Amicus Curiae Brief — Donald J. Trump, President of the United States, et al., Petitioners v. Hawaii, et al.
Supreme Court briefMar 30, 2018
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No. 17-965
In the Supreme Court of the United States
DONALD J. TRUMP,
PRESIDENT OF THE UNITED STATES, 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 EVAN MCMULLIN,
ANNE APPLEBAUM, MAX BOOT, LINDA CHAVEZ,
ELIOT COHEN, MINDY FINN, JULEANNA GLOVER,
NORMAN ORNSTEIN, MICHAEL STEELE,
CHARLIE SYKES, AND JERRY TAYLOR
IN SUPPORT OF RESPONDENTS
R. REEVES ANDERSON
ARNOLD & PORTER
KAYE SCHOLER LLP
370 Seventeenth St.
Suite 4400
Denver, CO 80202
(303) 863-1000
JOHN B. BELLINGER, III
Counsel of Record
ELLIOTT C. MOGUL
KAITLIN KONKEL
ARNOLD & PORTER
KAYE SCHOLER LLP
601 Mass. Ave., NW
Washington, DC 20001
(202) 942-5000
john.bellinger@arnoldporter.com
Counsel for Amici Curiae
TABLE OF CONTENTS
Page
Interest of Amici Curiae..............................................1
Introduction and Summary of Argument ...................2
Argument .....................................................................4
I. EO-3 contravenes the prohibition on
nationality-based discrimination that
Congress, with support from almost all
Republicans, adopted in 1965................................5
A. Congress intended to eliminate “all
vestiges of discrimination against any
national group” from our immigration
system ...............................................................6
1. Members of both parties, and
Republicans in particular, strenuously
repudiated the discriminatory policies
that predated the 1965 Act .........................7
2. The 1965 Act rectified missteps in
U.S. immigration policy ............................12
3. The principles underlying the 1965
Act are now fundamental to our
national identity ........................................16
B. EO-3 runs afoul of Congress’s
nondiscrimination guarantee .........................18
II. The President may not substitute his
alternative policy judgments for Congress’s
comprehensive statutory immigration scheme ...21
Conclusion .................................................................29
Appendix ....................................................................30
ii
TABLE OF AUTHORITIES
Page(s)
Cases
In re Aiken Cty.,
725 F.3d 255 (D.C. Cir. 2013) .............................. 22
Ali v. Fed. Bureau of Prisons,
552 U.S. 214 (2008) .............................................. 26
Arizona v. United States,
567 U.S. 387 (2012) .......................................... 4, 22
Bilski v. Kappos,
561 U.S. 593 (2010) .............................................. 25
Chae Chan Ping v. United States,
130 U.S. 581 (1889) .............................................. 13
Fiallo v. Bell,
430 U.S. 787 (1977) ................................................ 4
Fong Yue Ting v. United States,
149 U.S. 698 (1893) .............................................. 14
Galvan v. Press,
347 U.S. 522 (1954) .............................................. 28
Gonzales v. Oregon,
546 U.S. 243 (2006) ........................................ 26‒27
Head Money Cases,
112 U.S. 580 (1884) ................................................ 4
INS v. Chadha,
462 U.S. 919 (1983) .............................................. 28
Kerry v. Din,
135 S. Ct. 2128 (2015) .......................................... 23
United States ex rel. Knauff v. Shaughnessy,
338 U.S. 537 (1950) ............................................ 4, 5
Korematsu v. United States,
323 U.S. 214 (1944) .............................................. 15
iii
MCI Telecomms. Corp. v. Am. Tel. & Tel. Co.,
512 U.S. 218 (1994) .............................................. 27
Morton v. Mancari,
417 U.S. 535 (1974) ........................................ 20‒21
Olsen v. Albright,
990 F. Supp. 31 (D.D.C. 1997) ............................. 12
State v. Trump,
265 F. Supp. 3d 1140 (D. Haw. 2017) ..................... 2
Texas v. United States,
809 F.3d 134 (5th Cir. 2015) ................................ 27
United States Telecom Ass’n v. FCC,
855 F.3d 381 (D.C. Cir. 2017) .............................. 27
United States v. Witkovich,
353 U.S. 194 (1957) .............................................. 26
Util. Air Regulatory Grp. v. E.P.A.,
134 S. Ct. 2427 (2014) .......................................... 25
Wong Wing Hang v. INS,
360 F.2d 715 (2d Cir. 1966) ................................. 12
Constitutional Provisions and Statutes
U.S. Const. art. I, §§ 8, 9 ............................................. 4
8 U.S.C.
§ 1152(a)(1)(A) .......................................... 2, 3, 5, 21
§ 1182(a)(1)(A) ...................................................... 22
§ 1182(a)(2)(A) ...................................................... 22
§ 1182(a)(3)(A)(i) .................................................. 22
§ 1182(a)(3)(B)(i) .................................................. 23
§ 1182(a)(3)(B)(iii) ................................................ 23
§ 1182(a)(3)(B)(iv) ................................................ 23
§ 1182(a)(3)(B)(v).................................................. 23
§ 1182(a)(3)(B)(vi) ................................................ 23
§ 1182(a)(3)(D)...................................................... 22
§ 1182(a)(4) ........................................................... 22
iv
8 U.S.C. (cont’d)
§ 1182(a)(10)(C) .................................................... 22
§ 1182(f) ...................................................... 5, 19, 24
§ 1185(a)(1) ....................................................... 5, 20
§ 1187(a)(12) ......................................................... 24
§ 1187(a)(12)(B) .................................................... 24
§ 1202(b) ............................................................... 23
§ 1202(c)................................................................ 23
§ 1202(d) ............................................................... 23
§ 1361.................................................................... 23
§ 1735(a) ............................................................... 23
§ 1735(b) ............................................................... 24
Act of April 27, 1904, ch. 1630, 33 Stat. 394
(1904) .................................................................... 13
Act of April 29, 1902, ch. 641, 32 Stat. 176
(1902) .................................................................... 13
Act of February 5, 1917, ch. 29, 39 Stat. 874
(1917) .................................................................... 14
Antiterrorism and Effective Death Penalty
Act of 1996, Pub. L. No. 104-132, § 411,
110 Stat. 1214 (1996) ........................................... 23
Chinese Exclusion Act of 1882, ch. 126, § 1,
22 Stat. 58 (1882) ................................................. 13
Geary Act of 1892, ch. 60, 27 Stat. 25 (1892) ........... 13
Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, Pub. L. No.
