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 U.S. COMPANIES
AS AMICI CURIAE IN SUPPORT OF
RESPONDENTS
ANDREW J. PINCUS
Counsel of Record
PAUL W. HUGHES
Mayer Brown LLP
1999 K Street, NW
Washington, DC 20006
(202) 263-3000
apincus@mayerbrown.com
Counsel for Amici Curiae
i
TABLE OF CONTENTS
Page
Table of Authorities................................................... iii
Interest of the Amici Curiae .......................................1
Introduction and Summary of Argument ...................2
Argument .....................................................................5
I. The Proclamation Harms American
Innovation And Economic Growth. .......................5
A. Immigration provides significant
benefits to the U.S. economy. ...........................5
B. The Proclamation harms the U.S.
economy. ............................................................8
1. The Proclamation creates
widespread uncertainty. .............................9
2. The Proclamation’s ban on travel
significantly impairs day-to-day
business. ....................................................11
3. The Proclamation incentivizes
immigration to and investment in
foreign countries rather than the
United States. ............................................12
II. The Proclamation Is Unlawful. ...........................14
A. The INA does not authorize the
executive branch to implement
unilateral, permanent revisions of the
Nation’s immigration laws. ............................14
B. The Proclamation exceeds the authority
conferred by Section 1182. .............................17
1. The Proclamation does not contain a
finding sufficient to justify exercise
of the authority conferred by Section
1182(f). .......................................................17
ii
TABLE OF CONTENTS—continued
Page
2. The Proclamation conflicts with
other provisions of the INA. ......................21
3. The Proclamation is procedurally
unreasonable. ............................................23
C. The Proclamation violates Section
1152’s non-discrimination requirement.........25
D. This Court can, and must, adjudicate
the scope of the President’s authority............28
Conclusion .................................................................30
Appendix A – List of Amici Curiae ......................... 1a
iii
TABLE OF AUTHORITIES
Page(s)
Cases
Abourezk v. Reagan,
785 F.2d 1043 (D.C. Cir. 1986) ................ 15, 23, 30
Amoco Oil Co. v. Envtl. Prot. Agency,
501 F.2d 722 (D.C. Cir. 1974) .............................. 18
Arizona v. United States,
567 U.S. 387 (2012) .............................................. 16
Bowen v. Mich. Acad. of Family Physicians,
476 U.S. 667 (1986) .............................................. 28
Carlson v. Landon,
342 U.S. 524 (1952) .............................................. 17
Crawford Fitting Co. v. J. T. Gibbons, Inc.,
482 U.S. 437 (1987) .............................................. 27
Dalton v. Specter,
511 U.S. 462 (1994) ........................................ 24, 29
Dames & Moore v. Regan,
453 U.S. 654 (1981) .............................................. 28
Foley v. Connelie,
435 U.S. 291 (1978) ................................................ 2
Franklin v. Massachusetts,
505 U.S. 788 (1992) .............................................. 28
Hawaii v. Trump,
859 F.3d 741 (9th Cir.) ..................................... 3, 21
Heckler v. Chaney,
470 U.S. 821 (1985) .............................................. 29
Indus. Union Dep’t, AFL-CIO v.
Am. Petroleum Inst.,
448 U.S. 607 (1980) .............................................. 18
iv
TABLE OF AUTHORITIES—continued
Page(s)
Int’l Refugee Assistance Project v. Trump,
857 F.3d 554 (4th Cir. 2017) .................................. 3
Int’l Refugee Assistance Project v. Trump,
883 F.3d 233 (4th Cir. 2018) ........................ passim
Kent v. Dulles,
357 U.S. 116 (1958) ........................................ 17, 19
Kerry v. Din,
135 S. Ct. 2128 (2015) .......................................... 21
United States ex rel. Knauff v. Shaughnessy,
338 U.S. 537 (1950) .............................................. 28
Legal Assistance for Vietnamese Asylum
Seekers v. Dep’t of State,
45 F.3d 469 (D.C. Cir. 1995) .......................... 25, 26
Mobil Oil Expl. & Producing Se. Inc. v.
United Distribution Cos.,
498 U.S. 211 (1991) .............................................. 18
Motor Vehicle Mfrs. Ass’n v. State Farm
Mut. Auto. Ins. Co.,
463 U.S. 29 (1983) ................................................ 24
Olsen v. Albright,
990 F. Supp. 31 (D.D.C. 1997) ....................... 27, 28
Patel v. Reno,
134 F.3d 929 (9th Cir. 1997) ................................ 29
Saavedra Bruno v. Albright,
197 F.3d 1153 (D.C. Cir. 1999) ............................ 29
Sale v. Haitian Ctrs. Council, Inc.,
509 U.S. 155 (1993) .............................................. 29
v
TABLE OF AUTHORITIES—continued
Page(s)
United Distribution Cos. v. F.E.R.C.,
88 F.3d 1105 (D.C. Cir. 1996) .............................. 18
United States v. Mead Corp.,
533 U.S. 218 (2001) .............................................. 24
United States v. Witkovich,
353 U.S. 194 (1957) ........................................ 17, 18
Whitman v. Am. Trucking Ass’ns,
531 U.S. 457 (2001) .............................................. 17
Youngstown Sheet & Tube Co. v. Sawyer,
343 U.S. 579 (1952) .............................................. 28
Zemel v. Rusk,
381 U.S. 1 (1965) ............................................ 17, 19
Statutes and Regulations
82 Fed. Reg.
8,977 (Jan. 29, 2017) .............................................. 3
13,209 (Mar. 6, 2017) ......................................... 3, 4
45,161 (Sept. 24, 2017)................................. passim
5 U.S.C. § 553(c) ........................................................ 24
8 U.S.C.
§ 1152(a) ......................................................... 25, 26
§ 1182(a) ............................................. 15, 21, 22, 23
§ 1182(f) ........................................................ passim
§ 1185(a) ............................................. 14, 16, 24, 27
§ 1187(a)(12) ......................................................... 22
Other Authorities
Americas Soc’y & Council of the Americas,
Bringing Vitality to Main Street (2015) ................ 6
vi
TABLE OF AUTHORITIES—continued
Page(s)
Stuart Anderson, Immigrants Flooding
America with Nobel Prizes,
Forbes (Oct. 16, 2016) ............................................ 7
Stuart Anderson, Nat’l Found. for Am. Pol’y,
The Contributions of the Children of
Immigrants to Science in America
(Mar. 2017) ............................................................. 8
Stuart Anderson, Nat’l Found. for Am. Pol’y,
Immigrants and Billion Dollar Startups
(Mar. 2016) ............................................................. 6
John Austin et al., Mich. Econ. Ctr., Michigan:
We Are All Migrants Here (2017)......................... 13
Maksim Belenkiy & David Riker, Face-to-Face
Exports: The Role of Business Travel in
Trade Promotion, 51 J. Travel Res. 632
(2012) .................................................................... 11
BGRS, Breakthrough to the Future of Global
Talent Mobility (2016) ......................................... 11
Muzaffar Chishti & Claire Bergeron,
Migration Pol’y Inst., Post-9/11 Policies
Dramatically Alter the U.S. Immigration
Landscape (Sept. 8, 2011) ...................................... 2
Economic Effects of Immigration Policies, Bus.
