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

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BRIEFS

Nos. 16-1436 & 16-1540

Jn the Supreme Court of the Anited States

DONALD J. TRUMP,

PRESIDENT OF THE UNITED STATES, et al.,

Petitioners,

Vv.

INTERNATIONAL REFUGEE ASSISTANCE PROJECT, et al.,

Respondents.

DONALD J. TRUMP,

PRESIDENT OF THE UNITED STATES et al.,

Petitioners,

Vv.

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 161 TECHNOLOGY COMPANIES

AS AMICI CURIAE IN SUPPORT OF

RESPONDENTS

ANDREW J. PINCUS

Counsel of Record

PAUL W. HUGHES

JOHN T. LEWIS

Mayer Brown LLP

1999 K Street, NW

Washington, DC 20006

(202) 263-3000

apincus@mayerbrown.com

Counsel for Amici Curiae

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TABLE OF CONTENTS

Page

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Be GE GD LANNE COTTE occcccisccccccecceseccsocccesssc0000. 1

Introduction and Summary of Argument................... 2

PA RSE SRE BA mR SESE ee Oe OE 6

I. Immigration Drives American Innovation

pS RE IER ne 6

Il. The Order Harms The Competitiveness Of

on deabuinisltinbbaenacnes 11

ee I inca srnses sonnscsnansescnevcenssas 16

A. Section 1182 does not empower the

President to engage in wholesale,

unilateral revision of the Nation’s

Ca chneisecanenal 16

1. The Order does not contain a finding

sufficient to justify exercise of the

President’s authority under Section

SFE AEROS Se Soe Cae 17

2. The Order is invalid because of its

broad scope and unlimited duration......... 22

3. The Order conflicts with other

provisions of the INA. ...................cceeeeeeeees 23

4. The Order is procedurally

aie 25

B. The Order violates Section 1152’s non-

discrimination requirement. ....................2..... 27

C. This Court can, and must, adjudicate

the scope of the President’s authority............30

ea ER eS

Appendix A — List of Amici Curiae...............0....066-. la

TABLE OF AUTHORITIES

Cases

Abourezk v. Reagan,

785 F.2d 1043 (D.C. Cir. 1986)..........0..00000.... 22,

Am. Overseas Airlines, Inc. v.

Civil Aeronautics Bd.,

Be bl Ti bets 30 | eerie

Amoco Oil Co. v. Envtl. Prot. Agency,

ge yf ERE nee

Bowen v. Mich. Acad. of Family Physicians,

RR ee ee ee pee EE

Carlson v. Landon,

I I no cachasnpeanabeaneuetes

Crawford Fitting Co. v. J. T. Gibbons, Inc.,

AINE ed Eee Rae re Ee

Dalton v. Specter,

Be es A icc ccncessvcnsnantuascoseccosenvens 26,

Dames & Moore v. Regan,

gy iicicantnssnsnansonceccewisussoninocass

Ethyl Corp. v. Envtl. Prot. Agency,

Be Bae Bh Gees GN, BTID ce ckncccccoccesccccsenccosscccesss

Foley v. Connelie,

Franklin v. Massachusetts,

ET ee a

Heckler v. Chaney,

8 8 Ae een ane ee

TABLE OF AUTHORITIES—continued

Page(s)

Indus. Union Dep’t, AFL-CIO v.

Am. Petroleum Inst.,

I a 19

Kent v. Dulles,

of 6 1) 0) eens 18, 20

Kerry v. Din,

es ls ee CR osveccovncctecssococceves PDT 23

Legal Assistance fer Vietnamese Asylum

Seekers v. Dep't of State,

Fe es Ce BR eens ccncccccccccccsccnccescens 27

Meina Xie v. Kerry,

780 F.3d 405 (D.C. Cir. 2015)..................:eseeeeecees 28

Mobil Oil Expl. & Producing Se. Inc. v.

United Distribution Companies,

a csesiibausunduumendnn 19

Mojica v. Reno,

970 F. Supp. 130 (E.D.N.Y. 1997) ....................... 10

Motor Vehicle Mfrs. Assn. v. State Farm

Mut. Auto. Ins. Co.,

I i cmnbnnnuniaed 26

Nuclear Info. Res. Serv. v. Nuclear

Regulatory Comm'n,

969 F.2d 1169 (D.C. Cir. 1992) ........... cece 19

Olsen v. Albright,

990 F. Supp. 31 (D.D.C. 1997)....................... 29, 30

Patel v. Reno,

ae ee I I I, UD cvctcincteccneddcddccosicccniens 31

TABLE OF AUTHORITIES—continued

Page(s)

Saavedra Bruno v. Albright,

197 F.3d 1153 (D.C. Cir. 1999)..............00000000000... 31

Sale v. Haitian Ctrs. Council, Inc.,

509 U.S. 155 (1993)................... aanabialenias amass

Texas v. United States,

809 F.3d 134 (6th. Cir. 2016)............................... 27

United Distribution Companies v. F.E.R.C.,

88 F.3d 1105 (D.C. Cir. 1996) ......00....0.. cee. 19

United States ex el. Knauff v. Shaughnessy,

sn cobusenaunibcieueiveuwes 30

United States v. Mead Corp.,

Se a es oeunssenacceeeenscosin 26

United States v. Witkovich,

Se I I ons cnvacucevccenckcenscoenbascses 18, 19

Vayeghan v. Kelly,

2017 WL 396531 (C.D. Cal. Jan. 29, 2017)......... 28

Whitman v. Am. Trucking Ass’ns,

kt 6 ea 18

Youngstown Sheet & Tube Co. v. Sawyer,

Sy MI ccncciviincntnscccensdeussnconuvecesoons 30

Zemel v. Rusk,

I a cspammnavnseoe 18, 20

Statutes, Rules and Regulations

5 U.S.C.

§ 553(b)....... BSA A AN Neds OD EERO 28

TROTTER ES en A US 26, 28

TABLE OF AUTHORITIES—continued

Page(s)

8 U.S.C.

Bg |! siwolcuetlmblasicaintauedael passim

I yi s.cnnnesnncspieiscevonedepuenbansmeciemnenealnnn 28

Tit tna dndien waiespopaiegsiemtietanaa ni 22, 24

§ 1182(a)(3)(B)..........-. Siete cage 23

Se IIIIIEED «.: ivuiccssccscvckssvcnensneunsuntaieeamaelll 23

iF i ic csscircribdpphrauiseaiaionndinninabdcaaies clemoeeaeaamainae passim

Et SII vcs soceramopesaieseutinbniteaciisecouaaiconaantiania 16, 17, 26

82 Fed. Reg.

PIT. «..c-csonasutensnendesslinenscidosiuauncuousheiae aan 4

IT innsckishnsiidansicudbtdedaeniadias couse aan passim

Pub. L. 114-113, div. O, tit. II, § 203,

129 Stat. 2242 (codified at 8 U.S.C. §

DIED ciininsislcnneseiccnseenescseeiticanuiniecasmsiiaaeae 24

Miscellaneous

Americas Soc’y & Council of the Americas,

Bringing Vitality to Main Street (2015) ................ 7

Stuart Anderson, Jmmigrants Flooding Ameri-

ca with Nobel Prizes, Forbes (Oct. 16, 2016)......... 8

Stuart Anderson, Nat’l Found. for Am. Pol’y,

Immigrants and Billion Dollar Startups

iste vecnictescansspuspesaisianaineteiad aeaanaenas 7

Stuart Anderson, Nat'l Found. for Am. Pol’y,

The Contributions of the Children of Immi-

grants to Science in America (Mar. 2017)............. 9

TABLE OF AUTHORITIES—continued

Page(s)

Maksim Belenkiy & David Riker, Face-to-Face

Exports: The Role of Business Travel in

Trade Promotion,

51 J. Travel Ree. 632 (2012) ..............................

BGRS, Breakthrough to the Future of Global

Talent Mobility (2016) ....................0.0006 ee

Muzaffar Chishti & Claire Bergeron,

Migration Pol’y Inst., Post-9/11 Policies

Dramatically Alter the U.S. Immigration

I GL, TEE I. ccneccnvvnsccconccsocsooooes

Jeff Daniels, Trump Immigration Ban Puts

$20 Billion in Boeing Aircraft Sales to Iran,

Traq at Risk, CNBC (Jan. 30, 2017) «0.0.0.0...

