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

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FILED

SEP 18 2017

Nos. 16-1436 and 16-1540 L_OFEICE OF TNE CLERK

—_— erm

In the

Supreme Court of the Gnited States

DONALD J. TRUMP, PRESIDENT OF THE UNITED

STATES, ET AL.,

Petitioners,

Vv.

INTERNATIONAL REFUGEE ASSISTANCE PROJECT,

ET AL.,

DONALD J. TRUMP, PRESIDENT OF THE UNITED

STATES, ET AL..,

Petitioners,

Vv.

STATE OF HAWAII, ET AL.

On Writs of Certiorari to the United States Courts of

Appeals for the Fourth and Ninth Circuits

BRIEF OF REFUGEE ORGANIZATIONS AS

AMICI CURIAE IN SUPPORT OF

RESPONDENTS

CHRISTOPHER MORTWEET RICHARD P. BRESS

K. RUBY BIELIK Counsel of Record

LATHAM & WATKINSLLP ALEXANDRA SHECHTEL

140 Scott Drive ALAN BILLHARZ

Menlo Park, CA 94025 LATHAM & WATKINS LLP

(650) 326-4600 555 llth Street, NW

Suite 1000

Washington, DC 20004

(202) 637-2200

rick.bress@!w.com

Counsel for Amici Curiae Oxfam America, Inc.,

International Rescue Committee, and Exodus Refugee

Immigration Inc.

Additional Counsel Listed on Inside Cover

———————————————

JAYNE FLEMING JAMES C. MARTIN

REED SMITH LLP DONNA M. DOBLICK

599 Lexington Avenue DEVIN M. MISOUR

22nd Floor REED SMITH LLP

New York, NY 10022 225 Fifth Avenue

(212) 549-0217 Suite 1200

Pittsburgh, PA 15222

(412) 288-3131

Counsel for Amicus Curiae U.S. Committee for Refugees

and Immigrants

TABLE OF CONTENTS

TABLE OF AUTHORITIBG...............

car ac adcawasteiadsonismnebil

INTRODUCTION AND SUMMARY OF

ene

ARGUMENT...

|. THE PRESIDENT’S REDUCTION OF

THE REFUGEE CAP VIOLATED THE

TIMING AND CONSULTATION

REQUIREMENTS OF 8 U.S.C. § 1157 cescsssssooee

A. The President’s Unilateral Reduction

Of The Refugee Cap Violated The

Requirements Of Section 1157..................

B. The President’s Ad Hoc And Post Hoc

Action Undermined The piaitaichatieg

Goals Of Sectiion 1157 ..................cccccccccceccecee.

Il. THE PRESIDENT’S REDUCTION OF

THE REFUGEE CAP AND TEMPORARY

BAN ON ALL REFUGEE ADMISSIONS

EXCEED THE AUTHORITY CONGRESS

DELEGATED TO THE PRESIDENT

UNDER 8 U.S.C. § 1182(f) ............cscscscsssssssesseeees

Ill. EO2, INCLUDING THE ANTI-REFUGEE

PROVISIONS OF SECTION 6, ISA

THINLY VEILED ATTEMPT TO

EXCLUDE MUSLIMS ON RELIGIOUS

GROUNDS IN VIOLATION OF THE

ESTABLISHMENT CLAUSE...........-...000.-.00004

TABLE OF CONTENTS—Continued

Page

A. President Trump’s Statements Evince

Clear Anti-Muslim Animus...................0...0« 27

B. The Bias Animating EO2 Extends To

SUIT a siecaceciniepterieseminciieinessesleniiieieiadilsieiiaaltieind 34

iii

TABLE OF AUTHORITIES

CASES

Beech Aircraft Corp. v. Rainey,

tk SE ee

Duncan v. Walker,

ge eee

Edwards v. Aguillard,

een ee

Ethyl Corp. v. EPA,

51 F.3d 1053 (D.C. Cir. 1995) ...........cseceseeees

First National Bank of Atlanta v. Bartow

County Board of Tax Assessors,

Be Es GE tinereseesccesesnsenenisetesntsnsninsinns

Kerry v. Din,

136 S. Ct. 2128 (201B)..............sseseccsesseceesseeeees

Kleindienst v. Mandel,

WU ccthictcescinsscsiilsintinititisteneiniites

Louisiana Public Service Commission v.

FCC,

a a TD siciniiticininciierericinsininesicithinining

McCreary County v. American Civil

Liberties Union of Kentucky,

ee as I I eitrstrectentnnctenesstccsnennnssteneniiinn

Page(s)

TABLE OF AUTHORITIES—Continued

Page(s)

Reno v. Bossier Parish School Board,

BE TE, MT CIEE ss ccnncnnseinenenssamigpnnnsmnqnasiovesenscensinnl 34

Town of Greece v. Galloway,

UL US Dk Een 27

United States v. Menasche,

BS ee, Be IE cicviccnccssnsctnnnetonicansennenmtanetecnnecseenen 18

STATUTES AND REGULATIONS

B U.S.C. § 1101 6b 0G. .....00.ccccreccosccesescssesccsssseccssessecenseeseseees 5

& U.S.C. § 1101(a)4D).........cccscccsscrscocccsessessecseseneeseessecsessess 20

Ets Cok 5 | , Sa 5

B U.BA.C. 8 22GB) .nccreccccsccsccccecesecsessevercoscsesscsceseveconsesscesnscnes 8

S U.S.C. § L1GT(A)MD)......c.eccccsresssssscsecssoreccesecsncereescesensensssenes 8

B U.S.C. § RUBIO) nnccccececseccecessssecscescscce scrsesensecscecscenceusoene 8,9

B U.S.C. 8 LUBTA) .ncecrecccsceseececssssssereccencecceccssccsscsovessesscensecees 9

B U.S.C. § LIGT(A)1)....2...cccccereecsorscrseressocessnseesssensansessssosseess 9

B UBC. § LUBTC]) ..cccecoeceeseesccescsssecscccccsccsessesscsrecncsecssosesecsees 8

hil Cee 5). 6,17

8 U.S.C. § 1522(a)(1)(B) ......cececrsscrereerencencenensesseresnssrseseess 15

8 U.S.C. § 1522(a)(2)MA)........crerorroeeseecercnssrerseesstsnssrsnnerens 15

TABLE OF AUTHORITIES—Continued

Page(s)

Executive Order No. 13,768, 82 Fed. Reg.

8977 (Jam. 27, 201'7).......cccccccccsssonsserrerssereessenscnsnses 4, 5, 32

Executive Order No. 13,780, 82 Fed. Reg.

13,209 (Mar. 9, 2017)......-cecceesessersersensenees 1, 5, 18, 19, 34

LEGISLATIVE MATERIALS

123 Cong. Rec. 3431 (1977)......scsnrserensnrensneneenanannenennenes 8

Admission of Refugees into the United

States: Hearings on H.R. 3056 Before the

Subcomm. on Immigration, Citizenship

and Int'l Law of the H. Comm. on the

Judiciary, 95th Cong. (1977) ......sseseereseennentenrnenes 15

H.R. Rep. No. 96-608 (1979).......cccesccseesnsenenerennnennnnennnnnns 12

Refugee Act of 1979: Hearings on H.R. 2816

Before the Subcomm. on Immigration,

Refugees, and International Law of H.

Comm. on the Judiciary, 96th Cong.

(1GTDD enecccrscessasesesrecccecnssnscessnscossnsncensssneens 9, 10, 13, 15, 16

OTHER AUTHORITIES

Deborah E. Anker & Michael H. Posner, The

Forty Year Crisis: A Legislative History

of the Refugee Act of 1980, 19 San Diego L.

Reev. 9 (19B1).....ccceccccccsceerenssensesscorsecoesesssessooseeses 8, 12,14

TABLE OF AUTHORITIES—Continued

Page(s)

Fred Barbash, Muslim ban language

suddenly disappears from Trump

campaign website after Spicer questioned,

SI MIE GL BIEL © cncccnenescascecasccssvscnseeeseeescees 26, 28

David Bier, CATO Institute, Deconstructing

Trump’s Security Defense of His

Immigration Ban (Mar. 9, 2017),

En 20, 24, 25

Black’s Law Dictionary (10th ed. 2014)... cece 18

Dan Bowens, Trump tweets fake Gen.

Pershing story after Spain attack, FOX 5

(Aug. 17, 2017), http://bit.ly/2jjr8wH ..............cee. 31

Michael Brindley, After Trump’s Executive

Order, Refugees Who Were N.H. Bound

Now On Hold, N.H. Pub. Radio (Jan. 31,

2017), http://bit.ly/2pwf6NT..................cccccceeceesereeeenes 24

David Brody, Brody File Exclusive:

President Trump Says Persecuted

Christians Will Be Given Priority As

Refugees, CBN News (Jan. 27, 2017),

BI FEIT cc cccccccscesceccnecssessssessocsescsessesceocese 32

Philip Connor, Pew Research Center, U.S.