Roundtable (Sept. 2017) ........................................ 7
Robert W. Fairlie et al., Ewing Marion
Kauffman Found., The 2016 Kauffman
Index: Startup Activity (Aug. 2016) ....................... 6
vii
TABLE OF AUTHORITIES—continued
Page(s)
Seth Fiegerman, Former Google Exec Calls
Trump Travel Ban an ‘Enormous Problem,’
CNN Tech (Jan. 30, 2017) ................................... 10
David Steele-Figueredo, Trump’s AntiImmigrant Rhetoric Is Already Hurting US
Higher Education, Times Higher Educ.
(Jan. 30, 2018) ...................................................... 10
Michael Greenstone & Adam Looney, The
Hamilton Project, Ten Economic Facts
About Immigration (Sept. 2010) ............................ 7
H.R. Rep. No. 89-745 (1965)...................................... 26
Harv. Bus. Rev., Strategic Global Mobility
(2014) .................................................................... 11
Nune Hovhannisyan & Wolfgang Keller,
International Business Travel: An Engine
of Innovation?, 20 J. Econ. Growth 75
(2015) .................................................................... 11
Immigration Laws and Iranian Students,
4A Op. O.L.C. 133 (1979) ..................................... 18
Elizabeth MacBride, CNBC, Silicon Valley
Reeling as Trump Chokes Off a Critical
Source of Tech Talent (Mar. 15, 2018) ................ 12
Kate M. Manuel, Cong. Research Serv.,
Executive Authority to Exclude Aliens: In
Brief (Jan. 23, 2017) ............................................. 15
Mass. Tech. Leadership Council, The
Economic Impact of Immigration on the
United States (June 2017) ................................... 13
viii
TABLE OF AUTHORITIES—continued
Page(s)
New Am. Econ., Reason for Reform:
Entrepreneurship (Oct. 2016) ................................ 7
Alex Nowrasteh, Cato Inst., New Trump
Executive Order Fails Cost-Benefit Test,
(Sept. 25, 2017) .................................................... 13
Org. Econ. Co-operation & Dev., International
Migration Outlook 2017 (41st ed. 2017) .............. 12
Pia Orrenius, George W. Bush Inst., Benefits
of Immigration Outweigh the Costs, The
Catalyst (2016), https://goo.gl/qC9uOc .................. 7
Tara Palmeri & Bryan Bender, U.S. Diplomats
Warning GE’s Major Deals in Iraq at Risk
over Travel Ban, Politico (Feb. 1, 2017) .............. 12
P’ship for a New Am. Econ., Open For
Business: How Immigrants Are Driving
Small Business Creation in the United
States (Aug. 2012) .................................................. 6
P’ship for a New Am. Econ., The “New
American” Fortune 500 (2011) ........................... 5, 6
Remarks at the Opening Ceremonies of the
Statute of Liberty Centennial Celebration
(July 3, 1986) .......................................................... 2
S. Rep. No. 89-748 (1965) .......................................... 26
Dionne Searcey & Jaime Yaya Barry, Chad,
an Ally Against Militants, Asks, “Why Us?”,
N.Y. Times (Sept. 25, 2017) ................................. 12
ix
TABLE OF AUTHORITIES—continued
Page(s)
U.S. Chamber of Commerce, Immigration:
Myths and Facts (2016) ......................................... 7
Vivek Wadhwa et al., America’s New
Immigrant Entrepreneurs, Duke Univ. &
Univ. Cal. Berkeley (Jan. 4, 2007) ........................ 7
INTEREST OF THE AMICI CURIAE
Amici curiae are 115 of the Nation’s leading
companies. Amici produce iconic goods and services
that touch nearly every aspect of our lives—from
business and finance to recreation and communication. Together, amici employ millions of Americans
and contribute significantly to our country’s economy. A complete list of amici is set forth in Appendix
A.1
Amici are gravely concerned about the adverse
effects of the Presidential Proclamation challenged in
this case. As amici explain below, the Proclamation
makes it more difficult for them to hire the very best
talent, to send their employees abroad, to grow their
operations, and, fundamentally, to compete in the
global economy. Amici believe that the Proclamation
will therefore stifle the Nation’s economic growth
and global competitiveness. Amici previously raised
these concerns before this Court and before the court
below. See Pet. App. 60a.
Amici’s own stories reflect the benefits that immigrants bring to the Nation. Many amici were
founded by immigrants, virtually all employ immigrants, and every amicus recognizes that the American economy, and the Nation as a whole, thrives
when it welcomes immigrants with properly calibrated policies.
Pursuant to Rule 37.6, amici affirm that no counsel for a party authored this brief in whole or in part and that no person
other than amici or their counsel made a monetary contribution
to its preparation or submission. The parties’ consents to the filing of amicus curiae briefs are on file with the Clerk.
1
2
INTRODUCTION AND
SUMMARY OF ARGUMENT
For decades, stable U.S. immigration policy has
embodied the principles that we are a people descended from immigrants, that we welcome new immigrants, and that we provide a home for refugees
seeking protection. As President Reagan noted when
rededicating the Statue of Liberty in 1986, “which of
us does not think of * * * grandfathers and grandmothers, from so many places around the globe, for
whom this statue was the first glimpse of America?”
Remarks at the Opening Ceremonies of the Statute
of Liberty Centennial Celebration (July 3, 1986),
https://goo.gl/1qwq5N. See also Foley v. Connelie, 435
U.S. 291, 294 (1978) (describing America as “a nation
of immigrants”).
At the same time, America has long recognized
the importance of protecting ourselves against those
who would do us harm. But we have done so while
maintaining our fundamental commitment to welcoming immigrants—through increased background
checks and other controls on people seeking to enter
our country.2
“In the decade since 9/11,” immigration policy has incorporated, among other things, “major new border security and law
enforcement initiatives, heightened visa controls and screening
of international travelers and would-be immigrants, the collection and storage of information in vast new interoperable databases used by law enforcement and intelligence agencies, and
the use of state and local law enforcement as force multipliers
in immigration enforcement.” Muzaffar Chishti & Claire Bergeron, Migration Pol’y Inst., Post-9/11 Policies Dramatically Alter the U.S. Immigration Landscape (Sept. 8, 2011),
https://goo.gl/6rdagt.
2
3
For more than fifty years, moreover, immigration
rules have been based on input from, and consideration of views advanced by, all relevant stakeholders—through congressional legislation and agency
notice-and-comment rulemaking—with exceptions
limited to temporary measures addressing emergency situations.
On January 27, 2017, “[o]ne week after inauguration and without interagency review,” Executive
Order 13,769, 82 Fed. Reg. 8,977 (Jan. 29, 2017)
(“First Executive Order”), was issued. Hawaii v.
Trump, 859 F.3d 741, 756 (9th Cir.), vacated, 138 S.
Ct. 377 (2017). That Order altered immigration policy in significant respects: it barred nationals of seven
countries—Syria, Libya, Iran, Iraq, Somalia, Yemen,
and Sudan—from entering the United States for at
least 90 days (First Executive Order § 3(c)), with the
possibility of expansion to additional countries (id.
§ 3(e)-(f)), and it gave the Secretaries of State and
Homeland Security discretion to issue visas to affected nationals “on a case-by-case basis” (id. § 3(g)).
On March 6, 2017, the First Executive Order was
rescinded, and Executive Order 13,780, 82 Fed. Reg.
