State of Hawaii v. Trump

Filing 250

RAISING POLITICAL QUESTION NONJUSTICIABILITY, AMICUS CURIAE BRIEF from Professor Victor Williams, of the America First Lawyers Association, in Support of President Donald Trump re 238 - by Victor Williams, on behalf of America First Lawyers Association. Note: Permission to file the amicus curiae brief was granted pursuant to 248 Minute Order. (emt, )

Victor Williams ,
Appearin g Pro Se

FILED IN THE
UNITED ST ATES DISTRICT COURT
DISTRICT OF HAWAII

MAR 2 4 2017
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CLERK, U.S. DISTRICT COURT
DISTRICT OF HAWAII

America First Lawyers Associati on
www.ame ricafirstla wyers.com
5209 Baltimore Ave,
Bethesda, MD 20816
[phone]
americafi rstlawyer s@gmail. com

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UNITED STATES DISRICT COURT
FOR THE DISTRICT OF HAWAI I

STATE OF HA WAI'I,
ISMAEL EISHIKH , et al
Plaintiffs
v.
DONALD J. TRUMP, et al
Defendants

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No. 17 cv 005(DKW /KJM)

RAISING POLITIC AL QUESTI ON NONJUS TICIABI LITY,
AMICUS CURIAE BRIEF FROM PROFES SOR VICTOR WILLIA MS,
OF THE AMERIC A FIRST LAWYERS ASSOCA TION,
IN SUPPOR T OF PRESID ENT DONALD TRUMP

CERTIFICATE AS TO PARTIES & RELATED CASES
A. Parties and Amici. All parties, interveners, and amici appearing in this
Court are listed in party briefing except that this brief is filed on behalf of
Professor Victor Williams in support of Defendants.
B. Related Cases. Other related cases of which Amicus is aware are referenced in
the briefing offered by parties.

America First Lawyers Association
www.americafirstlawyers.com
5209 Baltimore Ave,
Bethesda, MD 20816
[phone]
[e-mail]

ii

TABLE OF CONTENTS
Page

Certificate as to Parties, Rulings and Related Cases .................................... .ii
Table of Contents ........................................................................... .iii
Table of Auiliorities ...................................................................... iv,v,vi
Statement of Auiliorship and Financial Contribution .......................................vii
Statement of Identity, Interest and Auiliority of Amicus ................................ 1-4
Argument ................................................................................... 5-35
Certificate of Service ...................................... ~ ................................. 36

iii

TABLE OF AUTHORITIES
Page(s)

Cases:

Alaska v. Kerry, 972 F. Supp. 1111 (D. Alaska 2013) .................................. 23
Aktepe v. United States: 705 F.3d 1400 (11th Cir. 1997) ................................ 19
Azizi v. Thornburgh, 908F.2d1130, 1134 (2d Cir. 1990) ................................ 28
Baker v. Carr, 369, U.S. 186 (1962) ................................................ 24,25,27
Boumediene v. Bush, 553 US 723 (2008) ................................................ 29
Chicago & Southern Airlines v. Waterman 333 U.S. 103 (1948) ...................... 8
Ctr.for Biological Diversity v. Hagel, 80 F. Supp. 991 (N.D. Cal. 2016) ......... 23
DaCosta v. Laird, 471F.2d1146 (2nd Cir. 1973) ....................................... 9
El-Shifa v. United States, 607 F.3d 836 (D.C. Cir. 2010) (en bane) ..... ..... .13,14,33
Goldwater v. Carter, 44 U.S. 996 (1979) ............................................ 29,30
Harisiades v. Shaughnessy, 342 U.S. 580 (1952) ...................................... 16
Jaber v. United States, 2016 WL 706183 (D.D.C. Feb. 22, 2016) ................. 13,14
Kleindienstv. Mandel, 408 U.S. 753, 765 (1972) ............................................ 7
Landon v. Plasencia, 459 U.S. 32 (1982) ................................................. 7.
Legal Assistance for Vietnamese Asylum Seekers v. Dep 't ofState,
Bureau of Consular Affairs, 104 F.3d 1349 (D.C. Cir. 1997) ....................... 27,28
Lowry v. Regan, 676 F. Supp. 333 (D.D.C. 1987) ...................................... 27
Marbury v. Madison, 5 U.S. 137 (1803) .................................................. 20,24,34
Mobarez v. Kerry, Civil Action No. 2015-0516
(D.D.C. 2016) .............................................................. ................ 7,8,11, 23

lV

TABLE OF AUTHORITIES (continued)
Cases:

Page(s)

McCleskey v. Kemp,481 U.S.279 (1987) .............................................. 19, 29
Miami Nation ofIndians v. Interior, 255 F.3d 342 (7th Cir. 2001) ............... 19,20
Nixon v. United States, 506 U.S. 224 (1993) ........................................ 27,28
Nixon v. United States, 938 F.2d 239 (D.C. Cir. 1991) ............................. .31,32
Detjen v. Central Leather Co., 246 U.S. 297 (1918) .................................... 24
Rasul v. Bush, 542 U.S. 446 (2004) ........................... ·: .......................... 28
Smith v. Reagan, 844 F.2d 195 (4th Cir. 1988) ........................................9,27
Snider v. Kissinger, 412 F.3d 190, 194 (D.C. Cir. 2005) ................................. 25
United States v. Verdugo-Urquidei, 494 U.S. 259, 269 (1990) ...................... .19,2g
Yick Wov. Hopkins, 118 U.S. 356, 369 (1886) ........................................... 29
Zivotofsky v. Clinton, 132 S.Ct. 1421 (2012) ............................. 12,13,21,22,23

Constitutions/Statutes/Executive Orders

Page(s):

U.S. Const.

art. II, § 1 ......................................................................................... 23
art. II, § 2 ............................................................................................................. 7,23
amend. XII, § 1 ............................................................................ 34
Exec. Order No. 13780 (March 6, 2017) (titled: Protecting the Nation from
Foreign Terrorist Entry into the United States) .................... .......... 11,16,17,18
v

TABLE OF AUTHORITIES (continued)

Page(s):

Other

Alexander Bickel, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT
ATTHEBAROFPOLITICS (Yale 1986) ................................................. .31,32
Mathew Boyle, Senate-Committee: 580 Terror Convictions
Since 2001, BREITBART NEWS, June 22, 2016http://www.breitbart.com/biggovemment/2016/06/22/senate-committee-580-terror-convictions-in-u-s-since911-3 80-terrorists-are-foreign-born/. . .................................................. 16, 17
Stephen Dinan, Trump Says Extreme Vetting Pause Is Same as Obama 's
2011 Iraq Policy, WASH. TIMES, Jan. 29, 2017,
http://www.washingtontimes.com/news/201 7/jan/29/trump-says-extreme-vettingpause-same-obamas-2011-/....................................................................................... 6
Stephen Dinan, Somali/and Pleads To Be Removed from
Trump's Extreme VettingList, WASH. TIMES, Mar. 9, 2017,
http://www.washingtontimes.com/news/2017/mar/9/somalia-pleads-be-removedextreme-vetting-list/ ........................................................ ................ 11
Alexander Hamilton, No. 23: The Necessity ofa Government as Energetic as the
One Proposed to the Preservation ofthe Union, in Clinton Rossiter, ed., THE
FEDERALIST PAPERS (New York: Mentor, 1999) ......................................... 24
Inside the Beltway: 'Lawyers for Trump' Founded" WASH. TIMES, July 4, 2016 ... .3