Admits Record Number of Muslim

Refugees in 2016 (Oct. 5, 2016),

CEO WET CIV OMINI DL wo cccccccccccccesssssscsseveccecssesceeses 35

Vil

TABLE OF AUTHORITIES—Continued

Madeline Conway, Trump stokes fears he'll

pursue Muslim ban, Politico (Dec. 22,

2016 8:09 AM), http://politi.co/2hgmkXM......

Delegation of Power by Congress, 48 Harv. L.

BEG. Fae Ci Peresccsseccssenmaseseseersennsentmareinsceaniens

Jeremy Diamond, Donald Trump: Ban all

Muslim travel to U.S., CNN (Dec. 8,

2015), http://enn.it/1QDHNSR ............cceeceeeeeees

Donald Trump: “... You Know my Plans...”

Daily Mail.com (Dec. 22, 2016),

https://www.youtube.com/watch?v=ip4vs

Elise Foley & Willa Frej, Court Ruling May

Force Trump To Admit The Number Of

Refugees Obama Wanted, Huffington

Post, Mar. 20, 2017,

http://huff.to/2m UyCG 7 .............-.ceeceseereceneceees

Lauren Gambino, Trump and Syrian refugees

in the US: separating the facts from

fiction, The Guardian (Sept. 2, 2016),

http:/Mbit Ly/2PQFOWP ..........ccccccsccssessseveeeseeeee

Nick Gass, Trump not bothered by

comparisons to Hitler, Politico (Dec. 8,

2015 7:51 AM), http://politi.co/IXYTrc8 .......

Page(s)

viii

TABLE OF AUTHORITIES—Continued

General Pershing on How to Stop Islamic

Terrorists, Snopes (last updated Aug. 17,

2017), http://www.snopes.com/rumors/

ES ER EEN SES RN

Natasha Hall, Refugees are already

vigorously vetted. I know because I vetted

them., Wash. Post, Feb. 1, 2017 .00.........c0c0000.

Louis Jacobson, Donald Trump says if you’re

from Syria and a Christian, you can’t

come to the U.S. as a refugee, PolitiF act

(July 20, 2015), http://bit.ly/1CLkBP} ...........

Scott Johnson, At the White House with

Trump, Power Line (Apr. 25, 2017),

IIE ieietaiieineiiinriiaiestinnteniiamidiasinnmninicies

Erol Kekic, Homeland Security Chief John

Kelly Says Waiting 120 Days Won’t Hurt

Refugees. He’s Wrong, Time (Feb. 10,

2017), http://time/2ITA YTS8....0........-ccsceceeceroee

LBJ Presidential Library, LBJ on

Immigration, President Lyndon B.

Johnson’s Remarks at the Signing of the

Immigration Bill Liberty Island, New

York (Oct. 3, 1965),

http://www.lbjlibrary.org/lyndon-baines-

johnson/timeline/lbj-on-immigration.............

Page(s)

TABLE OF AUTHORITIES—Continued

Legal Information Institute, 8 U.S. Code

§ 1157 - Annual admission of refugees

and admission of emergency situation

refugees, https://www.law.cornell.edu/

ER OS een OR

Kevin Lui, Comments by Stephen Miller and

Rudy Giuliani Cited in Judge’s Decision

to Block Trump’s Travel Plan, Time (Mar.

15, 2017), http://ti.me/2wSXOhh ................000e

Medical Examination: Frequently Asked

Questions (FAQs), Ctr. for Disease

Control and Prevention (last updated Feb.

22, 2017), http://bit.ly/2ZocISHp............:cecce0ee

Tanvi Misra, Are Refugees Dangerous?,

Citylab (Feb. 14, 2017),

csi icnes aa inciiliahiailtiaamanienid

Nearly Half of All Refugees are Children,

Says Unicef, The Guardian, (Sept. 14,

2016), http://bit.ly/2cmF fek.........ccccocvvvueeessessee

Alex Nowrasteh, Americans’ Fear of Foreign

Terrorists Is Overinflated (Sept. 13, 2016),

http://timme/2IKIQVK nececesescccscccccsecssssssseeesseee

Alex Nowrasteh, Terrorism and

Immigration: A Risk Analysis, Policy

Analysis (Sept. 13, 2016),

UIE ichinetancnscscientsisisnstnccnitinnssnt

Page(s)

pesemmmecs 25

TABLE OF AUTHORITIES—Continued

Page(s)

Mathew Nussbaum, Flynn’s son says

‘Muslim ban’ is ‘necessary’, Politico (Jan.

29, 2017), http://politi.co/2kGe2jr ...............ceccecceeeenee 32

Haeyoun Park & Larry Buchanan, Refugees

Entering the U.S. Already Face a

Rigorous Vetting Process, N.Y. Times,

Pe TET viteeattbeseeichianininistisiniessasitanimtrmensenisia 21, 22, 23

Pew Research Center, Religious

Composition by Country, 2010-2050 (Apr.

2, 2015), http://pewrsr.ch/2nMISOG ...............00cs000+ 35

Amy Pope, Infographic: The Screening

Process for Refugee Entry into the United

States, Obama White House Archives

(Nov. 20, 2015), http://bit.ly/2kqqbmh....................... 21

Jacob Pramuk, Trump may have just dealt a

blow to his own executive order, CNBC

(updated Mar. 16, 2017),

TE cicincrnaccenisenesmneatensnssonascccumcuine 33

Presumptive GOP Nominee Trump Goes

One-on-One With Lester Holt at 2:07,

NBC News (May 4, 2016),

http://nbenews.to/ISZtIAG ..........cccsccccceeecesecccerseeeneees 29

Katie Reilly, Donald Trump on Proposed

Muslim Ban: ‘You Know My Plans’ (Dec.

21, 2016), http://ti.me/2HWS4FG...........cc0:ccceececeereeeees 30

TABLE OF AUTHORITIES—Continued

Theodore Schleifer, Donald Trump: ‘T think

Tslam hates us’, CNN (Mar. 10, 2016),

http://enn.it/1 RBKG6Z4 ..............cecccccecesenesessees

Ann M. Simmons, We don’t know exactly

what ‘extreme vetting’ will look like, but

screening for refugees is already pretty

tough, L.A. Times, Jan. 29, 2017,

Lesley Stahl, The Republican Ticket: Trump

and Pence, 60 Minutes (July 17, 2016),

http://cebsn.ws/Z9Nr LG] ...........:.eeesersneeeeneees

Alex Swoyer, Donald Trump Quotes the

Bible at Liberty University, Tells Youth

‘Never Give Up’, Breitbart (Jan. 18, 2016),

CSTE RIVE, V VERY Wi ccccsnccsccscccssossssnssconcsenccses

Donald J. Trump (@realDonaldTrump),

Twitter (Aug. 17, 2017, 11:45 AM),

RPE VIN FOE B ccccccssccsssccccsessssnecceseecscocene

Donald J. Trump (@realDonaldTrump),

Twitter (Mar. 22, 2016, 7:59 PM),

htt p://Mit. ly/ZWIGEBL.............-.-cccsesssesereesoessseons

Donald J. Trump for President, Inc., Donald

J. Trump Calls for American

Independence, Lays Out Need for

Immigration Security (Aug. 24, 2016),

Att /Mit Ly/BWAGLaG .00cccrrccvsssccesessesseccesseeerees

Page(s)

seveeeneonst 29

xii

TABLE OF AUTHORITIES—Continued

Trump Signs Executive Orders at Pentagon,

ABC News (Jan. 27, 2017),

Att pa//WOO. GU TISIPG.....0c0reessesrseserveseseesessossess

Trump’s Deleted “Preventing Muslim

Immigration” Statement, The Memory

Hole (Dec. 7, 2015), http://bit.ly/2wVdeML

U.S. Comm. for Refugees and Immigrants

(USCRD, Security screening of refugees

admitted to the United States,

http://refugees.org/wp-

content/uploads/2015/12/USCRI-Security-

Screening-Process-5.16.16.pdf (last visited

TS RTT ATE

UNHCR, Global Trends: Forced

Displacement in 2015 (2016),

http://bit. ly/2w V WBA U ........ceccceseseeeceeeeeeneseres

United States Citizenship and Immigration

Services (USCIS), Dep’t of Homeland

Security, Refugee Processing and

Security Screening (last updated Dec. 3,

2015), http://bit.ly/1 YodRyW...................000++

US Refugee Admissions Program: An

overview of built-in security safeguards

for refugee resettlement, Int’] Rescue

Comm., http://bit.ly/20eddF't (last visited

“| leet eee TT

Page(s)

xiii

TABLE OF AUTHORITIES—Continued

Page(s)

Amy B. Wang, Trump asked for a ‘Muslim

han,” Giuliani says — and ordered a

commission to do it ‘legally’, Wash. Post,

Jam. 29, 2017 ......scscesseserecesssscensnesnsasseresnenecsnenssssncnsanssens 26

Sarah Wildman, 9 Questions about the global

refugee crisis you were too embarrassed to

ask, Vox (updated June 20, 2017),

http://dit.ly/2pBN5KO..........--eeseeesesenernnennernnennennnannsnsee 24

Matthew Wisner, Donald Trump Calls for

End of Visa Waiver Program, Fox

Business (Mar. 22, 2016),

http://fxn.ws/1pHal .......--.--v--sserseeseneereenennnenneensnnes 29

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INTERESTS OF AMICI!