104-208, § 633, 110 Stat. 3009 (1996) ................. 20
Immigration Act of 1924, ch. 190, 43 Stat. 153
(1924) .................................................................... 14
Immigration and Nationality Act of 1952,
Pub. L. No. 82-414, 66 Stat. 163 (1952) .............. 15
v
Magnuson Act of 1943, Pub. L. No. 78-199,
57 Stat. 600 (1943) ............................................... 15
REAL ID Act of 2005, Pub. L. No. 109-13, §
103, 119 Stat. 231 (2005) ..................................... 23
Scott Act of 1888, ch. 1064, 25 Stat. 504 (1888) ....... 13
USA PATRIOT Act, Pub. L. No. 107-56, §
411, 115 Stat. 272 (2001) ..................................... 23
Visa Waiver Program Improvement and
Terrorist Travel Prevention Act of 2015, Pub.
L. No. 114-113, § 203, 129 Stat. 2242.................. 24
Legislative Materials
111 Cong. Rec. 21,589 et seq. (1965) ................. passim
H.R. Rep. No. 68-350 (1924)...................................... 14
H.R. Rep. No. 89-745 (1965).................................. 6, 16
H.R. Res. 683, 112th Cong. (2012) ............................ 17
S. Res. 201, 112th Cong. (2011) ................................ 16
Executive Materials
Exec. Order No. 12,172, 44 Fed. Reg. 67,947
(Nov. 28, 1979) ..................................................... 25
Exec. Order No. 9066, 7 Fed. Reg. 1407 (Feb. 19,
1942) ..................................................................... 15
Proc. 5517, 51 Fed. Reg. 30,470 (Aug. 22, 1986) ...... 25
Proc. 9645, 82 Fed. Reg. 45,161 (Sept. 24,
2017) ................................................................. 2, 25
Other Authorities
Michael Gerson, Trump’s Half-Baked
Travel Ban Is a Picture of American
Shame, Wash. Post (Jan. 30, 2017) ..................... 17
2 Abraham Lincoln, To Joshua F. Speed, in
Collected Works of Abraham Lincoln
(Roy Basler ed. 1953) ........................................... 18
vi
Ronald Reagan, Remarks on Signing the
Immigration Reform and Control Act of
1986, 22 Weekly Comp. Pres. Docs. 1533
(Nov. 6, 1986) ....................................................... 18
Antonin Scalia & Bryan A. Garner, Reading
Law: The Interpretation of Legal Texts
(2012) .................................................................... 18
1
INTEREST OF AMICI CURIAE1
Amici are commentators, historians, political scientists, policy analysts, journalists, and former
elected officials and political candidates who are concerned that President Trump’s September 24, 2017
Proclamation is inconsistent with longstanding
American values and principles of law. Amici write
to provide historical context for the matters before
the Court, particularly regarding conservative and
bipartisan efforts to end nationality-based discrimination in U.S. immigration policy; to address
important issues of statutory interpretation and separation of powers; and to draw attention to the core
American values implicated by this case—among
them the principle that individuals seeking entry to
this country should be judged on the basis of their
personal circumstances and character, rather than
the accident of nationality, race, or place of birth. Individual amici are listed in the Appendix.
Amici hold a range of views, including on immigration matters, but all agree that Congress has
prohibited the President from discriminating on the
basis of nationality in making immigration decisions.
They also agree that, where Congress has enacted
comprehensive legislation in an area within its constitutional purview, and the President acts to
contravene that scheme, principles of separation of
powers and judicial restraint permit—indeed, re1
No counsel for a party authored this brief in whole or in part.
No one other than amici curiae or amici’s counsel made a monetary contribution intended to fund the preparation or
submission of this brief. Amici received consent from Respondents to file this brief. The Government provided blanket
consent to the filing of amici curiae briefs, and a copy of that
letter of consent is on file with the Clerk’s Office.
2
quire—the Court to maintain the constitutionally allocated balance. Amici believe that this case should
be decided on statutory, rather than constitutional,
grounds, as set forth below.
INTRODUCTION AND
SUMMARY OF ARGUMENT
The September 24, 2017 Proclamation (“EO-3”)
conflicts with and exceeds the authority delegated to
the President under the Immigration and Nationality Act of 1965, as amended (“1965 Act”). EO-3 relies
on a sweeping interpretation of the President’s statutory authority to impose indefinite entry restrictions
on the nationals of eight countries: Chad, Iran, Libya,
North Korea, Syria, Venezuela, Yemen, and Somalia
(collectively, with the exception of Venezuela and
North Korea, the “Designated Countries”).2 Proc.
9645, 82 Fed. Reg. 45,161, 45,164–67 (Sept. 24, 2017).
These nationality-based provisions run afoul of two
aspects of the 1965 Act: (1) 8 U.S.C. § 1152(a)(1)(A)
restricts the President’s power to discriminate on the
basis of nationality, among other characteristics, and
(2) the comprehensive statutory scheme enacted by
Congress to determine admissibility and address potential threats cannot be supplanted by the
President. These statutory grounds allow the Court
to avoid the difficult constitutional questions raised
by the parties and provide the cleanest and narrowest basis for the Court to decide this case.
First, the text and history of the 1965 Act show
that Congress intended to prohibit the President
2
Because plaintiffs did not seek to enjoin EO-3 as to nationals
of Venezuela and North Korea, the issues before the Court relate only to nationals of the other six countries. See State v.
Trump, 265 F. Supp. 3d 1140, 1148 n.10 (D. Haw. 2017).
3
from discriminating on the basis of nationality in
making immigration determinations. For much of
the 20th century, U.S. immigration policy barred or
heavily restricted immigration by individuals of certain races and nationalities, including through a
discriminatory
national-origin
quota
system.
In 1965, acting with broad bipartisan support, Congress decisively rejected the quota system and added
a bar on discrimination that provides, subject to specific exceptions not applicable here, that “no person
shall … 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). This prohibition was overwhelmingly supported by both Republicans and
Democrats and reflected the longstanding, if imperfectly applied, American value that people seeking to
enter this country should be considered on the basis
of their individual characteristics. Republicans emphasized that the legislation was intended to
“eliminate all vestiges of discrimination against any
nationality group from our immigration law.” 111
Cong. Rec. at 24,443 (1965). EO-3 violates the plain
text of Section 1152 and attempts to revive discriminatory policies that Congress rightly repudiated.
Second, the President may not unilaterally supplant the comprehensive statutory scheme Congress
enacted and has carefully amended over 50 years.
This scheme provides a detailed framework for addressing the very issues that EO-3 purports to
confront, among them the threat of terrorism and the
variability among nations’ capabilities and willingness to cooperate with American officials. EO-3
attempts to substitute the President’s sweeping nationality-based restrictions for Congress’s more
tailored approach to inadmissibility, which requires
4
the President and the Executive branch to consider
the individual qualities of each person. Viewed in
the context of the statutory scheme, the President’s
limitless interpretation of his statutorily delegated
authority cannot justify EO-3.
