Amicus Curiae Brief — Donald J. Trump, President of the United States, et al., Applicants v. East Bay Sanctuary Covenant, et al.

No. 18A-615

IN THE

Supreme Court of the United States

_________

DONALD J. TRUMP, ET AL.,

Petitioners/Applicants,

v.

EAST BAY SANCTUARY COVENANT, ET AL.,

Respondents.

_________

On Application for Stay Pending Appeal to the United

States Court of Appeals for the Ninth Circuit Pending

Further Proceedings in This Court

_________

MOTION FOR LEAVE TO FILE AND BRIEF OF

PETER KEISLER, STUART GERSON, WILLIAM

WEBSTER, CARTER PHILLIPS, JOHN

BELLINGER III, SAMUEL WITTEN, RAY LAHOOD,

CHRISTOPHER SHAYS, CHRISTINE TODD

WHITMAN, BRACKETT DENNISTON, STANLEY

TWARDY, AND RICHARD BERNSTEIN AS AMICI

CURIAE IN SUPPORT OF RESPONDENTS AND

THEIR OPPOSITION TO STAY

_________

RICHARD MANCINO

SHAIMAA M. HUSSEIN

MATTHEW R. DOLLAN

KYLE W. BURNS

WILLKIE FARR & GALLAGHER LLP

787 SEVENTH AVENUE

NEW YORK, N.Y. 10019-6099

RICHARD D. BERNSTEIN

COUNSEL OF RECORD

WILLKIE FARR & GALLAGHER LLP

1875 K STREET, N.W.

WASHINGTON, D.C. 20006-1238

TELEPHONE: (202) 303-1000

E-MAIL: RBERNSTEIN@WILLKIE.COM

i

MOTION FOR LEAVE TO FILE1

Amici respectfully move for leave to file a short

brief as amici curiae in support of Respondents and

their oppositions to the stay applications. The

parties have consented to the filing of the enclosed

amicus brief in opposition to Applicants’ stay

application.

Amici respectfully requests that the Court

consider the arguments herein and in the enclosed,

short amici brief in opposition to Applicants’ stay

application in Trump, et al. v. East Bay Sanctuary

Covenant, et al., No. 18A-615. The attached amici

brief demonstrates that plain meaning and,

independently, applicable canons of construction

show that the Applicants are very unlikely to

succeed on the merits and that the public interest

would be disserved by allowing a regulation that

violates a duly-enacted statute, 8 U.S.C. § 1158, to

be enforced during appellate proceedings. Amici’s

textualist arguments “may be of considerable help to

the Court.” Sup. Ct. R. 37.1.

I.

Statement of Movant’s Interest.

Amici include lawyers who worked in the

executive branch of the Department of Justice

during Republican administrations, including two

former acting Attorneys General and a former

amici brief in whole or

in part, and no person or entity other than amici made a

monetary contribution to its preparation or submission.

Applicants and Respondents have consented to the filing of the

amici brief.

1 No counsel for any party authored the

ii

director of the FBI, former Republican elected

officials, and others. See Appendix A. Amici have

an interest in seeing that, based on plain statutory

text and neutral principles of construction, the

Attorney General’s regulation, 83 Fed. Reg. 55, 934

(Nov. 9, 2018), is not permitted improperly to shift

governmental authority over asylum from Congress

to the executive branch. Amici speak only for

themselves personally, not for any entity or other

person.

II.

Statement Regarding Brief Form and Timing.

Given the expedited briefing of the stay

applications, amici respectfully request leave to file

the enclosed brief supporting Respondents and their

opposition to Applicants’ stay application without 10

days’ advance notice to the parties of intent to file.

See Sup. Ct. R. 37.2(a). The application for stay was

filed on December 11, 2017. On the same day, this

Court ordered a response by December 17, 2018. By

December 13, 2018, counsel for amici had given

notice to all parties of the intent to file an amicus

brief in opposition to the applications for stays.

Respondents gave their consent on December 13,

2018. Applicants gave their consent on December

14, 2018. The above justifies the request to file the

enclosed amici brief supporting Respondents and

their opposition to the stay applications without 10

days’ advance notice to the parties of intent to file.

iii

CONCLUSION

The Court should grant amici curiae leave to

file the enclosed brief in support of Respondents and

their opposition to the stay application.