Oxfam America, Inc. and its affiliates (Oxfam) have

worked around the globe in more than 90 countries to

combat poverty and injustice. Although Oxfam plays a

critical role in responding to immediate crises, its

ultimate goal is to address the root causes of violence

and poverty by supporting civil society so that

communities can address their own problems. Oxfam

accordingly addresses the institutional issues that keep

people poor and é marginalized: inequality,

discrimination, and unequal access to resources

including food, water, and land.

Oxfam employs 8,500 people worldwide, works

with 60,000 volunteers, and operates in four of the six

countries targeted by Executive Order No. 13,780, 82

Fed. Reg. 13,209 (Mar. 9, 2017) (“Order” or “EO2”)

(Yemen, Syria, Somalia, and Sudan), with more than

300 employees stationed in those four countries.

Oxfam provides infrastructure and direct aid to

refugees, including to refugees from Somalia and Syria

living in neighboring countries. In Syria, Jordan, and

Lebanon, Oxfam is helping more than 2 million people

with life-saving clean water, sanitation, and vital

support for families who have lost everything. Oxfam

is one of the few non-governmental organizations

currently working in Sudan, providing desperately

| All parties have consented to the filing of this brief.

Letters evidencing such consent have been provided to the Clerk

of the Court. No counsel for a party authored this brief in whole

or in part; and no such counsel or any party made a monetary

contribution intended to fund the preparation or submission of this

brief. No person or entity, other than amici and their counsel,

made a monetary contribution intended to fund its preparation or

submission.

needed aid, including clean water and sanitation

programs, to people in the Darfur region and beyond.

The Executive Order harms Oxfam and _ the

organizations with which it works, and undermines its

mission to help people escape violence and build better

lives. Oxfam, therefore, has a direct interest in the

outcome of this case.

The International Rescue Committee (IRC) is a

non-profit, non-sectarian global organization that was

founded in 1933 and operates in over 40 countries

around the world. IRC is one of nine refugee

resettlement organizations in the United States that

contracts with the U.S. Department of State to resettle

pre-screened refugees. The IRC’s core mission is to

serve people forced to flee from war, conflict, and

disaster, and help them survive, recover, and gain

control of their lives. A substantial part of the IRC’s

work is providing aid to refugees, which it does

recognizing that refugees are the victims of terror, not

the perpetrators of it. Over the past 40 years, the IRC

has resettled| roughly 370,000 global refugees in cities

throughout the United States.

The IRC currently operates in 28 cities to oversee

domestic refugee resettlement. Starting from the

moment a new refugee arrives at the airport, the IRC

provides essential services to maximize successful

resettlement through its 28 U.S. offices. These offices

serve as a free, one-stop center for refugees’ needs

during their pivotal first months in the United States,

providing immediate aid, including food, housing, and

medical attention. The Executive Order suspending

the United States Refugee Program has interfered

with the [RC’s ability to carry out its mission and

directly harms those the IRC serves: refugees awaiting

resettlement to the U.S. and those already residing

here waiting to be reunited with them.

The U.S. Committee for Refugees and Immigrants

is a not-for-profit organization founded in 1911.

USCRI is one of nine refugee resettlement

organizations in the United States that contracts with

the U.S. Department of State to resettle pre-screened

refugees in the United States. To carry out its

protective mission, USCRI has created an extensive

nationwide network of organizations and individuals.

Since fiscal year 2011, USCRI has resettled 50,553

people through its network, including 11,127 in the

fiscal year ending September 30, 2016. Many of the

refugees who were resettled in 2016 were victims of

the ongoing violence in Syria and Iraq.

The Executive Order suspending the United States

Refugee Program ssignificantly interferes with

USCRI’s mission and operations. The Executive

Order directly harms not only USCRI, but also the

individuals and entities in the USCRI network who

stand ready to assist these heavily-screened displaced

individuals—many of whom are women and children,

and all of whom are the victims of horrific situations in

their home countries—integrate into, and become self-

sufficient members of, American society. USCRI

appeared as an amicus curiae before the Ninth Circuit,

and also filed a response in this Court in opposition to

the government's motion to stay the Ninth Circuit

order affirming the modified injunction.

Exodus Refugee Immigration Inc. (Exodus) is a

non-profit, refugee resettlement affiliate agency

founded in 1981 in Indianapolis, Indiana. Exodus is

dedicated to the protection of human rights by serving

the resettlement needs of refugees and other displaced

people fleeing persecution, injustice, and war by

welcoming them to Indiana. Exodus partners with

various community organizations and employers to

empower refugees in their initial months, days, and

year's in the United States by providing assistance with

housing, medica) and mental health case management,

English language acquisition, employment, and

immigration needs.

Exodus has a record of welcoming refugees from

many nationalities, cultures, languages, faiths, and

political persuasions. These individuals have come to

Indiana from 33 different countries, 4 of which are

included in the Executive Order’s list of travel-blocked

countries (Iran, Somalia, Sudan, and Syria). In fiscal

year 2016, Exodus received 947 refugees through the

admissions programs and expected similar arrivals in

2017 until the Executive Order curbed resettlement

and significantly reduced the expected arrival number

by more than 400. The Executive Order pausing

refugee admissions has obstructed Exodus’ mission to

welcome refugees to Indiana and has hindered the

process of resettlement for many refugees overseas

who have already been assured to the agency by the

federal government’s resett!ement process. Further,

the Executive Order has hampered the process of

reunification for many refugees served by Exodus

‘whose family members abroad await resettlement.

INTRODUCTION AND SUMMARY OF

ARGUMENT

On January 27, 2017, President Trump issued

Executive Order No. 13,768, 82 Fed. Reg. 8977 Jan. 27,

2017) (“E01”) designed to fulfill his campaign promise

to ban Muslims from entering the United States.

Although couched as a national security measure, EO1

was explicitly grounded in anti-Muslim stereotypes,

banned ali immigration from seven majority-Muslim

countries for 90 days, banned all refugees for 120 days,

and lowered the refugee limit (the “cap”) for 2017 from

110,000 to 50,000. Jd. at 8978-79. EOl exempted

religious minority refugees, and in statements the day

he enacted it, President Trump explained the

exemption was meant to protect Christian refugees.

Amidst public outcry against this “Muslim Ban”

and widespread confusion in its implementation, the

Ninth Circuit upheld an injunction prohibiting EO]

from taking effect. That led President Trump to issue

a second, slightly revised Executive Order on March 9,

2017. EO2 maintained the same basic structure as

EO1. Section 2 of EO2 bans immigration from six of

the seven originally named Muslim nations, and section

6 suspends the United States Refugee Program

(USRAP) for 120 days and reduces the cap on refugees

for fiseal year 2017 from 110,000 to 50,000. 82 Fed.

Reg. at 13,210-13, 13,216.

The hastily issued second Executive Order is no

more lawful than the first one. This amicus brief

focuses on EO2 section 6. When promulgating this

moratorium on refugee admissions and cutting total

admissions by almost 60%, the President exceeded his

statutory authority under the Immigration and

Naturalization Act (“INA”), 8 U.S.C. § 1101 et seq., in

two respects. First, the President impermissibly

reduced the refugee cap unilaterally without prior

consultation with Congress. Congress took the unusual

step of explicitly requiring such consultation when the

President sets the cap for each fiscal year or increases

it to accommodate refugee crises in order to ensure

itself a robust role and ensure an orderly, well-planned,

and predictable refugee admission process. See id.

§ 1157. To the extent the President has authority to

reduce the cap mid-year, he must engage in the same

consultation process. Instead, the President bypassed

Congress entirely, and his knee-jerk unilateral action

threatens exactly the kind of upheaval that Congress

passed the statute to avoid.

Second, to the extent that the President purported

to rely on his statutory authority under section 212(f)

of the INA, id. § 1182(f), the President failed to make

the requisite “find[ing]” that the class of refugees as a

whole (who were banned by the moratorium) or

refugees numbered 50,001-110,000 (who were excluded

by the new cap) are detrimental to the interests of the

United States. Nor could the President plausibly have

done so. This “class” of refugees includes tens of

thousands of children and refugees from parts of the

world that implicate none of the concerns that the

President recited, and both long-term and recent

experience establishes that refugees are far less likely

than this country’s own citizens to commit a terrorist

attack in the United States.

In addition to violating the INA, the President’s

issuance of EO2, including its refugee provisions,

violated the core Establishment Clause command that

government may not take actions that, in the eyes of a

reasonable observer, discriminate among religions by

denigrating a particular religion. In general, of course,

government actions are assessed on their own terms,

not based on ephemeral statements by government

actors leading up to or later explaining them. But

every principle has its limits, and this Court has rightly

refused to turn a blind eye in those rare circumstances

when governmental actors have declared outright that

they have acted with unconstitutional intent or animus.

