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

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CORD FILED

AND » Nos. 16-1436 & 16-1540 SEP 18 2017

Vere’ CLERK

IN THE

Supreme Court of the Anited States

DONALD J. TRUMP,

PRESIDENT OF THE UNITED STATES, ET AL.,

Petitioners,

INTERNATIONAL REFUGEE ASSISTANCE PROJECT’, ET AL.,

Respondents.

DONALD J. TRUMP,

PRESIDENT OF THE UNITED STATES, ET AL.,

Petitioners,

STATE OF HAWAII, ET AL.,

Respondents.

On Writs of Certiorari to the

United States Courts of Appeals

for the Fourth and Ninth Circuits

BRIEF OF NAACP LEGAL DEFENSE

& EDUCATIONAL FUND, INC.

AS AMICUS CURIAE IN SUPPORT OF

RESPONDENTS INTERNATIONAL REFUGEE

ASSISTANCE PROJECT, ET AL.

——aa —————

SHERRILYN A. IFILL AJMEL QUERESHI

Director-Counsel Counsel of Record

JANAI S. NELSON CHRISTOPHER KEMMITT

SAMUEL SPITAL NAACP LEGAL DEFENSE &

JIN HEE LEE EDUCATIONAL FUND, INC.

NAACP LEGAL DEFENSE& 1444I Street NW

EDUCATIONAL FUND, INC. Washington, DC 20005

40 Rector Street, 5th Floor (202) 682-1300

New York, NY 10006 aquereshi@naacpldf.org

(212) 965-2200

September 18, 2017

TABLE OF CONTENTS

Re COE BAF BE FEE nercnvastinsciserisessss.secses. oer

INTEREST OF AMICUS CURIAE ..............0::00000005

INTRODUCTION AND

ARGUMENT

II.

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

OUR COUNTRY’S LONG HISTORY OF

SANCTIONING THE STEREOTYPE THAT

CERTAIN RACES OR ETHNICITIES ARE

INHERENTLY DANGEROUS HAS BEEN

A SOURCE OF DEEP NATIONAL SHAME

AND IS ANATHEMA TO THE

FOUNDATIONAL PRINCIPLES OF OUR

CONSTITUTIONAL DEMOCRACY. ..............

A. Slavery, Jim Crow, and Lynching.............

B. The Chinese Exclusion Act.........................

C. The Japanese-American Internment .........

THE EXECUTIVE ORDER AT ISSUE

PUNISHES INDIVIDUALS BASED ON

THEIR RELIGION, HARKENING BACK

TO SHAMEFUL PERIODS OF OUR

PY EE UIE 0 setchensenisstnscsnsdubisnessntettnies

A. The Executive Order Is Based on, and

Perpetuates, the False and Pernicious

Stereotype that Muslims Are Inherently

TERRES LIE a Bat SME 8 MEST I |

B. The Order, if Approved, Would

Contribute to Increasing Animosity and

Violence Towards Innocent Muslim-

SE SERIE INE PREPS le

oR Poe ee eee eee eee eee eee ee eee eee eee eee eee eee eee ee eee ee eee

SPEED ccctccdsncsscnecsensidennaserténtesinnnbiiassonséoeons 32

TABLE OF AUTHORITIES

CASES: PAGE(S)

Buck v. Davis,

EC I. A IT TT cic cdcenianininddepssiadaaiberedeaneibue 1, 3, 4

Brown v. Board of Education,

gg RS RE eS ee a eee oe 1

Chae Chan Ping v. United States,

Sy I ch candaicnsiliics eeietitpsovibadhinsaitialoinds 16

Davis v. Ayala,

8 ee See eee eee eee ee 4

Griggs v. Duke Power Co.,

I sales Saini ooinabenenaaniiis 1

Korematsu v. United States,

en 13, 20

Korematsu v. United States,

584 F. Supp. 1406 (N.D. Cal. 1984)....................... 22

Lochner v. New York,

I ial 12-13

McCleskey v. Kemp,

EEE On eR or 1

Obergefell v. Hodges,

SE: WU: SI III ssn cisncanteuicseionhesioiasomesianeosnninie 2

PAGE(S

Oyama v. California,

332 U.S. 633 (1948) ........0:.cecccescscesees-eee 13, 14, 17, 18

Petia-Rodriguez v. Colorado,

a secabten 2, 3, 4, 5, 6

Plessy v. Ferguson,

I scoala 10

Rose v. Mitchell,

IC a ceaehebaduaianeiby 4

Scott »v. Sandford,

60 U.S. (19 How.) 393 (1857)...............00602- ETE a. y

Shelby County v. Holder,

| EEE SEE eR Ae eer ee Aton seers 1

Shelley v. Kraemer,

RTE Len eae ae aaa Se 1

Smith v. Allwright,

re I i psouieninedevionasnsucdmees 1

Takahashi v. Fish and Game Comm’n,

I i ssendenehaamiscousenes 2

Turner v. Murray,

i as aegiabetaiial 3

United States v. Clary,

846 F. Supp. 768 (E.D. Mo. 1994), rev'd on other

grounds by 34 F.3d 709 (&th Cir. 1994).............000... fe)

PAGE(S)

United States v. Rutherford County,

No. 12 Civ. 0737,

2012 WL 2930076 (M.D. Tenn. July 18, 2012)...... 31

United States v. Windsor,

Be Oy ke Pe CI cceevcccececserccoccdcincccen sce: Be er 2

CONSTITUTIONAL PROVISIONS, STATUTES

& LEGISLATIVE MATERIALS:

U.S. Const.

ny aa SETS CREAR sails seed SRF aN es Mi oe 4

ITU i schngcsias cans cinchidesdpsepidoncuttcaetacboascanaes 4

De GPs We A BUI DD secscctcev vicvncokacccsecéenssadacaiepestes 4

Fi. Res. 663, 112th Comg. (2012)...........ccccccccsccceees 16-17

eRe Ek ee, |} ) ene 13

Fe Ss UG, BU NE CR vciidseccp die cdccaccocccseoessns 12

H. Res. 442, 100th Cong. (1987)...........cccccccccceeecseceeee 22

S. Con. Res. 26, 111th Cong. (2009) ..........00.....ccceee. 12

i Pn Uy, BU I, CI iio oes ccccdcesdbaceaccs 22

S. Res. 201, 112th Cong. (2011)..........00......... 15, 16, 17

S. Res. 39, 109th Cong. (2008).................ccccccsecccsseeees 12

PAGE(S)

OTHER AUTHORITIES:

The American Presidency Project, Ronald Reagan

XL President of the United States: 1981-1989

(Aug. 10, 1988), http://www.presidency.ucsb.edu/

asa iihenandsadabighaestsidctiennequnbnndianicdine 22

Aoki, Keith, “Foreign-Ness” & Asian American

Identities: Yellowface, World War II Propaganda,

and Bifurcated Racial Stereotypes,

4 Asian Pac. Am. L.J. 1 (1996)......... 13-14, 15, 18-19

Associated Press, How Donald T: ump’s Plan to Ban

Muslims Has Evolved, Fortune (Jun. 28, 2016),

http://fortune.com/2016/06/28/donald-trump-

a aaiaciedasaueninbsandiptsindeninanehs 24-25

Aziz, Sahar F., From the Oppressed to the

Terrorist: Muslim-American Women in the

Crosshairs of Intersectionality, 9 Hastings

Race & Poverty L.J. 191 (2012).................0..... 30, 31

Baxter, R. Scott, The Response of California’s Chinese

Populations to the Anti-Chinese Movement, 42

Historical Archaeology 29 (2008)....................:.2000+ 14

Bell, Jeannine, The Fair Housing Act and

Extralegal Terror, 41 Ind. L. Rev. 537 (2008) ....... 10

Budiansky, Stephen, The Bloody Shirt: Terror

After Appomattox (Viking Books 2008) .................. 9

PAGE(S)

Burns, Rebecca, Rage in the Gate City: The Story

of the 1906 Atlanta Race Riot (Univ. of Georgia

nr: I as coaeielimaeuidaneaneatia 11

Butler, Paul, By Any Means Necessary: Using

Violence and Subversion to Change Unjusi Law,

ee I Sa Is Wty IIE is isttecacccehcccesedsescsconsciote 10

Carroll, Lauren, Fact-Checking Trump’s Claim that

Thousands in New Jersey Cheered When World

Trade Center Tumbled, Politifact (Nov. 22, 2015,

6:17 PM), http://www.politifact.com/

truth-o-meter/statements/2015/nov/22/donald-

trump/fact-checking-trumps-claim-thousands-new-

RARER SRP AIRES PO poet eone be e-ee R On eatin beeen aA 25

Carter, William M., Jr., A Thirteenth Amendment

Framework for Combating Racial Profiling, 39

ee, Cea, Ba MU 0 0 i Ricenccceseinwesssscnaiessens 8

Carter, William M., Jr., Race, Rights and the

Thirteenth Amendment: Defining the Badges

and Incidents of Slavery, 40 U.C. Davis L. Rev.

attests ka NS eal Geb eate 8

Commission on Wartime Relocation and

Internment of Civilians, VRH9-KAGV,

Personal Justice Denied (1984) ...................... passim

Cottrol, Robert J., and Raymond T. Diamond, The

Second Amendment: Toward an Afro-Americanist

Reconsideration, 80 Geo. L.J. 309 (1991).............. 10

PAGE(S)

Davis, Angela Y., Racialized Punishment and

Prison Abolition, in the Angela Y.