Because EO-3 conflicts with the nondiscrimination mandate of the 1965 Act and impermissibly
substitutes the President’s policy determinations for
the judgments of Congress, it exceeds his delegated
authority. For the reasons discussed below, this
Court should affirm the court of appeals’ decision on
these statutory grounds.
ARGUMENT
The constitutional authority to regulate immigration lies with Congress, not the President. Fiallo
v. Bell, 430 U.S. 787, 796 (1977); Head Money Cases,
112 U.S. 580, 591 (1884). The Constitution allocates
this responsibility both through Congress’s general
power “[t]o make all Laws” and through three relevant specific powers: to “establish an uniform Rule of
Naturalization”; to regulate the “Migration” of persons; and to “regulate Commerce with foreign
Nations.” U.S. Const. art. I, §§ 8, 9. Accordingly,
“Congress supplies the conditions of the privilege of
entry into the United States,” and any delegation of
power to the executive is constrained by “congressional intent.”
United States ex rel. Knauff v.
Shaughnessy, 338 U.S. 537, 543 (1950). Because
“[p]olicies pertaining to the entry of aliens and their
right to remain here are … entrusted exclusively to
Congress,” Arizona v. United States, 567 U.S. 387, 409
(2012) (quoting Galvan v. Press, 347 U.S. 522, 531
(1954)), a President who seeks to make policy in the
form of entry restrictions must act pursuant to a valid delegation of authority. Conversely, when the
5
President issues entry restrictions that conflict with
or supplant Congress’s legislated judgments, those
alternative policy determinations lack the authority
of law. Cf. Knauff, 338 U.S. at 543.
That is the case here. The President relies on
two statutory provisions as purported authority for
EO-3: 8 U.S.C. § 1182(f), which provides that the
President may “suspend” or “restrict[]” entry of “aliens” under certain circumstances, and 8 U.S.C.
§ 1185(a)(1), which makes it unlawful “for any alien
to … enter the United States except under such reasonable rules, regulations, and orders, and subject to
such limitations and exceptions as the President may
prescribe.” But those general delegations do not authorize the President to ignore or supplant other
provisions of the comprehensive immigration framework Congress has enacted. Because EO-3 runs
afoul of both Congress’s explicit prohibition on nationality-based discrimination, see Section I, infra,
and the statutory scheme as a whole, see Section II,
infra, it is ultra vires and cannot stand.
I.
EO-3 contravenes the prohibition on
nationality-based discrimination that
Congress, with support from almost all
Republicans, adopted in 1965
Section 1152 provides, subject to specific exceptions not relevant in this case, that “no 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). This
discrimination bar, which reflects long-held American
values, was the centerpiece of Congress’s overhaul of
the immigration laws in 1965. As applicable here,
Section 1152 directly limits the President’s claimed
6
power to implement immigration protocols that discriminate against nationals from specific countries
without considering their personal characteristics.
A. Congress intended to eliminate “all
vestiges of discrimination against any
national group” from our immigration
system
Prior to 1965, our immigration laws openly discriminated against certain groups based on country
of origin. From the 1920s on, the governing immigration statutes included a quota system that
strongly favored nationals of certain countries and
disfavored or entirely excluded others. The 1965 Act
broke with this odious history to end the quota system, added the broad discrimination bar in Section
1152, and established an immigration system that
looks to individual characteristics, rather than membership in a group, as the basis for admissibility or
exclusion. In enacting these reforms, Congress decisively rejected the discriminatory practices that had
characterized U.S. immigration policy since the Civil
War. It also sought to bring our immigration system
in line with values that have animated the American
identity since the founding of our Republic, sometimes in observance and sometimes in the breach.
See H.R. Rep. No. 89-745, at 46 (1965) (explaining
that the purpose of the 1965 Act was to create a “new
system … that is truly nondiscriminatory—a system
that judges all men on the basis of individual merit
and worth without regard to place of birth.”). The
President’s attempt to resurrect discarded policies in
the form of EO-3 must be considered in light of this
history.
7
1.
Members of both parties, and
Republicans in particular, strenuously
repudiated the discriminatory policies
that predated the 1965 Act
By 1965, four U.S. presidents—Presidents Truman, Eisenhower, Kennedy, and Johnson—had
criticized the national-origin quota system as discriminatory and “in direct variance with our
American ideals.” 111 Cong. Rec. 21,768–69 (1965)
(statement of Rep. Donald Clausen, R-Cal.). President Johnson called on Congress to end that system,
and a bipartisan coalition responded with the sweeping reforms of the 1965 Act.
Although the bill was a priority of President
Johnson and was co-sponsored by two Democrats,
Republican members overwhelmingly supported it.
The measure passed the House by a vote of 320-69.
Id. at 25,663–64. 119 Republicans voted for the bill;
only 10 Republicans opposed it, and 12 did not vote.
Id. They were joined by 201 Democrats, with 59
Democrats voting against and 30 abstaining. Id. In
the Senate, the measure was adopted by unanimous
consent. Id. at 25,615–16.
Republicans advocated passionately for the bill.
They condemned nationality-based limitations as inequitable and discriminatory. See, e.g., id. at 21,810
(statement of Rep. Gerald Ford, R-Mich.); id. at
21,807 (statement of Rep. Paul Fino, R-N.Y.); id. at
21,759 (statement of Rep. Clark MacGregor, RMinn.). They advocated for a system in which people
were “evaluated as individuals, not as incorrigible
vassals of a racial, ethnic, or national strain.” Id. at
21,818 (statement of Rep. Silvio Conte, R-Mass.).
They emphasized that “[o]ur immigration law is
predicated upon the principle that all aliens are ad-
8
missible into the United States unless there is some
provision of the law which requires their exclusion.”
Id. at 21,589 (statement of Rep. Arch Moore, R-W.
Va.). They appealed to the values of fairness and
equal treatment. Id. at 21,818 (statement of Rep.
Hastings Keith, R-Mass.). And they invoked a
shared national identity as a reason to adopt the reforms. See id. at 21,778 (statement of Rep. Seymour
Halpern, R-N.Y.) (“The practice of determining a
man’s eligibility for immigration on the basis of his
place of birth, or in some cases that of his ancestors,
has always appeared to me to be clearly at variance
with the American principles we cherish.”). These
statements lent the weight of the Republican Party
and conservative thought to the cause. See id. at
21,788–89 (statement of Rep. John Rhodes, R-Ariz.)
(confirming that the House Republican policy committee had endorsed the bill and explaining that the
Party had long supported “an immigration policy
based upon the individual merit of each applicant rather than upon the individual’s race, place of birth, or
ancestry”).
The statements below, drawn solely from Republican members, are representative of statements by
both Republicans and Democrats. They reflect the
broad support that characterized the immigration reform effort and affirm that nondiscrimination is truly
an American, not a partisan, principle.