That is, sadly, the situation here. Candidate,

President-elect, and President Trump’s’~ own

statements confirm that he issued EO1l and EO2 to

fulfill his repeated campaign promise to enact a Muslim

ban, and the text of the Order and its disproportionate

effect on Muslim refugees reflect that abiding animus.

The President has broad authority over the

country’s borders, but that authority remains subject

to the limits established by Congress and the

Constitution. EO2 is not a valid exercise of executive

authority.

ARGUMENT

I. THE PRESIDENT’S REDUCTION OF THE

REFUGEE CAP VIOLATED THE TIMING

AND CONSULTATION REQUIREMENTS

OF 8 U.S.C. § 1157

The INA created an oversight scheme for refugee

admissions that is codified at 8 U.S.C. § 1157. Section

1157 requires the President to set, and allows him to

raise, annual refugee admissions limits provided he

follows specific timing, consultation, and public

disclosure requirements. The statute grants the

President no authority to lower the refugee cap. But to

the extent that it may be read to allow him to do so, it

must be read to require the same consultation as when

the President sets or raises the refugee cap. When the

President acts unilaterally without engaging in this

required consultation process, he violates the statute,

undermines the role of Congress, and disrupts the

efforts of the voluntary agencies on whom the

government relies to implement its resettlement

programs.

When he lowered the refugee “cap” in EO2 section

6, President Trump failed even to acknowledge the

consultation requirements of section 1157, much less

comply with them. The Order violates the text and the

purpose of section 1157.

A. The President’s Unilateral Reduction Of

The Refugee Cap Violated The

Requirements Of Section 1157

In issuing EO2 section 6, the President failed to

comply with the consultation procedures of section

1157, which Congress established to ensure that it and

critical stakeholders would have input in_ the

establishment of the annual targets for refugee

resettlement in the United States. Subsection (a)(2)

provides that “the number of refugees who may be

admitted under this section in any fiscal year after

fiscal year 1982 shall be such number as the President

determines, before the beginning of the fiscal year and

after appropriate consultation, is justified by

humanitarian concerns or is otherwise in the national

interest.” 8 U.S.C. §1157(a)(2) (emphasis addec).

Subsection (e), in turn, defines “appropriate

consultation” as “discussions in person by designated

Cabinet-level representatives of the President with

members of the Committees on the Judiciary of the

Senate and of the House of Representatives” to review

the refugee situation and the participation of the

United States in resettlement of refugees in light of

specitie information defined by statute. Jd. § 1157(e)

(emphasis added). Subsection (e) applies to both

setting the refugee cap under (a) and raising it under

(b). See id. $§ 1157(a), (b), (e); see also 123 Cong. Rec.

3431 (1977); Deborah E. Anker & Michael H. Posner,

The Forty Year Crisis: A Legislative History of the

Refugee Act of 1980, 19 San Diego L. Rev. 9, 52 (1981).

Subsection (d) requires public disclosure of the

consultation in the Congressional Record and via public

hearings, along with periodic review with designated

stakeholders.2, 8 U.S.C. § 1157(d). Thus, Congress

envisioned an orderly, deliberate, and collaborative

process for refugee allocation taking place before the

start of the fiscal year, and only after detailed

consultation with designated members of Congress and

an opportunity for public engagement.

Subsection (b) of section 1157 authorizes the

President to alter the cap in certain situations. It

provides that, when there is “an unforeseen emergency

refugee situation,” the President may “fix a number of

refugees to be admitted to the United States during

the succeeding period (not to exceed twelve months)”

after consultation with Congress. Jd. §1157(b). But

the text and legislative history make clear that this

provision only allows the President to increase the cap.

It is reserved for the emergency admission of

additional refugees, when “the admission to the

United States of these refugees cannot be

accomplished under subsection (a).” Jd.; see also, e.g.,

Refugee Act of 1979: Hearings on H.R. 2816 Before the

Subcomm. on Immigration, Refugees, and

International Law of H. Comm. on the Judiciary, 96th

Cong. 29 (1979) (statement of Rep. Hamilton Fish,

2 Notably, Subsection (d) calls for “periodic discussions”

among stakeholders “for adjustments in the allocation of

admissions among refugees,” but does not envision changes to the

allocated number itself. See 8 U.S.C. §1157(d)(1) (emphasis

added). The statute is set up so that the refugee cap is established

in advance, so much so that even when Congress and stakeholders

discuss refugees, they are not changing the refugee cap.

testimony of Hon. Griffin B. Bell, Atty. Gen.)

(“Hearings on H.R. 2816, 96th Cong.”) (“[T]he

President is authorized to admit emergency situation

refugees, and these are, by definition, the unforeseen

situations.”); id. at 31 (“I would recommend you keep

the figure low, because the world may become calm

.... ’d rather keep [the cap] low, but let the President

ask for extra numbers if he needs them, in consultation

with the Congress.”).

The statute provides no mechanism for the

President to lower the refugee cap mid-year. In the

governinent’s view, this means the President is free to

lower the cap whenever he wishes and to do so

unrestricted by the consultation requirements that

apply when the cap is initially set or increased. See

Gov't Br. 60-62. The government contends that

allowing the President to lower the cap unilaterally

makes sense, because the statutory process is

concerned with setting limits on refugee admissions,

not ensuring that any number actually be admitted.

See id. at 61-62 (emphasizing that in practice the

number of refugees admitted almost always falls short

of the cap). According to the government, therefore,

E02’s “refugee cap does not violate 8 U.S.C. 1157,

which establishes a procedure for setting the maximum

number of refugees who may be admitted each year,

but does not set a minimum number who must be

admitted.” Gov’t Br. 21.

The government is wrong. To begin with, where

Congress has explicitly directed the President to set

annual refugee admission caps, and _ explicitly

authorized the President to increase the caps mid-year

in emergency circumstances, the most likely inference

from the statute’s utter silence on mid-year lowering of

the caps is that the President lacs that authority—not

that Congress delegated such authority sub silentio.

See Louisiana Pub. Serv. Comm’n v. FCC, 476 U.S.

355, 374 (1986) (“[A]n agency literally has no power to

act ... unless and until Congress confers power upon

it.”); Ethyl Corp. v. EPA, 51 F.3d 1053, 1060 (D.C. Cir.

1995) (“We refuse, once again, to presume a delegation

of power merely because Congress has not expressly

withheld such power.”). But even if section 1157 were

interpreted to allow the President to make mid-year

downward adjustments, it cannot reasonably be

interpreted to allow him to do so free of the detailed

consultation requirements that apply when the cap is

initially set or increased. It is unreasonable to presume

that Congress enumerated specific requirements the

President must follow to establish the number and

allocation of the refugees, as justified by humanitarian

concerns and the national interest, after an obligatory

consultation process, only to permit the President to

order a midyear reduction ad hoc without engaging in

any consultation whatsoever.

The government is of course correct that the caps

are a limitation, not a target, and that nothing in

section 1157 requires the President to ensure the

admission of any particular number of refugees. But

the discretion to admit fewer refugees is not the same

thing as the power to lower the cap. By purporting

formally to lower the maximum number of refugees

who “may” be admitted, the President acted beyond his

statutory authority.

The error in the government’s contrary reasoning is

clear from the following analogy. Ifa fire department

determines that a lecture hall “may” safely contain only

100 people, the fact that classes regularly are held with

only 30 people does not change this maximum lawful

capacity. If, after further inspection, the fire

department lowers the maximum capacity to 50, it has

altered how many people “may” be in the room at a

time. In exactly the same way, when the President

effects a reduction in the cap, he has changed the

number of refugees who “may be admitted.” And it is

highly unlikely that Congress intended to authorize the

President to unilaterally alter the number of refugees

admitted, without consultation, when consultation is

both explicitly required in the statute and was central

to Congress’s mission in enacting the INA. The

consultation requirement was, after all, at the heart of

the reforms of the 1980 Refugee Act. Before its

enactment, the Attorney General had wide discretion

unilaterally to set the number of refugees admitted to

the U.S. through “parole” provisions. The 1980 Act

was passed because of an increase in the number of

refugee crises occurring worldwide and a

corresponding need for more than an ad hoc system,

see H.R. Rep. No. 96-608, at 6 (1979) (citing Statement

of J. Kenneth Fesick, Director, U.S. Gen. Accounting

Office before the Subcomm. on Asian and Pacific

Affairs on Indochine Refugee Assistance Programs

(Apr. 24, 1979),

http://www.gao. gov/assets/100/99083. pdf), and a more

robust coordinate role for Congress. The 1980 Act

formalized the role of Congress in the refugee

allocation process, ensuring a more rigorous system

that allowed Congress and executive agencies jointly to

plan and budget in advance.

During consideration of the 1980 Act, “the [djebate

centered on congressional control over refugee

admissions numbers and strengthening of the

consultation process.” Anker & Posner, 19 San Diego

L. Rev. at 56. The House Report stated “the

Committee cannot over-emphasize the importance it

attaches to consultation.” H.R. Rep. No. 96-608 at 14.

