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, PRESIDENT

OF THE UNITED STATES, et al.,

Petitioners,

v.

STATE OF HAWAI‘I, et al.,

Respondents.

On Writ of Certiorari to the United States

Court of A ppeals for the Ninth Circuit

BRIEF OF NEW YORK UNIVERSITY

AS AMICUS CURIAE IN SUPPORT

OF RESPONDENTS

Of Counsel:

Terrance J. Nolan

General Counsel

and Secretary

New York University

70 Washington Square

South, 11th Floor

New York, New York 10012

(212) 998-2257

Steven E. Obus

Counsel of Record

Seth D. Fiur

Tiffany M. Woo

Om V. A lladi

Proskauer Rose LLP

11 Times Square

New York, New York 10036

(212) 969-3000

sobus@proskauer.com

Lary A. Rappaport

Proskauer Rose LLP

2049 Century Park East

Los Angeles, California 90067

(310) 557-2900

Attorneys for Amicus Curiae

March 30, 2018

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . iii

Interest of Amicus Curiae . . . . . . . . . . . . . . . . 1

Introduction and Summary

of the Argument . . . . . . . . . . . . . . . . . . . . . . . . 2

Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

I.

A Diverse International Community is

Critical to NYU’s Identity and Mission . . . . . . . 3

II. The Proclamation Significantly Harms

NYU and Its Constituents . . . . . . . . . . . . . . . . . . 7

III. The Proclamation Has the Same Unlawful

Policy Outcomes as Its Predecessors,

In Violation of the Constitution and

the Immigration and Nationality Act . . . . . . . . 16

A. T he P r o cl a m at ion V iol at e s t he

Establishment Clause . . . . . . . . . . . . . . . . . 17

B. The Immigration and Nationality

Act Limits Executive Authority to

Engage in Discriminatory Conduct . . . . . . 20

ii

Table of Contents

Page

C. The Proclamation’s Context and History

Reveal that the Proclamation Violates

the Constitution and the INA . . . . . . . . . . . 24

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

iii

TABLE OF CITED AUTHORITIES

Page

Cases

Am. Acad. of Religion v. Napolitano,

573 F.3d 115 (2d Cir. 2009) . . . . . . . . . . . . . . . . . . . . . 20

Arce v. Douglas,

793 F.3d 968 (9th Cir. 2015) . . . . . . . . . . . . . . . . . . . . 17

Bery v. City of New York,

97 F.3d 689 (2d Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . 9

Bolling v. Sharpe,

347 U.S. 497 (1954) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Cardenas v. United States,

826 F.3d 1164 (9th Cir. 2016) . . . . . . . . . . . . . . . . 19-20

Church of Lukumi Babalu Aye, Inc. v. Hialeah,

508 U.S. 520 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Clark v. Jeter,

486 U.S. 456 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Cty. of Allegheny v.

ACLU Greater Pittsburgh Chapter,

492 U.S. 573 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Dep’t of Agric. v. Moreno,

413 U.S. 528 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

iv

Cited Authorities

Page

FDA v. Brown & Williamson Tobacco Corp.,

529 U.S. 120 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Fisher v. Univ. of Tex. at Austin,

570 U.S. 297 (2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Galvan v. Press,

347 U.S. 522 (1954) . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Grutter v. Bollinger,

539 U.S. 306 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9

Hassan v. City of New York,

804 F.3d 277 (3d Cir. 2015) . . . . . . . . . . . . . . . . . . . . . 17

Hawai‘i v. Trump,

859 F.3d 741 (9th Cir. 2017) . . . . . . . . . . . . . . . . . . . . 18

Hawai‘i v. Trump,

878 F.3d 662 (9th Cir. 2017) . . . . . . . . . . . . . . . . . . . . 22

Int’l Refugee Assistance Project v. Trump,

883 F.3d 233 (4th Cir. 2018) . . . . . . . . . . . 18, 25, 27, 32

Int’l Refugee Assistance Project v. Trump,

857 F.3d 554 (4th Cir. 2017) . . . . . . . . . . . . . . . . . . . . 19

Kent v. Dulles,

357 U.S. 116 (1958) . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

v

Cited Authorities

Page

Kerry v. Din,

135 S. Ct. 2128 (2015) . . . . . . . . . . . . . . . . . . . . . . 18, 19

Keyishian v.

Bd. of Regents of Univ. of State of N.Y.,

385 U.S. 589 (1967) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Kleindienst v. Mandel,

408 U.S. 753 (1972) . . . . . . . . . . . . . . . . . . . . . 18, 19, 20

Larson v. Valente,

456 U.S. 228 (1982) . . . . . . . . . . . . . . . . . . . . . . . . 17, 34

Legal Assistance for Vietnamese Asylum

Seekers v. Dep’t of State,

45 F.3d 469 (D.C. Cir. 1995), vacated on other

grounds, 519 U.S. 1 (1996) . . . . . . . . . . . . . . . . . . . . . 21

Marks v. United States,

430 U.S. 188 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

McCreary Cty., Ky. v. ACLU of Ky.,

545 U.S. 844 (2005) . . . . . . . . . . . . . . . . . . . . . 17, 26, 32

Miller v. Johnson,

515 U.S. 900 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Regents of Univ. of Cal. v. Bakke,

438 U.S. 265 (1978) . . . . . . . . . . . . . . . . . . . . . . . 8, 9, 16

vi

Cited Authorities

Page

Romer v. Evans,

517 U.S. 620 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Sale v. Haitian Ctrs. Council, Inc.,

509 U.S. 155 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Trump v. Int’l Refugee Assistance Project,

137 S. Ct. 2080 (2017) . . . . . . . . . . . . . . . . . . . . . . . . . . 2

United States v. Witkovich,

353 U.S. 194 (1957) . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Vill. of Arlington Heights v.

Metro. Hous. Dev. Corp.,

429 U.S. 252 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Washington v. Trump,

847 F.3d 1151 (9th Cir. 2017) . . . . . . . . . . . . . . . . . 8, 27

Zadvydas v. Davis,

533 U.S. 678 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Statutes

8 U.S.C. § 1152(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . 21

8 U.S.C. § 1182 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

8 U.S.C. § 1182(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 24

vii

Cited Authorities

Page

8 U.S.C. § 1185(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Immigration and Nationality Act of 1965

Section 202 . . . . . . . . . . . . . . . . . . . . . . . . . 21, 22, 23, 24

Immigration and Nationality Act of 1965

Section 212(f) . . . . . . . . . . . . . . . . . . . . . . . 21, 22, 23, 24

Immigration and Nationality Act of 1965

Section 215(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Other Authorities

U.S. Const. art. I, § 8, cl. 4 . . . . . . . . . . . . . . . . . . . . . . . 23

Proc. No. 9645 (2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Sup. Ct. R. 37 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

111 Cong. Rec. 21,778 (1965) . . . . . . . . . . . . . . . . . . . . . . 20

111 Cong. Rec. 24,225 (1965) . . . . . . . . . . . . . . . . . . . . . . 20

Hearings Before Subcomm. No. 1 of the Comm.

on the Judiciary, House of Representatives,

on H.R. 7700 and 55 Identical Bills, 88th

Cong. 901-02 (1964) as reprinted in 10A

Oscar Trelles & James Bailey, Immigration

and Nationality Acts: Leglistative Histories

and Related Documents, doc. 69A (1979) . . . . . . . . . 21

1

Interest of Amicus Curiae1

Amicus curiae New York University (“NYU” or

the “University”) is an institution of higher learning

headquartered in New York City, with campuses on

nearly every continent. A critical component of NYU’s

global mission is to create an environment that fosters

achievement borne of the free exchange of ideas and

information. NYU advances that mission by welcoming

and engaging students and scholars from the broadest

range of backgrounds and nationalities around the world.

As a global university centered in New York City—one

of the world’s most internationally diverse cities—NYU

has a vital interest in the proper administration, within

constitutional limits, of the immigration laws of the United

States. NYU is deeply concerned that Proclamation

9645 issued by the President on September 27, 2017,

titled “Enhancing Vetting Capabilities and Processes

for Detecting Attempted Entry Into the United States

by Terrorists or Other Public-Safety Threats” (the

“Proclamation”), like its predecessor Executive Orders,

exceeds those limits. If allowed to stand, it would impair

unique educational opportunities that NYU is otherwise

1. The parties consent to the filing of this brief, which

authorizes NYU to file it pursuant to Sup. Ct. R. 37. Petitioners

have provided blanket consent for the filing of amicus curiae

briefs, and Respondents have provided their written consent to

the filing of this brief. No counsel for a party authored this brief in

whole or in part, and no party, or counsel for a party, contributed

money intended to fund the preparation or submission of this brief.