13,209 (Mar. 6, 2017) (“Second Executive Order”),
was issued. That Order banned nationals from six
countries for 90 days beginning on March 16—the
same countries as the first order, omitting Iraq, but
subjecting nationals from Iraq to intensive scrutiny—and otherwise contained many of the characteristics of the First Executive Order. Second Executive
Order §§ 2(c), 4. That Order, like the First Executive
Order, was enjoined by multiple courts. See, e.g.,
Hawaii, 859 F.3d 741; Int’l Refugee Assistance Project v. Trump, 857 F.3d 554 (4th Cir.), vacated, 138 S.
Ct. 353 (2017).
4
On September 24, 2017, the Second Executive
Order was supplanted by Presidential Proclamation
9645, 82 Fed. Reg. 45,161 (Sept. 24, 2017) (the “Proclamation”). The Proclamation bans nationals, in
whole or in part, from eight countries—Chad, Iran,
Libya, North Korea, Somalia, Syria, Venezuela, and
Yemen—without any expiration date. Proclamation
§ 2. The Proclamation again confers discretion on
consular officers to “grant waivers on a case-by-case
basis” to nationals from the designated countries. Id.
§ 3(c). And the Proclamation creates a procedure by
which the Secretaries of Homeland Security and
State can identify new countries to subject to the
ban. Id. § 4(a)(ii). “As with EO-1 and EO-2, the Proclamation faced swift legal challenge.” Int’l Refugee
Assistance Project v. Trump, 883 F.3d 233, 253 (4th
Cir. 2018). See also Pet. App. 4a.
Like its prior iterations, the Proclamation effects
a significant shift in the rules governing entry into
the United States; injects substantial uncertainty
and instability into the Nation’s immigration system;
and inflicts harm on American companies, their employees, and the entire economy. It hinders the ability of American companies to attract talented employees; increases costs imposed on business; makes
it more difficult for American firms to compete in the
international marketplace; and gives global enterprises a new, significant incentive to build operations—and hire new employees—outside the United
States.
The Proclamation is unlawful because it exceeds
the executive branch’s authority under the Nation’s
immigration laws. Narrow statutory provisions that
authorize the executive branch to address emergency
circumstances on a temporary basis do not license
5
significant, permanent alterations to standards set
forth in immigration laws.
Moreover, to bar a class of aliens from the United
States, the executive branch must reasonably determine that their entry would be detrimental to the
Nation, and then craft an order that reasonably addresses any threat that those individuals might pose.
But the Proclamation neither explains why the targeted individuals’ entry would be detrimental to the
United States nor imposes reasonable restrictions.
Finally, Congress in 1965 prohibited discrimination in immigration decisions on the basis of national
origin precisely so that the Nation would not shut its
doors to immigrants based on where they come
from—but the Proclamation does just that. It would
turn the clock back and restore the national-origins
system that Congress expressly abolished.
The Court accordingly should affirm the decision
below barring enforcement of the Proclamation.
ARGUMENT
I.
The Proclamation Harms American Innovation And Economic Growth.
Immigration is a key driver of the U.S. economy.
The Proclamation, both by its direct effects and by
the signal it sends, hamstrings American innovation
and economic growth.
A. Immigration provides significant benefits to the U.S. economy.
To begin with, immigrants are leading entrepreneurs. “The American economy stands apart because,
more than any other place on earth, talented people
from around the globe want to come here to start
their businesses.” P’ship for a New Am. Econ., The
6
“New American” Fortune 500, at 5 (2011),
http://goo.gl/yc0h7u. Indeed, “[i]mmigrants continue
to be a lot more likely than the native-born to become
entrepreneurs.” Robert W. Fairlie et al., Ewing Marion Kauffman Found., The 2016 Kauffman Index:
Startup Activity 7 (Aug. 2016), https://goo.gl/6Wr5Mc.
Some of these businesses are large. “Immigrants
have started more than half (44 of 87) of America’s
startup companies valued at $1 billion dollars”—socalled “unicorns”—“and are key members of management and product development teams in over 70
percent (62 of 87) of these companies.” Stuart Anderson, Nat’l Found. for Am. Pol’y, Immigrants and Billion Dollar Startups 1, 4 (Mar. 2016), https://goo.gl/Mk7iJM. Immigrants or their children founded more
than 200 of the companies on the Fortune 500 list,
including Apple, Kraft, Ford, General Electric,
AT&T, Google, McDonald’s, Boeing, and Disney.
P’ship for a New Am. Econ., supra, at 1-2. Collectively, these companies generate annual revenue of $4.2
trillion and employ millions of Americans. Id. at 2.
Many of these businesses are small. “While accounting for 16 percent of the labor force nationally
and 18 percent of business owners, immigrants make
up 28 percent of Main Street business owners.”
Americas Soc’y & Council of the Americas, Bringing
Vitality to Main Street 2 (2015), https://goo.gl/i9NWc9. These are “the shops and services that are
the backbone of neighborhoods around the country.”
Id. In 2011, immigrants opened 28% of all new businesses in the United States. See P’ship for a New
Am. Econ., Open For Business: How Immigrants Are
Driving Small Business Creation in the United States
3 (Aug. 2012), https://goo.gl/zqwpVQ.
7
Immigrant entrepreneurs come from all parts of
the world. In 2014, “19.1 percent of immigrants from
the Middle East and North Africa were entrepreneurs.” New Am. Econ., Reason for Reform: Entrepreneurship 2 (Oct. 2016), https://goo.gl/QRd8Vb.
Immigrants also fuel the growth of the economy
as a whole. “When immigrants enter the labor force,
they increase the productive capacity of the economy
and raise GDP. Their incomes rise, but so do those of
natives.” Pia Orrenius, George W. Bush Inst., Benefits of Immigration Outweigh the Costs, The Catalyst
(2016), https://goo.gl/qC9uOc. Immigrants thus create new jobs for U.S. citizens “through the businesses
they establish … [and] play an important role in job
creation in both small and large businesses.” U.S.
Chamber of Commerce, Immigration: Myths and
Facts 3 (2016), https://goo.gl/NizPEQ. Studies “overwhelmingly conclude that immigrants have a net
positive effect on wages, especially in the long run.”
Economic Effects of Immigration Policies, Bus.
Roundtable 3 (Sept. 2017), https://goo.gl/PnG3pB.
Immigrants are also innovators. Since 2000,
more than one-third of all American Nobel Prize
winners in Chemistry, Medicine, and Physics have
been immigrants. See Stuart Anderson, Immigrants
Flooding America with Nobel Prizes, Forbes (Oct. 16,
2016), http://goo.gl/RILwXU. Among individuals with
advanced educational degrees, immigrants are nearly three times more likely to file patents than U.S.born citizens. Michael Greenstone & Adam Looney,
The Hamilton Project, Ten Economic Facts About
Immigration 11 (Sept. 2010), https://goo.gl/3zpdpn.
By one estimate, noncitizen immigrants were named
on almost a quarter of all U.S.-based international
patent applications filed in 2006. Vivek Wadhwa et
8
al., America’s New Immigrant Entrepreneurs, Duke
Univ. & Univ. Cal. Berkeley 4 (Jan. 4, 2007),
https://goo.gl/wCIySz. And children of immigrants
made up 83% of the top-performing students in the
well-known Intel high school science competition.
Stuart Anderson, Nat’l Found. for Am. Pol’y, The
Contributions of the Children of Immigrants to Science in America 1-3, 5, 12 (Mar. 2017),
https://goo.gl/7noMyC.
In sum, immigrants provide incalculable benefits
to the U.S. economy and the Nation as a whole.
