is constitutional even under inapplicable nonimmigration-related Establishment Clause jurisprudence. Assuming the “purpose prong” of the Lemon v. Kurtzman test applies, 403 U.S. 602 (1971), the Proclamation clearly satisfies it. The “purpose prong” asks whether the challenged government action is “driven in part by a secular purpose.” Moss v. Spartanburg Cty. Sch. Dist., 683 F.3d 599, 608 (4th Cir. 2012). Here, the Proclamation’s predominant purpose is its stated objective—protecting our national security—and, as such, the Proclamation satisfies the “purpose prong.” See Lemon, 403 U.S. at 612–13; Procl. § 1. The district court sidestepped the Proclamation’s obvious secular purpose by focusing mainly on miscellaneous comments made by then-candidate Trump, or his campaign advisors, despite any subsequent clarifications provided by the Trump Administration regarding its efforts to protect this country from the entry of foreign terrorists. The district court’s approach is flawed for at least four reasons. First, the Supreme Court has stated that the primary purpose inquiry concerning statutes may include consideration of the “plain meaning of the 11 statute’s words, enlightened by their context and the contemporaneous legislative history [and] the historical context of the statute . . . and the specific sequence of events leading to [its] passage.” McCreary Cty. v. ACLU, 545 U.S. 844, 862 (2005) (citation and internal quotation marks omitted); see also id. (noting that the primary purpose inquiry is limited to consideration of “the ‘text, legislative history, and implementation of the statute,’ or comparable official act”) (citation omitted and emphasis added). The district court improperly focused on numerous quotes, made as long ago as 2015, by then-candidate Trump and/or individuals holding some nongovernmental position within his political campaign. See Int’l Refugee Assistance Project, 2017 U.S. Dist. LEXIS 171879, at *103-07. What matters for Establishment Clause analysis, however, are official government acts. Comments made, or actions taken, by a private citizen while a candidate for public office (or his or her advisors) while on the campaign trail are not “official” government acts, and do not constitute “contemporaneous legislative history.” McCreary Cty., 545 U.S. at 862; cf. Clinton v. Jones, 520 U.S. 681, 686 (1997) (alleged misconduct occurring before Bill Clinton became President was not an “official” act). Clearly, “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). Therefore, the 12 district court failed to properly limit its inquiry to official acts or statements in conducting its Establishment Clause analysis. Presidential campaign rhetoric is inherently unofficial and unreliable and should not be considered. See Washington v. Trump, 858 F.3d 1168, 1173 (9th Cir. 2017) (Kozinski, J., dissenting from denial of reconsideration en banc) (explaining that, for Establishment Clause analysis, it “is folly” to consider a political candidate’s campaign trail rhetoric, which is often contradictory or inflammatory). Second, the district court’s extensive reliance upon purported evidence of a subjective, personal anti-Muslim bias of the President and some of his advisors is improper because “what is relevant is the legislative purpose of the statute, not the possibly religious motives of the legislators who enacted the law.” Mergens, 496 U.S. at 249 (plurality opinion) (emphasis added). In short, the district court engaged in the kind of “judicial psychoanalysis of a drafter’s heart of hearts” that is foreclosed by Supreme Court precedent. McCreary Cty., 545 U.S. at 862. The Proclamation, on its face, serves an indisputably secular purpose (protecting national security) and no amount of rehashing of miscellaneous campaign trail commentary can change that. A foray into the malleable arena of legislative history is not even a requirement in Establishment Clause cases where, as here, a secular purpose is readily apparent from a law or policy’s text. See Mueller v. Allen, 463 U.S. 388, 394–95 (1983) (noting the Supreme Court’s 13 “reluct[ance] to attribute unconstitutional motives to the [government] particularly when a plausible secular purpose . . . may be discerned from the face of the statute”); Wallace v. Jaffree, 472 U.S. 38, 66 (1985) (O’Connor, J., concurring) (explaining that inquiry into the government’s purpose should be “deferential and limited”). Third, the mere suggestion of a possible religious or anti-religious motive, mined from past comments of a political candidate or his supporters, and intermixed with various secular purposes, is not enough to doom government action (along with all subsequent attempts to address the same subject matter). “[A]ll that Lemon requires” is that government action have “a secular purpose,” not that its purpose be “exclusively secular,” Lynch v. Donnelly, 465 U.S. 668, 681 n.6, 700 (1984) (citation omitted and emphasis added), and a policy is invalid under this test only if “the government acts with the ostensible and predominant purpose of advancing religion.” McCreary Cty., 545 U.S. at 860 (emphasis added); see also Van Orden, 545 U.S. at 703 (Breyer, J., concurring) (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.”) (emphasis added). The Proclamation clearly serves secular purposes and, therefore, satisfies Lemon’s purpose test. 14 Lastly, 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 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) (Alito, J.) (“The mere fact that Jersey City’s first display was held to violate the Establishment Clause is plainly insufficient to show that the second display lacked ‘a secular legislative purpose,’ or that it was ‘intended to convey a message of endorsement or disapproval of religion.’”) (citation omitted); Roark v. S. Iron R-1 Sch. Dist., 573 F.3d 556, 564 (8th Cir. 2009) (“Another reason we reject the district court’s Lemon analysis is that . . . [it] would preclude the District from ever creating a limited public forum in which religious materials may be distributed in a constitutionally neutral manner.”). 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, 2017 U.S. Dist. LEXIS 171879, at *125–26. This approach is backwards. As the Supreme Court noted in a 15 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) (“[T]he President . . . [is] sworn to uphold the Constitution. And when the President is acting under the color of express authority of the United States Constitution, we start with a presumption that his acts are constitutional. . . . [T]he burden is on the challengers to overcome it with their arguments and to persuade us to the contrary.”). In sum, the Proclamation does not violate the Establishment Clause. It should be enforced in full to protect our nation from foreign terrorists. The preliminary injunction jeopardizes our national security and improperly obstructs the President from exercising his constitutional and statutory duty to protect our nation. 16 CONCLUSION This Court should reverse the decision below and vacate the preliminary injunction. 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 17 CERTIFICATION PURSUANT TO FED. R. APP. P. 29 AND 32 This amicus curiae brief complies with the type-volume limitation of Fed. R. App. P. 29(a)(5) and 32(a)(7) because it contains 3,726 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(f). This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word in 14-point Times New Roman font. 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 Dated: November 1, 2017 Counsel for amicus curiae 18 CERTIFICATE OF SERVICE I hereby certify that on November 1, 2017, I caused a true and correct copy of the foregoing 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 filing to counsel of record. On the same date, I caused four true and correct paper copies of the foregoing to be sent by Federal Express nextbusiness day delivery to the Clerk of Court, United States Court of Appeals for the Fourth Circuit, 1100 East Main Street, Suite 501, Richmond, Virginia 23219-3517. 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 19

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