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

Filing 62

Submitted (ECF) Amicus brief for review and filed Motion to become amicus curiae. Submitted by American Center for Law and Justice. Date of service: 02/06/2017. [10303974] [17-35105]--[COURT UPDATE: Updated docket text to reflect content of filing. 02/06/2017 by LA]--[COURT UPDATE: Attached corrected motion. 02/07/2017 by SLM] (Zimmerman, Erik) [Entered: 02/06/2017 02:13 PM]

No. 17-35105
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STATE OF WASHINGTON, et al.,
Plaintiffs-Appellees,
v.
DONALD J. TRUMP, President of the United States, et al.,
Defendants-Appellants.
On Motion for a Stay Pending Appeal of a Temporary
Restraining Order Issued by the United States District Court
for the Western District of Washington,
Case No. 2:17-cv-00141, Hon. James L. Robart
BRIEF OF AMICUS CURIAE THE AMERICAN CENTER FOR LAW AND JUSTICE
IN SUPPORT OF DEFENDANTS-APPELLANTS’ MOTION FOR A STAY
ERIK ZIMMERMAN
AMERICAN CENTER FOR LAW
AND JUSTICE
3001 Plymouth Road, Suite 203
Ann Arbor, Michigan 48105
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Counsel for Amicus Curiae

JAY ALAN SEKULOW
Counsel of Record
AMERICAN CENTER FOR LAW
AND JUSTICE
201 Maryland Avenue, NE
Washington, D.C. 20002
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Counsel for Amicus Curiae

TABLE OF CONTENTS
TABLE OF AUTHORITIES .................................................................................... ii
CORPORATE DISCLOSURE STATEMENT PURSUANT TO
FEDERAL RULE OF APPELLATE PROCEDURE 29(A)(4)(A) ........................... 1

CERTIFICATION PURSUANT TO FEDERAL RULE OF
APPELLATE PROCEDURE 29(A)(4)(E) ................................................................ 1

STATEMENT OF INTEREST OF AMICUS CURIAE............................................. 1
BACKGROUND ....................................................................................................... 2
I. The District Court Failed to Support its Extraordinary Remedy With
Meaningful Legal or Factual Analysis.. ............................................................... 3
II. The District Court’s Temporary Restraining Order Affronts the Constitution
and Congress.. ....................................................................................................... 5
CONCLUSION .......................................................................................................... 8

i

TABLE OF AUTHORITIES
CASES
Cardenas v. United States, 826 F.3d 1164 (9th Cir. 2016) ...................................... 5
Fiallo v. Bell, 430 U.S. 787 (1977) ........................................................................... 5
Harisiades v. Shaughnessy, 342 U.S. 580 (1952)...................................................... 5
Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963) ............................................... 7
Landon v. Plasencia, 459 U.S. 21 (1982) .................................................................. 6
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ................................................ 3
Stormans, Inc. v. Selecky,
586 F.3d 1109 (9th Cir. 2009) .............................................................................. 4
United States ex rel. Knauff v. Shaughnessy,
338 U.S. 537 (1950) .............................................................................................. 6
University of Texas v. Camenisch,
451 U.S. 390, 395 (1981) .......................................................................................... 4
Winter v. Nat. Res. Def. Council, Inc.,
555 U.S. 7 (2008) ............................................................................................. 3-4
Youngstown Sheet & Tube Co. v. Sawyer,
343 U.S. 579 (1952) .............................................................................................. 6
Zivotofsky ex rel. Zivotofsky v. Kerry,
135 S. Ct. 2076 (2015) .......................................................................................... 6
STATUTES
8 U.S.C.S. § 1101(a)(42)(A) ...................................................................................... 6
8 U.S.C. § 1182(f) ..................................................................................................... 5

ii

8 U.S.C. 1187(a)(12) .................................................................................................. 7
OTHER AUTHORITY
U.S. Const. Article II ................................................................................................. 6
Executive Order: Protecting the Nation from Foreign Terrorist Entry into the
United States (Jan. 27, 2017) ....................................................................... 1, 6-7