B. The Proclamation harms the U.S. economy.
“[B]ecause the proclamation bans the entry of potential entrepreneurs, inventers, and innovators, the
public’s interest in innovation is thwarted at both the
state and corporate levels.” Pet. App. 60a.
But that is not all. The Proclamation abandons
the principles that have undergirded U.S. immigration policy for more than half a century—clear, settled standards and constrained discretion. It introduces sudden changes without an opportunity for affected parties to inform decisionmakers of the consequences of those changes before their adoption,
provides unclear standards for implementation, and
leaves entirely to individual officers’ discretion the
exercise of case-specific waiver authority.
Moreover, nothing prevents future executive
branch changes in the immigration system unrelated
to the matters addressed in this Proclamation. Businesses need a predictable, stable system so they can
make long-term personnel and investment decisions
and be certain that they will be able to interact with
their global customers. The continuing risk of addi-
9
tional, unanticipated changes in immigration rules
creates significant uncertainty that imposes a substantial burden on managing global businesses and
planning for the future.
The Proclamation will therefore make it more
difficult and expensive for U.S. companies to recruit,
hire, and retain some of the world’s best employees.
It will disrupt ongoing business operations—making
it harder for U.S. companies to compete in today’s
global markets. And it will inhibit investment in the
United States. That will inflict significant harm on
American business, innovation, and economic
growth.
1. The Proclamation creates widespread uncertainty.
Confusion and uncertainty are the hallmarks of
the Proclamation and its predecessors. The Proclamation again establishes a system of “case-by-case”
exceptions from its ban on nationals from eight countries, but leaves the application of those exceptions to
the discretion of Customs and Border Protection officers—setting forth a non-exhaustive list of circumstances in which such exceptions “may be appropriate.” Proclamation § 3(c) (emphasis added). Because
individual immigration officers retain broad discretion in issuing these individual-by-individual exceptions, it is unclear what exemptions will actually be
given, or why—and whether that authority is being
exercised fairly and without discrimination or favoritism.
Even more important, the Proclamation provides
that the ban, and its accompanying standardless exception process, may be expanded to include an unspecified number of additional countries if those na-
10
tions do not provide information the Secretaries of
Homeland Security and State deem necessary to approve visas. See Proclamation § 4(a). Individuals and
businesses thus face the significant risk that new,
as-yet-unidentified countries will be added to the
ban—all without any governing standard.
The Proclamation will have the immediate, adverse consequence of making it far more difficult and
expensive for U.S. companies to hire the world’s best
talent and compete effectively in the global marketplace. Businesses and employees have little incentive
to go through the laborious process of sponsoring or
obtaining a visa and relocating to the United States
if an employee may be unexpectedly stopped at the
border.
The Proclamation and its prior iterations have
also significantly reduced the talent pipeline: enrollment data from the last year shows that they have
discouraged international students from enrolling in
U.S. colleges. David Steele-Figueredo, Trump’s AntiImmigrant Rhetoric Is Already Hurting US Higher
Education, Times Higher Educ. (Jan. 30, 2018),
https://goo.gl/VEaVp5.
At the end of the day, skilled individuals will not
wish to immigrate to this country if they may be cut
off without warning from their spouses, grandparents, relatives, and friends. They will not pull up
roots, incur significant economic risk, and subject
their family to considerable uncertainty to immigrate
to the United States in the face of this instability.
Seth Fiegerman, Former Google Exec Calls Trump
Travel Ban an ‘Enormous Problem,’ CNN Tech (Jan.
30, 2017), https://goo.gl/vNVgLt. The Proclamation
therefore significantly disadvantages U.S. companies
in the global competition for talent.
11
2. The Proclamation’s ban on travel significantly impairs day-to-day business.
The marketplace for today’s businesses is global.
Companies routinely send employees across borders
for conferences, meetings, or job rotations; and they
invite customers, clients, and users from abroad to
attend meetings in the U.S. Global mobility is therefore critical to businesses whose customers, suppliers, users, and workforces are spread all around the
world. See, e.g., BGRS, Breakthrough to the Future of
Global Talent Mobility (2016), http://goo.gl/ZhIxSr;
Harv. Bus. Rev., Strategic Global Mobility (2014),
http://goo.gl/AV3nhJ.
Global business travel enables employees to develop new skills, take on expanded roles, and stay
abreast of new technological or business developments. It also facilitates development of new markets and business partnerships. Indeed, one study
has shown that each additional international business trip increases exports from the United States to
the visited country by, on average, over $36,000 per
year. Maksim Belenkiy & David Riker, Face-to-Face
Exports: The Role of Business Travel in Trade Promotion, 51 J. Travel Res. 632, 637 (2012). See also
Nune Hovhannisyan & Wolfgang Keller, International Business Travel: An Engine of Innovation?, 20
J. Econ. Growth 75 (2015).
But the Proclamation will mean that many companies and employees (both inside and outside the
United States) would be unable to take advantage of
these opportunities. The Proclamation will prevent
companies from inviting customers to the United
States and prevent employees from outside the United States from traveling here. That is true even for
persons or countries not currently covered by the
12
Proclamation because there is no way to know
whether or when a country may be added to the noentry list.
The Proclamation also could lead to retaliatory
actions by other countries, which would seriously
hinder U.S. companies’ ability to do business or negotiate business deals abroad. U.S. companies’ deals
have already been threatened. See, e.g., Dionne
Searcey & Jaime Yaya Barry, Chad, an Ally Against
Militants, Asks, “Why Us?”, N.Y. Times (Sept. 25,
2017), https://goo.gl/xSPDSo; Tara Palmeri & Bryan
Bender, U.S. Diplomats Warning GE’s Major Deals
in Iraq at Risk over Travel Ban, Politico (Feb. 1,
2017), http://goo.gl/nhj9CZ.
3. The Proclamation incentivizes immigration to and investment in foreign countries rather than the United States.
Because of the Proclamation, highly skilled individuals will be more interested in working elsewhere,
in places where they and their colleagues can travel
freely and with assurance that their immigration
status will not suddenly be revoked. Other countries
have already begun “actively pursuing foreign investors and entrepreneurs, with the aim of increasing
investment and creating jobs for the benefit of the
national economy.” Org. Econ. Co-operation & Dev.,
International Migration Outlook 2017 46 (41st ed.
2017). See also Elizabeth MacBride, CNBC, Silicon
Valley Reeling as Trump Chokes Off a Critical Source
of Tech Talent (Mar. 15, 2018), https://goo.gl/BJscj3
(giving examples).
Non-U.S. companies have taken note, as well.
Multinational companies will have strong incentives,
including pressure from their own employees, to base
13
operations outside the United States or to move or
hire employees and make investments abroad. Foreign companies will have significantly less incentive
to establish operations in the United States and to
hire American citizens, because the Proclamation
will preclude the ability of those companies to employ their world-class talent within their U.S. subsidiaries. Ultimately, American workers and the economy will suffer as a result.
These impacts are concrete and quantifiable: one
study found that the Proclamation would reduce
wages for U.S. citizens and residents by roughly $1.4
billion over the next ten years. See Alex Nowrasteh,
Cato Inst., New Trump Executive Order Fails CostBenefit Test, (Sept. 25, 2017), https://goo.gl/N5Cgoj.
And these adverse effects have been felt nationwide,
from Michigan (see John Austin et al., Mich. Econ.