By MII ID II goss ceccccnconosucesscacvaccesscessuebessss 9

Diamond, Jeremy, Donald Trump: Ban all Muslim

travel to U.S., CNN.com (Dec. 8, 2015, updated 4:18

AM), http://www.cnn.com/2015/12/07/

politics/donald-trump-muslim-ban-

8 | een ee 27

Diamond, Jeremy, Trump Would ‘Certainly

Implement’ National Database for U.S. Muslims,

CNN.com, (Nov. 20, 2015, 12:18 PM),

http://www.cnn.com/2015/11/19/politics/donald-

trump-barack-obama-threat-to-country/............... 27

Domonoske, Camila, White Supremacist Charged

With Terrorism Over Murder of Black Man,

NPR.org (Mar. 28, 2017, 3:05 PM),

http://www.npr.org/sections/thetwo-

way/2017/03/28/52 1805 165/white-supremacist-

charged-with-terrorism-over-murder-of-black-man

i in een eee eee eee ee eee ee eee eee eee eee eee eee ee

Equal Justice Initiative, Lynching in America:

Confronting the Legacy of Racial Terror

I ce cad das naa ceomibhegdaainaieis 11

viii

PAGE(S)

Estepa, Jessica, ‘Preventing Muslim Immigration’

Statement Disappears from Trump’s Campaign

Site, USA Today (May 9, 2017, 6:03 AM),

https://www.usatoday.com/story/news/politics/onpol

itics/2017/05/08/preventing-muslim-immigration-

statement-disappears-donald-trump-campaign-

oo enlipmesmhenicoiibhaliciiensiiin 27

Finkelman, Paul, Coping with a New “Yellow Peril”:

Japanese Immigration, The Gentleman’s

Agreement, and the Coming of World War I],

117 W. Va. L. Rev. 1409 (2015) ................. 13, 14, 18

Finkelman, Paul, The Crime of Color,

ie hs. SI CR cneee cevnncnadccecccseccscoscocnss 8, 9

Fisher, William W. III, Ideology and Imageryin

the Law of Slavery, 68 Chi.-Kent. L. Rev.

Tene cexsbumsioss oud 7-8

Foner, Eric, Give Me Liberty!: An American

History Vol. 2, 535 (2d ed. 2009) ................ccccecceseees 9

Gabriel, Trip, Donald Trump Says He'd ‘Absolutely’

Require Muslims to Register, N.Y. Times, Nov. 20,

2015, 1:31 AM),

https://www.nytimes.com/politics/first-

draft/2015/1 1/20/donald-trump-says-hed-

absolutely-require-muslims-to-register/................ 27

Greene, Jamal, The Anticanon,

125 Harv. L. Rev. 379 (20131)..................s000. 6, 13, 21

PAGE(S)

Grossman, Kyle, The Untold Story of the State

Filibuster: The History and Potential of a

Neglected Parliamentary Device,

8B S. Cal. L. Rev. 413 (BOUG)............ccccccccescccccccoesees 12

Hensch, Mark & Jesse Byrnes, Trump: Frankly,

We're Having Problems with the Muslims, The Hill

(Mar. 22, 2016, 8:56 AM), http://thehill.com/

blogs/ballot-box/presidential-races/273857-trump-

frankly-were-having-problems-with-the-muslims 24

Higginbotham, A. Leon, Jr., In the Matter of

Color: Race and the American Legal Process:

Bee COMOMERL POTEOE CIB TE) ..<..20..ccc.ceccsccccccccccssccesscee 7

Howard, John, Concentration Camps on the Home

Front: Japanese Americans in the House of Jim

Crow (Univ. of Chicago Press 2008)................. 11-12

Johnson, Brent, Trump: ‘Thousands’ in Jersey City

Cheered on 9/11, NJ.com (Nov. 23, 2015, 5:35 PM),

http://www.nj.com/politics/index.ssf/2015/11/trump

_thousands_in_jersey_city_cheered_on_911.html] 25

Jordan, Winthrop D., White Over Black: American

Attitudes Toward the Negro, 1550-1812 (1968).....7

Lee, Erika, The Chinese Exclusion Example: Race,

Immigration, and American Gatekeeping, 1882-

1924, 21 Journal of American Ethnic History

SE oy ee nee 15, 16, 17, 18

PAGE(S)

Leinwand, Donna, More States Enter Debate on

Sharia Law, USA Today (Dec. 9, 2010, 10:29 AM),

http://usatoday30.usatoday.com/news/nation/2010-

12-09-shariabanO9 ST_N.htm.................0..........0.. 30

Ligon, Richard, A True & Exact History of the

Ember OF TIGFWRGOS C1GBT) .0.0scccncccccncccssecccacscsevsacscceves 7

Malkin, Bonnie & Martin Pengelly, Portland Attack:

Trump Says Victims Stood Up to “Hate and

Intolerance,” The Guardian (May 29, 2017),

https://www.theguardian.com/us-news/2017/may/

29/portland-attack-donald-trump-called-on-to-

make-statement-about-double...............0..0..cecc00eee 26

McKinley, James C., Jr., Oklahoma Surprise: Islam

as an Election Issue, N.Y. Times, Nov. 15, 2010... 30

Memorandum from U.S. Dep’t of Homeland Sec.,

Citizenship Likely an Unr: able Indicator of

‘Terrorist Threat in the United States, as reported

by Rick Jervis, DHS Memo Contradicts Threats

Cited by Trump’s Travel Ban, U.S.A. Today

(Feb. 25, 2017, 3:36 PM), hitp://www.usatoday.com/

story/news/2017/02/24/dhs-memo-contradict-travel-

Rate Cerin FO BIO vnnsevisocesescineusdeussuecdeaenanoians 28-29

Merica, Dan, Trump Says Both Sides To Blame Amid

Charlottesville Backlash, CNN.com (Aug. 16, 2017,

updated 1:14 AM), http://www.cnn.com/2017/08/15/

politics/trump-charlottesville-delay/index. htm] ... 26

PAGE(S)

Nat'l Park Serv., U.S. Dep’t of the Interior, NPS

Ethnography: African American Heritage &

Ethnography: Laws that Bound,

https://www.nps.gov/ethnography/aah/aaheritage/h

istContextsE. htm (last visited Sept. 17, 2017). ...... 7

Olmsted, Roger, The Chinese Must Go!, 50 Cal.

Hist. Q.J. Cal. Hist. Soc’y 285 (1971) ...0000.. ccc. 15

Otterman, Sharon, Mosque Is Blocked in New

Jersey, but Dispute Is Far from Over,

N.Y. Times (Mar. 10, 2017),

https://www.nytimes.com/2017/03/10/nyregion/mos

que-bayonne-new-jersey.html...........0....06ccceeeeeceeeee 31

Pokorak, Jeffrey J., Rape as a Badge of Slavery:

The Legal History of, and Remedies for,

Prosecutorial Race-of-Victim Charging

Disparities, 7 Nev. L.J. 1 (2006) ...0..........ceceeeeceeeees 10

Reilly, Katie, Donald Trump on Proposed Muslim

Ban: “You Know My Plans,” Time (Dec. 21, 2016),

http://time.com/4611229/donald-trump-berlin-

is enunncupensassecsvusoores 25

Reilly, Ryan J., Oklahoma Anti-Sharia Constitutional

Amendments Struck Down by Federal Judge,

Huffington Post (Aug. 16, 2013),

http://www.huffingtonpost.com/2013/08/15/oklahom

a-sharia-constitution_n_3764313. html ................. 30

xii

PAGE(S)

Remnick, David, Charleston and the Age of Obama,

The New Yorker (June 19, 2015),

https://www.newyorker.com/news/daily-

comment/charleston-and-the-age-of-obama.......... 1]

Saito, Natsu Taylor, Alien and Non-Alien Alike:

Citizenship, “Foreignness,” and Racial Hierarchy in

American Law, 76 Or. L. Rev. 261 (1997)....... 13, 14

Saito, Natsu Taylor, Model Minority, Yellow

Peril: Functions of “Foreignness” in the

Construction of Asian American Legal Identity,

IS UE I ciccicciicectenhieansendccdbcmeasevimaiineteds 14

Schleifer, Theodore, Donald Trump: “J think Islam

Hates Us,” CNN.com (Mar. 10, 2016),

http://www.cnn.com/2016/03/09/

politics/donald-trump-islam-hates-us/index.htm] 24

Serrano, Susan Kiyomi & Dale Minami, Korematsu

v. United States: A “Constant Caution” in a

Time of Crisis, 10 Asian L.J. 37 (2008) ................. 19

7 The Statutes At Large Of South Carolina 352

(Thomas Cooper and David J. McCord, eds.)