DATED: December 17, 2018

Respectfully submitted,

Of Counsel:

RICHARD MANCINO

SHAIMAA M. HUSSEIN

MATTHEW R. DOLLAN

KYLE W. BURNS

Willkie Farr & Gallagher LLP

787 Seventh Avenue

New York, N.Y. 10019-6099

RICHARD D. BERNSTEIN

Counsel of Record

Willkie Farr & Gallagher LLP

1875 K Street, N.W.

Washington, D.C. 20006-1238

(202) 303-1000

rbernstein@willkie.com

Counsel for Amici Curiae

i

TABLE OF CONTENTS

INTEREST OF AMICI ............................................. 1

SUMMARY OF ARGUMENT.................................. 1

ARGUMENT ............................................................ 3

I.

THE PLAIN MEANING OF 8

U.S.C. § 1158(a) WARRANTS DENIAL

OF THE STAY. .............................................. 4

II.

EVEN IF THE TEXT OF 8 U.S.C.

§ 1158 WERE AMBIGUOUS, THE

GOVERNMENT’S INTERPRETATION

WOULD FAIL BECAUSE OF THREE

APPLICABLE CANONS OF

STATUTORY CONSTRUCTION. ................ 7

A.

Congress Does Not Reverse a

Fundamental Detail of a

Regulatory Scheme in Vague

Terms or an Ancillary Provision. ....... 8

B.

Congress Is Presumed Not to

Ambiguously Delegate a Decision

of Substantial Political

Significance to an Agency. .................. 9

C.

The Government’s Interpretation

Would Give Every Attorney

General an Extraordinary

Delegation of Unlimited

Authority to Suspend §

1158(a)(1). ........................................... 11

CONCLUSION ......................................................... 14

ii

LIST OF AMICI CURIAE .........................................1a

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Clinton v. City of New York,

524 U.S. 417 (1998) ..............................................12

F.D.A. v. Brown & Williamson Tobacco

Corp.,

529 U.S. 120 (2000) ..........................................6, 10

Gutierrez-Brizuela v. Lynch,

834 F.3d 1142 (10th Cir. 2016)..........................7, 8

Kucana v. Holder,

558 U.S. 233 (2010) ......................................5, 9, 11

In re Pula,

19 I. & N. Dec. 467 (BIA 1987) ..............................9

RadLAX Gateway Hotel, LLC v.

