Amicus Curiae Brief — Donald J. Trump, President of the United States, et al., Petitioners v. Hawaii, et al.

No. 17-965

================================================================

In The

Supreme Court of the United States

-----------------------------------------------------------------DONALD J. TRUMP, et al.,

Petitioners,

v.

STATE OF HAWAII, et al.,

Respondents.

-----------------------------------------------------------------On Writ Of Certiorari To The

United States Court Of Appeals

For The Ninth Circuit

-----------------------------------------------------------------BRIEF OF AMICI CURIAE IMMIGRATION LAW

SCHOLARS ON THE TEXT AND STRUCTURE OF

THE IMMIGRATION AND NATIONALITY ACT IN

SUPPORT OF RESPONDENTS

-----------------------------------------------------------------DEBORAH ANKER*

Clinical Professor of Law

SABRINEH ARDALAN*

Assistant Clinical Professor

of Law

PHILIP L. TORREY*

Lecturer on Law and

Managing Attorney

HARVARD IMMIGRATION AND

REFUGEE CLINICAL PROGRAM

HARVARD LAW SCHOOL

6 Everett Street

Cambridge, MA 02138

(617) 384-8165

danker@law.harvard.edu

sardalan@law.harvard.edu

ptorrey@law.harvard.edu

FATMA MAROUF*

Counsel of Record

Professor of Law

TEXAS A&M UNIVERSITY

SCHOOL OF LAW

1515 Commerce Street

Fort Worth, TX 76102

(817) 212-4123

fatma.marouf@

law.tamu.edu

*Filed in an individual capacity. University affiliation is for

identification only.

================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

GEOFFREY HOFFMAN*

Director, Immigration Clinic

Clinical Associate Professor of Law

UNIVERSITY OF HOUSTON LAW CENTER

4604 Calhoun Road, Room 56, TU-II

Houston, TX 77204

(713) 743-2094

ghoffman@central.uh.edu

ALAN HYDE*

Distinguished Professor of Law

and Sidney Reitman Scholar

RUTGERS LAW SCHOOL

123 Washington Street

Newark, NJ 07102

(973) 353-3163

hyde@law.rutgers.edu

KARLA MCKANDERS*

Clinical Professor of Law

VANDERBILT LAW SCHOOL

131 21st Avenue South

Nashville, TN 37203

(615) 322-3092

karla.mckanders@vanderbilt.edu

*Filed in an individual capacity. University

affiliation is for identification only.

Of Counsel

NATHAN MACKENZIE

225 Walden Street, #4N

Cambridge, MA 02140

(978) 852-8626

nmackenzie@jd17.law.harvard.edu

i

TABLE OF CONTENTS

Page

INTEREST OF AMICI CURIAE .........................

1

SUMMARY OF THE ARGUMENT .....................

1

ARGUMENT ........................................................

4

I.

II.

CONGRESS HAS ESTABLISHED A SPECIFIC IMMIGRATION ADMISSION SYSTEM, WHICH THE PRESIDENT CANNOT

UNILATERALLY REWRITE ......................

4

A. Congress Has Primary, If Not Exclusive,

Power to Regulate Immigration ............

5

B. The President’s Delegated Authority

Does Not Allow Him to Circumvent

Congress’s Deliberately Crafted Admission System ....................................

7

CONGRESS HAS DELEGATED POWERS OVER IMMIGRATION TO THE

PRESIDENT THAT ARE SIGNIFICANT,

BUT NOT UNLIMITED ............................ 12

A. Congress Has Delegated Certain Powers Over Immigration Enforcement,

Adjudication, and Visa Processing to

the President ....................................... 12

B. The Delegation of Authority Under

1182(f ) Does Not Provide the President Unlimited Power ......................... 15

1. The Plain Language of 1182(f) Constrains the President’s Power .......... 16

ii

TABLE OF CONTENTS – Continued

Page

2. Prior Practice Confirms the Constraints on the President’s Power

Under 1182(f ) ................................. 19

3. The Purported Purposes of EO-3

Are Inconsistent with the Constraints on the President’s Power

Under 1182(f) .................................. 22

C. Section 1185(a)(1) Does Not Provide

the President Authority to Impose a

Nationality-Based Ban on Entry ......... 25

D. The INA’s Nondiscrimination Provision

Further Constrains the President’s Delegated Authority Under 1182(f) and

1185(a)(1) ............................................. 28

CONCLUSION..................................................... 33

APPENDIX

List of Amici ......................................................... App. 1

iii

TABLE OF AUTHORITIES

Page

CASES

Abourezk v. Reagan, 785 F.2d 1043 (D.C. Cir.

1986) .................................................................. 10, 11

Arizona v. United States, 567 U.S. 387 (2012) .............5

Dada v. Mukasey, 554 U.S. 1 (2008) .............................6

Fiallo v. Bell, 430 U.S. 787 (1977) ................................5

Fong Yue Ting v. United States, 149 U.S. 698

(1893) ..................................................................... 2, 5

Haitian Refugee Ctr. v. Civiletti, 503 F. Supp. 442

(S.D. Fla. 1980) ........................................................32

Hawaii v. Trump, 265 F. Supp. 3d 1140 (D. Haw.

2017) ........................................................................25

Hawaii v. Trump, 878 F.3d 662 (9th Cir. 2017) ... passim

Hawaii v. Trump, 138 S. Ct. 923 (2018) .....................25

Hillman v. Maretta, 133 S. Ct. 1943 (2013) ...............30

Int’l Refugee Assistance Project v. Trump, 857

F.3d 554 (4th Cir. 2017) ...........................................33

Int’l Refugee Assistance Project v. Trump, 265

F. Supp. 3d 570 (D. Md. Oct. 17, 2017) ...................28

Int’l Refugee Assistance Project v. Trump, 883

F.3d 233 (4th Cir. 2018) ................................... passim

Kent v. Dulles, 357 U.S. 116 (1958).............................19

Kerry v. Din, 135 S. Ct. 2128 (2015) ...........................13

Kleindienst v. Mandel, 408 U.S. 753 (1972) ...............14

Lopez v. Gonzales, 549 U.S. 47 (2006)....................... 4, 6

iv

TABLE OF AUTHORITIES – Continued

Page

Martinez v. Plumbers & Pipefitters Nat’l Pension

Plan, 795 F.3d 1211 (10th Cir. 2015) ......................17

Marx v. General Revenue Corp., 568 U.S. 371

(2013) .......................................................................16

Morton v. Mancari, 417 U.S. 535 (1974) .....................31

NLRB v. Noel Canning, 134 S. Ct. 2550 (2014) .........19

Olsen v. Albright, 990 F. Supp. 31 (D.D.C. 1997) .......28

Puello v. Bureau of Citizenship & Immigr. Servs.,

511 F.3d 324 (2d Cir. 2007) .....................................29

RadLAX Gateway Hotel, LLC v. Amalgamated

Bank, 566 U.S. 639 (2012) .......................................11

Regan v. Wald, 468 U.S. 222 (1984) ............................21

United Air Lines, Inc. v. Civil Aeronautics Bd.,

198 F.3d 100 (7th Cir. 1952) ....................................17

United States ex rel. Knauff v. Shaughnessy, 338

U.S. 537 (1950) ...................................................... 5, 6

United States v. Updike, 281 U.S. 489 (1930) ............17

Walters v. Metro. Educ. Enters., Inc., 519 U.S. 202

(1997) .......................................................................16

Whitman v. American Trucking Assns., Inc., 531

U.S. 468 (2001) ........................................................27

Youngstown Sheet and Tube v. Sawyer, 343 U.S.

579 (1952) ............................................................ 6, 19

Zivotofsky ex rel. Zivotofsky v. Kerry, 135 S. Ct.