Jordan Fabian, DHS Analysis Found No

Evidence of Extra Threat Posed by Travel-

Ban Nations: Report, The Hill (Feb. 24, 2017) ...

Robert W. Fairlie et al., Ewing Marion

Kauffman Found., The 2016 Kauffman

Index: Startup Activity (Aug. 2016)..................

Seth Fiegerman, Former Google Exec Calls

Trump Travel Ban an ‘Enormous Problem,’

CNN Tech (Jan. 30, 2017) .............0cccccccceeeeeeeeees

Gallup, Majority of Americans Identify

Themselves as Third Generation Americans

ES ee

Michael Greenstone & Adam Looney, The

Hamilton Project, Ten Economic Facts

About Immigration (Sept. 2010)...................066.

TABLE OF AUTHORITIES—continued

Page(s)

Elizabeth Grieco, U.S. Census Bureau, The

Foreign-Born Population in the United

AT MRR FEE AE A oe 2

Harv. Bus. Rev., Strategic Global Mobility

tA MTERE aeG A IC Nhe 13

Nune Hovhannisyan & Wolfgang Keller,

International Business Travel: An Engine of

Innovation?, 20 J. Econ. Growth 75 (2015)......... 14

Brady Huggett, US Immigration Order Strikes

Against Biotech, Trade Secrets

ICT a SPER er ere 13

H.R. Rep. No. 89-7465 (1965)...............ccccccceseeeseees 27, 28

Immigration Laws and Iranian Students,

hs ls ii tniciciincnncndntensscossneenneens 19

International Migration Outlook 2017, Org.

Econ. Co-operation & Dev. 46 (41st ed. 2017) ....15

John F. Kennedy, A Nation of

I cepesemebenibeinbnanosos » =

Lyndon B. Johnson, Remarks at the Signing of

the Immigration Bill (Oct. 3, 1965)..................... 10

Letter from Bradford L. Smith, President and

Chief Legal Officer, Microsoft, to John F.

Kelly, Sec’y of Homeland Sec., and Rex W.

Tillerson, Sec’y of State (Feb. 2, 2017)................ 11

Abraham Lincoln, Fourth Annual Message

SENG Til TIE ihiccsccdutimiapindetiincsenieninlabiédnidiatbibanniombingess 3

vill

TABLE OF AUTHORITIES—continued

Page(s)

Kate M. Manuel, Cong. Research Serv.,

Executive Authority to Exclude Aliens: In

po SS, SR ee 22

Laura Meckler, Trump Administration

Considers Far-Reaching Steps for ‘Extreme

Vetting,’ Wall St. J. (Apr. 4, 2017)....................

New Am. Econ., Reason for Reform:

Entrepreneurship (Oct. 2016) ..............0.....600004.

Pia Orrenius, George W. Bush Inst., Benefits

of Immigration Outweigh the Costs, The

lc cepgsiniueiainnddatnasins

Tara Palmeri & Bryan Bender, U.S. Diplomats

Warning GE’s Major Deals in Iraq at Risk

over Travel Ban, Politico (Feb. 1, 2017)...........

Pew Research Center, Second-Generation

Americans: A Portrait of the Adult Children

of Immigrants (Feb. 7, 2013) .........................6.

P’ship for a New Am. Econ., Open For Busi-

ness: How Immigrants Are Driving Small

Business Creation in the United States,

ed teithieennaisteeiniiiiininamaiidinidicneiiibasemmbaeiiic

P’ship for a New Am. Econ., The “New Ameri-

ge ESR Se a

Gopal Ratnam, Trump’s Travel Order Opens

Door to Targeting More Countries, Roll Call

a a acouaipeabineonenate

TABLE OF AUTHORITIES—continued

Page(s)

Remarks at the Opening Ceremonies of the

Statute of Liberty Centennial Celebration

samuel 2

(July 3, 1986).......... ATT sae pie oe

Jonathan Shieber, Apple CEO Tim Cook Sent

an Email to Employees about the

Immigration Ban, TechCrunch (Jan. 28,

FS EST RAE ae rnnn

Rex W. Tillerson, Sec’y of State (Feb. 2, 2017).....

U.S. Chamber of Commerce, /mmigration:

Myths and Facts (2016) ............0....cccccccceeceeesees

U.S. Dep’t of State, Office of the Historian, The

Immigration Act of 1924 (The Johnson-

Vivek Wadhwa et al., America’s New

Immigrant Entrepreneurs (Jan. 4, 2007) ........

5 Woodrow Wilson, A History of the American

RR EE IS a NMRA Rs De EDO i:

INTEREST OF THE AMICI CURIAE

Amici curiae are 161 of the Nation’s leading

technology companies. Amici produce iconic goods

and services that touch nearly every aspect of our

lives—from business and finance to recreation and

communication. Together, amici employ millions of

Americans and contribute significantly to our coun-

try’s economy. A complete list of amici is set forth in

Appendix A.!

Amici are gravely concerned about the adverse

effects of the Executive Order challenged in this

case. As amici explain below, the Order makes it

more difficult for them to hire the very best talent, to

send their employees abroad, to grow their opera-

tions, and, fundamentally, to compete in the global

economy. Amici believe that the Order will therefore

stifle the Nation’s economic growth and global com-

petitiveness. Amici raised these concerns before the

courts below.

Many of amici’s own stories reflect the benefits

that immigrants bring to the Nation. Many of amici

were founded by immigrants, virtually all employ

immigrants, and every amicus recognizes that the

American economy, and the Nation as a whole,

thrives when it welcomes immigrants with properly

calibrated policies.

! Pursuant to Rule 37.6, amici affirm that no counsel for a par-

ty authored this brief in whole or in part and that no person

other than amici or their counse) made a monetary contribution

to its preparation or submission. The parties’ consents to the fil-

ing of amicus curiae briefs are on file with the Clerk.

INTRODUCTION AND

SUMMARY OF ARGUMENT

America proudly describes itself as “a nation of

immigrants.” Foley v. Connelie, 435 U.S. 291, 294

(1978). We are: in 1910, 14.7% of the population was

foreign born; in 2010, 12.9%.? A quarter of us have at

least one parent who was born outside the country.

Close to half of us have a grandparent born some-

where else.4 Nearly all of us trace our lineage to an-

other country.

President Reagan, rededicating the Statue of

Liberty in 1986, said “which of us does not think of

** * orandfathers and grandmothers, from so many

places around the globe, for whom this statue was

the first glimpse of America? * * * [A] special kind of

people from every corner of the world, who had a

special love for freedom and a special courage that

enabled them to leave their own land, leave their

friends and their countrymen, and come to this new

and strange land to build a New World of peace and

freedom and hope.” Remarks at the Opening Cere-

monies of the Statute of Liberty Centennial Celebra-

tion (July 3, 1986), https://goo.gl/lqwq5N.

The “contributions of immigrants,” then-Senator

John F. Kennedy explained, “can be seen in every

aspect of our national life.” John F. Kennedy, A Na-

tion of Immigrants 4 (1958). “We see it in religion, in

2 Elizabeth Grieco, U.S. Census Bureau, The Foreign-Born

Population in the United States 3 (2012), https://goo.gl/PZ3pnE.

3 Pew Research Center, Second-Generation Americans; A Por-

trait of the Adult Children of Immigrants 8 (Feb. 7, 2013),

https://goo.g/SRaXxc.

4 Gallup, Majority of Americans Identify Themselves as Third

Generation Americans (July 10, 2001), https://goo.gl/o7PRxv.

politics, in business, in the arts, in education, even in

athletics and in entertainment.” Jd. There is “no part

of our nation,” he recognized, “that has not been

touched by our immigrant background.” Jd.

President Lincoln, after signing into law the Act

to Encourage Immigration, explained that immigra-

tion is “one of the principal replenishing streams

which are appointed by Providence” to better the Na-

tion—and therefore requires “effective national pro-

tection.” Abraham Lincoln, Fourth Annual Message

(Dec. 6, 1864), https://goo.gl/znf3iC.

Indeed, immigrants make many of the Nation’s

greatest discoveries and create some of the country’s

most innovative and iconic companies. Immigrants

are among our leading entrepreneurs, politicians,

artists, and philanthropists. The experience and en-

ergy of people who come to our country to seek a bet-

ter life for themselves and their children—to pursue

the “American Dream”—are woven throughout the

social, political, and economic fabric of the Nation.

