Amicus Curiae Brief — Trump v. Int'l Refugee Assistance Project, 138 S. Ct. 50 (2017) (No. 16-1436)
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Nos. 16-1436 & 16-1540
IN THE
Supreme Court of the United Sta
DONALD J. TRUMP, et al.,
Petitioners,
Vv.
INTERNATIONAL REFUGEE ASSISTANCE
PROJECT, A PROJECT OF THE URBAN JUSTICE
CENTER, INC., ON BEHALF OF ITSELF
AND ITS CLIENTS, et al.,
Respondents.
DONALD J. TRUMP, et al.,
JE T
> 1 f
HE CLERK
_ OKT US —
Petitioners,
v.
STATE OF HAWAIL et al.,
Respondents.
On Writs or CERTIORARI TO THE UNITED STATES CouRTsS
or APPEALS FOR THE FOURTH AND NINTH CIRCUITS
BRIEF FOR T.A., A UNITED STATES
CITIZEN OF YEMENI DESCENT,
AS AMICUS CURIAE IN SUPPORT
OF RESPONDENTS
SHAIMAA M. HUSSEIN RicHARD D. BERNSTEIN
D. NICOLE GUNTNER Counsel of Record
Marruew R. DoLLAN WILLKIE FARR
WILLKIE FARR & GALLAGHER LLP
& GALLAGHER LLP 1875 K Street, NW
787 Seventh Avenue Washington, DC 20006
New York, New York 10019 (202) 303-1000
(212) 728-8000 rbernstein@willkie.com
Counsel for Amicus Curiae
;
TABLE OF CONTENTS
Page
po Ee ee i
TABLE OF CITED AUTHORITIES .............. ili
INTEREST OF AMICUS CURIAE ...............-. ]
SUMMARY OF ARGUMENT..................... 2
EET TLE reer rT 3
A. President Trump’s Campaign Promise To
I Cao sch PaceSUhneiekbwhienen 3
B. The Amended Order “Deliver|s] On” The
President’s “Campaign Promises.”...... .. 4
Oh. OU at ki evan he web uw bu b¥ ce ewk sens oa ks 6
D. The Decisions Below.................... 6
INES 5 i oien es ccna yw kab UROd reek sees keen 7
I. This Court Has Authority To Compare
The Amended Order’s Asserted
Rationale With The Administration’s
Statements And Official Statistics ............ 7
Il. No National Security Rationale Supported
The Extension Of The Travel And
Refugee Bans After This Administration
Achieved “Extreme” Vetting................ 13
2
Table of Contents
Page
A. The Amended Order’s Rationale
Was That “Short” Bans Would
Enable “Adequate” Vetting ............. 14
b. This Administration Implemented
“Extreme Vetting” By June 5,2017...... 14
C. There Is No Vetting Rationale For
The President’s Subsequent June 14,
2017 Extension Of The Bans ............ 18
III. In Accord With The Applicable Statutory
And Constitutional Texts, This Court
Should Enjoin All Prospective Applications
Of The Amended Order’s Illegal Travel
PEE ook c b60e us waeneseceesess 24
EE hb ad ace ht vets ubns Red oes cine ces 34
TABLE OF CITED AUTHORITIES
Page
Cases
Adarand Constructors, Inc. v. Pena,
GED UA GIES 6 oc vk cveceecccieeeees eee 27
Amoco Prod. Co. v. Village of Gambell,
GD Uh. GE CHE 0 6 ova ces ewe bntadssce cue 26
Boumedine v. Bush,
ey Cs SED v0.0 av vc oseenvaesen eee 9, 32
Edwards v. Aguillard,
GS Ue, WOES: 6 hk vc ceceucsscueeseer eee iy)
