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

Filing 84

Submitted (ECF) Amicus brief for review (by government or with consent per FRAP 29(a)). Submitted by Freedom Watch, Inc.. Date of service: 02/06/2017. [10304535] [17-35105] (Klayman, Larry) [Entered: 02/06/2017 04:23 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 APPELLANTS-DEFENDANTS
ON 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 7, 2017

TABLE OF CONTENTS
TABLE OF CONTENTS

ii

FRAP RULE 26.1 AND FRAP 29(a)(4)(E) DISCLOSURE STATEMENT

iii

STATEMENT OF INTEREST OF AMICUS CURIAE

iv

I.
II.

SUMMARY OF ARGUMENT
ARGUMENT

1
3

A.

Appellee States Will Fail On The Merits

3

B.

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

4

Executive Order Targets "Failed States" Plus
Terrorist Sponsor, Hostile Iran, Not Religion

4

D.

Appellees Misrepresent 8 U.S.C. § 1152(A)(1)(A)

7

E.

Straw-Man Argument Of Religious Discrimination

10

F.

Irreparable Harm Supports The Executive
Order, Not The Appellees

12

G.

Enjoining The Executive Order Is Mistaken

15

I.

Forum Non Conveniens And Judge Shopping

16

C.

III.

REQUEST FOR ORAL ARGUMENT

18

III.

CONCLUSION

18

ii

TABLE OF AUTHORITIES

Cases
Harisiades v. Shaughnessy, 342 U.S. 580, 588 (1952) ................................................................... 4
Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981)........................................................................ 17
Stuhlbarg Int’l Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839 n. 7 (9th Cir. 2001) ........... 3
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S. Ct. 365, 172 L. Ed. 2d 249 (2008) 3
Zivotofsky v. Kerry, 576 U.S. ___, 135 S. Ct. 2076, 2083-84 (2015) ............................................. 4
Statutes
28 U.S. Code § 1391 ..................................................................................................................... 16
8 U.S. Code § 1182(f) ................................................................................................................. 4, 6
8 U.S.C. § 1152 ........................................................................................................................... 7, 8
8 U.S.C. § 1152(a)(1)(A) ............................................................................................................ 7, 8
8 U.S.C. § 1182(f) ..................................................................................................................... 8, 15
8 U.S.C. § 1187(a)(12)........................................................................................................ 5, 11, 12
Section 212(f) of the Immigration and Naturalization Act ............................................................. 4
Rules
Fed. R. Civ. P. 65(b)(1)................................................................................................................... 3
FRAP 29(a)(4)(E) .......................................................................................................................... iv
FRAP RULE 26.1 .......................................................................................................................... iv

iii

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 under FRAP 29(a)(4)(E), the 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 6, 2017

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

iv

STATEMENT OF INTEREST OF AMICUS CURIAE
Amicus Curaie Freedom Watch, Inc. hereby respectfully submits this brief to
assist the Court and the ends of justice pursuant to the Federal Rules of Appellate
Procedure ("FRAP") Rule 29. Counsel for the Appellants and Appellees have
given their consent to this filing and therefore pursuant to FRAP Rule 29 and
Circuit Rule 29, on the direction of said rules, 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
v

case Arpaio v. Obama , in a petition before the U.S. Supreme Court as Case No.
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.

vi

I.

SUMMARY OF ARGUMENT
Before the Court is an emergency motion by the Appellants, Defendants

below, for a stay of a Temporary Restraining Order pending a full appeal and
resolution of the case below. Here, Amicus Curiae Freedom Watch respectfully
offers its analysis for the benefit of this Court on that decision immediately before
the Court concerning a stay. As other aspects of the case come before the Court, it
is likely that the Amicus Curiae may also have additional observations to offer at a
later time as the case progresses.
On January 27, 2017, President Donald Trump issued an Executive Order
"Protecting the Nation from Foreign Terrorist Entry into the United States,"
attached hereto as Exhibit A. The Executive Order is clearly, unambiguously, and
explicitly aimed at the U.S. Government improving its methods for investigating,
screening, and filtering ("vetting") entrants into the United States to do a better job
of protecting the people Washington state, Minnesota and the rest of the nation
against the risk of terrorist attacks. It is dramatically false to misrepresent the
Executive Order. Its focus is to improve discrimination between terrorists, terrorist
support networks, and terrorist sympathizers as opposed to others who present no
danger to the country, based exclusively upon demonstrated empirical risks of
actual terrorism.