2076 (2015) ........................................................ 11, 19

v

TABLE OF AUTHORITIES – Continued

Page

CONSTITUTIONAL PROVISIONS

U.S. Const. art. I............................................................5

U.S. Const. art. II ........................................................19

STATUTES

6 U.S.C. § 202 ..............................................................13

8 U.S.C. § 1101 ..............................................................8

8 U.S.C. § 1103 ............................................................13

8 U.S.C. § 1151 ..............................................................7

8 U.S.C. § 1152 ............................................ 3, 29, 30, 31

8 U.S.C. § 1153 ..............................................................7

8 U.S.C. § 1182 .................................................... passim

8 U.S.C. § 1185 .................................................... passim

8 U.S.C. § 1187 ............................................................23

8 U.S.C. § 1202 ...................................................... 14, 23

8 U.S.C. § 1227 ............................................................13

8 U.S.C. § 1229 ............................................................13

8 U.S.C. § 1255 ............................................................13

8 U.S.C. § 1361 ............................................................24

REGULATIONS

22 CFR § 40.6..............................................................24

vi

TABLE OF AUTHORITIES – Continued

Page

OTHER AUTHORITIES

Adam B. Cox & Cristina M. Rodríguez, The President and Immigration Law, 119 Yale L.J. 458

(2009) .......................................................................12

Foreign Relations Authorization Act, Pub. L. No.

95-426, 92 Stat. 992 (Oct. 7, 1978) ..........................27

Gerald L. Neuman, Terrorism, Selective Deportation and the First Amendment After Reno v.

AADC, 14 Geo. Immigr. L.J. 313 (2000) ....................8

H.R. 8662, 89th Cong., 1st Sess. (1965) .....................29

H.R. Rep. No. 101-955 (1990) .....................................11

Immigration & Nationality Act of 1952, Pub. L.

No. 82-414, 66 Stat. 190 (June 27, 1952) .................27

Kate M. Manuel, Cong. Research Serv., R44743,

Executive Authority to Exclude Aliens (2017).........20

President’s Announcement of Sanctions Against

Iran, 16 Weekly Comp. of Pres. Doc. 611 (Apr.

7, 1980) ....................................................................20

Proclamation No. 5517, 51 Fed. Reg. 30,470

(Aug. 22, 1986) ................................................... 20, 21

Proclamation No. 9645, 82 Fed. Reg. 45,161

(Sept. 24, 2017) ................................................ passim

Reagan Orders Aliens Stopped on the High Sea,

NY Times, Sept. 30, 1981 ........................................21

vii

TABLE OF AUTHORITIES – Continued

Page

Remarks at the Signing of the Immigration Bill,

Liberty Island, New York, 546 Pub. Papers

1037 (Oct. 3, 1965)...................................................28

S.500/H.R. 2580, 89th Cong., 1st Sess. (1965) ...........29

1

INTEREST OF AMICI CURIAE

Amici are immigration law scholars. They teach

immigration law, have written numerous scholarly articles on immigration law, and understand the practical aspects of immigration law through client

representation. They submit this brief to demonstrate

that the text and structure of the Immigration and Nationality Act (“INA”) constrain the authority delegated

to the executive branch under 8 U.S.C. §§ 1182(f ) and

1185(a)(1), rendering Proclamation 9645, 82 Fed. Reg.

45,161 (Sept. 27, 2017) (“EO-3”), ultra vires.1

------------------------------------------------------------------

SUMMARY OF THE ARGUMENT

While Congress has delegated broad powers to the

executive branch concerning the enforcement of immigration laws, the INA’s text, structure, and usage limit

those powers. The scope of authority delegated under

1182(f ) can only be reconciled with the INA as a whole

if that provision is construed to apply in exigent

1

Pursuant to Sup. Ct. R. 37.6, amici state that no party’s

counsel authored the brief in whole or in part; no party’s counsel

contributed money that was intended to fund preparing or submitting the brief; and no person – other than counsel for amici –

contributed money that was intended to fund preparing or submitting the brief. A Motion for Leave to File is not required pursuant to Sup. Ct. R. 37.2(a) because counsel for Respondents has

consented in writing to the filing of this amici curiae brief, and

Petitioners lodged their blanket consent to amici curiae briefs

with the Clerk. A complete list of amici is set forth in the appendix

to this brief.

2

circumstances involving diplomacy or military affairs,

where the President’s power is at its peak. Further, the

grant of authority under 1185(a)(1) must similarly be

construed in its appropriate context as pertaining to

procedural requirements for entering and departing

the United States – not the power to implement a

wholesale ban on issuing visas based on nationality. 8

U.S.C. § 1185(a)(1). The Government’s assertion that

the INA authorizes the actions outlined in EO-3 is thus

unfounded.

Part I explains that Congress has primary authority over immigration policy and argues that the President may not unilaterally alter the categories of aliens

who may be admitted to the United States as immigrants (permanent residents) and nonimmigrants

(temporary visitors). See Fong Yue Ting v. United

States, 149 U.S. 698, 713-14 (1893) (“The power to exclude or to expel aliens . . . is to be regulated by treaty

or by act of congress, and to be executed by the

executive authority according to the regulations so established . . . .”). Nor is the President authorized to

override the grounds for exclusion legislated by Congress, including the provisions barring admission

based on national security and foreign policy concerns.

While Congress has delegated broad power to exclude

noncitizens under these grounds, it has also legislated

restrictions on that power.

Part II discusses the authority that Congress has

delegated to the executive branch over immigration

enforcement, adjudication, and visa processing, and

shows why 1182(f ) and 1185(a) do not provide the

3

President the unchecked power that the Government

claims. This section discusses the plain language of

1182(f ) and how specific words in the statute constrain

the President’s authority, prohibiting an indefinite, nationality-based ban. We argue that the text of 1182(f ),

together with its prior usage, limit its application. This

interpretation gives the President the authority and

flexibility needed to respond to exigent situations

without subverting the INA as a whole.

Here, there is no exigent circumstance or appropriate detrimental finding that would warrant the type

of sweeping ban that EO-3 dictates. Furthermore,

the purported purposes of EO-3, which pertain to the

designated countries’ information-sharing and identity-management practices, are not related to the restrictions actually imposed. Congress has already

determined what to do if a foreign country’s documentation is inadequate: its nationals must apply individually for visas, at which point applicants are vetted on

a case-by-case basis. EO-3 rewrites that rule by indiscriminately prohibiting the issuance of visas to nationals of such countries.

The INA’s nondiscrimination provision further

constrains the President’s delegated authority under

1182(f ) and 1185(a)(1). See 8 U.S.C. § 1152(a)(1)(A).

When 1182(f ) was enacted in 1952, exclusion of entire

nations was a central feature of U.S. immigration law.

In 1965, Congress amended the INA to end the discriminatory barred zones and national origin quotas.

The abolition of national origin quotas was an important change in U.S. immigration policy – not one

4

that the President is free to ignore. Congress definitively abandoned a system rooted in national origin

discrimination in favor of a more equitable admission

system based primarily on family unification. This

change would be meaningless if the President had unchecked power under 1182(f ) and 1185(a)(1) to override the principle of nondiscrimination embedded in

the INA. Thus, the text and structure of the INA as a

whole unambiguously doom EO-3.

------------------------------------------------------------------

ARGUMENT

I.

CONGRESS HAS ESTABLISHED A SPECIFIC IMMIGRATION ADMISSION SYSTEM, WHICH THE PRESIDENT CANNOT

UNILATERALLY REWRITE.

Congress has legislated specific categories of aliens who may and may not be admitted to the country

based on certain criteria. The President cannot effectively repeal that system by rewriting the rules of admission via executive fiat. Where, as here, Congress

has repeatedly legislated to limit the President’s statutory authority related to the admissions system, he is

not free to ignore those constraints. The provisions delegating authority to the President must be construed

in light of the INA as a whole. As this Court recognized

in Lopez v. Gonzales, reading provisions of the INA in

isolation could lead to “so much trickery, violating the

cardinal rule that statutory language must be read in

context.” 549 U.S. 47, 56 (2006) (citations and internal

quotation marks omitted).

