Amicus Curiae Brief — Trump v. Int'l Refugee Assistance Project, 138 S. Ct. 50 (2017) (No. 16-1436)

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IN THE

OFFICE OF THE CLERK

Supreme Court of the United States

DONALD J. TRUMP, ET AL.,

Vv.

Applicants,

INTERNATIONAL REFUGEE ASSISTANCE PROJECT, ET AL..,

Respondents.

On Applications to Stay Pending Disposition

of a Petition for a Writ of Certiorari to the

United States Court of Appeals for the Fourth

Circuit, and Pending Appeal to the United

States Court of Appeals for the Ninth Circuit

MOTION FOR LEAVE TO FILE AND

BRIEF OF THE STATES OF VIRGINIA,

MARYLAND, CALIFORNIA, CONNECTICUT,

DELAWARE, ILLINOIS, IOWA, MAINE,

MASSACHUSETTS, NEW MEXICO, NEW YORK,

NORTH CAROLINA, OREGON, RHODE

ISLAND, VERMONT, AND WASHINGTON,

AND THE DISTRICT OF COLUMBIA AS

AMICI CURIAE IN OPPOSITION TO

THE STAY APPLICATIONS

BRIAN E. FROSH

Attorney General of Maryland

STEVEN M. SULLIVAN

Solicitor General

OFFICE OF THE ATTORNEY

GENERAL

200 Saint Pani] Place, 20th Floor

Baltimore, Maryland 21202

(410) 576-6427

ssullivan@oag.state.md.us

MARK R. HERRING

Attorney General of Virginia

STUART A. RAPHAEL

Solicitor General

Counsel of Record

OFFICE OF THE ATTORNEY

GENERAL

202 North Ninth Street

Richmond, Virginia 23219

(804) 786-7240

sraphael@oag.state.va.us

[Additional Counsel on Signature Page|

TE A

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 - WASHINGTON, D. C. 20002

IN THE

Supreme Court of the Anited States

DONALD J. TRUMP, ET AL.,

Applicants,

Vv.

INTERNATIONAL REFUGEE ASSISTANCE PROJECT, ET AL.,

Respondents.

On Applications to Stay Pending Disposition

of a Petition for a Writ of Certiorari to the

United States Court of Appeals for the Fourth

Circuit, and Pending Appeal to the United

States Court of Appeals for the Ninth Circuit

MOTION FOR LEAVE TO FILE AND

BRIEF OF THE STATES OF VIRGINIA,

MARYLAND, CALIFORNIA, CONNECTICUT,

DELAWARE, ILLINOIS, IOWA, MAINE,

MASSACHUSETTS, NEW MEXICO, NEW YORK,

NORTH CAROLINA, OREGON, RHODE

ISLAND, VERMONT, AND WASHINGTON,

AND THE DISTRICT OF COLUMBIA AS

AMICI CURIAE IN OPPOSITION TO

THE STAY APPLICATIONS

The States of Virginia, Maryland, California, Con-

necticut, Delaware, Illinois, lowa, Maine, Massachu-

setts, New Mexico, New York, North Carolina, Oregon,

Rhode Island, Vermont, and Washington, and the Dis-

trict of Columbia move this Court for leave to file

the attached amicus brief in opposition to the stay

applications.

All parties have consented in writing to the filing of

this amicus brief and to waive the required 10 days’

advance notice otherwise required by Supreme Court

Rule 37.2(a).

As set forth in the attached brief, the Amici States

and our residents will suffer irreparable harm if

the Court stays the preliminary injunctions against

enforcement of the travel ban and refugee ban in

Executive Order 13,780. The amicus brief describes

and documents those harms. Because the Court must

balance the equities in evaluating the stay applica-

tions, and because balancing the equities requires the

Court “to determine whether the injury asserted by

the applicant outweighs the harm to other parties or

to the public,” Lucas v. Townsend, 486 U.S. 1301, 1304

(1988) (Kennedy, J., in chambers), the information in

the amicus brief about those harms is crucial to the

required analysis.

Accordingly, the Court should grant amici curiae

leave to file the attached brief in opposition to the stay

applications.

Respectfully submitted,

BRIAN E. FROSH MARK R. HERRING

Attorney General of Maryland Attorney General of Virginia

STEVEN M. SULLIVAN STUART A. RAPHAEL

Solicitor General Solicitor General

OFFICE OF THE ATTORNEY Counsel of Record

GENERAL OFFICE OF THE ATTORNEY

200 Saint Paul Place, GENERAL

20th Floor 202 North Ninth Street

Baltimore, Maryland 21202 Richmond, Virginia 23219

(410) 576-6427 (804) 786-7240

ssullivan@oag.state.md.us sraphael@oag.state.va.us

[Additional Counsel on Signature Page]

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ...................:..sseeeeeees ii

EE GEE GUIIIIEIE ixcnsncccseccnssseccesscsecsscocesencs 1

icra diiaaditiireriiadncciiesiieanniiiiaiiidniieintaninamiaie 2

I. IMPLEMENTING THE TRAVEL AND

REFUGEE BANS WILL _INFLICT

IMMEDIATE IRREPARABLE HARM

ON THE AMICI STATES AND OUR

EINES ernssnresesccscnmunssceatinennenansevicions 4

Il THE BALANCE OF EQUITIES

STRONGLY FAVORS DENYING A

TEE sieeadecntecenssgamisstbinneenivininantinineninietecaeteen 19

SD snctnnstisnnsnisiicninncsesecteneniingiennniianinbtis 21

(i)

TABLE OF AUTHORITIES

CASES

Agostini v. Felton,

Ee Ce Be GEE Perrcccenscovcccncscecnscensee

Alfred L. Snapp & Son, Inc. v.

Puerto Rico ex rel. Barez,

458 U.S. 592 (1982)............cccecee--seee00ee

Aziz v. Trump,

No. 1:17-cv-116, 2017 WL 580855

(E.D. Va. Feb. 13, 2017)................00000

Barnes v. E-Systems, Inc. Grp.