Extensive discussions on the floor and in hearings

further underscored the significance that Congress

attached to consultation. For instance, Representative

Lundgren stated that in the past, “many of us in the

Congress have felt that consultation has not been the

cornerstone” and asked the Attorney General “what

real signal do we have in the Congress that if we pass

this legislation there would, in fact, be good faith, real

efforts to consult with us before some major decision

would be made by the President in the area of

refugees[?] ... Would you have an objection to ...

mak[ing] [the Act] very specific what we are talking

about in terms of consultation with the Congress?”

Hearings on H.R. 2816, 96th Cong. at 30 (statement of

Rep. Dan Lundgren, testimony of Hon. Bell). And in

the House Subcommittee hearings leading up to the

1980 Act, Chairwoman Holtzman stated that “[aJny

new legislation should clearly define what part

Congress will play in refugee decisionmaking, and that

role should not be a pro forma one.” /d. at 2.

Having made _ such detailed provision for

consultation in the initial establishment of and any

interim increases in the level of the cap, the statute

cannot reasonably be interpreted to allow the

President to lower the cap unilaterally with no

consultation at all. See First Nat'l Bank of Atlanta v.

Bartow Cty. Bd. of Tax Assessors, 470 U.S. 583, 595-96

(1985) (refusing to infer that Congress sub silentio

adopted a provision inconsistent with the rest of the

statutory scheme). And until now, no President has

ever attempted to lower the cap mid-year, especially

without consulting Congress.®

B. The President’s Ad Hoc And Post Hoc

Action Undermined The Underlying

Goals Of Section 1157

Congress’s emphasis on consultation was more than

simply a desire to ensure a robust role for itself.

Congress recognized the need for an orderly and

informed refugee process. Before passage of the 1980

Act, contemporaneous commentators observed that

“(t]he absence of a coherent refugee policy, as

demonstrated by the use of sporadic, ad hoc parole

actions, created needless uncertainties for voluntary

agencies and for United States officials participating in

resettlement. In addition, it confused other nations,

causing them to become less motivated to share in

refugee relief.” Anker & Posner, 19 San Diego L. Rev.

at 33. During the debate over the Act, members of the

executive branch expressed similar concerns,

explaining that the “sudden termination of previously

agreed upon programs would be ‘disruptive of a

harmonious’ relationship between the two branches

and place the United States in ‘an awkward

international position of being unable to honor a

commitment to participate in a refugee resettlement of

a multilateral character.” Id. at 39 (quoting

3 See Legal Information Institute, 8 U.S. Code

§ 1157 - Annual admission of refugees and admission

of emergency situation refugees,

https://www.law.cornell.edu/uscode/text/8/1157 (follow

“Notes” tab) (a listing of each “Presidential

Determination Concerning Admission and Adjustment

of Status of Refugees”).

Admission of Refugees into the United States:

Hearings on H.R. 3056 Before the Subcomm. on

Immigration, Citizenship and Int'l Law of the H.

Comm. on the Judiciary, 95th Cong. 79 (1977)).

Congress understood that refugee agencies like

amici are key to the efficient functioning of a refugee

resettlement system. Under federal law, the

government relies on these agencies to implement the

refugee resettlement process. The statute directing

the Office of Refugee Resettlement (within the federal

Department of Health and Human Services) to manage

the resettlement process specifies that “[iJt is the

intent of Congress that in providing refugee assistance

local voluntary agency activities should be

conducted in close cooperation and advance

consultation with State and local governments.” 8

U.S.C. §1522(aX1)(B). To that end, the statute

requires federal agencies to “consult regularly (not less

often than quarterly) with State and local governments

and private nonprofit voluntary agencies concerning

the sponsorship process and the intended distribution

of refugees.” Jd. § 1522(a)(2)(A) (emphasis added).

When Congress passed the 1980 Act, the federal

Coordinator for Refugee Affairs recognized that the

government’s “relationship with the private volunteer

agencies”’—which work overseas “with the

international organizations that manage the refugee

camps” and “in this country ... [to] provide an

important link between the federal government and

the private sector in providing placement and other

resettlement services”—is “[a] crucial element in both

our international and domestic assistance programs.”

Hearings on H.R. 2816, 96th Cong. at 39 (statement of

Dick Clark, Ambassador at Large and USS.

Coordinator for Refugee Affairs). It was anticipated

that the consultation required by the 1980 Act would

“facilitate long-term planning of budget and admission

levels and permit smoother functioning of assistance

programs.” Jd. Consultation and stable long-term

planning is vital, because an abrupt change in refugee

numbers disrupts the ability of these private refugee

resettlement agencies to maintain infrastructure, hire

staff, and contract with local authorities and partners.

And these effects in turn impact the operations and

capacity of the entire refugee resettlement system.

Congress’s provision for coherent and inclusive

long-term planning was entirely disregarded here.

Issued ad hoc and post hoc, the EOs created precisely

the kind of “sudden termination” that Congress and the

Executive sought to prevent through the 1980 Act.

The President’s abrupt unilateral actions have strained

the Nation’s established multi-national commitments,

and devastated agencies’ long-term planning efforts—

precisely the consequences that Congress sought to

avoid.

Il. THE PRESIDENT’S REDUCTION OF THE

REFUGEE CAP AND TEMPORARY BAN

ON ALL REFUGEE ADMISSIONS

EXCEED THE AUTHORITY CONGRESS

DELEGATED TO THE PRESIDENT

UNDER 8 U.S.C. § 1182(f)

When President Lyndon Johnson signed the INA at

the Statue of Liberty in 1965, he stated that the law

established a simple and fair test that “those who can

contribute most to this country—to its growth, to its

strength, to its spirit—will be the first that are

admitted to this land,” undoing the “harsh injustice of

the national origins quota system.”* In that spirit, the

INA contains detailed provisions and structures for the

admittance of aliens into the United States. But at the

same time, because pre-set policies do not always

provide needed flexibility, Congress retained the

President’s unilateral authority to suspend entry “of all

aliens or any class of aliens as immigrants or

nonimmigrants” in special circumstances not otherwise

provided for in the INA. 8 U.S.C. §1182(f). This

authorization, however, does not grant the President

carte blanche to override the rest of the INA. Before

the President may invoke his statutory authority to

suspend entry of a class of aliens under section 1182(f),

he must first “find[]” that entry of that class would be

“detrimental to the interests of the United States.” Jd.

President Trump invoked section 1182(f) as his

authority to reduce the cap on refugees from 110,000 to

50,000. He did not cite any law as his authority for

suspending the entire USRAP, but the government

has since claimed that section 1182(f) authorized that

action as well. Gov’t Br. 39. But neither action is

authorized by this statute. The Order does not make

anything that could qualify as a “finding” that refugees

as a class are detrimental to the United States. Nor

could the President plausibly have made such a finding,

since the historical record establishes that, given the

existing rigorous screening process, refugees as a class

do not remotely threaten the public interest.

4 LBJ Presidential Library, LBJ on Immigration, President

Lyndon B. Johnson’s Remarks at the Signing of the Immigration

Bill Liberty Island, New York (Oct. 3, 1965),

http://www. lbjlibrary.org/lyndon-baines-johnson/timeline/|bj-on-

immigration.

To be sure, EO2 “proclaim|s}” that “the entry of

more than 50,000 refugees in fiscal year 2017 would be

detrimental to the interests of the United States.”

EO2 § 6(b). It also recites that (i) “[tlerrorist groups

have sought to infiltrate several nations through

refugee programs,” id. § 1(b)(ii); (ii) three “individuals

who first entered the country as refugees” have been

“convicted of terrorism-related crimes,” id. § 1(h); and

(iii) “more than 300 persons who entered the United

States as refugees are currently the subjects of

counterterrorism investigations by the Federal Bureau

of Investigation,” id.

But the “finding” that section 1182(f) requires must

be more than a rote declaration and recitation. The

term “finding” has a well-understood and established

meaning in the law, invoking a reasoned determination.

Beech Aircraft Corp. v. Rainey, 488 U.S. 1538, 164

(1988) (“A common definition of ‘finding of fact’ is, for

example, ‘[a] conclusion by way of reasonable inference

from the evidence.” (alteration in original) (citation

omitted)); see also Delegation of Power by Congress, 48

Harv. L. Rev. 798, 805 (1935) (“The mere recital of [the

statute’s] phrases would seem inadequate as

‘findings.”); FINDING OF FACT, Black’s Law

Dictionary (10th ed. 2014) (“A determination ... of a

fact supported by the evidence .... Often shortened to

finding.”). Reducing it, as the government would, to a

formalistic recitation, regardless of even facial

plausibility, would make the requirement of a finding

meaningless, and Congress is not presumed to create

empty requirements. United States v. Menasche, 348

U.S. 528, 538-39 (1955) (“It is our duty ‘to give effect, if

possible, to every clause and word of a statute’... .”

(citation omitted)); Duncan v. Walker, 5338 U.S. 167,

174 (2001) (same).

For the “finding” requirement that Congress

imposed on the President to accord with its established

meaning, the President must do more than simply

declare he has made one. While the government

wishes to claim that the President’s burden to justify a

section 1182(f) exclusion is minimal, there is a point at

which an exclusion is so illogical or fundamentally

unsupported by reason that a mere proclamation

cannot sustain it. And on the face of EO2, there is

nothing justifying a ban on all refugees.