Fiallo v. Bell,
Ge UE FOS CUTE svc ce ckvnccucessnseenan eee 10
Freytag v. Comm’,
gk Bt rey re es 19
Galvan v. Press,
pit ®t | rrr yr 11
Harisiades v. Shaughnessy,
Ge Cites GCS. 0c 0-0 0a cess inesvuniienee 30
Hawaii v. Trump,
SOD FOG FO) Gee CAs. BRT). oc ccccecssvesnus 16, 20
Hirabayashi v. United States,
Se Sh. BE Ce co wo ca ovce ev sca whee 30
Ww
Cited Authorities
Holder v. Humanitarian Law Project,
SE MMM EEE s occ ccccccccccescss
LNS. v. St. Cyr,
533 U.S. 289 (2001). .............-..
Kerry v. Din,
135 S. Ct. 2128 (2015)... ........46..
Kleindienst v. Mandel,
Ee
Korematsu v. United States,
323 U.S. 214 (1944)... 2.0... eee eee
McCreary Cty., Ky. v.
Am. Civil Liberties Union of Ky.,
545 U.S. 844 (2005) ..... 2... ee eee.
Romer v. Evans,
517 U.S. 620 (1996)... ..........-.-.-.
Rumsfeld v. Padilla,
542 U.S. 426 (2004) ...........60 08.
Santa Fe Indep. School Dist. v. Doe,
580 U.S. 200 (2000) ................
Steinberg v. Carhart,
530 U.S. 914 (2000)... .........-54-.
Le isd ween eee 9
eheeeseea .28
Vv
Cited Authorities
Page
United States v. Robel,
SL UTS sv. cccsecccdcadaceviaswaceues i)
United States v. Verdugo-Urquidez,
Ee Ee EE 6 666 6c c6 os cecctese ves ences 25
Wong Wing Hang v. L.N.S.,
960 F.3a 715 Gd Cir. 1906) .. 0. cc ce cccnccccccs 11
Statutes
BUG. BS SIE GWG, oc cc ccnvccdvsvcccscsses 7, 24, 27
UIE. © RR a 'o n oc cc ceccenscncccuesedctan 24
Ee Rs cove ccccucscecccusncasnadean 24
OO ERAES © BOS 66 ov cnc vencadnccceseees 13, 24
Gs oncevvensdecentcdsotecans 7, 24, 31
4d Toe Derr re rors 12
82 Fed. Reg. 19380 (Apr. 27, 2017)........ .auasaene 16
Other Sources
American Security Against Foreign Enemies
Act of 2015, H.R. 4088, 114th Cong. (2015)........ 12
v1
Cited Authorities
Associated Press, AROUND THE NATION; White
Supremacist Gets Life for Killing Trooper, N.Y.
Times (Jan. 8, 1986), http://nyti.ms/2wkuBAr .
Albert Bandura, Moral Disengagement in the
Perpetration of Inhumanities, 3 Personality
and Soc. Psychol. Rev. 193, 206 (1999)........
Devlin Barrett, Jnternal Trump Administration
Data Undercuts Travel Ban, Wash. Post
(Mar. 16, 2017), http://wapo.st/2nVszOX ......
Stephen Breyer, Making Our Democracy Work:
A Judge’s View, 193 (Knopf, 2010)...........
Jonah Engel Bromwich, Alan Blinder, What
We Know About James Alex Fields, Driver
Charged in Charlottesville Killing, N.Y.
Times (Aug. 13, 2017), https://goo.gl/xzKdje. . .
Benjamin N. Cardozo, The Nature of the
Judicial Process, 92-93 (1921). ..............
CBS/AP, Who were the London attackers? Chef, clerk
and ‘suspicious’ Italian, CBS News (June 6, 2017
6:46 p.m. EDT), http://cbsn.ws/2g1LWYq.....
Chris Cillizza, Donald Trump’s explanation
of his wire-tapping tweets will shock and
amaze you, Wash. Post (Mar. 16, 2017),
http://wapo.st/2Z00QXZA ....... 6.66. cece ees
vit
Cited Authorities
DECLARATION OF INDEPENDENCE (U.S. 1776) .......
Karoun Demirjian & Jerry Markon, Obama
administration rolls out new visa waiver
program rules in wake of terror attacks, Wash.
Post (Jan. 21, 2016), http://wapo.st/2sERVn1 . ..