For decades, stable U.S. immigration policy has

embodied the principles that we are a people de-

scended from immigrants, that we welcome new im-

migrants, and that we provide a home for refugees

seeking protection. At the same time, America has

long recognized the importance of protecting our-

selves against those who would do us harm. But it

has done so while maintaining our fundamental

commitment to welcoming immigrants—through in-

creased background checks and other controls on

people seeking to enter our country.5

5 “In the decade since 9/11,” immigration policy has incorpo-

rated, among other things, “major new border security and law

enforcement initiatives, heightened visa controls and screening

On January 27, 2017, “[o]Jne week after inaugu-

ration and without interagency review” (J.A. 1166),

President Donald J. Trump signed Executive Order

13,769. See 82 Fed. Reg. 8977 (2017) (“First Execu-

tive Order’). That Order altered immigration policy

in significant respects: it barred nationals of seven

countries—Syria, Libya, Iran, Iraq, Somalia, Yemen,

and Sudan—from entering the United States for at

least 90 days (id. § 3(c)), with the possibility of ex-

pansion to additional countries (id. § 3(e)-(f), and it

gave the Secretaries of State and Homeland Security

discretion to issue visas to affected nationals “on a

case-by-case basis” (id. § 3(g)).

The First Executive Order “took immediate ef-

fect, causing great uncertainty as to the scope of the

order.” J.A. 1167. Even “federal officials themselves

were unsure as to the scope of EO1l, which caused

mass confusion at airports and other points of entry.”

Ibid. After “[i]ndividuals, organizations, and states

across the nation challenged the First Executive Or-

der in federal court” (id. 174), it was enjoined on the

basis of a number of constitutional and statutory de-

fects.

On March 6, 2017, President Trump rescinded

the First Executive Order and issued Executive Or-

der 13,780. See 82 Fed. Reg. 13209 (2017) (“the Or-

der’). The new Order bans nationals from six coun-

tries for 90 days beginning on March 16—the same

of international travelers and would-be immigrants, the collec-

tion and storage of information in vast new interoperable data-

bases used by law enforcement and intelligence agencies, and

the use of state and local law enforcement as force multipliers

in immigration enforcement.” Muzaffar Chishti & Claire Ber-

geron, Migration Pol’y Inst., Post-9/11 Policies Dramatically Al-

ter the U.S. Immigration Landscape (Sept. 8, 2011),

https://goo.gl/6rdagt.

countries as the first order, omitting Iraq, but sub-

jecting nationals from Iraq to especially intensive

scrutiny. Order §§ 2(c), 4. The Order’s ban may be

extended beyond 90 days and expanded to new coun-

tries deemed, based on unspecified criteria, not to

provide sufficient information to the United States.

Id. § 2(e)-(). Any waiver from the ban remains sub-

ject to the largely unconstrained discretion of U.S.

Customs and Border Protection. Id. § 3(c).

The Order effects a significant shift in the rules

governing entry into the United States, and is inflict-

ing substantial harm on American companies, their

employees, and the entire economy. It hinders the

ability of American companies to attract talented

employees; increases costs imposed on _ business;

makes it more difficult for American firms to com-

pete in the international marketplace; and gives

global enterprises a new, significant incentive to

build operations—and hire new employees—outside

the United States.

The Order also exceeds the President’s authority

under the Nation’s immigration laws. To bar a class

of aliens from the United States, the President must

reasonably determine that their entry would be det-

rimental to the Nation, and then craft an order that

reasonably addresses any threat that those individu-

als might pose. The Order here falls far short of

these requirements— it neither explains why the tar-

geted individuals’ entry would be detrimental to the

United States nor imposes reasonable restrictions.

For example, Congress has enacted detailed

standards to prevent entry of terrorists into our

country. The Order, “with vague words of national

security” (J.A. 171), overrides those standards with-

out any explanation, let alone sufficient justification.

Nor did the executive branch engage in the notice-

and-comment procedures necessary before imposing

sweeping, long-term changes on the Nation’s immi-

gration system.

Moreover, Congress in 1965 prohibited discrimi-

nation in immigration decisions on the basis of na-

tional origin precisely so that the Nation would not

shut its doors to immigrants based on where they

come from—but the Order does just that. It would

turn the clock back and restore the national-origins

system that Congress expressly abolished.

The Court accordingly should affirm the judg-

ments below barring enforcement of the Order.

ARGUMENT

Il. Immigration Drives American Innovation

And Economic Growth.

The tremendous impact of immigrants on Ameri-

ca—and on American business and the entire Ameri-

can economy—is not happenstance. People who

choose to leave everything that is familiar and jour-

ney to an unknown land to make a new life neces-

sarily are endowed with drive, creativity, determina-

tion—and just plain guts. The energy they bring to

America is a key reason why the American economy

has been the greatest engine of prosperity and inno-

vation in history.

A. Immigrants are leading entrepreneurs. “The

American economy stands apart because, more than

any other place on earth, talented people from

around the globe want to come here to start their

businesses.” P’ship for a New Am. Econ., The “New

American” Fortune 500, at 5 (2011), http://goo.gl/-

ycOh7u. Indeed, “[i]mmigrants continue to be a lot

more likely than the native-born to become entre-

preneurs.” Robert W. Fairlie et al., Ewing Marion

Kauffman Found., The 2016 Kauffman Index:

Startup Activity 7 (Aug. 2016),

https://goo.g/6Wr5Mc.

Some of these businesses are large. “Immigrants

have started more than half (44 of 87) of America’s

startup companies valued at $1 billion dollars”’—so-

called “unicorns’—“and are key members of man-

agement and product development teams in over 70

percent (62 of 87) of these companies.” Stuart Ander-

son, Nat’l Found. for Am. Pol’y, Immigrants and Bil-

lion Dollar Startups 1 (Mar. 2016),

https://goo.g/Mk7iJM (emphasis added). Immigrants

or their children founded more than 200 of the com-

panies on the Fortune 500 list, including Apple,

Kraft, Ford, General Electric. AT&T, Google,

McDonald’s, Boeing, and Disney. P’ship for a New

Am. Econ., supra, at 1-2. Collectively, these compa-

nies generate annual revenue of $4.2 trillion and

employ millions of Americans. Jd. at 2.

Many of these businesses are small. “While ac-

counting for 16 percent of the labor force nationally

and 18 percent of business owners, immigrants make

up 28 percent of Main Street business owners.”

Americas Soc’y & Council of the Americas, Bringing

Vitality to Main Street 2 (2015),

https://goo.gl/i9NWc9. These are “the shops and ser-

vices that are the backbone of neighborhoods around

the country.” Jd. In 2011, immigrants opened 28% of

all new businesses in the United States. See P’ship

for a New Am. Econ., Open For Business: How Immi-

grants Are Driving Small Business Creation in the

United States 3, Aug. 2012, https://goo.gl/zqwpVQ.

Immigrant entrepreneurs come from all parts of

the world. In 2014, “19.1 percent of immigrants from

the Middle East and North Africa were entrepre-

neurs.” New Am. Econ., Reason for Reform: Entre-

preneurship 2 (Oct. 2016), https://goo.g/QRd8Vb.

Immigrants also fuel the growth of the economy

as a whole. “When immigrants enter the labor force,

they increase the productive capacity of the economy

and raise GDP. Their incomes rise, but so do those of

natives.” Pia Orrenius, George W. Bush Inst., Bene-

fits of Immigration Outweigh the Costs, The Catalyst

(2016), https://goo.gl/qC9uOc. Immigrants thus cre-

ate new jobs for U.S. citizens “through the businesses

they establish * * * [and] play an important role in

job creation in both small and large businesses.” U.S.

Chamber of Commerce, Jmmigration: Myths and

Facts 3 (2016), https://goo.gl/NizPEQ.

Immigrants are also innovators. Since 2000,

more than one-third of all American Nobel prize

winners in Chemistry, Medicine, and Physics have

been immigrants. See Stuart Anderson, Jmmigrants

Flooding America with Nobel Prizes, Forbes (Oct. 16,

2016), http://goo.gl/RILwXU. Among individuals with

advanced educational degrees, immigrants are near-

ly three times more likely to file patents than U.S.-

born citizens. Michael Greenstone & Adam Looney,

The Hamilton Project, Ten Economic Facts About

Immigration 11 (Sept. 2010), https://goo.gl/3zpdpn.

By one estimate, non-citizen immigrants were named

on almost a quarter of all U.S.-based international

patent applications filed in 2006. Vivek Wadhwa et

al., America’s New Immigrant Entrepreneurs 4 (Jan.