• “H.R. 2580 seeks to erase the discrimination
and the preferences that were built up in the
national origins legislation of the 1920’s.” Id.
at 21,810 (statement of Rep. Gerald Ford, RMich.).
• “The single overriding point is that aliens
should and must be evaluated … as future
9
•
•
•
•
Americans, not as former Italians, or Greeks,
or Congolese, or Ethiopians, or anything else.”
Id. at 21,818 (statement of Rep. Silvio Conte,
R-Mass.).
“The bipartisan work of [the Judiciary Committee] represents a signal achievement in an
historic effort to bring justice, sympathy and
understanding to those who yearn to share the
hope that is America … The present outrageously discriminatory policy makes second
class nationalities of many of the world’s people.” Id. at 21,778 (statement of Rep. Seymour
Halpern, R-N.Y.).
“One of the most inequitable parts of our present law is the national origins quota system.
It has been, from its very inception, a discriminatory law. It asks of the immigrant where he
was born and does not treat the man of one
nation as an equal of the man of another country. It does not look at [his] qualifications for
life in the United States.” Id. at 21,807
(statement of Rep. Paul Fino, R-N.Y.).
“We should make the decision courageously
and decisively so that all may know what our
immigration policy is and so that all our
friends around the world may know that they
are equal friends, friends of equal status and
not first- and second-class friends.” Id. at
21,778 (statement of Rep. Robert McClory, RIll.).
“If credit must be given to what is truly a national demand for immigration reform, then it
must be distributed equally between members
of both political parties. For this is genuinely
a bipartisan bill … [it] will place immigration
10
•
•
•
to the United States on a more rational and
equitable basis—consistent with our national
interests and our humanitarian ideals—
without discrimination on the basis of race,
color, religion, or national origin. It will recognize our character as a nation composed of the
peoples of all the nations of the world, our role
as the leader of the free world, and our commitment to freedom and justice for everyone,
everywhere.” Id. at 21,798 (statement of Rep.
Florence Dwyer, R-N.J.).
“In 1960 the Republican platform declared
that the guidelines for our immigration policy
should be based upon the individual merit of
each applicant for admission and citizenship.
This bill, H.R. 2580, as amended, does that.”
Id. at 21,759 (statement of Rep. William
McCulloch, R-Ohio).
“[T]he rationale for the abolition of the national origins quota system is that that system
deliberately discriminates against many of the
peoples of the world.” Id. at 21,759 (statement
of Rep. Clark MacGregor, R-Minn.).
“[H.R. 2580] will correct inequities and injustices which have long been inconsistent with
basic American concepts and with the overall
national interest … This new program … will
return to naturalization procedures the sense
of fairness, opportunity and national pride
which lies at the root of this nation of immigrants. The essence of this legislation, Mr.
Chairman, is the elimination of injustice.” Id.
at 21,818 (statement of Rep. Hastings Keith,
R-Mass.).
11
•
“[T]he action that we are taking here is designed to equalize opportunity to people of all
nations to come here should they meet the
general qualifications imposed … We are making clear to the rest of the world that we
intend to eliminate all vestiges of discrimination against any nationality group from our
immigration law, and in so doing that we intend to live up to our image as the land of
opportunity.” Id. at 24,443 (statement of Sen.
Leverett Saltonstall, R-Mass.).
• “[T]he bill represents a major achievement for
Congress in the effort to wipe out immigration
policies which for more than 40 years have
discriminated against certain people coming
into this country on the basis of their place of
birth rather than their ability and qualification to enter the United States.” Id. at 24,469
(statement of Sen. Jacob Javits, R-N.Y.).
• “[T]oday, America’s true worth and strength
rest upon the contributions—morally, politically, socially, economically—of people of many
national backgrounds and races. This is the
unquestioned genius of the American experience … Our immigration law is predicated
upon the principle that all aliens are admissible into the United States unless there is some
provision of the law which requires their exclusion.” Id. at 21,589 (statement of Rep. Arch
Moore, R-West Virginia).
Democrats were equally passionate in support of
the 1965 Act’s nondiscrimination guarantee. As Senator Kennedy proclaimed, “It will eliminate from the
statute books a form of discrimination totally alien to
the spirit of the Constitution. Distinctions based on
12
race or national origin assume what our law, our traditions, and our commonsense deny: that the worth
of men can be judged on a group basis.” Id. at
24,482–83 (statement of Sen. Robert Kennedy, DN.Y.).3
The content, uniformity, and number of such
statements—of which the above are a small subset—
provides strong evidence that Congress acted purposefully
to
eliminate
nationality-based
discrimination from our immigration laws. Indeed,
members of both parties and President Johnson recognized that this was the 1965 Act’s overriding
purpose.
2.
The 1965 Act rectified missteps in
U.S. immigration policy
Between the Civil War and World War II, American immigration policy was characterized by
invidious discrimination on the basis of race and na3
The Government’s position that Section 1152’s discrimination
bar does not extend to nonimmigrants, who constitute roughly
90% of visa recipients, Gov’t Br. 57, cannot be reconciled with all
other indicia of congressional intent. Discrimination against
temporary workers, foreign students, and other nonimmigrant
visitors—based solely on their country of origin—would fatally
undermine Congress’s goal to “eliminate all vestiges of discrimination against any nationality group from our immigration
law.” 111 Cong. Rec. 24,443 (1965) (emphasis added). Accordingly, Section 1152’s discrimination bar has been applied to
nonimmigrant visas, as well. See Olsen v. Albright, 990 F. Supp.
31, 38–39 (D.D.C. 1997) (holding that consulate policies “based
on … generalizations and stereotypes” constituted impermissible discrimination in the context of nonimmigrant
visas); cf. Wong Wing Hang v. INS, 360 F.2d 715, 719 (2d Cir.
1966) (Friendly, J.) (“invidious discrimination against a particular race or group” is an “impermissible basis” for immigration
decisions).
13
tionality. The Chinese Exclusion Act of 1882 was the
first federal law to exclude individuals on that basis.
That law provided: “[I]t shall not be lawful for any
Chinese laborer to come, or, having so come after the
expiration of said ninety days, to remain within the
United States.” Chinese Exclusion Act of 1882, ch.
126, § 1, 22 Stat. 58, 59 (1882). The law prohibited
Chinese nationals from becoming U.S. citizens and
suspended immigration by Chinese laborers for 10
years. The Geary Act of 1892 extended this period by
another 10 years, ch. 60, 27 Stat. 25 (1892), and Congress made it indefinite in the Act of April 29, 1902,
ch. 641, 32 Stat. 176 (1902). Between the 1890s and
early 1900s, individuals of Chinese origin, and particularly Chinese laborers, were a primary focus of
nationality-based immigration restrictions. See, e.g.,
Scott Act of 1888, ch. 1064, 25 Stat. 504 (1888); Act of
April 27, 1904, ch. 1630, 33 Stat. 394 (1904).