5

A. Congress Has Primary, If Not Exclusive, Power to Regulate Immigration.

Pursuant to the U.S. Constitution, primary responsibility over immigration policy-making lies with

Congress, which has the power to “establish an uniform Rule of Naturalization,” “regulate Commerce

with foreign Nations,” “declare War,” and prohibit

“[t]he Migration or Importation of such Persons as any

of the States now existing shall think proper to admit.”

U.S. Const. art. I, § 8, cl. 3, 4, 11 & § 9, cl. 1. The Court

has recognized that these enumerated powers, combined with the Necessary and Proper Clause, give Congress primary – if not exclusive – authority to regulate

the admission of aliens. See Hawaii v. Trump, 878 F.3d

662, 685 (9th Cir. 2017), cert. granted, No. 17-965, 2018

WL 324357 (U.S. Jan. 19, 2018) (describing Congress’s

power, as compared to the executive’s, as “the primary,

if not exclusive,” power over immigration) (citing Arizona v. United States, 567 U.S. 387, 409 (2012)); see also

Fiallo v. Bell, 430 U.S. 787, 792 (1977) (“[O]ver no conceivable subject is the legislative power of Congress

more complete than it is over the admission of aliens.”

(internal quotation marks omitted)); Fong Yue Ting,

149 U.S. at 713-14.

The President cannot use his delegated authority

under 1182(f ) and 1185(a)(1) of the INA to undermine

the admissions system Congress created.2 See

2

Although the Government invokes United States ex rel.

Knauff v. Shaughnessy, 338 U.S. 537, 539 (1950) to argue that the

President has inherent authority over admission, Knauff is inapposite. In that case, the President denied entry to a single German

6

Youngstown Sheet and Tube v. Sawyer, 343 U.S. 579,

637 (1952) (Jackson, J., concurring). The language of

1182(f ) and 1185(a)(1) must be interpreted in a manner consistent with other specific provisions of the INA

and the statute as a whole to give them proper meaning without allowing them to be used as a backdoor to

override the INA’s admission system. See, e.g., Dada v.

Mukasey, 554 U.S. 1, 16 (2008) (“In reading a statute

we must not look merely to a particular clause, but consider in connection with it the whole statute.” (internal

quotation marks omitted)); Lopez, 549 U.S. at 56

(“[O]ur interpretive regime reads whole sections of a

statute together to fix on the meaning of any one of

them.”).

Interpreting 1182(f ) and 1185(a)(1) in the context

of the entire INA demonstrates that these provisions

do not authorize the blanket ban on immigrant visas

and the improper and contradictory restrictions on

nonimmigrant visas set forth in EO-3. In the sixty-five

years since the enactment of 1182(f ), Congress has repeatedly enacted restrictions on executive discretion

that would make no sense if the President were free to

national pursuant to a 1941 Act that authorized the President to

impose additional restrictions on entry and departure “during the

national emergency proclaimed May 27, 1941.” See Knauff, 338

U.S. at 539. The case thus stands for the uncontroversial proposition that the President, authorized by a clear congressional mandate, may deny entry to an individual during a proclaimed

national emergency, following an individualized finding of possible harm to the public interest. Id. at 544. EO-3, in contrast, bans

approximately 150 million foreign nationals in the absence of a

national emergency, in direct contravention of a specific statutory

scheme, and without any individualized findings.

7

ignore them. See Hawaii, 878 F.3d at 685 (concluding

that “the Proclamation conflicts with the statutory

framework of the INA by indefinitely nullifying Congress’s considered judgments on matters of immigration”); International Refugee Assistance Project v.

Trump, 883 F.3d 233, 295 (4th Cir. 2018) (Gregory, J.,

concurring) (comparing “the Government’s interpretation of § 1182(f ) and § 1185(a)(1) [as] authoriz[ing] the

President to prevent significant portions of the INA

from having any effect, indefinitely” to “the unconstitutional line item veto”).

B. The President’s Delegated Authority

Does Not Allow Him to Circumvent Congress’s Deliberately Crafted Admission

System.

The INA provides detailed and delimited categories of aliens who may be admitted to the United

States, which the President cannot unilaterally alter.

For individuals seeking permanent residence, Congress has established three primary pathways to obtaining an immigrant visa: family relationships,

employment, and the diversity lottery. 8 U.S.C.

§ 1153(a)-(c). These visas are issued pursuant to statutorily established methods for calculating the number of visas available, see 8 U.S.C. §§ 1153(a)-(b),

1151(b)(2)(A)(i), and for determining in what order individuals will be admitted. See, e.g., 8 U.S.C. § 1153(c)

(providing a formula to determine admission in a random order, from certain underrepresented geographical regions). For nonimmigrants, who comprise the

8

vast majority of individuals admitted to the United

States, Congress has created an equally specific system – an alphabet soup of visas for individuals coming

to the United States for tourism, business, investment,

study, training, temporary work, artistic performances,

athletic events, and exchange programs, among others.

8 U.S.C. § 1101(a)(15).

Just as Congress has specified categories for admission, so too has it specified categories of aliens who

may not be admitted. 8 U.S.C. § 1182. Those inadmissibility grounds render certain aliens “ineligible to receive visas and ineligible to be admitted to the United

States,” subject to specified exceptions and discretionary waivers. 8 U.S.C. § 1182(a). The inadmissibility

grounds include, but are not limited to, categories

based on: criminal convictions; crime-related conduct;

immigration violations; fraudulent misrepresentation;

national security; and foreign policy. See 8 U.S.C.

§ 1182(a). Of those, the national security and foreign

policy inadmissibility grounds are the most critical for

interpreting the President’s authority under 1182(f )

and 1185(a)(1).

The Government justifies EO-3 as necessary to

protect national security, but Congress has already addressed that concern. The national security inadmissibility ground at 8 U.S.C. § 1182(a)(3)(B) provides broad

definitions of “terrorist activity” and “engag[ing] in terrorist activity,” according consular and immigration officials wide discretion in applying those labels to

render individuals inadmissible. See Gerald L. Neuman, Terrorism, Selective Deportation and the First

9

Amendment After Reno v. AADC, 14 Geo. Immigr. L.J.

313, 321-22 (2000). For instance, any organization

may qualify as a Tier III terrorist organization if

it is “a group of two or more individuals, whether

organized or not, which engages in, or has a subgroup which engages in [terrorist activity].” 8 U.S.C.

§ 1182(a)(3)(B)(vi)(III). The definition of “terrorist

activity,” in turn, includes unlawful use of a “weapon

or dangerous device,” and the phrase “[e]ngag[ing]

in terrorist activity” includes providing “material support” to any “terrorist activity” or “terrorist organization.” 8 U.S.C. § 1182(a)(3)(B)(iii)(V)(b), (B)(iv); 8 U.S.C.

§ 1182(d)(3)(B).

At the same time that Congress delegated this extensive power of exclusion on national security

grounds, it legislated specific restrictions on that executive power. For example, an alien may not be excluded

for membership in a Tier III terrorist organization if

he or she “can demonstrate by clear and convincing evidence that the alien did not know, and should not reasonably have known, that the organization was a

terrorist organization.” 8 U.S.C. § 1182(a)(3)(B)(i)(VI);

see also 8 U.S.C. § 1182(a)(3)(B)(iv)(IV)(cc). Furthermore, the definition of terrorist activity excludes the

use of weapons “for mere personal monetary gain.” 8

U.S.C. § 1182(a)(3)(B)(iii)(V)(b). The Government’s

reading of the INA would render these restrictions

meaningless because the President would retain power

to bar any noncitizen from the country. Congress’s restrictions on executive discretion show that it did not

10

intend 1182(f ) to be construed as broadly as the Government claims in this case.

It would be pointless for Congress to legislate specific criteria for terrorism-related inadmissibility, as

well as inadmissibility-related exceptions and exemptions, while also authorizing the President to nullify

those provisions by summarily excluding entire nations based on alleged terrorism concerns. See

Abourezk v. Reagan, 785 F.2d 1043, 1057-58 (D.C. Cir.