4, 2007), https://goo.gl/wClySz. And children of im-

migrants made up 83% of the top-performing stu-

dents in the well-known Intel high school science

competition. Stuart Anderson, Nat'l] Found. for Am.

Pol’y, The Contributions of the Children of Immi-

grants to Science in America 1-3, 5, 12 (Mar. 2017),

https://goo.gl/7noMyC.

Indeed, inventions and discoveries by immi-

grants have profoundly changed our Nation. Some,

like alternating current (Nikola Tesla), power our

world. Others, like nuclear magnetic resonance

(Isidore Rabi) and flame-retardant fiber (Giuliana

Tesoro), save lives. And yet others, like basketball

(James Naismith), blue jeans (Levi Strauss), and the

hot dog (Charles Feltman), are classic Americana.

B. America’s success in attracting and incorpo-

rating immigrants into our society is unrivaled in the

world.

To be sure, America has in the past deviated

from this ideal. Woodrow Wilson in 1902 decried the

immigration to the United States of “multitudes of

men of the lowest class from the south of Italy and

men of the meaner sort out of Hungary and Poland,

men out of the ranks, where there was neither skill

nor energy nor any initiative of quick intelligence;

and they came in numbers which increased from

year to year, as if the countries of the south of Eu-

rope were disburdening themselves of the more sor-

did and hapless elements of their population.” 5

Woodrow Wilson, A History of the American People

212-213 (1902).

The Immigration Act of 1917 (also known as the

Literacy Act) barred immigration from parts of Asia.

And in 1924, the Johnson-Reed Act significantly re-

stricted Italian and Jewish immigration to the Unit-

ed States in an effort to “preserve the ideal of U.S.

homogeneity.” U.S. Dep't of State, Office of the His-

torian, The Immigration Act of 1924 (The Johnson-

Reed Act), https://goo.gl/5foF NZ. See also Mojica v.

Reno, 970 F. Supp. 130, 145 (E.D.N.Y. 1997) (Wein-

stein, J.) (“It is well known that prejudice against the

Irish, the Chinese, the Japanese, the Italians, the

Jews, the Mexicans and others emerged as these

groups emigrated in substantial numbers.”).

But the march of time has discredited these laws

and policies. Since World War II, American immigra-

tion policy has been one of “tolerance, equality and

openness” in which “the United States has revived

its traditional rhetoric of welcome—-and matched its

words with action.” Jd. (quotation omitted).

In 1965, Congress enacted the Immigration and

Nationality Act (INA). That law, which established

the immigration framework that remains in place

today, eliminated the policy of national quotas. In

signing the INA, President Johnson stated:

America was built by a nation of

strangers.*** And from this experience,

almost unique in the history of nations, has

come America’s attitude toward the rest of

the world. We, because of what we are, fee)

safer and stronger in a world as varied as the

people who make it up—a world where no

country rules another and all countries can

deal with the basic problems of human digni-

ty and deal with those problems in their own

way.

Lyndon B. Johnson, Remarks at the Signing of the

Immigration Bill (Oct. 3, 1965).

These principles have defined American immi-

gration policy for the past 50 years. The beneficiaries

are not just the new immigrants who chose to come

to our shores, but American businesses, workers, and

consumers, who gain immense advantages from im-

migrants’ infusion of talents, energy, and opportuni-

ty.

Il. The Order Harms The Competitiveness Of

American Companies.

The Order abandons the principles that have un-

dergirded U.S. immigration policy for more than half

a century—clear, settled standards and constrained

discretion. It introduces sudden changes without an

opportunity for affected parties to inform decision-

makers of the consequences of those changes before

their adoption, provides unclear standards for im-

plementation, and leaves entirely to individual offic-

ers discretion the exercise of case-specific waiver au-

thority.

The Order will make it more difficult and expen-

sive for U.S. companies to recruit, hire, and retain

some of the world’s best employees. It will disrupt

ongoing business operations—making it harder for

U.S. companies to compete in today’s global markets.

And it will inhibit investment in the United States.

That will inflict significant harm on American busi-

ness, innovation, and economic growth.®

A. The Order establishes a system of “case-by-

case” exceptions from its ban on nationals from six

6 Several major companies reported substantial disruptions

from the First Executive Order. E.g., Letter from Bradford L.

Smith, President and Chief Legal Officer, Microsoft, to John F.

Kelly, Sec’'y of Homeland Sec., and Rex W. Tillerson, Sec'y of

State, at 5 (Feb. 2, 2017), https://goo.gl/AZtcFV; Jonathan

Shieber, Apple CEO Tim Cook Sent an Email to Employees

about the Immigration Ban, TechCrunch (Jan. 28, 2017),

https://goo.gl/qzXDJO.

countries, but leaves the application of those excep-

tions to the discretion of Customs and Border Protec-

tion—setting forth a non-exhaustive list of circum-

stances in which such exceptions “could be appropri-

ate.” Order § 3(c) (emphasis added). Because individ-

ual immigration officers retain broad discretion in

issuing these individual-by-individual exceptions, it

is unclear what exemptions will be actually be given,

or why—and whether that authority is being exer-

cised fairly and without discrimination or favoritism.

Even more important, the Order provides that

the ban, and its accompanying standardless excep-

tion process, may be expanded to include an unspeci-

fied number of a¢ditional countries if those nations

do not provide information the Secretary of State

deems necessary to approve visas. See Order § 2(e)-

(f). The Department of Homeland Security purport-

edly “has already identified more than a dozen coun-

tries whose nationals could be blocked from traveling

to the United States” on this basis.” Individuals and

businesses thus face the significant risk that new,

as-yet-unidentified countries will be added to the

ban—all without any governing standard. And, given

that the second Order expanded on the time period of

the first, nothing prevents a further extension.®

The Order will have the immediate, adverse con-

sequences of making it far more difficult and expen-

sive for U.S. companies to hire the world’s best talent

’ Gopal Ratnam, Trump's Travel Order Opens Door to Target-

ing More Countries, Roll Call (Mar. 15, 2017) (emphasis added),

https://goo.g/6bFYHm.

® Indeed, as the government notes, President Trump has al-

ready extended—by memorandum—the ban for 90 days past

when any injunctions against the Order are lifted or stayed.

Pet. Br. 37.

and compete effectively in the global marketplace.

Businesses and employees have little incentive to go

through the laborious process of sponsoring or ob-

taining a visa, and relocating to the United States, if

an employee may be unexpectedly halted at the bor-

der. Skilled individuals will not wish to immigrate to

this country if they may be cut off without warning

from their spouses, grandparents, relatives, and

friends—they will not pull up roots, incur significant

economic risk, and subject their family to considera-

ble uncertainty to immigrate to the United States in

the face of this instability. The Order therefore sig-

nificantly disadvantages U.S. companies in the glob-

al competition for talent.!°

B. The Order’s bans on travel also will signifi-

cantly impair day-to-day business. The marketplace

for today’s businesses is global. Companies routinely

send employees across borders for conferences, meet-

ings, or job rotations, and invite customers, clients,

or users from abroad. Global mobility is critical to

businesses whose customers, suppliers, users, and

workforces are spread all around the world.!!

Global business travel enables employees to de-

velop new skills, take on expanded roles, and stay

abreast of new technological or business develop-

ments. It also facilitates new markets and business

® Seth Fiegerman, Former Google Exec Calls Trump Travel

Ban an ‘Enormous Problem,’ CNN Tech (Jan. 30, 2017),

https://goo.gl/vNVgLt.

Biotech, Trade Secrets (Feb. 7, 2017), https://goo.g/OLHE£N1.

1! See, e.g., BGRS, Breakthrough to the Future of Global Talent

Mobility (2016), http://goo.gl/ZhIxSr; Harv. Bus. Rev., Strategic

Global Mobility (2014), http://goo.g/AV3nhd.

partnerships. Indeed, one study has shown that each

additional international business trip increases ex-

ports from the United States to the visited country

by, on average, over $36,000 per year.!”

But the Order will mean that many companies

and employees (both inside and outside the United

States) would be unable to take advantage of these

opportunities. The Order will prevent companies

from inviting customers to the U.S. and prevent em-

ployees from outside the U.S. from traveling here.

That is true even for persons or countries not cur-

rently covered by the Order because there is no way

to know whether or when a given country may be

added to the no-entry list.