No person other than the amicus curiae, its constituents or its

counsel contributed money intended to fund the preparation or

submission of the brief.

2

able to provide, inflicting harm on the University, on its

constituents and on the community at large. This Court

has implicitly recognized the importance of relationships

between entities like NYU and foreign nationals whom the

Proclamation—like the Executive Orders before it—seeks

to bar. See Trump v. Int’l Refugee Assistance Project

(“IRAP I”), 137 S. Ct. 2080, 2089 (2017) (“An American

individual or entity that has a bona fide relationship with

a particular person seeking to enter the country as a

refugee can legitimately claim concrete hardship if that

person is excluded.”).

Introduction and Summary

of the Argument

Thousands of prospective students apply to NYU

every year, seeking the opportunity to study at one of

the most internationally diverse universities in the world.

At the core of NYU’s institutional mission are the twin

aims of providing an exceptional academic experience

for its students and fostering world-class international

scholarship. NYU has invested significant resources in

developing an environment in which its diverse student

body and faculty can thrive, for the benefit of the

academic community, the United States, and the world.

Implementation of the Proclamation would significantly

undermine these efforts.

By obstructing the entry of international students,

faculty and other scholars into the United States based

solely on their having come from one of the Muslimmajority countries singled out for adverse treatment in

the Proclamation—without any reason to believe that

these individuals are involved in any terrorist activity—

the Proclamation gratuitously and unlawfully encumbers

3

NYU’s ability to conduct its many international programs,

which rely on input from faculty and students from the

affected countries. The Proclamation also impairs NYU’s

ability to transmit its strongly-held values abroad, and

obstructs its ability to provide to all of its students the

educational benefits that flow from a fully diverse student

body and faculty. For these reasons, among others, this

Court should find that the Proclamation exceeds the

President’s statutory authority under the INA and violates

the Constitution, and affirm the preliminary injunction

granted below.

Argument

I.

A Diverse International Community is Critical to

NYU’s Identity and Mission.

NYU is a “Global Network University,” with campuses

around the world, including in Africa, Asia, Europe, North

America, and South America. 2 These campuses offer all

NYU students a range of multi-disciplinary opportunities

for research, teaching and scholarly collaboration. In

addition to developing its own campuses, NYU has

partnered with numerous schools worldwide both to create

educational opportunities for international students and

scholars3 and to expose its domestic students to the vast

2. See The Global Network, NYU, https://www.nyu.edu/

faculty/‌governance-policies-and-procedures/faculty-handbook/

the-university/organization-and-administration/the-globalnetwork.html.

3. See Global Academic Partnerships and Affiliations, NYU,

https://www.nyu.edu/faculty/global-academic-partnerships-and‌a ffiliations.html (describing global partnerships and affiliations

4

wealth of experience and knowledge that can be gained

by traveling, researching and studying abroad.4

Attracting to the United States international students

and scholars from a wide variety of backgrounds is

intrinsic to NYU’s success as an educational institution. To

that end, NYU has made it a priority to “embrace diversity

among faculty, staff and students to ensure a wide range

of perspectives, including international perspectives, in

the educational experience.”5 Its efforts have been highly

successful—in 2016-2017, NYU hosted more international

students and scholars than any other university in the

United States—more than 17,000 international students

and more than 1,220 international scholars6 constituting

more than a third of NYU’s graduate student population,

with schools for the humanities, business, medicine, sociology,

anthropology, and the arts, located in Accra, Berlin, Buenos Aires,

Florence, London, Madrid, Paris, Prague, Sydney, Tel Aviv, and

Washington D.C.); see also Update on Faculty Engagement and

Academic Development at the Global Sites (6/11/15 Memo), NYU

(June 11, 2015), https://www.nyu.edu/faculty/global-academicpartnerships-and-‌a ffiliations/memos/faculty-engagementjune-2015.html (detailing the growth of new collaborative

programs with faculty, students and departments at partnership

and affiliate schools).

4. See, e.g., NYU International Exchange Program, NYU,

https://w w w.nyu.edu/academics/studying-abroad/exchange/

internationalexchange.html; Stern IBEX (International Business

Exchange), NYU, https://www.nyu.edu‌‌‌‌/academics/studyingabroad/exchange/stern-ibex-international-business-exchange.

html.

5. NYU Mission Statement, www.nyu.edu/about.

6. Annual Report: September 1, 2016 - August 31, 2017, NYU

Office of Global Services, https://www.nyu.edu/content/dam/nyu/

globalServices/documents/annualreport/annualReport2016-17.

pdf.

5

and nearly a fifth of its undergraduate population. The

most creative, talented, and industrious members of

communities all over the world have at one time called

NYU home.7

NYU’s presence in New York City has itself played

an integral role in the University’s ability to achieve its

international mission, proudly “tak[ing] its name and spirit

from one of the busiest, most diverse and dynamic cities

of all.”8 Millions of immigrants have come to New York as

the first step toward making a life in the United States9

believing that the Statue of Liberty in fact welcomes the

“huddled masses yearning to breathe free . . . .”10 New York

is home to millions of foreign-born residents—more than

7. Many NYU alumni from foreign countries have gone

on to become leaders in their communities. To take but a few

examples, NYU alumni Shimon Peres, the ninth President of

Israel, and former Egyptian vice president Mohammed Mustafa

ElBaradei, both won the Nobel Peace Prize for their contributions

to the region targeted by the Proclamation. Working with fellow

NYU School of Medicine alumnus Jonas Salk, Albert Sabin

developed oral polio vaccines that played a key role in substantially

eradicating the disease. More recently, Eric Richard Kandel, who

also attended NYU’s School of Medicine, was awarded a Nobel

Prize in Physiology or Medicine for discoveries that paved the way

to the modern understanding of memory formation.

8. NYU Mission Statement, www.nyu.edu/about.

9. From 1892 to 1954 alone, over twelve million immigrants

came to the United States through Ellis Island. See Ellis Island

History, www.libertyellisfoundation.org/ellis-island-history.

10. Emma Lazarus, The New Colossus, Liberty State Park

(1883), http://www.libertystatepark.com/emma.htm (last accessed

Mar. 27, 2018).

6

a third of the City’s population.11 The City has long served

as a hub of international commerce, cultural exchange and

diplomacy. Its international influences are woven into the

fabric of everyday life experienced by NYU’s students

and scholars12 and its spirit infuses and amplifies NYU’s

culture of embracing diversity.

NYU’s mission and values are embodied in the words

of its current president, Dr. Andrew Hamilton, himself an

immigrant. In a letter to the NYU community addressing

the January 27, 2017 Executive Order that preceded the

Proclamation now at issue in this case, Dr. Hamilton

articulated the importance of free movement across

borders in pursuit of scholarship and the harm arising

from its unwarranted obstruction:

As a scientist who studied and worked in four

countries before becoming a citizen of the U.S.,

11. Thomas P. DiNapoli, The Role of Immigrants in the New

York City Economy, New York State Comptroller Report 7-2016

(Nov. 2015), https://osc.state.ny.us/osdc/rpt7-2016.pdf (“Nearly

three-quarters of the 4.4 million immigrants in New York State

live in New York City . . . .”).

12. Students Share International Experiences at Global

Engagement Symposium, NYU Liberal Studies (Mar. 20, 2015),

http://liberalstudies.nyu.edu/content/nyu-as/liberalstudies/

news-events/students-share-international-experiences-at-globalengagement-sy.html (“[Students] presented on experiences that

included installing a solar electricity system in a Nicaraguan

village, independent research into NYU London’s history as the

headquarters of a musicians’ club, and writing a policy report on

asylum seekers in Tel Aviv.”) (One student commented: “One of

the main reasons I decided to study at NYU was the opportunity

for global experiences.”).

7

I know how important it is to be able to move

across borders in peaceful pursuit of one’s

scholarship. I know, too, more than most given

my background and my field, how much goodwill

the U.S. earns for itself through the openness

of its education system and how widely those

who study here can spread American values.