1986), aff ’d, 484 U.S. 1 (1987) (prohibiting the executive branch from using the general exclusionary authority conferred by Congress in one provision of the

INA to circumvent a more specific provision excluding

aliens on the basis of organizational affiliation); Hawaii, 878 F.3d at 690 (“[B]y suspending entry of a class

of 150 million potentially admissible aliens, the Proclamation sweeps broader than any past entry suspension . . . in the name of addressing,” inter alia “general

public-safety and terrorism threats,” which “Congress

has already addressed.”).

Similarly, Congress made the foreign policy inadmissibility ground extensive but imposed specified

constraints. That ground applies to any alien “whose

entry or proposed activities in the United States the

Secretary of State has reasonable grounds to believe

would have potentially serious adverse foreign policy

consequences for the United States.” 8 U.S.C.

§ 1182(a)(3)(C) (emphasis added). Yet, Congress carved

out specific exceptions to the foreign policy inadmissibility ground, including an exception that a person

generally should not be inadmissible based on “past,

11

current, or expected beliefs, statements, or associations

that would be lawful within the United States.” 8

U.S.C. § 1182(a)(3)(C)(ii)-(iii).

Congress created this inadmissibility ground to

“establish a single clear standard for policy exclusions”

to be applied on a case-by-case basis. H.R. Rep. No. 101955, at 128-29 (1990) (emphasizing that individuals

cannot be excluded “merely because of the potential

signal that might be sent”). By requiring the executive

branch to have “reasonable grounds to believe” that an

individual was excludable based on the foreign policy

inadmissibility ground before denying admission, Congress limited the President’s authority to exclude. See

RadLAX Gateway Hotel, LLC v. Amalgamated Bank,

566 U.S. 639, 645 (2012) (interpreting a statute to

avoid “the superfluity of a specific provision that is

swallowed by the general one”).

EO-3 effectively renders entire groups defined by

their nationality inadmissible, thereby overriding Congress’s deliberately crafted, individualized admission

system. See Hawaii, 878 F.3d at 691-92 (rejecting the

President’s efforts to “effectively rewrit[e] the immigration laws as they pertain to the affected countries”).

EO-3’s attempt to override Congress’s statutory admission scheme is clearly “incompatible with the express or implied will of Congress.” See Zivotofsky ex rel.

Zivotofsky v. Kerry, 135 S. Ct. 2076, 2084 (2015) (quoting Youngstown Sheet and Tube, 343 U.S. at 637 (Jackson, J., concurring)); Abourezk, 785 F.2d at 1061 (“[Although] the Executive has broad discretion over the

admission and exclusion of aliens, [that discretion] . . .

12

extends only as far as the statutory authority conferred by Congress . . . .”).

II.

CONGRESS HAS DELEGATED POWERS

OVER IMMIGRATION TO THE PRESIDENT THAT ARE SIGNIFICANT, BUT NOT

UNLIMITED.

Although EO-3 belatedly attempts to correct the

deficiencies in the President’s prior efforts to ban foreign nationals from certain countries, it exceeds the

President’s delegated authority. As set forth in Part A

below, the powers Congress delegated to the executive

branch are limited and primarily concern the INA’s enforcement, as well as matters related to the adjudication of immigration relief and benefits and the

processing of visas – not carte blanche authority to rewrite the INA. As Parts B and C demonstrate, respectively, the President’s authority under 1182(f ) and

1185(a)(1) is broad, but not unlimited.

A. Congress Has Delegated Certain Powers

Over Immigration Enforcement, Adjudication, and Visa Processing to the President.

The broadest delegations of authority from Congress to the executive branch pertain to enforcement

and removal, rather than admission. Adam B. Cox &

Cristina M. Rodríguez, The President and Immigration

Law, 119 Yale L.J. 458, 464-65 (2009). Congress has

charged the Secretary of Homeland Security with

13

“[e]stablishing national immigration enforcement policies and priorities,” and, even more generally, with

“the administration and enforcement” of immigration

laws. 6 U.S.C. § 202(5); 8 U.S.C. § 1103(a). Those powers allow the President, through the Secretary of

Homeland Security, to prioritize certain classes of

noncitizens for removal and provide guidance regarding the use of prosecutorial discretion. Although Congress has set forth detailed grounds of deportability,

see 8 U.S.C. § 1227, the executive branch has prosecutorial discretion to determine who is actually placed in

removal proceedings and who is ultimately deported

under those statutory grounds.

In addition, Congress has authorized the Executive Office for Immigration Review of the Department

of Justice, as well as the Department of Homeland Security (“DHS”), to make determinations about whether

to grant certain forms of relief and protection from removal if an individual satisfies the INA’s eligibility criteria. Many of those determinations, including

whether to grant different types of cancellation of removal, voluntary departure, and adjustment of status,

require executive branch officials to exercise some degree of discretion. See 8 U.S.C. §§ 1229b, 1229c, 1255(c).

Congress has provided the executive branch with

the authority to make individualized determinations

about matters related to admissions, parole, and visa

processing. For example, Congress has authorized the

executive branch to deny entry based on an existing

inadmissibility ground. See, e.g., Kerry v. Din, 135 S. Ct.

2128, 2131-32 (2015) (upholding consular official’s

14

denial of a visa, where the official acted pursuant to a

statutory provision prohibiting the issuance of visas to

persons who engage in terrorist activities). Congress

has also delegated authority to grant discretionary

waivers of certain inadmissibility grounds in individual cases. See, e.g., Kleindienst v. Mandel, 408 U.S. 753,

769-70 (1972) (involving denial of a waiver of inadmissibility by the executive branch pursuant to a delegation of authority in former 8 U.S.C. § 1182(a)(28)).

While some waivers are quite broad, see, e.g., 8 U.S.C.

§ 1182(d)(3) (waiver of inadmissibility grounds for

nonimmigrant visa holders), others may be granted

only if the applicant satisfies specific statutory requirements. See, e.g., 8 U.S.C. § 1182(a)(9)(B)(v)

(waiver of three and ten-year bars to admission for unlawful presence). Congress has also authorized executive branch officials to grant “parole,” which allows

entry “on a case-by-case basis for urgent humanitarian

reasons or significant public benefit.” 8 U.S.C.

§ 1182(d)(5)(A).

In addition, Congress has delegated authority to

executive branch officials to determine the form and

manner of processing immigrant and nonimmigrant

visa applications. See 8 U.S.C. § 1202(a)-(d); 8 U.S.C.

§ 1202(h)(1)(C) (authorizing the Secretary of State to

waive the in-person interview requirement for a

nonimmigrant visa if it is “in the national interest of

the United States” or “necessary as a result of unusual

or emergent circumstances”); 8 U.S.C. § 1202(g)(2)(B)

(authorizing the Secretary of State to grant an exception to the rule that overstaying a nonimmigrant visa

15

makes an individual ineligible to be readmitted as a

nonimmigrant).

Viewed in its entirety, the admissions system Congress created affords the President broad – but not unlimited – powers over immigration. The President’s

attempt to override the admission system and impose

a blanket ban on immigrants from seven countries and

certain nonimmigrants from eight countries is outside

the scope of his delegated authority. See IRAP, 883 F.3d

at 290 (“Congress has not clearly delegated the expansive authority that the President seeks, and the powers

Congress did delegate contain restraints that have

been exceeded in this case.”) (Gregory, J., concurring).

B. The Delegation of Authority Under

1182(f ) Does Not Provide the President

Unlimited Power.

EO-3 relies primarily on the President’s authority

under 1182(f ) in this third attempt to impose a

nationality-based ban. Section 1182(f ) provides:

Whenever the President finds that the entry

of any aliens or any class of aliens into the

United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem

necessary, suspend the entry of all aliens or

any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any

restrictions he may deem to be appropriate.