8 EE EASES Sl ART Pe SEIN ed RSIS Ea 7

Trump, Donald J. @realDonaldTrump), Twitter

(Sept. 15, 2017, 3:54 AM),

https://twitter.com/realDonaldTrump/status/90864

SER A ETERS eB RP RA EERE aa 4 28

xiii

PAGE(S)

Wang, Amy B., Trump Asked for a “Muslim Ban,”

Giuliani Says — and Ordered a Commission To Do

It “Legally,” Wash. Post (Jan. 29, 2017),

https://www.washingtonpost.com/news/the-

fix/wp/2017/01/29/trump-asked-for-a-muslim-ban-

giuliani-says-and-ordered-a-commission-to-do-it-

I seccicibectraspiiesbialistaiieds tinbiiaehcastadaaaeiuahacte ost seacmandaicaeagsarizaes 28

INTEREST OF AMICUS CURIAE'

For over 75 years, the NAACP Legal Defense and

Educational Fund, Inc. (“LDF”) has strived—as its

central mission—to secure the constitutional promise

of equality for all people in the United States. From

its earliest advocacy led by the late Supreme Court

Justice Thurgood Marshall to last term’s decision in

Buck v. Davis, 137 S. Ct. 759 (2017), LDF has litigated

before this Court some of the most significant and

pressing legal issues pertaining to discrimination in

our country. See, e.g., Smith v. Allwright, 321 U.S. 649

(1944) (exclusion of Black voters from primary

election); Shelley v. Kraemer, 334 U.S. 1 (1948) (racial

covenants on real estate transfers); Brown v. Board of

Education, 347 U.S. 483 (1954) (racial segregation of

public schools); Griggs v. Duke Power Co., 401 U.S. 424

(1971) (unjustified disparate impact in employment

discrimination); McCleskey v. Kemp, 481 U.S. 279

(1987) (challenge to discriminatory application of

death penalty); Shelby County v. Holder, 133 S. Ct.

2612 (2013) (defense of constitutionality of Section 5 of

the Voting Rights Act).

LDF’s commitment to, and advocacy for, equality

under the law is not limited to the rights of African

Americans. Indeed, throughout its history of civil

rights advocacy, LDF has pressed for the equal

treatment of other traditionally disfavored groups and

individuals seeking equal protection of the laws. For

example, LDF submitted an amicus brief in support of

1 Pursuant to Supreme Court Rule 37.6, counsel for amicus

curiae state that no counsel for a party authored this brief in

whole or in part and that no person other than amicus curiae, its

members, or its counsel made a monetary contribution to the

preparation or submission of this brief. All parties have

consented to the filing of this brief.

Petitioner Torao Tokahashi’s successful challenge to

the State of California’s refusal to issue fishing

licenses to non-citizens, including people of Japanese

ancestry, who were federally barred at that time from

obtaining United States citizenship amid growing

anti-Japanese hostility in the aftermath of the Second

World War. See Takahashi v. Fish and Game Comm'n,

334 U.S. 410 (1948). A long supporter of gay and

lesbian rights, LDF also supported petitioners

advancing the right to same-sex marriages in United

States v. Windsor, 133 S. Ct. 2675 (2013), and

Obergefell v. Hodges, 135 S. Ct. 2584 (2015). And, as

recently as last year, LDF urged this Court to

denounce a juror’s racial slurs, which explicitly

associated a Mexican defendant’s race with a

propensity for criminal and violent conduct. See Peria-

Rodriguez v. Colorado, 137 S. Ct. 855 (2017).

The President’s Executive Order 13780, Protecting

the Nation from Foreign Terrorist Entry into the

United States, which inter alia bars entry of non-

citizens and refugees from six predominantly Muslim

countries, raises grave constitutional concerns due to

its reliance on a false and pernicious stereotype that

associates Muslims with inherent dangerousness.

LDF, therefore, has both the experience and expertise

to assist the Court in its review of this case of national

and historical importance.

INTRODUCTION AND

SUMMARY OF ARGUMENT

Last term, this Court decided two cases in which

criminal defendants were deemed dangerous based on

stereotypes about their race or ethnicity. In Buck v.

Davis, 137 S.Ct. 759 (2017), Duane Buck’s own

“expert” witness testified at his capital trial that

Mr. Buck was more likely to commit violent acts in the

future because he is Black.?, The Court held that this

testimony rendered Mr. Buck’s death sentence

constitutionally intolerable because it appealed to a

“particularly noxious strain of racial prejudice,” viz.,

the stereotype that Black men are “violence prone.”®

In Petia-Rodriguez v. Colorado, 137 S. Ct. 855 (2017),

Mr. Pefia-Rodriguez was convicted of sexual assault

following jury del }:erations in which one juror stated

that “Mexican men” are “physically controlling of

women,” “take whatever they want,” and “nine times

out of ten . . . were guilty of being aggressive toward

women and young girls.” This Court denounced the

egregious racial stereotyping of Latino men and held

that the Sixth Amendment right to an impartial trial

required the consideration of this evidence even

though statements made by =jurors’ during

deliberations are ordinarily inadmissible.

The resolution of both cases turned on “a basic

premise of our criminal justice system: Our law

punishes people for what they do, not who they are.”®

Individuals may not be disfavored because of who they

are, and they assuredly cannot be singled out for

mistreatment because of their race, ethnicity, or

2 Buck, 137 S. Ct. at 768-69.

3 See id. at 776 (quoting Turner v. Murray, 476 U.S. 28, 35 (1986)).

4 Petia-Rodriguez, 137 5. Ct. at 862.

6 Buck, 137 S. Ct. at 778.

religion. This prohibition is particularly important

when the discriminatory conduct is motivated by the

“powerful . . . stereotype” that an individual is

“violence prone” because of who he is.’? That stereotype

is a “toxin,” which “can be deadly [even] in small

doses.”8

Nor are the victims of that toxin limited to its

immediate targets. Our country’s long, fraught history

of legalized discrimination demonstrates beyond

peradventure that “racial bias implicates unique

historical, constitutional, and institutional concerns.”?

Whether embodied in criminal law or in national

security directives, permitting racial prejudice to find

a home in our legal system thwarts “the promise of

equal treatment under the law that is so central to a

functioning democracy, ”’!2 “poisons public

confidence,”!! and “injures ... ‘the law as an

institution, .. . the community at large, and... the

democratic ideal reflected in the processes of our

courts.”!2 Consequently, “[iJt must become the

heritage of our Nation to rise above racial

classifications that are so inconsistent with . . . the

6 See id.; Pefia-Rodriguez, 137 S. Ct. at 867; U.S. Const. Amend.

XIV; cf. U.S. Const. Amend. I; 8 U.S.C.A. § 1152(a)(1)(A) (“[N]o

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.”).

7 Buck, 137 S. Ct. at 776; see also id. (describing race-as-

dangerousness stereotypes as “a particularly noxious strain of

racial prejudice”).

8 Id. at 777.

® Pefia-Rodriguez, 137 S. Ct. at 868.

10 Jd.

11 Buck, 137 8. Ct. at 778 (quoting Davis v. Ayala, 135 S. Ct. 2187,

2208 (2015)).

12 Id. (quoting Rose v. Mitchell, 443 U.S. 645, 556 (1979)).

equal dignity of all persons.”!2 The duty to confront

animus is shared by all three branches, but this Court

is obligated to enforce the Constitution’s guarantee

against state-sponsored discrimination when the other

branches abjure their duty to do so.'4

That is precisely what has happened here. Through

Executive Order 13780, the Executive Branch has

banned individuals from six nations, whose residents

are predominately Muslim, from entering the United

States. As explained by the courts below, this ban is

not based on the kind of legitimate considerations that

ordinarily require substantial deference to the

Executive Branch in matters of immigration. This ban

is instead the result of the President’s endorsement of

the particularly noxious stereotype that people from

these countries are dangerous because of their

religion. The deference owed to the President in

immigration matters does not extend that far: it does

not permit the Executive Branch to equate

race/ethnicity/religion with inherent dangerousness in

order to decide who may enter this country. The

President’s use of that stereotype, as the basis for

public policy, demeans not only the targets of its

discrimination; it demeans the integrity of our legal

system and demeans us all.

13 Petta-Rodriguez, 137 S. Ct. at 867; see also id. at 871 (“The

Nation must continue to make strides to overcome race-based

discrimination.”).