The Order also could lead to retaliatory actions

by other countries, which would seriously hinder

U.S. companies’ ability to do business or negotiate

business deals abroad. U.S. companies’ deals have

already been threatened.'*

C. The same authority invoked to justify the Or-

der may be used in the future to impose additional

measures that will harm U.S. businesses. For exam-

ple, once the 90-day suspension period has ended,

foreign travelers could be required “to provide cell-

phone contacts and social-media passwords and an-

‘2 Maksim Belenkiy & David Riker, Face-to-Face Exports: The

Role of Business Travel in Trade Promotion, 51 J. Travel Res.

632, 637 (2012). See also Nune Hovhannisyan & Wolfgang Kel-

ler, International Business Travel: An Engine of Innovation?, 20

J. Econ. Growth 75 (2015).

18 See, e.g., Jeff Daniels, Trump Immigration Ban Puts $20 Bil-

lion in Boeing Aircraft Sales to Iran, Iraq at Risk, CNBC (Jan.

30, 2017), https://goo.gl/uT2goG; Tara Palmeri & Bryan Bender,

U.S. Diplomats Warning GE’s Major Deals in Iraq at Risk over

Travel Ban, Politico (Feb. 1, 2017), http://goo.gl/nhj9CZ.

swer questions about their ideology, according to

Trump administration officials, measures that could

intrude into the lives of millions of foreigners.”'4

Such requirements would powerfully discourage

travel to the United States, and risk exposing to

third parties sensitive business information of U.S.

companies contained on travelers’ devices.

D. For all of these reasons, the Order will incen-

tivize both immigration to and investment in foreign

countries rather than the United States. Highly

skilled individuals will be more interested in working

elsewhere, in places where they and their colleagues

can travel freely and with assurance that their im-

migration status will not suddenly be revoked. Other

countries have already begun “actively pursuing for-

eign investors and entrepreneurs, with the aim of in-

creasing investment and creating jobs for the benefit

of the national economy.” International Migration

Outlook 2017, Org. Econ. Co-operation & Dev. 46

(41st ed. 2017).

Non-U.S. companies have taken note, too. Multi-

national companies will have strong incentives, in-

cluding pressure from their own employees, to base

operations outside the United States or to move or

hire employees and make investments abroad. For-

eign companies will have significantly less incentive

to establish operations in the United States and to

hire American citizens, because the Order will pre-

clude the ability of those companies to employ their

world-class talent within their U.S. subsidiaries. Ul-

‘4 Laura Meckler, Trump Administration Considers Far-

Reaching Steps for ‘Extreme Vetting,’ Wall St. J. (Apr. 4, 2017),

https://goo.gl/D3H1tF.

timately, American workers and the economy will

suffer as a result.

Of course, the federal government can and

should implement targeted, appropriate adjustments

to our country’s immigration system to enhance the

Nation’s security. But a broad, open-ended ban—

together with the indication that the ban could be

expanded to other countries, or that additional, dif-

ferent restrictions could be adopted, without notice—

will undermine rather than protect American inter-

ests, producing serious, widespread adverse conse-

quences without any reasonable relationship to the

goal of making the country more secure.

III. The Order Is Unlawful.

The Order is unlawful for several reasons. We fo-

cus on two. First, the Immigration and Nationality

Act does not authorize the use of Executive Orders to

fundamentally change the character of the Nation’s

immigration laws. Second, the Order violates the

non-discrimination requirement of Section 1152.

A. Section 1182 does not empower the

President to engage in wholesale, uni-

lateral revision of the Nation’s immigra-

tion laws.

Petitioners rely primarily on the President's

power under the INA to “suspend the entry of

* * * any class of aliens” whose entry he finds “would

be detrimental to the interests of the United States.”

8 U.S.C. § 1182(f). They also point to Section 1185(a),

which permits the President to issue “reasonable

rules, regulations, and orders” and “limitations and

exceptions” for the entry of immigrants and non-

immigrants. Those grants of authority, petitioners

claim, give the President unilateral authority to ban

any group of aliens, for any reason.

But these statutory provisions do not confer un-

limited authority. The text and context of Sections

1182(f) and 1185(a) make clear that an exercise of

authority must be reasonable and must be limited to

a specific, emergency situation. The Order here ex-

ceeds those limitations.

First, the Order purports to ban a group of aliens

from the United States without making the requisite

finding that such aliens will be detrimental to the in-

terests of the Nation. Second, the Order is the polar

opposite of a targeted response to an emergency sit-

uation. In sixty-five years, no President has ever in-

voked Sections 1182(f) and 1185(a) to bar the admis-

sion into the United States of tens of millions of peo-

ple, based solely on their nationality, for months—

and perhaps years. Third, the Order conflicts with

the specific statutory provision that establishes

standards for preventing entry by terrorists without

any reasonable justification for displacing those con-

gressionally enacted standards. And fourth, the Or-

der’s broad changes to immigration procedures can

only be imposed through the rulemaking process.

1. The Order does not contain a finding suf-

ficient to justify exercise of the President’s

authority under Section 1182(f).

The text, context, and history of Section 1182(f)

all point to the same conclusion: the Order exceeds

the President's authority under the statute because

it does not adequately explain why the aliens it bars

would harm the United States.

The text of Section 1182(f) is clear: the President

may only suspend the entry of aliens if he “finds”

that their entry “would be detrimental to the inter-

ests of the United States.” Congress could not have

made it more plain that it did not intend to confer

upon the President unbounded power to bar aliens.

That Congress required a sufficient finding of detri-

ment before the President may bar a class of aliens is

unsurprising, for Congress may delegate power only

if “the executive judgment is limited by adequate

standards.” Carlson v. Landon, 342 U.S. 524, 544

(1952). An “intelligible principle” must guide the ex-

ercise of delegated power. Whitman v. Am. Trucking

Ass'ns, 531 U.S. 457, 472 (2001).

For this reason, the Court has consistently iden-

tified limits on discretionary authority delegated by

Congress, even when confronted with a clause that

seems “limitless” when read “in isolation and literal-

ly.” United States v. Witkovich, 353 U.S. 194, 198-202

(1957). See, e.g., Zemel v. Rusk, 381 U.S. 1, 17 (1965)

(rejecting the view that “simply because a statute

deals with foreign relations, it can grant the Execu-

tive totally unrestricted freedom of choice”); Kent v.

Dulles, 357 U.S. 116, 127, 128 (1958) (considering the

power to issue passports, the Court observed that the

President's authority was “expressed in broad

terms,” but refused to “impute to Congress * * * a

purpose to give [the President] unbridled discretion

to grant or withhold a passport from a citizen for any

substantive reason he may choose”).

Here, moreover, the text contains a clear limita-

tion on presidential action: the President’s authority

is contingent on finding that the specified aliens’ en-

try would be “detrimental to the interests of the

United States.” A reasonable finding by the Presi-

dent of the requisite “detriment|]” thus “constitute[s]

a condition precedent to embarking upon the exercise

of regulatory power’—and the President’s action is

invalid in the absence of such a reasonable determi-

nation. Amoco Oil Co. v. Envil. Prot. Agency, 501

F.2d 722, 736 (D.C. Cir. 1974). Indeed, courts in a

variety of contexts analyze whether the executive

branch has reasonably made the findings specified

by Congress as prerequisites for executive action.

See, e.g., Mobil Oil Expl. & Producing Se. Inc. v.

United Distribution Companies, 498 U.S. 211, 227

(1991); Indus. Union Dep’t, AFL-CIO v. Am. Petrole-

um Inst., 448 U.S. 607, 642 (1980); United Distribu-

tion Companies v. F.E.R.C., 88 F.3d 1105, 1139 (D.C.

Cir. 1996); Nuclear Info. Res. Serv. v. Nuclear Regu-

latory Comm’n, 969 F.2d 1169, 1178 (D.C. Cir. 1992);

Ethyl Corp. v. Envtl. Prot. Agency, 541 F.2d 1, 11-12

(D.C. Cir. 1976); Am. Overseas Airlines, Inc. v. Civil

Aeronautics Bd., 254 F.2d 744, 749 (D.C. Cir. 1958).

The President must therefore meet a standard of

reasonableness in exercising his Section 1182(f) au-

thority. Witkovich, 353 U.S. at 198-202 (holding that

authority to request information that the Attorney

General “may deem fit and proper” had an implicit

limit of reasonableness). That conclusion accords

with the longstanding interpretation of the statute

by the Executive Branch. See Immigration Laws and

Iranian Students, 4A Op. O.L.C. 133, 140 (1979)

(recognizing that any suspension the President

makes under Section 1182(f) “must meet the test of

‘reasonableness”); Hawaii Br. 36-37.