Federal Rule of Appellate Procedure 29(a)(4)(A) ..................................................... 1
Federal Rule of Appellate Procedure 29(a)(4)(E)...................................................... 1

iii

CORPORATE DISCLOSURE STATEMENT PURSUANT TO
FEDERAL RULE OF APPELLATE PROCEDURE 29(A)(4)(A)
Pursuant to Federal Rule of Appellate Procedure 29(a)(4)(A), the American
Center for Law and Justice makes the following disclosures:
1) Nongovernmental corporate parties list all parent corporations: None
2) Nongovernmental corporate parties list all publicly held companies that
hold 10% or more of the party’s stock: None
CERTIFICATION PURSUANT TO
FEDERAL RULE OF APPELLATE PROCEDURE 29(A)(4)(E)
Pursuant to Federal Rule of Appellate Procedure 29(a)(4)(E), the American
Center for Law and Justice affirms that no counsel for a party authored this brief in
whole or in part and that no person other than the amicus, its members, or its
counsel has made any monetary contributions intended to fund the preparation or
submission of this brief.
STATEMENT OF INTEREST OF AMICUS CURIAE
Amicus Curiae the American Center for Law and Justice 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
briefs before the United States Supreme Court and numerous state and federal
courts around the country in cases concerning the First Amendment and
immigration law, including FEC v. Wisconsin Right to Life, 551 U.S. 449 (2007),
1

McConnell v. FEC, 540 U.S. 93 (2003), and United States v. Texas, 136 S. Ct.
2271 (2016). The ACLJ has been active in advocacy and litigation concerning the
need for protecting the Constitution, the First Amendment, the separation of
powers, and the immigration laws in place that protect American Citizens from
harm.
BACKGROUND
On January 27, 2017, the President of the United States executed his
Executive Order: Protecting the Nation from Foreign Terrorist Entry into the
United States (Jan. 27, 2017) (Executive Order). In pertinent part, the Executive
Order (1) suspends immigrant and nonimmigrant entry from seven countries of
particular concern designated as such by the prior administration; (2) pauses the
U.S. Refugee Admissions Program (USRAP) for 120 days to allow necessary
improvements to the program to be identified and implemented; and (3) prioritizes
claims of people seeking refugee status due to religious persecution from countries
where their religion is a minority. Importantly, nothing in the Executive Order
bans the entry of Muslims because they are Muslims or even identifies any
particular religion or faith.
On February 3, 2017, the United States District Court for the Western
District of Washington entered a Temporary Restraining Order barring
enforcement of substantive provisions of the President’s Executive Order.

2

According to the District Court, its Temporary Restraining Order had nationwide
application — even though only two States appear as plaintiffs.1
I.

The District Court Failed to Support its Extraordinary Remedy With
Meaningful Legal or Factual Analysis.
The District Court’s Temporary Restraining Order contains no meaningful

legal analysis. The Court’s Order contains only a recitation of legal standards; but
contains no application of any substantive law to a single fact. Nowhere in the
District Court’s Order is there any citation to or analysis of a statute or an article of
or amendment to the Constitution that the President’s Executive Order allegedly
offends.
This defect is of particular moment here because the type of relief Plaintiffs
seek is well known to be “extraordinary.” See Winter v. Nat. Res. Def. Council,
Inc., 555 U.S. 7, 24 (2008) (TRO is “an extraordinary remedy that may only be
awarded upon a clear showing that the plaintiff is entitled to such relief”). For
such extraordinary relief to be, in fact, extraordinary, it must not to be lightly or
routinely granted. A plaintiff must clearly show “that he is likely to succeed on the
merits, that he is likely to suffer irreparable harm in the absence of preliminary

1
The Court also entered the injunction at the behest of two States — parties that are not
themselves even subject to the Executive Order and lack Article III standing or any right to
challenge the denial of entry or visas to third-party aliens. In any event, Plaintiffs’ likelihood of
success on the issue of standing is anything but clear. See Lujan v. Defenders of Wildlife, 504
U.S. 555, 576 (1992) (concerning standing; explaining that certain regulatory matters are “the
function of Congress and the Chief Executive” and not the federal courts).