Ctr., Michigan: We Are All Migrants Here 10-12
(2017), https://goo.gl/D3bz99) to Massachusetts (see
Mass. Tech. Leadership Council, The Economic Impact of Immigration on the United States 3-4 (June
2017), https://goo.gl/Cvt3uC) and beyond.
* * * *
Of course, the federal government can and
should implement targeted, appropriate adjustments
to our country’s immigration system to enhance the
Nation’s security. But a broad, open-ended ban—
together with the indication that the ban could be
expanded to other countries, or that additional, different restrictions could be adopted, without notice—
will undermine rather than protect American interests, producing serious, widespread adverse consequences without any reasonable relationship to the
goal of making the country more secure.
14
II. The Proclamation Is Unlawful.
The Proclamation is unlawful for several reasons. We focus on three. First, the Immigration and
Nationality Act (“INA”) does not authorize the use of
unilateral executive action to fundamentally and
permanently change the character of the Nation’s
immigration laws. Second, the Proclamation is not
authorized by Section 1182 or the Immigration and
Nationality Act as a whole; the Proclamation lacks
an adequate finding of detriment; it conflicts with
other relevant statutory provisions; and it fails to
comply with necessary procedural requirements. And
third, the Proclamation violates the nondiscrimination requirement of Section 1152.
A. The INA does not authorize the executive branch to implement unilateral,
permanent revisions of the Nation’s
immigration laws.
The government relies primarily on the President’s power under the INA to “suspend the entry of
* * * any class of aliens” whose entry he finds “would
be detrimental to the interests of the United States
* * * for such period as he shall deem necessary.” 8
U.S.C. § 1182(f). It also points to Section 1185(a),
which permits the President to issue “reasonable
rules, regulations, and orders” and “limitations and
exceptions” for the entry of immigrants and nonimmigrants. Those grants of authority, the government
claims, “authorize the President to halt any and all
foreign travel into the country at any time, from any
and all countries, for any reason he decrees, for however long he wishes, notwithstanding any other provision of law.” IRAP, 883 F.3d at 291 (Gregory, C.J.,
concurring).
15
But these statutory provisions do not confer such
unlimited authority. No other administration has
used these statutes to presumptively prohibit the entry of millions of foreign nationals solely on the basis
of their nationality—and in perpetuity. The text and
context of Sections 1182(f) and 1185(a) make clear
that an exercise of authority must be limited to a
specific, emergency situation. The Proclamation here
exceeds those limitations.
By its terms, Section 1182(f) allows the executive
branch to “suspend” the entry of certain aliens for a
designated “period”—not to prohibit entry by those
aliens in perpetuity. Pet. App. 26a. In other words,
Section 1182(f) is “a gap-filling provision,” authorizing targeted, temporary action to respond to an
emergency situation. IRAP, 883 F.3d at 296 (Gregory, C.J., concurring). See Abourezk v. Reagan, 785
F.2d 1043, 1049 n.2 (D.C. Cir. 1986) (explaining that
Section 1182(f) “provides a safeguard against the
danger posed by any particular case or class of cases
that is not covered by one of the [inadmissibility]
categories in [S]ection 1182(a)”).
That was the context in which the language contained in Section 1182(f) was enacted. See page 18,
infra. And it is how past administrations have employed this authority since 1952, each time issuing a
targeted restriction, usually limited to dozens or
hundreds of people on the grounds that each affected
person had engaged in culpable conduct, such as
human trafficking, illegal entry, or corruption. See
Kate M. Manuel, Cong. Research Serv., Executive
Authority to Exclude Aliens: In Brief 6-10 (Jan. 23,
2017), https://goo.gl/D0bRkS; Pet. App. 35a-38a. This
consistent executive branch practice is powerful evidence of the limited reach of the provision, and it is
16
consistent with the context of Section 1182(f)—as one
provision in an extraordinarily detailed set of statutory rules, elaborated in administrative regulations,
that govern the issuance of visas and entry of aliens.
Similarly, Section 1185(a) permits the President
to issue “reasonable rules, regulations, and orders”
regarding the entry of aliens into the United States.
8 U.S.C. § 1185(a)(1) (emphasis added). Like Section
1182(f), it does not purport to give the executive
branch authority to engage in wholesale, permanent
revision of the Nation’s immigration laws.
These statutes cannot be read to confer absolute
authority over the Nation’s immigration system to
the executive branch. Without the important limitations imposed by the statutes’ text and structure, the
executive could usurp Congress’s power under Article I, Section 8 to “establish a uniform rule of naturalization.” See also Arizona v. United States, 567
U.S. 387, 409 (2012) (“Policies pertaining to the entry
of aliens and their right to remain here are * * * entrusted exclusively to Congress.”) (quotation omitted). Congress did not intend, and the Constitution
does not permit, that result.
The Proclamation here exceeds the powers
granted under these two statutes. It applies to millions of people, sweeping them in because of their nationality, rather than on the basis of culpable conduct. And unlike the first two executive actions, the
Proclamation does not expire—meaning that it is the
polar opposite of a time-limited, gap-filling measure.
It is, instead, the replacement of the system established by Congress with a new scheme crafted by the
executive branch. The INA does not authorize permanent unilateral revision of the immigration laws.
17
B. The Proclamation exceeds the authority
conferred by Section 1182.
Even assuming that Section 1182 confers authority to permanently revise the Nation’s immigration
laws, the Proclamation fails to do so in a manner
that comports with the statute.
1. The Proclamation does not contain a finding sufficient to justify exercise of the authority conferred by Section 1182(f).
The text of Section 1182(f) is clear: the President
may only suspend the entry of aliens if he “finds”
that their entry “would be detrimental to the interests of the United States.” Congress could not have
made it more plain that it did not intend to confer
upon the executive branch unbounded power to bar
aliens, and instead conditioned authority under Section 1182(f) upon an adequate finding of detriment.
That Congress required such a finding is unsurprising, for Congress may delegate power only if “the
executive judgment is limited by adequate standards.” Carlson v. Landon, 342 U.S. 524, 544 (1952).
An “intelligible principle” must guide the exercise of
delegated power. Whitman v. Am. Trucking Ass’ns,
531 U.S. 457, 472 (2001).
For that reason, the Court has consistently identified limits on discretionary authority delegated by
Congress, even when confronted with a clause that
seems “limitless” when read “in isolation and literally.” United States v. Witkovich, 353 U.S. 194, 198-202
(1957). See, e.g., Zemel v. Rusk, 381 U.S. 1, 17 (1965)
(rejecting the view that “simply because a statute
deals with foreign relations, it can grant the Executive totally unrestricted freedom of choice”); Kent v.
Dulles, 357 U.S. 116, 127, 128 (1958) (considering the
18
power to issue passports, the Court observed that the
executive’s authority was “expressed in broad terms,”
but refused to “impute to Congress * * * a purpose to
give [the executive] unbridled discretion to grant or
withhold a passport from a citizen for any substantive reason he may choose”). See also Pet. App. 39a42a.
Section 1182 also contains a clear limitation on
presidential action: the President must “find” that
the specified aliens’ entry would be “detrimental to
the interests of the United States.” A reasonable
finding of the requisite “detriment[]” thus “constitute[s] a condition precedent to embarking upon the
exercise of regulatory power”—and such action is invalid in the absence of such a reasonable determination. Amoco Oil Co. v. Envtl. Prot. Agency, 501 F.2d
722, 736 (D.C. Cir. 1974). Indeed, courts in a variety
of contexts analyze whether the executive branch has
reasonably made the findings specified by Congress
as prerequisites for executive action. See, e.g., Mobil
Oil Expl. & Producing Se. Inc. v. United Distribution
Cos., 498 U.S. 211, 227 (1991); Indus. Union Dep’t,
AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607, 642
(1980); United Distribution Cos. v. F.E.R.C., 88 F.3d
1105, 1139 (D.C. Cir. 1996).