The President of the United States, as constitutional head of the nation's
international relations and foreign policy, and as Commander in Chief, entered a
formal finding that -- in direct opposition to the arguments of the Appellees -- the
status quo of complacency and lax border enforcement presents a clear and present
danger to the national security of the United States. In the language of the
governing statute, President Trump entered a finding that entry from seven failed
or dangerous states "would be detrimental to the interests of the United States."
In fact, because the issue is the risk of terrorism, not religion, the Muslim
nation of Kuwait has also implemented a travel ban from five (5) of the same seven
(7) countries covered by the Executive Order.1 A Muslim country has banned
travel from five of the same Muslim countries. But the Appellees seek to obscure
this reality that national security, not religion, is at stake.
The three crucial questions on the issue of a stay are that (1) the TRO makes
no attempt to demonstrate a likelihood of success on the merits by the PlaintiffsAppellees, who cannot succeed on the merits under the prevailing law, and (2) the
persons -- who are strangers to the case, for whom the Appellees purport to speak - cannot show irreparable damage where each is eligible for an individual waiver

"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
1

2

and the Executive Order creates only a 90 day pause in entry from the world's
seven most dangerous countries, and (3) the Appellees lack standing.
II.

ARGUMENT
A. APPELLEE STATES WILL FAIL ON THE MERITS
The Temporary Restraining Order ("TRO") in the U.S. District Court for the

Western District of Washington ("District Court") 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. 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).
Here, of course, the Appellants seek a stay of a stay (TRO). However, if the
February 3, 2017, TRO is fatally flawed, which it is, then the moving Appellants
here are entitled to a stay from the Ninth Circuit of the defective TRO. That is, the
Appellants will prevail on the merits of challenging the TRO if it is deficient.

3

B. PRESIDENT'S POWER TO REGULATE ENTRY INTO THE
UNITED STATES IS CLEAR AND ALMOST UNLIMITED
Congressional legislation confirms the President’s authority in 8 U.S. Code
§ 1182(f), which is 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.
However, 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 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”).
C. EXECUTIVE ORDER TARGETS "FAILED STATES" PLUS
TERRORIST SPONSOR, HOSTILE IRAN, NOT RELIGION
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,
4

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. The Executive Order targets
terrorism. This is not a case about religion at all.
The Executive Order explicitly, clearly, and unambiguously covers only
those countries identified, during the Obama Administration, pursuant to 8 U.S.C.
§ 1187(a)(12), as being the seven most dangerous countries in the world for their
risk of terrorists infiltrating the United States.
Specifically invoking 8 U.S. Code § 1182, President Trump ordered in the
Executive Order, attached (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).
These are so-called "failed states" from whom reliable records cannot be
obtained to sufficiently vet against the risk of terrorism. The seven (7) countries
are selected not because they are Muslim, but because those countries are in chaos
(or in the case of Iran implacably hostile and a state sponsor of terrorism), such
5

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.2
It is beyond reasonable question, that the defining characteristic is the
unreliability of records from these seven (7) countries. This is underscored by the
temporary 90 day time limit on the Executive Order (in relevant portions).
The Executive Order ignores 42 other Muslim-majority countries. Thus, the
fiction of the Appellees that the Executive Order targets religion is untenable and
absurd. If the Executive Order constituted discrimination against religion, (a) it
would not be limited to only 90 days, and (b) it would not be limited only to those
seven countries from whom records necessary for vetting cannot be trusted. The
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.
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
2