In addition, the permissible justifications for the

exercise of this authority are limited by the context

in which Congress acted when it adopted the lan-

guage codified in Section 1182(f). Congress drew that

text from a series of narrowly drawn wartime stat-

utes, proclamations, and regulations permitting the

President to exclude only limited classes of aliens, for

limited periods of time, to address emergency situa-

tions. See Hawaii Br. 31-36. That context restricts

the circumstances in which the President may em-

ploy this authority. Zemel, 381 U.S. at 17-18 (statute

“must take its content from history”); Kent, 357 U.S.

at 128 (grounds for refusing passport limited to those

that “it could fairly be argued were adopted by Con-

gress in light of prior administrative practice”).

The Order transgresses this limitation on presi-

dential authority. It provides barely any justification

for why the admission of aliens it bans from the

United States—based on nothing more than their

national origin—would be detrimental to the Nation.

Its express aim is to “protect the Nation from terror-

ist activities by foreign nationals.” Order, pmbl. But

“It]he Order makes no finding that nationality alone

renders entry of this broad class of individuals a

heightened security risk to the United States.” J.A.

1200; see also id. at 256 (Keenan, J., concurring).

Certainly there is no reasonable basis to conclude

that nearly every national of Iran, Libya, Somalia,

Sudan, Syria, and Yemen, absent specific evidence to

the contrary, will commit terrorist activities upon en-

try to the United States.'5 Indeed, the ban applies to

15 Indeed, the administration itself did not think so until it

found itself embroiled in litigation. As the Ninth Circuit noted,

“a draft report from DHS, prepared about one month after EO1

issued and two weeks prior to EO2’s issuance, concluded that

citizenship ‘is unlikely to be a reliable indicator of potential ter-

rorist activity’ and that citizens of countries affected by EO1 are

‘[rjarely [ijmplicated in U.S.-{bJased [t]errorism.” J.A. 1173 (al-

terations in original). See also Jordan Fabian, DHS Analysis

Found No Evidence of Extra Threat Posed by Travel-Ban Na-

tions: Report, The Hill (Feb. 24, 2017), https://goo.gl/6jp7FX.

hundreds of thousands of students, employees, and

family members of citizens who have been previously

admitted to the United States—and thus who the

United States, after careful, individualized review,

concluded that their admission to the United States

posed no security risk to the Nation.

The past history of admitting these individuals is

especially important because “[t]here is no finding

that present vetting standards are inadequate.” J.A.

1198. The Order simply recites well-known facts re-

garding these countries as a whole, ignoring that no

alien from these countries admitted to the U.S. has

engaged in terroristic activity.

The Order’s purported rationale falls short for

other reasons. I[t is both overinclusive and

underinclusive: its focus on nationality “could have

the paradoxical effect of barring entry by a Syrian

national who has lived in Switzerland for decades,

but not a Swiss national who has immigrated to Syr-

ia during its civil war.” J.A. 1203 (quotation omitted).

And its reliance on the exclusion of several listed

countries from the Visa Waiver Program is wholly

unconvincing: “[r]ather that setting an outright ban

on entry of nationals from those countries, Congress

** * instead required that persons who are nationals

of or have recently traveled to these countries enter

the United States with a visa.” Id. at 1204.

It is no surprise that petitioners fall back on a

different argument: that the Order is necessary be-

cause the government lacks “sufficiently complete

and reliable information” about which aliens are

likely to engage in terrorism. Pet’r’s Br. 47. But “the

statutory text plainly requires more than vague un-

certainty regarding whether their entry might be

detrimental to our nation’s interest.” J.A. 257 (Kee-

nan, J., concurring). Claimed “uncertainty” cannot

constitute a reason for banning 140 million people

from the United States based on nothing more than

their nationality.

2. The Order is invalid because of its broad

scope and unlimited duration.

No other President has ever used Section 1182(f)

to presumptively prohibit the entry of millions of for-

eign nationals solely on the basis of their nationality.

For that reason as well, the Order is unlawful.

Section 1182(f) is a gap-filler provision, authoriz-

ing the President to take targeted action to respond

to an emergency situation. Abourezk v. Reagan, 785

F.2d 1043, 1049 n.2 (D.C. Cir. 1986) (explaining that

Section 1182(f) “provides a safeguard against the

danger posed by any particular case or class of cases

that is not covered by one of the [inadmissibility}

categories in [S]ection 1182(a)”).

That was the context in which the language con-

tained in Section 1182(f) was enacted. See pages 15-

20, supra. And it is how past Presidents have em-

ployed this authority since 1952, each time issuing a

targeted restriction, usually limited to dozens or

hundreds of people on the grounds that each affected

person had engaged in culpable conduct, such as

human trafficking, illegal entry, or corruption. See

Kate M. Manuel, Cong. Research Serv., Executive

Authority to Exclude Aliens: In Brief 6-10 (Jan. 23,

2017), https://goo.gl//DObRkS. This consistent execu-

tive branch practice is powerful evidence of the lim-

ited reach of the provision, and it is consistent with

the context of Section 1182(f)—as one provision in an

extraordinarily detailed set of statutory rules, elabo-

rated in administrative regulations, that govern the

issuance of visas and entry of aliens.

The Order here deviates from this settled prac-

tice. It is broadly applicable—to millions of people; it

lasts for at least 90 days, which extends past the

time period specified in the initial order, and it may

last much longer; and it targets people based on na-

tionality, rather than on the basis of culpable con-

duct. For this reason as well, the Order is unreason-

able and therefore unlawful.

3. The Order conflicts with other provisions

of the INA.

The Order also displaces the INA’s specific re-

quirements for excluding aliens on the basis that

they might commit acts of terrorism. See 8 U.S.C.

§ 1182(a)(3)(B). That statute—‘a complex provision

with 10 different subsections” that “cover[s] a vast

waterfront of human activity” (Kerry v. Din, 135 S.

Ct. 2128, 2145 (2015) (Breyer, J., dissenting))—

provides a detailed scheme for determining when an

alien may be excluded based on a potential to commit

terrorist acts. Specifically, an alien who has never

before engaged in terrorist activities or joined a ter-

rorist organization may be excluded only if the gov-

ernment has a “reasonable ground to believe” that

the alien “is likely to engage after entry in any ter-

rorist activity.” 8 U.S.C. § 1182(a)(3)(B)q@)dD.

The Order’s system of ad hoc waivers turns that

provision on its head. Instead of creating a presump-

tion of admittance absent any “reasonable ground” to

think an alien will commit terrorist activities—as

Section 1182(a)(3)(B) requires—the Order creates a

presumption of exclusion and leaves it to Customs

and Border Protection to decide whether an alien has

demonstrated, “to the officer's satisfaction,” that he

or she would not threaten national security. Order

§ 3(c).

The Order thus eliminates Congress’s substan-

tive requirement that there be reasonable grounds to

exclude an alien on the basis of the threat of future

acts of terrorism. And it does so without even at-

tempting to explain why changed circumstances or

other facts make Congress’s determinations inade-

quate to protect the Nation.!®

As construed by petitioners, therefore, Section

1182(f) would allow the President to rewrite all of

Congress’s detailed rules for when aliens may be ex-

cluded, set forth in detail in Section 1182(a). “[T]he

statute lists thirty-three distinctly delineated catego-

ries that conspicuously provide standards to guide

the Executive in its exercise of the exclusion power.”

Abourezk, 785 F.2d at 1051. But if the President may

ban groups of aliens at will, even for reasons that

contradict the standards specified by Congress, he or

she could “thereby effectively nullify[] that complex

body of law.” J.A. 254 (Keenan, J., concurring). See

also Abourezk, 785 F.2d at 1057 (“The Executive may

not use subsection (27) to evade the limitations Cc .-

gress appended to subsection (28).”); IRAP Br. 51-52.

Indeed, were the Court to uphold the Order here,

a President could use Section 1182(f) to rewrite the

‘6 In addition, Congress in 2015 specifically considered the risk

that travelers from these countries might engage in terrorism,

and addressed it by exempting them from the visa waiver pro-

gram. See Pub. L. 114-113, div. O, tit. II, § 203, 129 Stat. 2242

(codified at 8 U.S.C. § 1187(a){12)). That congressional determi-

nation, too, is overridden by the Order without any justification

or explanation.

immigration laws in their entirety, prescribing via

executive order an entire new regime—with stand-

ards for issuing visas and excluding aliens wholly

different from those prescribed by Congress. Section

1182(f does not, as the government would have it,

empower the President to nullify duly enacted immi-

gration laws at will. If it did, such a delegation of au-

thority would pose severe constitutional concerns.