Amalgamated Bank,

566 U.S. 639 (2012) ................................................6

Rubin v. Islamic Republic of Iran,

138 S. Ct 816 (2018)...............................................5

Sessions v. Dimaya,

138 S. Ct 1204 (2018) ...........................................14

Trump v. Hawaii,

138 S. Ct. 2392 (2018)............................................7

United States v. Witkovich,

353 U.S. 194 (1957) ..............................................12

iv

Util. Air Regulatory Grp. v. E.P.A.,

134 S. Ct. 2427 (2014)..........................................10

Washington v. Trump,

858 F.3d 1168 (9th Cir. 2017)................................7

Whitman v. Am. Trucking Assn’s,

531 U.S. 457 (2001) ..........................................9, 13

Zadvydas v. Davis,

533 U.S. 678 (2001) ..............................................11

Statutes

8 U.S.C. §§ 1152(a)(4)(B)(ii),

1152(a)(4)(C)(i)–(ii), 1152(a)(4)(D),

1152(a)(5)(B) ..........................................................4

8 U.S.C. § 1158 .................................................. passim

8 U.S.C. § 1158(a)........................................................4

8 U.S.C. § 1158(a)(1) ......................................... passim

8 U.S.C. § 1158(b)................................................3, 4, 6

8 U.S.C. 1158(b)(2)(C) ....................................... passim

8 U.S.C. § 1158(d)(5)(B) ..............................................6

8 U.S.C. § 1182(f) ....................................................6, 7

8 U.S.C. § 1182e ..........................................................5

8 U.S.C. § 1225(b)(2)(C) ..............................................9

v

Act Concerning Aliens of June 25, 1798,

1 Stat. 570 ......................................................13, 14

Illegal Immigration Reform and Immigrant

Responsibility Act, 110 Stat. 3009-691 to

692 ................................................................ passim

Immigration and Control Act of 1986, 100

Stat. 3359 .........................................................8, 10

Other Authorities

83 Fed. Reg. 55,934 (Nov. 9, 2018) .............................1

A. Scalia & B. Garner, Reading Law:

The Interpretation of Legal Texts (2012) .......5, 13

Donald J. Trump (@realDonaldTrump),

Twitter (Apr. 30, 2018 3:38 PM) .........................10

Donald J. Trump (@realDonaldTrump),

Twitter (Oct. 17, 2018 6:45 AM) ..........................10

Donald J. Trump (@realDonaldTrump),

Twitter (Oct. 22, 2018 5:49 AM) ..........................10

Eyder Peralta, It Came Up In The Debate:

Here Are 3 Things To Know About

“Operation Wetback” (Nov. 11, 2015

3:54 PM ET) ...........................................................8

George Washington, Farewell Address

(1796) ....................................................................13

vi

James Madison, Virginia Resolution

(Dec. 21, 1798), reprinted in 5

THE FOUNDERS’ CONSTITUTION, 131–36

(Philip B. Kurland & Ralph Lerner eds.,

1987) .....................................................................14

1

INTEREST OF AMICI

Amici include lawyers who worked in the

executive branch of the Department of Justice

during Republican administrations, including two

former acting Attorneys General and a former

director of the FBI, former Republican elected

officials, and others. See Appendix A.1 Amici have

an interest in seeing that, based on plain statutory

text and neutral principles of construction, the

Attorney General’s regulation, 83 Fed. Reg. 55,934

(Nov. 9, 2018), is not allowed improperly to shift

governmental authority over asylum from Congress

to the executive branch. Amici speak only for

themselves personally, not for any entity or other

person.

SUMMARY OF ARGUMENT

First, the plain meaning of 8 U.S.C. § 1158 bars

this asylum ban. The government argues that

subsection 1158(b)(2)(C) authorizes the Attorney

General to issue a regulation that suspends asylum

for aliens who illegally cross the southern border of

the United States. But subsection 1158(b)(2)(C)

authorizes a regulation only if it is “consistent with

this section.”

Under this requirement, the

government is simply wrong that 1158(a) and (b)

No counsel for any party authored the brief in whole or in

part, and no person or entity other than amici made a

monetary contribution to its preparation or submission.

Applicants and Respondents have consented to the filing of this

brief.

1

2

should each be read in isolation because they are

“separate subsections.” Stay App. 29–30. Pursuant

to the express words of 1158(b)(2)(C), the subsections

are intertwined. The entire section of 1158 begins

with the command that “[a]ny alien” who crosses the

southern border illegally outside “a designated port

of arrival . . . may apply for asylum . . . .” 8 U.S.C. §

1158(a)(1). The Attorney General’s regulation is

inconsistent with the plain text and meaning of

section 1158. See Section I, infra. That should be

the end of the matter.

Second,

and

independently,

under

the

government’s interpretation of section 1158,

Congress swung the door open for potential asylum

for those who entered illegally, while simultaneously

authorizing the Attorney General to slam that door

shut at any time for any reason. Even assuming

that section 1158 were ambiguous, each of three

canons of statutory construction renders the

government’s

interpretation

wrong

and

unreasonable: (A) The government’s interpretation

would use an ancillary provision, 8 U.S.C. §

1158(b)(2)(C), to reverse a fundamental detail of the

regulatory scheme. See Section II.A, infra. (B) The

government’s interpretation would improperly

delegate from Congress to an agency a decision that

has been of enormous political significance for

decades—what privileges and rights to recognize for

aliens who cross the southern border illegally. See

Section II.B, infra.

(C) The government’s

interpretation would extraordinarily delegate to the

Attorney General an unlimited authority effectively

to suspend 8 U.S.C. § 1158(a)(1), a part of a

duly-enacted statute. See Section II.C, infra.

3

The plain statutory text and applicable canons of

statutory construction independently render the

government’s interpretation untenable. Accordingly,

there is no need for any judicial evaluation of the

wisdom or efficacy of this Administration’s asylum

policy choices, or whether they would cause a

humanitarian emergency.

