State of Washington, et al v. Donald J. Trump, et al

Filing 145

STRICKEN PER ORDER [152]. Submitted (ECF) Amicus brief for review (by government or with consent per FRAP 29(a)). Submitted by Freedom Watch, Inc.. Date of service: 02/14/2017. [10319752] [17-35105] (Klayman, Larry) [Entered: 02/14/2017 04:20 PM]

CASE NO. 17-35105
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

STATE OF WASHINGTON, et al.,
Appellants
v.
DONALD J. TRUMP, PRESIDENT, et al.,
Appellees

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WASHINGTON,
CASE NO. 2:17-cv-00141-JLR
BRIEF OF AMICUS CURIAE FREEDOM WATCH, INC., IN
SUPPORT OF EN BANC REVIEW OF APPELLANTS-DEFENDANTS’
EMERGENCY MOTION FOR STAY PENDING APPEAL
ORAL ARGUMENT REQUESTED

Larry Klayman, Esq.
FREEDOM WATCH, INC.
2020 Pennsylvania Ave. NW, Suite 345
Washington, DC 20006
Telephone: [phone]
Email: [e-mail]
Attorney for Amicus Curiae
February 14, 2017

TABLE OF CONTENTS
TABLE OF CONTENTS

ii

TABLE OF AUTHORITIES

iii

FRAP RULE 26.1 AND FRAP 29(a)(4)(E) DISCLOSURE STATEMENT v
STATEMENT OF INTEREST OF AMICUS CURIAE

vi

SUMMARY OF ARGUMENT

1

ARGUMENT

5

Appellee States Will Not Prevail on the Merits

5

Standing

6

The 1952 Statute Ignored. President's Power To Regulate
Entry Into The United States Is Clear And Almost Unlimited

9

Straw-Man Argument Of Religious Discrimination

10

Court Usurping Presidential Role: Executive Order Targets
"Failed states" Plus Terrorist Sponsor, Hostile Iran, Not Islam 11
Non-Justiciable Political Question

14

Severability of the Executive Order

16

8 U.S.C. § 1152(a)(1)(A) Did Not Repeal 8 U.S.C. § 1182(f)

18

Appellees Reliance on 8 U.S.C. § 1152(A)(1)(A) Misplaced

19

Irreparable Harm Supports The Executive Order,
Not The Appellees

20

Court Should Consolidate Multi-District Litigation: Forum
Non Conveniens And Judge Shopping
CONCLUSION

22
23

ii

TABLE OF AUTHORITIES
Cases!
Abrego Abrego v. The Dow Chemical Co., 443 F.3d 676, 687-686 (9th Cir., 2006) ................... 19
Alaska Airlines, Inc v. Brock, 480 U.S. 678, 684-685, 107 S.Ct. 1476, 94 L.Ed.2d 661 (1987).. 17
Alexander v. Americans United Inc., 416 U.S. 752, 761-762, 94 S.Ct. 2053, 40 L.Ed.2d 518
(1974) ........................................................................................................................................ 20
Beacon Theaters, Inc v. Westover, 359 U.S. 500, 507, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959) ....... 20
Cannon v. Univ. of Chicago., 441 U.S. 677, 696-97, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979)...... 18
Commonwealth of Massachusetts v. Laird, 400 U.S. 886, 887, 91 S.Ct. 128, 27 L.Ed.2d 140
(1970) .......................................................................................................................................... 7
Harisiades v. Shaughnessy, 342 U.S. 580, 588 (1952) ................................................................... 9
L. Snapp & Son v. Puerto Rico ex rel. Barez, 458 U.S. 592, 610 n.16 (1982) ............................... 7
Massachusetts v. Mellon, 262 U.S. 447, 485-86 (1923) ................................................................. 7
Mohamad v. Palestinian Auth., 132 S. Ct. 1702, 182 L.Ed.2d 720 (2012) .................................. 19
Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981)........................................................................ 22
Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981)........................................................................ 22
Powell v. Cormack, 395 U.S. 486, 518-519, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969) ................... 15
Pulliam v. Allen, 466 U.S. 522, 537, 104 S.Ct. 1970, 80 L.Ed.2d 565 (1984) ............................. 20
Reno v. Am.-Arab Anti-Discrimination Comm. (“AAADC”), 525 U.S. 471, 483-85 (1999) ......... 7
Rodriguez v. United States, 480 U.S. 522, 107 S.Ct. 1391, 94 L.Ed.2d 533 (1987) .................... 18
Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 73 S.Ct. 625, 97 L.Ed. 956 (1953) .... 8
Stuhlbarg Int’l Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839 n. 7 (9th Cir. 2001) ........... 6
Texas v. United States of America, 809 F.3d 134 (5th Cir. November 9, 2015) (Appeal No. 1540238) ......................................................................................................................................... 8
U.S. v. Alvarez-Hernandez, 478 F.3d 1060, 1065-1066 (9th Cir. 2007). ..................................... 19
United States v. LeCoe, 936 F.2d 398, 403 (9th Cir.1991) ........................................................... 18
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S. Ct. 365, 172 L. Ed. 2d 249 (2008) 6
Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24, 129 S.Ct. 365, 172 L.Ed.2d 249, 555
U.S. 7, 77 USLW 4001 (2008) ................................................................................................... 6
Zadvydas v. Davis Et Al., 533 U.S. 678 (2001) .............................................................................. 8
Zivotofsky v. Kerry, 576 U.S. ___, 135 S. Ct. 2076, 2083-84 (2015) ............................................. 9
Statutes!
28 U.S. Code § 1391 ..................................................................................................................... 22
iii

8 U.S. Code § 1182(f) ............................................................................................................... 9, 19
8 U.S.C. § 1152(a)(1)(A) .................................................................................................... ii, 18, 19
8 U.S.C. § 1182(f) ............................................................................................................. 18, 19, 20
8 U.S.C. § 1187(a)(12).................................................................................................................. 12
Article II ........................................................................................................................................ 23
Section 212(f) of the Immigration and Naturalization Act ............................................................. 9
Rules!
Fed. R. Civ. P. 65(b)(1)................................................................................................................... 6
FRAP 29(a)(4)(E) ........................................................................................................................... v
FRAP RULE 26.1 ........................................................................................................................... v

iv

FRAP RULE 26.1 AND FRAP 29(a)(4)(E)) DISCLOSURE STATEMENT
Freedom Watch, Inc. is a 501(c)(3) not-for-profit organization, with no
parent corporation and no publicly traded stock.
In compliance with Federal Rules of Appellate Procedure ("FRAP") Rule
29(a)(4)(E), Freedom Watch, Inc. further states that this brief was authored by
counsel for Freedom Watch, without the involvement of counsel for any party in
this matter. No party or counsel for such party contributed money that was
intended to fund preparing or submitting this brief. No person other than the
Amicus or its counsel contributed money that was intended to fund preparing or
submitting this brief.