14 Jd. at 867.

ARGUMENT

I OUR COUNTRYS LONG HISTORY OF

SANCTIONING THE STEREOTYPE THAT

CERTAIN RACES OR ETHNICITIES ARE

INHERENTLY DANGEROUS HAS BEEN A

SOURCE OF DEEP NATIONAL SHAME AND

IS ANATHEMA TO THE FOUNDATIONAL

PRINCIPLES OF OUR CONSTITUTIONAL

DEMOCRACY.

In Petia-Rodriguez, this Court observed that “[i]t is

the mark of a maturing legal system that it seeks to

understand and to implement the lessons of history.” ©

Unfortunately, our history provides no shortage of

lessons in which unconstitutional discrimination was

motivated or justified by the stereotype that certain

people were inherently dangerous because of their race

or ethnicity. In the past, the judicial branch has often

permitted these discriminatory acts to stand and, in so

doing, conferred its imprimatur to the actions. In

many instances, Congress has acknowledged the anti-

American character of the discrimination long after

the harm, and this Court’s opinions endorsing the

discrimination have been relegated to the “American

anticanon”—the Supreme Court cases “that all

legitimate constitutional decisions must be prepared

to refute.” 16

Here, too, this Court is faced with Government

action motivated by the stereotype that a group of

people are dangerous because of who they are. This

time, that group is defined by religion rather than race

or ethnicity. But religion, like race, is a protected

15 137 S. Ct. at 871.

16 Jamal Greene, The Anticanon, 125 Harv. L. Rev. 379, 380

(2011).

category under the Constitution precisely because

treating people differently based on either category is

fundamentally inconsistent with our commitment to

democracy and the rule of law. This Court, therefore,

is confronted with a stark choice in this case: adding

to the anticanon or enforcing the constitutional ban on

the use of odious stereetypes in setting public policy.

A. Slavery, Jim Crow and Lynching

Our shameful history of using racial stereotypes of

inherent dangerousness to drive the enactment of laws

ostensibly designed to protect the public is instructive.

The stereotype of African Americans—particularly,

African-American men—as inherently dangerous

dates back to the earliest contacts between colonial

Americans and Africans.'’? African Americans were

described by white colonists as “barbarous, wild, [and]

savage,’ !8 and “a bloody people” “as neer beasts as may

be.”!9 Beginning in the 17th century, most American

colonies enacted “slave codes” that relied on these

racist beliefs to justify slavery and the separation of

the races.2° For instance, South Carolina’s slave code

stated that its creation was necessary to “restrain the

17 See, e.g., Winthrop D. Jordan, White Over Black: American

Attitudes Toward the Negro, 1550-1812, at 28 (1968).

18 A. Leon Higginbotham, Jr., In the Matter of Color: Race and

the American Legal Process: The Colonial Period 167 (1978)

(quoting 7 The Statutes At Large Of South Carolina 352 (Thomas

Cooper and David J. McCord, eds.) (1836-41)).

19 Richard Ligon, A True & Exact History of the Island of

Barbados 46-47 (1657).

20 Nat'l Park Serv., U.S. Dep’t of the Interior, NPS Ethnography:

African American Heritage & Ethnography: Laws that Bound,

https://www.nps.gov/ethnography/aah/aaheritage/histContextsk.

htm (last visited Sept. 17, 2017).

disorders, rapines and inhumanity|] to which [slaves]

are naturally prone and inclined .. .”2!

These laws, as well as the assumptions on which

they were built, were critical to American slavery.

“(T]he myth of blacks’ inherent, criminal propensity

(and, particularly, violent criminality) was key to

dehumanizing the enslaved as ‘beasts’ or chattel over

whom brutal control was both needed and justified.”2”

Furthermore, the codes “added both the enforcement

power and perceived legitimacy of the law to the

customary stigmatization of blacks as inherently

predisposed toward criminality.”?8

Although the slave codes principally used the

stereotype of African Americans as_ inherently

dangerous to justify their forced labor, some provisions

reflected that stereotype more directly. For example,

because African Americans were seen as inherently

dangerous, they were prohibited from meeting in

groups of five or more, except for a narrow set of

21 William W. Fisher III, /deology and Imagery in the Law of

Slavery, 68 Chi.-Kent. L. Rev. 1051, 1060-61 (1993); Paul

Finkelman, The Crime of Color, 67 Tul. L. Rev. 2063, 2099 (1993)

(“Being black in South Carolina was inherently criminal, and...

the public policy was always to keep as many blacks as possible

in servitude or in jail. South Carolina believed that the

alternatives were crime, slave rebellion, and ‘self-destruction.”’).

22 William M. Carter, Jr., Race, Rights and the Thirteenth

Amendment: Defining the Badges and Incidents of Slavery, 40

U.C. Davis L. Rev. 1311, 1373 (2007); see also William M. Carter,

Jr., A Thirteenth Amendment Framework for Combating Racial

Profiling, 39 Harv. C.R.-C.L. L. Rev. 17, 57 (2004) (“[R]ace-based

criminal suspicion, legally enforced through the Slave Codes, was

used to keep blacks in fear and in their ‘place’ during slavery. It

also had tise corollary effect of placing whites in constant fear of

blacks, thereby making them more willing to accept black

subordination in the name of white safety.”).

23 Carter, Race, Rights, supra note 22, at 1373

circumstances. 24 The slave codes—and_ the

stereotypes they legitimized and amplified——later

received the Supreme Court’s imprimatur in Scott v.

Sandford,?® when this Court cited them with approval

in support of its holding that African Americans,

whether enslaved or free, had no rights or privileges

because they were not considered “citizens” under the

United States Constitution.?®

Following the Civil War and the enactment of the

14th and 15th Amendments, efforts to codify anti-

Black discrimination adapted and took new forms.

Once again, the race-as-dangerousness stereotype was

central. In the immediate aftermath of the Civil War,

states passed “Black Codes,” which criminalized “such

behavior as vagrancy, brefa]ch of job contracts,

absence from work, the possession of firearms, [and|

insulting gestures or acts.”27 The goal of these laws

was to keep African Americans “as near to the

condition of slavery as possible, and as far from the

condition of the white man as [was] practicable.”28 The

24 Finkelman, supra note 21, at 2089.

26 60 U.S. (19 How.) 393 (1857).

26 Td.

27 Angela Y. Davis, Racialized Punishment and Prison Abolition,

in the Angela Y. Davis Reader 96, 100 (1998); Eric Foner, Give

Me Liberty!: An American History Vol. 2, 535 (2d ed. 2009)

(noting that the Black Codes “denied [African Americans] the

right to testify against whites, serve on juries or in state militias,

or to vote” and “declared that those who failed to sign yearly labor

contracts could be arrested and hired out to white landowners”);

United States v. Clary, 846 F. Supp. 768, 776 (E.D. Mo. 1994)

(noting that Black codes “limited the rights of [African

Americans] to own or rent property and permitted imprisonment

for breach of employment contracts”) (quotation and citation

omitted), rev'd on other grounds by 34 F.3d 709 (8th Cir. 1994).

28 Stephen Budiansky, The Bloody Shirt: Terror After

Appomattox 25 (Viking Books 2008).

Black Codes included two notable features that turned

on the stereotype that Black people are inherently

dangerous or criminal. First, those codes prescribed

differential punishment for crimes based on race.?9

This discrepancy was most pronounced in rape cases,

where the death penalty was often “reserved for black

men who raped white women.”8° Second, the codes

restricted gun ownership by African Americans, and

sometimes made it a crime for whites to even lend guns

to them.?!

In time, the Black Codes yielded to Jim Crow and

the segregation of the races. As it did in Scott, this

Court notoriously granted its stamp of approval to

state-sanctioned race discrimination in Plessy ov.

Ferguson, 163 U.S. 537 (1896). The stereotype of Black

criminality likewise continued to justify patently

unconstitutional discrimination. For example, some

“sundown towns’ had ordinances that literally

prohibited Black people from being present in the town

after a certain hour.®? Flagrant discrimination against

Black men accused of raping white women also

continued to be prevalent.*?

The stereotype that Black people are inherently

dangerous criminals was likewise the foundation for

29 Jeffrey J. Pokorak, Rape as a Badge of Slavery: The Legal

History of, and Remedies for, Prosecutorial Race-of-Victim

Charging Disparities, 7 Nev. L.J. 1, 15 (2006); Paul Butler, By

Any Means Necessary: Using Violence and Subversion to Change

Unjust Law, 50 UCLA L. Rev. 721, 751 (2003).

30 Butler, supra note 29.

31 Robert J. Cottrol and Raymond T. Diamond, The Second

Amendment: Toward an Afro-Americanist Reconsideration, 80

Geo. L.J. 309, 345 & n.178 (1991).

82 Jeannine Bell, The Fair Housing Act and Extralegal Terror, 41

Ind. L. Rev. 537, 541 (2008).