Nan Levinson, WAR IS NOT A GAME: THE NEW ANTIWAR SOLDIERS AND THE
MOVEMENT THEY CREATED (Rutgers 2014) ............................................... 5
Speech of the Honorable John Marshall (Mar. 7, 1800)(cited by The Political
Question Doctrine and the Supreme Court of the United States
(Nada Mourtada-Sabbah and Bruce E. Cain, eds.)(2007) .............................. 20
Joseph R. Nye, Get Smart: Combining Hard and Soft Power 88 FOREIGN AFFAIRS
160 (2009), http://www.jstor.org/stable/20699631 ................................................ 10
vi

TABLE OF AUTHORITIES (continued)

Page(s):

Other

Debra Weiss, Law Prof a Write-In GOP Candidate to Challenge Ted Cruz
Eligibility, ABA JOURNAL, April 11, 2016,
http://www.abajoumal.com/news/article/law prof enters gop presidential race t
o challenge ted cruzs eligibility/ ....................................................... 2
Pete Williams, Law Professor Challenges Cruz on Citizenship, Candidacy, NBC
NEWS, April 11, 2016. http://www.nbcnews.com/news/us-news/law-professorcandidate-challenges-cruz-citizenship-n554046 ........................................ .3
Victor Williams, Travel Ban Challenges Present a Non-Reviewable Political
Question, JURIST-FORUM, Feb.15, 2017,
http://jurist.org/forum/2017/02Nictor-Williams-travel-ban.php .......................... 15
Victor Williams, D. C. Law Professor Makes Case for Sessions' Senate
Confirmation, STREET INSIDER, Jan. 9, 2017,
http://markets.financialcontent.com/streetinsider/news/read/3 3 555004 ................. .3
Victor Williams, Trump Will Bring Return to Rule ofLaw and Economic Growth,
THE HILL, Nov. 6, 2016. http://thehill.com/blogs/pundits-blog/presidentialcampaign/304291-trump-will-bring-return-to-rule-of-law-and-economic .............. .3
Victor Williams, Law Professor Now Proudly in Basket ofDeplorables, THE HILL,
Sept. 20, 2016, http://thehill.com/blogs/pundits-blog/presidentialcampaign/296783-law-prof-once-an-obama-supporter-now-in-basket-of .............. .3

vii

STATEMENT OF AUTHORSIDP, LENGTH,
AND FINANCIAL CONTRIBUTION
This brief is offered by Amicus as an individual. Institutional affiliation is
offered only for informational purposes. It is presented in 14 point, New Times
Roman font with Argument section totaling 7182 words. No party's counsel
authored this brief in whole or in part, and no party, nor other person, contributed
money intended to fund the preparation or submission of this brief.

viii

ix

STATEMENT OF IDENTITY, INTEREST
AND AUTHORITY OF AMICUS
Plaintiffs have consented to, and Defendants do not oppose, the attached
Motion respectfully seeking leave of the Court to file this amicus curiae brief.
Appealing to the Court's broad discretion to allow such a filing, Amicus avers his
significant interest in this case and suggests that the proffered brief will be of
unique assistance to the Court. Professor Victor Williams is a Washington, D.C.
attorney and law professor with over twenty years' experience -- formerly
affiliated as fulltime faculty with both the Catholic University of America's
Columbus School of Law and the City University of New York's John Jay College
of Criminal Justice. Professor Williams has particular knowledge and expertise
regarding the text, history, and interpretation of Article II and Article III of the
U.S. Constitution with many scholarly and popular publications. He earned his
J.D. from the University of California-Hastings College of the Law. After
completing an externship with both Ninth Circuit Judge Joseph Sneed and
Eleventh Circuit Judge Gerald Bard Tjoflat and a two-year clerkship with Judge
Brevard Hand of the Southern District of Alabama, Williams did advanced training

in federal jurisdiction and international law (LL.M.) from Columbia University's
School of Law and in economic analysis of the law (LL.M.) from George Mason
University's Scalia School of Law.

1

In past, Professor Victor Williams has been granted leave to file amicus
briefs in other lower courts as well as by the U.S. Supreme Court. Professor
Williams has published scholarship and commentary that offered strong support
for the constitutional discretion and prerogatives of the past four presidents
(without regard to their party affiliation). Professor Williams zealously advocated
for timely Senate confirmation of the judicial and executive nominees of both
George W. Bush and Barack Obama. Although these past presidents often pursued
policy ends at odds with Professor Williams' personal policy preferences, he
continued to defend their constitutional authority.
But now, Professor Williams' acknowledges that his ultimate policy
preference ~o always "put America first" is clearly reflected.in President Trump's
agenda and early actions. Williams was an early primary supporter of candidate
Donald Trump. In spring 2016, Williams launched a widely-reported legal action,
after obtaining "competitor candidate standing" as a write-in candidate in several
late primary states, to challenge the ballot eligibility of (naturally-born Canadian)
Ted Cruz. (www.victorwilliamsforpresident.com). See e.g., Debra Weiss, Law
Profa Write-In GOP Candidate to Challenge Ted Cruz Eligibility, ABA JOURNAL,
April 11, 2016,
http://www.abajournal.com/news/article/law prof enters gop presidential race t
o challenge ted cruzs eligibility/ and Pete Williams, Law Professor Challenges
2

Cruz on Citizenship, Candidacy, NBC NEWS, April 11, 2016,
http://www.nbcnews.com/news/us-news/law-professor-candidate-challenges-cruzcitizenship-n5 54046.
After Senator Cruz withdrew from the GOP primary, Professor Williams
also withdrew from the primary race, formerly endorsed Donald Trump, and
founded Super PAC (GOP Lawyers) rallying Lawyers and Law Professors
(www.goplawyers.com) to support Donald Trump in the general election. See
Victor Williams, Trump Will Bring Return to Rule ofLaw and Economic Growth,
THE HILL, Nov. 6, 2016. http://thehill.com/blogs/pundits-blog/presidentialcampaign/304291-trump-will-bring-return-to-rule-of-law-and-economic , Victor
Williams, Law Professor Now Proudly in Basket ofDeplorables, THE HILL, Sept.
20, 2016, http://thehill.com/blogs/pundits-blog/presidential-campaign/296783-lawprof-once-an-obama-supporter-now-in-basket-of, and Inside the Beltway: 'Lawyers

for Trump' Founded" WASH. TIMES, July 4, 2016.
The campaign group has now transformed into the "America First Lawyers
Association" (www.americafirstlawyers.com) which Professor Williams chairs, to
advance the Trump administration's "America first" nominations, policies, and
programs. See e.g. Victor Williams, D. C. Law Professor Makes Case for Sessions'

Senate Confirmation, STREET INSIDER, Jan. 9, 2017,
http://markets.financialcontent.com/streetinsider/news/read/33 55 5004
3

Amicus submits that the proffered brief will make a valuable contribution to

the existing briefing in this case as it presents an alternatively focused theory
asserting that the claims against the president's travel freeze raise a nonjusticiable
political question - thus this Court does not have subject matter jurisdiction.