3

relief, that the balance of equities tips in his favor, and that an injunction is in the
public interest.” Stormans, Inc. v. Selecky, 586 F.3d 1109 (9th Cir. 2009) (citing
Winter, 555 U.S. at 20). A clear showing as to each and every element of this
standard is, admittedly, a heavy burden. But that is precisely the way it is meant to
be, as a temporary restraining order provides extraordinary relief without the
benefit of a full trial or merits hearing. See University of Texas v. Camenisch, 451
U.S. 390, 396 (1981) (“[W]here a federal district court has granted a preliminary
injunction, the parties generally will have had the benefit neither of a full
opportunity to present their cases nor of a final judicial decision based on the
actual merits of the controversy.”). In the realm of national security decisions, like
those made by the President here and reflected in the challenged Executive Order,
judicial intervention without a full trial can be dangerous. At the very least, such
an extraordinary order by a court required a convincing and extensive legal
analysis, which the District Court failed to provide.

Merely stating, without

explanation or analysis, that the Plaintiffs had shown a high likelihood of success
on the merits cannot be enough — especially when a court is purporting to bar
nationwide enforcement of a President’s Executive Order expressly made in the
interest of national security.

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II.

The District Court’s Temporary Restraining Order Affronts the
Constitution and Congress.
It is undeniable that the admission of, or refusal to admit, any refugee or

alien is a sovereign act of the United States. “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.’” Cardenas v. United States, 826 F.3d 1164, 1169 (9th Cir.
2016) (quoting Fiallo v. Bell, 430 U.S. 787, 792 (1977)). The District Court’s
Temporary Restraining Order contravened the considered judgment of Congress
that the President should have the unreviewable authority to suspend the admission
of any class of aliens. There can be no doubt that Congress expressly delegated to
the President broad discretionary authority: 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,” the President has the authority to
“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).
The express delegation of powers by Congress is but part of the equation.
The United States Constitution grants to the President inherent foreign affairs and
national security powers. U.S. Const. Article II; Harisiades v. Shaughnessy, 342
U.S. 580, 588 (1952) (recognizing that immigration control is an integral part of
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Article II authorities “in regard to the conduct of foreign relations [and] the war
power”). Where, as here, a President’s executive action is based on this
convergence of authority, the President’s “authority is at its maximum, for it
includes all that he possesses in his own right plus all that Congress can delegate.”
Zivotofsky ex rel. Zivotofsky v. Kerry, 135 S. Ct. 2076, 2083-84 (2015);
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-36 (1952).
To be sure, “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); United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542
(1950) (“[A]n alien who seeks admission to this country may not do so under any
claim of right. Admission of aliens to the United States is a privilege granted by
the sovereign United States Government. Such privilege is granted to an alien only
upon such terms as the United States shall prescribe.”). 2

Moreover, the

2
Again, the President’s Executive Order makes no reference to any particular faith or religion
and can no more implicate the Establishment Clause than does 8 U.S.C.S. § 1101(a)(42)(A), the
congressional statute expressly defining “refugee” to include persons fleeing actual or feared
persecution on account of their religion. Neither the President’s nor the Congress’ recognition of
religious persecution as a lawful ground for granting refugee status and eligibility for asylum
constitutes forbidden governmental favor of one religion over another or entanglement. Properly
understood, the Executive Order — providing that aliens seeking refugee status on account of
religious persecution are to be given priority if their religion is a minority religion in their
country — makes excellent sense. Around the globe, one whose religion is a minority is much
more likely to be persecuted. The result Plaintiffs seek would have extremely negative and farreaching consequences for refugees of all religions. Regardless, this is a policy determination by
the political branches concerning non-resident aliens, to whom the First Amendment has not
been held to apply.