16

8 U.S.C. § 1182(f ) (emphasis added). As discussed below, 1182(f ) does not grant the President unfettered

discretion. First, the plain language of this section

demonstrates that Congress’s grant of authority to the

President to restrict or suspend entry of aliens is limited. Second, past practice confirms that the authority

in 1182(f ) is limited to exigent situations involving

military or foreign affairs, which are not at issue in this

case. Third, EO-3 unlawfully circumvents Congress’s

complex vetting scheme, which already takes into consideration countries’ information-sharing and identity-management practices.

1. The Plain Language of 1182(f ) Constrains the President’s Power.

Interpreting 1182(f ) requires giving each term of

this provision some effect without rendering the INA’s

admission scheme superfluous and its restraints on

the executive branch’s discretion meaningless. See

Marx v. General Revenue Corp., 568 U.S. 371, 386

(2013) (“[T]he canon against surplusage is strongest

when an interpretation would render superfluous another part of the same statutory scheme.”); Walters v.

Metro. Educ. Enters., Inc., 519 U.S. 202, 209 (1997)

(“Statutes must be interpreted, if possible, to give each

word some operative effect.”).

First, the words “suspend” and “period” used in

1182(f ) indicate that the provision cannot be invoked

as authority for the type of indefinite ban set forth in

EO-3. See Hawaii, 878 F.3d at 684 (interpreting

17

“suspend” and “period” as limiting the President’s “exclusion power”). As this Court and others have noted,

the terms “suspend” and “period” connote temporary,

finite intervals of time. See, e.g., United States v. Updike, 281 U.S. 489, 495 (1930) (interpreting “period” as

a “stated interval of time commonly thought of in

terms of years, months, and days”); Martinez v. Plumbers & Pipefitters Nat’l Pension Plan, 795 F.3d 1211,

1221-23 (10th Cir. 2015) (interpreting “suspend” in

conjunction with “resume” as referring to a temporary

withholding of benefits); United Air Lines, Inc. v. Civil

Aeronautics Bd., 198 F.3d 100, 108 (7th Cir. 1952) (describing “the power of the Board to ‘suspend’ as not including the power to ‘revoke’ ”).

By imposing indefinite, and potentially permanent, nationality-based bans, EO-3 exceeds 1182(f )’s

temporal limitations. Although EO-3 pays lip service

to periodic reviews of the affected countries’ information and identity sharing practices, it would allow

the nationality-based bans to remain in effect indefinitely. See Hawaii, 878 F.3d at 684-85 (describing the

scheme as creating a situation where “the restrictions

may persist ad infinitum” – especially given the lack of

evidence that the restrictions will actually incentivize

countries to improve their information-sharing and

identity-management practices – a result that § 1182(f)

“heavily disfavors”).

Even if 1182(f ) were construed to allow for an indefinite ban, its plain language requires the President

to “find” that the entry of noncitizens “would be detrimental to the interests of the United States.” 8 U.S.C.

18

§ 1182(f ) (emphasis added). This requirement, which

limits the President’s discretion, stands in stark contrast to other provisions of the INA, which delegate

much broader grants of discretion. For example, other

INA provisions instruct the executive branch to “consider” whether admission is in the “national interest”

and delegate authority at “the discretion of ” the Attorney General. See, e.g., 8 U.S.C. § 1182(d)(14) (giving the

Secretary of DHS discretion to waive inadmissibility

grounds for victims of crimes applying for U visas “if

[he] considers it to be in the public or national interest

to do so”); 8 U.S.C. § 1182(d)(3)(A) (leaving it to “the

discretion of the Attorney General” to grant nonimmigrant visa applicants waivers of specified grounds of

inadmissibility); 8 U.S.C. § 1182(d)(1) (giving the Attorney General discretion to waive inadmissibility

grounds for nonimmigrants if he “considers it to be in

the national interest to do so”).

The language of 1182(f ) requiring the President to

“find” that entry is “detrimental to the interests of the

United States” indicates that this provision applies

only to situations where a proper finding was made

that admission would be damaging to national security. This interpretation of 1182(f ) gives the President

the authority and flexibility needed to respond to exigent situations without subverting the INA as a whole.

Here, there is no exigent circumstance or appropriate

detrimental finding that would warrant the type of

sweeping ban that EO-3 dictates.

19

2. Prior Practice Confirms the Constraints on the President’s Power Under 1182(f).

Past practice confirms the limitations on the scope

of 1182(f ) reflected in its text. See Zivotofsky, 135 S. Ct.

at 2090-91 (placing “significant weight on historical

practice” in interpreting what foreign affairs power is

legitimate (quoting NLRB v. Noel Canning, 134 S. Ct.

2550, 2559 (2014))); Kent v. Dulles, 357 U.S. 116, 122,

129-30 (1958) (declining to expand the authority

granted under the INA beyond the scope of its historical usage, despite a declared national emergency).

Prior Presidents have relied on 1182(f ) in exigent situations invoking military powers or foreign affairs,

which match the President’s constitutional authority.

See U.S. Const. art. II, § 2, cl. 1-2; IRAP, 883 F.3d at 296

(Gregory, J., concurring) (finding that 1182(f ) empowers the President to exclude “(1) foreign nationals

whose individual conduct or affiliation makes their entry harmful to national interests for reasons unanticipated by Congress and (2) foreign nationals in

response to a foreign-affairs or national-security exigency”). In contrast, when the President attempts to

restrict entry of classes of aliens in situations that do

not implicate specific diplomatic emergencies or military crises, he is encroaching on Congress’s power to

establish the classes of persons who may and may not

be admitted to the United States, and consequently his

power is at “its lowest ebb.” See Youngstown Sheet and

Tube, 343 U.S. at 637 (Jackson, J., concurring).

20

The President may invoke 1182(f ) to pressure a

foreign government to conform with U.S. policy (often

as part of broader sanctions), to enforce a treaty, or to

respond to a foreign coup, act of aggression, or emergency. See Kate M. Manuel, Cong. Research Serv.,

R44743, Executive Authority to Exclude Aliens 6-10

(2017) (listing all previous presidential suspensions).

In those exigent circumstances, the President’s power

is at its zenith. For example, President Carter used his

delegated authority under 1182(f ) in response to the

1980 Iranian hostage crisis, directing the Secretary of

State to invalidate and suspend the issuance of visas

to Iranians “except for compelling and proven humanitarian reasons or where the national interest of our

own country requires.” President’s Announcement of

Sanctions Against Iran, 16 Weekly Comp. of Pres. Doc.

611 (Apr. 7, 1980). Restricting the entry of Iranians

was just one of several measures, including ending diplomatic relations, that President Carter used to increase pressure on Iran to release hostages taken

during the attack on the U.S. embassy. Id.

Perhaps the broadest use of 1182(f ) was President

Reagan’s decision to “suspend entry into the United

States as immigrants by all Cuban nationals.” Proclamation No. 5517, 51 Fed. Reg. 30,470 (Aug. 22, 1986).

But even that Proclamation included specified exceptions for immediate family of U.S. citizens. Moreover,

President Reagan issued Proclamation No. 5517 in response to the Cuban government’s refusal to honor an

immigration agreement between the two countries,

21

which disrupted normal migration procedures.3 Id. See

also Regan v. Wald, 468 U.S. 222, 241-42 (1984) (upholding President Reagan’s ability to restrict U.S. citizens’ travel to Cuba, specifically citing “weighty

concerns of foreign policy” as the justification for the

restriction).