Submitted on March 13, 2017

illiams,
earing Pro Se
America First Lawyers Association
www.americafirstlawyers.com
5209 Baltimore Ave,
Bethesda, MD 20816
[phone]
[e-mail]

4

ARGUMENT

While supporting the Defendants' arguments, Amicus submits an alternative
theory: This action is due for immediate dismissal as it presents a nonjusticiable
political question. Amicus first acknowledges, however, the emotionallycompelling narratives regarding the aliens at issue in the instant action and in
related cases filed throughout the nation. The aliens seeking entry onto American
soil come from nations beset with evil oppression, state-sponsored terrorism,
violent domestic disorder, and religious civil wars. Adequate reasons are presented
to explain the aliens' desired entry; often involving being reunited with loved ones.
Yet, these aliens seek entry into America as our nation continues to be in a
prolonged war with radical terrorists, many of.whom have come from those very
same nations. Since September 11, 2001, over 40 terrorists from the six listed
nations, are among 380 foreign-born terrorists, who have been charged, tried, and

convicted of terrorist acts in the United States. Our new president instituted the
travel freeze both to better prosecute this war on terror and to fundamentally shift
American foreign policy related to the war. Although no salve for those who
suffer, William Tecumseh Sherman's missive applies: "I am sick and tired of war.
Its glory is all moonshine .... War is hell." Nan Levinson, WAR IS NOT A GAME: THE
NEW ANTIWAR SOLDIERS AND THE MOVEMENT THEY CREATED 13 (Rutgers 2014).

5

Just as did Barack Obama for eight years, our new president is engaging in a
delicate national security and foreign policy calculus as he begins to prosecute the
unprecedented, prolonged war with terrorists from these six nations and other
nations of the region. Stephen Dinan, Trump Says Extreme Vetting Pause Is Same

as Obama's 2011 Iraq Policy, WASH. TIMES, Jan. 29, 2017,
http://www.washingtontimes.com/news/201 7/jan/29/trump-says-extreme-vettingpause-same-obamas-2011-/.

As a matter of first-order determination, this Court is barred from making
an inquiry into the Executive Branch's war-prosecution calculus. Assertion that
such an inquiry is necessary for the Court to conduct a second-order immigration
statute interpretation and/or Administrative Procedure Act (APA) immigration
process analysis does not make that inquiry or the controversy justiciable.
Assertion of specious claims from American citizens, businesses, or sovereign
States, that they suffer tangent harm from the implementation of the travel freeze,
or equally specious claims of broad due process, equal protection, and religious
discrimination violations arising from the travel freeze, do not make this
controversy justiciable. This Court must immediately dismiss the instant action
(and all related pending and subsequent actions) raising such claims.

6

In various factual contexts, the Supreme Court has repeatedly ruled: "[A]n
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).

In implementing the travel freeze, President Trump acts within his inherent and

exclusive Article II,§ 2 authorities as Commander-in-Chief during a time of war.
The president acts with an authority that the Supreme Court recognizes as
"inherentin [the nation's] sovereignty, necessary for maintaining normal
international relations and defending the country against foregin encroachments
and dangers - a power to be exercised exclusively by the political branches of
government." Kleindienstv. Mandel, 408 U.S. 753, 765 (1972) (quotation marks
omitted); accord Knauffv. Shaughnessy, 338 U.S. 537, 542 (1950).
In its 2016 Mobarez v. Kerry ruling, the District Court for the District of
Columbia explained that it could not review just such a decision by Barack Obama
which the president made in a diplomatic, foreign policy, and military context.
When deciding to shutter the U.S. Embassy in Yemen, President Obama refused to
facilitate the exit and safe travels of American citizens from the horrific conditions
in Yemen back to American soil. The court refused to reach the plaintiffs'
requested statutory interpretation and APA process analysis that supported their

7

right to such travel assistance because such interpretation, inquiry, and analysis
would have required the court to answer a political question:
But the question that Plaintiffs' APA claim poses is not just what these
provisions mean; it is also whether, if they mean what Plaintiffs say they
mean, the Executive has violated the mandate that these provisions establish,
and it is that aspect of the court's inquiry that would necessarily require the
court to answer a non-justiciable political question....

Mobarez v. Kerry, Civil Action No. 2015-0516 (D.D.C. 2016). The court would
not second guess the president's admittedly-strange decision not to help America's
own citizen travel back to America.

Associate Justice Robert Jackson in Chicago & Southern Airlines v.

Waterman long ago recognized that foreign policy decisions "are delicate,
complex, and involve large elements of prophecy. They are and should be
undertaken only by those directly responsible to the people whose welfare they
advance or imperil." 333 U.S. 103 111 (1948). Justice Jackson further emphasized
that such "decisions are of a kind for which the Judiciary has neither aptitude,
facilities nor responsibility and have long been held to belong in the domain of
political power not subject to judicial intrusion or inquiry." Id.

Amicus respectfully asserts that in the instant action the Court will find no
judicially manageable standards by which it can endeavor to assess our newlyelected president's interpretation of classified and military intelligence and his
8

resulting decision -- based on that intelligence -- to freeze entry of aliens from
listed nations. See DaCosta v. Laird, 471 F.2d 1146 (2nd Cir. 1973) and Smith v.
Reagan, 844 F .2d 195 (4th Cir. 1988).
If the freeze is not implemented, this Court is not competent to assess the
nature and fiscal costs of alternative national security measures that may be
required to try to keep track of aliens allowed to enter from the listed nations. This
Court is not competent to foresee the unintended national security consequences of
such judicial interference with the president's prosecution of the war on terror.
This Court is not competent to understand the foreign relations implications from
the Court's invalidation of the travel freeze and its purposeful messaging to allies
and enemies of the new president's "America first" foreign policy.
The travel freeze is implemented as a matter of the president's war-strategy,
national-security, and foreign-policy calculus- and not as a matter of ordinary
immigration procedure or immigration law enforcement. The president's calculus
that led to the immediate travel freeze also includes longer-term policy objectives.
The travel freeze has purposes beyond the most important one of restricting alien
entry from war-tom and terror-supporting nations. Other objectives are many and
layered - with only some being patent.