ARGUMENT

8 U.S.C. § 1158(a)(1) provides that “[a]ny alien

who is physically present in the United States or

arrives in the United States (whether or not at a

designated port of arrival . . . ), irrespective of such

alien’s status, may apply for asylum.” Subsection

1158(b) addresses “conditions for granting asylum.”

In particular, subpart 1158(b)(2)(C) provides the

Attorney General with the limited authority to “by

regulation establish additional limitations and

conditions, consistent with this section, under which

an alien shall be ineligible for asylum under

paragraph [(b)](1).” (Emphasis added.) The issue

addressed by this brief is whether it is “consistent

with this section,” including 1158(a)(1), for the

Attorney General to issue a regulation categorically

banning asylum for all aliens who have crossed the

southern border after November 9, 2018, at a place

outside a designated port of arrival.

This Court should deny a stay based on the plain

statutory text and applicable canons of statutory

construction. These sources independently confirm

that Judge Bybee’s opinion for the majority of the

Ninth Circuit was correct that the government is

very unlikely to prevail on its proposed statutory

4

interpretation and that a stay is contrary to the

public interest because a stay would permit the

executive branch to violate a duly-enacted statute for

months.

I.

THE PLAIN MEANING OF 8 U.S.C. § 1158(a)

WARRANTS DENIAL OF THE STAY.

The plain meaning of subsection 1158(b)(2)(C)

permits the Attorney General to adopt a regulation

only if it is “consistent with this section.” This

“section” is the entirety of section 1158, including

subsection 1158(a)(1)’s policy choice that it is not a

disqualifier for asylum if an alien crosses a border

illegally outside “a designated port of arrival.” A

regulation under subsection 1158(b)(2)(C) cannot

countermand that clear policy choice embodied in

1158(a)(1).

The government argues that 1158(b) and 1158(a)

are “separate subsections,” with (b) being the

exclusive provision pertinent to permissible

categorical regulations that deny asylum. Stay App.

at 29–30. But that position ignores the express

language of 1158(b)(2)(C)’s requirement that any

such regulation must be consistent “with this

section.” The government wishes to re-write the

provision, instead, to require consistency only with

“this subsection.” But that is not the word found in

1158(b)(2)(C).

Congress knew how to say

“subsection,” which it did in other provisions of the

INA. See, e.g., 8 U.S.C. §§ 1152(a)(4)(B)(ii),

1152(a)(4)(C)(i)–(ii), 1152(a)(4)(D), 1152(a)(5)(B).

Neither agencies nor courts may import into one

provision of the IIRIRA a word used only in other

5

provisions. Kucana v. Holder, 558 U.S. 233, 248–49

(2010) (applying this principle to the word

“regulations”).

Likewise, Congress had many other means if it

wanted to delegate to the Attorney General

authority to adopt a regulation that suspends

asylum for those entering this country outside “a

designated port of arrival.” For example, it could

have readily included a “notwithstanding” clause in

subsection 1158(b)(2)(C) that indicated that

consistency with subsection 1158(a)(1) was not

required. In stark contrast to the language used

here, “[d]rafters often use notwithstanding in a

catchall provision.” A. Scalia & B. Garner, Reading

Law: The Interpretation of Legal Texts 127 (2012)

(emphasis in original). Section 1158(b)(2)(C) does

not, even though other INA provisions that are

inapplicable to this case begin: “Notwithstanding

any other provision at law . . . .” 8 U.S.C. §§ 1182e,

1182f.

The government’s interpretation would

improperly rewrite subsection 1158(b)(2)(C) to add

the “notwithstanding” language that Congress

omitted. See Rubin v. Islamic Republic of Iran, 138

S. Ct. 816, 824 (2018) (narrow construction of one

provision based, in part, on statute’s use of

“[n]otwithstanding” only in a different provision).

Or Congress could have omitted a consistency

requirement

from

subsection

1158(b)(2)(C)

altogether. Rather, Congress enacted “consistent

with this section” as words putting a limit on the

Attorney General’s authority to issue a regulation.