And I know, as well, that these developments

are not just a matter of disrupted educational

plans or lost opportunities or even damage

to the academic enterprise; beyond all that,

this order harms one of the most admired and

cherished of American principles–religious

non-discrimination itself.13

II. The Proclamation Significantly Harms NYU and

Its Constituents.

By indiscriminately targeting individuals from the

Muslim-majority countries of Iran, Libya, Somalia,

Chad, Syria and Yemen without any basis to believe that

such individuals pose the slightest threat to the national

security of the United States, the Proclamation improperly

compromises the diversity that is central to NYU’s

identity and mission.14 Approximately 120 NYU students

13. Letter from Dr. Andrew Hamilton to NYU Community

(Jan. 29, 2017), http://www.nyu.edu/about/leadership-universityadministration/office-of-‌t he-president/communications/therecent-executive-order-on-immigration.html.

14. The Proclamation also imposes travel restrictions on

nationals from Venezuela and North Korea. Proclamation § 1(g).

Those restrictions are not covered by Respondents’ challenge to

the Proclamation.

8

and ten scholars at the New York City campus alone come

from the six Muslim-majority countries specified in the

Proclamation. Many others from those countries would

be discouraged or prevented by the Proclamation from

joining them at NYU.

Courts have long emphasized the importance

of promoting diversity and freedom in educational

environments, recognizing that, due to the classroom’s

vital role as a “marketplace of ideas,” constitutional

protections are “nowhere more vital than in the community

of American schools.” Keyishian v. Bd. of Regents of Univ.

of State of N.Y., 385 U.S. 589, 603 (1967) (citation omitted).

“The nation’s future depends upon leaders trained through

wide exposure to that robust exchange of ideas which

discovers truth out of a multitude of tongues, [rather] than

through any kind of authoritative selection.” Id. (internal

citation and quotation marks omitted).

Diversity similarly “helps to break down racial

stereotypes, and enables [students] to better understand”

those with different backgrounds. Grutter v. Bollinger,

539 U.S. 306, 330 (2003) (alteration in original). As a

result, diversity helps impart the “skills needed in today’s

increasingly global marketplace” by “expos[ing] [students]

to widely diverse people, cultures, ideas, and viewpoints.”

Id.; see also Keyishian, 385 U.S. at 603. Recognizing these

benefits, the Supreme Court has held that the Constitution

protects a school’s “right to select those students who will

contribute the most to the ‘robust exchange of ideas . . . .’”

Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 313 (1978);

Washington v. Trump, 847 F.3d 1151, 1159 (9th Cir. 2017)

(recognizing a school’s ability to assert harm on behalf

of its students, including harm to the university’s ability

9

to accomplish its global mission); see also Fisher v. Univ.

of Tex. at Austin, 570 U.S. 297, 308 (2013) (recognizing

compelling governmental interest in “the educational

benefits that flow from a diverse student body”).

By its very nature and goals, the Proclamation

threatens that constitutionally protected diversity. See

Fisher, 570 U.S. at 308; Grutter, 539 U.S. at 328 (observing

that a school’s “educational judgment that such diversity

is essential to its educational mission is one to which we

defer”); Bakke, 438 U.S. at 313; see also Bery v. City of

New York, 97 F.3d 689, 694 (2d Cir. 1996) (“When an

alleged deprivation of a constitutional right is involved,

most courts hold that no further showing of irreparable

injury is necessary.” (quoting 11 Charles A. Wright

& Arthur R. Miller, Federal Practice and Procedure

§ 2948, at 440 (1973))).

The harm that flows from the Proclamation is in

any case manifest. By targeting the populations of

Muslim-majority nations for exclusion from the United

States, the Proclamation hinders NYU’s efforts to

expose international students and scholars to a broad

array of ideas and inf luences. This cross-cultural

exchange buttresses key democratic traditions, such

as free speech, a free press,15 free and fair elections,

15. Indeed, many NYU graduates of the Near Eastern

Studies program have gone on to be respected journalists, helping

shape the thoughts for millions of readers about life and culture

in the affected regions. Jared Malsin, who graduated from NYU’s

Near Eastern Studies in 2010, is TIME magazine’s Middle East

bureau chief, and former West Bank and Gaza Palestinian news

agency Ma’an chief English editor. See About – Jared Malsin,

http://jaredmalsin.com/about.html. Habib Battah, who graduated

10

and freedom of assembly.16 By fostering a culture of

international exchange and dialogue, rather than fear

and hatred, NYU’s international programs thus combat

radicalization.17 Reducing this cross-cultural exchange

will deprive NYU of opportunities to share those key

democratic traditions with students from abroad.18 And in

from NYU’s Near Eastern Studies and Global Journalism program

in 2010, is a prominent journalist in Al Jazeera covering terrorism

in the Middle East among other events. See Habib Battah Profile,

Al Jazeera, http://www.aljazeera.com/profile/habib-battah.html.

16. See, e.g., Security Council, Unanimously Adopting

Resolution 2250 (2015), Urges Member States to Increase

Representation of Youth in Decision-Making at All Levels, United

Nations, Meetings Coverage and Press Releases, https://www.

un.org/press/en/2015/sc12149.doc.htm (highlighting the need for

“quality education for peace that equips youth with the ability to

engage constructively in civic structures and inclusive political

processes”).

17. See, e.g., Preventing Violent Extremism Through

Promoting Inclusive Development, Tolerance and Respect for

Diversity, United Nations Development Programme 11 (2016)

(identifying as one strategy to prevent violent extremism

“[p]romoting respect for human rights, diversity and a culture

of global citizenship in schools and universities”); see also Marta

Mikilikowska, Development of anti-immigrant attitudes in

adolescence: The role of parents, peers, intergroup friendships,

and empathy, British Journal of Psychology (2017), http://

onlinelibrary.wiley.com/doi/10.1111/bjop.12236/abstract (showing

that adolescents with immigrant friends are “less affected by

parents and peers’ prejudice than youth without immigrant

friends”).

18. See, e.g., Study Away in the US and Around the World,

Studying Abroad, N YU, https://w w w.nyu.edu /academics/

studying-abroad.html (video testimonials of NYU students

studying abroad) (“Regardless of where you go, you’re going

to experience, you know, a beautiful city and a beautiful place,

11

doing so, the Proclamation will diminish the global reach

of American universities and risk robbing the nation, and

the world, of their potential contributions.

Beyond its impact on the NYU community’s ability to

disseminate important shared values, the Proclamation

threatens NYU’s own diverse international community,

harming the University’s current and prospective

students, scholars, and faculty. In addition to the day-today cultural exchange that occurs at a diverse university,

NYU has many programs that facilitate the understanding

of other cultures, such as the Hagop Kevorkian Center

(“the Center”), which focuses on Near Eastern studies

and was created “to foster the interdisciplinary study

of the modern and contemporary Middle East and to

enhance public understanding of the region.”19 To achieve

this goal, it hosts events exploring topics such as “current

events and policy issues relating to the Middle East,” 20

some of which include discussions relating specifically to

the countries affected by the Proclamation. 21 The Center

you are going to meet new people, you are going to have new

experiences and opportunities, you are going to grow personally,

you are going to grow academically, and you’re going to come back

a better person.”).

19. About, Hagop Kevorkian Center for Near Eastern

Studies, NYU, http://as.nyu.edu/neareaststudies/about.html.