6

The law upon which the Executive Order depends to identify the seven
countries, federal law codified as 8 U.S.C. 1187(a)(12) is designed to allow a
waiver of inadmissible aliens under 8 U.S. Code § 1182(f), as follows.
The Executive Order tracks with the following countries, rather than
identifying any countries itself, as specified in the statute.
(12) Not present in Iraq, Syria, or any other country or area of concern
(A) In general
Except as provided in subparagraphs (B) and (C)—
(i) the alien has not been present, at any time on or
after March 1, 2011—
(I) in Iraq or Syria;
(II) in a country that is designated by the
Secretary of State under section 4605(j) of title 50
(as continued in effect under the International
Emergency Economic Powers Act (50 U.S.C.
1701 et seq.)), section 2780 of title 22, section
2371 of title 22, or any other provision of law, as
a country, the government of which has
repeatedly provided support of acts of
international terrorism; or
(III) in any other country or area of concern
designated by the Secretary of Homeland
Security under subparagraph (D); and
(ii) regardless of whether the alien is a national of a
program country, the alien is not a national of—
(I) Iraq or Syria;
(II) a country that is designated, at the time the alien
applies for admission, by the Secretary of State under
section 4605(j) of title 50 (as continued in effect
under the International Emergency Economic Powers
Act (50 U.S.C. 1701 et seq.)), section 2780 of title
22, section 2371 of title 22, or any other provision of
law, as a country, the government of which has
repeatedly provided support of acts of international
terrorism; or
7

(III) any other country that is designated, at the time
the alien applies for admission, by the Secretary of
Homeland Security under subparagraph (D).
Thus, the argument is simply unavailable to the Appellees that the Executive
Order discriminates against a religion, even were this relevant, which is clearly is
not! It targets countries identified by the Obama Administration under federal law
as being dangerous sources of terrorism.
D. APPELLEES MISREPRESENT 8 U.S.C. § 1152(a)(1)(A))
Yet the Appellee states seek to avoid the clear power of the President by
claiming limitation under 8 U.S.C. § 1152. However, that statute clearly related to
the annual numerical quotas for immigrant -- non-visitor -- visas from various
countries. It clearly has nothing to do with limiting the President's power.
The Appellees hang their entire case on seeking to undercut 8 U.S.C. §

1182(f) with a misrepresentation of 8 U.S.C. § 1152(a)(1)(A)).
Clearly, 8 U.S.C. § 1152(a)(1)(A) has nothing to do with limiting the
President's power under 8 U.S.C. § 1182(f) and directly under the U.S.
Constitution. 8 U.S.C. § 1152 concerns numerical limits on visas. By contrast
8 U.S.C. § 1182(f) is directly relevant, addressing "inadmissible aliens." The
context in which the subparagraphs appear, as well as their substance, makes
clear that there is no limitation on the President's 8 U.S.C. § 1182(f) power.
It would lead to an absurd result to interpret 8 U.S.C. § 1152(a)(1)(A) as
8

prohibiting the President from basing his actions under 8 U.S.C. § 1182(f) on
national origin, for example. The President could not carry out his duties as the
head of the nation's foreign policy and international relations if he were disabled
from considering the country from which potential visitors or immigrants
originate from in carrying out his constitutional foreign policy decisions. Such
an interpretation -- that a person's country cannot be considered -- would
effectively invalidate the President's role in conducting foreign policy. It would
be absurd to conduct foreign policy and international relations while being
blinded to the countries from which visitors and immigrants come.
8 U.S.C. § 1152 : US Code - Section 1152: Numerical limitations
on individual foreign states
(a) Per country level
(1) Nondiscrimination
(A) Except as specifically provided in paragraph (2)
and in sections 1101(a)(27), 1151(b)(2)(A)(i), and 1153
of this title, no person shall receive any preference or
priority or be discriminated against in the issuance of
an immigrant visa because of the person's race, sex,
nationality, place of birth, or place of residence.
(B) Nothing in this paragraph shall be construed to
limit the authority of the Secretary of State to
determine the procedures for the processing of
immigrant visa applications or the locations where
such applications will be processed.
(2) Per country levels for family-sponsored and employment-based
immigrants
Subject to paragraphs (3), (4), and (5), the total number of
immigrant visas made available to natives of any single foreign state
9