Regrettably, these discriminatory policies were
ratified by the judiciary as legitimate exercises of legislative power. In 1889, the Court upheld the Scott
Act, an addendum to the Chinese Exclusion Act that
prevented Chinese laborers who had left the United
States prior to its enactment from returning. Chae
Chan Ping v. United States (The Chinese Exclusion
Case), 130 U.S. 581 (1889). The Court explained:
“If … the government of the United States, through
its legislative department, considers the presence of
foreigners of a different race in this country, who will
not assimilate with us, to be dangerous to its peace
and security … its determination is conclusive upon
the judiciary.” Id. at 606. Similarly, in 1893, the
Court upheld the Geary Act’s provision that Chinese
noncitizens in the United States obtain certificates of
residence by providing “at least one credible white
14
witness,” among other requirements. Fong Yue Ting
v. United States, 149 U.S. 698, 729–30 (1893).
In the Immigration Acts of 1917 and 1924, Congress expanded these race- and nationality-based
restrictions to cover other parts of the globe. The
1917 Act created the “Asiatic Barred Zone,” extending
the restrictions of the Chinese exclusion laws to
much of Asia and the Polynesian Islands. See Act of
February 5, 1917, ch. 29, 39 Stat. 874 (1917). The
1924 Act adjusted and made permanent the nationalorigin quota system established in 1921, which favored nationals of Northern and Western European
nations over Southern and Eastern Europeans, and
excluded individuals who were ineligible to become
citizens from the United States, effectively banning
immigration from Asian countries. See Immigration
Act of 1924, ch. 190, 43 Stat. 153 (1924) (“1924 Act”).
The explicit purpose of the 1924 Act was to “guarantee, as best we can at this late date, racial
homogeneity in the United States.” H.R. Rep. No. 68350, at 16 (1924); see also id. (explaining that the national-origin quotas had been “divided [so] that the
arrivals from [certain] countries … might be slowed
down in order that the United States might restore
its population balance”).4
The invidious stereotypes on which these laws
were based affected both citizens and noncitizens, inside and outside of the United States. During World
War II, following more than a half-century of exclusion laws targeting individuals from Asia, the
Government ordered thousands of permanent resi4
At the time of the 1924 Act, U.S. law limited naturalization to
“free white persons and to aliens of African nativity and to persons of African descent.” H.R. Rep. No. 68-350, at 6 (1924).
15
dents and U.S. citizens out of certain parts of the
country and into internment camps on the basis of
their Japanese ancestry. See Exec. Order No. 9066,
7 Fed. Reg. 1407 (Feb. 19, 1942). Dissenting from the
majority opinion in Korematsu v. United States, Justice Murphy warned of the dangers of discrimination
based on stereotyped characteristics, even under the
exigent circumstances of war:
The main reasons relied upon by those responsible for the forced evacuation, therefore,
do not prove a reasonable relation between
the group characteristics of Japanese Americans and the dangers of invasion, sabotage
and espionage. The reasons appear, instead,
to be largely an accumulation of much of the
misinformation, half-truths and insinuations
that for years have been directed against
Japanese Americans by people with racial
and economic prejudices.
323 U.S. 214, 239 (1944) (Murphy, J., dissenting).
Although the years immediately before and after
World War II represented the culmination of decades
of discriminatory exclusion policies, they also marked
a turning point away from nationality-based stereotyping and toward individual consideration that
ultimately resulted in the enactment of the 1965 Act.
In 1943, Congress repealed the Chinese Exclusion
Act and related laws. See Magnuson Act of 1943,
Pub. L. No. 78-199, 57 Stat. 600 (1943). Ten years
later, Congress eliminated the racial bar on citizenship in the Immigration and Nationality Act of 1952,
although that statute left the national-origin quota
system in place. See Immigration and Nationality
Act of 1952, Pub. L. No. 82-414, 66 Stat. 163 (1952).
16
It is against this backdrop that Congress considered
the Hart-Celler Act of 1965.
In decisions like The Chinese Exclusion Case and
Korematsu, the Court’s consent to governmentimposed discrimination is widely seen as a nadir of
American principles. To be sure, the Court is neither
the regulator nor the conscience of its co-equal
branches. But where, as here, Congress has acted
unambiguously to eliminate nationality-based discrimination from our immigration laws, and the
President seeks to contravene that intent, it falls to
the Court to safeguard the statutory scheme. Such
action is fully consistent with principles of separation of powers and judicial restraint.
3.
The principles underlying the 1965 Act
are now fundamental to our national
identity
The bipartisan coalition that enacted the 1965
Act saw itself as engaged in a project to bring our
immigration laws in line with longstanding American values. By rejecting the previous system and
replacing it with the framework that, as amended,
controls today, Congress sought to create a “new system … that is truly nondiscriminatory—a system
that judges all men on the basis of individual merit
and worth without regard to place of birth.” H.R.
Rep. No. 89-745, at 46 (1965). These principles have
been core to our national identity since the founding,
although we have not always lived up to them. See S.
Res. 201, 112th Cong. (2011) (explaining, in a formal
apology for the Chinese Exclusion Act and related
laws, that these laws were “incompatible with the
basic founding principles recognized in the Declaration of Independence that all persons are created
17
equal”); H.R. Res. 683, 112th Cong. (2012) (similar
statement by the House of Representatives).
EO-3 seeks not just to contravene Congress’s
purpose but to return us to a period of U.S. immigration history in which the values of equal treatment
and individual consideration gave way to rigid raceand nationality-based preferences. Amici join many
others in condemning such a shift. Conservative
commentator Michael Gerson has explained the abiding implications for our national fabric:
Our national identity—as for other nations—
is ethnic and cultural. [The President’s]
America is vaguely Christian.
Vaguely
1950s. Vividly white. A number of policies
emerge from these convictions: a walled
country, a closed economy and highly restricted immigration … Every U.S. president
since World War II has disagreed with the
stunted and self-defeating view of the country now held by [the President]. Over the
past century—in some ways from the beginning—the United States has been a
cheerfully abnormal nation. American identity (in this view) is not based mainly on
blood or soil, but rather on the patriotic acceptance of a unifying creed.
Michael Gerson, Trump’s Half-Baked Travel Ban Is a
Picture of American Shame, Wash. Post (Jan. 30,
2017), https://wapo.st/2uvajoc (discussing earlier executive order).
These concerns are not mere rhetoric. History
shows that one form of discrimination leads to another, until we take action to stop it. In 1855,
Lincoln acknowledged this effect in correspondence
criticizing the nativist Know-Nothing party:
18
I am not a Know-Nothing. That is certain.