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Constitution “is not a suicide pact,” Kennedy v. Mendoza-Martinez, 372 U.S. 144,
160 (1963), and the first responsibility of the United States government is national
defense and security. The President’s Executive Order was based on precisely that
responsibility.
The directives contained in the President’s Executive Order 3 are closely
tethered to discretionary powers vested in the Executive Branch by the
Constitution and Congress and clearly fall within the President’s well-established
constitutional and statutory authority. The Executive Order does not ban Muslim
immigrants or refugees because they are Muslims and makes no reference to any

3
Cutting through the hyperbole and inflammatory rhetoric surrounding the Order, Amicus Curiae
urges this Court to carefully consider what the President’s Executive Order actually does and
what it does not do. Expressly relying on authority and procedures set forth in 8 U.S.C.
1187(a)(12), the Order suspends for 90 days the entry of people from “countries of particular
concern” (currently Iran, Iraq, Syria, Sudan, Libya, Yemen and Somalia – all countries already
designated as such during President Obama’s administration). Sec. 3(c). Among other reasons,
this 90-day pause is “to ensure that adequate standards are established to prevent infiltration by
foreign terrorists or criminals.” Id. Certain diplomatic and governmental visa holders are
exempted. The Order also requires a “determination of the information needed for adjudications
and a list of countries that do not provide adequate information, within 30 days”; the U.S.
Department of State to request such information from all foreign governments; and a
recommendation of countries whose nationals should be prohibited entry due to a country’s
failure to provide the information. Sec. 3.
Concerning refugee acceptance, the Executive Order suspends the USRAP for 120 days,
during which the program will be reviewed “to determine what additional procedures should be
taken to ensure that those approved for refugee admission do not pose a threat to the security and
welfare of the United States, and shall implement such additional procedures.” Sec. 5(a). The
Order also “prioritize[s] refugee claims made by individuals on the basis of religious-based
persecution, provided that the religion of the individual is a minority religion in the individual's
country of nationality.” Sec. 5(b). The Order suspends the acceptance of Syrian refugees as
“detrimental to the interests of the United States” until “sufficient changes” have been made to
the refugee program. Sec. 5(c). The Order decreases the overall refugee cap to 50,000, Sec.
5(d), much closer to normal refugee limits before the prior administration dramatically increased
the number this past year. It is abundantly clear that the President clearly has the discretionary
authority to make this adjustment.

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specific religion.

Instead, the Executive Order simply pauses the entry of

immigrants from certain unstable and terrorism-infested countries and refugees for
the clearly articulated purpose of allowing time for needed improvements to the
United States’ outdated immigration and refugee screening process. The countries
whose nationals are implicated in the Order were already designated as countries
of particular concern during the prior administration.
CONCLUSION
Wherefore, for these reasons and others, the Amicus Curiae respectfully
urges this Court to stay the District Court’s Temporary Restraining Order and
sustain the Defendants-Appellants’ Motion.
Dated:

February 6, 2017.

/s/ Erik Zimmerman
ERIK ZIMMERMAN
AMERICAN CENTER FOR LAW
AND JUSTICE
3001 Plymouth Road, Suite 203
Ann Arbor, Michigan 48105
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Counsel for Amicus Curiae

Respectfully submitted,
JAY ALAN SEKULOW
Counsel of Record
AMERICAN CENTER FOR LAW
AND JUSTICE
201 Maryland Avenue, NE
Washington, D.C. 20002
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Counsel for Amicus Curiae

8

CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Motion of the
American Center for Law and Justice for Leave to File its Amicus Curiae Brief and
the proposed Brief of Amicus Curiae were electronically filed with the Clerk of
Court for the United States Court of Appeals for the Ninth Circuit on February 6,
2017, using CM/ECF, which will send notification of such filing to counsel of
record.
Dated:

February 6, 2017.

Respectfully submitted,
/s/ Erik Zimmerman
ERIK ZIMMERMAN
AMERICAN CENTER FOR LAW
AND JUSTICE
3001 Plymouth Road, Suite 203
Ann Arbor, Michigan 48105
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Counsel for Amicus Curiae