Dated: February 13, 2017

/s/ Larry Klayman
Larry Klayman
Counsel for Amicus Curiae
FREEDOM WATCH, INC.

v

STATEMENT OF INTEREST OF AMICUS CURIAE
Amicus Curiae Freedom Watch, Inc. hereby respectfully submits this brief to
assist the Court and the ends of justice pursuant to the FRAP Rule 29. Counsel for
the Appellants and Appellees have graciously offered their consent to this filing
and therefore pursuant to FRAP Rule 29 and Circuit Rule 29, on the direction of
this rule, a separate motion for leave to file this brief is not required.
Freedom Watch is a public interest group dedicated to preserving freedom,
pursuing individual rights and civil liberties, preserving the rule of law and public
confidence in the courts, and fighting for ethics in government and the judicial
system, as well as investigating and prosecuting government corruption and abuse.
As part of its goal to remain constant to the principles of the Founding Fathers,
Freedom Watch is dedicated to ensuring the rights of all citizens through action,
frequently with legal cases and other means.
Previously, Freedom Watch filed an Amicus Curiae brief before the U.S.
Supreme Court in a related case, Arizona v. United States, 567 U.S. __, 132 S.Ct.
2492 (2012) which addressed some of the legal issues and considerations
implicated here. Similarly, Freedom Watch filed Amicus Curiae briefs before the
U.S. Supreme Court and the U.S. District Court for the Southern District of Texas
in Texas v. United States, 787 F.3d 733 (5th Cir. 2015), and brought a parallel
case Arpaio v. Obama , in a petition before the U.S. Supreme Court as Case No.
vi

15-643, including a petition for writ of certiorari in the U.S. Supreme Court

concerning somewhat similar issues regarding President Barack Obama's authority
to disregard federal law on immigration by Executive Order.
With the majority of the country's citizens demanding the integrity of the
rule of law, enforcement of our nation's immigration laws, protection of the
country's borders, and defense of their families, communities, and nation against
terrorist threats, Freedom Watch is required to speak on behalf of those unable to
do so. As such, consistent with its mission, Freedom Watch seeks to provide the
means and mechanism to protect American citizens’ rights in this matter of great
public interest and to uphold our constitutional system of separation of powers and
the rule of law.

vii

I.!

SUMMARY OF ARGUMENT
"[W]hile the Constitution protects against invasions of
individual rights, it is not a suicide pact." Kennedy v.
Mendoza-Martinez, 372 U.S. 144, 160, 83 S.Ct. 554, 563,
9 L.Ed.2d 644 (1963). The Constitution's due process
guarantees call for no more than what has been accorded
here: a statement of reasons and an opportunity for a
prompt postrevocation hearing.

Haig v. Agee, 453 U.S. 280, 310, 101 S.Ct. 2766, 69 L.Ed.2d 640 (1981)
(emphases added); Accord, Kennedy v. Rusk v. Cort, 372 U.S. 144, 83 S.Ct. 554, 9
L.Ed.2d 644 (1963).
This Court and the nation have been dragged into a constitutional crisis at
break-neck speed, while leaving the nation unprotected from infiltration by
terrorists. On January 27, 2017, President Donald Trump issued an Executive
Order "Protecting the Nation from Foreign Terrorist Entry into the United
States," ("Executive Order"), 82 Fed. Reg. 8,977, attached as Exhibit A.
"We want to ensure that we are not
admitting into our country the very threats
our soldiers are fighting overseas."
-- Verbal statement by the President Trump, upon signing the Executive Order
officially announcing its purpose.1
Amicus Curiae Freedom Watch respectfully offers its analysis for the benefit
of this Court pursuant to FRAP Rule 29. As other aspects of the case come before
1

Ken Thomas, "Trump Orders Strict New Refugee Screening, Citing Terrorists,"
Associated Press, January 27, 2017, accessible at:
http://bigstory.ap.org/article/889887c9c328423b955920f4d7465e54/trump-expected-signdirective-halting-refugee-flows-us

the Court, it is likely that Freedom Watch may offer further analysis separately.
Now before the Court is Appellants' motion for a stay of the Temporary
Restraining Order ("TRO") from the U.S. District Court for the District of
Washington ("District Court.") Appellants seek a stay of a stay. But defects in the
TRO demonstrate that the TRO should be stayed, being deficient on the merits.
En Banc review is warranted of the Per Curiam Order on February 9, 2017,
of a three-judge panel ("Panel") of the U.S. Court of Appeals for the Ninth Circuit
("Ninth Circuit"). The Panel has restrained the core, constitutionally-established
role of the President of the United States as head of the nation's foreign policy,
international relations, national security, national defense, commander-in-chief,
and head of the executive branch.
First, the Appellees do not have standing under parens patriae. Despite
claiming that public universities are agencies of their States, the universities are
claiming temporary inconvenience by others, not themselves. Further, as the Panel
admits, the Executive Order provides for a waiver. Anyone affected who is not a
threat to the country may receive a waiver. According to news reports, everyone
detained in transit has already received such a waiver and has already entered.
Also, in this constitutional crisis, unfolding at astonishing and dangerous
speed, the courts have substituted their own national security judgments and
factual analyses in place of the President's and the Congress' unique authority
2

under the Constitution. Specifically, to balance the harms for the TRO, the
Honorable James L. Robart and the Panel decided for themselves that seven failed
states -- hot beds of terrorism and lacking trustworthy records -- do not represent
any real danger to U.S. families and communities. Such military, foreign policy,
and national security analysis is not within the capabilities of the courts. The
President is briefed by an extensive system of intelligence agencies.2 This Court
does not have regular access to those intelligence resources.
Moreover, the District Court and Panel were in error: Judge Robart
inaccurately argued in the hearing that no terrorist attack had -- so far -- resulted
from aliens entering from the seven failed states and Iran.3 First, this demonstrates
the lack of expertise of the courts. So-called "homegrown terrorists" born or
naturalized in the United States are typically radicalized by someone. Aliens from
the world's seven most dangerous countries may recruit for, train, incite, finance,
organize, support, plan, and help implement terrorist attacks regardless of whether
they personally deliver the bomb. The Panel erroneously assumed that terrorist
threats are presented only by those who push the button. 4