The text of EO2 is insufficient to satisfy even that

most minimal requirement. None of the supporting

facts recited in EO2 suggests that refugees present

heightened risks. The Order states that “[t]errorist

groups have sought to infiltrate several nations

through refugee programs,” but does not claim that

any such infiltration attempts were successful, much

less that they would have posed any danger to the

United States in light of our country’s rigorous vetting

procedures. The Order al identifies three refugees

who have been convicted of terrorism-related crimes in

this country (out of more than three million admitted

here). Banning all refugees for that reason would be

akin to banning all men because all three convictions in

question were of men, Finally, EO2 observes that 300

refugees in the U.S. have been subjects of FBI

counterterrorism investigations. But those 300

refugees represent less than a tenth of a percent of all

5 O02 § 1(h).

refugees admitted since 1975, and 99.95% of FBI

investigations end without a terrorism conviction for

attempts to perpetuate a terrorist attack against the

United States.?

The President’s failure to muster any actual

support for EQO2’s_ anti-refugee provisions is

unsurprising, because there is nothing innately

dangerous about refugees as a class. Unlike nationals

of a particular country or individuals with particular

characteristics or associations, “refugees” covers a

broad and unrelated range of people who lack any

unifying quality that might cause them, as a class, to

threaten the U.S. public interest. “[{RJefugee[s]”’ are

defined by statute as people who have a well-founded

fear of persecution on account of race, religion,

nationality, membership in a particular social group, or

political opinion that makes them unable or unwilling to

avail themselves of the protection of their home

country. 8 U.S.C. § 1101(a)(42). As such, refugees are

linked solely by their status as vulnerable and

displaced individuals. Their common profile is hardship

and displacement, not dangerousness. In fact,

UNICEF estimated that nearly half of all refugees

worldwide are children.? And they include a massive

number of people (including children) that have no

articulable link to terrorism, even as per the reasoning

of EO2. Treating refugees as a class for section 1182

purposes is not defensible.

6 David Bier, CATO Institute, Deconstructing Trump's

Security Defense of His Immigration Ban (Mar. 9, 2017),

http://bit.ly/2xgHdZu.

7 Id.

8 Nearly Half of All Refugees are Children, Says Unicef,

The Guardian, (Sept. 14, 2016), http://bit.ly/2emF fek.

The Order’s presumption of dangerousness is

especially indefensible with respect to the Order’s

refugee cap reduction. The Order would allow the

entry of refugees numbers 1 through 50,000, but bar

entry of refugees numbers 50,001 through 110,000. But

a refugee’s place in the resettlement queue is an

arbitrary and nonsensical basis for exclusion. Section

1182(f) provides the President no authority to remake

immigration policy by whim.

The absence of evidence supporting the purported

need to ban refugees is unsurprising for another

reason: this country already applies an extremely

thorough vetting process for refugees. To embark on

the often years-long refugee resettlement process, an

applicant first must register and interview with the

United Nations (UN), which determines whether to

grant refugee status.? To make that determination, the

UN assesses whether the person is among the most

vulnerable refugees and therefore eligible for

resettlement in a country like the United States.)

Once an applicant is deemed a “refugee,” she is

referred to a specific country for resettlement. After a

refugee is referred to the United States for

resettlement, she must interview with a State

9 United States Citizenship and Immigration Services

(USCIS), Dep’t of Homeland Security, Refugee Processing and

Security Screening (last updated Dec. 3, 2015),

http://bit.ly/1YodRyW; Haeyoun Park & Larry Buchanan,

Refugees Entering the U.S. Already Face a Rigorous Vetting

Process, N.Y. Times, Jan. 29, 2017, http://nyti.ms/207WN2o.

10 Park & Buchanan, supra note 9; Amy Pope, Infographic:

The Screening Process for Refugee Entry into the United States,

Obama White House Archives (Nov. 20, 2015),

http://bit.ly/2kqqbmh.

Department partner organization.!! The refugee then

undergoes two background checks, along with three

fingerprint screenings.!2 These background checks

include consultation with the State Department, the

Federal Bureau of Investigation, the Drug

Enforcement Agency, the National Counterterrorism

Center, the Department of Defense, and Interpol.!®

Syrian refugees in particular must undergo two

additional steps at this point: review by a refugee

specialist from the United States Citizenship and

Immigration Services and review by the Department

of Homeland Security.!4 Only after all of these

extensive checks and screenings are complete does the

refugee attend an in-person interview with a Homeland

Security officer..° After evaluating the applicant’s

credibility and reviewing the case file, the officer

determines whether to admit the applicant as a

refugee.'6 The refugee must then undergo a screening

for contagious disease and a cultural orientation class. !7

Finally, because the amount of time between the initial

screening and actual departure is often significant,

there is another security check before the refugee can

11 Park & Buchanan, supra note 9; U.S. Comm. for Refugees

and Immigrants (USCRD, Security screening of refugees admitted

to the United States, http://refugees.ory/wp-

content/uploads/2015/12/USCRI-Security-Screening-Process-

5.16.16.pdf (last visited Sept. 14, 2017).

12 Park & Buchanan, supra note 9.

13 USCIS, supra note 9.

14 Park & Buchanan, supra note 9; USCRI, supra note 11.

15 Park & Buchanan, supra note 9.

16 Jd; USCIS, supra note 9; USCRI, supra note 11.

17 USCRI, supra note 11; USCIS, supra note 9.

actually travel to the United States and begin the next

chapter of her life.18 This process is far more extensive

than for any other type of admission to the United

States.

In fact, because of this rigidly choreographed

process, the Order’s refugee ban is not simply a matter

of a 120-day delay. Many of the checks conducted

during the refugee admission process expire after a set

amount of time. For instance, some medical tests

expire within three months, while other checks and

screenings are valid for a little over a year.!9 The

combination of these different windows of validity

often leaves a refugee less than a two-month period

during which all of her checks are simultaneously

valid.2° Once a check expires, during the time it takes

to repeat that check, another check may expire,

creating a domino effect. This becomes even more

complicated when a family attempts to travel together,

18 Park & Buchanan, supra note 9.

19 Medical Examination: Frequently Asked Questions

(FAQs), Ctr. for Disease Control and Prevention (last updated

Feb. 22, 2017), http://bit.ly/2ocISHp; US Refugee Admissions

Program: An overview of built-in security safeguards for refugee

resettlement, Int’l Rescue Comm., http://bit.ly/20eddFt (last

visited Sept. 14, 2017); Elise Foley & Willa Frej, Court Ruling

May Force Trump To Admit The Number Of Refugees Obama

Wanted, Huffington Post, Mar. 20, 2017, http://huff.to/2mUyCGi;

see also Natasha Hall, Refugees are already vigorously vetted. I

know because I vetted them., Wash. Post, Feb. 1, 2017,

http://wapo.st/2oEGRHZ; Ann M. Simmons, We don’t know

exactly what ‘extreme vetting’ will look like, but screening for

refugees is already pretty tough, L.A. Times, Jan. 29, 2017,

http://lat.ms/2jKJvsP.

20 Erol Kekic, Homeland Security Chief John Kelly Says

Waiting 120 Days Won't Hurt Refugees. He’s Wrong, Time (Feb.

10, 2017), http://ti.me/2ITA YTS.

because all of their windows need to line up at the same

time.2! If the window for travel expires before the

refugee has made it to the United States, the refugee

must generally start the process all over again from the

beginning.22 This could take up to another two years.

And this delay would likely be compounded by the

backlog created by the Order’s dramatic decrease in

total refugee admissions. The added years of waiting

are more than just an inconvenience. Refugees, by

definition, are the most vulnerable people on earth,

fleeing persecution, lacking the most basic necessities,

and at constant risk of violence. In many cases, an

additional delay has life-or-death consequences.

Due in part to the extremely thorough vetting,

experience demonstrates that, in fact, refugees are far

less likely than other foreign nationals, or even United

States citizens, to commit deadly terrorist attacks in

the United States.22 Between 1975 and 2015, the

United States admitted 3.3 million refugees and only

three (all from Cuba, all prior to 1980) engaged in

deadly acts of terrorism in the United States.% In that

time period, the annual risk of death to a United States

resident by a refugee terrorist in the country was 1 in

3.64 billion.25 (To put this in perspective, the chance of

21 Id.

22 Sarah Wildman, 9 Questions about the global refugee

crisis you were too embarrassed to ask, Vox (updated June 20,

2017), http://bit.ly/2p8N5k0; Michael Brindley, After Trump’s

Executive Order, Refugees Who Were N.H. Bound Now On Hold,

N.H. Pub. Radio (Jan. 31, 2017), http://bit.ly/2pwf6hT.

23 Bier, supra note 6.

24 Alex Nowrasteh, Terrorism and Immigration: A Risk

Analysis, Policy Analysis 13 (Sept. 13, 2016), http://bit.ly/2kem9fJ.