Hosp. Med. & Surgical Ins. Plan,

as Se le | ee

Conforte v. Comm’r,

459 U.S. 1309 (1983)..................cc000000

Engel v. Vitale,

370 U.S. 421 (1962)............ccccereeeserenes

Graves v. Barnes,

GED UB. BEBE CIBTR) onccccccscccescosessess00es

Hein v. Freedom From Religion

Found., Inc.,

Hollingsworth v. Perry,

Fe GP BD GP cccnccccsccccccccsecccosesess

Lucas v. Townsend,

Ge Cs BIS CRP cccccccocccccsccsccsccccces

Nken v. Holder,

saint 16

ili

TABLE OF AUTHORITIES—Continued

Page(s)

Rostker v. Goldberg,

es Be icicitoccccccsnecscccssoccesnsece 3, 20

San Diegans for the Mt. Soledad

Nat'l War Mem’ v. Paulson,

Ge Che BEE GP eesccccccccsevececescesosscovccce 3

Washington v. Trump,

No. 2:17-cv-00141-JLR, 2017

WL 462040 (W.D. Wash. Feb. 3, 2017),

stay pending appeal denied,

847 F.3d 1151 (9th Cir. 2017)................... 2,8

Whalen v. Roe,

eee 20

Williams v. Zbaraz,

| 20

CONSTITUTIONAL PROVISIONS

Re aes en 16

Cal. Const. art. I, §§ 4, 7-8, 31 ..................... 17

Bis Cs Ge Bias WI is SEO estccentccicccccctessocsesetes 17

ee Me, CI GC UF DEIR scicovendensenencdconscsencane 17

. 5. «8 & cE ee eee see 17

STATUTES

Cal. Civ. Code § 51, subd. (b)....................... 17

Cal. Gov’t Code §§ 11135-11187................... 17

Cal. Gov’t Code §§ 12900-12996................... 17

Conn. Gen. Stat. § 46a-G0O ...................-c000000 17

TABLE OF AUTHORITIES—Continued

Page(s)

740 Ill. Comp. Stat. 23/5(a)(1)............cccccecees 17

775 Ill. Comp. Stat. 5/1-102(A) .................... 17

775 Ill. Comp. Stat. 5/10-104(A)(1).............. 17

Me. Rev. Stat. Ann. tit. 5, §'784..............000000. 17

Me. Rev. Stat. Ann. tit. 5, §§ 4551-4634.......... 17

Md. Code Ann., State Gov’t § 20-606........... 17

Mass. Gen. L. ch. 98, § 102 ................00.000200 17

ee ee OE eee 17

Mass. Gen. L. ch. 151B, § 4................-sccseree 17

ees: Ns SRN, Te PEND siciccccccecssccsceneccsscssoss 17

Or. Rev. Stat. § 659A.006(1) ....................000. 17

R.I. Gen. Laws § 28-5-7(1)(i) .............-cs00eeeee: 17

Vt. Stat. Ann. tit. 9, $§ 4500-07 .................. 17

5 Fe 8 A eee 17

Wash. Rev. Code § 49.60.030(1)................... 17

EXECUTIVE ORDERS

Protecting the Nation From Foreign Ter-

rorist Entry Into the United States,

Executive Order 13,769 (Jan. 27, 2017),

82 Fed. Reg. 8,977 (Feb. 1, 2017)............ passim

Protecting the Nation From Foreign Ter-

rorist Entry Into the United States,

Executive Order 13,780 (Mar. 6, 2017),

82 Fed. Reg. 13,209 (Mar. 9, 2017).......... passim

COURT FILINGS AND DECLARATIONS

TABLE OF AUTHORITIES—Continued

Br. Amicus Curiae of Va., Md., et al. in

Supp. of Appellees & Affirmance, JRAP v.

Trump, No. 17-1351 (4th Cir. Apr. 19,

ee: Be I Ci icincindacsavitennicncnnentodenineses

Br. of Ill. et al. as Amicus Curiae in Supp.

of Pls./Appellees, Hawaii v. Trump, No.

17-15589 (9th Cir. Apr. 20, 2017), ECF

FREE CE toctaapinstbhtudigulidinamnndesthinnnensatiatvinniens

Decl. of Asif Chaudhry, Hawaii v. Trump,

No. 17-15589 (9th Cir. Apr. 20, 2017),

Be I AD ceendeintecputinesecntiotinbinmint

Decl. of Michael F. Collins, M.D., Louhghalam

v. Trump, No. 1:17-cv-10154 (D. Mass.

Feb. 2, 2017), ECF No. 52-2 ................0+00

Decl. of David Duea, Hawaii v. Trump, No.

17-15589 (9th Cir. Apr. 20, 2017), ECF

Ps FIT TEE ‘veusiriicconiidiniesibicusinadentadaanenint

Decl. of David L. Eaton, Hawaii v. Trump,

No. 17-15589 (9th Cir. Apr. 20, 2017),

Ee I i iitisncnasunitincinnndenieiandias

Decl. of Najwa Elyazgi, Aziz v. Trump, No.

1:17-cv-116 (E.D. Va. Feb. 8, 2017), ECF

Sa TET sacncacsitenenneeeeninpennaaiivtubdententininmtmees

Decl. of Eva Hassett, Hawaii v. Trump, No.

17-15589 (9th Cir. Apr. 20, 2017), ECF

BNE, SIE TT cri cctitnnniseenticitinicigeainepmiminedtiindaien

Decl. of Deirdre Heatwole, Hawaii v. Trump,

No. 17-15589 (9th Cir. Apr. 20, 2017),

BT EG Bi deessccennsntetectniacnnnnttiianenanis

Page(s)

TABLE OF AUTHORITIES—Continued

Page(s)

Decl. of Ross D. Lewin, Hawaii v. Trump,

No. 17-15589 (9th Cir. Apr. 20, 2017),

ge, ESR an

Decl. of Vita Rabinowitz, Hawaii v. Trump,

No. 17-15589 (9th Cir. Apr. 20, 2017),

ET Sh TE I TIE cho ctensatascnsntncicniccehagnsinnee

Decl. of Eric Scherzer, Hawaii v. Trump,

No. 1:17-cv-00050 (D. Haw. Mar. 13,

2017), ECF No. 154-3, Ex. I..................002.

Defs.-Appellants’ Resp. to Pls.-Appellees’

Mot. for Leave to Supplement the Record,

IRAP v. Trump, No. 17-1351 (4th Cir.

Mar. 24, 2017), ECF No. 291....................

Joint Decl. of Madeleine K. Albright et al.,

IRAP v. Trump, No. 17-1351 (4th Cir.

Mar. 24, 2017), ECF No. 34-3...................

Mem. of Law of N.Y., Mass., et al. as Amici

Curiae States in Supp. of Pls.-Appellees,

Washington v. Trump, No. 17-35105 (9th

Cir. Feb. 6, 2017), ECF No. 58-2..............

Mot. of Defs.-Appellants for a Stay Pending

Expedited Appeal, JRAP v. Trump, No.

17-1351 (4th Cir. Mar. 24, 2017), ECF

TRESS ERE Aten ODE ie SC en oe oD

Second Am. Compl., Washington v. Trump,

2:17-cv-00141-JLR (W.D. Wash. Mar. 16,

Se Miionncdsientchadedaddadiinndnsncasecs

PRIMARY SOURCES

Vil

TABLE OF AUTHORITIES—Continued

fll. State Univ., Incoming Freshman/

Enrollment Deposit (2017), https://goo.gl/

EE cris eccinctesntidensnmmetnensinncontenioninapenes

James Madison Univ., Admissions/ Dates &

Deadlines (2017), https://goo.gl/5dPhal....

