Today we filed in the U.S. Supreme Court an amicus brief supporting President Trump’s challenge to the Fourth Circuit decision which approved a Maryland judge’s injunction against his Executive Order. Our brief supports both President Trump’s application to stay this injunction, and supports his petition for certiorari. The brief addressed three broad points.
First, we explain how the rationale underlying the district and circuit court decision undermines the President’s inherent and statutory authority to control immigration into the United States. We ask the Court to consider whether this rationale could also be applied to enjoin Presidentially ordered military operations against Islamic nations.
The brief then analyzes the President’s broad discretionary power to ban entry into the United States. It suggests that if the Courts assume the power to scrutinize the motives behind an Executive Order, that the President could be expected to scrutinize the motives behind judges who manipulate their decisions based on their personal political convictions. (In truth, the President’s First Executive Order was fully lawful, and the President could ban the entry of Muslims as a class, had he desired to do so.)
Lastly, we explain that there is no basis whatsoever for the court to rely on the Establishment Clause, which was designed only to ban a government “Establishment” of religion, not acts disfavoring religion, which were addressed by the Free Exercise Clause.