9

But obviously, the new president sends a strong war-related policy signal
to all nations -- "friends and foe alike" -- regarding his "America first" foreign
policy shift first formally announced in his Inaugural Address. The travel freeze
cues our NATO allies to reconsider their own porous national borders. The
European nations' irresponsible failure to maintain their own sovereign borders has
led to deadly terrorist acts and generally violent public spaces. Alien terrorists and
would-be terrorist thugs who have been welcomed into Europe by its naive leaders
now stand in European airports only a seven-hour direct flight away from the
United States.
The freeze also directly confronts and disrupts expectations of wealthy
monarchs and potentates of the Middle East. Those oil-rich kingdoms have long
expected America to "pay any price, bear any burden" to deal with their own
region's hellish disorder. 1

One might hope that the travel freeze is the beginning of a disruptive application
of an "America first" version of "smart power" theories; a disruptive move
appropriate to this unusual, prolonged war. (For a traditional articulation of smart
power theory, see Joseph R. Nye: Get Smart: Combining Hard and Soft Power 88
FOREIGN AFFAIRS 160 (2009)). Amicus certainly hopes that the travel freeze is the
beginning of a correction in the government's over-reliance on a tired "carrot and
stick" foreign-policy. As a part of a broader "America first" construct, perhaps the
new policy will reject the wasteful acts of recent presidents who have spent endless
American-tax-dollar "carrots" in foreign aid to ungrateful regimes. The same
presidents have made even more shameful payments of brave military personnel
used up like just so many "sticks" thrown into the Middle Eastern desert.
1

10

All nations of the world -- including our allies in Europe and our
"frenemies" in the Middle East -- have been given explicit notice that at any point
in future the travel freeze list may expand to include "the names of any additional
countries recommended for similar treatment, as well as [to contract to remove] the
names of any countries that ... should be removed from the scope of a
proclamation." Exec. Order No. 13780 (March 6, 2017). Indeed, Iraq was able to
reform its vetting cooperation so as not to be included in the March 6, 2017 list.

See Stephen Dinan, Somali/and Pleads To Be Removedfrom Trump's Extreme
Vetting List, WASH. TIMES, Mar. 9, 2017,
http://www.washingtontimes.com/news/2017/mar/9/somalia-pleads-be-removedextreme-vetting-list/.

Again, in its 2016 Mobarez v. Kerry ruling, the District Court for the
District of Columbia recognized that it did not have jurisdiction to review
President Obama's inherent and exclusive authority in matters of war strategy,
national security, and foreign policy. Finding political question nonjusticiability,
the court refused to examine statutory and APA based challenges to the
Executive's decision to close the U.S. Embassy in Yemen without providing an
exit strategy and travel arrangement for American citizens living in Yemen to
safely return to American soil. Notwithstanding the compelling claims of
American citizens (many who were Muslim in faith practice) that a federal statute
11

and APA processes required that the president ensure their travel security, the
Court refused to review the case. The ruling acknowledged that the court did not
have the institutional competence or critical information required to judge the
dangerous conditions in Yemen - and thus it refused to second guess the
president's refusal to provide evacuation processes when closing the embassy.
Mobarez v. Kerry, Civil Action No. 2015-0516 (D.D.C. 2016).

Similarly, in the instant case, the president has determined that the
dangerous, violent, and absurdly chaotic conditions exist in Yemen and other listed
nations are such that the Executive Branch must freeze travel by aliens from those
nations. Amicus respectfully asserts that just as the judiciary may not second guess
the president's refusal to provide for embassy evacuations of American citizens out
of Yemen, neither should it second guess the new president's refusal to allow
embassy/consular processing of visa applications for aliens in Yemen and other of
the listed nations. In accessing that perpetually violent region of the world, this
C,ourt does not have better institutional competence, or better military strategy, or
better classified information than does the Executive Branch.
In Mobarez, the court used Zivotofsky v. Clinton, 132 S.Ct. 1421 (2012),
to explain why political-question abstention, notwithstanding the American-citizen
plaintiffs' reliance on a federal statute, executive order, and memorandum of
understanding, was required:
12

When deciding the claim merely requires the court to engage in
garden-variety statutory analysis and constitutional reasoning,
[the court] has authority to do so (i.e., the claim is justiciable), but a claim
that goes beyond those classically judicial functions to request that a court
override discretionary foreign-policy decisions that the political branches
. have made-howeve r framed-falls within the heartland of the
political-question doctrine ....
In the final analysis, then, this Court concludes that Plaintiffs' claims would
necessarily require the Court to "supplant a foreign policy decision of the
political branches with [this Court's] own unmoored determination" of
whether the situation calls for evacuation in a manner that renders Plaintiffs'
claims nonjusticiable under the political question doctrine ....
[T]the 'strategic choices directing the nation's foreign affairs are
constitutionally committed to the political branches[,]'and once it becomes
clear that a plaintiff wishes the courts to 'reconsider the wisdom of
discretionary foreign policy decisions[,]' the judicial inquiry must end.

Id. (quoting Zivotofsky v. Clinton, 132 S.Ct. 1421, 1427 (2012) and (quoting ElShifa v. United States, 607 F.3d 836, 841 (D.C. Cir. 2010) (en bane)). [Additional
. discussion of Zivotofsky v. Clinton's support for a nonjusticiability determination
in the instant case presented below at page 19.]
And consider also the District Court for the District of Columbia's political
question determination, made earlier in 2016, in the context of Yemen nationals
who asserted a directly-relevant federal tort claim statute to seek relief from
injuries that resulted from American national security actions in the Yemen:
"If plaintiffs' claims, 'regardless of how they are styled, call into question the

prudence of the political branches in matters of foreign policy or national security,'

13

then they must be dismissed." Jaberv. United States, No. 15-0840, 2016 WL
706183, at *4 (D.D.C. Feb. 22, 2016) (quoting El-Shifa, 607 F.3d at 841). It was
in respect for the separation of powers that the court refused to second guess
President Obama's decision to launch drone strikes which killed and wounded
Yemen nationals. The court was not competent to analyze the military and
classified information needed to review the tort-claims statutory claims. Id.
Similarly, President Trump's calculus in judging the hellish conditions presently
existing in Yemen, and other listed nations, and his decision temporarily freeze
Yemen nationals, and those from the other listed nations from obtaining a visa
and/or gaining actual entry onto American soil is nonjusticiable.
The en bane D.C. Circuit has offered fulsome explanation as to why the
federal judiciary should not review such matters: "The political question doctrine
bars our review of claims that, regardless of how they are styled, call into question
the prudence of the political branches in matters of foreign policy or national
security constitutionally committed to their discretion." El-Shifa, 607 F.3d 836,
842-43 (D.C. Cir. 2010) (en bane). The en bane D.C. Circuit was resolute:
"Courts are not a forum for reconsidering the wisdom of discretionary decisions
made by the political branches in the realm of foreign policy or national security."
Id. at 840.