Md. Office for Refugees & Asylees, Refugees

and SIV’s Resettled in Maryland by

Nationality, FY 2012—FY 2016 (2017),

https://goo.gV/zAAeDU..................ssseseseeeeees

N.C. State Univ., Electrical & Computer

Engineering; Graduate Studies (2017),

https://goo.gV/STVXLE ............cccceceeeeeeeeeeees

State Univ. of N.Y. at Albany, Admissions /

Dates & Deadlines (2017), https://goo.gl/

ST icinstencitinietniaideiiineaminisinincsinscriuinteniadiaaametibanes

U.S. Dep’t of State, Bureau of Consular

Affairs, Iran Reciprocity Schedule (2017),

https://goo.gi/gJIwGAYV ............cccccsceeeeeeeeees

U.S. Dep’t of State, Bureau of Consular

Affairs, Libya Reciprocity Schedule

(2017), https://goo.gl/LgEIkoO ...................

U.S. Dep’t of State, Bureau of Consular

Affairs, Somalia Reciprocity Schedule

(2017), https://goo.gl/qIdYTh ...................-

U.S. Dep’t of State, Bureau of Consular

Affairs, Sudan Reciprocity Schedule

(2017), https://goo.g/2AHPFT ..................

Page(s)

TABLE OF AUTHORITIES—Continued

Page(s)

U.S. Dep’t of State, Bureau of Consular

Affairs, Syria Reciprocity Schedule

(2017), https://goo.gl/plIUXFZ ...................

U.S. Dep’t of State, Bureau of Consular

Affairs, Yemen Reciprocity Schedule

(2017), https://goo.gl/vUuVQgQ ..................

U.S. Office of Refugee Resettlement, Refu-

gee Arrival Data (Nov. 24, 2015), https://

TIT icnicnnnternceniieunbbinntacitendewinitniate

Univ. of Cal., How to Apply; Admissions

Decisions (2017), https://goo.gl/u8T31E ...

SECONDARY SOURCES

Azadeh Ansari, FBI: Hate crimes spike,

most sharply against Muslims, CNN

(Nov. 15, 2016), https://goo.gl/kyvh83 ......

Abha Bhattarai, Even Canadians are skip-

ping trips to the U.S. after Trump travel

ban, Wash. Post (Apr. 14, 2017), https://

| AIESES A TE, RDN ae 0 aeE e

Miles Bryan, 10 Prospective UIC Students

Ineligible to Enroll Due to Travel Ban,

WBEZ (Mar. 6, 2017), https://goo.gl/

California Leads the Nation in Resettle-

ment of Syrian Refugees, CBS SF Bay

Area (Sept. 29, 2016), https://goo.gl/

IIIT Acasceninasiabltanidudeibldiiedd seeaatiiBiacdenoasidl daaiabh

TABLE OF AUTHORITIES—Continued

Page(s)

Randy Capps & Karina Fortuny, The Inte-

gration of Immigrants in Maryland’s

Growing Economy, Urban Inst. (Mar.

2008), https://goo.gl/wVjnezZ................0.00+.

Kirk Carapezza, Travel Ban’s ‘Chilling

Effect’ Could Cost Universities Hundreds

of Millions, Nat’1 Pub. Radio (Apr. 7,

2017), https://goo.gl/CqkNEy.....................

Marwa Eltagouri, Hate crime rising, report

activists at Illinois attorney general’s

summit, Chi. Tribune (Feb. 24, 2017),

https//goo.gl/uVeaiQ ............ccccecesececeeeeeees

Linda Givetash, Girl Guides of Canada

Cancels All Trips to U.S. Over Trump’s

Travel Ban, Huffington Post (Mar. 14,

2017), https://goo.g/OmOHW2z.................

Matthew Haag & Jacey Fortin, Two Killed

in Portland While Trying to Stop Anti-

Muslim Rant, Police Say, N.Y. Times

(May 27, 2017), https://goo.gl/MOzBcv ....

Derek Hawkins, Worried about Trump’s

travel ban, Canada’s largest school dis-

trict calls off U.S. trips, Wash. Post (Mar.

24, 2017), https://goo.gl/nqCvlt................

Inst. of Int'l Educ., Advising International

Students in an Age of Anxiety (Mar. 31,

2017), https://goo.gl/pCky9C.....................

NAFSA, Benefits from International Stu-

dents (2017), https://goo.gl/G6n1Wv ........

8,9

TABLE OF AUTHORITIES—Continued

Page(s)

New Am. Econ., The Contributions of New

Americans in Illinois (Aug. 2016), https://

Manya Brachear Pashman, After sharp dip,

refugee arrivals poised to increase, Chi.

Tribune (May 30, 2017), https://goo.gl/

SI ikchcddiniasnnsnndnpumensnetecnedbidintidaiiapbiantnine

Susan Svrluga, ‘ felt loved’: Libyan stu-

dent, banned from entry to the U.S., is

able to return to George Mason Univer-

sity, Wash. Post (Feb. 7, 2017), https://

AEE REET RSE AR Ree oe neon SS ch

Alana Wise, Travel to the United States

rose in April, but industry remains

The Amici States of Virginia, Maryland, California,

Connecticut, Delaware, Lllinois, lowa, Maine, Massa-

chusetts, New Mexico, New York, North Carolina, Ore-

gon, Rhode Island, Vermont, and Washington, and the

District of Columbia urge this Court to deny the appli-

cations to stay the preliminary injunctions entered by

the District Court of Maryland in International Refu-

gee Assistance Project v. Trump (“IRAP”) and by the

District Court of Hawaii in Hawaii v. Trump.

INTERESTS OF AMICI?

The interests of the Amici States are directly and

adversely threatened by the two provisions of Execu-

tive Order 13,780 (EO-2)? at issue here: the travel ban

in § 2(c), preliminarily enjoined by the district courts

in IRAP and Hawaii, and the refugee ban in § 6,

preliminarily enjoined by the district court in Hawaii.

Section 2(c) of EO-2 imposes a 90-day ban on entry

to the United States by nationals from six over-

whelmingly Muslim countries: Iran, Libya, Somalia,

Sudan, Syria, and Yemen. Section 6 imposes a 120-

day ban on the entry of refugees under the U.S. Refu-

gee Admissions Program and reduces refugee admis-

sions in Fiscal Year 2017 from 110,000 to 50,000. The

enjoined provisions are substantially similar to provi-

sions in Executive Order 13,769 (EO-1),°> which EO-2

* 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, their members, or their counsel made a monetary

contribution to its preparation or submission. All parties have

consented in writing to the filing of this amicus brief and to waive

the required 10 days’ advance notice otherwise required by

Supreme Court Rule 37.2(a).

* 82 Fed. Reg. 13,209 (Mar. 9, 2017).

* 82 Fed. Reg. 8,977 (Feb. 1, 2017).

rescinded after courts issued preliminary injunctions

blocking their enforcement.‘

Some of the Amici States have brought their own

challenges to EO-2 or to its now-rescinded predeces-

sor.° Others have filed amicus briefs supporting those

challenges.* Permitting the enjoined provisions in EO-

2 to take effect would inflict irreparable harm on the

Amici States and our residents. Accordingly, the Amici

States have a substantial interest in the outcome of

these stay applications.