4. The Order is procedurally unreasonable.

The comprehensive revision of the immigration

system effected by the Order—and the executive or-

ders that apparently will follow—improperly circum-

vents Congress’s directive that significant changes in

immigration rules be implemented through notice

and comment rulemaking.

Sections 2(a) to 2(f) of the Order effectively create

a new immigration system pursuant to which the

Secretary of Homeland Security, the Secretary of

State, and the Director of National Intelligence de-

termine what unspecified “information” countries

must share with the United States in order to allow

their nationals to enter this country. Then, these of-

ficials may recommend to the President an expansion

or extension of the ban on entry to the United States.

In addition, the Order confers effectively uncon-

strained discretion on consular officers and customs

officials to “decide on a case-by-case basis to author-

ize the issuance of a visa to, or to permit the entry of,

a foreign national for whom entry is otherwise sus-

pended.” Order § 3(c). Other than listing a series of

nonexclusive considerations, the Order neither pro-

scribes a procedural mechanism for this exercise of

discretion, nor establishes substantive guideposts to

govern the exercise of this broad discretion.

Congress expressly identified the need for rule-

making in the INA, authorizing the President to im-

pose “reasonable rules, regulations, and orders.” 8

U.S.C. § 1185(a). But no such rulemaking occurred

here, notwithstanding the Order’s broad applicabil-

ity. Moreover, while the Administrative Procedure

Act does not generally apply to the President’s ac-

tions (see Dalton v. Specter, 511 U.S. 462, 469

(1994)), it does apply to the subsequent conduct of

the Departments of State and Homeland Security,

which must ultimately implement the Order.

Rulemaking “foster[s] * * * fairness and delibera-

tion” (United States v. Mead Corp., 533 U.S. 218, 230

(2001)), and gives “interested persons an opportunity

to participate in the rule making through submission

of written data, views, or arguments.” 5 U.S.C.

§ 553(c). See also Motor Vehicle Mfrs. Assn. v. State

Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)

(rulemaking process ensures that an agency has not

“relied on factors which Congress has not intended it

to consider, entirely failed to consider an important

aspect of the problem, [or] offered an explanation for

its decision that runs counter to the evidence before

the agency”).

Here, the notice-and-comment process is particu-

larly important given the huge range of individuals

and entities affected by these rules, such as families

seeking to reunite, or even just to have the oppor-

tunity to visit one another; businesses wishing to in-

teract with customers, to enable employees to obtain

experience at their home offices in the United States,

or to hire individuals with expertise not otherwise

available; and cultural institutions planning perfor-

mances by artists from outside the United States.

For these reasons, Section 1182(f) does not pro-

vide a means of circumventing the ordinary rulemak-

ing process for promulgating legal principles of gen-

eral applicability. Cf. Texas v. United States, 809

F.3d 134, 177 (5th. Cir. 2015) (requiring use of no-

tice-and-comment rulemaking in immigration con-

text), affd by an equally divided Court, 136 S. Ct.

2271 (2016).

B. The Order violates Section 1152’s non-

discrimination requirement.

The Order separately contravenes 8 U.S.C.

§ 1152(a)(1)(A), which provides that “no person shall

*** be discriminated against in the issuance of an

immigrant visa because of the person’s race, sex, na-

tionality, place of birth, or place of residence.” “Con-

gress could hardly have chosen more explicit lan-

guage” to “unambiguously direct[] that no nationali

ty-based discrimination” shall occur with respect to

immigration. Legal Assistance for Vietnamese Asy-

lum Seekers v. Dep’t of State, 45 F.3d 469, 473 (D.C.

Cir. 1995), vacated on other grounds, 519 U.S. 1

(1996).

Congress enacted Section 1152 “to eliminate the

‘national origins system as the basis for the selection

of immigrants to the United States.” J.A. 1209 (quot-

ing H.R. Rep. No. 89-745, at 8 (1965)). That system,

as President Johnson explained, “was incompatible

with our basic American tradition” that we “ask not

where a person comes from but what are his personal

qualities.” H.R. Rep. No. 89-745 at 11. Congress re-

placed the national origins system with “a new sys-

tem of selection designed to be fair, rational, hu-

mane, and in the national interest” (S. Rep. No. 89-

748, at 13 (1965)), based largely on “the advantage to

the United States of the special talents and skills of

the immigrant.” H.R. Rep. No. 89-745, at 18.

On its face, the Order discriminates on the basis

of nationality and therefore violates Section 1152.

Although the Order purports to bar only the entry of

designated foreign nationals, “it would have the spe-

cific effect of halting the issuance of visas to nation-

als of the Designated Countries.” J.A. 140. That is

precisely what Section 1152 prohibits. Ibid. Accord

Vayeghan v. Kelly, 2017 WL 396531, at *1 (C.D. Cal.

Jan. 29, 2017).!"

Section 1152 must be understood to constrain the

powers granted to the President under Section

1182(f). As the Ninth Circuit explained, Section 1152

was enacted after Section 1182, “and sets a limita-

tion on the President's broad authority to exclude al-

iens—he may do so, but not in a way that discrimi-

nates based on nationality.” J.A. 1214. See, e.g.,

Crawford Fitting Co. v. J. T. Gibbons, Inc., 482 U.S.

437, 445 (1987) (“[W]here there is no clear intention

‘7 Although petitioners no longer press this argument, the Or-

der cannot be defended as creating “procedures for the pro-

cessing of immigrant visa applications (8 U.S.C. §

1162(a)(1)(B)). Cf. J.A. 1216. That provision, by its terms, con-

fers power upon the Secretary of State, not the President. And

the Secretary must exercise that authority in conformity with

the provisions of the Administration Procedure Act, including

providing notice and opportunity for comment by interested

parties. 5 U.S.C. § 553(b)-(c). Cf. Meina Xie v. Kerry, 780 F.3d

405, 408 (D.C. Cir. 2015) (applying the APA to the Secretary of

State's visa processing). More importantly, the Secretary's au-

thority is subject to Section 1152's prohibition on discrimina-

tion. It therefore—at most—permits the executive branch to

regulate the manner in which foreign nationals can receive vi-

sas or enter the United States, but does not authorize a sweep-

ing ban on nationals from six countries.

otherwise, a specific statute will not be controlled or

nullified by a general one, regardless of the priority

of enactment.”) (quotation omitted). And Section

1152 also “specifically identifies exemptions from the

non-discrimination mandate, implying that unmen-

tioned sections are not exempted.” J.A. 1214.

The government asserts that there is no conflict

between the Order and Section 1152 because an al-

ien who is barred under the Order “is denied an im-

migrant visa because he is ineligible to receive one as

someone barred from entering the country,” and “not

because he is suffering the type of nationality-based

discrimination” that Section 1152 prohibits. Pet. Br.

52. That, Judge Wynn explained below, “is nonsensi-

cal.” J.A. 313 (Wynn, J., concurring). It makes no dif-

ference that the aliens who are banned by the Order

cannot receive visas because they are barred from

entering the United States when the reason for that

bar is their national origin.

The President may not use Section 1182 to cir-

cumvent Congress’s express prohibition on nationali-

ty-based discrimination by shifting the step in the

process at which that discrimination occurs. Con-

gress could not have intended to prohibit discrimina-

tion at the embassy, but permit it at the airport gate.

Congress instead commanded “that government

must not discriminate against particular individuals

because of the color of their skin or the place of their

birth,” because such discrimination “is unfair and

unjustified” wherever it occurs. Olsen v. Albright,

990 F. Supp. 31, 39 (D.D.C. 1997).

In sum, the Order exceeds the President's au-

thority under Section 1182—but even if it does not, it

nonetheless violates the ban on nationality-based

discrimination codified in Section 1152.'8

C. This Court can, and must, adjudicate

the scope of the President’s authority.