20. Id.

21. See Events Listing, Hagop Kevorkian Center for Near

Eastern Studies, NYU, http://as.nyu.edu/neareaststudies/events.

html. For example, a discussion about the Muslim Brotherhood and

the Politics of Reurbanization is planned for April 12, 2018. See

Notes from Who’s Who: The Muslim Brotherhood and the Politics

of Rurbanization, NYU, http://as.nyu.edu/neareaststudies/

events/spring-2018/the-muslim-brotherhood-and-the-politics-of-

12

also collaborates with “nearly 100 teachers from public

and private schools across the New York metropolitan

area to participate in Center-sponsored workshops on

the Middle East,” which allow Center-affiliated faculty

to “share expertise on the Middle East with journalists

and government agencies on a regular basis and discuss

current events and policy issues at university and

community events.” 22 These programs are vital to public

awareness, which is crucial to NYU’s ability to serve as

an educational institution “fitting for all and graciously

open[] to all.” 23

rurbanization.html. A lecture discussing how to theorize about the

influence of ISIS and other radical Islamist groups is scheduled

to be led by the Chair of the International History Department

at the Graduate Institute of International and Development

Studies in Geneva, occurred on March 29, 2018. See Reading ISIS,

NYU, http://as.nyu.edu/neareaststudies/events/spring-2018/atheory-of-isis---political-violence-and-the-transformation-of-.

html. A talk about gendered reasoning in Iranian metaphysics

will occur on April 19, 2018. See The Iranian Metaphysicals:

Spiritual Empiricism and the Gender of Reason, NYU, http://

as.nyu.edu/neareaststudies/events/spring-2018/the-iranianmetaphysicals--spiritual-empiricism-and-the-gender-o.html. A

discussion about religious socio-historical processes that have

influenced Iranian politics will take place on April 27, 2018. See

God and Man in Tehran, NYU, http://as.nyu.edu/neareaststudies/

events/spring-2018/god-and-man-in-tehran.html. An International

Conference concerning Latin American-Middle Eastern ties is

planned for April 27, 2018. The Latin East/New Perspectives

on Latin-America-Middle East Ties, NYU, http://as.nyu.edu/

neareaststudies/events/spring-2018/save-the-date--the-latin-east--an-international-conference.html.

22. See About, Hagop Kevorkian Center for Near Eastern

Studies, NYU, http://as.nyu.edu/neareaststudies/about.html.

23. See NYU Mission Statement, www.nyu.edu/about.

13

From the joint master’s degrees offered by the

Center to the graduate programs offered by the Middle

Eastern and Islamic Studies program, the value of NYU’s

educational opportunities is substantially predicated

on the quality and diversity of its faculty and students.

The Proclamation interferes with numerous on-campus

programs like these, which are central to creating an

environment of intellectual and cultural exchange,

and thus heightened international awareness and

understanding, at a time when such understanding is more

important than ever. 24

Finally, all students suffer when the diversity of ideas

and backgrounds to which they are exposed is diminished.

See Fisher, 570 U.S. at 308. Unchecked, the Proclamation

has a direct and immediate impact on the large number of

international students and scholars who wish to become

affiliated with NYU or to participate in NYU academic

conferences in their fields. Prospective students who have

yet to enroll will be delayed or entirely prevented from

beginning their academic careers.

The Proclamation denies students and scholars of vast

untapped potential the success of which they are capable,

harming them, the NYU community, and ultimately

24. See, e.g., Nassir Abdulaziz Al Nasser (High Representative

for United Nations Alliance of Civilizations), UNOAC | Remarks

|Parliamentary Assembly of the Mediterranean (Feb. 23, 2017),

https://www.unaoc.org/2017/02/‌r emarks-11th-plenary-sessionparliamentary-assembly-of-the-mediterranean/ (commenting

on the rise “of violence and xenophobia against minorities” and

remarking that “inclusiveness has become a pre-requisite for

peaceful society” when it comes to “migration laws,” and that

“[p]romoting and strengthening dialogue is an essential tool to

prevent and defeat violent and extremist ideologies”).

14

the world as a whole. For example, Shadi Heidarifar, a

prospective graduate student who was accepted to schools

worldwide but wanted to study in the United States, was

not able to attend classes at NYU with worldwide leaders

in her field. 25 Ms. Heidarifar has written that because of

the January 27, 2017 Executive Order that preceded the

Proclamation, her “entire future [was] destroyed in one

second.”26 After saving money for the application fees “that

a whole family could live [on] for a month,” Ms. Heidarifar’s

dreams of studying at NYU were shattered. 27 Ms.

Heidarifar is now enrolled at the University of Western

Ontario, in Canada.

Although the Proclamation in its present iteration

does not seek to suspend the entry of Iranian nationals

under valid student and exchange visitor visas, similarly

situated prospective students from the other countries

covered by the Proclamation remain very much at

risk of having their academic futures eradicated in an

instant, and the NYU community is at risk of losing their

unique perspectives and contributions to the University

community. NYU’s Brennan Center for Justice has noted

this issue in connection with litigation challenging the

25. See Samantha Michaels, I’m an Iranian Woman Whose

Dream Is to Study in America. Here’s My Message for Trump.,

Mother Jones (Jan. 29, 2017), http://www.motherjones.com/

politics/2017/01/iranian-student-trump-immigration (“We Iranian

students strongly believe that diversity in ethnicity, race, religion,

and color is one of the greatest strengths of the United States.

And Trump’s Muslim ban will destroy this.”).

26. Thomas Erdbrink, ‘How do I Get Back Home?’ Iranians

Turned Away from Flights to U.S., N.Y. Times (Jan. 28, 2017),

https://www.nytimes.com/2017/01/28/world/asia/how-do-i-getback-home-iranians-turned-away-from-flights-to-us.html.

27. Id.

15

validity of the Proclamation as it relates to individuals,

including one plaintiff’s sister who had been accepted

at Ohio State University, but who would not be able to

pursue her academic studies should the Proclamation go

into effect. 28 As Michael Price, a Brennan Center Senior

Counsel, noted, the affected student could have been an

NYU student, and that as a result of the Proclamation,

“NYU will be deprived of the chance to have students

from diverse populations and . . . Muslim students from

the targeted countries,” which “is a loss for everybody, for

the university, and those potential students.” 29 Thus, as a

direct result of the Proclamation, universities like NYU

will be deprived of diverse, capable students who have the

potential to contribute to the universities they attend and

the world as a whole. 30

An integral part of the “business of a university [is]

to provide that atmosphere which is most conducive to

2 8 . See A my Rhee, Brenn an Center Su es Tr ump,

Washington Square News (Oct. 16, 2017), https://www.nyunews.

com/2017/10/16/brennan-center-sues-trump/. The litigation filed

by the Brennan Center is one of the cases covered by the Fourth

Circuit’s opinion in Int’l Refugee Assistance Project v. Trump,

No. 17-2231.

29. Id.

30. Sana Malik, ‘I’m accepted here.’ Meet 4 students

choosing Canada post Brexit and Trump, CBC/Radio-Canada

(June 15, 2017) http://www.cbc.ca/2017/i-m-accepted-here-meet4-students-choosing-canada-post-‌brexit-and-trump-1.4158965

(“The travel ban made me feel I would not get a visa for the U.S.

on time. Instead, I will start my MA at the University of Western

Ontario in September . . . . I hope every nation and government

understands that people in the six nations and Iran are not involved

in terrorism. We are not a threat to the national security of any

country.”).

16

speculation, experiment and creation.” Bakke, 438 U.S.

at 305 (quoting Sweezy v. New Hampshire, 354 U.S. 234,

263 (1957) (Frankfurter, J., concurring in judgment)).

To preserve for NYU and its students and scholars the

constitutionally protected benefits of diversity and the free

exchange of ideas, and to eliminate the discriminatory

exclusion from the United States of persons from Muslimmajority countries, this Court should affirm the decisions

of the court below.

III. The Proclamation Has the Same Unlawful Policy

Outcomes as Its Predecessors, In Violation of the

Constitution and the Immigration and Nationality

Act.

The Proclamation cites the findings of the “worldwide

review” conducted by Executive Order 13780, the

Proclamation’s immediate predecessor, as justification

for “impos[ing] certain conditional restrictions and

limitations” on Chad, Iran, Libya, Syria, Yemen, and

Somalia. 31 The Proclamation made various changes to

the practices to be implemented under its predecessors,

including adding Chad to, and removing Iraq and Sudan

from, the list of countries whose nationals are subject to

its suspension of unrestricted entry. 32 But it nonetheless

suffers from many of the same defects as its predecessors,

and is animated by the same unlawful, discriminatory

intent. 33

31. Proclamation Preamble.

32. See id. § 2.

33. The Proclamation also contains an additional flaw, in

that it now purports to suspend unrestricted entry by nationals

of the Muslim-majority countries indefinitely, rather than for an

identified, limited time period.

17

A.

The Proclamation Violates the Establishment

Clause.

Because it discriminates against individuals based on

their religion and reflects a clear animus towards Muslims,

the Proclamation, like its predecessor Executive Orders,

violates the Establishment Clause of the Constitution.

The “clearest command of the Establishment Clause

is that one religious denomination cannot be officially

preferred over another.” Larson v. Valente, 456 U.S. 228,

244 (1982); McCreary Cty., Ky. v. ACLU of Ky., 545 U.S.