The executive branch must therefore meet a
standard of reasonableness in exercising Section
1182(f) authority. Witkovich, 353 U.S. at 198-202
(holding that authority to request information that
the Attorney General “may deem fit and proper” had
an implicit limit of reasonableness). That conclusion
accords with the longstanding interpretation of the
statute by the Executive Branch. See Immigration
Laws and Iranian Students, 4A Op. O.L.C. 133, 140
19
(1979) (recognizing that any suspension under Section 1182(f) “must meet the test of ‘reasonableness’”).
In addition, the permissible justifications for the
exercise of this authority are limited by the context
in which Congress acted when it adopted the language codified in Section 1182(f). Congress drew that
text from a series of narrowly drawn wartime statutes, proclamations, and regulations permitting the
executive branch to exclude only limited classes of aliens, for limited periods of time, to address emergency situations. See Hawaii Br. 38-41. That context restricts the use of the authority conferred by Section
1182. Zemel, 381 U.S. at 17-18 (statute “must take
its content from history”); Kent, 357 U.S. at 128
(grounds for refusing passport limited to those that
“it could fairly be argued were adopted by Congress
in light of prior administrative practice”).
The Proclamation transgresses this limitation on
executive authority. It provides barely any justification for why the admission of aliens it bans from the
United States—based on nothing more than their
national origin—would be detrimental to the Nation.
Its express aim is to protect U.S. “citizens from terrorist attacks and other public-safety threats,” by
preventing “foreign nationals who may * * * pose a
safety threat * * * from entering the United States.”
Proclamation, pmbl. But it “makes no finding whatsoever that foreign nationals’ nationality alone renders entry of this broad class of individuals a heightened security risk to the United States.” Pet. App.
45a. See also IRAP, 883 F.3d at 317 (Keenan, J., concurring).
Certainly there is no reasonable basis to conclude
that nationals of Chad, Iran, Libya, North Korea,
Somalia, Syria, Venezuela, and Yemen, simply by
20
virtue of their national origin, will commit terrorist
activities upon entry to the United States.3 Indeed,
the ban applies to hundreds of thousands of students, employees, and family members of citizens
who have been previously admitted to the United
States—and thus who the United States, after careful, individualized review, concluded that their admission to the United States posed no security risk to
the Nation.
The past history of admitting these individuals is
especially important because “there is no finding
that the present vetting procedures are inadequate.”
Pet. App. 44a. The Proclamation simply recites wellknown facts regarding these countries as a whole,
ignoring that no alien from these countries admitted
to the United States has engaged in terroristic activity.
It is no surprise that the Proclamation falls back
on a different rationale: that the designated countries, with the exception of Somalia, “continue to
have ‘inadequate’ identity-management protocols, information-sharing practices, and risk factors.” Proclamation § 1(g). But “[n]owhere in the Proclamation
does the President claim that these individuals pose
a detriment to the United States’ interests because
they are nationals of these particular countries.”
IRAP, 883 F.3d at 317 (Keenan, J., concurring). Nor
does the purported need to encourage these countries
to improve their practices amount to the statutorily
required finding that the entry of nationals from theIndeed, the administration itself did not think so until it
found itself embroiled in litigation. As a study from the Department of Homeland Security noted, “country of citizenship is
unlikely to be a reliable indicator of potential terrorist activity.”
Pet. App. 45a n.20.
3
21
se countries “would be detrimental” to the United
States. Claimed “inadequacy” cannot constitute a
reason for banning 140 million people from the United States based on nothing more than their nationality.
The Proclamation’s purported rationale falls
short for other reasons. The Proclamation does not
include thirty-nine other countries with borderline
performance; “the explanation for how the administration settled on the list of eight countries is obscured.” Pet. App. 10a n.3 (quotation omitted). The
list remains both overinclusive and underinclusive:
its focus on nationality “could have the paradoxical
effect of barring entry by a Syrian national who has
lived in Switzerland for decades, but not a Swiss national who has immigrated to Syria during its civil
war.” Hawaii, 859 F.3d at 773 (quotation omitted).
And its reliance on the exclusion of several listed
countries from the Visa Waiver Program is unconvincing: rather than “restricting travel from countries with inadequate risk factors,” Congress “enacted provisions facilitating travel from low-risk countries.” Pet. App. 31a (emphasis added).
In sum, the Proclamation lacks the reasonable
finding of detriment required by Section 1182(f).
2. The Proclamation conflicts with other
provisions of the INA.
The Proclamation also displaces the INA’s specific requirements for excluding aliens on the basis that
they might commit acts of terrorism. See 8 U.S.C.
§ 1182(a)(3)(B). That statute—“a complex provision
with 10 different subsections” that “cover[s] a vast
waterfront of human activity” (Kerry v. Din, 135 S.
Ct. 2128, 2145, 2146 (2015) (Breyer, J., dissent-
22
ing))—provides detailed standards for determining
when an alien may be excluded based on a potential
to commit terrorist acts. Specifically, an alien who
has never before engaged in terrorist activities or
joined a terrorist organization may be excluded only
if the government has a “reasonable ground to believe” that the alien “is likely to engage after entry in
any terrorist activity.” 8 U.S.C. § 1182(a)(3)(B)(i)(II).
The Proclamation’s system of ad hoc waivers
turns that provision on its head. Instead of creating a
presumption of admittance absent any “reasonable
ground” to think an alien will commit terrorist activities—as Section 1182(a)(3)(B) requires—the Proclamation creates a presumption of exclusion and leaves
it to Customs and Border Protection to decide
whether an alien has demonstrated, “to the consular
officer’s * * * satisfaction,” that he or she would not
threaten national security. Proclamation § 3(c)(i).
The Proclamation thus eliminates Congress’s
substantive requirement that there be reasonable
grounds to exclude an alien on the basis of the threat
of future acts of terrorism. And it does so without
even attempting to explain why changed circumstances or other facts make Congress’s determinations inadequate to protect the Nation.4
As construed by the government, therefore, Section 1182(f) would allow the executive branch to reIn addition, Congress in 2015 specifically considered the risk
that travelers from these countries might engage in terrorism,
and addressed it by exempting them from the visa waiver program. See Pub. L. 114-113, div. O, tit. II, § 203, 129 Stat. 2242
(codified at 8 U.S.C. § 1187(a)(12)). That congressional determination, too, is overridden by the Proclamation without any justification or explanation.
4
23
write all of Congress’s detailed rules for when aliens
may be excluded, which are set forth in detail in Section 1182(a). “[T]he statute lists thirty-three distinctly delineated categories that conspicuously provide
standards to guide the Executive in its exercise of
the exclusion power.” Abourezk, 785 F.2d at 1051. By
banning groups of aliens at will, and for reasons that
contradict the standards specified by Congress, the
executive has “nullif[ied] numerous specific provisions of the INA indefinitely * * * and has overridden
Congress’s legislative responses to the same concerns
the Proclamation aims to address.” Pet. App. 32a.
