We are only firm to have filed six Amicus Briefs supporting Trump Immigration Executive Orders
in all three major appeals - in 9th Circuit, 4th Circuit, and Supreme Court.
October 4, 2017
Washington v. Trump I - No. 17-35105
Ninth Circuit (February 6, 2017)
Washington v. Trump II - No. 17-35105
Ninth Circuit (February 16, 2017)
IRAP v. Trump - No. 17-1351
Fourth Circuit (March 31, 2017)
Hawaii v. Trump - No. 17-15589
Ninth Circuit (April 21, 2017)
Trump v. IRAP - Nos. 16-1436 & 16A1190
U.S. Supreme Court Petition (June 12, 2017)
Trump v. IRAP & Trump v. Hawaii - Nos. 16-1436 & 16-1540
U.S. Supreme Court Merits (August 17, 2017) |
Between February and August, our firm filed a total of six amicus curiae briefs in federal appellate courts, defending the legality of President Trump's
executive orders restricting immigration and refugees from certain terror-prone countries. These included three briefs in the U.S. Court of Appeals for
the 9th Circuit, one in the 4th Circuit, and two in the U.S. Supreme Court.
The procedural history of what is colloquially known as the "Trump travel ban" is complicated. The first two of our briefs addressed President Trump's
first Executive Order No. 13769 (January 27, 2017). Our next four briefs addressed President Trump's second Executive Order No. 13780 (March 16, 2017).
Recently, the Supreme Court agreed to consider appellate decisions from the 4th and 9th Circuits involving the second Executive Order. On September 12,
the Court ordered a partial stay of the injunctions below, permitting much of the travel ban to go into effect. However, almost two weeks after that
occurred, on September 25, President Trump again issued a third Executive Order, adjusting the countries on the list, along with making other changes.
In response, the Supreme Court has canceled oral argument previously scheduled for October 10, and has now asked the parties to submit letters explaining
whether the Court should still hear the case, or whether the issues raised below are now moot. Those letters are due to be filed tomorrow - Thursday,
October 5. After consideration of the parties' positions, the Court will decide how to proceed. We do not expect that the Court will send the case
back to the lower courts, but the issues it considers going forward might change.
In addition to raising numerous issues specific to each particular case, our six amicus curiae briefs on this topic generally have followed three core themes:
First, we have taken issue with the judges on the lower court who have taken it upon themselves to decide, based on past statements on the campaign trail,
that President Trump must hate Muslims and that his executive orders are based on his personal "animus." As we argued, it is not up to judges to psychoanalyze
and impugn the motivations of the Executive Branch of government. If Judges may ignore Presidential actions based on perceived animus, than why should not
the President examine the personal motives of the liberal judges who are now issuing unprecedented decisions which undermine his policies, and refuse to
follow their decisions based on their personal, improper motives that underlie their decisions? In undermining the President's agenda for purely personal
political reasons, those federal judges have asserted their own will over the will of the American people who elected President Trump.
Additionally, our briefs have focused on the fact that several of the plaintiffs in the courts below argued that the travel ban violates the First Amendment's
"No Establishment" of religion clause. However, as only we have pointed out, their arguments have centered around how the travel ban allegedly disfavors the
Muslim religion - rather than how it favors a religion other than Islam. Allegations disfavoring a religion is a "Free Exercise" of religion claim, not a No
Establishment claim. But, a Free Exercise claim would be virtually impossible to prove here because the travel ban does not prohibit any religious exercise,
as proscribed by the Free Exercise Clause. This is why the plaintiffs would prefer to camouflage the true nature of their freedom of religion claims.
Finally, we have also argued and extensively briefed why the President of the United States could not be sued personally, as the plaintiffs had done in both
cases. In fact, the district court judges in both cases had issued injunctions against the President himself. The Department of Justice noted this issue
in its brief, but only in passing. Our brief engaged in a much more lengthy analysis of the issue, explaining why the President could not be sued. We
were pleased that both the Fourth and Ninth Circuits agreed with our argument and dropped President Trump from the district court injunctions.
This is truly a fascinating case. We pointed out to the Court that plaintiffs' counsel in oral argument even admitted his clients would never have brought
this case if President Obama had issued the very same executive orders as did President Trump. This, then, is a political fight being illegitimately waged
in the federal courts.
President Trump's first term of office is far from over, and this issue no doubt will continue to percolate until it is resolved by the Supreme Court, if
not in the cases that are now before the Court, then in a case brought against enforcement of President Trump's September 25 order. We wait to see what
the parties say tomorrow in their letters to the Court. If the Court decides to receive additional briefing, we plan on filing another amicus brief for
our clients.
Our briefs have been filed on behalf of Citizens United Foundation, Citizens United, Conservative Legal Defense and Education Fund, Public Advocate, Gun
Owners Foundation, Gun Owners of America, U.S. Justice Foundation, English First Foundation, English First, U.S. Border Control Foundation, and Policy
Analysis Center.
Additional information about these appeals appeared in our May 13, 2017 article: "Judicial Imperialism Vs. America: Report from The Immigration Front."
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