or dependent area under subsections (a) and (b) of section 1153 of this
title in any fiscal year may not exceed 7 percent (in the case of a
single foreign state) or 2 percent (in the case of a dependent area) of
the total number of such visas made available under such subsections
in that fiscal year.
(3) Exception if additional visas available
If because of the application of paragraph (2) with respect to
one or more foreign states or dependent areas, the total number of
visas available under both subsections (a) and (b) of section 1153 of
this title for a calendar quarter exceeds the number of qualified
immigrants who otherwise may be issued such a visa, paragraph (2)
shall not apply to visas made available to such states or areas during
the remainder of such calendar quarter.
(4) Special rules for spouses and children of lawful permanent
resident aliens
(A) 75 percent of 2nd preference set-aside for spouses
and children not subject to per country limitation
(i) In general Of the visa numbers made available
under section 1153(a) of this title to immigrants
described in section 1153(a)(2)(A) of this title in any
fiscal year, 75 percent of the 2-A floor (as defined in
clause (ii)) shall be issued without regard to the
numerical limitation under paragraph (2).
(ii) "2-A floor" defined In this paragraph, the term
"2-A floor" means, for a fiscal year, 77 percent of the
total number of visas made available under section
1153(a) of this title to immigrants described in
section 1153(a)(2) of this title in the fiscal year.
Id. (Emphasis added).
E. STRAW-MAN ARGUMENT OF RELIGIOUS
DISCRIMINATION
The Plaintiff states, Appellees here, have invented a straw man case. This is
not merely a straw-man argument. This entire case is based upon fictions. Having
spun these fictions, the Plaintiff-Appellee states cling desperately to the falsehood
10

at the core of their case, and strive mightily to distract from the fatal errors in their
entire case.
It is surprising -- after reading the emotional hyperbole of the Appellees and
Plaintiff states, Amici, and others -- to actually read the operative Executive Order.
After reading the pleadings of the Appellees one would imagine a completely
different document than the one actually before the Court: (See Exhibit A.)
1) Nowhere does the Executive Order mention Muslims or Islam.
2) Nowhere does the Executive Order mention Christians.
3) Nowhere does the Executive Order mention Jews.
4) Nowhere does the Executive Order mention religion at all.
5) In fact, nowhere does the Executive Order mention any particular
country, nor specify any of the seven (7) countries affected.
The clear and present danger to the national security of refugees and travel
from hostile Iran as a sponsor of terrorism and six failed states is designated by
Congressional statute now codified at 8 U.S.C. § 1187(a)(12) and President
Obama's Secretary of State John Kerry. This Court is faced not only with a
Presidential finding that travel to the United States from these seven (7) nations
presents an unacceptable risk to the people of the United States -- including those
in Washington state and Minnesota -- but a Congressional statute agreeing that Iraq
and Syria, and the other five designated by Obama's Secretary of State Kerry
11

present an unacceptable risk to the nation.
The Appellees bring their case by asserting fictions that the Executive Order
targets Muslims, even though of the world's 49 Muslim-majority countries,3 the
Executive Order bans entry only from seven (7).