14

To understand this litigation, reference must be made to the passionately
negative reaction of establishment and institutional elites to the candidacy of
Donald John Trump. A significant percentage of the established intellectual
leaders and Beltway hierarchy of both the Democratic and Republican parties,
declared themselves early to be - #NeverTrump. Now a broader group of elites in
our political, media and legal establishments seek to undermine President Trump's
nascent administration - particularly in relation to his war-policies and aliens. As
example, in a shocking act of insubordination, President Trump's Acting Attorney
General Sally Yates publically announced she was ordering her federal prosecutors
across the nation to not enforce the president's orders. Yates had accepted the
offer to serve as President Trump's Acting Attorney General while being well
aware of the president's positions on military strategy and alien entry. Tellingly,
Yates did not resign in respectful disagreement with the travel freeze, but rather
chose public insubordination. Senate Judiciary Chairman Charles Grassley was
among many to describe General Yates' action as nothing less than "sabotage."
Only history will tell if and when those establishment and Beltway elites, some
perhaps tormented from what has been termed Trump derangement syndrome,
come to eventually accept Donald Trump's election. See Victor Williams, Travel
Ban Challenges Present a Non-Reviewable Political Question, JURIST - FORUM,
Feb.15, 2017, http://jurist.org/forum/2017/02Nictor-Williams-travel-ban.php.
15

Following Harisiades v. Shaughnessy, however, this Court must honor the
choice of the electors and in "maintenance of a republican form of government"
acknowledge that it is the elected-president, not the unelected judiciary, that has
responsibilities to calculate war strategy and formulate war-related foreign policy.
In Harisiades, the Supreme Court clearly stated "any policy toward aliens is vitally
and intricately interwoven with contemporaneous policies in regard to the conduct
of foreign relations, the war power, and the maintenance of a republican form of
government." 342 U.S. 580, 588-89 (1952).
Amicus respectfully argues that it is not possible for the judiciary to
competently review the wisdom of the Executive Branch's calculus -- of war
strategy, national security, and foreign policy - made in implementing the travel
freeze. Conditions are such in these listed nations that there must be a fulsome
assessment of the prior administration's vetting procedures by the new president:
"[T]he risk of erroneously permitting entry of a national of one of these countries
who intends to commit terrorist acts or otherwise harm the national security of the
United States is unacceptably high." Exec. Order No. 13780 (March 6, 2016).
As referenced above, over 40 foreign-born aliens from the six listed nations
have been charged, tried and convicted of terrorist related acts in the United States
since September 2001, revealed by Sen. Jeff Sessions' Senate Judiciary Committee

Subcommittee on Immigration and the National Interest. Mathew Boyle, Senate-

Committee: 580 Terror Convictions Since 2001, BREITBARTNEWS, June 22, 2016,
http://www.breitbart.com/big-govemment/2016/06/22/senate-committee-580terror-convictions-in-u-s-since-911-380-terrorists-are-foreign-born/.
Although the Executive Branch should not have had to do so to avoid judicial
interference in its war-strategy calculus, the president's Executive Order
nevertheless references some of the hellish conditions existing in those listed
nations - conditions which require the travel freeze. Amicus respectfully asserts
that after the Court seriously considers these conditions, there should be no doubt
regarding its obligation to immediately dismiss the instant action:

i) Iran. Iran has been designated as a state sponsor of terrorism since 1984
and continues to support various terrorist groups, including Hizballah, Hamas,
and terrorist groups in Iraq. Iran has also been linked to support for al-Qa'ida
and has permitted al-Qa'ida to transport funds and fighters through Iran to
Syria and South Asia. Iran does not cooperate with the United States in
counterterrorism efforts.
(ii) Libya. Libya is an active combat zone, with hostilities between the
internationally recognized government and its rivals. In many parts of the
country, security and law enforcement functions are provided by armed militias
rather than state institutions. Violent extremist groups, including the Islamic
State of Iraq and Syria (ISIS), have exploited these conditions to expand their
presence in the country. The Libyan government provides some cooperation
with the United States' counterterrorism efforts, but it is unable to secure
thousands of miles of its land and maritime borders, enabling the illicit flow of
weapons, migrants, and foreign terrorist fighters. The United States Embassy
in Libya suspended its operations in 2014.

17

\

(iii) Somalia. Portions of Somalia have been terrorist safe havens. AlShabaab, an al-Qa'ida-affiliated terrorist group, has operated in the country for
years and continues to plan and mount operations within Somalia and in
neighboring countries. Somalia has porous borders, and most countries do not
recognize Somali identity documents. The Somali government cooperates with
the United States in some counterterrorism operations but does not have the
capacity to sustain military pressure on or to investigate suspected terrorists.
(iv) Sudan. Sudan has been designated as a state sponsor of terrorism since
1993 because of its support for international terrorist groups, including
Hizballah and Hamas. Historically, Sudan provided safe havens for al-Qa'ida
and other terrorist groups to meet and train. Although Sudan's support to alQa'ida has ceased and it provides some cooperation with the United States'
counterterrorism efforts, elements of core al-Qa'ida and ISIS-linked terrorist
groups remain active in the country.
(v) Syria. Syria has been designated as a state sponsor of terrorism since
1979. The Syrian government is engaged in an ongoing military conflict
against ISIS and others for control of portions of the country. At the same
time, Syria continues to support other terrorist groups. It has allowed or
encouraged extremists to pass through its territory to enter Iraq. ISIS continues
to attract foreign fighters to Syria and to use its base in Syria to plot or
encourage attacks around the globe, including in the United States. The United
States Embassy in Syria suspended its operations in 2012. Syria does not
cooperate with the United States' counterterrorism efforts.
(vi) Yemen. Yemen is the site of an ongoing conflict between the incumbent
government and the Houthi-led opposition. Both ISIS and a second group, alQa'ida in the Arabian Peninsula (AQAP), have exploited this conflict to expand
their presence in Yemen and to carry out hundreds of attacks. Weapons and
other materials smuggled across Yemen's porous borders are used to finance
AQAP and other terrorist activities. In 2015, the United States Embassy in
Yemen suspended its operations, and embassy staff were relocated out of the
country. Yemen has been supportive of, but has not been able to cooperate
fully with, the United States in counterterrorism efforts.
Exec. Order No. 13780 (March 6, 2017). There is no competent way for the
Court to reach the "unmanageable" analysis of statutes or rules involving alien visa