In contrast to EO-3, those prior executive actions

were taken in response to specific diplomatic exigencies and therefore fell squarely within the scope of the

President’s authority under 1182(f ). See Hawaii, 878

F.3d at 689 (“[U]nlike the Proclamation, the Cuba and

Iran orders were intended to address specific foreign

policy concerns distinct from general immigration concerns already addressed by Congress.”). The broad, unprompted reach of EO-3 is unprecedented. See IRAP,

883 F.3d at 289 (Gregory, J., concurring) (“The Proclamation has no historical precedent.”). EO-3’s suspension of the entry of foreign nationals from certain

countries is not related to exigent diplomatic or military affairs. There is no evidence, for example, that the

President suspended entry from these countries to

3

President Reagan’s High Seas Interdiction Proclamation

and its implementing executive orders were also limited in scope

and driven by exigent circumstances related to U.S.-Haiti foreign

affairs. That Proclamation suspended “entry of undocumented aliens from the high seas” and thus only applied to individuals who

were already inadmissible. See 8 U.S.C. § 1182(a)(7)(A)(i)(I). It

was also based on a diplomatic agreement between Haiti and the

United States, reached after months of negotiations, and contained a military component. See Reagan Orders Aliens Stopped

on the High Sea, NY Times, Sept. 30, 1981, available at http://

www.nytimes.com/1981/09/30/us/reagan-orders-aliens-stopped-onthe-high-sea.html.

22

apply pressure in foreign negotiations, to enforce a

treaty, or to respond to an act of aggression or a coup

or recent revolution. Id. at 300 (“The Proclamation

cannot be responding to an exigency because it does

not identify any new event or factual circumstance

that Congress has not already considered via legislation.”). The Government’s interpretation of 1182(f )

thus “requires a breathtaking delegation to the President of virtually unconstrained power not only to depart from Congress’s priorities but to dramatically

reorganize the domestic affairs of broad swathes of

Americans.” Id. at 291.

3. The Purported Purposes of EO-3 Are

Inconsistent with the Constraints on

the President’s Power Under 1182(f).

EO-3 summarily asserts that information-sharing

and identity-management deficiencies in the designated countries compromise national security and that

EO-3 serves a diplomatic purpose by encouraging the

designated countries to improve their practices in

those areas. But the Government’s purported reasons

are not related to the restrictions actually imposed.

EO-3 “makes no finding that nationality alone renders

entry of this broad class of individuals a heightened

security risk” or that “the nationality of the covered individuals alone renders their entry into the United

States on certain forms of visas detrimental to the interests of the United States.” See Hawaii, 878 F.3d at

693-94 (noting that EO-3 “attempt[s] to rectify EO-2’s

lack of a meaningful connection between listed

23

countries and terrorist organizations” by “cit[ing] to

the fact that ‘several terrorist groups are active’ in

Chad,” but it “does not tie the nationals of the designated countries to terrorist organizations” and “makes

no finding that nationality alone renders entry of this

broad class of individuals a heightened security risk or

that current screening processes are inadequate”); see

also IRAP, 883 F.3d at 317 (Keenan, J., concurring)

(concluding that “the Proclamation suffers from the

same deficiency as its predecessor: the Proclamation

fails to find that the entry of these particular nationals

would be detrimental to the interests of the United

States”).

Furthermore, Congress has already accounted for

the variations in countries’ information-sharing and

identity-management practices when deciding which

countries can participate in the Visa Waiver Program.

See 8 U.S.C. §§ 1187(a)(3)(B), (a)(12)(D)(iii), (c)(2)(D)(F) (requiring foreign governments to issue electronic

passports, report lost or stolen passports, share security-related information about its nationals, and not be

a safe haven for terrorists to participate in the Visa

Waiver Program). Nationals of countries that do not

meet those information-sharing criteria cannot enter

without a visa and must go through the regular visa

application process, during which the individual applicant has the burden to prove visa eligibility, including

admissibility into the United States, through both documentation and an interview. See 8 U.S.C. §§ 1202(a)(d), (g)-(h) (placing the burden on applicants in the

visa application process); 1182(a)(2), (a)(3)(A)-(C)

24

(inadmissibility bars based on threats to national security and public safety). Individuals who fail to provide sufficient information and documentation cannot

obtain visas. 8 U.S.C. § 1361; 22 CFR § 40.6.

In other words, Congress has determined what to

do if a foreign country’s documentation is inadequate:

its nationals must apply individually for visas. EO-3

rewrites this rule by prohibiting issuance of visas to

nationals of specified countries. See Hawaii, 878 F.3d

at 690 (concluding that EO-3 “addresses only matters

of immigration already passed upon by Congress”).

EO-3 therefore conflicts with Congress’s considered

judgment as to how countries’ information-sharing

and identity-management practices should impact the

vetting of aliens for admission. See Hawaii, 878 F.3d at

686; IRAP, 883 F.3d at 337 (Wynn, J., concurring) (describing EO-3’s reliance on the “inadequacy of the subject countries’ vetting capabilities and processes” as

“inconsistent” with the complex vetting scheme that

Congress set forth to preclude the entry of nationals

from certain countries without a visa where their countries do not meet the requisite information-sharing criteria).

EO-3’s internal incoherencies further undermine

any rationale related to diplomacy or national security.

If the diplomatic purpose is to encourage foreign governments to improve their practices, it makes little

sense to exclude from the ban a country like Iraq,

which did not meet the baseline information-sharing

and identity-management criteria, while a country like

Somalia, which met the baseline criteria, is included in

25

the ban. See Proclamation 9645, 82 Fed. Reg. 45,161, at

1(g), (i) (Sept. 27, 2017). Similarly, EO-3 provides no

explanation for why some types of visitors from a

particular country are banned while others are not. If

information-sharing and identity-management deficiencies generally compromise national security, it

does not serve the Government’s purported purpose to

allow individuals from Chad, Yemen, and Libya with

nearly all types of nonimmigrant visas to enter the

United States. Hawaii v. Trump, 265 F. Supp. 3d 1140,

1156 (D. Haw. 2017), aff ’d in part, vacated in part, 878

F.3d 662 (9th Cir. 2017), cert. granted, 138 S. Ct. 923

(2018) (describing the “internal incoherencies” of EO3). Nor does it serve that purported purpose to allow

Iranian nonimmigrants with student and exchange

visas to enter while barring all other Iranian nonimmigrants. Indiscriminately excluding certain

nonimmigrants, as opposed to the previous Executive

Orders’ wholesale exclusion of nonimmigrants, does

not automatically render EO-3 a permissible exercise

of presidential authority.

C. Section 1185(a)(1) Does Not Provide

the President Authority to Impose a

Nationality-Based Ban on Entry.

The President’s authority under 1185(a)(1) also

does not grant him the sweeping power necessary to

enact EO-3. Section 1185(a)(1) states that “it shall be

unlawful for any alien to depart from or enter . . . the

United States except under such reasonable rules, regulations, and orders, and subject to such limitations

26

and exceptions as the President may prescribe.” 8

U.S.C. § 1185(a)(1). The statute’s text and legislative

history demonstrate that its grant of discretionary authority allows the President to create reasonable procedural requirements for entering and departing the

United States. See IRAP, 883 F.3d at 301-02 (Gregory,

J., concurring). It does not grant unbridled authority to

prevent entry based on nationality. Id. at 301-03.

Interpreting 1185(a)(1) in light of its text and the

language of surrounding provisions demonstrates that

Congress did not intend to delegate the extensive Presidential authority needed to authorize EO-3. Such an

expansive delegation of authority requires a statement

of legislative intent that is conspicuously absent from

1185(a)(1).4 Id. at 291. The content of surrounding statutory provisions demonstrates that 1185(a)(1) is concerned with regulating the use or acquisition of travel

documents. See, e.g., 8 U.S.C. §§ 1182(a)(3) (prohibiting

a person from making false statements in an application for permission to enter or depart the United

States); 1182(a)(5) (prohibiting a person from fraudulently using a permit to enter or depart the United

States); see also IRAP, 883 F.3d at 301 (Gregory, J., concurring) (“Read in context, § 1185(a)(1) is at best a

4

As noted in the previous section, Congress has granted the

executive branch broad discretionary authority to regulate specific aspects of immigration in other immigration-related statutory provisions. See, e.g., 8 U.S.C. §§ 1182(a)(10)(C)(ii)(III)

(persons designated by the Secretary of State in her “sole and unreviewable discretion” as related to an international child abductor are inadmissible); 1182(d)(3)(B)(i) (waiving an inadmissibility

ground for certain nonimmigrants in the “sole unreviewable discretion” of the Secretary of State).