However, the defining

characteristic by which those seven were selected is the inability for the U.S.
Government to effectively investigate ("vet") people from those countries due to
the near total collapse of those countries as so-called "failed states" and hostile
sponsor of terrorism Iran.
In fact, the Executive Order does not even mention the countries affected,
but refers instead to the countries designated by the Obama Administration
pursuant to 8 U.S.C. § 1187(a)(12) as countries of concern. Because of the chaos
created in those countries after the so-called "Arab Spring," and the hostility of
Iran, records are either unavailable or easily forged by money-strapped or corrupt
officials.4
In other words, a terrorist could present himself at the U.S. border posing
as a Hasidic Jew under a false name, and the records from those seven countries
are too deficient to confirm the entrant's true identity. It is the nature of the
"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/
4
See Footnote 2.
3

12

countries, not the religion of entrants that drives the Executive Order.
Another fiction of the Appellees' case is the suggestion that the Executive
Order is a ban on entrants when in fact potential entrants can receive waivers on a
case-by-case basis and apparently 100% of all affected travels have in fact received
waivers allowing them to enter notwithstanding the Executive Order. 5
Furthermore, the Executive Order limits entry only during a modest 90 day period
while vetting methods are improved.
F. 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. There cannot be harm to a potential entrant from the Executive Order
when he or she can be granted entrance under a waiver. Indeed, news reports
indicate that 100% of all persons who were initially detained upon arriving at U.S.
airports under the Executive Order have been cleared to enter the United States and
released into the interior of the country. That is, not a single person was denied
entry pursuant to the waiver authority. This is fatal to the Appellees' case.

"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/
5

13

The harm that can be identified might be purely financial as a result of delay.
By definition, financial costs are not irreparable. While out of pocket expenses due
to delay may be inconvenient, they cannot constitute "irreparable harm" for a TRO.
On the other side of the equation, there is irreparable harm to the national
security of the United States. Appellees argue that the status quo before the
Executive order cannot represent irreparable harm. But that is exactly the
Presidential Finding in the Executive Order and the considered judgment of the
U.S. Department of State and of the U.S. Congress. It is precisely the finding that
the status quo of lax foreign policy, lax enforcement and a careless lack of concern
for the safety of the American people has spawned death, violence, and destruction
on U.S. soil in recent years.
Actual recent terrorist attacks in San Bernadino, California,6 Boston,
Massachusetts,7 Orlando, Florida, and Garland, Texas, 8 and Ft. Lauderdale
International Airport in addition to earlier incidents such as the first and second
terrorist attacks at the World Trade Center on February 26, 1993 and September,
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
7
"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
8
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
6

14

11, 2001.
The Executive Order clearly, unambiguously, and explicitly "... suspends
entry into the United States, as immigrants and nonimmigrants, of such persons for
90 days..." Id. (emphasis added). The 90 day suspension is clearly,
unambiguously, and explicitly temporary for the purpose of the U.S. Government
investigating and developing improved scrutiny, review, and filtering of dangerous
applicants. The focus is on improving national security -- not on any religion.
The 90 day suspension is clearly, unambiguously, and explicitly limited to
only seven (7) countries identified by President Barack Obama as so-called "failed
states" or technically "countries of concern." While conspicuously taking no
action concerning the other 42 nations out of the world's 49 Muslim-majority
countries, the Executive Order focuses exclusively on actual danger to the country.
Thus, the danger to the national security clearly outweighs temporary delays
in travel by persons affected who come from the world's seven most dangerous
countries in terms of terrorist activity directed against the United States.
G. ENJOINING THE EXECUTIVE ORDER IS MISTAKEN
There are many different kinds of executive orders. This Executive Order is
exercising the President's delegated authority under 8 U.S.C. § 1182(f).
Therefore, the District Court is attempting to enjoin the Congressional statute. The
President's role in proclaiming a suspension under 8 U.S.C. § 1182(f) is a statutory
15