33 Td. at 22-34.

one of the most shocking episodes of our history: the

lynching of at least 4,075 Black men, women, and

children between 1877 and 1950.54 Government

officials repeatedly justified their failure to hold the

murderers accountable by claiming that the lynchings

were necessary to prevent Black men from raping

white women.

For example, in 1900, Senator Benjamin Tillman of

South Carolina justified murders of Black people in

South Carolina as follows: “We of the South have

never recognized the right of the negro to govern white

men, and we never will.” “We have never believed him

to be the equal of the white man, and we will not

submit to his gratifying his lust on our wives and

daughters without lynching him.”*5 In 1906, white

mobs killed an unknown number of African Americans

in Atlanta after unverified reports that four white

women had been raped by Black men. When asked

how to prevent these lynchings, the mayor of Atlanta

stated: “The only remedy is to remove the cause. As

long as the black brutes assault our white women, just

so long will they be unceremoniously dealt with.”°6 As

late as 1937, a Mississippi congressman opposed a

federal anti-lynching law on the ground that it was “a

bill to encourage rape” and would incite “the more

%4 Equal Justice Initiative, Lynching in America: Confronting the

Legacy of Racial Terror 5 (2d ed. 2015).

35 David Remnick, Charleston and the Age of Obama, The New

Yorker (June 19, 2015), https://www.newyorker.com/news/daily-

comment/charleston-and-the-age-of-obama.

36 Rebecca Burns, Rage in the Gate City: The Story of the 1906

Atlanta Race Riot 134 (Univ. of Georgia Press rev. ed. 2009).

vicious element of the Negro race to attack white

women.”37

Tragically, Congress never enacted an anti-lynching

law, as Southern Democrats repeatedly filibustered

bills that had passed the House in the 1920s and

1930s.*8 In apologizing for this failure in 2006, the

Senate admitted that “protection against lynching was

the minimum and most basic of Federal

responsibilities,” and that the Senate refused repeated

entreaties from civil rights groups to pass such

legislation.*9

Slavery and Jim Crow remain our singular national

shame because they stand in such stark contravention

to what America purports to be. For centuries, the

country that proclaimed that “all men were created

equal” punished people for who they were, not what

they did—and did so at an incalculable human cost.

Both houses of Congress have issued formal apologies

acknowledging “the fundamental injustice, cruelty,

brutality, and inhumanity of slavery and Jim Crow,”

and that “visceral racism against persons of African

descent” was central to the creation and perpetuation

of both systems.*°

This Court’s majority opinions in Dred Scott and

Plessy have faced a similar historical judgment.

They—along with Lochner v. New York, 198 U.S. 45

37 John Howard, Concentration Camps on the Home Front:

Japanese Americans in the House of Jim Crow 45 (Univ. of

Chicago Press 2008).

38 Kyle Grossman, The Untold Story of the State Filibuster: The

History and Potential of a Neglected Parliamentary Device, 88 S.

Cal. L. Rev. 413, 436 (2015).

39S. Res. 39, 109th Cong. (2005).

40 H. Res. 194, 111th Cong. (2009); S. Con. Res. 26, 111th Cong.

(2009).

(1905), and Korematsu v. United States, 323 U.S. 214

(1944)—have been selected “by the broader legal and

political culture” as “the American anticanon. Each

case embodies a set of legal propositions that all

legitimate constitutional decisions must be prepared

to refute. Together, they map out the land mines of

the American constitutional order ....”*! Tellingly,

the anticanon is populated in the main by cases where

this court acquiesced to legislative or executive actions

that targeted individuals for mistreatment simply

based on who they are.

B. The Chinese Exclusion Act

Drawn by the Gold Rush and the prospect of

employment on the _ transcontinental railroad,

thousands of Chinese immigrants moved to the west

coast in the 1850s and 1860s.42 At first, the new

immigrants were greeted with curiosity, admiration or

indifference, but “such views were not long lasting.”**

As more immigrants arrived from China, xenophobia

and virulent anti-Chinese racism spread along the

west coast.44 Once again, that racism frequently took

the form of the race-as-dangerousness stereotype. The

immigrants were cast “as invading ‘hordes” with no

individual identities and “inscribe[d with] qualities of

inhumanity, paradoxical mindlessness, savagery, and

41 Greene, supra note 16, at 380-81.

42H. Res. 201, 112th Cong. (2011); Natsu Taylor Saito, Alien and

Non-Alien Alike: Citizenship, “Foreignness,” and Racial

Hierarchy in American Law, 76 Or. L. Rev. 261, 299-300 (1997);

Commission on Wartime Relocation and Internment of Civilians,

VRH9-KAGV, Personal Justice Denied 29 (1984); Paul

Finkelman, Coping with a New “Yellow Peril”: Japanese

Immigration, The Gentleman’s Agreement, and the Coming of

World War II, 117 W. Va. L. Rev. 1409, 1422 (2015).

43 Finkelman, supra note 42, at 1422.

44 See id.; Oyama v. California, 332 U.S. 633 (1948).

brutality.” Other times, they were depicted as

“criminals and prostitutes.”*° These stereotypes were

broadly circulated by newspaper headlines and

advertissments, organized interest groups, and

various forms of media and entertainment.‘

“The press and political parties pandered to these

anti-Chinese attitudes,”4* and anti-Chinese racism

was soon reflected in “lethal vigilante violence” and a

raft of discriminatory legislation such as California’s

1862 “Act to protect Free White Labor against

competition with Chinese Coolie Labor, and to

discourage the Immigration of the Chinese into the

State of California.”*® Chinese immigrants were

subjected to a dizzying array of penalties and

prohibitions including, inter alia: a miner’s tax that

disproportionately affected Chinese immigrants, a

California Supreme Court decision prohibiting

Chinese people from testifying against white people in

courts of law, a constitutional amendment that

prohibited “non-whites” from owning land, an anti-

miscegenation law that prohibited marriage between

whites and “Mongolians,” and a law that prohibited

“aliens” from fishing in California state waters.°°

4 Keith Aoki, “Foreign-Ness” & Asian American Identities:

Yellowface, World War II Propaganda, and Bifurcated Racial

Stereotypes, 4 Asian Pac. Am. L.J. 1, 32 (1996).

46 Saito, supra note 42, at 299.

4? See Aoki, supra note 45, at 20.

48 Commission on Wartime Relocation and Internment of

Civilians, supra note 42, at 29.

43 Finkelman, supra note 42, at 1422; Oyama, 332 U.S. at 651-52;

Natsu Taylor Saito, Model Minority, Yellow Peril: Functions of

“Foreignness” in the Construction of Asian American Legal

Identity, 4 Asian L.J. 71, 79 (1997).

50 R. Scott Baxter, The Response of California’s Chinese

Populations to the Anti-Chinese Movement, 42 Historical

Archaeology 29, 30 (2008).

The statements of elected officials demonstrated the

ubiquity of the “yellow peril” stereotype. For instance,

Representative James A. Johnson of California

described Chinese people as an “immense, teeming,

swarming, seething hive of degraded humanity turned

loosed upon our country” which threatened to “drown

out and destroy our institutions and our race.”5!

Oregon Senator George H. Williams channeled the

same stereotype when he urged the United States not

to “deliver itself up to the political filth and moral

pollution that are flowing with a fearfully increasing

tide into our country from the shores of Asia.”52

Governor Stanford of California stated, “[t]he presence

among us of numbers of degraded and distinct people

must exercise a deleterious influence upon the

superior race... .”53

The anti-Chinese campaign culminated in

Congress’s enactment of the Chinese Exclusion Act in

1882, which prohibited the immigration of Chinese

laborers for a decade and precluded all Chinese

immigrants from obtaining naturalized citizenship.®4

The act “underscored the belief of some senators at the

time that ... the United States is under God a country

of Caucasians . . . to be governed by white men” and

that “the Chinese people were unfit to be naturalized,”

“revolting,” and “like parasites.”55 The Chinese

Exclusion Act was the country’s first immigration law

to restrict immigrants because of their race and

5! Aoki, supra note 45, at 32.

52 Td.

53 Roger Olmsted, The Chinese Must Go!, 50 Cal. Hist. Q.J. Cal.

Hist. Soc’y 285, 286 (1971).

54 Erika Lee, The Chinese Exclusion Example: Race, Immigration,

and American Gatekeeping, 1882-1924, 21 Journal of American

Ethnic History 36, 36 (2002).

55S. Res. 201, 112th Cong. (2011).

class,°® but not its last. Indeed, it launched six

“decades of Federal legislation deliberately targeting

the Chinese by race,” during which time many

members of Congress claimed “that all persons of

Chinese descent were . . . dangerous to the political

and social integrity of the United States.”