2

Justin Fishel and John Santucci, "Trump Receives 1st Presidential Daily Brief," ABC
News, November 15, 2016, accessible at: http://abcnews.go.com/Politics/trump-receivespresidential-daily/story?id=43554271!
3
Regrettably, Appellants' counsel stated he was unprepared to address the question on
short notice. A slower, more-circumspect examination of these issues is necessary.
4
Jessica Vaughn, "Study Reveals 72 Terrorists Came From Countries Covered by Trump
Vetting Order," Center for Immigration Studies, February 11, 2017, accessible at:
http://cis.org/vaughan/study-reveals-72-terrorists-came-countries-covered-trump-vetting-order
3

Second, the claim is false:
Since 9/11, 72 individuals from the seven mostly Muslim countries
covered by President Trump's "extreme vetting" executive order
have been convicted of terrorism, bolstering the administration's
immigration ban. According to a report out Saturday, at least 17
claimed to be refugees from those nations, three came in as
"students," and 25 eventually became U.S. citizens.5
Thus, the balance of the equities and harms cannot sustain a TRO.
Moreover, the Ninth Circuit en banc should dismiss the case by the
Appellees as a non-justiciable "political question." Under that doctrine, the
District Court lacks Article III jurisdiction, and dismissal is mandatory. The
question is textually committed under our nation's Constitution to the President and
the Congress, and there are no legally-cognizable standards available for a court to
apply in substituting a court's judgment on national security threats in place of the
Commander-in-Chief's judgment.
Moreover, neither the Appellees-Plaintiffs nor the foreign college students
they complain for will suffer irreparable harm. Financial loss is, by definition,
recoverable. However, loss of life from a terrorist attack is the very essence of
irreparable harm. The Panel ignored the irreparable harm from terrorist attacks and
erroneously found irreparable harm that is compensable by money damages.

Paul Bedard, "Report: 72 convicted of terrorism from 'Trump 7' mostly Muslim
countries," The Washington Examiner, February 11, 2017, accessible at:
http://www.washingtonexaminer.com/report-72-terrorists-came-from-7-muslim-countries-trumptargeted/article/2614582
5

4

As the Panel admits on Page 10 of the Per Curiam Order: "The University
of Washington has already incurred the costs of visa applications for those interns
and will lose its investment if they are not admitted." The loss of an "investment"
or "costs" are not irreparable harm. Therefore, the TRO must fail.
II.!

ARGUMENT

A.!APPELLEE STATES WILL NOT PREVAIL ON THE MERITS
Here, of course, the Appellants-Defendants seek a stay of a stay (TRO).6
Appellants' request for a stay of the TRO must meet the well-known requirements
for an injunction, stay, or TRO. Thus the Appellants must show that they have a
substantial likelihood of success in vacating the TRO.
But where the February 3, 2017, TRO is fatally flawed, which it is, the
Appellants are likely to prevail in vacating it, because of its flaws. Flaws in the
TRO establish that the Appellants are entitled to a stay of the deficient TRO.
The TRO is fatally flawed because it does not even attempt to show that the
Plaintiff State have any chance of succeeding in their lawsuit in the end. This is a
central requirement. To obtain a temporary restraining order, the Appellees must
have established (1) a likelihood of success on the merits; (2) that irreparable harm
is likely in the absence of preliminary relief; (3) that the balance of equities tips in
the movant's favor; and 4) that an injunction is in the public interest. Winter v. Nat.

6

The TRO should be vacated instead.
5

Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S. Ct. 365, 172 L. Ed. 2d 249 (2008);
Fed. R. Civ. P. 65(b)(1); Stuhlbarg Int’l Sales Co. v. John D. Brush & Co., 240
F.3d 832, 839 n. 7 (9th Cir. 2001).
A preliminary injunction is an extraordinary remedy never awarded as
of right. Munaf, 553 U.S., at 689-690, 128 S.Ct., at 2218–2219. In
each case, courts “must balance the competing claims of injury and
must consider the effect on each party of the granting or withholding
of the requested relief.” Amoco Production Co., 480 U.S., at 542, 107
S.Ct. 1396. “In exercising their sound discretion, courts of equity
should pay particular regard for the public consequences in employing
the extraordinary remedy of injunction.” Romero–Barcelo, 456 U.S.,
at 312, 102 S.Ct. 1798; see also Railroad Comm'n of Tex. v. Pullman
Co., 312 U.S. 496, 500, 61 S.Ct. 643, 85 L.Ed. 971 (1941).
Winter v. Natural Res. Def. Council, Inc., 555 U.S. at 24.
B.!STANDING
As the Panel stated in its Per Curiam Order page 8:
We have an independent obligation to ascertain our jurisdiction,
Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006), and we consider
the Government’s argument de novo, see, e.g., Hajro v. U.S.
Citizenship & Immigration Servs., 811 F.3d 1086, 1098 (9th Cir.
2016). We conclude that the States have made a sufficient showing to
support standing, at least at this preliminary stage of the proceedings.
First, even though the Appellees argue that public universities are agencies
of the Plaintiff States, nevertheless they are still claiming the interests of others
inconvenienced in traveling to the universities.
In Massachusetts v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed.
1078, the Court held a State lacked standing to challenge, as parens
patriae, a federal grant-in-aid program under which the Federal
Government was allegedly usurping powers reserved to the States. It
6