25 Bier, supra note 6.

being killed in a regular homicide was 1 in 14,000.2°)

Tourist visa holders are 1,000 times more likely than

refugees to kill someone in the United States in a

domestic terrorist attack.2”7 Indeed, an analysis of

refugee resettlement data has revealed that after

refugees move into an American city, crime usually

goes down, sometimes by drastic amounts.28

As the Cato Institute’s recent report found, only 20

refugees planned, attempted, or carried out any

terrorist attack in the United States from 1975 to

2015.29 Of these attacks, only three were fatal and all

three occurred before 1980 and the institution of

modern vetting procedures.°® More recently, of the

784,000 refugees resettled in the United States since

September 11, 2001, just three were even arrested for

planning terrorist activities, only one of those was

planned to take place in the United States, and the plan

was described as “barely credible.”*! The data fit the

reality of refugee admission: refugees resettled in the

United States are vulnerable people who, as a class,

pose no threat to the public interest. The Order

contains no legitimate “finding” otherwise.

26 Jd.; see also Alex Nowrasteh, Americans’ Fear of Foreign

Terrorists Is Overinflated, Time.com (Sept. 13, 2016),

http://ti.me/2j)KIQVK.

27 Nowrasteh, supra note 24, at 5.

28 Tanvi Misra, Are Refugees Dangerous?, Citylab (Feb. 14,

2017), http://bit.ly/2sSlg1f.

23 Nowrasteh, supra note 24, at 2, 8, 13.

30 Jd. at 13.

31 Lauren Gambino, Trump and Syrian refugees in the US:

separating the facts from fiction, The Guardian (Sept. 2, 2016),

http://bit.ly/2fQFOwP.

III. EO2, INCLUDING THE ANTI-REFUGEE

PROVISIONS OF SECTION 6, IS A THINLY

VEILED ATTEMPT TO EXCLUDE

MUSLIMS ON RELIGIOUS GROUNDS IN

VIOLATION OF THE ESTABLISHMENT

CLAUSE

As a_ candidate, President Trump famously

promised to enact “a total and complete shutdown of

Muslims entering the United States.”82 That would

have been blatantly unconstitutional. So this explicit

Muslim ban morphed, campaign adviser Rudolph

Giuliani explained, into the idea of using nationality as

a proxy for religion.?° Shortly after he was sworn into

office, President Trump put that idea into action via

EO1 and EO2. In light of Donald Trump’s numerous

statements as a candidate, President-elect, and later as

President evidencing anti-Muslim animus, the Muslim-

specific rationales for excluding refugees, and the

disproportionate impact that the refugee ban and

lowered cap have on Muslims, a reasonable observer

would conclude that EO2, including the refugee-specific

provisions of section 6, was driven by impermissible

animus.

32 Fred Barbash, Muslim ban language suddenly

disappears from Trump canipaign website after Spicer

questioned, Wash. Post, May Y, 2017, http//wapost/2wlWTR9;

Trump’s Deleted “Preventing Muslim Immigration” Statement,

The Memory Hole (Dec. 7, 2015), http://bit.ly/2wVdceML.

33 Amy B. Wang, Trump asked for a ‘Muslim ban,” Giuliani

says — and ordered a commission to do it ‘legally’, Wash. Post,

Jan. 29, 2017, http://wapo.st/2gYT0lq.

A. President Trump’s Statements Evince

Clear Anti-Muslim Animus

President Trump’s statements as a_ recent

candidate, the President-elect, and now President bear

on the assessment of whether his Executive Order was

motivated by anti-Muslim animus. It is well

established that the government cannot “denigrate .. .

religious minorities,” “signal disfavor” toward a faith,

or “suggest that [one’s] stature in the community [is] in

any way diminished” because of one’s religion. Town of

Greece v. Galloway, 134 S. Ct. 1811, 1823, 1826 (2014).

In evaluating whether a government action crossed

that line, a court acts as a reasonable, “objective

observer.” McCreary Cty. v. Am. Civil Liberties

Union of Ky., 545 U.S. 844, 862 (2005). As

Respondents explain, this analysis is relevant both to

assessing whether the Order’s rationale is “bona fide”

under Kerry v. Din, 1385 S. Ct. 2128 (2015), and

Kleindienst v. Mandel, 408 U.S. 753 (1972), and to

assessing whether it violates the First Amendment

under Town of Greece. No. 16-1436 Resps. (IRAP) Br.

32-50; No. 16-1540 Resps. (Hawaii) Br. 48-52.

While a court considering unconstitutional animus

mut; avoid “judicial psychoanalysis of a drafter’s heart

of hearts,” that does not mean it must turn a blind eye

to statements explicitly evidencing bias. McCreary,

545 U.S. at 862. To the contrary, a court must consider

“readily discoverable fact[s],” id., including the action’s

“historical context” and “the specific sequence of

events leading to [its] passage,” Hdwards v. Aguillard,

482 U.S. 578, 595 (1987). This includes examination of

statements of purpose by the lawmaker. See, e.g., id. at

587-88, 591-94 (discussing the statements of the

legislative sponsor to conclude that the law had an

illicit purpose and therefore violated the Establishment

Clause).

No psychoanalysis is needed to recognize that the

Executive Order was targeted specifically at

Muslims—that is what President Trump said on many

occasions.

e On December 7, 2015, then-candidate Trump

issued an official statement “calling for a total

and complete shutdown of Muslims entering

the United States until our country’s

representatives can figure out what is going

on,”84

e Candidate Trump’s then-campaign manager

Corey Lewandowski told CNN that the ban

would apply not just to Muslim foreigners

looking to immigrate to the U.S., but also to

Muslims looking to visit the U.S. as

tourists. %5

e The next day, then-candidate Trump

explained how this would work. “(They

would say, are you Muslim?” Contributor

Willie Geist then volunteered “And if they

said yes, they would not be allowed in the

country,” to which Trump responded “That’s

correct.”96

34 Fred Barbash, Muslim ban language suddenly

disappears from Trump campaign website after Spicer

questioned, Wash. Post, May 9, 2017, http://wapo.st/2w1WTR9;

irump’s Deleted “Preventing Muslim Immigration” Statement,

The Memory Hole (Dec. 7, 2015), http://bit.ly/2wVdcML.

35 Jeremy Diamond, Donald Trump: Ban all Muslim travel

to U.S., CNN (Dec. 8, 2015), http://enn.it/IQbhhSR.

36 Nick Gass, Trump not bothered by comparisons to Hitler,

Politico (Dec. 8, 2015 7:51 AM), http://politi.co/1X YTrc8.

e Shortly thereafter, on January 18, 2016, then-

candidate Trump vowed: “We’re going to

protect Christianity”; “I don’t have to be

politically correct, we’re going to protect

it.”37

« On March 9, 2016, then-candidate Trump said

“T think Islam hates us,”88 and two weeks

later on March 22, 2016, he declared “we’re

having problems with the Muslims, and we’re

having problems with Muslims coming into

the country.”9

¢ On March 22, 2016, he tweeted “Incompetent

Hillary, despite the horrible attack in

Brussels today, wants borders to be weak

and open-and let the Muslims flow in. No

way!”’40

e On May 4, 2016, when a reporter asked then-

candidate Trump “Do you stand for example

by the idea of a ban against foreign Muslims

coming here?” he responded “I do. We have

to be vigilant.”4!

37 Alex Swoyer, Donald Trump Quotes the Bible at Liberty

University, Tells Youth ‘Never Give Up’, Breitbart (Jan. 18, 2016),

http://bit.ly/2x Vv2yw.

88 Theodore Schleifer, Donald Trump: ‘I think Islam hates

us’, CNN (Mar. 10, 2016), http://enn.it/1RBk6Z4.

39 Matthew Wisner, Donald Trump Calls for End of Visa

Waiver Program, Fox Business (Mar. 22, 2016),

http://fxn.ws/1pHa1n8.

40 Donald J. Trump (@realDonaldTrump), Twitter (Mar. 22,

2016, 7:59 PM), http://bit.ly/2wl9E Bt.

41 Presumptive GOP Nominee Trump Goes One-on-One

With Lester Holt at 2:07, NBC News (May 4, 2016),

http:/nbenews.to/1SZtlAq.

e As a candidate, sometimes Donald Trump

would make only veiled references to Islam,

clear only from the context and his prior

statements. For instance, he stated that

“Hillary Clinton also wants to push to bring

in 620,000 refugees in her first term—a

number of whom coine frou: countries where

women and gays are horribly brutalized—

which will weaken our tolerant way of life.”’42

e When asked soon after the election, on

December 21, 2016, whether he had

rethought or reevaluated his “plans to create

a Muslim register and ban Muslim

immigration to the United States?” then-

President-elect Trump responded “You know

my plans.”48

* Now-President Trump continues to showcase

the same anti-Muslim animus. In response to

the recent Barcelona terror attack, President

Trump tweeted: “Study what General

Pershing of the United States did to

terrorists when caught. There was no more

42 Donald J. Trump for President, Inc., Donald J. Trump

Calls for American Independence, Lays Out Need for

Immigration Security (Aug. 24, 2016), http://bit.ly/2wqaLzG.