How could I be? … As a nation, we began by
declaring that ‘all men are created equal.’ We
now practically read it ‘all men are created
equal, except Negroes.’ When the KnowNothings get control, it will read ‘all men are
created equal, except Negroes, and foreigners,
and [C]atholics.’ When it comes to this I
should prefer emigrating to some country
where they make no pretence of loving liberty….
2 Abraham Lincoln, To Joshua F. Speed, in Collected
Works of Abraham Lincoln 323 (Roy Basler ed. 1953).
Here, happily, the corrective path is straightforward. In 1965, Congress did take action to end the
nationality-based discrimination that characterized
our former immigration system, and subsequent administrations have reaffirmed this commitment. See
Ronald Reagan, Remarks on Signing the Immigration Reform and Control Act of 1986, 22 Weekly
Comp. Pres. Docs. 1533 (Nov. 6, 1986) (“Our objective
is … to establish a reasonable, fair, orderly, and secure system of immigration into this country and not
to discriminate in any way against particular nations
or people.”). To follow in the tradition of the highest
American principles, it is necessary only to apply
Section 1152 and give effect to Congress’s purpose.
B. EO-3 runs afoul of Congress’s
nondiscrimination guarantee
The discrimination bar in Section 1152 is a more
specific, later-enacted provision that limits the scope
of Sections 1182(f) and 1185(a)(1), the two provisions
upon which EO-3 relies. See Antonin Scalia & Bryan
A. Garner, Reading Law: The Interpretation of Legal
Texts 183–87 (2012).
19
This analysis tracks familiar principles of statutory construction. First, Section 1152 is more specific
than either Section 1182(f) or Section 1185(a)(1).
Section 1182(f) provides:
Whenever the President finds that the entry
of any aliens or of 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.
8 U.S.C. § 1182(f). The Executive authority described
in this provision—defined using general terms such
as “[w]henever,” “any,” and “for such period”—is less
specific in nature than Section 1152’s prohibition on
enumerated forms of discrimination with respect to
the issuance of visas. Moreover, the authority to issue entry restrictions would not logically operate as
an exception to a discrimination bar. On the other
hand, a prohibition on nationality-based discrimination in the issuance of visas could (and, here, does)
operate as an exception to a general grant of authority to withhold visas from individual “aliens” or
“class[es] of aliens.”5
5
The Government attempts to distinguish between visa issuance and admissibility to enter the United States, Gov’t Br. 49–
50, but it is undisputed that EO-3 functions to withhold visas
from nationals of the Designated Countries. Moreover, the proposed distinction would make applesauce of the 1965 Act’s
purpose. Congress could not have intended to guarantee nondiscrimination at foreign consulates only to bar some visa
holders on the basis of nationality at the point of entry.
20
Nor can Section 1185(a)(1) be considered more
specific than Section 1152. Section 1185(a)(1) provides:
Unless otherwise ordered by the President, it
shall be unlawful … for any alien to depart
from or enter or attempt to depart from or
enter the United States except under such
reasonable rules, regulations, and orders, and
subject to such limitations and exceptions as
the President may prescribe.
8 U.S.C. § 1185(a)(1). For the same reasons, this general language does not supersede Section 1152’s bar
on specific categories of discrimination in visa issuance.
Second, Section 1152 is later-enacted than both
Sections 1182(f) and 1185(a)(1). With respect to Section 1182(f), the Government appears to concede the
point. Gov’t Br. 56 (raising a “later-enacted” argument as to Section 1185(a)(1), but not Section
1182(f)). With respect to Section 1185(a)(1), the Government notes that this provision was amended in
1978, Gov’t Br. 56, but nothing in those amendments
suggests that Congress intended to restrict the discrimination bar. In any case, Section 1152 was itself
subsequently amended, in 1996, to add a specific limitation on its scope. See Illegal Immigration Reform
and Immigrant Responsibility Act of 1996, Pub. L.
No. 104-208, § 633, 110 Stat. 3009, 3009 (1996) (adding Section 1152(a)(1)(B), which provides that the
discrimination bar should not be construed to limit
the Secretary of State’s authority to determine the
procedures for and location of immigrant visa processing). Ultimately, the point is immaterial, as
Section 1185(a)(1) is too general in nature to control.
See Morton v. Mancari, 417 U.S. 535, 550–51 (1974)
21
(“[A] specific statute will not be controlled or nullified
by a general one, regardless of the priority of enactment.”).
Applying these principles of statutory construction, Section 1152 cabins the President’s authority
under Sections 1182(f) and 1185(a)(1). Indeed, the
Government concedes that the President could not
“use Section 1182(f) or 1185(a)(1) to revive the quota
system, which would contradict Section 1152(a)(1)’s
core purpose.” Gov’t Br. 52. The same is true with
respect to the discriminatory provisions of EO-3.
Congress intended for the discrimination bar to apply broadly.
See 8 U.S.C. § 1152(a)(1)(A)
(enumerating specific exceptions that do not include
the grants of authority in Sections 1182(f) or
1185(a)(1)). There is no evidence that Congress intended for this discrimination bar to be limited by
any other provision of the 1965 Act, or to prohibit only a quota system. On the contrary, the legislative
history and historical backdrop show that Congress
intended to eliminate all nationality-based discrimination from our immigration laws.
II. The President may not substitute his
alternative policy judgments for Congress’s
comprehensive statutory immigration scheme
The President’s delegated authority in Sections
1182(f) and 1185(a)(1) is further limited by specific
provisions in the 1965 Act that address admissibility
based on individual characteristics and anticipate
potential threats, including terrorism and deficiencies in capabilities or cooperation by other nations.
Taking this comprehensive legislative context into
account, as required by principles of statutory interpretation, EO-3 attempts impermissibly to supplant
Congress’s careful legislative judgments with the
22
President’s alternative policy determinations. But
“the President and federal agencies may not ignore
statutory mandates or prohibitions merely because of
policy disagreement with Congress.” In re Aiken Cty.,
725 F.3d 255, 260 (D.C. Cir. 2013) (Kavanaugh, J.).
The 1965 Act constitutes an “extensive and complex” scheme for “[f]ederal governance of immigration
and alien status.” Arizona v. United States, 567 U.S.
387, 395 (2012). EO-3 attempts to override at least
three aspects of the statutory framework:
(1) Congress’s decision to assess admissibility based
on personal characteristics; (2) Congress’s response
to the threat of terrorism in the immigration context;
and (3) Congress’s criteria for participation in the Visa Waiver Program, which address potential
deficiencies in foreign governments’ vetting procedures.
First, Congress has adopted statutory categories
for inadmissibility that eschew stereotypes regarding
group identity.