ARGUMENT

“To obtain a stay pending the filing and disposition

of a petition for a writ of certiorari, an applicant must

show (1) a reasonable probability that four Justices

will consider the issue sufficiently meritorious to grant

certiorari; (2) a fair prospect that a majority of the

Court will vote to reverse the judgment below; and

(3) a likelihood that irreparable harm will result from

* See, e.g., Washington v. Trump, 2:17-cv-00141-JLR, 2017 WL

462040, at *2-3 (W.D. Wash. Feb. 3, 2017) (enjoining travel and

refugee bans in EO-1), stay pending appeal denied, 847 F.3d 1151

(9th Cir. 2017); Aziz v. Trump, No. 1:17-cv-116, 2017 WL 580855,

at *11 (E.D. Va. Feb. 13, 2017) (enjoining travel ban in EO-1 as

applied to Virginia).

® See Second Am. Compl., Washington v. Trump, No. 2:17-

ev-00141-JLR (W.D. Wash. Mar. 16, 2017) (challenge to EO-2

by Washington, California, Oregon, New York, Maryland, and

Massachusetts, stayed pending appeal in Hawaii v. Trump), ECF

No. 152; Aziz, 2017 WL 580855, at *1 (granting Virginia's motion

to preliminarily enjoin § 3(c) of EO-1).

* See Ul. Amicus Br. (16 States and D.C.), Hawaii v. Trump,

No. 17-15589 (9th Cir. Apr. 20, 2017), ECT’ No. 125; Va. & Md.

Amicus Br. (16 States and D.C.), IRAP v. Trump, No. 17-1351

(4th Cir. Apr. 19, 2017), ECF No. 153; N.Y. & Mass. Amicus

Br. (15 States and D.C.), Washington v. Trump, No. 17-35105

(9th Cir. Feb. 6, 2017), ECF No. 58-2.

the denial of a stay.”’ In evaluating whether the

circumstances warrant a stay, it “is ultimately neces-

sary ... ‘to balance the equities.’ ”®

Balancing the equities requires the Court “to deter-

mine whether the injury asserted by the applicant

outweighs the harm to other parties or to the public.”

For the reasons explained in Amici’s separate brief

in opposition to the petition for a writ of certiorari in

IRAP, this Court should not grant certiorari at this

juncture, and the lower courts’ decisions are correct on

the merits. This brief explains why the balance of the

equities tilts decidedly in favor of denying the stay

applications.

The Amici States will be irreparably harmed if the

travel and refugee bans take effect. The immediate

adverse impact will be felt by our colleges and uni-

versities, with effects rippling through our economies

based on disruptions to persons seeking to travel to the

United States on student, family, work, and tourist

visas, or to resettle as refugees. Reinstating the travel

and refugee bans would also send an unmistakable

message of exclusion and religious intolerance that

would harm our communities. In light of the irrepar-

able harm that a stay would impose on the States and

our residents, and the applicants’ failure to adduce

" Hollingsworth v. Perry, 558 U.S. 183, 190 (2010); see also San

Diegans for the Mt. Soledad Nat'l War Mem’l v. Paulson, 548 U.S.

1301, 1302 (2006) (Kennedy, J., in chambers) (describing similar

standard for stay pending appeal to court of appeals).

* Barnes v. E-Systems, Inc. Grp. Hosp. Med. & Surgical Ins.

Plan, 501 U.S. 1301, 1304 (1991) (Scalia, J., in chambers) (quot-

ing Rostker v. Goldberg, 448 U.S. 1306, 1308 (1980) (Brennan, J.,

in chambers)).

® Lucas v. Townsend, 486 U.S. 1301, 1304 (1988) (Kennedy, J.,

in chambers).

any evidence of harm resulting from the preliminary

injunctions, this Court should leave those injunctions

in place while the litigation in JRAP and Hawaii pro-

ceeds to final judgment.

I. IMPLEMENTING THE TRAVEL AND REF-

UGEE BANS WILL INFLICT IMMEDIATE

IRREPARABLE HARM ON THE AMICI

STATES AND OUR RESIDENTS.

Allowing the travel and refugee bans to take effect

would impose various categories of irreparable harm

on the Amici States and our residents.

Harm to colleges and universities. The most

immediate harm would be felt by our colleges and

universities, and the students and faculty on whom

they depend. A recent survey by the Institute of Inter-

national Education (IIE) found that “more than 15,000

students enrolled at U.S. universities during 2015-16

were from the 6 countries named in [EO-2].”"° The ITE

estimates that, nationwide, “these students contrib-

uted $496 million to the U.S. economy, including tui-

tion, room and board and other spending.”"

Approximately half of those students attend colleges

and universities in the Amici States and Hawaii. The

following table’ lists the number of such students in

each Amicus State during the 2015-16 academic year

and the economic benefits generated as a result:

*” Inst. of Int] Educ., Advising International Students in an

Age of Anxiety 3 (Mar. 31, 2017), https://goo.gi/pCky9C.

"Td.

“ The data is found at id., App. 1.

ci States Int'l Students _ Contribution

Hawaii & Scholars from | to Economy

6 EO-2 Coun-

tries (2015/16)

California 2,121 $56,800,000

(Connecticut 189 $5,000,000

Delaware 70 $1,700,000

istrict of 131 $4,000,000

‘Columbia

waii 38 $1,200,000

is 962 $28,100,000

owa 235 $6,800,000

ine 31 $800,000

land 361 $8,600,000

usetts 1,033 $26,100,090

ew Mexico 199 $6,300,000

ew York 1,033 $28,800,000

North 435 $11,800,000

(Carolina

n 311 $9,300,000

Island 56 $1,500,000

ermont 23 $600,000

irginia 477 $14,900,000

Washington 301 $9,700,000

otal 8,006 $222,000,000

As this table shows, colleges and universities in the

Amici States and Hawaii account for more than 8,000

of the international students and scholars from the

six countries, generating $222 million in economic

benefits.

To be sure, the 90-day travel ban in § 2(c) does

not apply to persons who were present in the United

States on a valid visa as of the date of EO-1 (January

27, 2017) or EO-2 (March 6, 2017).** But allowing the

travel ban to take effect would pose huge obstacles for

students from the six countries, whether or not they

were present in the United States on those dates.

Because only single-entry visas are permitted for two

of the countries, and because the required visas are

valid only for relatively short periods, most students

have to apply for a new visa during the course of their

academic studies. In particular:

e students from Somalia are issued single-

entry visas that are valid for 3 months;**

e students from Libya are issued single-entry

visas that are valid for 12 months; and

e students from Iran, Sudan, Syria, and

Yemen are issued multiple-entry visas,

but visas for Iran and Syria have a validity

period of only two years,’* while the valid-

ity period is only 12 months for Yemeni

4’ EO-2 § 3(a).