was said in Mellon:
'[T]he citizens of Massachusetts are also citizens of the United
States. It cannot be conceded that a State, as parens patriae, may
institute judicial proceedings to protect citizens of the United States
from the operation of the statutes thereof. While the State, under some
circumstances, may sue in that capacity for the protection of its
citizens (Missouri v. Illinois, 180 U.S. 208, 241, 21 S.Ct. 331, 45
L.Ed. 497), it is no part of its duty or power to enforce their rights in
respect of their relations with the Federal Government.
Commonwealth of Massachusetts v. Laird, 400 U.S. 886, 887, 91 S.Ct. 128, 27
L.Ed.2d 140 (1970) (dissenting opinion).
A “State does not have standing as parens patriae to bring an action against
the Federal Government” on behalf of its citizens. Alfred L. Snapp & Son v. Puerto
Rico ex rel. Barez, 458 U.S. 592, 610 n.16 (1982); Massachusetts v. Mellon, 262
U.S. 447, 485-86 (1923). Nor does Massachusetts v. EPA, 549 U.S. 497 (2007),
independently authorize the States to litigate on behalf of their citizens.
Massachusetts involved an allegation that Massachusetts was losing land along its
coastline to rising oceans, 549 U.S. at 522, and the Court further deemed it “of
critical importance” that Congress had authorized the exact type of challenge the
State brought, id. at 516. Indeed, 8 U.S.C. 1252(g) expressly forecloses suits by
aliens themselves for denial of a visa. Reno v. Am.-Arab Anti-Discrimination
Comm. (“AAADC”), 525 U.S. 471, 483-85 (1999).
Those affected are the United States' citizens as well as the States'. Even a
noted case on amnesty for illegal aliens, Texas v. United States, agrees:
7

The court also considered but ultimately did not accept the
notions that Texas could sue as parens patriae on behalf of
citizens facing economic competition from DAPA
beneficiaries and that the state had standing based on the
losses it suffers generally from illegal immigration.
Texas v. United States of America, 809 F.3d 134 (5th Cir. November 9, 2015)
(Appeal No. 15-40238).
Second, aliens cannot have standing in U.S. courts for the denial of rights
they do not have. Since no one has a right to enter the United States who is not a
U.S. citizen, Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 73 S.Ct.
625, 97 L.Ed. 956 (1953); Zadvydas v. Davis Et Al., 533 U.S. 678 (2001), even
those aliens kept out have no standing because they have no right of entry. Foreign
university teachers and students had no legal right or expectancy to displace U.S.
teachers and students with foreigners.
Third, any alien who is not a terrorist threat is eligible for a waiver. As the
Per Curiam Order admits on page 4:
Sections 3(g) and 5(e) of the Executive Order allow the Secretaries of
State and Homeland Security to make case-by-case exceptions to
these provisions “when in the national interest.” 82 Fed. Reg. 8,97880. Section 5(e) states that situations that would be in the national
interest include “when the person is a religious minority in his country
of nationality facing religious persecution.” 82 Fed. Reg. 8,979. The
Executive Order requires the Secretaries of State and Homeland
Security and the Director of National Intelligence to evaluate the
United States’ visa, admission, and refugee programs during the
periods in which entry is suspended. 82 Fed. Reg. 8,977-80.
Therefore, anyone who is not found to be a terrorist threat is not harmed
8

because they can receive a waiver.
C.!THE 1952 STATUTE IGNORED. PRESIDENT'S POWER TO
REGULATE ENTRY INTO THE UNITED STATES IS CLEAR
AND ALMOST UNLIMITED
As is now well-known by almost every U.S. citizen who consumes news, we
start with the congressional legislation that confirms the President’s authority in 8
U.S. Code § 1182(f), Section 212(f) of the Immigration and Naturalization Act:
(f) 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.
And, of course, even without the benefit of legislation, the President has
inherent constitutional authority over foreign policy. See, e.g., Zivotofsky v. Kerry,
576 U.S. ___, 135 S. Ct. 2076, 2083-84 (2015). Of course that power is at its
zenith when Congress by statute has agreed by legislation, as is true here.
Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579 (1952). see also, e.g.,
Harisiades v. Shaughnessy, 342 U.S. 580, 588 (1952) (recognizing that control
over immigration is an integral part of Article II authorities “in regard to the
conduct of foreign relations [and] the war power”).
Yet the Panel completely ignored the statute that gives the President the
clear and unfettered authority to issue the Executive Order under 8 U.S.C. §
9

1182(f). In fact, the President's role in proclaiming a suspension under 8 U.S.C. §
1182(f) is a statutory role (as well as constitutional authority). Therefore, the Panel
was effectively trying to enjoin the statute, not the Executive Order.
D.!STRAW-MAN ARGUMENT OF RELIGIOUS DISCRIMINATION
The Muslim nation of Kuwait has also banned entry into Kuwait from five
(5) of the same seven (7) countries.7 The issue is the risk of terrorism, not religion.
Most Muslim-majority countries in the Middle East have accepted zero -none -- of these affected refugees.8 Even fabulously-wealthy Muslim-majority
nations like Saudi Arabia and the United Arab Emirates refuse to trust these
Muslim refugees into their own countries,9 where they share common languages,
cultures, social structures, familiar social support institutions, food, methods, and
religions, because of the risk of letting terrorists into their countries.
As now-President Trump stated on the campaign trail, as reported by CNN:
"I LOVE THE MUSLIMS. I THINK THEY'RE GREAT PEOPLE," 10
"After Trump, Now Kuwait Bans 5 Muslim-Majority Countries, Including Pakistan,"
NDTV, February 2, 2017, accessible at: http://www.ndtv.com/world-news/kuwait-bans-5muslim-majority-countries-including-pakistan-1655311
8
Richard Pollock, "Persian Gulf Muslim States Have Accepted No Syrian Refugees,"
Daily Caller, November 24, 2015, accessible at: http://dailycaller.com/2015/11/24/persian-gulfmuslim-states-have-accepted-no-syrian-refugees/
9
Ishaan Tharoor, "The Arab World’s Wealthiest Nations Are Doing Next to Nothing for
Syria’s Refugees," The Washington Post, September 4, 2015, accessible at:
https://www.washingtonpost.com/news/worldviews/wp/2015/09/04/the-arab-worlds-wealthiestnations-are-doing-next-to-nothing-for-syrias-refugees/?utm_term=.b13685bd30b6
10
MJ Lee and Noah Gray, "Trump to CNN: 'I love the Muslims,'" CNN, September 20,
2015, accessible at: http://www.cnn.com/2015/09/19/politics/donald-trump-muslimscontroversy/index.html