Rather, admissibility turns on
whether a particular individual poses a specific
health, safety, or security risk, or is likely to become
a public charge. See, e.g., 8 U.S.C. § 1182(a)(1)(A)
(communicable diseases of public health significance); id. § 1182(a)(2)(A) (conviction of certain
crimes);
id.
§ 1182(a)(3)(A)(i)
(espionage),
id. § 1182(a)(3)(D) (voluntary membership in totalitarian political party); id. § 1182(a)(4) (public
charge); id. § 1182(a)(10)(C) (international child abduction). Thus, Congress has crafted a detailed
legislative scheme, amended over 50 years, that balances the need to confront such diverse threats as
epidemics, crime, and totalitarianism with a commitment to the bedrock American principle that each
individual should be considered on his or her own
merit and circumstances.
23
Second, the 1965 Act provides robust measures to
address the threat of terrorism. Since the 1990s,
Congress has periodically enacted new legislation
that has expanded and refined the list of “specific criteria
for
determining
terrorism-related
inadmissibility,” Kerry v. Din, 135 S. Ct. 2128, 2140
(2015) (Kennedy, J., concurring), to include additional
categories of individual conduct and affiliations, e.g.,
Antiterrorism and Effective Death Penalty Act of
1996, Pub. L. No. 104-132, § 411, 110 Stat. 1214,
1268–69 (1996) (expanding categories of individual
activities that constitute grounds for exclusion); USA
PATRIOT Act, Pub. L. No. 107-56, § 411, 115 Stat.
272, 345–50 (2001) (same); REAL ID Act of 2005,
Pub. L. No. 109-13, § 103, 119 Stat. 231, 306–09
(2005) (same). Current immigration law excludes,
among others, individuals who have “incited terrorist
activity,” served as “representative[s]” of a terrorist
organization, or “received military-type training”
from a terrorist organization.
8 U.S.C.
§ 1182(a)(3)(B)(i). Terms such as “[t]errorist activity”
and “[e]ngage in terrorist activity” are exhaustively
defined. See id. § 1182(a)(3)(B)(iii)–(vi). Congress also has established rules for the vetting of visa
applications, requiring documentation that allows
immigration officials to screen for individuals’ potential terrorist conduct and affiliations.
See id.
§§ 1202(b)–(d), 1361.
To the extent these assessments take nationality
into account, Congress has prescribed detailed procedures for the Executive to follow. For example, in 8
U.S.C. § 1735(a), Congress specified a process for the
Secretary of State, in consultation with other agency
heads, to determine whether a national of a state
sponsor of terrorism poses a national security or public safety threat for purposes of nonimmigrant visa
24
issuance. Congress separately regulates the Secretary of State’s designation of state sponsors of
terrorism. See 8 U.S.C. § 1735(b).
Third, the current statutory framework identifies
specific criteria for the Executive to consider in determining whether the nationals of a particular
country may participate in the Visa Waiver Program.
See Visa Waiver Program Improvement and Terrorist
Travel Prevention Act of 2015, Pub. L. No. 114-113,
§ 203, 129 Stat. 2242, 2989–91, codified at 8 U.S.C.
§ 1187(a)(12). Those criteria include assessments of
a country’s counterterrorism and anti-fraud capabilities, as well as its level of cooperation with the
United States. 8 U.S.C. § 1187(a)(12)(B). Notably,
Congress chose not to make a country’s failure to satisfy the statutory criteria a basis for categorical
exclusion of its nationals. Rather, it provided that a
country’s deficiencies would subject its nationals to
heightened vetting procedures—namely, the requirement to obtain a visa rather than travel on the
Visa Waiver Program. These provisions reflect Congress’s chosen approach to addressing the risks
associated with a country’s deficient capabilities or
cooperation.
EO-3 supplants, rather than complements, Congress’s comprehensive statutory regime. While
Congress gave the President gap-filling discretion to
exclude certain “aliens” or “class[es] of aliens” upon a
finding that their entry “would be detrimental to the
interests of the United States,” 8 U.S.C. § 1182(f),
EO-3 does not purport to address exigent circumstances or, indeed, any circumstances different from
or additional to those contemplated by Congress. On
the contrary, its stated goal of addressing the deficient “capabilities, protocols, and practices” of the
Designated Countries in order to “protect [U.S.] citi-
25
zens from terrorist attacks and other public-safety
threats,” 82 Fed. Reg. 45,161, 45,161–62 (Sept. 24,
2017), is one that Congress already has anticipated
and pursued, including by recent amendments. EO-3
thus seeks to substitute the President’s policies for
Congress’s legislated judgments on the very same
subjects. By providing for a system of categorical
exclusion, EO-3 renders irrelevant Congress’s tailored solutions.6
The President’s broad claim of authority to supersede congressional judgments is foreclosed by the
“fundamental canon of statutory construction that
the words of a statute must be read in their context
and with a view to their place in the overall statutory
scheme.” Util. Air Regulatory Grp. v. E.P.A., 134 S.
Ct. 2427, 2441 (2014) (quotation omitted). This principle goes hand-in-hand with the rule that courts
must avoid any construction “that would render another provision [in the same statute] superfluous.”
Bilski v. Kappos, 561 U.S. 593, 607–08 (2010). By giving effect to all provisions, but reading each in
6
The two examples of “[h]istorical practice” upon which the
Government relies, see Gov’t Br. 53, only confirm the extent to
which EO-3 is an outlier. In 1979, President Carter responded
to the Iran hostage crisis by delegating to his subordinates the
Section 1185(a) power “to prescribe limitations and exceptions
on the rules and regulations” that govern entry with respect to
“Iranians holding nonimmigrant visas.” See Exec. Order No.
12,172, § 1-101, 44 Fed. Reg. 67,947 (Nov. 28, 1979). In 1986,
President Reagan relied on Section 1182(f) to “suspend[]” the
“[e]ntry of Cuban nationals as immigrants” where Cuba had declared its intention to violate a bilateral immigration agreement
and was “facilitating illicit migration to the United States.”
Proc. 5517, 51 Fed. Reg. 30,470 (Aug. 22, 1986). Both situations
involved exigent circumstances not contemplated by Congress
in crafting the statutory scheme.
26
context, courts can construe statutory language in a
manner that, “to the extent possible, ensure[s] that
the statutory scheme is coherent and consistent.” Ali
v. Fed. Bureau of Prisons, 552 U.S. 214, 222 (2008).
This canon is dispositive in interpreting the
scope of Sections 1182(f) and 1185(a)(1), which, if
read in isolation, would (as the Government argues)
appear to grant the President unbounded authority.
When contextualized in the comprehensive statutory
scheme, however, the limited scope of the President’s
authority is manifest.