27

residual provision that enables the President to issue

reasonable rules pertaining to travel documents and

related administrative processes – similar to its adjacent subsections.”). Cf. Whitman v. American Trucking

Assns., Inc., 531 U.S. 457, 468 (2001) (Congress does not

“hide elephants in mouseholes”).

Section 1185(a)(1)’s legislative history similarly

reveals Congress’s intent to limit the President’s authority granted under the provision. In 1952,

1185(a)(1) authorized the President to enforce departure and entry “restrictions and prohibitions in addition to those provided otherwise than by this section”

during war or other “national emergency” and until

“otherwise ordered by the President or Congress.” Immigration & Nationality Act of 1952, Pub. L. No. 82414, 66 Stat. 190 (June 27, 1952), § 215. In 1978, Congress amended the provision to reflect its current language by repealing (1) the President’s authority to

impose “restrictions and prohibitions in addition to

those provided . . . by this section,” and (2) the requirement that the provision be exercised only during times

of war or national emergency. Foreign Relations Authorization Act, Pub. L. No. 95-426, 92 Stat. 992-93

(Oct. 7, 1978), § 707. While the Government relies on

the latter aspect of the amendment, the former actually reins in the President’s previously granted authority to impose additional restrictions on entry and

departure. See IRAP, 883 F.3d at 301-02 (Gregory, J.,

concurring).

The Government’s interpretation of 1185(a)(1)

does not comport with the statute’s text or history, and

28

sweeps so broadly as to swallow the more specific

1182(f ).5 See Hawaii, 878 F.3d at 694 (concluding that

“the Government cannot justify the Proclamation under § 1182(f ) by using § 1185(a) as a backdoor,” because “[g]eneral grants in a statute are limited by more

specific statutory provisions, and § 1182(f ) has a specific requirement that there be a finding of detriment

before entry may be suspended or otherwise restricted”

(citation omitted)). EO-3 therefore cannot stand as an

exercise of statutory authority under 1185(a)(1).

D. The INA’s Nondiscrimination Provision

Further Constrains the President’s Delegated Authority Under 1182(f) and

1185(a)(1).

Section 1152(a)(1)(A) of the INA prohibits discrimination on the basis of nationality and place of birth in

the issuance of immigrant visas. Introduced as part of

the Immigration Act of 1965, the INA’s nondiscrimination provision was designed to remedy the “harsh injustice of the national origins quota system.” See

President Lyndon B. Johnson, Remarks at the Signing

of the Immigration Bill, Liberty Island, New York, 546

Pub. Papers 1037, 1038 (Oct. 3, 1965); see also Olsen v.

5

Previously, the Government has not argued that 1185(a)(1)

grants the President more authority than 1182(f ). See, e.g., Int’l

Refugee Assistance Project v. Trump, 265 F. Supp. 3d 570, 611 (D.

Md. Oct. 17, 2017) (“Although the Proclamation also relies on

§ 1185(a)(1), the parties do not argue that this section provides

broader authority than § 1182(f ).”).

29

Albright, 990 F. Supp. 31, 37-38 (D.D.C. 1997) (noting

that “[t]he legislative history surrounding the 1965 Act

is replete with the bold anti-discriminatory principles

of the Civil Rights Era,” and that visas may not be denied based on prejudicial national stereotypes).

Congress rejected a proposal to transition away

from national origin quotas gradually, preferring instead to abolish them immediately and limit the executive’s discretion in the visa allocation process.

S.500/H.R. 2580, 89th Cong., 1st Sess. (1965) (HartCeller, Johnson administration bill); H.R. 8662, 89th

Cong., 1st Sess. (1965) (Feighan bill). Congress surely

did not imagine that a future President could unilaterally create barred zones and national exclusions that

violate Congress’s requirements of nondiscrimination,

8 U.S.C. § 1152(a)(1)(A), or a first-come first-served

policy for visa applicants, 8 U.S.C. § 1153(e).

Considering Congress’s intent to repeal the national origin quota system and its discriminatory foundation, it is unsurprising that the text of the

nondiscrimination provision is succinct and unambiguous: “[N]o person shall receive any preference or priority or be discriminated against in the issuance of an

immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.” 8 U.S.C.

§ 1152(a)(1)(A). That text is clear and should be interpreted in accordance with its plain meaning. See Puello

v. Bureau of Citizenship & Immigr. Servs., 511 F.3d

324, 327 (2d Cir. 2007).

30

Although Congress did create some narrow statutory exceptions to the nondiscrimination provision,

none are applicable to EO-3.6 Notably, Congress did not

choose to exempt the President’s authority pursuant to

1182(f ) or 1185(a)(1) from the nondiscrimination provision. See Hillman v. Maretta, 133 S. Ct. 1943, 1953

(2013) (“Where Congress explicitly enumerates certain

exceptions to a general prohibition, additional exceptions are not to be implied, in the absence of evidence

of a contrary legislative intent.” (citations omitted)).

Additionally, none of the statutory exceptions to the

nondiscrimination provision grant the President authority to create his own exceptions. There would be no

point to a law that prohibits the President from discriminating except for when the President chooses to

discriminate. See IRAP, 883 F.3d at 291.

Presidential authority pursuant to 1182(f ) and

1185(a)(1) must therefore be construed in conformance

with the INA’s nondiscrimination provision. See Hawaii, 878 F.3d at 697 (finding that EO-3 “runs afoul of

§ 1152(a)(1)(A)’s prohibition on nationality-based discrimination.”). Only then can all three statutory provisions be given effect as Congress intended. In addition,

Congress enacted 1152(a)(1) in 1965 against the backdrop of 1182(f ) and 1185(a)(1), meaning that those

6

Most significantly, Congress can assign per-country caps on

the number of family and employment-based visas that are issued. 8 U.S.C. § 1152(a)(1)(A), (a)(2). Also, the Secretary of State’s

authority to determine “the procedures for the processing of immigrant visa applications or the locations where such applications

will be processed” is not limited by the provision. 8 U.S.C.

§ 1152(a)(1)(B).

31

provisions must be read as limited by the later-enacted

and more specific nondiscrimination provision. See Hawaii, 878 F.3d at 696 (finding that Ҥ 1152(a)(1)(A) provides a specific anti-discrimination bar to the

President’s general § 1182(f ) powers”); IRAP, 883 F.3d

at 303-04 (Gregory, J., concurring) (same); see also Morton v. Mancari, 417 U.S. 535, 550-51 (1974) (“[A] specific statute will not be controlled or nullified by a

general one, regardless of the priority of enactment.”).

The Government contends that 1152(a)(1)(A) does

not conflict with its interpretations of 1182(f ) and

1185(a)(1), because the former addresses the issuance

of immigrant visas to aliens “who are otherwise eligible” and therefore has no effect on aliens who are not

permitted to enter based on other INA provisions, like

1182(f ) and 1185(a)(1). But “the Proclamation effectuates its restrictions by withholding immigrant visas

based on nationality,” which “directly contravenes”

Congress’s prohibition of nationality-based discrimination. Hawaii, 878 F.3d at 695-96 (recognizing that

1152(a)(1)(A) “prohibit[s] discrimination on the basis

of nationality throughout the immigration visa process, including visa issuance and entry”) (emphasis in

original); IRAP, 883 F.3d at 304 (Gregory, J., concurring) (finding that EO-3 “directly contravenes

§ 1152(a)(1) and the fundamental principles of equality that it embodies”). Construing 1152(a)(1) in the

manner the Government proposes flies in the face of

the statute’s text and undercuts the very purpose of

this historic piece of legislation.