18

issuance or revocation or any other such ordinary immigration processes. Orderly
judicial abstention is critically important during this time of prolonged war, during
which recent presidents have struggled with implementing complicated foreign
policy and national security formulas related to the most unusual and difficult
conflict with radical terrorists.
In the instant case, Plaintiffs may not clear the political question bar simply
by recasting the president's calculus involved with a foreign policy and national
security determination in terms of an ordinary matter of immigration law and/or
APA immigration procedure. See Aktepe v. United States: 705 F.3d 1400 (11th Cir.
1997). Neither can Plaintiffs jump the abstention barrier by specious assertions of
due process and equal protection violations, United States v. Verdugo-Urquidez,
494 U.S. 259, 269 (1990) (citingJohnsonv. Eisentrager, 339 U.S. 763, 770 (1950), nor
by assertions of religious discrimination by slanderously questioning the motives
of the president for implementing the freeze. There are "legitimate reasons" for the
president's action and this Court can "not infer a discriminatory purpose." McCleskey

v. Kemp,481 U.S.279,298-9 9(1987).
Nor can the equally specious assertions by American citizens and permanent
residents who claim a legal interest in foreign-soil aliens' entry onto American soil
during the time of war justify this Court's interference with the Commander-in-

19

Chief decision. The president is simply placing a pause on the entry of foreign-soil
aliens from the very region of the world that is spawning our terrorist enemies.
Throughout our Republic's history, the Supreme Court has recognized that
some issues are committed by the Constitution's text to the exclusive discretion of
the elected political branches. When these political questions manifest, the
judiciary lacks jurisdiction to act in its prescribed and limited role as a court.
Congressman John Marshall, in 1800, warned his U.S. House colleagues that the
political branches would be "swallowed-up by the judiciary" without such judicial
self-restraint. Speech of the Honorable John Marshall (Mar. 7, 1800), 18 U.S. app.
note I, at 16-17 (1820) (cited by The Political Question Doctrine and the Supreme
Court of the United States (Nada Mourtada-Sabbah and Bruce E. Cain, eds.) 25 n.
10) 2007).
Three years later, U.S. Chief Justice John Marshall provided early guidance
as to the "rule of law to guide the court in the exercise of its jurisdiction."
Marshall offered this political question description: "By the constitution of the
United States, the president is invested with certain important political powers, in
the exercise of which he is to use his own discretion, and is accountable only to his
country in his political character, and to his own conscience." Marbury v. Madison,
5 U.S. 137, 165 (1803).

20

More recently, Seventh Circuit Judge Richard Posner artfully explained that
the doctrine acknowledges the Constitution's "assignment of exclusive decision
making responsibility to the nonjudicial branches of the federal government."

Miami Nation ofIndians v. Department ofInterior, 255 F.3d 342 (7th Cir. 2001).
Consider Judge Posner's abstention description:
The doctrine identifies a class of questions that either are not amenable to
judicial resolution because the relevant considerations are beyond the courts'
capacity to gather and weigh, or have been committed by the Constitution to
the exclusive, unreviewable discretion of the executive and/or legislative the so-called 'political' - branches of the federal government.

Id at 346. (citations and references omitted). Even more instructive is Richard
Posner's strong statement regarding the "nature of the questions that the court
would have to answer -

which asks whether the answers would be ones a federal

court could give without ceasing to be a court." Id at 347.
In the context of the national litigation challenging the travel freeze, it is fair
to consider that a court's zealous actions to force an answer to the patent political
question matches Posner's description of a court "ceasing" to be a court.
In Zivotofsky v. Clinton, the Supreme Court was discretely tasked with
determining a federal statute's constitutionality and the resulting ruling provides
helpful contrast as to the contours of the abstention requirement. 132 S. Ct. 1421
(2012). Unlike the instant case, the high court did not need to determine whether
21

there were judicially determinable and manageable standards for an interpretation,
analysis, and application of the relevant statute. Its determination was discrete as
to the statute's constitutionality. Indeed to make it clear that Zivotofsky was
decided in a narrow context, Associate Justice Sonia Sotomayor, in concurrence,
reiterated the importance of political-question abstention to the separation of
powers. Id at 1431-6 (2012). And Associate Justice Steve Breyer wrote to warn
how allowing judicial review in a broader foreign policy context can pose a
"serious risk" of "embarrassment, show lack of respect for the other branches, and
potentially disrupt sound foreign policy decision making." Id at 1437. Justice
Breyer urged careful consideration of the abstention option in foreign policy
matters involving the Middle East where ordinary administrative matters can have
far reaching implications:
Political reactions in that region can prove uncertain. And in that context it
may well turn out that resolution of the constitutional argument will require
a court to decide how far the statute, in practice, reaches beyond the purely
administrative, determining not only whether but also the extent to which
enforcement will interfere with the president's ability to make significant
recognition-related foreign policy decisions.

Id. at 1429-30.
The instant case requires far more than a straightforward determination of a
'

statute's constitutionality, as was the case in Zivotofsky. Rather, the Plaintiffs'
claims require this Court to review and second guess the Executive Branch's
22

complicated foreign policy and national security calculus in prosecuting the war on
terror. As discussed above, in Mobarez, the District of Columbia District of
Columbia acknowledged Zivotofsky 's assistance to cases such as the instant one.
Mobarez v. Kerry Civil Action No. 2015-0516 (D.D.C. 2016). Other courts have
recently made similar nonjusticiability determinations by contrasting the narrow
context of the Zivotosky ruling. See Ctr.for Biological Diversity v. Hagel, 80 F.
Supp. 991, 1011 (N.D. Cal. 2016) and Alaska v. Kerry, 972 F. Supp. 1111 (D.
Alaska 2013).
Judicial oversight of the newly-elected president's travel freeze violates
fundamental constitutional understandings regarding the separation of powers and
consent of the governed. The newly-elected president is vested with all executive
power by Article II,§ 1, and is made Commander-in-Chief of the Army and Navy
and state militias by Article II, § 2. The president has a most solemn duty to protect
the Republic's citizens from potential harm. Vigilance against alien enemies who
threaten to alight our shores, during a time of war, is the highest mandate of the
president. But, as argued above, the travel freeze has obvious "smart power''
foreign policy objectives that are also critical to the president's prosecution of the
war.
Providing such Executive energy for national security was a fundamental
reason for the 1787 Convention that led to replacement of the Articles of
23

Confederation. Consider Alexander Hamilton's argument for ratification of our
second Constitution in FEDERALIST 23:

The authorities essential to the common defense are these: to raise armies; to
build and equip fleets; to prescribe rules for the government of both; to
direct their operations; to provide for their support. These powers ought to
exist without limitation, because it is impossible to foresee or to define the
extent and variety ofnational exigencies, and the correspondent extent and
variety ofthe means which may be necessary to satisfy them. The
circumstances that endanger the safety of nations are infinite, and for this
reason no constitutional shackles can wisely be imposed on the power to
which the care of it is committed. This power ought to be coextensive with
all the possible combinations of such circumstances; and ought to be under
the direction of the same councils which are appointed to preside over the
common defense.
Alexander Hamilton, "No. 23: The Necessity ofa Government as Energetic as the

One Proposed to the Preservation of the Union, "in Clinton Rossiter, ed., The
Federalist Papers 148-153 (New York: Mentor, 1999).
From Marbury forward, the political question doctrine has developed to
preclude judicial consideration in a variety of issues with foreign relations
prominent. See e.g., Oetjen v. Central Leather Co., 246 U.S. 297, 303 (1918).