7

10

proclaimed candidate Donald Trump. Further: "They [townhall attendees] asked
whether the billionaire businessman would consider putting a Muslim in his
Cabinet or on his ticket. 'Oh, absolutely, no problem with that.' Trump
responded. 'Would I consider putting a Muslim-American in my Cabinet?
Absolutely no problem with that.'"11 Thus, Appellees ripped Trump's campaign
statements out of context. Clearly, Trump was referring, if very imprecisely, to
Syrian refugees who where the topic under which Trump made his comments.
Appellees would have us believe that the Trump Administration seeks to
discriminate against Muslims -- but only for 90 days -- and then only from the
world's seven most dangerous countries in terms of terrorism. Of the world's 49 12
Muslim-majority countries,13 the Executive Order leaves 42 unaffected. The fiction
that the Executive Order targets religion is untenable and absurd. Nowhere does it
mention Muslims or Islam, Christians, Jews nor mention religion at all.
E.!COURT USURPING PRESIDENTIAL ROLE: EXECUTIVE
ORDER TARGETS "FAILED STATES" PLUS TERRORIST
SPONSOR, HOSTILE IRAN, NOT ISLAM
The Executive Order suspended entry into the country of aliens from Iran,
Libya, Somalia, Sudan, Yemen, Iraq, and Syria. Of course, terrorist ISIS stands
11

Id.

Counts vary from 49 to 51 or 52 Muslim-majority nations by various reports.
"Muslim-Majority Countries Comprising the Islamic World," Center for the Education of
Women, University of Michigan, accessible at: http://www.cew.umich.edu/muslim_majority ;
The Pew Research Center identifies 49 countries: "The Future of the Global Muslim Population:
Muslim-Majority Countries," Pew Research Center, January 27, 2011, accessible at:
http://www.pewforum.org/2011/01/27/future-of-the-global-muslim-population-muslim-majority/
12
13

11

for "the Islamic State of Iraq and Syria." Thus, 2 of the 7 are nations in which the
United States is actively in a hot war with ISIS right now. As the Panel admits at
pages 3-4 of its Per Curiam Order:
It asserts, “Deteriorating conditions in certain countries due to war,
strife, disaster, and civil unrest increase the likelihood that terrorists
will use any means possible to enter the United States. The United
States must be vigilant during the visa-issuance process to ensure that
those approved for admission do not intend to harm Americans and
that they have no ties to terrorism.” Id.
The Executive Order covers only those countries identified, during the
Obama Administration, pursuant to 8 U.S.C. § 1187(a)(12). Trump ordered
(emphasis added):
I hereby proclaim that the immigrant and nonimmigrant
entry into the United States of aliens from countries
referred to in section 217(a)(12) of the INA, 8 U.S.C.
1187(a)(12), would be detrimental to the interests of the
United States, and I hereby suspend entry into the United
States, as immigrants and nonimmigrants, of such persons
for 90 days from the date of this order (excluding those
foreign nationals traveling on diplomatic visas, North
Atlantic Treaty Organization visas, C-2 visas for travel to
the United Nations, and G-1, G-2, G-3, and G-4 visas).
The Appellees misrepresent this case as being about religion, and even if it
were this is irrelevant, as there is not right for foreign aliens of any race, religion,
ethnicity, national origin or sexual preference to enter the United States, if he or
she is not a citizen or permanent resident. And, that bogus argument cannot
survive the clear text of the Executive Order.
12

The seven countries are selected not because they are Muslim, but because
those "failed states" are in chaos (and Iran is implacably hostile and a state sponsor
of terrorism), such that documents and records related to a person seeking entry
into the United States cannot be trusted. Records about potential entrants
necessary to investigate and screen entrants for national security purposes are
either non-existent or incomplete or worse commonly forged or falsified due to
rampant corruption of officials, poverty-stricken bureaucrats, threats of violence or
intimidation against bureaucrats, or terrorist infiltration of governments. 14
Governmental records, police reports, identity papers, etc., from the seven
nations are easily forged or official governmental records falsified.15

Even the

starting point of a refugee's actual identity is unreliable. A terrorist could present

Testimony of Secretary of Homeland Security John Kelly, Homeland Security
Committee, U.S. House of Representatives, April 7, 2017, accessible on C-SPAN at:
https://www.c-span.org/video/?423321-1/homeland-security-secretary-john-kelly-testifies-usborder-security&live
15
Chuck Ross, " FBI Director Admits US Can’t Vet All Syrian Refugees For Terror Ties
[VIDEO]," The Daily Caller, accessible at: http://dailycaller.com/2015/10/21/fbi-directoradmits-us-cant-vet-all-syrian-refugees-for-terror-ties-video/; Jerry Markon, "Senior Obama
officials have warned of challenges in screening refugees from Syria," The Washington Post,
November 17, 2015, accessible at: https://www.washingtonpost.com/news/federaleye/wp/2015/11/17/senior-obama-officials-have-warned-of-challenges-in-screening-refugeesfrom-syria/?utm_term=.bc0746040762
14

13

himself under a false name as a refugee, with no record on the false name. 16
F.! NONJUSTICIABLE POLITICAL QUESTION
Several ingredients necessary to the TRO analysis are political questions
which are non-justiciable: Whether there is irreparable harm, the balance of
equities (harm), the supposed motivation for issuing the Executive Order, whether
the threats of terrorism justify the temporary inconvenience to aliens and other
discrete components of the analysis depend upon whether the courts should usurp
the authority of the President and the Congress over international relations, foreign
policy, national security, and the President's role as Commander-in-Chief.
It is well established that the federal courts will not adjudicate
political questions. See, e.g., Coleman v. Miller, 307 U.S. 433, 59
S.Ct. 972, 83 L.Ed. 1385 (1939); Oetjen v. Central Leather Co., 246
U.S. 297, 38 S.Ct. 309, 62 L.Ed. 726 (1918). In Baker v. Carr, supra,
we noted that political questions are not justiciable primarily because
of the separation of powers within the Federal Government. After
reviewing our decisions in this area, we concluded that on the surface
of any case held to involve a political question was at least one of the
following formulations:
'a textually demonstrable constitutional
commitment of the issue to a co-ordinate political
16

!!