Such “limiting provisions . . . are no less a reflection

of the genuine ‘purpose’ of the statute than the

6

operative provisions, and it is not the court’s

function to alter the legislative compromise.” Scalia

& Garner, supra, at 21 (citing Supreme Court cases).

Even when a court or agency is understandably

“anxi[ous] to effectuate the congressional purpose of

protecting the public, [it] must take care not to

extend the scope of the statute beyond the point

where Congress indicated it would stop.” F.D.A. v.

Brown & Williamson Tobacco Corp., 529 U.S. 120,

161 (2000) (quotations and citation omitted).

Nor can the government find support, or

manufacture ambiguity, by relying on 8 U.S.C.

§ 1158(d)(5)(B), which provides: “The Attorney

General may provide by regulation for any other

conditions or limitations on the consideration of an

application for asylum not inconsistent with this

chapter.” The Attorney General’s regulation here is

inconsistent with 8 U.S.C. §§ 1158(a)(1) and

(b)(2)(C), which are parts of “this chapter.”

Moreover, when a “comprehensive scheme”

includes “a general authorization and a more

limited, specific authorization,” the “terms of the

specific authorization must be complied with” to

avoid “the superfluity of a specific provision that is

swallowed by the general one.” RadLAX Gateway

Hotel, LLC v. Amalgamated Bank, 566 U.S. 639, 645

(2012). Subsection 1158(b)(2)(C) is more specific

than subsection 1158(d)(5)(B) because 1158(b)

applies to “Conditions For Granting Asylum”

whereas 1158(d) covers general “Procedure.”

Finally, the government’s back-of-the-brief

invocation of 8 U.S.C. § 1182(f) is a red herring. As

7

the government concedes, crossing a border outside a

designated port of arrival violated “this Nation’s

laws,” Stay App. 31–32, long before the President’s

proclamation. When Congress enacted section 1158

in 1996, Congress made two policy choices—in

1158(a)(1) it made clear that such illegal entry did

not bar asylum, and in 1158(b)(2)(C) it declared that

any regulation issued by the Attorney General had

to be “consistent with this section,” including

1158(a)(1). As noted in Trump v. Hawaii, 138 S. Ct.

2392 (2018), the Court has not read section 1182(f) to

“override particular provisions of the INA” that, as

here, address a given issue. Id. at 2411.2 Section

1158’s plain meaning is dispositive.

II.

EVEN IF THE TEXT OF 8 U.S.C. § 1158

WERE

AMBIGUOUS,

THE

GOVERNMENT’S

INTERPRETATION

WOULD FAIL BECAUSE OF THREE

APPLICABLE CANONS OF STATUTORY

CONSTRUCTION.

As the founders knew, “executives throughout

history had sought to exploit ambiguous laws as

license

for

their

own

prerogative.”

Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1152

2 Judge Bybee’s analysis of the irrelevance of the proclamation

and § 1182(f) in this case is particularly persuasive. See App’x

to Stay App. at 51a. When a president uses a proclamation to

suspend otherwise legal entry, and does not override another

INA provision, Judge Bybee has taken a broad view of the

President’s authority under § 1182(f). See Washington v.

Trump, 858 F.3d 1168, 1174–75 (9th Cir. 2017) (Bybee, J.,

dissenting from denial of rehearing en banc) (explaining that

even President Trump’s first travel ban was authorized under

§ 1182(f)).

8

(10th Cir. 2016) (Gorsuch, J. concurring) (citation

omitted). To prevent this from recurring, this Court

has employed at least three canons of construction to

reject agency interpretations of arguably ambiguous

text in a statute. If section 1158 were ambiguous,

each of these canons independently confirms the

government will not prevail on the merits because

the Attorney General’s regulation violates the

statute.

A.

Congress

Does

Not

Reverse

a

Fundamental Detail of a Regulatory

Scheme in Vague Terms or an Ancillary

Provision.