“ US. Dep’t of State, Bureau of Consular Affairs, Somalia

Reciprocity Schedule, https://goo.gi/qildYZh (select F-1 visa

classification).

8 Id., Libya Reciprocity Schedule, https://goo.gl/LgEIkO (select

F-1 visa classification).

F-1 visa classification); id., Syria Reciprocity Schedule, https://

goo.gl/plUXFZ (select F-1 visa classification).

students’? and 6 months for Sudanese

students. ®

In other words, foreign students on single-entry

visas who have relied on the existing preliminary

injunctions—whether to return home for the summer,

conduct research in other countries, or travel abroad

for other reasons—face the prospect of being denied a

visa to reenter the United States. And reinstating the

travel ban would pressure all students from the six

countries to cancel their enrollment for programs that

exceed the visa-duration period, given that they can

have no confidence that their visas will be renewed to

enable them to complete their studies.

While EO-2 gives consular officers discretion to

waive the travel ban for students from the six coun-

tries,’* the discretionary nature of the review process

means students have no assurance of readmission.

EO-2 does not describe the process for applying for a

waiver, does not specify the timeframe for receiving

one, and does not set any concrete guidelines beyond

providing a list of circumstances in which waivers

“could be appropriate.”” The ultimate decision whether

to issue a waiver is committed entirely to “the consular

officer’s or the [Customs and Border Protection] offi-

cial’s discretion.”™

That uncertainty alone will likely induce many stu-

dents not to apply to universities in the United States.

Id., Yemen Reciprocity Schedule, https://goo.g/vUuVQq

(select F-1 visa classification).

% Id., Sudan Reciprocity Schedule, https://goo.gl//2AHPFT

(select F-1 visa classification).

EO-2 § 3(c).

af _§

*) Td.

The University of Washington, for instance, received

various communications from prospective students

from the affected countries expressing anxiety about

applying in light of the travel ban.””7 Newly admitted

students face similar uncertainties, particularly if they

have not yet traveled to the United States. Allowing

the travel ban to take effect would disrupt their edu-

cational planning and drive them to pursue alterna-

tive educational opportunities in countries that do not

discriminate against them. Not surprisingly, Canada,

the United Kingdom, Australia, and New Zealand

have already seen a jump in applications following

issuance of EO-1 and EO-2.”*

Such anxieties are easy to understand. For instance,

a fourth-year student at George Mason University in

Virginia, who flew home to visit her family in Libya

over winter break, was left stranded for a week in

Istanbul after EO-1 took effect during the middle of

her return trip to the United States. She was able to

reenter the United States to resume her studies only

after the district court issued a temporary restraining

order in Washington v. Trump. She had the highest

high-school GPA in Libya in 2011, earned a full college

scholarship, and chose to study here. But the “night-

mare” she experienced has prompted her to look to

Canada for her graduate studies. EQO-1 likewise

# Decl. of David L. Eaton { 5 & Ex. 2, Hawaii v. Trump, No.

17-15589 (9th Cir. Apr. 20, 2017), ECF No. 125, Ex. G.

* Kirk Carapezza, Travel Ban’s ‘Chilling Effect’ Could Cost

Universities Hundreds of Millions, Natl Pub. Radio (Apr. 7,

2017), https://goo.gl/CqkNEy.

* Decl. of Najwa Elyazgi, Aziz v. Trump, No. 1:17-cv-116 (K.D.

Va. Feb. 8, 2017), ECF No. 54; see also Susan Svrluga, ‘J felt

loved’: Libyan student, banned from entry to the U.S., is able to

return to George Mason University, Wash. Post (Feb. 7, 2017),

https://goo.gl/4I216w.

blocked ten of Iran’s top engineering students who had

been admitted to the doctoral engineering program at

the University of Illinois at Chicago, forcing them to

look to programs in Canada as well.”

Moreover, the climate of uncertainty and discrim-

ination created by the travel ban appears to be deter-

ring international students from countries other than

the six targeted by EO-2. A recent survey found that

80% of college registrars and admissions officers were

concerned about the application yield of international

students in the wake of EO-1 and EO-2.% For

instance, the Special Education Program at Washing-

ton State University’s Department of Teaching and

Learning has seen the number of international appli-

cations drop from 63 last year to just ten this year.’

Forty percent of colleges surveyed report a drop in

applications from foreign students.“ The Deputy

Director of the American Association of College Regis-

trars and Universities recently reported seeing an

increase in foreign students “hedging their bets,”

applying to schools in “ ‘Canada, the U.K., Australia

and New Zealand.’ ”® These are clear warning signs

that allowing the travel ban to take effect would

devastate the ability of American schools to attract

and retain talented foreign students.

A stay of the injunctions would also pull the rug out

from under students from the six targeted countries

Due to Travel Ban, WBEZ (Mar. 6, 2017), https://goo.gl/rqRwzz.

6 Carapezza, supra note 23.

*? Decl. of Asif Chaudhry 7 9, Hawaii v. Trump, No. 17-15589

(9th Cir. Apr. 20, 2017), ECF No. 125, Ex. J.

8 Carapezza, supra note 23.

9 Td.

who have already accepted admission (or decided to

continue their enrollment) for the fall academic semes-

ter, in reliance on the belief that the travel ban was

enjoined. The commitment deadline has already passed

for most colleges and universities; for others, it is

imminent.*° The inevitable adverse publicity that

would flow from blocking those students’ ability to

matriculate would haunt our colleges and universities

for years to come.

Every foreign student deterred or blocked from

enrolling results in both tangible and intangible

harms to the States. The loss of international students

and scholars inhibits the free exchange of information,

ideas, and talent that is so essential to academic life in

our nation’s colleges and universities. The tangible

economic harms would also be serious. “For every

seven international students enrolied, three U.S. jobs

are created and supported by spending occurring in

the higher education, accommodation, dining, retail,

transportation, telecommunications and health insur-

ance sectors.”* As noted above, economic benefits of

$496 million were generated as a result of foreign

students from the six targeted countries during the

2015-16 academic year, with $222 million alone gener-

ated in the Amici States.

Permitting the travel ban to take effect would have

similar adverse impacts on current and potential fac-

%” See, e.g., Univ. of Cal. (May 1), https://goo.g/u8T31E;

Ill. State Univ. (May 1), https://goo.g/WqlaUT; James Madison

Univ. (May 1), https://goo.gl/5dPhal; SUNY Albany (May 1),

https:/goo.gl/i8fbG9; N.C. State Grad. Eng’g Program (June 15),

https-//goo.gVSTVx1E.