844, 866 (2005) (considering the “historical context” of

the government act and the “specific sequence of events

leading to [its] passage”) (internal citation omitted). 34

34. For similar reasons, the Proclamation violates the

Constitution’s Equal Protection Clause. See Bolling v. Sharpe,

347 U.S. 497 (1954) (applying the Fourteenth Amendment’s equal

protection clause to the federal government through the Fifth

Amendment). Discrimination against a protected class on the

basis of overt animus is the most obvious and fundamental abuse of

government authority against which the Equal Protection Clause

was created to protect. Vill. of Arlington Heights v. Metro. Hous.

Dev. Corp., 429 U.S. 252, 265-66 (1977) (“When there is proof

that a discriminatory purpose has been a motivating factor in the

decision, . . . judicial deference is no longer justified.”). As such,

classifications based on religion or national origin are scrutinized

to the highest degree. Clark v. Jeter, 486 U.S. 456, 461 (1988)

(national origin); Larson, 456 U.S. at 244 (religion). A law may

fail to withstand scrutiny even if discrimination is not “the sole

purpose of the challenged action, but only that it was a ‘motivating

factor.’” Arce v. Douglas, 793 F.3d 968, 977 (9th Cir. 2015) (internal

citation omitted). “[T]he Religion Clauses . . . and the Equal

Protection Clause as applied to religion . . . all speak with one

voice on this point: Absent the most unusual circumstances, one’s

religion ought not affect one’s legal rights or duties or benefits.”

Hassan v. City of New York, 804 F.3d 277, 290 n.2 (3d Cir. 2015)

(quoting Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet,

18

The administration would have the Court apply the

highly deferential standard articulated in Kleindienst v.

Mandel, 408 U.S. 753, 770 (1972), and Kerry v. Din, 135

S. Ct. 2128, 2141 (2015), that only a “facially legitimate

and bona fide reason” need be offered to justify certain

federal immigration policies. Mandel, 408 U.S. at 770.

Application of that standard was rejected by the Ninth

Circuit in its decision concerning the second Executive

Order. 35 See Hawai‘i v. Trump (“Hawai‘i I”), 859 F.3d

741, 769 n.9 (9th Cir. 2017).

Even assuming the Mandel standard did apply here, it

would not foreclose judicial inquiry into improper purpose.

Though deferential, Mandel nonetheless requires that

there be a “bona fide” policy justification. As the Fourth

Circuit’s most recent en banc majority opinion recognized,

determining whether a justification is bona fide requires

consideration of the purpose of the challenged state action.

See Int’l Refugee Assistance Project v. Trump (“IRAP

III”), 883 F.3d 233, 263-64 (4th Cir. 2018) (“The Mandel

512 U.S. 687, 715 (1994) (O’Connor, J., concurring in the judgment)

(alterations in original, internal quotation marks omitted)).

35. The Mandel standard has previously been applied only

when reviewing an executive officer’s decision to deny a visa. See

Din, 135 S. Ct. at 2140 (Kennedy, J., concurring). As the Ninth

Circuit recognized, Hawai‘i I, 859 F.3d at 769 n.9 (9th Cir. 2017),

Mandel is applicable only when the challenge is to claimed misuse

of delegated authority, Mandel, 408 U.S. at 770 (“We hold that

when the Executive exercises this power . . . negatively,” “courts

will not look behind the exercise of that discretion”) (emphasis

added), or when there is a constitutional challenge to a visa denial

on the basis of congressionally enumerated standards, id. at

769-70—not when the challenge is to action exceeding delegated

authority. See, e.g., Sale v. Haitian Ctrs. Council, Inc., 509 U.S.

155, 187–88 (1993) (addressing merits of claim that executive order

exceeded authority under the INA without applying Mandel).

19

standard, read through the lens of Justice Kennedy’s

opinion in Kerry v. Din . . . accounts for those very rare

instances in which a challenger plausibly alleges that a

government action runs so contrary to the basic premises

of our Constitution as to warrant more probing review.”);

see also Int’l Refugee Assistance Project v. Trump (“IRAP

II”), 857 F.3d 554, 590 (4th Cir. 2017); see also Bona Fide,

Black’s Law Dictionary (4th rev. ed. 1968) (“bona fide”

reason is given “sincerely,” “honestly,” and “with good

faith.”). There were no allegations in Mandel that the

reason to exclude the communist speaker was not bona fide.

Accordingly, that case dealt solely with facial legitimacy.

408 U.S. at 755, 768 n.7 (noting that all communists were

subjected to the same provision). And Justice Kennedy’s

controlling concurrence36 in Din noted that “an affirmative

showing of bad faith,” when alleged with sufficient

particularity, as here, could overcome deference to a

governmental decision. 135 S. Ct. at 2141. 37 This approach

also comports with more recent applications of Mandel

and Din, where courts have admonished claimants for

failing to allege bad faith—comments that would be non

sequiturs if no such allegation could overcome deference.

See, e.g., Cardenas v. United States, 826 F.3d 1164, 1173

36. “When a fragmented Court decides a case and no single

rationale explaining the result enjoys the assent of five Justices,

‘the holding of the Court may be viewed as that position taken by

those members who concurred in the judgment on the narrowest

grounds.’” Marks v. United States, 430 U.S. 188, 193 (1977)

(quoting Gregg v. Georgia, 428 U.S. 153, 169 n.15 (1976) (joint

opinion of Stewart, Powell, and Stevens, JJ.)).

37. Although Din recognized that an affirmative showing of

bad faith could nullify an executive action, the facts of that case did

not address that question, as there was no allegation of bad faith,

and the Court recognized that that Petitioner’s admission that he

“worked for the Taliban” provided “at least a facial connection to

terrorist activity.” 135 S. Ct. at 2141.

20

(9th Cir. 2016) (rejecting claim of racial discrimination

because the plaintiff did “not plausibly establish that the

decision . . . was made on a forbidden racial basis”); Am.

Acad. of Religion v. Napolitano, 573 F.3d 115, 137 (2d Cir.

2009) (explaining that “a well supported allegation of bad

faith . . . would render the decision not bona fide”).

As described more fully below, the Proclamation

clearly discriminates against Muslims. See Section C,

infra. That Petitioners are able to concoct a purportedly

bona fide justification for its existence does nothing to

change this result. Even assuming the high bar of Mandel

applies here, the evidence before the Court demonstrates

that bar has been met and exceeded.

B. The Immig ration a nd Nationalit y Act

Limits Executive Authority to Engage in

Discriminatory Conduct.

The Proclamation, like its predecessors, contravenes

the letter and intent of the Immigration and Nationality

Act of 1965 (the “INA”), exceeding the scope of presidential

authority under that statute. The INA was enacted at

the height of the civil rights movement, to dismantle the

then-current system of national-origin quotas, which

the nation’s leaders believed to be “contrary to our basic

principles as a nation.” 38 The INA’s legislative history

shows that its intent was to “remove from our law a

38. 111 Cong. Rec. 24,225 (1965) (statement by Senator

Edward M. Kennedy). See also id. at 21,778 (statement of

Representative Paul Krebs that immigration rules based on

national origin were “repugnant to our national traditions,” and

that “we must learn to judge each individual by his own worth and

by the value he can bring to our Nation”).

21

discriminatory system of selecting immigrants that is

a standing affront to millions of our citizens.” 39 Section

202 of the INA effectuates that intent by prohibiting

discrimination in admissions on the basis of national

origin. See 8 U.S.C. § 1152(a)(1)(A) (with limited statutory

exceptions, “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.”); see, e.g.,

Legal Assistance for Vietnamese Asylum Seekers v. Dep’t

of State, 45 F.3d 469, 473 (D.C. Cir. 1995) vacated on other

grounds, 519 U.S. 1 (1996) (Congress, in enacting Section

202, “unambiguously directed that no nationality-based

discrimination shall occur”).

The President’s authority under INA Section 212(f)

to “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,”

see 8 U.S.C. § 1182(f), is subject to at least three important

limitations. The Proclamation exceeds the scope of the

President’s authority as to each of these limitations, and

is therefore outside the scope of the authority granted by

Section 212(f) in at least three ways.40

39. Immigration: Hearings Before Subcomm. No. 1 of the

Comm. on the Judiciary, House of Representatives, on H.R. 7700

and 55 Identical Bills, 88th Cong. 901-02 (1964), as reprinted in

10A Oscar Trelles & James Bailey, Immigration and Nationality

Acts: Legislative Histories and Related Documents, doc. 69A

(1979) 410 (remarks of Attorney General Robert Kennedy).