Id.; Director of the Federal Bureau of Investigation James Comey stated: “We can query
our databases until the cows come home, but nothing will show up because we have no record of
that person…You can only query what you have collected.” And: FBI Assistant Director
Michael Steinbach said that “the concern in Syria is that we don’t have the systems in places on
the ground to collect the information… All of the data sets, the police, the intel services that
normally you would go and seek that information [from], don’t exist.” Kelly Riddell, "FBI
director warns of coming “terrorist diaspora,” as Democrats push for more Syrian refugees," The
Washington Times, September 28, 2016, accessible at:
http://www.washingtontimes.com/news/2016/sep/28/james-comey-warns-coming-terroristdiaspora-democr/
14

department; or a lack of judicially discoverable and
manageable standards for resolving it; or the
impossibility of deciding without an initial policy
determination of a kind clearly for nonjudicial discretion;
or the impossibility of a court's undertaking independent
resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for
unquestioning adherence to a political decision already
made; or the potentiality of embarrassment from
multifarious pronouncements by various departments on
one question.' 369 U.S., at 217, 82 S.Ct., at 710.
Powell v. Cormack, 395 U.S. 486, 518-519, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969)
Under the political question doctrine, the District Court lacks Article III
jurisdiction, and dismissal is mandatory. The question is textually committed under
our nation's Constitution to the President and the Congress, and there are no
legally-cognizable standards available for a court to apply in substituting a court's
judgment on national security threats in place of the Commander-in-Chief's
judgment. The courts are not a forum in which competing litigants can present
their preferred excerpts from classified intelligence briefings and the court can
render a decision on whether a threat of terrorism does or does not rise to the level
of constituting irreparable harm by entrants from this or that country.
Beyond all question, the Panel's decision is "expressing lack of the respect
due co-ordinate branches of government", id., and "embarrassment from
multifarious pronouncements by various departments on one question," id. The
TRO directly cripples the President's core constitutional roles as Commander-in-

15

Chief, head of the nation's international relations and foreign policy, national
security, national defense, and defense of the nation's borders in areas and in ways
that courts are not qualified to second guess by debates over classified intelligence.
G.!SEVERABILITY OF THE EXECUTIVE ORDER
The Panel was concerned about the role of the Judiciary in rewriting
the Executive Order. However, the concern is misplaced here.
Arguably, as the Appellants contend, the Executive Order does not
apply on its terms to so-called green card owners or lawful permanent
residents. Therefore, the Ninth Circuit can rule that the Executive Order
either does not or should not restrict green card holders. Since it is doubtful
that the Executive Order was ever intended to apply to those persons at all, it
is possible to sever consideration of those persons from the rest of the
Executive Order. The remainder can function as intended for other persons.
Similarly, can application to holders of existing visas be severed from
the remainder? By way of analogy to statutes, where there are few precedents
in this area, the Executive Order is severable because:
"[A] court should refrain from invalidating more of the statute than
is necessary. . . . '[W]henever an act of Congress contains
unobjectionable provisions separable from those found to be
unconstitutional, it is the duty of this court to so declare, and to
maintain the act in so far as it is valid.' " Regan v. Time, Inc., 468 U.S.
641, 652, 104 S.Ct. 3262 3268, 82 L.Ed.2d 487 (1984) (plurality
opinion), quoting El Paso & Northeastern R. Co. v. Gutierrez, 215
U.S. 87, 96, 30 S.Ct. 21, 24, 54 L.Ed. 106 (1909). The standard for
16

determining the severability of an unconstitutional provision is well
established: " 'Unless it is evident that the Legislature would not have
enacted those provisions which are within its power, independently of
that which is not, the invalid part may be dropped if what is left is
fully operative as a law.' " Buckley v. Valeo, 424 U.S. 1, 108, 96 S.Ct.
612, 677, 46 L.Ed.2d 659 (1976) (per curiam ), quoting Champlin
Refining Co. v. Corporation Comm'n of Oklahoma, 286 U.S. 210,
234, 52 S.Ct. 559, 564, 76 L.Ed. 1062 (1932). Accord: Regan v. Time,
Inc., 468 U.S., at 653, 104 S.Ct., at 3269; INS v. Chadha, 462 U.S., at
931-932, 103 S.Ct., at 2773-2774; United States v. Jackson, 390 U.S.
570, 585, 88 S.Ct. 1209 1218, 20 L.Ed.2d 138 (1968).
Congress could not have intended a constitutionally flawed
provision to be severed from the remainder of the statute if the
balance of the legislation is incapable of functioning independently.
See, e.g., Hill v. Wallace, 259 U.S. 44, 70-72, 42 S.Ct. 453, 458-459,
66 L.Ed. 822 (1922) ....
The more relevant inquiry in evaluating severability is whether
the statute will function in a manner consistent with the intent of
Congress.
Alaska Airlines, Inc v. Brock, 480 U.S. 678, 684-685, 107 S.Ct. 1476, 94 L.Ed.2d
661 (1987).
The Panel admits that it was reviewing only isolated sections of the
Executive Order:
Three days later, on January 30, 2017, the State of Washington filed
suit in the United States District Court for the Western District of
Washington, challenging sections 3(c), 5(a)-(c), and 5(e) of the
Executive Order, naming as defendants the President, the Secretary of
the Department of Homeland Security, the Secretary of State, and the
United States (collectively, “the Government”).
Per Curiam Order, page 5.

17

H.!8 U.S.C. § 1152(a)(1)(A) DID NOT REPEAL 8 U.S.C. § 1182(f)
The Appellees-Plaintiffs hang their case on seeking to undercut 8 U.S.C. §

1182(f) by setting up a conflict with 8 U.S.C. § 1152(a)(1)(A), as tying the
President's hands.17 Whereas 8 U.S.C. § 1182(f) explicitly names the President