The pervasiveness of these stereotypes was

demonstrated yet again when the Scott Act of 1888—

an addendum to the Chinese Exclusion Act, which

forbade Chinese laborers then abroad from returning

to the United States—was challenged in this Court.*®

In Chae Chan Ping v. United States, 130 U.S. 581

(1889), the Court upheld Congress’s authority to set

immigration policy and, in so doing, described Chinese

immigrants as “vast hordes of . . . people crowding in

upon us,” “who will not assimilate with us,” and are

“dangerous to [the nation’s] peace and security.”59 The

Court also cited with approval the California

constitutional convention of 1878, which claimed that

the “immigration [of Chinese laborers] was in numbers

approaching the character of an Oriental invasion, and

was a menace to our civilization.’®° Chae Chan Ping

belongs in the anticanon, yet it remains the font of the

current rule that Congress can exclude groups as part

of its immigration policy.

Ultimately, Congress would recognize that the

Chinese Exclusion Act and its myriad progeny were an

affront to “the basic founding principles recognized in

the Declaration of Independence that all persons are

66 Lee, supra note 54, at 37.

57S. Res. 201, 112th Cong. (2011).

58 Chae Chan Ping v. United States, 130 U.S. 581 (1889).

59 Jd. at 606.

60 Td. at 595.

created equal” and apologized for its actions.6!' The

Senate admitted that its actions “fostered an

atmosphere of racial discrimination that deeply

prejudiced the civil rights of Chinese immigrants,”

“legitimized racial discrimination,” and “induced

trauma that persists within the Chinese

community.”62

C. The Japanese-American Internment

The history leading up to the Japanese-American

internment bears striking similarities to the events

that resulted in the Chinese Exclusion Act. Japanese

immigrants began to arrive in the United States in

significant numbers around the turn of the 20th

century. At the time, the Chinese Exclusion Act had

succeeded in significantly reducing the Chinese

population, and anti-Asian furor was on the wane.®

“But the arrival of the Japanese fanned anew the

flames of anti-Oriental prejudice,” and “{h]jistory then

began to repeat itself.”64 “The political and cultural

ideology that came to be used in the anti-Japanese

movement immediately connected the new threat to

the old Chinese one.”65 Newspaper headlines

broadcast that the “Japanese [Were] T: "1g the Place

of the Chinese,” and anti-Chinese ste: cotypes were

applied to Japanese immigrants.®* People entering

61 §. Res. 201, 112th Cong. (2011); H. Res. 683, 112th Cong.

(2012).

62 §. Res. 201, 112th Cong. (2011).

63 Oyama, 332 U.S. at 652.

64 Jd.

65 Lee, supra note 54, at 36-37.

66 See id.; see also Commission on Wartime Relocation and

Internment of Civilians, supra note 42, at 4 (“The anti-Japanese

agitation also fed on racial stereotypes and fears: the ‘yellow peril’

of an unknown Asian culture achieving substantial influence on

the United States from Japan became “the new yellow

peril.”6?7 They were depicted as “unassimilable” and

“unexploitable cheap labor[,|” like the stereotype of

Chinese immigrants before them, but were viewed as

more “aggressive and warlike” as well as “tricky and

unscrupulous.”68

Japanese immigrants became “a convenient target

for political demagogues” in “all the major parties,”

and “{pjolitical bullying was supported by organized

interest groups.”®? As a result, Japanese people were

subjected to a spate of discriminatory legislation in the

first four decades of the 20th century. Japanese

immigration was restricted in 1908 and banned in

1924; Japanese immigrants were barred from

obtaining American citizenship; and many western

states forbade Japanese persons from owning land.’

The intention of this legislation was clear: “The

‘Japanese menace’ was to be dealt with on a racial

basis.”7!

This history of political animosity and the creation

of stereotypes that portrayed Japanese people as

unassimilable and dangerous provided the backdrop

for the Japanese-American internment.’? On

the Pacific coast or of a Japanese population alleged to be growing

far faster than the white population.”).

6? Finkelman, supra note 42, at 1426.

68 Lee, supra note 54, at 36-37.

6% Commission on Wartime Relocation and Internment of

Civilians, supra note 42, at 4.

70 Jd.

71 Oyama, 332 U.S. at 656.

72 See Commission on Wartime Relocation and Internment of

Civilians, supra note 42, at 4, 28, 34, 37; Aoki, supra note 45, at

18 (“Likewise, it is hard to conceive of the mass internment of

Japanese American citizens in 1942 without a background of

February 19, 1942—approximately ten weeks after the

attack on Pearl Harbor—President Roosevelt issued

Executive Order 9066, which granted to the Secretary

of War the power to exclude all persons of Japanese

ancestry from designated military zones on the west

coast.73 The government justified the order as a

“military necessity,” though the necessity was founded

on racial stereotypes of Japanese-Americans as

dangerous.’4 General DeWitt, who proposed the

relocation, justified his recommendation as follows:

“The Japanese race is an enemy race and while many

second and third generation Japanese born on

American soil, possessed of United States citizenship,

have become ‘Americanized,’ the racial strains are

undiluted.”75 On another occasion, General Dewitt put

his view more succinctly: “A Jap is a Jap.”’® Based on

that justification, “the government banished 120,000

Japanese Americans—two-thirds of whom were

native-born U.S. citizens—from the West Coast and

imprisoned them in ten desolate camps without

charges, attorneys, indictment, or hearings.”’” They

would remain in “bleak barracks camps” “surrounded

by barbed wire and guarded by military police” until

December 1944.78

pervasive and seemingly ‘natural’ stereotypical tropes serving to

justify such internment.”).

73 Susan Kiyomi Serrano & Dale Minami, Korematsu v. United

States: A “Constant Caution” in a Time of Crisis, 10 Asian L.J. 37,

40 (2003).

74 Commission on Wartime Relocation and Internment of

Civilians, supra note 42, at 6.

Id. at 66

76 Id. at 222.

77 Serrano and Minami, supra note 72, at 40.

78 Commission on Wartime Relocation and Internment of

Civilians, supra note 42, at 2.

In stark contrast, although the United States was

also at war with Germany and Italy, immigrants from

those countries and their descendants were not treated

similarly.”? They were instead granted individualized

loyalty hearings to determine whether they, in fact,

constituted a danger to the republic.89 Only Japanese-

Americans were compelled en masse to report to

internment camps on the theory that they were

inherently dangerous and could not be trusted.®!

While 120,000 Japanese-American individuals were

so detained, this Court considered __ the

constitutionality of the exclusion order in Korematsu.

The Court accepted the argument advanced by the

Department of Justice and upheld the exclusion by

endorsing the race-as-dangerousness stereotype.®2

The Court stated: “To cast this case into outlines of

racial prejudice, without reference to the real military

dangers which were presented, merely confuses the

issue.”83 In other words, the Court reasoned that

sending over 100,000 Americans to internment camps

because of their ethnicity did not reflect racial

prejudice because Japanese Americans’ were

inherently dangerous. Justice Murphy recognized the

majority opinion for what it was: an endorsement of

unconstitutional racial discrimination by the

Executive Branch. He explained that “[s]uch exclusion

goes over ‘the very brink of constitutional power’ and

falls into the ugly abyss of racism.”®4

79 Id. at 3, 284-85.

80 Jd. at 284-85.

81 Jd. at 6, 56, 64, 66, 79, 80, 83, 222.

82 Korematsu, 323 U.S. at 223-24.

83 Td. at 223.

84 Id. at 233 (Murphy, J., dissenting).

Over time, Justice Murphy’s dissent has been

vindicated. In 1980, Congress established the

Commission on Wartime Relocation and Internment of

Civilians to investigate the Japanese-American

internment. Its final report, Personal Justice Denied,

concluded:

The promulgation of Executive Order

9066 was not justified by military

necessity, and the decisions which

followed from it—detention, ending

detention and ending exclusion—were

not driven by analysis of military

conditions. The broad historical causes

which shaped these decisions were race

prejudice, war hysteria and a failure of

political leadership. Widespread

ignorance of Japanese Americans

contributed to a policy conceived in haste

and executed in an atmosphere of fear

and anger at Japan. A grave injustice

was done to American citizens and

resident aliens of Japanese ancestry who,

without individual review or any

probative evidence against them, were

excluded, removed and detained by the

United States during World War I1.*°

Over time, Korematsu has assumed its rightful place

in the anticanon,®6 and the Japanese-American

internment has elicited apologies from President

Ronald Reagan, the House of Representatives, and the

85 Commission on Wartime Relocation and Internment of

Civilians, supra note 42, at 18.