40. In addition, the plain language of Section 212(f)—which

confers authority to “suspend” the entry of aliens—does not on

its face cover an executive action like the Proclamation, which is

effectively permanent, since it is indefinite in duration.

22

First, any presidential proclamation under Section

212(f) requires a legitimate finding that “the entry of [the

suspended] aliens or . . . class of aliens into the United

States would be detrimental to the interests of the United

States.” Id. Yet the Proclamation, like its predecessor

Executive Orders, makes no attempt to connect the

nationality of individuals affected by the Proclamation

with any heightened security risk or other detriment to

a national interest. See Hawai‘i v. Trump (“Hawai‘i II”),

878 F.3d 662, 693 (9th Cir. 2017) (as amended). At most, the

Proclamation seeks to highlight terrorism-related risks

in each affected country, such as the “several terrorist

groups” that are “active” in Chad. See id.; Proclamation

§ 2(a)(i). Yet the Proclamation fails to take the next step

by making a finding as to the nexus between the nationals

of each country and the asserted terrorist activity. Under

the INA, the failure to draw this connection is fatal to the

Proclamation’s validity. Hawai‘i II, 878 F.3d at 693.

Second, Section 212(f) is circumscribed by Section

202’s express and later-enacted prohibition against

discrimination on the basis of national origin. 41 The

Proclamation plainly violates that prohibition, as it

“restrict[s] and limit[s] the entry of nationals of 7

41. When there is a conflict between two provisions of a

statute, the provisions should, whenever possible, be construed

to give effect to both provisions. See, e.g., FDA v. Brown

& Williamson Tobacco Corp., 529 U.S. 120, 133 (2000) (“It is a

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.” A court must “fit, if possible, all

parts into an harmonious whole”) (citations omitted).

23

countries . . .: Chad, Iran, Libya, North Korea, Syria,

Venezuela, and Yemen” without further nuance.42

Third, the Constitution itself limits the President’s

Section 212(f) authority. Section 212(f) is a limited

delegation of Congress’s power to make immigration

laws. See generally U.S. Const. art. I, § 8, cl. 4 (“The

Congress shall have Power . . . [t]o establish an uniform

Rule of Naturalization . . . .”); Galvan v. Press, 347 U.S.

522, 531 (1954) (the formulation of immigration policies is

“entrusted exclusively to Congress”). Since the President’s

authority is derived from Congressional authority, Section

212(f)’s delegation of authority—like Congress’s power

itself—is necessarily circumscribed by the Constitution.43

See, e.g., Zadvydas v. Davis, 533 U.S. 678, 695 (2001)

(Congress’s power to create immigration law is “subject

to important constitutional limitations”); Kent v. Dulles,

357 U.S. 116, 128 (1958) (the Court declined to find in the

Secretary of State’s facially unlimited authority to set

rules governing the grant and issuance of passports an

“authority” that would “trench . . . heavily” on fundamental

rights, overturning the Secretary’s denial of two passport

applications as ultra vires); United States v. Witkovich,

353 U.S. 194, 199 (1957) (the facially unlimited power of

the Attorney General to obtain, inter alia, any information

from any alien subject to a final order of deportation was

implicitly limited to certain relevant topics, where the

broad reading proposed by the government would call into

question the statute’s constitutionality, and the context

and legislative history of the statute did not provide

42. Proclamation § 1(h)(ii) (emphasis added).

43. Section 202’s prohibition of discrimination on the basis of

national origin further limits Congress’s delegation of authority

to the President in INA Section 215(a)(1). See 8 U.S.C. § 1185(a)(1).

24

unambiguous evidence that Congress intended to give

the Attorney General unbridled authority). Because, as

the Proclamation demonstrates, actions taken pursuant

to an overbroad construction of Section 1182(f) authority

can encroach on core constitutional values, presidential

authority under INA Section 212(f) is necessarily subject

to implicit constitutional limitations, in addition to the

explicit limitations in Section 212(f) itself and in Section

202.44

As shown below, the Proclamation exceeds the bounds

of Presidential authority under INA Section 212(f) not

only by violating Section 202’s unambiguous prohibition

against discrimination on the basis of national origin, and

INA Section 212(f)’s own requirement that an exercise of

presidential authority under that section be justified by a

legitimate finding that the admission of a suspended class

of individuals is against the interests of the United States,

as described above, but also by violating the Constitution.

C.

The Proclamation’s Context and History

Reveal that the Proclamation Violates the

Constitution and the INA.

The Proclamation violates both the Constitution and

the INA because it arbitrarily singles out six Muslim44. In fact, the balance of Section 212—particularly the

definition of “[c]lasses of aliens ineligible for visas or admission”

in subsection (a)(1–10), including on the basis of “prepar[ation]

or plan[ning of] a terrorist activity,” engagement in activities

that would have “potentially serious adverse foreign policy

consequences for the United States,” or “[a]ssociation with

terrorist organizations”—further suggests that Congress did

not intend for the President to be able to use his Section 212(f)

authority to discriminate on the basis of national origin, even in the

purported or actual name of national security. See 8 U.S.C. § 1182.

25

majority countries as targets for its ban. This invidious

discrimination is apparent from the context and history of

the Proclamation and the unsubstantiated pretext offered

to support it.

The Proclamation’s indefinite suspension of entry

by nationals of specified countries discriminates against

Muslims on the basis of their religion because it singles out

these Muslim-majority countries without a plausible basis

for doing so. Petitioners’ denial that the Proclamation is

a Muslim ban is belied by the President’s own repeated

characterization of the ban as well as by its impact, the

lion’s share of which will fall on the nationals of the five

targeted countries with a majority Muslim population of

90% or more.45 Three of those countries—Iran, Somalia,

and Yemen—have Muslim populations of more than 99%.46

The addition of two non-Muslim majority countries—

Venezuela and North Korea—does not cure the clear

discrimination. As the Fourth Circuit recognized, the

Proclamation affects “very few persons from those

countries as opposed to the many tens of thousands

from the other Muslim-majority countries . . . .” IRAP

III, 883 F.3d at 268 (as amended Feb. 28. 2018). Indeed,

based on data from 2016 visa issuances, the Proclamation

would have excluded only nine North Koreans, and no

Venezuelans.47 This is little more than a thinly veiled

45. Pew Research Ctr., “The Global Religious Landscape: a

Report on the Size and Distribution of the World’s Major Religions

as of 2010,” 47-50 (2012), https://goo.gl/HVoVJI (Libya is 96.6%

Muslim and Syria 92.8%).

46. Id.

47. Kathryn Casteel & Andrea Jones-Rooy, Trump’s

Latest Travel Order Still Looks a Lot Like a Muslim Ban,

26

attempt to camouflage the “unmistakable” religious

objective originally embedded in the predecessor

Orders, in order to improve the Government’s “litigating

position,” rather than a legitimate effort to achieve

any purported security objective. See McCreary, 545

U.S. at 871-72 (finding that the addition of purportedly

neutral statements to Ten Commandments display was

a transparent and unsuccessful attempt to distinguish

it from the two previously enjoined Ten Commandments

displays).

The Proclamation’s unconstitutional and illegal

invidious discrimination is made apparent by a review of

its history, including statements made by the President

and others regarding its purposes. As the Fourth Circuit

found when it held that the Proclamation violated the

Establishment Clause, evidence of discriminatory bias:

includes President Trump’s disparaging

comments and tweets regarding Muslims;

his repeated proposals to ban Muslims from

entering the United States; his subsequent

explanation that he would effectuate this

‘Muslim’ ban by targeting ‘territories’ instead of

Muslims directly; the issuance of EO-1 and EO2, addressed only to majority-Muslim nations;

and finally the issuance of the Proclamation,

which not only closely tracks EO-1 and EO-2,

but which President Trump and his advisors

described as having the same goal as EO-1

and EO-2.

FiveThirtyEight (Sept. 28, 2017), https://fivethirtyeight.com/

features/trumps-latest-travel-order-still-looks-a-lot-like-amuslim-ban/.

