Document Type
Brief
Publication Date
6-13-2017
Abstract
Amici are constitutional law scholars. They submit this brief to identify a distinct legal principle compelling the conclusion that the revised executive order is unconstitutional: the long-settled prohibition on governmental acts based on animus toward a particular religious group.
The court of appeals safeguarded the religious liberty guaranteed by the Constitution by finding Executive Order No. 13,780, 82 Fed. Reg. 13,209 (Mar. 9, 2017) (the "Order") unconstitutional and affirming the preliminary injunction granted by the district court. That liberty should not be imperiled by granting the Government's motion for a stay. The Fourth Circuit relied on McCreary County v. ACLU of Ky., 545 U.S. 844 (2005), and Lemon v. Kurtzman, 403 U.S. 602 (1971), to find that the Order lacked a secular purpose-that, instead, its "primary purpose is religious," namely effectuating President Trump's stated intent to "ban Muslims from the United States." App. 48a-49a. 2 Under settled precedent, that conclusion was correct and should be affirmed.
The animus presented in this case does not require the Court to peer into the "veiled psyche of government officers[.]" McCreary, 545 U.S. at 863. "[T]his wolf comes as a wolf." Morrison v. Olson, 487 U.S. 654, 699 (1988) (Scalia, J., dissenting). President Trump has repeatedly and ostentatiously expressed the animus that motivated his promises, and subsequent acts, to ban persons of a single faith from entering the United States. For religious liberty to endure, the Order must never go into effect.
Recommended Citation
Primus, Richard, "Trump v. International Refugee Assistance Project, et al.: Motion for Leave to File Amicus Brief in Three Related Proceedings and Brief of Constitutional Law Scholars as Amici Curiae Opposing the Government's Application for Stay" (2017). Appellate Briefs. 36.
https://repository.law.umich.edu/briefs/36
Comments
Amicus: Brettschneider, Professor Corey; Schwartzman, Professor Micah; Tebbe, Professor Nelson; Berg, Professor Thomas C.; Bhagwat, Professor Ashutosh; Blasi, Professor Vincent A.; Dorf, Professor Michael C.; Driver, Professor Justin; Edelman, Professor Peter; Eskridge, Professor William; Fiss, Professor Owen M.; Flanders, Professor Chad; Fontana, Professor David; Franke, Professor Katherine; Gedicks, Professor Frederick Mark; Gordon, Professor Sarah Barringer; Greene, Professor Abner S.; Hellman, Professor Deborah; Hill, Professor B. Jessie; Kessler, Professor Jeremy; Kutz, Professor Christopher; Leib, Professor Ethan J.; Levinson, Professor Sanford V.; Litman, Professor Leah; Lupu, Professor Ira C.; McClain, Professor Linda; Michaels, Professor Jon D.; Michelman, Professor Frank I.; Perry, Professor Michael; Powell, Professor Catherine; Primus, Professor Richard; Rahman, Professor K. Sabeel; Robinson, Professor Zoe; Sager, Professor Lawrence; Schragger, Professor Richard; Sepper, Professor Elizabeth; Shiffrin, Professor Seana; Shiffrin, Professor Steven H.; Siegel, Professor Reva; Smith, Professor Peter J.; Somin, Professor Ilya; Stolzenberg, Professor Nomi M.; Stone, Professor Geoffrey R.; Strauss, Professor David A.; Tribe, Professor Laurence H.; Tuttle, Professor Robert