role. Thus, it is ineffectual for the District Court to enjoin the Executive Order
when the President is exercising his statutory role under 8 U.S.C. § 1182(f). The
Appellees are actually attacking the statute.
H. LACK OF STANDING
The TRO must also be vacated because the Appellees lack standing. It
is undisputed that the Appellees claim for standing grounds routinely rejected
by the courts, at least when a legal challenge is in support of the rule of law
and enforcement of immigration laws. The Appellees clearly ground their
claim of standing exclusively upon the supposed -- highly speculative -claims of others.
I. FORUM NON CONVENIENS AND JUDGE SHOPPING
It is clear that the Appellees, Plaintiff states below, engaged in prohibited
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.
Venue is governed by 28 U.S. Code § 1391, which requires that:
(a)Applicability of Section—Except as otherwise provided by law—
(1) this section shall govern the venue of all civil actions
brought in district courts of the United States; and
16

(2) the proper venue for a civil action shall be determined
without regard to whether the action is local or transitory
in nature.
(b)Venue in General—A civil action may be brought in—
(1) a judicial district in which any defendant resides, if all
defendants are residents of the State in which the district
is located;
(2) a judicial district in which a substantial part of the
events or omissions giving rise to the claim occurred, or a
substantial part of property that is the subject of the
action is situated; or
(3) if there is no district in which an action may
otherwise be brought as provided in this section, any
judicial district in which any defendant is subject to the
court’s personal jurisdiction with respect to such action.
***
(e) Actions Where Defendant Is Officer or Employee of the United
States—
(1) In general.—
A civil action in which a defendant is an officer or
employee of the United States or any agency thereof
acting in his official capacity or under color of legal
authority, or an agency of the United States, or the
United States, may, except as otherwise provided by law,
be brought in any judicial district in which (A) a
defendant in the action resides, (B) a substantial part of
the events or omissions giving rise to the claim occurred,
or a substantial part of property that is the subject of the
action is situated, or (C) the plaintiff resides if no real
property is involved in the action. Additional persons
may be joined as parties to any such action in accordance
with the Federal Rules of Civil Procedure and with such
other venue requirements as would be applicable if the
United States or one of its officers, employees, or
agencies were not a party.
The Court should transfer the case to the U.S. District Court for the District
17

of Columbia under the doctrine of forum non conveniens. Piper Aircraft Co. v.
Reyno, 454 U.S. 235 (1981)
III.

REQUEST FOR ORAL ARGUMENT
The Amicus Curiae requests oral argument at hearing consisting of 10

minutes to address these important issues. While Appellees have consented to this
instant filing, Appellees do not consent to Amicus Curiae’s request for oral
argument. However, this Court should exercise its discretion and grant Amicus
Curiae’s request for 10 minutes of oral argument. As set forth in this brief, there
are pressing and important national issues at stake here. Amicus Curiae, with its
extensive experience in this arena, will be able to provide this Court with important
perspective, through oral argument, to assist this Court in rendering its decision.
Amicus Curiae’s request for 10 minutes is short, and will not unduly burden this
Court or the parties involved, and will be of great utility to this Court.
IV.

CONCLUSION AND REQUEST FOR ORAL ARGUMENT
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.
18

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. 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.
Terrorist supporters and conspirators 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 those who do. 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
19

required vetting, in the interests of national security.
Finally, amicus curiae respectfully requests the opportunity to present 10
minutes of oral argument should this Court decide to hold a hearing. This request is
in the public interest, for the reasons stated above, as the oral argument of the
undersigned will represent the interests of the American citizenry and help this
Court focus on and asking questions about the relevant arguments, which are in
some instances unique and not identical with those of the parties herein.
Dated: February 6, 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 6, 2017, to counsel for Plaintiffs and
Defendants through the District’s Electronic Case Filing system.
/s/ Larry Klayman, Esq.
Larry Klayman, Esq.
CERTIFICATE OF COMPLIANCE

20

I hereby certify that this brief is in Times New Roman in 14-point font size,
and totals 5,172 words, in keeping with FRAP 29 and Circuit Rules.
/s/ Larry Klayman, Esq.
Larry Klayman, Esq.
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.

21

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