27

IRAP III, 883 F.3d at 264. Most recently, a mere nine

days before the Proclamation was issued, the President

tweeted: “[t]he travel ban into the United States should

be far larger, tougher and more specific-but stupidly, that

would not be politically correct!”48

The Proclamation, like the Executive Orders that

preceded it, 49 cannot escape the extensive history of

the President’s discriminatory statements. Indeed,

the Proclamation recites in its first three words—and

repeatedly throughout—that it is in fact based on

the findings of the immediately prior Order. See, e.g.,

Proclamation §§ 1(c), 1(f), 1(h), 1(i), 4(c), 6(d), 7(a)(i). The

Proclamation thus links itself to the countless statements

of the President that, without any evidence whatsoever,

perpetuated the stereotype that people of Muslim faith

are largely terrorists seeking to harm the United States.50

48. See, e.g., Donald J. Trump, Twitter (Aug. 18, 2017),

https://twitter.com/‌realdonaldtrump‌/status/908645126146265090.

49. See, e.g., Washington, 847 F.3d at 1167 (“statements

by the President about his intent to implement a ‘Muslim ban’”

and evidence that the original Executive Order represented the

effectuation of that intent undermined the Government’s likelihood

of success on appeal of injunction of the original Executive Order).

5 0. See , e.g., Jessica Est epa , ‘Preventin g Muslim

immigration’ statement disappears from Trump’s campaign site,

USA Today (May 8, 2017), https://www.usatoday.com/story/news/

politics/onpolitics/2017/05/08/preventing-‌muslim-immigrationstatement-disappears-donald-trump-campaign-site/101436780/

(campaign website calling for a “shutdown of Muslims entering

the United States” taken down May 8, 2017); Interview of Donald

Trump on CBN News, YouTube (Apr. 11, 2011), https://m.youtube.

com/watch?v=fWzDAvemJG8 (arguing that there is a “Muslim

problem” in the United States, and suggesting that the Koran

teaches a “very negative vibe” and “tremendous hatred”).

28

President Trump has repeatedly called for: shutting down

mosques in the United States, 51 suspicionless surveillance

of Muslims in mosques, 52 a registry for all practicing

Muslims, 53 racial profiling of all Muslims, 54 and a total

ban of Muslims coming to the United States. 55

51. See, e.g., Nick Gass, Trump: ‘Absolutely no choice’ but to

close mosques, Politico (Nov. 18, 2015), http://www.politico.com/

story/2015/11/trump-close-mosques-‌216008.

52. See, e.g., Lauren Carroll, In Context: Donald Trump’s

comments on a database of American Muslims, Politifact (Nov.

24, 2015), http://www.politifact.com/truth-o-meter/article/2015/

nov/24/donald-trumps-‌comments-database-american-muslims/.

53. Vaughn Hillyard, Donald Trump’s Plan for a Muslim

Database Draws Comparison to Nazi Germany, NBC News (Nov.

20, 2015), http://www.nbcnews.com/politics/2016-election/trumpsays-he-would-certainly-‌i mplement-muslim-database-n466716.

On December 21, 2016, more than a month after being elected

President, Mr. Trump responded to a question about whether he

was rethinking his plan for a Muslim registry by stating: “You

know my plans all along, and I’ve been proven to be right.” Video,

Trump: ‘You’ ve known my plans’ on proposed Muslim ban, Wash.

Post (Dec. 21, 2016), https://www.washingtonpost.com/video/

politics/‌

‌‌‌‌

trump-youve-‌‌k nown-my-plans-on-proposed-muslimban/2016/12/21/‌8 a7bba66-c7ba-11e6-acda-‌59924caa2450_‌video.

html.

54. Transcript, Face the Nation, CBS News (Jun. 19, 2016),

http://www.cbsnews.com/news/face-the-nation-transcripts-june19-2016-trump-lynch-‌‌lapierre-feinstein/.

55. Ed Pilkington, Donald Trump: Ban All Muslims

Entering US, The Guardian (Dec. 7, 2015), https://w w w.

theguardian.com/us-news/2015/dec/07/donald-trump-ban-allmuslims-entering-us-san-bernardino-shooting. Petitioners’

assertion that these comments like these are a product of a

candidate running for office rather than a President who took

an oath to uphold the constitution is belied by the fact that these

comments have continued as recently as August, 2017. See, e.g.,

29

The administration has attempted to cloak this

discriminatory intent in neutral language, but to no avail.

In July 2016, then-candidate Trump telegraphed his aim

to disguise the language of the Muslim ban to pass legal

muster, when he noted that he would henceforth refer to

the Muslim countries on the basis of geographic location

rather than religious majority, because “[p]eople were

so upset when [he] used the word Muslim.” 56 Rather

than a “rollback” of previous calls for a Muslim ban,

President Trump has characterized the Administration’s

new approach as an “expansion” of his prior rhetoric. 57

A prominent advisor to the Trump campaign, Rudolph

W. Giuliani recounted that President Trump wanted

a “Muslim ban” and had requested that Mr. Giuliani

assemble a commission to show him “the right way to do

it legally.”58 Since then, the President has affirmed, and

in fact doubled down on the same rhetoric, repeatedly

characterizing the prior Executive Order as a ban—not

a temporary pause, as Petitioners assert:

Donald J. Trump, Twitter (Aug. 18, 2017), https://twitter.com/

realDonaldTrump/status/‌8 98531481185689600 (“Radical Islamic

Terrorism must be stopped by whatever means necessary!”); see

also infra at 20-21.

56. Donald Trump Remarks in Manchester, New Hampshire,

C-SPAN (Jun. 13, 2016), https://www.c-span.org/video/?410976-1/

donald-trump-delivers-remarks-national-security-threats.

57. Id.

58. Trump asked for a Muslim Ban Giuliani says – and

ordered a commission to do it ‘legally,’ Wash. Post (Jan. 29, 2017),

https://www.washingtonpost.com/news/the-fix/wp/2017/01/29/

trump-asked-for-a- muslim-ban-giuliani-says-and-ordered-acommission-to-do-it- legally/?utm_term=.82e451dca6b8.

30

• On April 26, 2017, the President stated, “the Ninth

Circuit rules against the ban . . . ridiculous.”59

• On June 3, 2017, the President stated, “We need the

Travel Ban as an extra level of safety!”60

• On June 5, 2017, the President stated, “People, the

lawyers and the courts can call it whatever they

want, but I am calling it what we need and what it is,

a TRAVEL BAN!”61 The President then reiterated

this point not once, but twice in the same day. He

stated, “The Justice Dept. should have stayed with

the original Travel Ban, not the watered down,

politically correct version they submitted to S.C.”62

Less than three hours later, he stated, “we need a

TRAVEL BAN . . . not some politically correct term

that won’t help us protect our people.”63

• On June 13, 2017, the President stated, “the 9th

Circuit did it again - Ruled against the TRAVEL

BAN.”64

59. Donald J. Trump, Twitter (April 26, 2017), https://twitter.

com/realDonaldTrump/status/857177434210304001.

60. Donald J. Trump, Twitter (June 3, 2017), https://twitter.

com/realDonaldTrump/status/871143765473406976.

61. Donald J. Trump, Twitter (June 5, 2017), https://twitter.

com/realDonaldTrump/status/871674214356484096.

62. Donald J. Trump, Twitter (June 5, 2017), https://twitter.

com/realDonaldTrump/status/871675245043888128.

63. Donald J. Trump, Twitter (June 5, 2017), https://twitter.

com/realDonaldTrump/status/871899511525961728.

64. Donald J. Trump, Twitter (June 13, 2017), https://twitter.

com/realDonaldTrump/status/874578159676665857.

31

• On August 17, 2017, the President again promoted

the same anti-Muslim propaganda repeated

throughout the campaign that General Pershing

was able to eradicate terrorism by murdering

captured Muslims with bullets soaked in pigs’ blood:

“Study what General Pershing of the United States

did to terrorists when caught. There was no more

Radical Islamic Terror for 35 years!”65

Plainer evidence of animus against Muslims would

be difficult to find. See Dep’t of Agric. v. Moreno, 413

U.S. 528, 534 (1973) (“[I]f the constitutional conception

of ‘equal protection of the laws’ means anything, it must

at the very least mean that a bare . . . desire to harm a

politically unpopular group cannot constitute a legitimate

government interest.”).66

65. Donald J. Trump, Twitter (Aug. 17, 2017), https://twitter.

com/realDonaldTrump/status/898254409511129088.