What consequences the federal government

should impose on migrants who cross the southern

border outside a designated port of arrival has been

a major political issue since at least the

lamentably-named Operation Wetback in 1954,

Eyder Peralta, It Came Up In The Debate: Here Are

3 Things To Know About “Operation Wetback”

(Nov. 11, 2015 3:54 PM ET), https://n.pr/2DRwIz5,

the Refugee Act of 1980, 94 Stat. 102, and the

amnesty in the Immigration and Control Act of 1986,

100 Stat. 3359 (“1986 Act”).

Given that the issue had existed for a

substantial period of time, it is implausible that in

1996, when Congress enacted section 1158 in the

Illegal Immigration Reform and Immigrant

Responsibility Act (“IIRIRA”), 110 Stat. 3009-691 to

692, Congress would expressly enact a core provision

in subsection 1158(a)(1) that allowed such migrants

to apply for asylum, but use a residual clause in

9

subsection

1158(b)(2)(C)—a

classic

ancillary

provision—to give the Attorney General unfettered

discretion to bar categorically asylum for all such

migrants. “Congress . . . does not alter the

fundamental details of a regulatory scheme in vague

terms or ancillary provisions—it does not, one might

say, hide elephants in mouseholes.” Whitman v. Am.

Trucking Assn’s, 531 U.S. 457, 468 (2001) (emphasis

added).

This is especially so here because before the

IIRIRA, the BIA had held that illegal entry “should

not be considered in such a way that the practical

effect is to deny relief in virtually all cases.” In re

Pula, 19 I. & N. Dec. 467, 473 (BIA 1987). The

IIRIRA would not have overruled that approach in a

vague term in an ancillary provision. Cf. Kucana,

558 U.S. at 250 (“From the Legislature’s silence . . .,

we take it that Congress left the matter where it was

pre-IIRIRA . . .”) (internal citations omitted). To the

contrary, another provision of the IIRIRA shows that

Congress knew how, when it wanted, to authorize an

express exception for migrants arriving on land

“from a foreign territory contiguous to the United

States.” 8 U.S.C. § 1225(b)(2)(C). See 110 Stat.

3009-583. It did not do anything like that in section

1158.

B.

Congress

Is

Presumed

Not

to

Ambiguously Delegate a Decision of

Substantial Political Significance to an

Agency.

When Congress “delegate[s] a decision of”

substantial “political significance” to an agency, it

10

does so clearly and expressly. Brown & Williamson

Tobacco Corp., 529 U.S. at 159–60. Absent such

textual clarity, statutes are construed narrowly to

avoid conferring upon unelected officials the power

to make such fundamental political choices. Id.;

accord Util. Air Regulatory Grp. v. E.P.A., 134 S. Ct.

2427, 2444 (2014). What consequences the federal

government should impose on migrants who entered

our country from Mexico outside a designated port of

arrival has been a decision of enormous political

significance since long before the amnesty in the

1986 Act. See Section II(A), supra.

The continuing political significance of that topic

was confirmed in the 2018 midterm election, where

President Trump asked voters to elect Republican

senators and representatives who would “change our

. . . Immigration Laws” applicable to such migrants.3

3 See, e.g., Donald J. Trump (@realDonaldTrump), Twitter

(Oct. 22, 2018 5:49 AM), https://bit.ly/2EtYbrU (“Every time

you see a Caravan, or people illegally coming, or attempting to

come, into our Country illegally, think of and blame the

Democrats for not giving us the votes to change our pathetic

Immigration Laws! Remember the Midterms! So unfair to those

who come in legally.”); Donald J. Trump (@realDonaldTrump),

Twitter (Oct. 17, 2018 6:45 AM), https://bit.ly/2rxcyDc (“Hard to

believe that with thousands of people from South of the Border,

walking unimpeded toward our country in the form of large

Caravans, that the Democrats won’t approve legislation that

will allow laws for the protection of our country. Great Midterm

issue

for

Republicans!”);

Donald

J.

Trump

(@realDonaldTrump), Twitter (Apr. 30, 2018 3:38 PM),

https://bit.ly/2C87lYx (“The migrant ‘caravan’ that is openly

defying our border shows how weak & ineffective U.S.

immigration laws are. Yet Democrats like Jon Tester continue

to support the open borders agenda – Tester even voted to

11

The President has been and remains free to propose

statutory revisions to Congress.

C.

The

Government’s

Interpretation

Would Give Every Attorney General an

Extraordinary Delegation of Unlimited

Authority to Suspend § 1158(a)(1).

