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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0753%3A101

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2017

## Text

~tipeme cout, US. |

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)

iv

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

v

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

vi

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)

ix

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

x

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

xi

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,

ET

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

ee = —

—.

Fe ll ae nie
ig ‘

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.

2

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

3

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

4

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

5

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,

6

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

7

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.

8

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

9

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.

10

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

11

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

12

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

13

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

14

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”).

15

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.

16

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

17

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.

18

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’... .”

19

(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).

20

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.

21

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.

22

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.

23

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.

24

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.

25

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.

26

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.

27

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

28

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.

29

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.

30

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.

31

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.

32

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.

33

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.

34

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

35

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.

36

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0753%3A101. Public record. Not legal advice.