66. Even if this was not the purpose, the indisputable

perception of sect favoritism violates the Establishment Clause.

See McCreary, 545 U.S. at 883 (O’Connor, J., concurring) (finding

violation of Establishment Clause because of “unmistakable

message of endorsement to the reasonable observer”); Cty. of

Allegheny v. ACLU Greater Pittsburgh Chapter, 492 U.S. 573, 59394 (1989) (“The Establishment Clause, at the very least, prohibits

government from appearing to take a position on questions of

religious belief or from ‘making adherence to a religion relevant

in any way to a person’s standing in the political community.’”)

(quoting Lynch v. Donnelly, 465 U.S. 668, 687 (1984) (O’Connor, J.,

concurring)). And the public perception of the original Executive

Order is clear: it is a Muslim ban. See Public Policy Polling, After 2

Weeks, Voters Yearn For Obama 1, 4 (Feb. 2, 2017) (finding in poll

conducted on January 30-31, 2017 that “52% of voters think that

the order was intended to be a Muslim ban, to only 41% who don’t

think that was the intent”), https://goo.gl/1L5psC. See also CNN/

32

The Administration’s proffered interest in securing

our borders is also merely pretextual, as the Proclamation

is both under and over-inclusive. A statute or rule that is

under and over-inclusive in burdening a constitutionally

protected interest is not narrowly tailored to achieve

a compelling state interest, as required to satisfy the

Establishment and Equal Protection Clauses. See,

e.g., Miller v. Johnson, 515 U.S. 900, 904 (1995). Here,

although the Proclamation relied on findings derived

from the previous Executive Order, the totality of those

findings were not shared with the public, so “a reasonable

observer [has] no basis to rely” on that review. IRAP III,

883 F.3d at 268. And reviewing the Proclamation’s stated

interests without the context of any other findings reveals

a cavernous and unbridged gap between those interests

and the selection of the targeted countries.

The disconnect between the Proclamation’s stated

purpose to “protect the security interests of the United

States and its people” (Proclamation Preamble), and its

means of achieving that goal results in overbreadth. The

targeted countries were identified in part because they

contained “significant terrorist presence.” Id. But the

Proclamation, as discussed supra in Part III.B, fails

to make any finding that connects nationality with any

such terrorist presence or activity. For example, the

Proclamation admits that Somalia “generally satisfies

the information-sharing requirements” but nonetheless

ORC Int’l Poll 9 (Feb. 3, 2017) (55% think the Executive Order

that preceded the Proclamation “is a ban on Muslims”), https://

goo.gl/0xE98B. Although public polling regarding the new ban

has not been conducted, “reasonable observers have reasonable

memories, and our precedents sensibly forbid an observer to turn

a blind eye to the context in which the [policy] arose.” McCreary,

545 at 866 (internal citation omitted).

33

subjects that Muslim-majority country to travel restrictions

based on amorphous findings that terrorists “conduct their

operations” in certain regions of Somalia and that Somalia

is a “destination” for individuals attempting to join

terrorist groups. Proclamation §§ 1(i), 2. These “findings”

illustrate the overbreadth of Proclamation’s travel ban

on Somalian nationals: individuals traveling to Somalia

as part of an effort to join a terrorist group are unlikely

to be Somalian nationals, and banning all Somalian

nationals due to the presence of terrorist operation in

certain regions in Somalia is similarly overbroad. The ban

articulated in the Proclamation is wildly over-inclusive and

therefore unconstitutional. See Romer v. Evans, 517 U.S.

620, 632 (1996) (law failed rational basis review where “its

sheer breadth is so discontinuous with the reasons offered

for it that the amendment seems inexplicable by anything

but animus toward the class that it affects”).

The Proclamation is also dramatically underinclusive.67 Despite the proffered interest in security,

67. One of the criteria purportedly used by the Government

in evaluating countries for inclusion in the Proclamation—

“whether [a country] regularly fails to receive its nationals

subject to final orders of removal from the United States,” see

Proclamation § 1(c)(iii)—is the subject of a list maintained by

the U.S. Department of Homeland Security that includes at least

eleven countries that are not covered by the Proclamation. See

Alan Neuhauser, DHS Seeks Sanctions on Countries that Refuse

Deportees, U.S. News (Aug. 23, 2017), https://www.usnews.com/

news/national-news/articles/2017-08-23/dhs-seeks-sanctions-oncountries-that-refuse-to-accept-deportees (Twelve “recalcitrant

countries” identified by DHS include Burma, Cambodia, China,

Cuba, Eritrea, Guinea, Hong Kong, Iran, Laos, Morocco, South

Sudan, and Vietnam,); see also Maria Sacchetti, Like Obama before

him, Trump struggles to deport some foreign-born criminals,

The Washington Post (Apr. 8, 2017), https://www.washingtonpost.

34

the Proclamation does not include on its list of affected

countries any of the home countries of the perpetrators

of the September 11, 2001 attacks.68 And Saudi Arabia, a

country that President Trump has previously written is

the “biggest funder of terrorism,” is not on that list.69 Nor

does it include countries connected to the perpetrators

of more recent domestic attacks in San Bernardino,

New Jersey, New York, Orlando or Boston.70 Tellingly,

the Proclamation does not include any of the majorityChristian nations that are listed by the State Department

as “terrorist safe havens.” 71 See Larson, 456 U.S. at

244 (“[T]his Court has adhered to the principle, clearly

com/local/social-issues/like-obama-before-him-trump-is-freeingforeign-born-criminals/2017/04/06/d9776a3c-149c-11e7-ada01489b735b3a3_story.html; DHS Announces Implementation

of Visa Sanctions on Four Countries, U.S. Dep’t of Homeland

Security, https://www.dhs.gov/news/2017/09/13/dhs-announcesimplementation-visa-sanctions-four-countries (Sept. 13, 2017)

(announcing sanctions against Cambodia, Eritrea, Guinea, and

Sierra Leone for failing to accept removed nationals two weeks

before the issuance of the Proclamation).

68. Pamela Engel, Trump’s immigration ban doesn’t include

the country most of the 9/11 hijackers came from, Business Insider

(Jan. 30, 2017), http://www.businessinsider.com/trumps-muslimban-saudi-arabia-911-2017-1 (“[T]he [initial] executive order

doesn’t apply to any of the countries where the 9/11 attackers

were from.”) (emphasis in original).

69. Donald J. Trump, Time to Get Tough: Make America

Great Again!, Regnery Publishing, Inc., 20 (2011).

70. Eric Levenson, How many fatal terror attacks have

refugees carried out in the US? None, CNN (Jan. 29, 2017), http://

www.cnn.com/2017/01‌/ 29/us/refugee-terrorism-trnd.

71. Chapter 5: Terrorist Safe Havens (Update to 7120

Report), U.S. Dept. of State, https://www.state.gov/j/ct/rls/

crt/2015/257522.htm.

35

manifested in the history and logic of the Establishment

Clause, that no State can pass laws which aid one religion

or that prefer one religion over another.”) (internal citation

and quotation marks omitted). That the Proclamation

so clearly picks and chooses among countries whose

residents could threaten the United States reveals that

the administration’s proffered interest is a pretext for

discrimination against people of the Muslim faith, and is

therefore invalid. See Church of Lukumi Babalu Aye, Inc.

v. Hialeah, 508 U.S. 520, 543 (1993).

36

Conclusion

For the foregoing reasons, the Proclamation exceeds

the scope of presidential authority under the INA and

violates the Constitution. This Court should therefore

affirm the decision below to enjoin implementation of the

Proclamation.

Respectfully submitted,

Of Counsel:

Terrance J. Nolan

General Counsel

and Secretary

New York University

70 Washington Square

South, 11th Floor

New York, New York 10012

(212) 998-2257

Steven E. Obus

Counsel of Record

Seth D. Fiur

Tiffany M. Woo

Om V. A lladi

Proskauer Rose LLP

11 Times Square

New York, New York 10036

(212) 969-3000

sobus@proskauer.com

Lary A. Rappaport

Proskauer Rose LLP

2049 Century Park East

Los Angeles, California 90067

(310) 557-2900

Attorneys for Amicus Curiae

March 30, 2018