The Court previously has declined to “extract[]”

from the IIRIRA an “extraordinary delegation of

authority” to the Attorney General under which

“the Executive would have a free hand.” Kucana,

558 U.S. at 252 (describing this as “a paramount

factor”). If the government were correct that a

suspension of asylum under 1158(b)(2)(C) does not

have to be consistent with the statutory decision in

1158(a)(1) that illegal entry is not a categorical bar,

the Attorney General would have a free hand to

suspend asylum categorically for any reason for any

duration.

Indeed, under the government’s

interpretation, any Attorney General could, at any

time, indefinitely suspend asylum for all new

applicants “to assist in reduc[ing] the backlog of

meritless asylum claims” and in providing leverage

for “diplomatic negotiations” with other countries.

Stay App. at 2–3.

Moreover, “it is a cardinal principle of statutory

interpretation . . . that when an Act of Congress

raises a serious doubt as to its constitutionality, this

Court will first ascertain whether a construction of

the statute is fairly possible by which the question

may be avoided.” Zadvydas v. Davis, 533 U.S. 678,

protect Sanctuary Cities. We need lawmakers who will put

America First.”).

12

689 (2001) (quotations and citations omitted). “We

have read significant limitations into . . .

immigration statutes in order to avoid their

constitutional invalidation.” Id. (citation omitted).

This includes when the Attorney General claims

statutory

authority

that

“would

generate

Constitutional doubts” under separation of powers.

United States v. Witkovich, 353 U.S. 194, 199, 201–

02 (1957).

The Presentment Clause and the separation of

powers preclude Congress from authorizing

“unilateral Presidential action that either repeals or

amends parts of duly enacted statutes.” Clinton v.

City of New York, 524 U.S. 417, 439 (1998)

(emphasis added). In particular, Congress may not

give the President, or a cabinet member, an

unlimited power to suspend a statutory provision,

even to address “conditions which prevail in foreign

countries.” Id. at 445 (majority opinion). Rather,

even in those circumstances, the Presentment

Clause and separation of powers require a statutory

limit in which “[(a)] Congress itself made the

decision to suspend or repeal the particular [other]

provisions at issue [(b)] upon the occurrence of

particular events subsequent to enactment, and [(c)]

it left only the determination of whether such

events occurred up to the President.” Id. (emphasis

added) (footnote omitted). Here, under the

government’s interpretation of subsection 1158,

nothing in the statute supplies any limit—much

less requires an “occurrence of” any event

“subsequent to enactment” that, when the executive

branch determines that event has occurred, triggers

a suspension of asylum.

13

Even if the Attorney General only acted wisely,

and only in response to a crisis, in issuing a

suspension, that would be no substitute for a

statutory limit, which is what separation of powers

requires. As the Court held in Whitman, “an

agency’s voluntary self-denial” is no substitute

because separation of powers requires at least some

sort of statutory limit. 531 U.S. at 472–73. And, as

George Washington explained, no matter how

beneficial violating separation of powers may be “in

one instance, . . . it is the customary weapon by

which free governments are destroyed.

The

precedent must always greatly overbalance in

permanent evil any partial or transient benefit.”

George Washington, Farewell Address (1796),

http://bit.ly/1dLozEs.

The constitutional-doubt canon is a rule of

“judicial policy—a judgment that statutes ought not

to tread on questionable constitutional grounds

unless they do so clearly.” Scalia & Garner, supra,

at 249 (emphasis in original). History confirms that

Congress would tread on questionable constitutional

grounds if it gave even a President an unconstrained

power concerning aliens present in this country who

came from countries with which our nation is not at

war. The much-lamented Act Concerning Aliens of

June 25, 1798 (“Alien Act”) raised serious separation

of powers issues even though it set much clearer

statutory limits than would the government’s

limitless interpretation of subsection 1158(b)(2)(C).

The Alien Act was limited to deporting an alien who

the President determined was “dangerous to the

peace and safety of the United States,” expired in

two years, and did not give the executive branch

14

power to suspend any other then-existing statutory

provision. 1 Stat. 570–72.

In the Virginia Resolution of 1798, Madison

wrote that the Alien Act, “by uniting legislative and

judicial powers to those of the executive, subverts

the general principles of free government; as well as

the particular organization, and positive provisions

of the federal constitution.”