43° Donald Trump: “...You Know my Plans...” at 0:12, Daily

Mail.com (Dec. 22, 2016), https://www.youtube.com/

watch?v=ip4vsPInyRY; Madeline Conway, Trump stokes fears

he'll pursue Muslim ban, Politico (Dec. 22, 2016 8:09 AM),

http://politi.co/2hgmkXM; Katie Reilly, Donald Trump on

Proposed Muslim Ban: ‘You Know My Plans’, Time.com (Dec. 21,

2016), http://ti.me/2hWs4FG.

Radical Islamic Terror for 35 years!”44 This

is a reference to an apocryphal story that

General Pershing killed Muslim terrorists

with bullets dipped into the blood of pigs and

buried their bodies with the bodies of pigs.*°

As Rudolph Giuliani explained, in an attempt to

avoid the obvious constitutional problems with an

explicit anti-Muslim ban, nationality was introduced as

a proxy for religion. But before and after assuming

office President Trump made clear this was just

window-dressing.

e On July 26, 2016, he explained that while he

was not “changing [his] position” on what

Vice-Presidential candidate Pence had

termed his “{c]all[] to ban Muslims from

entering the U.S.,” he would “call it

territories” instead.*®

« Upon signing EOl1, after reading the title

aloud (which is “Protecting the Nation from

Foreign Terrorist Entry into the United

States”), President Trump said “We all know

what that means.”4?

44 Donald J. Trump (@realDonaldTrump), Twitter (Aug. 17,

2017, 11:45 AM), http://bit.ly/2fO75F'i.,

45 Dan Bowens, Trump tweets fake Gen. Pershing story after

Spain attack, FOX 5 (Aug. 17, 2017), http://bit.ly/2jjr8wH; General

Pershing on How to Stop Islamic Terrorists, Snopes (last updated

Aug. 17, 2017), http://;www.snopes.com/rumors/pershing.asp.

46 Lesley Stahl, The Republican Ticket: Trump and Pence,

60 Minutes (July 17, 2016), http://cbsn.ws/29NrLqj.

47 Trump Signs Executive Orders at Pentagon at 0:36, ABC

News (Jan. 27, 2017), https://goo.gl/7Jzird.

e In an _ interview with the Christian

Broadcasting Network shortly thereafter,

President Trump stated that EO1’s religious

minority protection provision was designed

to give Christians priority when applying for

refugee status. “If you were a Muslim you

could come in [to the United States], but if

you were a Christian, it was almost

impossible,” he said. “|T)hey were chopping

off the heads of everybody but more so the

Christians. And I thought it was very, very

unfair. So we are going to help them.”48

e EOl employed multiple thinly veiled

references to stereotypes regarding Islam,

mentioning “honor killings,” “violent

ideologies,” “persecution of those who

practice religions different from their own,”

and “foreign nationals” being “radicalized.”

E01 §§ 1, 10(a)(ii), 10(a) (iii).

e The son of the National Security Advisor,

himself a past member of President Trump’s

staff, repeatedly called the first Executive

Order a “#MuslimBan.”49

48 David Brody, Brody File Exclusive: President Trump

Says Persecuted Christians Will Be Given Priority As Refugees,

CBN News (Jan. 27, 2017), http://bit.ly/2kCqG8M. President

Trump made similar claims regarding Christian and Muslim

refugees at least as far back as July 11, 2015. See also Louis

Jacobson, Donald Trump says if you're from Syria and a

Christian, you can’t come to the U.S. as a refugee, PolitiF act (July

20, 2015), http://bit.ly/1CLkBPj (quoting, and determining as false,

Trump making the same claims in a speech on July 11, 2015).

49 Mathew Nussbaum, Flynn’s son says ‘Muslim ban’ is

‘necessary’, Politico (Jan. 29, 2017), http://politi.co/2k6e2jr.

The second Executive Order eliminated some of the

more glaring indications of its anti-Muslim purpose, but

it is infected by the same discriminatory intent. Again,

President Trump’s own statements confirm this. He

described EO2 as simply “a watered-down version of

the first one”®9 and a senior White House policy

adviser told Fox News that “fundamentally, you’re still

going to have the same basic policy outcome” as the

original.®! And in April, President Trump vowed that,

when it came to refugees, “I’m going to be helping

Christians big league.”2

In assessing the intent of EQO2, it is not

impermissible judicial psychoanalysis to take the

President at his word and consider his repeated and

consistent statements linking the successive executive

orders to express anti-Muslim bias. In McCreary, this

Court considered a third attempt by local government

to create a courthouse display including the Ten

Commandments after two prior displays had been

struck down as unconstitutional. This Court held that

its review was not limited to the “latest news about the

last in a series of governmental actions” because “the

world is not made brand new every morning,”

“reasonable observers have reasonable memories,” and

to impose such a limitation would render a court “an

absented-minded objective observer, not one presumed

50 Jacob Pramuk, Trump may have just dealt a blow to his

own executive order, CNBC (updated Mar. 16, 2017),

http://enb.cx/2p4LPOi.

51 Kevin Lui, Comments by Stephen Miller and Rudy

Giuliani Cited in Judge’s Decision to Block Trump’s Travel Plan,

Time (Mar. 15, 2017), http://ti.me/2wSX0hh.

52 Scott Johnson, At the White House with Trump, Power

Line (Apr. 25, 2017), goo.g/ZeXqhY.

familiar with the history of the government’s actions

and competent to learn what history has to show.”

McCreary, 545 U.S. at 866. As in McCreary, “(nJo

reasonable observer could swallow the claim that”

President Trump has “cast off the objective so

unmistakable” in his public statements and in the

original Executive Order. Jd. Indeed, the President

has not even tried to cast off EOl’s objective,

repeatedly equating the two Orders.

B. The Bias Animating EO2 Extends To

Section 6

The refugee provisions of EO2 are specifically

motivated by the same anti-Muslim bias as the country

ban. That is clear from the face of the Order: its only

articulated basis for halting USRAP or lowering the

refugee cap is the purported danger of terrorism from

refugees from Muslim countries. EO2 §1(h). Given

President Trump’s repeated statements linking or

equating Islam and terrorism, and the facial

implausibility of the stated national security concerns

with respect to refugees, a reasonable observer would

conclude that the refugee provisions of EO2 were

animated by the same religious discrimination

animating the travel ban.

A reasonable observer would also appreciate that,

in practice, section 6 has a disproportionate impact on

Muslims. See Reno v. Bossier Parish Sch. Bd., 520 U.S.

471, 487 (1997) (“(I}mpact of an official action is often

probative of why the action was taken in the first place

since people usually intend the natural consequences of

their actions.”). Even though Muslims comprise just

23% of the global population, they represented 46% of

refugees admitted to the United States in 2016.58

Indeed, 65% of the world’s refugee population came

from 49 Muslim-majority countries in 2015,54 and just

three of those countries—Syria, Afghanistan, and

Somalia—account for 54% of all refugees worldwide.

The fact that Muslims are _ disproportionately

represented in the global refugee population and in

USRAP makes shutting off refugee admissions an

especially efficient way to keep Muslims from entering

the United States.

** *

The First Amendment bars the government from

giving, or appearing to give, a stamp of approval or

disapproval to any religion. A reasonable observer

would conclude that EO2 section 6 violates this

fundamental principle.

53 Philip Connor, Pew Research Center, U.S. Admits Record

Number of Muslim Refugees in 2016 (Oct. 5, 2016),

http://pewrsr.ch/2ceSmd2t; see also Pew Research Center,

Religious Composition by Country, 2010-2050 (Apr. 2, 2015),

http://pewrsr.ch/2nMIS0G.

54 See Pew Research Center, Religious Composition by

Country, 2010-2050 (Apr. 2, 2015), http://pewrsr.ch/2nMISO0G

(providing religious demographics by country); UNHCR, Global

Trends: Forced Displacement in 2015 at 62-65 (2016),

http://bit.ly/2wVw5AU (providing number of refugees by country

under UNHCR mandate).

55 UNHCR, supra note 54, at 3.

CONCLUSION

The Court should affirm the decisions of the Ninth

and Fourth Circuits.

CHRISTOPHER MORTWEET

K. RUBY BIELIK

LATHAM & WATKINS LLP

140 Scott Drive

Menlo Park, CA 94025

(650) 326-4600

Respectfully submitted,

RICHARD P. BRESS

Counsel of Record

ALEXANDRA SHECHTEL

ALAN BILLHARZ

LATHAM & WATKINS LLP

555 11th Street, NW

Suite 1000

Washington, DC 20004

(202) 637-2200

rick.bress@lw.com

Counsel for Amici Curiae Oxfam America, Inc.,

International Rescue Committee, and Exodus Refugee

Immigration Inc.

JAYNE FLEMING JAMES C. MARTIN

REED SMITH LLP DONNA M. DOBLICK

599 Lexington Avenue DEVIN M. MISOUR

22nd Floor REED SMITH LLP

New York, NY 10022 225 Fifth Avenue

(212) 549-0217 Suite 1200

Pittsburgh, PA 15222

(412) 288-3131

Counsel for Amicus Curiae U.S. Committee for Refugees

and Immigrants

September 18, 2017

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.