In the modem case of Baker v. Carr, 369 U.S. 186 (1962), the Supreme
Court identified six independent characteristics "[p]rominent on the surface of any
case held to involve a political question." The first two are often given the most
weight. The six include:

24

[1] a textually demonstrable commitment of the issue to a coordinate
political department;

[2] or a lack of judicially discoverable and manageable standards for
resolving it;
[3] or the impossibility of deciding without an initial policy determination
of a kind clearly for non-judicial discretion;
[4] or the impossibility of a court's undertaking of independent resolution
without expressing lack of the respect due to coordinate
branches of government;

[5] or an unusual need for unquestioning adherence to the political
decision already made;
[6] or the potentiality of embarrassment from multifarious pronouncements
by various departments on one question.

See Baker, 369 U.S. at 217.
As the D.C. Circuit has written, only one Baker criteria need manifest for an
abstention determination. See Snider v. Kissinger, 412 F.3d 190, 194 (D.C. Cir.
2005). Not one, not two, but all six Baker characteristics are patent for this Court's
consideration of the Plaintiffs' claims. If the Court goes beyond the textuallycommitted authority of the president, it risks becoming lost in the densest of a
modem political thicket. The Court will find no manageable standards to
competently decide the claims and will be forced to make policy determinations -without the skills or classified information needed for such determinations.

25

Again, there are no judicially manageable standards by which the Court can
endeavor to assess the President's interpretation of classified and military
intelligence and his resulting decision -

based on that intelligence -

whether to

restrict entry of foreign-soil aliens from the listed nations. And, the Court has no
ability to judge the layered foreign-policy objectives for the president's explicit
messaging to other nations of the cooperation expected in the war on terror if they
want to avoid being placed on the list - in future. As a matter of a required firstorder determination, the Court's inquiry into such Executive Branch business is
barred. Assertion that such an inquiry is necessary to an unmanageable, secondorder statutory analysis does not make the inquiry or the controversy justiciable.
It will be with little or no "respect" shown to coordinate political branches if

the Court seriously considers Plaintiffs' specious assertion that the president's
motivation for the freeze stems from religious bigotry. And review of this matter
is opposite to an "adherence" to the president's political decision already made.
The Court's engagement in such judicial interference also threatens political and
practical chaos. And by reviewing the instant matter, this Court will only add to
the "multifarious pronouncements" of courts across the nation regarding the travel
freeze.
Although both the president and the judiciary will suffer "embarrassment"
from such judicial intervention, it is the American people who will suffer a greater
26

--

----·--------4----·~----

danger of terrorist harm. And the American people's long asserted claims of
self-governance are cast into doubt if their newly-elected president is not given
room to do exactly what he promised to during 2016 election - better protect
citizens during this time of war.
Judicial declarations interfering with President Trump's decision on the
travel freeze will certainly create doubts among the international community as to
the resolve of the United States to adhere to this position. And the judicial
interference undercuts the freeze' s message to other nations regarding the new
administration's broader and significant shift to an "America first" war strategy
and foreign policy. See Lowry v. Regan, 676 F. Supp. 333, 340 (D.D.C. 1987). See

also, Smith v. Reagan, 844 F.2d 195, 199 (4th Cir. 1988).
Subsequent to Baker, the Supreme Court in Nixon v. United States, 506
U.S. 224 (1993) applied these Baker factors by instructing that the political
question analysis begins by "determin[ing] whether and to what extent the issue is
textually committed." 506 U.S. at 228. The Supreme Court rejected, as
nonjusticiable, a debenched federal judge's challenge to the Senate's exercise of its
Article I,§ 3, Clause 6 "sole" duty to "try" all impeachments. The Court refused
to review a procedurally problematic Senate impeachment trial process in which an
"evidence committee" of only 12 senators heard testimony while 88 senators
avoided jury duty. All 100 Senators were ultimately allowed to vote -- thumbs up
27

or down -- rendering the final removal verdict. The Court determined that it did
not have authority to review the shortcut Senate trial process used to strip U.S.
District Judge Walter Nixon of his tenured office and salary. The Court explicitly
ruled "the word 'try' in the Impeachment Trial Clause does not provide an
identifiable textual limit on the authority which is committed to the Senate" Id. at
239. Neither should this Court review the president's exercise of his exclusive
textual authority to implement war strategy and security-related foreign policy.
Just as the Supreme Court did in the Nixon, this Court should readily
determine that "there is no separate provision of the Constitution" 506 U.S. at 237,
that could be rationally argued to conflict with the President's textual authority to
utilize his war powers to implement the travel freeze. Foreign-soil aliens do have
Fifth Amendment rights (and they cannot bootstrap such rights from their alleged
contacts with American citizens and resident aliens). As Chief Justice William
Rehnquist wrote: "Indeed, we have rejected the claim that aliens are entitled to
Fifth Amendment rights outside the sovereign territory of the United States."
United States v. Verdugo-Urquidez, 494 U.S. 259, 269 (1990) (citingJohnsonv.
Eisentrager, 339 U.S. 763, 770 (1950). See also, Lega/Assistancefor Vietnamese
AsylumSeekersv.Dep'tofState, Bureau of Consular Affairs, 104 F.3d 1349, 1354
(D.C. Cir. 1997) and Azizi v. Thornburgh, 908F.2d1130, 1134 (2d Cir. 1990).

28

Neither do foreign-soil aliens have First Amendment rights to assert
religious discrimination claims. Protests that Donald Trump had bad motives in
his decision to institute the travel freeze - particularly those that allege a religious
bias against Muslims by including references to statements he made in the 2016
presidential election- are both specious and slanderous. Again, there are
"legitimate reasons" for the president's action and this Court can "not infer a
discriminatory purpose." McCleskey v. Kemp,481 U.S.279,298-9 9(1987).
It bears reemphasis that the travel freeze does not apply to aliens presently
residing in America, unlike the alien residents at issue in Yick Wo v. Hopkins, 118
U.S. 356, 369 (1886). And the instant action does not involve aliens having been
involuntarily taken to, and/or subject to prolonged detention on, American soil or
on foreign soil over which America has "plenary or exclusive jurisdiction." Rasul

v. Bush, 542 U.S. 446 (2004). Quite the opposite in factual context, the complaints
stem from foreign-soil aliens not being immediately allowed entry onto America's
soil. The Guantanamo Bay cases are not supportive of the Court's subject matter
jurisdiction in this matter. See Boumediene v. Bush, 53 US 723 (2008).
Goldwater v. Carter is the best example of the Supreme Court's most
efficient political question determination. 444 U.S. 996 (1979). Goldwater
involved a group of senators, led by Barry Goldwater, who sued President Jimmy
Carter to challenge his abrogation of a United States treaty with Taiwan. The
29

Supreme Court rejected the senators' attempt to interfere with an exclusive
Executive authority to conduct foreign policy. Without oral argument, the high
court announced: "The petition for a writ of certiorari is granted. The judgme nt of
the Court of Appeals is vacated and the case is remande d to the District Court with
directions to dismiss the complaint." Id. In a concurring statement, Associate
Justice William Rehnqu ist explained: "[T]he basic question presente d by the
petitioners in this case is 'politica l' and therefore nonjusticiable." Id. at 1002.
After neither oral argumen t or a review the merits regarding the senators '
challenge to the presiden t's foreign policy decision, Rehnquist stated:

An Art. III court's resolution of a question that is 'politica l' in character can
create far more disruption among the three coequal branches of Government
than the resolution of a question presented in a moot controversy. Since the
political nature of the questions presented should have precluded the lower
courts from considering or deciding the merits of the controversy, the prior
proceedings in the federal courts must be vacated, and the complaint
dismissed.