James Madison,

Virginia Resolution (Dec. 21, 1798), reprinted in 5

THE FOUNDERS’ CONSTITUTION, 131–36 (Philip B.

Kurland & Ralph Lerner eds., 1987) (first emphasis

in original). See also Sessions v. Dimaya, 138 S. Ct.

1204, 1229 (2018) (Gorsuch, J., concurring) (the

Alien

Act

“was

widely

condemned

as

unconstitutional by Madison and many others”).

Madison’s

analysis

powerfully

rebuts

the

government’s argument that 8 U.S.C. § 1158 could

possibly be read to delegate to the Attorney General

unlimited authority to suspend the asylum that §

1158(a)(1) permits for aliens who entered this

country outside “a designated port of arrival.”

CONCLUSION

For the foregoing reasons, the application for

stay should be denied.

15

Respectfully submitted,

Of Counsel:

RICHARD MANCINO

SHAIMAA M. HUSSEIN

MATTHEW R. DOLLAN

KYLE W. BURNS

Willkie Farr & Gallagher LLP

787 Seventh Avenue

New York, N.Y. 10019-6099

DATED: December 17, 2018

RICHARD D. BERNSTEIN

Counsel of Record

Willkie Farr & Gallagher LLP

1875 K Street, N.W.

Washington, D.C. 20006-1238

(202) 303-1000

rbernstein@willkie.com

Counsel for Amici Curiae

APPENDIX A

1a

LIST OF AMICI CURIAE

Peter Keisler, Acting Attorney General, 2007;

Assistant Attorney General for the Civil Division,

2003–2007; Principal Deputy Associate Attorney

General and Acting Associate Attorney General,

2002–2003; Assistant and Associate Counsel to the

President, 1986–1988.

Stuart M. Gerson, Acting Attorney General, 1993;

Assistant Attorney General for the Civil Division,

1989–1993; Assistant United States Attorney for the

District of Columbia, 1972–1975.

William Webster, Director, Central Intelligence

Agency, 1987–1991; Director, Federal Bureau of

Investigation, 1978–1987; Circuit Judge, United

States Court of Appeals for the Eighth Circuit,

1973–1978; Judge, U.S. District Court for the

Eastern District of Missouri, 1970–1973; U.S.

Attorney for the Eastern District of Missouri, 1960–

1961.

Carter Phillips, Assistant to the Solicitor General,

1981–1984.

John Bellinger III, Legal Adviser to the Department

of State, 2005-2009; Senior Associate Counsel to the

President and Legal Adviser to the National

Security Council, 2001-2005.

Samuel Witten, Acting Assistant Secretary of State

for Population, Refugees, and Migration, 2007-2009;

Principal Deputy Assistant Secretary of State for

Population, Refugees, and Migration, 2007-2010;

2a

Deputy Legal Adviser to the Department of State,

2001-2007.

Ray LaHood, Representative, U.S. Congress, 1995–

2009; Member, House Permanent Select Committee

on Intelligence, including Chairman of its Terrorism

and Homeland Security Subcommittee, and Vice

Chairman of the Intelligence Policy and National

Security Subcommittee.

Christopher Shays, Representative, U.S. Congress,

1987–2009; Chairman, Subcommittee of National

Security and Foreign Affairs of the House Oversight

and Government Reform Committee; Member,

Subcommittee on Intelligence, Information Sharing

and Terrorism Risk Assessment of the House

Homeland Security Committee.

Christine

Todd

Whitman,

Administrator,

Environmental Protection Agency, 2001–2003;

Governor, New Jersey, 1994–2001.

Brackett Denniston, Chief Legal Counsel to

Republican Governor of Massachusetts William

Weld, 1993–1996; Chief of Major Frauds Unit in the

U.S. Attorney’s Office for the District of

Massachusetts,

1982–1986;

Former

General

Counsel, General Electric Company.

Stanley Twardy, U.S. Attorney for the District of

Connecticut, 1985–1991.

Richard Bernstein, Appointed by this Court to argue

in Cartmell v. Texas, 529 U.S. 513, 515 (2000);

Montgomery v. Louisiana, 136 S. Ct. 718, 725

(2016).