5! NAFSA, Benefits from International Students (2017), https://

goo.gl/G6n1Ww.

ulty members. For example, the University of Massa-

chusetts employed in the previous academic year,

in various academic departments, approximately 130

employees from the affected countries who are neither

lawful permanent residents nor U.S. citizens.** The

University of Maryland relies on “more than 200 grad-

uate students, post-doctoral fellows, and faculty from

the designated countries to staff its science laborato-

ries.”*> “The loss of just one of these researchers will

disrupt work and delay progress for an entire lab.”™

Permitting the travel ban to take effect would also

harm recruitment of faculty and researchers, many

of whom work in specialized fields. The City Univer-

sity of New York (“CUNY”) Graduate Center is cur-

rently negotiating with an international senior research

scholar who has expressed serious concerns about

moving to the United States in the shadow of the

travel ban.*° CUNY’s Baruch College, which hires a

significant number of foreign faculty members, already

reports that potential faculty members are voicing

concerns about travel restrictions that would interfere

with family obligations such as caring for elderly

parents, attending important family events, and par-

ticipating in cultural holidays.*

Harm to medical institutions. Allowing the travel

ban to take effect would also threaten public hospitals,

* Decl. of Deirdre Heatwole 7{ 4-10, Hawaii v. Trump, No. 17-

15589 (9th Cir. Apr. 20, 2017), ECF No. 125, Ex. A.

33 Decl. of Ross D. Lewin 7 8, Hawaii v. Trump, No. 17-15589

(9th Cir. Apr. 20, 2017), ECF No. 125, Ex. F.

% Td.

% Decl. of Vita Rabinowitz 7 21, Hawaii v. Trump, No. 17-

15589 (9th Cir. Apr. 20, 2017), ECF No. 125, Ex. H.

= Be.

which employ physicians and medical residents,

research faculty, and postdoctoral researchers from the

designated countries. Qualified individuals from those

countries have accepted job offers from Amici States’

hospitals, but must await visa approval and are uncer-

tain if or when they can start work.*’ Uncertainty

created by EO-1 and EO-2 has already had “a profound

chilling effect” on international students’ applications

to State hospitals’ residency programs, imposing “a

major disincentive for hospitals to select foreign

nationals for their residency programs.”* The conse-

quent risk of understaffing medical facilities threatens

harm to the States and to the health of their

inhabitants.

Lost tax revenues. Implementing the travel and

refugee bans would also cost Amici States significant

tax revenues. Foreign students, tourists, business vis-

itors, and resettled refugees contribute to our State

treasuries, not only through direct payments like tui-

tion and fees, but also through tax reccipts from

the businesses they patronize and the goods and ser-

vices they purchase. Blocking thousands of travelers

from entering the Amici States will halt their tax

contributions.

The broader chilling effect on tourism would be even

more extensive if the travel ban is reinstated, operat-

ing as a giant warning sign that foreign visitors are

unwelcome. EQ-2 has already prompted Canada’s larg-

est school district and one of its nationwide youth

*! See, e.g., Decl. of Michael F. Collins, M.D. I 9, Louhghalam

v. Trump, No. 1:17-cv-10154 (D. Mass. Feb. 2, 2017), ECF No.

52-2.

% Decl. of Eric Scherzer J 15, Hawaii v. Trump, No. 1:17-cv-

00050 (D. Haw. Mar. 13, 2017), ECF No. 154-3, Ex. I.

organizations to suspend U.S. travel.*® An estimated

4.3 million fewer people are expected to visit the United

States this year, “resulting in $7.4 billion in lost reve-

nue.... Next year, the fallout is expected to be even

larger, with 6.3 million fewer tourists and $10.8 billion

in losses.”*° The preliminary injunctions may have

helped stanch the losses in tourism revenue; with the

injunctions in place, international inbound travel ticked

up in April 2017, compared to April 2016, but travel-

industry experts have cautioned that “uncertainty

about the Trump Administration’s policies could dis-

courage foreign visitors in the months ahead.” Reviv-

ing the travel and refugee bans would certainly make

America a less welcoming destination for foreign

tourists.

Lasting harm to States’ economies. The travel

and refugee bans also threaten profound, long-term

economic harm. The message of intolerance and uncer-

tainty conveyed by EO-2 threatens Amici States’ abil-

ity to continue attracting and retaining the foreign

professionals, entrepreneurs, and companies that are

mainstays of our economies. For example, foreign-

born residents comprise 22.1% of the entrepreneurs

*° Derek Hawkins, Worried about Trump’s travel ban, Can-

ada’s largest school district calls off U.S. trips, Wash. Post (Mar.

24, 2017), https://goo.gl/nqCv1t; Linda Givetash, Girl Guides Of

Canada Cancels All Trips To U.S. Over Trump’s Travel Ban,

Huffington Post (Mar. 14, 2017), https://goo.g/OmOHWz.

“ Abha Bhattarai, Even Canadians are skipping trips to the

U.S. after Trump travel ban, Wash. Post (Apr. 14, 2017), https://

goo.glV/a9tSjJ.

“| Alana Wise, Travel to the United States rose in April, but

industry remains wary, Reuters (June 6, 2017), https://goo.gl/

dzjfYT.

and 37.7% of the software developers in Illinois,** and

27% of scientists, 21% of health care practitioners, and

19% of mathematicians and computer specialists in

Maryland.“ A recent study found that if even half of

the more than 3,900 foreign-born graduates of Illinois

universities in STEM fields (science, technology, engi-

neering, and mathematics) stayed in the United States

after graduation, it could result in the creation of more

than 5,100 new jobs for U.S.-born workers by 2021.**

Even a temporary disruption in the flow of these highly

skilled workers into the United States puts companies

across the country at a disadvantage compared to their

global competitors, and threatens to act as a brake on

our State economies.

Harm to refugee resettlement efforts. EQ-2 also

hinders the efforts of the Amici States to resettle and

assist refugees. Between 2012 and 2015, California

accepted 23,382 refugees, including 5,668 from Iran,

225 from Syria, and 119 from Sudan.*° Between July

1, 2015 and June 30, 2016, California resettled 1,450

Syrian refugees, more than any other State.*® Accord-

ing to the Maryland Office for Refugees and Asylees,

during the five-year period ending September 30,

“ New Am. Econ., The Contributions of New Americans in

Illinois 2, 10 (Aug. 2016), https-//goo.gl/78amBf.

* Randy Capps & Karina Fortuny, The Integration of Immi-

grants in Maryland’s Growing Economy 2, Urban Inst. (Mar.

2008), https://goo.gl/wVjnez.

“ The Contributions of New Americans in Illinois, supra note

42, at 13.

“ U.S. Office of Refugee Resettlement, Refugee Arrival Data

(Nov. 24, 2015), https://goo.gIADNhUU.

6 California Leads The Nation In Resettlement Of Syrian

Refugees, CBS SF Bay Area (Sept. 29, 2016), https://goo.g!/

FmXRyj.