Id. at 1005-06.
Just a year before the American people were to replace a weaken ed
Executive with a new president who promised a different foreign policy (an
election that was held while Iran's religious tyrants held Americans hostage in the
U.S. Embassy), Justice Rehnquist upheld the authority of the president and the
legitimacy of the judiciar y by articulating the requirement for judicial abstention.
Justice Rehnqu ist's 1979 words provide the clearest argument for this Court's 2017
immediate dismissal.
30

But perhaps less "domesticated" abstention advocacy is needed to counsel
this Court's self-restraint in this important and highly public matter; "something
greatly more flexible, something of prudence, not construction and not principle."
The purest prudential strain of nonjusticiability still incubates in Alexander
Bickel's THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF
POLITICS. Professor Bickel described political questions as those issues which ask
the courts to evaluate policy and choose between outcomes - functions which the
judiciary as an institution is functionally incompetent to carry out.
In unmatched written aesthetic, Alexander Bickel offered a foundation

instead of Baker-like criteria:
In a mature democracy, choices such as this must be made by the
executive ... Such is the foundation, in both intellect and instinct, of the
political-question doctrine: the Court's sense of lack of capacity,
compounded in unequal parts of(a) the strangeness of the issue and its
intractability to principled resolution; (b) the sheer momentousness of it,
which tends to unbalance judicial judgment; (c) the anxiety, not so much that
the judicial judgment will be ignored, as that perhaps it should but will not
be; (d) finally ("in a mature democracy"), the inner vulnerability, the selfdoubt of an institution which is electorally irresponsible and has no earth to
draw strength from.
Alexander Bickel, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE
BAR OF POLITICS 184 (Yale 1986).
When considering the danger that could result from judicial interference in
the president's foreign policy and war strategy, it is disturbingly prescient that
31

Professor Bickel addressed "the anxiety, not so much that the judicial judgment
will be ignored but that it should but will not be." And certainly today, our
unelected judiciary, which has "no earth to draw strength from," would be wise to
stay out of the worsening and ugly mud-fight being waged by ideological elites
against Donald Trump.

Admittedly, the late Yale University Law professor's prudential poetry
unnerves the judge-centric consciousness so predominant at bar and in the legal
academy. All the more reason for this Court's deep consideration of its
fundamental truths.

There is a related -- but separate -consideration for this Court: The nation's
extreme need for finality in this matter. This need for finality weighs very heavily
in favor of a political question determination. As Judge Steven Williams reasoned
in 1991, when Nixon v. United States was before the D.C. Circuit: "Although the
primary reason for invoking the political question doctrine in our case is the textual
commitment ... the need for finality also demands it." Nixon v. United States, 938
F.2d 239, 245-46 (D.C. Cir. 1991)(citations omitted).

The cost of the judiciary answering political questions is often chaos: "If
claims such as Nixon's were justiciable, procedural appeals from every
impeachment trial would become routine ... the intrusion of the courts would
32

expose the political life of the country to months, or perhaps years, of chaos." Id at
246. Challenges to the president's travel freeze are now becoming "routine," with
adjudications challenging the travel restriction ongoing in several sister courts. It
must be clearly seen that "the intrusion of the courts would expose the political life
[and national security] of the country to months, or perhaps years, of [dangerous]
chaos." Id.

As what is termed Trump derangement syndrome appears virulently
contagious among lawyers (who need only the federal court filing fee to manifest
the disorder), finality in this area is needed to help retard future frivolous litigation
against Donald Trump's future war prosecution and related foreign policy efforts.
Attempts by the judiciary to interfere with President Trump's exercise of his
inherent and exclusive authorities threaten a serious breach of the separation of
powers. The judiciary does not have the institutional competence or information to
make decisions about what actions are required in order for the new president to
fulfill his responsibilities to prosecute this unusual, ongoing war.
Just as the D.C. Circuit explained, cases involving national security and
foreign relations "raise issues that 'frequently tum on standards that defy judicial
application' or 'involve the exercise of a discretion demonstrably committed to the

33

executive or legislature."' El-Shifa, 607 F.3d at 841 (quoting Baker, 369 U.S. at
221).

Article II grants the president war powers and security-related foreign
relations authorities "the exercise of which he is to use his own discretion, and is
accountable only to his country in his political character, and to his own
conscience." Marbury v. Madison. 5 U.S. 137, 165 (1803). In our 227 years of
self-government practice under our second constitution, only 45 persons have
known the unique obligation. It is a burden that requires the president to make
difficult calculations often based often on classified information. President Barack
Obama has now been relieved of that heavy burden, and a majority of"Electors
[have met and voted] in their respective states" to place the burden on the
shoulders (and on the heart) of another. U.S. CONST. AMEND. XII,§ 1.
This Court should not interrupt the new president's prosecution of the war
that he inherited from past administrations - from past presidents holding onto
tired and failed foreign policies. Amicus respectfully argues that the Plaintiffs'
claims should be immediately dismissed with a determination ofnonjusticiability.
Just as this argument began, it should finish by again acknowledging that
one can hardly bear to read many of the tragic narratives of aliens' hurt, fear, and
family separation as relayed in the travel freeze litigation across America. Sadly,
34

General Sherman remains right - "war is hell." During this time as our new
president re-orients prosecution of America's prolonged war with terrorism, while
the hellish states of civil war, violent disorder, and evil oppression only worsen in
the listed nations, our federal judiciary has its own high duty to perform -abstention.

'2017
1lliams, pro se
irst Lawyers Association
. mericafirstla ers.com
520 Baltimore Ave
Bethesda, MD 20816
[phone]
[e-mail]

35

CERTIFICATE OF SERVICE
I hereby certify that on March 13, 2017, the foregoing brief with relevant motion
was filed with the Clerk of this Court using the U.S. Mail (as prose prospective
Amicus is not a registered ECF user) and served on parties using electronic

transmittal, via their email addresses registered to their ECF accounts.

Is
irst Lawyers Association
www.americafirstlawyers.com
5209 Baltimore Ave,
Bethesda, MD 20816
[phone]
[e-mail]

36