86 Greene, supra note 16, at 380-83.

Senate.®’ Indeed, the Senate expressed that “policies

that discriminate against any individual based on the

actual or perceived race, ethnicity, national origin, or

religion of that individual would be. . . a repetition of

the mistakes of Executive Order 9066; and... contrary

to the values of the United States.”88§ Indeed, Fred

Korematsu—whose conviction for violating the

internment order was upheld by this Court in

Korematsu—had his conviction overturned by the

district court on a coram nobis application in 1983.%9

Il. THE EXECUTIVE ORDER AT ISSUE

PUNISHES INDIVIDUALS BASED ON

THEIR RELIGION, HARKENING BACK TO

SHAMEFUL PERIODS OF OUR NATION’S

HISTORY.

This Court’s recent decisions in Buck and Pena-

Rodriguez make clear that courts will no longer

tolerate the race-as-dangerous stereotyping that was

used to justify the lynching of African Americans, the

exclusion of Chinese immigrants, or the internment of

thousands of Japanese Americans during World War

Il. Yet, history is now repeating itself as this Court is

presented with another act of executive authority that

penalizes a distinct group of people based on “who they

are.”

Our Constitution confers broad authority on the

President in the realm of immigration. But that

authority has limits: the Executive cannot avoid

87 S. Res. 373, 114th Cong. (2015); H. Res. 442, 100th Cong.

(1987); The American Presidency Project, Ronald Reagan XL

President of the United States: 1981-1989 (Aug. 10, 1988),

http://www.presidency.ucsb.edu/ws/?pid=36240.

88 S. Res. 373, 114th Cong. (2015).

89 Korematsu v. United States, 584 F. Supp. 1406, 1420 (N.D. Cal.

1984).

scrutiny of actions motivated by racial or religious

animus by simply invoking the magic words “national

security.” The President’s authority must always be

exercised in a manner consistent with constitutional

guarantees against arbitrary and impermissible

discrimination.

Rather than relying on any legitimate concerns

about national security, Executive Order 13780 is

founded upon the pernicious stereotype that Muslims

are inherently dangerous—a_ stereotype that is

soundly refuted by the millions of Muslims living

peacefully and lawfully both in and outside the United

States. Although this stereotype targets a new and

distinct group, it bears a strong resemblance—in

terms of its usage, its practical effect, and the

constitutional issues it raises—to the stereotypes that

have been used to target other minorities in the past.

A. The Executive Order Is Based On, and

Perpetuates, the False and Pernicious

Stereotype that Muslims Are Inherently

Dangerous.

The record provides ample evidence that the

Executive Order was motivated by a false and

discriminatory belief that Muslims are inherently

predisposed to violence. Indeed, just as the “expert” in

Buck testified that Duane Buck was dangerous

because he is Black, President Trump has made clear

on multiple occasions that he believes Muslims are

dangerous because they are Muslim. And it is that

false stereotype that motivated the exclusion order at

issue here.

A review of the text from Executive Order 13769,

Protecting the Nation from Foreign Terrorist Entry into

the United States, makes its motivation clear. That

Order referenced the Muslim-as-dangerous stereotype

directly, citing “honor killings’—a frequently used

stereotype that Muslims engage in violence against

women—as its justification.

The evidence, however, is not limited to the text of

that first Order. “Islam hates us.” Those three

words, uttered by then-candidate Trump in March

2016, make clear that he does not consider Muslims to

be part of “us,” and also explain his view of Muslims as

being inherently dangerous to “us.” President Trump’s

spokeswoman, Katrina Pierson, noted shortly after he

made that statement: “We've allowed this propaganda

to spread all through the country that [Islam] is a

religion of peace.”9!

Further, on the rare occasions when self-proclaimed

Muslims have committed violent acts, President

Trump has suggested that they did so because they

were Muslim. For example, in March 2016, after a

violent attack in Brussels, then-candidate Trump

stated that Islam is the main source of global

terrorism.92. He continued: “I rankly, we’re having

problems with the Muslims.” In June 2016, after

mass shootings by two self-proclaimed Muslims in San

Bernardino, President Trump made clear that he

believed the shootings showed that Muslims are

predisposed toward violence. He called for a ban on

Muslim immigration to the United States and

commented that “many are saying that I [am] right to

%° Theodore Schleifer, Donald Trump: ‘I Think Islam Hates Us,”

CNN.com (Mar. 10, 2016), http://www.cnn.com/2016/03/09/

politics/donald-trump-islam-hates-us/index.html.

91 Td.

82 Mark Hensch & Jesse Byrnes, Trump: Frankly, We’re Having

Problems with the Muslims, lhe Hill (Mar. 22, 2016, 8:56 AM),

http://thehill.com/blogs/ballot-box/presidential-races/273857-

trump-frankly-were-having-problems-with-the-muslims.

93 Id.

do so.”"°4 When asked in December 2016 whether

recent violence in Germany affected his plans to ban

Muslims, he stated: “You know my plans. All along,

I’ve been proven to be right. 100% correct. What's

happening is disgraceful.” Similarly, President

Trump has claimed, falsely, that violent acts by

individual Muslims have widespread support among

other Muslims in the United States. At a September

2015 campaign rally, he propagated the dangerous

and unfounded falsehood that “thousands and

thousands” of Muslims living in New Jersey “cheered”

the attacks of September 11, 2011.9° That falsehood

has been repeatedly disproved.’

In sharp contrast, when individual white persons

have committed terrorist acts in the name of white

supremacy, President Trump has not suggested that

white people are inherently dangerous or that their

actions are supported by white people generally. He

provided only a belated, and general, statement

condemning violence after an Islamophobic white

supremacist killed two men on a train in Portland,

Oregon; said 1.2thing when a white man traveled from

% Associated Press, How Donald Trump’s Plan to Ban Muslims

Has Evolved, Fortune (Jun. 28, 2016), http://fortune.com/

2016/06/28/donald-trump-muslim-ban/.

% Katie Reilly, Donald Trump on Proposed Muslim Ban: “You

Know My Plans,” Time (Dec. 21, 2016),

http://time.com/46 11229/donald-trump-berlin-attack/.

% Brent Johnson, Trump: “Thousands” in Jersey City Cheered on

9/11, NJ.com (Nov. 23, 2015, 5:35 PM),

http://www.nj.com/politics/index.ssf/2015/11/trump_thousands_i

n_jersey_city_cheered_on_911.html.

97 Lauren Carroll, Fact-Checking Trump’s Claim that Thousands

in New Jersey Cheered When World Trade Center Tumbled,

Politifact (Nov. 22, 2015, 6:17 PM), http://www.politifact.com/

truth-o-meter/statements/2015/nov/22/donald-trump/fact-

checking-trumps-claim-thousands-new-jersey-ch/.

Baltimore to New York to kill a Black person; and

infamously blamed “both sides” after a white

supremacist killed an anti-racist protester in

Charlottesville, Virginia.** The President's selective

response to these terrorist acts is telling. When

terrorist acts have been committed by Muslim

individuals, the President has invoked the Muslim-as-

dangerous stereotype by claiming the perpetrator

committed the terrorist act because of his faith. By

contrast, the President has never suggested that

terrorist acts committed by white non-Muslims were

the result of any group-based characteristic.

Having embraced the false and discriminatory view

of Muslims, as a people, being prone to violent acts,

President Trump has repeatedly reiterated that they,

as well as their places of worship, should be subject to

additional scrutiny and surveillance by law

enforcement. In November 2015, President Trump

promised that, if elected, he would order the

surveillance of “certain mosques” and would have

“absolutely no choice” but to order the closure of some

of them. Then-candidate Trump additionally stated

that he would “certainly implement” a _ national

88 Dan Merica, Trump Says Both Sides To Blame Amid

Charlottesville Backlash, CNN.com (Aug. 16, 2017, updated 1:14

AM), http://www.cnn.com/2017/08/15/politics/trump-

charlottesville-delay/index.html; Bonnie Malkin & Martin

Pengelly, Portland Attack: Trump Says Victims Stood Up tu “Hate

and Intolerance,” The Guardian (May = 29, 2017),

https://www.theguardian.com/us-news/2017/may/29/portland-

attack-donald-trump-called-on-to-make-statement-about-double;

Camila Domonoske, White Supremacist Charged With Terrorism

Over Murder of Black Man, NPR.org (Mar. 28, 2017, 3:05 PM),

http://www.npr.org/sections/thetwo-way/2017/03/28/52 1805 165/

white-supremacist-charged-with-terrorism-over-murder-of-

black-man.

database of all Muslims in the United States.9° When

asked whether there was a difference between

requiring Muslims to register “and Jews having to

me,” rather than denouncing any registration program

with similarities to what happened to Jews during the

Holocaust. !0°

The culmination of President Trump’s claims

regarding Muslims’ purported threat to American

security was his demand for an outright ban on

Muslims entering the United States. In a December

2015 press release, he “call[ed] for a total and complete

shutdown of Muslims entering the United States until

our country’s representatives can figure out what is

going on.”!°! He left no doubt as to the basis for his

decision: “Until we are able to determine and

understand this problem and the dangerous threat it

poses, our country cannot be the victims of horrendous

attacks by people that believe only in Jihad, and have

no sense of reason or respect for human life.”!°2

*® Jeremy Diamond, Trump Would “Certainly Implement”

National Database for U.S. Muslims, CNN.com, (Nov. 20, 2015,

12:18 PM), _ http://www.cnn.com/2015/11/19/politics/donald-

trump-barack-obama-threat-to-country/.

