SALT LAKE CITY — Five law professors at the University of Utah and Brigham Young University have signed a friend-of-the-court brief in support of the lawsuit against President Trump's executive order on immigration.
The professors filed the brief on Tuesday with the 9th Circuit Court of Appeals, where Trump has appealed a federal district judge's ruling. Part of the issue is whether the state of Washington has standing to sue over a federal action, an area of expertise for the Utah professors.
The brief did not take a position on Trump's order to ban immigrants from seven majority Muslim nations or his temporary suspension of the U.S. refugee program. Rather, the professors supported the state of Washington's legal right to challenge Trump's order because it harmed the state.
U. law professor Amy Wildermuth is a leading authority on state standing — she co-authored a 2007 article on the issue in the Northwestern Law Review — and spearheaded the brief.
Wildermuth said a friend saw that the district court had requested briefing on the state standing issue. Through a former colleague, she connected with a Seattle law firm, wrote the brief, then circulated it to other law professors knowledgeable on the issue of standing, common practice among professors with expertise they want to share with a court.
"Because state standing comes up infrequently," she said in an email, "in my writing, I have tried to do two things: (1) make sense of the limited precedent that is available and (2) make the strongest arguments based on that precedent for states to bring suit. I think that it is both important and healthy in our system of government to allow states to bring suits in the appropriate circumstances."
Wildermuth declined to take a position on Trump's order.
The other professors from the U.'s S.J. Quinney College of Law who signed the brief are Robin Kundis Craig, Lincoln L. Davies and Alexander T. Skibine. Lisa Grow Sun, a professor at BYU's J. Reuben Clark Law School, also signed the brief.
"The question of when states have standing to bring suits against the federal government is a complicated one," Sun said in an email, "so we thought it would be helpful to provide the court a framework for thinking about state standing and to explain why we believe the state of Washington has standing to sue."
Washington will lose money if some of its students cannot register at state universities, and if faculty and students are forced to cancel some overseas travel plans and lose nonrefundable deposits. There is no minimum amount on damage when it comes to establishing standing.
Sun spoke in her personal capacity, not as a representative of BYU or its sponsor, The Church of Jesus Christ of Latter-day Saints.
Sun, the first woman to graduate first in her class at Harvard Law School, offered her opinion on Trump's order, saying it "clearly discriminates on the basis of religion, despite the fact that it attempts to draw lines based on place, rather than religion. President Trump said during his campaign that he intended to enact a Muslim ban and, if Rudy Giuliani is to be believed, President Trump asked his advisors to craft a 'legal' way to implement a Muslim ban. You cannot paper over or cure a discriminatory purpose (to ban Muslims) by trying to craft the formal legal language in a more neutral way. The intent to discriminate on the basis of religion remains."