2016, 1,121 refugees from the six designated countries

were resettled in Maryland.*’

Had it not been enjoined by the Hawaii court, § 6 of

EO-2 would have stranded in crisis zones thousands

of refugees—despite the fact that they have already

been extensively vetted—in many cases isolating them

from family members who are already in the United

States.** In addition, it would have indefinitely excluded

tens of thousands of otherwise eligible refugees by

reducing the cap for Fiscal Year 2017 by more than

half, from 110,000 to 50,000. Resettlement agencies

whose funding is allocated on a per-arrival basis thereby

face a reduction in resources if that provision takes

effect. For example, the International Institute of Buf-

falo, which provides refugee resettlement services, has

planned to lay off six employees as a result of the

refugee ban.*® Lutheran Community Services North-

west, based in Washington, has notified 15 of its 35

refugee assistance employees that they will be laid off

if the refugee provisions take effect. Such reductions

in services have a constricting effect on local economies

as employees are let go, interpreters are no longer hired,

and fewer resettled refugees are available to help revi-

talize economically depressed neighborhoods.’ The

*’ Md. Office for Refugees & Asylees, Refugees and SIV’s

Resettled in Maryland by Nationality, FY 2012—FY 2016 (2017),

https://goo.g/zAAeDU.

* See Joint Decl. of Madeleine K. Albright et al. 6, JA ‘\P v.

Trump, No. 17-1351 (4th Cir. Mar. 24, 2017), ECF No. 34-3, JA.

666 (“Refugees receive the most thorough vetting of any traveler

to the United States, taking on the average more than a year.”).

*’ Decl. of Eva Hassett 7 21, Hawaii v. Trump, No. 17-15589

(9th Cir. Apr. 20, 2017), ECF No. 125, Ex. N.

® Decl. of David Duea 7 9, Hawaii v. Trump, No. 17-15589 (9th

Cir. Apr. 20, 2017), ECF No. 125, Ex. O.

5! Decl. of Eva Hassett, supra note 49, {J 22-25.

preliminary injunction entered by the court in Hawaii

saved refugee resettlement organizations from having

to drastically reduce their personnel, and the State

Department has since advised such organizations to

expect an increase in refugee arrivals.” Reinstating

the refugee restrictions would do unnecessary damage

to the vital services performed by these organizations.

Harm to States’ Muslim communities. The travel!

and refugee bans also threaten to undermine our States’

constitutional and statutory commitments to religious

tolerance and diversity. Each State has an interest

in “securing observance of the terms under which it

participates in the federal system,” including the

Establishment Clause.* The Establishment Clause

is a structura! limitation on the exercise of federal

power, including Executive power.” “It was in large

part to get completely away from .. . systematic

religious persecution that the Founders brought into

being our Nation,” with an express “prohibition against

any governmental establishment of religion” in order

to protect religious beliefs from “the pressures of gov-

52 Manya Brachear Pashman, After sharp dip, refugee arrivals

poised to increase, Chi. Tribune (May 30, 2017), https://goo.gl/

p98ZAt.

53 Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458

U.S. 592, 607-08 (1982).

* U.S. Const. amend. I, cl. 1.

55 See, e.g., Hein v. Freedom From Religion Found., Inc., 551

U.S. 587, 614 (2007) (plurality opinion) (noting that a party with

standing may bring an Establishment Clause challenge to spend-

ing by an executive agency that advances religious purposes); id.

at 639-40 (Souter, J., dissenting) (“{NJo one has suggested that

the Establishment Clause lacks applicability to executive uses of

money.”); Agostini v. Felton, 521 U.S. 203, 244 (1997) (Souter, J.,

dissenting) (describing the Establishment Clause as among the

Constitution’s “structural and libertarian guarantees”).

ernment for change each time a new political admin-

istration is elected to office.”°° To safeguard our resi-

dents’ rights, Amici States have adopted constitutions

and other laws that protect against discrimination,

including laws prohibiting our residents, businesses,

and state and local governments from conditioning

employment and other opportunities on national

origin and religion.®*’ EO-2 undermines those efforts.

Allowing the travel and refugee bans to take effect

would occur at the same time that hate crimes against

Muslims are on the rise. In the Chicago area alone,

175 hate-related incidents were reported in the first

two months of 2017, compared to 400 hate crimes

reported in all of 2016.% On May 26, an assailant

shouting anti-Muslim rants at two women in Portland,

Oregon fatally stabbed two men and wounded a third

as they tried to come to the women’s defense.®® Permit-

ting the travel ban to take effect against citizens from

overwhelmingly Muslim countries will only embolden

% Engel v. Vitale, 370 U.S. 421, 430, 433 (1962).

%? See, e.g., Cal. Const. art. I, §§ 4, 7-8, 31; Cal. Gov't Code

§$§ 11136-11137, 12900-12996; Cal. Civ. Code § 51, subd. (b); Conn.

Gen. Stat. § 46a-60; Ill. Const. art. I, §§ 3, 17; 740 Ill. Comp. Stat.

23/5(aX(1); 775 Tl. Comp. Stat. 5/1-102(A); 775 Ill. Comp. Stat.

5/10-104(A)(1); Me. Rev. Stat. Ann. tit. 5, §§ 784, 4551-4634; Md.

Code Ann., State Gov’t § 20-606; Mass. Gen. L. ch. 151B, §§ 1, 4;

id. ch. 93, § 102; N.M. Const. art. II, § 11; N.M. Stat. Ann. § 28-1-

7; Or. Rev. Stat. § 659A.006(1); R.I. Gen. Laws § 28-5-7(1 i);

Vt. Stat. Ann. tit. 9, §§ 4500-07; Vt. Stat. Ann. tit. 21, § 495;

Va. Const. art. I, § 16; Wash. Rev. Code § 49.60.030(1).

5° Marwa Eltagouri, Hate crime rising, report activists at Illi-

nois attorney general’s summit, Chi. Tribune (Feb. 24, 2017),

https://goo.gl/uVeaiQ; see also Azadeh Ansari, FBI: Hate crimes

spike, most sharply against Muslims, CNN (Nov. 15, 2016),

https://goo.gl/kyvh83.

5° Matthew Haag & Jacey Fortin, Two Killed in Portland While

Trying to Stop Anti-Muslim Rant, Police Say, N.Y. Times (May

27, 2017), https://goo.g//MOzBcev.

the intolerant and amplify the message of fear and

intimidation communicated to our Muslim communities.

By its express terms, the travel ban expires on June

14—90 days after it took effect." The applicants,

for their part, have taken irreconcilable positions

on whether that time period has been running (and

whether the 120-day period has been running on the

refugee ban). In JRAP, the Acting Solicitor General

told the Fourth Circuit that “Section 2(c)’s 90-day sus-

pension expires in early June.” But in subsequent

briefing, the applicants claimed that the 90-day period

had not even begun to run, based on three alternative

theories:

Whether because Section 2(c) was never per-

mitted to take effect on [its effective date], or

because the “effective date” for Section 2(c)

has been tolled during the pendency of the

injunctions, or because those injunctions pre-

vented Section 14’s effective date from apply-

ing to Sections 2 and 3 (and those applications

are severable under the express severability

clause in Section 15), the Order’s 90-day sus-

pension will begin when the injunctions are

BGed....°

® See EO-2 § 2(c) (suspending entry of nationals from six coun-

tries “for 90 days from the effective date of this order”), § 14 (“This

order is effective at 12:01 a.m., eastern daylight time on March

16, 2017.”).