“Congress intends the executive to obey its stat-

utory commands and, accordingly, * * * it expects the

courts to grant relief when an executive agency vio-

lates such a command.” Bowen v. Mich. Acad. of

Family Physicians, 476 U.S. 667, 681 (1986). For this

reason, “[rjeview of the legality of Presidential action

can ordinarily be obtained in a suit seeking to enjoin

the officers who attempt to enforce the President’s

directive.” Franklin v. Massachusetts, 505 U.S. 788,

828 (1992) (Scalia, J., concurring) (citing Youngstown

Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)).

It is fundamental that the President’s exercise of

his statutory powers is not above review by this

Court. In Dames & Moore v. Regan, for instance, the

Court addressed claims that President Reagan’s ex-

ecutive order suspending certain claims against Iran

exceeded the President’s statutory powers, holding

that the order fell within that authority. 453 U.S.

654, 666-667 (1981). See also United States ex rel.

Knauff v. Shaughnessy, 338 U.S. 537, 544-547 (1950)

(reviewing on the merits claims that a presidential

proclamation violated two statutes). Respondents

18 To be sure, the text of Section 1152 only prohibits discrimina-

tion with respect to immigrant visas. But the basic non-

discrimination principle that it embodies is reflected through-

out U.S. law. Olsen, 990 F. Supp. at 33 (addressing non-

immigrant visas). Section 1182(f) therefore does not confer au-

thority to discriminate on this basis with respect to non-

immigrant visas in the absence of a reasonable justification for

displacing thie fundamental principle. Such a justification is

lacking here.

here raise a similar claim, arguing that the Order

exceeds the President’s limited authority under Sec-

tion 1182(f).

To be sure, there is a narrow exception to judicial

review where a statute gives the President unlimited

discretion to make a discrete and specific decision.

See Dalton, 511 U.S. at 477. This rule reflects the

general principle that review is unavailable when a

statute is “drawn in such broad terms that in a given

case there is no law to apply.” Heckler v. Chaney, 470

U.S. 821, 830 (1985).

The President's discretion under Section 1182(f

is not unlimited, as it was in Dalton. Instead, the

President's authority is constrained by the require-

ment that he make an adequate finding of detriment,

and that he exercise his power under Section 1182

reasonably. Accord Sale v. Haitian Cirs. Council,

Inc., 509 U.S. 155, 187-188 (1993) (assessing legality

of President's exercise of Section 1182(f) authority).

The Order is unlawful—and the Court should say so.

Petitioners’ invocation of the so-called “consular

nonreviewability” doctrine is similarly misplaced.

Pet. Br. 24-26. The question here does not involve an

individualized, discretionary “decision” by a “consu-

lar official” to “issue or withhold a visa.” Saavedra

Bruno v. Albright, 197 F.3d 1153, 1159 (D.C. Cir.

1999). Rather than any discretionary determination,

it is the scope of the President’s authority to estab-

lish broad standards banning wholesale immigration

from certain specified nationalities. Such determina-

tions are reviewable. Cf. Patel v. Reno, 134 F.3d 929,

932 (9th Cir. 1997) (“The Patels are challenging the

consul’s authority to suspend their visa applications,

not challenging a decision within the discretion of

the consul. Therefore, jurisdiction exists to consider

whether the consulate has the authority to suspend

the visa applications.”). And, given that many re-

spondents are not themselves foreign nationals, the

harms addressed in this case span far beyond indi-

vidualized entry or admissions decisions.

To the extent that courts ever hesitate to review

statutory claims about individualized consular officer

determinations, that has no bearing on the nature of

the claims raised here.

CONCLUSION

The judgments of the courts of appeals should be

affirmed.

Respectfully submitted.

ANDREW J. PINCUS

Counsel of Record

PAUL W. HUGHES

JOHN T. LEWIS

Mayer Brown LLP

1999 K Street, NW

Washington, DC 20006

(202) 263-3000

apincus@mayerbrown.com

Counsel for Amici Curiae

SEPTEMBER 2017

APPENDIX

16.

APPENDIX A

LIST OF AMICI CURIAE

6Sense Insights, Inc.

A Medium Corporation

Adobe Systems Incorporated

AdRoll, Inc.

Affirm, Inc.

Airbnb, Inc.

Akamai Technologies, Inc.

AltSchool, PBC

Amazon.com, Inc.

Ampush LLC

Appboy, Inc.

App Nexus Inc.

Asana, Inc.

Atlassian Corp. Ple

Autodesk, Inc.

Automattic/WordPress.com

Azavea Inc.

Big Tooth Ventures

Bloomberg L.P.

Box, Inc.

Brightcove Inc.

Brocade Communications Systems, Inc

Bungie, Inc.

24.

25.

26.

27.

28.

29.

30.

31.

32.

33.

34.

35.

36.

37.

38.

39.

40.

41.

42.

43.

44,

45.

46.

47.

48.

CareZone Inc.

Casper Sleep Inc.

Castlight Health

Cavium, Inc.

Checkr Inc.

Chegg, Inc.

Chobani , LLC

Citrix Systems, Inc.

Civis Analytics, Inc.

ClassPass Inc.

Cloudera, Inc.

Cloudflare, Inc.

Codecademy

Color Genomics, Inc.

Copia Institute

Credit Karma, Inc.

DocuSign, Inc.

DoorDash

Dropbox, Inc.

eBay Inc.

Edmodo, Inc.

Electronic Arts Inc.

EquityZen Inc.

Etsy Inc.

Eventbrite Inc.

Evernote

Facebook, Inc.

Fastly, Inc.

Fitbit, Inc.

Flipboard, Inc.

Fuze, Inc.

General Assembly Space, Inc.

GitHub, Inc.

Glassdoor

Google Inc.

GoPro Inc.

Greenhouse Software, Inc.

Greenough Consulting Group

Groupon, Inc.

Gusto

Harmonic Inc.

Hewlett Packard. uterprise

HP Inc.

IDEO

Imgur, Inc.

Indiegogo, Inc.

Intel Corporation

Kargo

Kickstarter, PBC

Knotel

Lam Research Corporation

Levi Strauss & Co.

Linden Research, Inc. d/b/a Linden Lab

LinkedIn Corporation

Lithium Technologies, LLC

Lyft, Inc.

Lytro, Inc.

Managed By Q Inc.

Mapbox, Inc.

Maplebear Inc. d/b/a Instacart

Marin Software Incorporated

Medallia, Inc.

Medidata Solutions, Inc.

Microsoft Corporation

Minted, LLC

Molecule Software, Inc.

MongoDB, Inc.

Motivate International Inc.

Mozilla Corporation

MPOWERD Inc.

NetApp, Inc.

Netflix, Inc.

NETGEAR, Inc.

New Relic, Inc.

NewsCred, Inc.

Nextdoor.com, Inc.

NIO USA, Inc.

nTopology

Oath, Inc.

Optimizely, Inc.

Pandora Media, Inc.

Patreon, Inc.

PayPal Holdings, Inc.

Pinterest, Inc.

Pixability, Inc.

Plaid Technologies, Inc.

Planet Labs Inc.

Postmates Inc.

Pure Storage, Inc.

Quantcast Corp.

Quora, Inc.

RealNetworks, Inc.

Red Hat, Inc.

Reddit, Inc.

Redfin Corporation

Rocket Fuel Inc.

Rocket Lawyer Incorporated

RPX Corporation

SaaStr, Inc.

Salesforce.com, Inc.

124.

125.

126.

127.

128.

129.

130.

131.

132.

133.

134.

135.

136.

137.

138.

139.

140.

141.

142.

143.

144.

145.

146.

147.

148.

Shutterstock, Inc.

Singularity University

Snap Inc.

Space Exploration Technologies Corp.

Spokeo, Inc.

SpotHero, Inc.

Spotify USA Inc.

Square, Inc.

Squarespace, Inc.

Strava, Inc.

Stripe, Inc.

SugarCRM

Sunrun, Inc.

SurveyMonkey Inc.

TaskRabbit, Inc.

Tech:NYC

Tesla, Inc.

Thumbtack, Inc.

TransferWise Inc.

TripAdvisor, Inc.

Tumblr

Turbonomic, Inc.

Turo Inc.

Twilio Inc.

Twitter Inc.

149.

150.

151.

152.

153.

154.

155.

156.

157.

158.

159.

160.

161.

Uber Technologies, Inc.

Udacity, Inc.

Upwork Inc.

Verizon Communications Inc.

Via

Warby Parker

The Wikimedia Foundation, Inc.

Work & Co.

Workday, Inc.

Y Combinator Management, LLC

Yelp Inc.

Zendesk, Inc.

Zymergen Inc.

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.