as having authority, 8 U.S.C. § 1152(a)(1)(A) does not address the President's
authority. However, a repeal or partial repeal should not be lightly assumed.
It is well settled, however, that repeals by implication are
not favored, see, e.g., TVA v. Hill, 437 U.S. 153, 189, 98
S.Ct. 2279 2299, 57 L.Ed.2d 117 (1978), and will not be
found unless an intent to repeal is " 'clear and manifest.' "
United States v. Borden Co., 308 U.S. 188, 198, 60 S.Ct.
182, 188, 84 L.Ed. 181 (1939) (quoting Red Rock v. Henry,
106 U.S. 596, 602, 1 S.Ct. 434, 439, 27 L.Ed. 251 (1883)).
Nothing in the language of these two provisions suggests
the existence of the " ' "irreconcilable conflict," ' " Kremer
v. Chemical Construction Corp., 456 U.S. 461, 468, 102
S.Ct. 1883 1890, 72 L.Ed.2d 262 (1982) (citations omitted),
from which an intent to repeal may be inferred.
Rodriguez v. United States, 480 U.S. 522, 107 S.Ct. 1391, 94 L.Ed.2d 533 (1987)
Moreover, the federal courts recognize well-established rules harmonizing
interpretation of amendments or subsequent enactments.
[W]e presume that Congress is aware of the legal context in which
it is legislating. See Cannon v. Univ. of Chicago., 441 U.S. 677,
696-97, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979) ("It is always
appropriate to assume that our elected representatives, like other
citizens, know the law. . . ."); United States v. LeCoe, 936 F.2d
398, 403 (9th Cir.1991) ("Congress is, of course, presumed to
Amicus Curiae has not found appellate precedents interpreting 18 U.S.C. § 1182(f) -only unrelated cases involving § 1182(a).
17

18

know existing law pertinent to any new legislation it enacts.").
Abrego Abrego v. The Dow Chemical Co., 443 F.3d 676, 687-686 (9th Cir., 2006)
"We also 'presume that when Congress amends a statute, it is
knowledgeable about judicial decisions interpreting the prior
legislation,' Porter v. Bd. of Trs. of Manhattan Beach Unified
Sch. Dist., 307 F.3d 1064, 1072 (9th Cir. 2002) ....
U.S. v. Alvarez-Hernandez, 478 F.3d 1060, 1065-1066 (9th Cir. 2007).
Therefore, we must interpret the later-enacted 8 U.S.C. § 1152(a)(1)(A) as

consistent with the President's authority under 8 U.S. Code § 1182(f). Congress
did not intend to retract any authority from the President to conduct foreign policy.
At least we must presume so under rules of statutory construction.
I.! APPELLEES' RELIANCE ON 8 U.S.C. § 1152(a)(1)(A) MISPLACED

Or perhaps, as was the case in Clinton v. City of New York,
524 U.S. 417, 429, 118 S.Ct. 2091, 141 L.Ed.2d 393 (1998),
the statutory context makes that intention clear, because any
other reading of “individual” would lead to an “ ‘absurd’ ”
result Congress could not plausibly have intended.
Mohamad v. Palestinian Auth., 132 S. Ct. 1702, 182 L.Ed.2d 720 (2012)
8 U.S.C. § 1152(a)(1)(A) places both national origin and religion on the
same footing. It would lead to an absurd result -- which must be avoided -- to
interpret 8 U.S.C. § 1152(a)(1)(A) as prohibiting the President from basing his
actions under 8 U.S.C. § 1182(f) on national origin (like religion). So, it would
produce an "absurd result" to interpret 8 U.S.C. § 1152(a)(1)(A) as limiting the

19

President's 8 U.S.C. § 1182(f) authority.
Moreover, subparagraph § 1152(a)(1)(A) concerns the allocation of
immigration among various countries, not the power of the President in
protecting the country against national security threats.
J.! IRREPARABLE HARM SUPPORTS THE EXECUTIVE
ORDER, NOT THE APPELLEES
The Appellees cannot show irreparable harm or even any legally-cognizable
harm, including because the Executive Order and surrounding law allows each
potential visitor, entrant, or immigrant to obtain an individual, case-by-case
waiver, as the Per Curiam Order admits on page 4 (quoted in Section B, supra).
Apparently 100% of all affected travelers have in fact received waivers allowing
them to enter notwithstanding the Executive Order.18
The definition of irreparable harm is that there is no adequate remedy at law.
See, generally, Black's Law Dictionary Free Online Legal Dictionary 2nd Ed
("Irreparable Damage"); Alexander v. Americans United Inc., 416 U.S. 752, 761762, 94 S.Ct. 2053, 40 L.Ed.2d 518 (1974); Beacon Theaters, Inc v. Westover, 359
U.S. 500, 507, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959); Pulliam v. Allen, 466 U.S. 522,
537, 104 S.Ct. 1970, 80 L.Ed.2d 565 (1984) (rendered obsolete on a different issue

"Travelers Detained Due To Trump Travel Ban Released, Attorneys Say," January 28,
2017, CBS News Chicago Channel 2, accessible at:
http://chicago.cbslocal.com/2017/01/28/travelers-detained-due-to-trump-travel-ban-releasedattorneys-say/
18

20

not relevant here). That is, even though courts assign monetary damages to
intangible losses routinely, irreparable harm must be an injury that cannot be
compensated by money damages. Appellees have shown no irreparable harm.
On the other side of the balance of harm, there is irreparable harm to the
national security of the United States. Appellees contend that the recent status quo
cannot constitute irreparable harm. Yet the Presidential Finding in the Executive
Order is that the recent status quo of lax foreign policy, lax enforcement and a
careless lack of concern for the safety of the American people has increasingly
spawned death, violence, and destruction on U.S. soil in recent years. Actual
recent terrorist attacks in San Bernadino, California,19 Boston, Massachusetts,20
Orlando, Florida, and Garland, Texas, 21 and Ft. Lauderdale International Airport22
in addition to earlier incidents such as the first and second terrorist attacks at the
World Trade Center on February 26, 1993 and September, 11, 2001.

Michael S. Schmidt and Richard Perez-Pena, "F.B.I. Treating San Bernardino Attack as
Terrorism Case," New York Times, December 4, 2015, accessible at:
https://www.nytimes.com/2015/12/05/us/tashfeen-malik-islamic-state.html
20
!! "Russia warned U.S. about Boston Marathon bomb suspect Tsarnaev: report," Reuters,
March 25, 2014, accessible at: http://www.reuters.com/article/us-usa-explosions-bostoncongress-idUSBREA2P02Q20140326!
21
Jim Sciutto, Pamela Brown, Paul Cruic, "ISIS claims responsibility for Texas shooting
but offers no proof," CNN, May 5, 2015, accessible at:
http://www.cnn.com/2015/05/05/us/garland-texas-prophet-mohammed-contest-shooting/; Jim
Sciutto, Pamela Brown, Paul Cruic, CNN, May 5, 2015, accessible at:
http://www.cnn.com/2015/05/05/politics/texas-attack-terror-tweets/index.html
22
Greg Pallone, "FBI: Airport gunman traveled to Florida for massacre,"
Fox News Channel 13 of Orlando, Florida, January 7, 2017, accessible at:

19

http://www.mynews13.com/content/news/cfnews13/news/article.html/content/news/articles/cfn/2017/1/7/fort_lauder
dale_airp.html
21

Thus, the danger to the national security clearly outweighs temporary delays
in travel by persons from the world's seven most dangerous countries in terms of
terrorist activity directed against the United States. The risk of terrorism against
U.S. cities and citizens outweighs travelers' inconvenience.
K.!COURT SHOULD CONSOLIDATE MULTI-DISTRICT LITIGATION:
FORUM NON CONVENIENS AND JUDGE SHOPPING
According to news reports, lawsuits have been filed on this exact same topic
in many federal circuits.23 Under the doctrine of forum non conveniens and venue
rules governed by 28 U.S. Code § 1391, the Appellees-Defendants' case should be
dismissed and the case transferred to the District of Columbia. Piper Aircraft Co.
v. Reyno, 454 U.S. 235 (1981). The Appellees engaged in forum-shopping. The
Defendants, Appellants here, are all in the District of Columbia. All of the
evidence and witnesses are in the District of Columbia or overseas, including the
visa processing of potential entrants by the U.S. Department of State. All of the
events at issue occurred or are occurring in the District of Columbia.
Moreover, all cases should be consolidated as multi-district litigation for
pre-trial proceedings under 28 U.S. Code § 1407 on this Court's initiative.

Matt Pearce, "Trump has been sued more than 60 times since becoming president: A
partial survey," The New York Times, February 11, 2017, accessible at:
http://www.latimes.com/nation/la-na-trump-lawsuits-20170210-story.html
23

22

III.! CONCLUSION
The Appellees, Plaintiff States, have set up a constitutional crisis, crippling
the President of the United States as Commander in Chief and head of international
relations, from carrying out his Constitutional duties under Article II. The U.S.
Constitution was developed and ratified largely due to our Founders' realization
that in international relations and national defense a single national leader must be
free to act for the nation. This is obviously true for the presidency.
Emergency treatment and prompt action on these matters is appropriate.
Increasingly-frequent terrorist attacks have been occurring on U.S. soil in response
to the spread of radical Islamic terrorism and the rise of the Islamic State of Iraq
and Syria (ISIS) styling itself as the re-establishment of an Islamic Caliphate
dedicated, in the minds of ISIS, to conquer the entire Earth without exception.
The people who live and work in this circuit, no less than any other large
U.S. city as an inviting "soft target," primarily Jews and Christians, are in
imminent danger of sworn enemies of the United States of America, enemies who
believe in their own minds -- however much we might view things differently
ourselves -- that their eternal destiny is contingent upon their murder of Americans
to further their “religious beliefs.” In the case of Islam, this, according to the
Quran, is the elimination of “infidels” in the name of Allah. The U.S.
23

Government, of course, cares not why people want to kill us, only that they do.
The question is not religion but threats to the nation.
Even if the government focused on areas of high-risk concentrated in Islamic
affiliation based upon actual facts on the ground, this would obviously be
constitutional and legal. Some decades ago, Catholic versus Protestant violence
and actual terrorism in Northern Ireland presented a genuine danger.24 Many
would rightly say that the violence and terrorism did not represent either Catholic
or Protestant religious traditions, yet the violence was real all the same.
Now, wishing away the actual, fact-based high concentration of violence and
terrorism directed against the United States, Christians, and Jews does not
transform defending our families and our country against attacks into religious
discrimination. Discriminating between visitors who represent threats of violence
from those who are benign is one of the core duties of the President and the entire
U.S. Government. Terrorists attacking Americans keep insisting that they are
doing so in the name of Islam, and our hapless officials keep pretending otherwise.
Addressing threats where they are actually found is not religious discrimination.
Terrorist supporters and agents from the seven dangerous countries may not
be the gunmen or bombers who end up in the news. They may also be the ones
who train, assist, equip, and finance others. Discussion of home-grown terrorists is
Bryan Coll, "Terror Returns to Northern Ireland," TIME Magazine, March 8, 2009,
accessible at: http://content.time.com/time/world/article/0,8599,1883723,00.html?iid=sr-link1
24

24

used to argue for open borders. But the agent provocateurs who radicalize the
home-grown terrorists are flooding into our country by the hundreds of thousands.
Thus, all need to be thoroughly vetted before they are permitted to gain entry into
the United States. The President’s Executive Order merely places a temporary 90
day moratorium on immigration as the new administration develops a truly
functional means of this required vetting, in the interests of national security.
Dated: February 14, 2017

Respectfully submitted,
/s/ Larry Klayman, Esq.
Larry Klayman, Esq.
FREEDOM WATCH, INC.
2020 Pennsylvania Avenue N.W.,
Suite 345
Washington, D.C. 20006
Telephone: [phone]
[e-mail]

CERTIFICATE OF SERVICE
I hereby certify that service of the foregoing motion and proposed brief will
be delivered electronically on February 14, 2017, to counsel for Plaintiffs and
Defendants through the District’s Electronic Case Filing system.
/s/ Larry Klayman, Esq.
Larry Klayman, Esq.
FREEDOM WATCH, INC.
CERTIFICATE OF COMPLIANCE
I hereby certify that this brief is in Times New Roman in 14 point font size,
and totals 6,637 words, including the Statement of Interest of Amicus Curiae, in
keeping with FRAP 29 and Circuit Rules.
Pursuant to the Court's Supplemental Briefing Order of February 10, 2017,
25

the briefing on en banc review was set at 14,000 words, higher than the normal
4,200 words permitted by the rules typically. Following the rules direction that an
Amicus Curiae brief be one-half of the number of words of a principal brief, the
Amicus Curiae understands that 7,000 words are available for its brief.
/s/ Larry Klayman, Esq.
Larry Klayman, Esq.
FREEDOM WATCH, INC.
CERTIFICATE OF FILING BY CONSENT
I hereby certify that counsel for the Appellees and Appellants have given
their consent in writing (by email) to the filing of this Amicus Curiae brief.
/s/ Larry Klayman, Esq.
Larry Klayman, Esq.
FREEDOM WATCH, INC.

26

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