®! Mot. of Defs.-Appellants for a Stay Pending Expedited Appea]

at 11, TRAP v. Trump, No. 17-1351 (4th Cir. Mar. 24, 2017), ECF

No. 35 (emphasis added).

®? Defs.-Appellants’ Resp. to Pls.-Appellees’ Mot. for Leave to

Supplement the Record at 2-3, JRAP v. Trump, No. 17-1351 (4th

Cir. Mar. 24, 2017), ECF No. 291.

We do not know which position to credit, and the appli-

cants did not pick one in their three filings in this

Court. However that question is ultimately resolved,

we know one thing for certain: the harm to Amici

States and our residents from reinstating the travel

and refugee bans, even for a limited time, would be

irreparable.

Il. THE BALANCE OF EQUITIES STRONGLY

FAVORS DENYING A STAY.

As noted at the outset, balancing the equities

involved in a stay application requires the Court “to

determine whether the injury asserted by the appli-

cant outweighs the harm to other parties or to the

public.” In considering these applications, therefore,

the Court should take account of the irreparable harm

described above that will be inflicted on the Amici

States and our residents if the travel ban is permitted

to take effect. The balance of equities here tips decid-

edly in favor of maintaining the preliminary injunc-

tions pending review.

The applicants’ interests do not outweigh the injury

to the States and our residents that would result from

permitting the travel ban to take effect. At no time

in either the JRAP or Hawaii litigation have the

applicants offered any evidence to rebut the joint dec-

laration of numerous national security experts who

explained why enjoining the travel and refugee bans

pending a final decision on the merits “would not jeop-

ardize national security."“ As those experts noted,

“[s]ince September 11, 2001, not a single terrorist attack

in the United States has been perpetrated by aliens

* Lucas, 486 U.S. at 1304.

Joint Decl. of Madeleine K. Albright et al. 9, IRAP v. Trump,

No. 17-1351 (4th Cir. Mar. 24, 2017), ECF No. 34-3, J.A.667.

ingly, the applicants have failed to carry their “heavy

burden”® to show that the preliminary injunctions

should be stayed pending final disposition of the

underlying litigation.

A “presumptive correctness” attaches to the lower

court’s disposition,®” a presumption that applies not

only to ruling on “the merits,” but also to rulings

involving an “interim disposition of the case.” Thus,

Justices have “weighed heavily the fact that the lower

court refused to stay its order pending appeal, indi-

cating that it was not sufficiently persuaded of the

existence of potentially irreparable harm as a result of

enforcement of its judgment in the interim.” When

the lower courts have already balanced the equities, as

here, their “decision is entitled to weight and should

not lightly be disturbed.” “Balancing the equities is

always a difficult task, and few cases are ever free

from doubt.”"’ “Where there is doubt,” however, “it

should inure to the benefit of those who oppose grant

of the extraordinary relief which a stay represents.””

® Id. { 4, J.A.667.

8° Nken v. Holder, 556 U.S. 418, 439 (2009) (Kennedy, J., con-

curring) (quoting Williams v. Zbaraz, 442 U.S. 1309, 1311 (1979)

(Stevens, J., in chambers)).

7 Conforte v. Comm'r, 459 U.S. 1309, 1311 n.1 (1983) (Rehnquist,

J., in chambers).

% Rostker, 448 U.S. at 1308.

® Whalen v. Roe, 423 U.S. 1313, 1317 (1975) (Marshall, J., in

chambers) (quoting Graves v. Barnes, 405 U.S. 1201, 1203-04

(1972) (Powell, J., in chambers)).

” Zbaraz, 442 U.S. at 1312; see also Whalen, 423 U.S. at 1316.

" Zbaraz, 442 U.S. at 1315.

” Td. at 1316 (emphasis added).

CONCLUSION

The applications to stay the preliminary injunction

orders should be denied.

BRIAN E. FROSH

Attorney General of Maryland

STEVEN M. SULLIVAN

Solicitor General

OFFICE OF THE ATTORNEY

GENERAL

200 Saint Paul Place, 20th Floor

Baltimore, Maryland 21202

(410) 576-6427

ssullivan@oag.state.md.us

XAVIER BECERRA

Attorney General of California

1300 I Street, Suite 125

P.O. Box 944255

Sacramento, California 94244

GEORGE JEPSEN

Attorney General of Connecticut

55 Elm Street

Hartford, Connecticut 06106

MATTHEW P. DENN

Attorney General of Delaware

Carvel State Building, 6th Floor

820 North French Street

Wilmington, Delaware 19801

LISA MADIGAN

Attorney General of Illinois

100 West Randolph Street,

12th Floor

Chicago, Illinois 60601

Respectfully submitted,

MARK R. HERRING

Attorney General of Virginia

STUART A. RAPHAEL

Solicitor General

Counsel of Record

OFFICE OF THE ATTORNEY

GENERAL

202 North Ninth Street

Richmond, Virginia 23219

(804) 786-7240

sraphael@oag.state.va.us

ERIC T. SCHNEIDERMAN

Attorney General of New York

120 Broadway, 25th Floor

New York, New York 10271

JOSH STEIN

Attorney General of North

Carolina

9001 Mail Service Center

Raleigh, North Carolina 27699

ELLEN F. ROSENBLUM

Attorney General of Oregon

1162 Court Street, N.E.

Salem, Oregon 97301

PETER F.. KILMARTIN

Attorney General of Rhode

Island

150 S. Main Street

Providence, Rhode Island 02903

TOM MILLER

Attorney General of Iowa

1305 E. Walnut Street

Des Moines, lowa 50319

JANET T. MILLS

Attorney General of Maine

6 State House Station

Augusta, Maine 04333

MAURA HEALEY

Attorney General of

Massachusetts

One Ashburton Place

Boston, Massachusett. 02108

HECTOR BALDERAS

Attorney General of New

Mexico

408 Galisteo Street

Santa Fe, New Mexico 87501

THOMAS J. DONOVAN, JR.

Attorney General of Vermont

109 State Street

Montpelier, Vermont 05609

ROBERT W. FERGUSON

Attorney General of Washington

1125 Washington Street S.E.

P.O. Box 40100

Olympia, Washington 98504

KARL A. RACINE

Attorney General of the District

of Columbia

441 4th Street, N.W.

Washington, D.C. 20001

TREVOR S. Cox

Deputy Solicitor General

MATTHEW R. MCGUIRE

Assistant Solicitor General

OFFICE OF THE ATTORNEY

GENERAL

202 North Ninth Street

Richmond, Virginia 23219

(804) 786-7240

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.