Indeed, were the Court to uphold the Proclamation here, an administration could use Section
1182(f) to rewrite the immigration laws in their entirety, prescribing via executive order an entire new
regime—with standards for issuing visas and excluding aliens wholly different from those prescribed by
Congress. Section 1182(f) does not, as the government would have it, empower the executive to nullify
duly enacted immigration laws at will. If it did, such
a delegation of authority would pose grave constitutional concerns.
3. The Proclamation is procedurally unreasonable.
The comprehensive revision of the immigration
system effected by the Proclamation—and the executive orders that apparently will follow—improperly
circumvents Congress’s directive that significant
changes in immigration rules be implemented
through notice and comment rulemaking.
Sections 2(a) to 2(f) of the Proclamation effectively create a new immigration system pursuant to
which the Secretary of Homeland Security, the Sec-
24
retary of State, and the Director of National Intelligence determine what unspecified “information”
countries must share with the United States in order
to allow their nationals to enter this country. Then,
these officials may recommend to the President an
expansion or extension of the ban on entry to the
United States.
In addition, the Proclamation confers effectively
unconstrained discretion on consular officers and
customs officials to “grant waivers on a case-by-case
basis to permit the entry of foreign nationals for
whom entry is otherwise suspended or limited.” Proclamation § 3(c). Other than listing a series of nonexclusive considerations, the Proclamation neither proscribes a procedural mechanism for this exercise of
discretion, nor establishes substantive guideposts to
govern the exercise of this broad discretion.
Congress expressly identified the need for rulemaking in the INA, authorizing the President to impose “reasonable rules, regulations, and orders.” 8
U.S.C. § 1185(a). But no such rulemaking occurred
here, notwithstanding the Proclamation’s broad applicability. Moreover, while the Administrative Procedure Act does not generally apply to the President’s actions (see Dalton v. Specter, 511 U.S. 462,
469 (1994)), it does apply to the subsequent conduct
of the Departments of State and Homeland Security,
which must ultimately implement the Proclamation.
Rulemaking “foster[s] * * * fairness and deliberation” (United States v. Mead Corp., 533 U.S. 218, 230
(2001)), and gives “interested persons an opportunity
to participate in the rule making through submission
of written data, views, or arguments.” 5 U.S.C.
§ 553(c). See also Motor Vehicle Mfrs. Ass’n v. State
Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)
25
(rulemaking process ensures that an agency has not
“relied on factors which Congress has not intended it
to consider, entirely failed to consider an important
aspect of the problem, [or] offered an explanation for
its decision that runs counter to the evidence before
the agency”).
Here, the notice-and-comment process is particularly important given the huge range of individuals
and entities affected by these rules, such as families
seeking to reunite, or even just to have the opportunity to visit one another; businesses wishing to interact with customers, to enable employees to obtain
experience at their home offices in the United States,
or to hire individuals with expertise not otherwise
available; and cultural institutions planning performances by artists from outside the United States.
For these reasons, Section 1182(f) does not provide a
means of circumventing the ordinary rulemaking
process for promulgating legal principles of general
applicability.
C. The Proclamation violates Section
1152’s non-discrimination requirement.
The Proclamation separately contravenes 8
U.S.C. § 1152(a)(1)(A), which provides 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.” “Congress could hardly have chosen more explicit language” to “unambiguously direct[] that no
nationality-based discrimination” shall occur with
respect to immigration. 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).
26
Congress enacted Section 1152 to “‘eliminate the
national origins system as the basis for the selection
of immigrants to the United States.’” Pet. App. 49a
(quoting H.R. Rep. No. 89-745, at 8 (1965) (alterations omitted)). That system, as President Johnson
explained, was “incompatible with our basic American tradition” that we “ask not where a person comes
from but what are his personal qualities.” H.R. Rep.
No. 89-745, at 11. Congress replaced the national origins system with “a new system of selection designed to be fair, rational, humane, and in the national interest” (S. Rep. No. 89-748, at 13 (1965)),
based largely on “the advantage to the United States
of the special talents and skills of the immigrant.”
H.R. Rep. No. 89-745, at 18.
On its face, the Proclamation discriminates on
the basis of nationality and therefore violates Section
1152. Although the Proclamation purports to bar only the entry of designated foreign nationals, it does
so “by precluding consular officers from issuing visas
to nationals from the designated countries.” Pet.
App. 50a. “This directly contravenes Congress’s ‘unambiguous directions that no nationality-based discrimination occur.’” Id. (quoting Legal Assistance for
Vietnamese Asylum Seekers, 45 F.3d at 473) (alterations adopted).5
Section 1152 must be understood to constrain the
powers granted by Section 1182(f). Section 1152, as
the “later-enacted, more specific provision,” “provides
The Proclamation also cannot be defended as creating “procedures for the processing of immigrant visa applications” (8
U.S.C. § 1152(a)(1)(B)). That statute—at most—permits the executive to regulate the manner in which foreign nationals can
receive visas or enter the United States, but does not authorize
a sweeping ban on nationals from eight countries.
5
27
a specific anti-discrimination bar to the President’s
general § 1182(f) powers.” Pet. App. 52a. See, e.g.,
Crawford Fitting Co. v. J. T. Gibbons, Inc., 482 U.S.
437, 445 (1987) (“[W]here there is no clear intention
otherwise, a specific statute will not be controlled or
nullified by a general one, regardless of the priority
of enactment.”) (quotation omitted). Section 1152 also “clearly provides for exceptions in a number of circumstances,” and “[t]he conspicuous absence” of Sections 1182(f) and 1185(a) from that list strongly indicates that Congress did not intend to include them.
Pet. App. 52a-53a.
The government asserts that there is no conflict
between the Proclamation and Section 1152 because,
“if an alien abroad is subject to the Proclamation and
does not qualify for a waiver, he is denied an immigrant visa because he is ineligible to enter under
Section 1182.” Pet’r Br. 51 (quotation and alteration
omitted). But it makes no difference that the aliens
who are banned by the Proclamation cannot receive
visas because they are barred from entering the
United States when the reason for that bar is their
national origin.
Congress did not allow for Section 1152 “to be so
easily circumvented.” Pet. App. 51a. Put differently,
Congress could not have intended to prohibit discrimination at the embassy but permit it at the airport gate. Congress instead commanded “that government must not discriminate against particular
individuals because of the color of their skin or the
place of their birth,” because such discrimination “is
unfair and unjustified” wherever it occurs. Olsen v.
Albright, 990 F. Supp. 31, 39 (D.D.C. 1997).
In sum, the Proclamation exceeds the authority
conferred by Section 1182—but even if it does not, it
28
nonetheless violates the ban on nationality-based
discrimination codified in Section 1152.6
D. This Court can, and must, adjudicate
the scope of the President’s authority.
“Congress intends the executive to obey its statutory commands and, accordingly, * * * it expects the
courts to grant relief when an executive agency violates such a command.” Bowen v. Mich. Acad. of
Family Physicians, 476 U.S. 667, 681 (1986). For this
reason, “[r]eview of the legality of Presidential action
can ordinarily be obtained in a suit seeking to enjoin
the officers who attempt to enforce the President’s
directive.” Franklin v. Massachusetts, 505 U.S. 788,
828 (1992) (Scalia, J., concurring) (citing Youngstown
Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)).
It is fundamental that the President’s exercise of
his statutory powers is not above review by this
Court. In Dames & Moore v. Regan, for instance, the
Court addressed claims that President Reagan’s executive order suspending certain claims against Iran
exceeded the President’s statutory powers, holding
that the order fell within that authority. 453 U.S.