32

Although the President has the authority to suspend the entry of immigrants “detrimental to the interests of the United States” via 1182(f ), he cannot

establish blanket prohibitions on entry based solely on

nationality. See Hawaii, 878 F.3d at 687 (“[T]he President cannot effectively abrogate existing immigration

law while purporting to merely strengthen it; the cure

cannot be worse than the disease.”); Haitian Refugee

Ctr. v. Civiletti, 503 F. Supp. 442, 453 (S.D. Fla. 1980)

(noting that under 1152(a), the “INS has no authority

to discriminate on the basis of national origin, except

perhaps by promulgating regulations in a time of national emergency”). Indeed, as described above, the

only instances in which the executive branch has imposed nationality-based restrictions on entry to the

United States – the bar to entry of Cuban nationals

imposed by President Reagan in response to Cuba’s

suspension of an immigration agreement and the limitations on entry of Iranians imposed by President

Carter in the wake of the Iran Hostage Crisis – were

both more limited in scope and involved discrete exigencies related to foreign affairs.

EO-3, in contrast, imposes a blanket prohibition

on the issuance of immigrant visas for the named countries with “no specified end date and no requirement of

renewal,” in direct contravention of 1152(a). See Hawaii, 878 F.3d at 684 n. 10 (“At the very least, Congress

in adopting § 1182(f ) likely did not contemplate that

an executive order of the Proclamation’s sweeping

breadth would last for an indefinite duration.”). To allow such a blanket prohibition would both undermine

33

the visa allocation system over which Congress retains

authority and would run afoul of the INA’s nondiscrimination provision.

The most recent version of the travel ban attempts, belatedly, to correct the deficiencies of the prior

executive orders, which failed to provide any “findings”

and offered no nexus to any identifiable U.S. interests.

However, it is still ultra vires. Unlike the prior orders,

it does not invoke “the specter of ‘honor killings’ . . . a

well-worn tactic for stigmatizing and demeaning Islam

and painting the religion, and its men, as violent and

barbaric.” Int’l Refugee Assistance Project v. Trump,

857 F.3d 554, 596 n. 17 (4th Cir. 2017) (en banc), vacated and remanded by Trump v. Int’l Refugee Assistance Project, No. 16-1436, 2017 WL 4518553 (U.S. Oct.

10, 2017). It also nominally adds two non-Muslim

countries with little practical impact on migration and

provides a new purported rationale. But its roots cannot be ignored. EO-3 fulfills its predecessors’ promise

of a permanent ban, using nationality as a proxy for

religion, and thereby revealing animus and invidious

discrimination not permitted by the INA. See IRAP,

883 F.3d at 322 (Wynn, J., concurring).

------------------------------------------------------------------

CONCLUSION

Based on the foregoing, amici respectfully submit

that the Court should find EO-3 ultra vires. EO-3 is

inconsistent with the text and structure of the INA as

a whole. While 1182(f ) provides the President the

34

authority and flexibility needed to respond to exigent

situations involving diplomacy or military affairs, it

does not give him unlimited authority to override the

immigration system that Congress has so carefully

crafted.

Dated: March 30, 2018

Respectfully submitted,

FATMA E. MAROUF*

DEBORAH ANKER*

SABRINEH ARDALAN*

Counsel of Record

PHILIP L. TORREY*

TEXAS A&M UNIVERSITY

HARVARD IMMIGRATION AND

SCHOOL OF LAW

REFUGEE CLINICAL PROGRAM 1515 Commerce Street

HARVARD LAW SCHOOL

Fort Worth, TX 76102

(817) 212-4123

6 Everett Street

fatma.marouf @

Cambridge, MA 02138

law.tamu.edu

danker@law.harvard.edu

sardalan@law.harvard.edu

ALAN HYDE*

ptorrey@law.harvard.edu

RUTGERS LAW SCHOOL

123 Washington Street

KARLA MCKANDERS*

Newark, NJ 07102

VANDERBILT LAW SCHOOL

hyde@law.rutgers.edu

131 21st Avenue South

Nashville, TN 37203

Of Counsel

karla.mckanders@

NATHAN MACKENZIE

vanderbilt.edu

225 Walden Street, #4N

Cambridge, MA 02140

GEOFFREY HOFFMAN*

(978) 852-8626

UNIVERSITY OF HOUSTON

nmackenzie@

LAW CENTER

jd17.law.harvard.edu

4604 Calhoun Road, Room 56,

TU-II

Houston, TX 77204

ghoffman@central.uh.edu

*Filed in an individual capacity. University affiliation

is for identification only.

App. 1

List of Amici

Stella Burch Elias*

Muneer I. Ahmad*

Clinical Professor of Law Professor of Law

University of Iowa

Yale Law School

College of Law

Deborah Anker*

Clinical Professor of Law

Harvard Law School

Sabrineh Ardalan*

Assistant Clinical

Professor of Law

Harvard Law School

Kate Evans*

Associate Professor

University of Idaho

College of Law

Jill E. Family*

Commonwealth Professor

of Law and Government

Widener University

Commonwealth Law

School

David Baluarte*

Associate Clinical

Professor of Law

Washington and Lee

University School of Law Lauren Gilbert*

Professor of Law

Jon Bauer*

Clinical Professor of Law St. Thomas University

and Richard D. Tulisano School of Law

’69 Scholar in Human Denise Gilman*

Rights

Clinical Professor

University of Connecticut University of Texas

School of Law

School of Law

Lenni B. Benson*

Professor of Law

New York Law School

Geoffrey Heeren*

Associate Professor

Valparaiso University

Law School

Holly Cooper*

Laila L. Hlass*

Co-director UC Davis

Immigration Law Clinic Professor of Practice

U.C. Davis School of Law Tulane University

School of Law

App. 2

Geoffrey Hoffman*

Clinical Associate

Professor of Law

University of Houston

Law Center

Karla McKanders*

Clinical Professor of Law

Vanderbilt Law School

Nancy Morawetz*

Professor of Clinical Law

New York University

School of Law

Mary Holper*

Associate Clinical

Professor

Angela D. Morrison*

Boston College Law School Associate Professor

Alan Hyde*

Texas A&M University

Distinguished Professor

School of Law

of Law and Sidney

Elora Mukherjee*

Reitman Scholar

Associate Clinical

Rutgers Law School

Professor of Law

Michael Kagan*

Professor of Law

University of Nevada,

Las Vegas, William S.

Boyd School of Law

Jennifer Lee Koh*

Professor of Law

Western State College

of Law

Columbia Law School

Gerald L. Neuman*

J. Sinclair Armstrong

Professor of

International, Foreign,

and Comparative Law

Harvard Law School

Huyen Pham*

Professor

Texas A&M University

School of Law

Annie Lai*

Assistant Clinical

Professor of Law

U.C. Irvine School of Law Jaya Ramji-Nogales*

I. Herman Stern

Fatma E. Marouf*

Research Professor

Professor of Law

Temple Law School

Texas A&M University

School of Law

App. 3

Carrie Rosenbaum*

Adjunct Professor

Golden Gate University

School of Law

Rachel E. Rosenbloom*

Professor of Law

Northeastern University

School of Law

Sarah Sherman-Stokes*

Associate Director,

Immigrants’ Rights &

Human Trafficking

Program

Boston University

School of Law

Jayashri Srikantiah*

Benjamin Casper Sanchez* Professor of Law and

Director, Immigrants’

Director, James H. Binger

Rights Clinic

Center for New

Stanford

Law School

Americans

University of Minnesota

Law School

Elissa Steglich*

Clinical Professor

University of Texas

School of Law

Leticia Saucedo*

Professor of Law

U.C. Davis School of Law Philip L. Torrey*

Lecturer on Law

Andrew I. Schoenholtz*

Harvard Law School

Professor from Practice

Georgetown Law

Rose Cuison Villazor*

Professor of Law

U.C. Davis School of Law

Ragini Shah*

Clinical Professor of Law

Leti Volpp*

Suffolk University

Law School

Robert D. and Leslie Kay

Raven Professor of Law

U.C. Berkeley School

of Law

*Filed in an individual capacity. University affiliation

is for identification only.