Several cases illustrate this principle. After the
passage of the Immigration and Nationality Act of
1952, the Court was called upon to interpret a provision granting authority to the Attorney General to
demand information from individuals subject to final
deportation orders. United States v. Witkovich, 353
U.S. 194, 199 (1957). Standing alone, the provision
suggested that the Attorney General could demand
nearly limitless information from such individuals,
backed by a threat of fine or imprisonment. But the
Court rejected an invitation to read the provision “in
isolation and literally” and looked to “the Act as a
whole” to determine that Congress had not conferred
on the Attorney General “unbounded authority.” Id.
The Court held that, in context, the information that
the Attorney General could demand under the statute had to be related to the individual’s availability
for deportation. Id. at 199–202.
The Court similarly has applied this canon to interpret general authorizing statutes for the
Executive branch within other comprehensive statutory schemes, including the Controlled Substances
Act (“CSA”) and the Communications Act of 1934.
See, e.g., Gonzales v. Oregon, 546 U.S. 243, 259–61
27
(2006) (Kennedy, J.) (holding that, despite the broad
language of a CSA provision authorizing the Attorney General “to promulgate rules and regulations …
relating to the registration and control … of controlled substances,” 21 U.S.C. § 821, the Attorney
General could not “transform the carefully described
limits” found elsewhere in the CSA “into mere suggestions”); MCI Telecomms. Corp. v. Am. Tel. & Tel.
Co., 512 U.S. 218, 220, 231–32 (1994) (Scalia, J.) (invalidating an FCC action taken pursuant to a broad
grant of authority under the Communications Act of
1934 because, while the FCC’s “fundamental revision
of the statute … may be a good idea, [] it was not the
idea Congress enacted into law”).
The courts of appeals also have recently applied
these principles, including to enjoin the Obama Administration’s implementation of the Deferred Action
for Parents of Americans and Lawful Permanent Residents (“DAPA”). See Texas v. United States, 809 F.3d
134 (5th Cir. 2015), aff’d by an equally divided court,
United States v. Texas, 136 S. Ct. 2271 (2016). The
Fifth Circuit “appl[ied] the ordinary tools of statutory
construction to conclude that Congress directly addressed, yet did not authorize, DAPA.” Id. at 183
n.191. While the Obama Administration had relied
on “broad grants of authority” in isolated statutes,
the court held that such authority did not permit the
Administration to override “the [1965 Act]’s intricate
system of immigration classifications and employment eligibility.” Id. at 183–84; see also United
States Telecom Ass’n v. FCC, 855 F.3d 381, 420 (D.C.
Cir. 2017) (Kavanaugh, J., dissenting) (evaluating
FCC’s net neutrality rule in the context of legislative
silence).
In short, the immigration policy the President
seeks to implement is not the one Congress enacted.
28
Quite the opposite: Congress designed a statutory
scheme that assesses admissibility on the basis of
individual characteristics and conduct, rather than
nationality, and chose to address potential threats
through heightened vetting requirements, rather
than categorical bars. The detailed inadmissibility
criteria, the specific terrorism-related provisions of
Section 1182(a)(3)(B), and the requirements for inclusion in the Visa Waiver Program—not the general
gap-filling authorizations of Sections 1182(f) and
1185(a)(1)—are the mechanisms Congress established to determine which individuals should be
excluded from the United States. Nothing in the
1965 Act gives the President authority to disregard
Congress’s considered and careful judgment and
supplant his own policy in its stead.
* * *
Congress’s primary authority over issues of immigration and naturalization “has become about as
firmly imbedded in the legislative and judicial tissues of our body politic as any aspect of our
government.” Galvan v. Press, 347 U.S. 522, 531
(1954). The role of the Executive, on the other hand,
is the “enforcement of these policies … formulat[ed]”
by Congress. Id. “That kind of Executive action is
always subject to check by the terms of the legislation that authorized it; and if that authority is
exceeded it is open to judicial review.” INS v.
Chadha, 462 U.S. 919, 953 n.16 (1983). Here, because EO-3 exceeds the authority delegated to the
President in Sections 1182(f) and 1185(a)(1), the
Court may resolve the case on statutory grounds.
Congress expressly rejected the pre-1965 system of
nationality-based discrimination, replacing it with a
detailed scheme that requires individualized admissibility determinations, and it has refined this
29
framework to confront the very challenges that EO-3
purports to address. This comprehensive statutory
scheme precludes the alternative policy determinations of EO-3.
CONCLUSION
The decision of the court of appeals should be
affirmed.
Respectfully Submitted,
JOHN B. BELLINGER, III
Counsel of Record
ELLIOTT C. MOGUL
KAITLIN KONKEL
ARNOLD & PORTER
KAYE SCHOLER LLP
601 Mass. Ave., NW
Washington, DC 20001
(202) 942-5000
john.bellinger@arnoldporter.com
R. REEVES ANDERSON
ARNOLD & PORTER
KAYE SCHOLER LLP
370 Seventeenth Street
Suite 4400
Denver, CO 80202
(303) 863-1000
Counsel for Amici Curiae
March 30, 2018
APPENDIX
30
APPENDIX
List of Amici Curiae
1.
Evan McMullin is a co-founder of Stand Up
Ideas, an organization dedicated to the promotion of democratic ideals, norms, and
institutions. He ran as an independent candidate for President in the 2016 election.
2.
Anne Applebaum is a Pulitzer Prize-winning
historian and professor of Practice at the
London School of Economics.
3.
Max Boot is the Jeane J. Kirkpatrick Senior
Fellow in National Security Studies at the
Council on Foreign Relations, a columnist for
the Washington Post, and a best-selling historian.
4.
Linda Chavez is a conservative writer and
former staff director of the U.S. Commission
on Civil Rights during the Reagan Administration and U.S. Expert to the United
Nations Sub-commission on the Prevention of
Discrimination and Protection of Minorities.
5.
Eliot A. Cohen was Counselor of the Department of State, 2007–2009.
6.
Mindy Finn is a co-founder of Stand Up Ideas,
an organization dedicated to the promotion of
democratic ideals, norms, and institutions.
She ran as an independent candidate for Vice
President in the 2016 election.
7.
Juleanna Glover is a corporate consultant
who has advised many Republicans, including
George W. Bush, Richard Cheney, John
McCain, Rudy Giuliani, John Ashcroft, and
Steve Forbes.
31
8.
Norman Ornstein, a political scientist and
expert on Congress and the executive, is a
resident scholar at the American Enterprise
Institute. He is signing as an individual.
9.
Michael Steele is the former Lt. Governor of
Maryland and the former Chairman of the
Republican National Committee. He is signing as an individual.
10. Charlie Sykes is a conservative author and
commentator. He is signing as an individual.
11. Jerry Taylor is the President of the Niskanen
Center.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.