654, 666-667 (1981). See also United States ex rel.
Knauff v. Shaughnessy, 338 U.S. 537, 544-547 (1950)
(reviewing on the merits claims that a presidential
proclamation violated two statutes). Respondents
here raise a similar claim, arguing that the Order
To be sure, the text of Section 1152 only prohibits discrimination with respect to immigrant visas. But the basic nondiscrimination principle that it embodies is reflected throughout
U.S. law. Olsen, 990 F. Supp. at 33 (addressing nonimmigrant
visas). Section 1182(f) therefore does not confer authority to
discriminate on this basis with respect to nonimmigrant visas
in the absence of a reasonable justification for displacing this
fundamental principle. Such a justification is lacking here.
6
29
exceeds the President’s limited authority under Section 1182(f).
To be sure, there is a narrow exception to judicial
review where a statute gives the President unlimited
discretion to make a discrete and specific decision.
See Dalton, 511 U.S. at 477. This rule reflects the
general principle that review is unavailable when a
statute is “drawn in such broad terms that in a given
case there is no law to apply.” Heckler v. Chaney, 470
U.S. 821, 830 (1985).
The President’s discretion under Section 1182(f)
is not unlimited, as it was in Dalton. Instead, the
President’s authority is constrained by the requirement that he make an adequate finding of detriment,
and that he exercise his power under Section 1182
reasonably. Accord Sale v. Haitian Ctrs. Council,
Inc., 509 U.S. 155, 187-188 (1993) (assessing legality
of President’s exercise of Section 1182(f) authority).
The Proclamation is unlawful—and the Court should
say so.
Petitioners’ invocation of the so-called “consular
nonreviewability” doctrine is similarly misplaced.
Pet’r Br. 19. The question here does not involve an
individualized, discretionary “decision” by a “consular official” to “issue or withhold a visa.” Saavedra
Bruno v. Albright, 197 F.3d 1153, 1159 (D.C. Cir.
1999). Rather than any discretionary determination,
it is the scope of the President’s authority to establish broad standards banning wholesale immigration
from certain specified nationalities. Such determinations are reviewable. Cf. Patel v. Reno, 134 F.3d 929,
932 (9th Cir. 1997) (“The Patels are challenging the
consul’s authority to suspend their visa applications,
not challenging a decision within the discretion of
the consul. Therefore, jurisdiction exists to consider
30
whether the consulate has the authority to suspend
the visa applications.”). And, given that many respondents are not themselves foreign nationals, the
harms addressed in this case span far beyond individualized entry or admissions decisions.
Petitioners assert that this “distinction is fundamentally flawed” because the doctrine of consular
nonreviewability bars any “review of the President’s
national-security and foreign-relations judgments.”
Pet’r Br. 21-22. But that argument proves too much.
“The Executive has broad discretion over the admission and exclusion of aliens, but that discretion is not
boundless.” Abourezk, 784 F.2d at 1061. To the extent that courts ever hesitate to review statutory
claims about individualized consular officer determinations, that has no bearing on the sort of claims
raised here.
CONCLUSION
The judgment of the court of appeals should be
affirmed.
Respectfully submitted.
ANDREW J. PINCUS
Counsel of Record
PAUL W. HUGHES
Mayer Brown LLP
1999 K Street, NW
Washington, DC 20006
(202) 263-3000
apincus@mayerbrown.com
Counsel for Amici Curiae
MARCH 2018
APPENDIX
1a
APPENDIX A
LIST OF AMICI CURIAE
1.
A Medium Corporation
2.
Adobe Systems Incorporated
3.
AdRoll, Inc.
4.
Affirm, Inc.
5.
Airbnb, Inc.
6.
AltSchool, PBC
7.
Amazon.com, Inc.
8.
Ampush LLC
9.
Asana, Inc.
10.
Atlassian Corp. Plc
11.
Automattic/WordPress.com
12.
Azavea Inc.
13.
Bigtooth Ventures
14.
Bitly, Inc.
2a
15.
Box, Inc.
16.
Braze, Inc. (formerly Appboy, Inc.)
17.
Brightcove Inc.
18.
Bungie, Inc.
19.
CareZone Inc.
20.
Casper Sleep Inc.
21.
Castlight Health
22.
Checkr Inc.
23.
Chegg, Inc.
24.
Chobani, LLC
25.
Civis Analytics, Inc.
26.
ClassPass Inc.
27.
Cloudera, Inc.
28.
Cloudflare, Inc.
29.
Codecademy
3a
30.
Color Genomics, Inc.
31.
Copia Institute
32.
DocuSign, Inc.
33.
Dropbox, Inc.
34.
eBay Inc.
35.
Edmodo, Inc.
36.
Electronic Arts Inc.
37.
Eventbrite Inc.
38.
Expa, LLC
39.
Facebook, Inc.
40.
Fastly, Inc.
41.
Flipboard, Inc.
42.
Foursquare Labs, Inc.
43.
General Assembly Space, Inc.
44.
GitHub, Inc.
4a
45.
Glassdoor
46.
Google LLC
47.
Greenough Consulting Group
48.
Gusto
49.
Hewlett Packard Enterprise
50.
HP Inc.
51.
IDEO LLP
52.
Justworks
53.
Kickstarter, PBC
54.
Knotel
55.
Lam Research Corporation
56.
Levi Strauss & Co.
57.
Light Labs Inc.
58.
Linden Research, Inc. d/b/a Linden Lab
59.
Lyft, Inc.
5a
60.
Mapbox, Inc.
61.
Marin Software Incorporated
62.
Medallia, Inc.
63.
Medidata Solutions, Inc.
64.
Microsoft Corporation
65.
Minted, LLC
66.
Molecule Software, Inc.
67.
MongoDB, Inc.
68.
Mozilla Corporation
69.
MPOWERD Inc.
70.
Netflix, Inc.
71.
NETGEAR, Inc.
72.
NewsCred, Inc.
73.
NIO U.S.
74.
Oath, Inc.
6a
75.
Pandora Media, Inc.
76.
Patreon, Inc.
77.
PayPal Holdings, Inc.
78.
Pixability, Inc.
79.
Plaid Inc.
80.
Postmates Inc.
81.
Pure Storage, Inc.
82.
Quantcast Corp.
83.
Quora, Inc.
84.
RealNetworks, Inc.
85.
Reddit, Inc.
86.
Redfin Corporation
87.
Salesforce.com, Inc.
88.
Shutterstock, Inc.
89.
Singularity University
7a
90.
Snap Inc.
91.
Space Exploration Technologies Corp.
92.
Spokeo, Inc.
93.
SpotHero, Inc.
94.
Spotify USA Inc.
95.
Square, Inc.
96.
Squarespace, Inc.
97.
Strava, Inc.
98.
SugarCRM
99.
Sunrun, Inc.
100. SurveyMonkey Inc.
101. TaskRabbit, Inc.
102. Tesla, Inc.
103. Thumbtack, Inc.
104. TripAdvisor, Inc.
8a
105. Turo Inc.
106. Twilio Inc.
107. Uber Technologies, Inc.
108. Upwork Inc.
109. Verizon Communications Inc.
110. Via Transportation, Inc.
111. Warby Parker
112. Wikimedia Foundation, Inc.
113. Work & Co.
114. Workday, Inc.
115. Y Combinator Management, LLC
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.