100 Trip Gabriel, Donald Trump Says He'd “Absolutely” Require

Muslims to Register, N.Y. Times, Nov. 20, 2015, 1:31 AM),

https://www.nytimes.com/politics/first-draft/20 15/1 1/20/donald-

trump-says-hed-absolutely-require-muslims-to-register/.

101 Jeremy Diamond, Donald Trump: Ban all Muslim Travel to

U.S., CNN.com (Dec. 8, 2015, updated 4:18 AM),

http://www.cnn.com/2015/12/07/politics/donald-trump-muslim-

ban-immigration/index.html.

102 Jessica Estepa, ‘Preventing Muslim immigration’ statement

disappears from Trump’s campaign site, USA Today (May 9,

2017, 6:03 AM), https://www.usatoday.com/story/news/politics/

onpolitics/2017/05/08/preventing-muslim-immigration-

statement-disappears-donald-trump-campaign-site/101436780/.

These blatantly discriminatory statements

continued after Mr. Trump was sworn into office as

President. On social] media and in interviews, he has

this reason, the President’s modifications to the

specific parameters of the Executive Order must be

seen as a transparent effort to minimize judicial

scrutiny. There can be no doubt that the origin for—

and motivation behind—the ban remains the same: to

prevent entry of Muslim people as a group due to the

false and pernicious stereotype that they are more

likely to commit violence within the United States’

borders.

Although the Government now invokes national

security as a purported justification for the order (just

as it did in Korematsu), Respondents have

demonstrated that this justification is_ entirely

pretextual. Indeed, given the extensive screening of

immigrants already in place, it is not surprising that

the U.S. Department of Homeland Security (“DHS”)

explicitly rejected the need for the Executive Order. In

a memo that DHS prepared for the Trump

Administration, entitled “Citizenship Likely an

Unreliable Indicator of Terrorist Threat to the United

States,” it concluded that “country of citizenship is

unlikely to be a reliable indicator of potential terrorist

1083 Donald J. Trump (@realDonaldTrump), Twitter (Sept. 15,

2017, 3:54 AM), https://twitter.com/realDonaldTrump/status/

908645 126146265090.

104 Amy B. Wang, Trump Asked for a “Muslim Ban,” Giuliani

Savs—and Ordered a Commission To Do It “Legally,” Wash. Post

(Jan. 29, 2017), https:/Nwww.washingtonpost.com/news/the-

fix/wp/2017/01/29/trump-asked-for-a-muslim-ban-giuliani-says-

and-ordered-a-commission-to-do-it-legally/.

activity.”!°5 The absence of a legitimate justification

necessitating the broad terms of the Executive Order,

and the Order’s ineffectiveness in achieving its stated

national security goals, confirms that the Order’s true

purpose is to impose an immigration ban on Muslims

based on an entrenched, yet patently false, stereotype

that they are inherently dangerous.

B. The Order, if Approved, Would

Contribute to Increasing Animosity and

Violence Towards Innocent Muslim-

Americans.

This Court must make clear, in unequivocal terms,

that religious discrimination emanating from a false

and pernicious stereotype of Muslims as a group will

not be tolerated under the United States Constitution.

This is especially crucial when, as here, that

discrimination comes from the Executive Branch of

our federal government. Allowing the Executive Order

to have this Court’s constitutional stamp of approval

would legitimize those stereotypes and lead to the

same broader harms to Muslims that similar

stereotypes have caused other minorities in the past.

State and local entities have already attempted to

enact legislation targeting Muslims. In October 2010,

Oklahoma approved a constitutional amendment

responding to the unjustified concern that “sharia” —

Islamic jurisprudence—poses a threat to the American

105 Memorandum from U.S. Dep’t of Homeland Sec., Citizenship

Likely an Unreliable Indicator of Terrorist Threat in the United

States at 1, as reported by Rick Jervis, DHS Memo Contradicts

Threats Cited by Trump’s Travel Ban, U.S.A. Today (Feb. 25,

2017, 3:36 PM), http://www.usatoday.com/story/news/2017/02/24/

dhs-memo-contradict-travel-ban-trump/98374184/.

judicial system! The author of the bill,

Representative Rex Duncan, proclaimed that “sharia”

was a “cancer” and that his bill would “act as a pre-

emptive strike against sharia law” coming to

Oklahoma.!°? According to Representative Duncan,

Muslims come to America to take away “liberties and

freedom from our children .... This is a war for the

survival of America. It’s a cultural war.”!° At least

seven other’ states have considered _ similar

legislation. !%%

There has been a similarly disturbing increase in

opposition to the opening of mosques, often based on

the unsubstantiated belief that they serve as a

gathering place for violent individuals. For example,

in 2010, residents of Murfreesboro, Tennessee sued

Rutherford County for issuing permits allowing for the

expansion of a local mosque.!!° The litigants opposed

the construction of the mosque on the grounds that

Islamic law supposedly “advocates sexual abuse of

children, beating and physical abuse of women, death

edicts, honor killings, killing of homosexuals, outright

lies to Kafirs, Constitutional free zones, and total

—

06 Ryan J. Keilly, Oklahoma Anti-Sharia Constitutional

Amendments Siruck Down by Federal Judge, Huffington Post

(Aug. 16, 2013), http://www.huffingtonpost.com/2013/08/15/

oklahoma-sharia-constitution_n_3764313.html.

107 Td.

108 James C. McKinley, Jr., Oklahoma Surprise: Jslam as an

Election Issue, N.Y. Times, Nov. 15, 2010, at A12 (quoting State

Representative Rex Duncan).

109 Donna Leinwand, More States Enter Debate on Sharia Law,

USA Today (Dec. 9, 2010, 10:29 AM), http://usatoday30.

usatoday.coin/news/nation/2010-12-09-shariabanO9 STN htm.

110 Sahar F. Aziz, From the Oppressed to the Terrorist: Muslim-

American Women in the Crosshairs of Intersectionality, 9

Hastings Race & Puverty L.J. 191, 210 (2012).

world dominion.”!!! A federal court ultimately ordered

Rutherford County to grant the Islamic Center's

request for a permit, nullifying a state court decision

in favor of the plaintiffs.'12 More recently, the city

council in Bayonne, New Jersey rejected a request for

a permit to build a mosque.!!5 One of the opponents

said Muslims “are trying to take over the block and the

neighborhood” and referenced the 1993 World Trade

Center bombing.!!4

Existing mosques in New York, New Jersey,

Tennessee, Wisconsin, Connecticut, Kentucky,

California, and Oklahoma have been subject to similar

threats and accusations.!!5 On April 10, 2011, the

Islamic Center of Springfield, Missouri received a

threatening letter stating that Muslims “stain the

earth” and vowing that “Islam will not survive.”!!6 The

letter ended with a drawing of a ram’s head with

“Death to Islam!” printed below it.!!7 Earher that

year, the same mosque was vandalized with graffiti

stating, “You bash us in Pakistan, we bash you

here.”!'8 The following week, the Islamic Center in

Cartersville, Georgia had its doors and windows

shattered with rocks, one of which was painted with

the words “Muslim murderers.”!!9

111 Id.

112 United States v. Rutherford County, No. 12 Civ. 0737, 2012 WL

2930076 (M.D. Tenn. July 18, 2012).

13 Sharon Otterman, Mosque Is Blocked in New Jersey, but

Dispute Is Far from Over, N.Y. Times (Mar. 10, 2017),

https://www.nytimes.com/2017/03/10/nyregion/mosque-bayonne-

new-jersey. html.

114 Td.

115 Aziz, supra note 110, at 210-11.

116 Jd, at 211.

117 Jd.

118 Jd.

119 Jd

The notion that Muslims are inherently violent is a

myth. But, the violence against Muslims resulting

from that stereotype is all too real.

CONCLUSION

For the foregoing reasons, the Court should affirm

the decisions of the Fourth and Ninth Circuits.

SHERRILYN A. [FILL

Director-Counsel

JANAI S. NELSON

SAMUEL SP!ITAL

JIN HEE LEE

NAACP LEGAL DEFENSE &

EDUCATIONAL FUND, INC.

40 Rector Street, 5th Floor

New York, NY 10006

(212) 965-2200

September 18, 2017

Respectfully Submitted,

AJMEL QUERESHI

Counsel of Record

CHRISTOPHER KEMMITT

NAACP LEGAL DEFENSE &

EDUCATIONAL FUND, INC.

14441 Street NW

Washington, DC 20005

(202) 682-1300

aquereshi@naacpldf.org

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.