Alexander Hamilton, The Federalist No. 78,
INDEPENDENT JOURNAL (June 14, 1788), available at
http://bit.ly/2xIVLnJ ...... 6-0. e eee eens 10, 32, 33
Derek Hawking, Worried about Trump’s travel
ban, Canada’s largest school district calls
off U.S. trips, Wash. Post (Mar. 24, 2017),
http://wapo.st/2nVbHrP ..........6.--eeees
Senator Mazie K. Hirono, Questions for the
Record following Hearing on March 20-23, 2017
entitled: “On the Nomination of the Honorable
Neil M. Gorsuch to be an Associate Justice
of the Supreme Court of the United States,”
Senate Judiciary Committee (Mar. 20-23, 2017),
available at http://bit.ly/2pmtWHD ..........
Aric Jenkins, Sean Spicer Says President
Trump Considers His Tweets ‘Official’ White
House Statements, Time (June 6, 2017),
http://ti.me/2rT57aO .......-.--0 eee eee eee
Farhana Khera and Johnathan J. Smith, How Trump
Is Stealthily Carrying Out His Muslim Ban, N.Y.
Times (July 18, 2017), http://nyti.ms/2u5Ay00J . .
Cited Authorities
Wayne King, Suspect Wanted in Shooting
of Missouri Trooper is Arrested, N.Y. Times
(Apr. 21, 1985), https://goo.gl/xHT1hK ........
Evan Perez, First on CNN: FBI Director James
Comey balks at refugee legislation, CNN
(Nov. 19, 2015), http://enn.it/INgwbik .........
Press Release, The White House Office of the Press
Secretary, Statement from President Donald J.
Trump (Sept. 5, 2017), http://bit.ly/2xM12Zc ...
Responses to Supplemental Questions from
Senators Jeff Sessions, Orrin Hatch,
Charles Grassley, Jon Kyl, Lindsey
Graham, John Cornyn, and Tom Coburn,
available at http://bit.ly/2oI0aAf.............
S. Shapiro, et al., Supreme Court Practice § 6.38
I os wb cccndncasdvecadavestscne
Jake Tapper & Pamela Brown, White House
Effort to Justify Travel Ban Causes Growing
Concern for Some Intelligence Officials,
CNN (Feb. 25, 2017), http://enn.it/2kSAkZB . ..
Ryan Teague Beckwith, Read Donald Trump’s
Speech on the Orlando Shooting, Time.com
(June 13, 2016 4:36 p.m. ET),
ok > Fs
1x
Cited Authorities
Nahal Toosi and Ted Hesson, Visas
to Muslim-majority countries down 20
percent, Politico (May 25, 2017 10:28 EDT),
http://politi.co/2r0OXBHQ............-....65.
Donald J. Trump, President Trump: In my first 100
days, I kept my promise to Americans, Wash.
Post (Apr. 29, 2017), http://wapo.st/2s7BmUg . .
Donald J. Trump (@realDonaldTrump), Twitter
(June 3, 2017 4:17 p.m.), http://bit.ly/2rzYrwd. . .
Donald J. Trump (@realDonaldTrump), Twitter
(June 4, 2017 4:19 a.m.), http://bit.ly/2qQRnle . .
Donald J. Trump (@realDonaldTrump),
Twitter (June 5, 2017 3:29 a.m.), http://bit.
I 33s5sd¢080b ta seetenchabineresé
Donald J. Trump (@realDonaldTrump), Twitter
(June 5, 2017 6:37 a.m.), http://bit.ly/2rtbEIK ..
Donald J. Trump (@realDonaldTrump), Twitter
(June 5, 2017 6:44 a.m.), http://bit.ly/2etglyy. . . .
U.S. Customs and Border Prot., CBP Releases
Statistics on Electronic Device Searches
(Apr. 11, 2017), http://bit.ly/2oyyLAu..........
Page
x
Cited Authorities
U.S. Customs and Border Prot., Visa Waiver
Program Improvement and Terrorist Travel
Prevention Act Frequently Asked Questions
(June 19, 2017), http://bit.ly/1Tz4wRn .........
U.S. Dep’t of State, Supplemental Questions for
Visa Applicants (2017), http://bit.ly/2wzoatR ...
U.S. Senate Judiciary Committee Holds A
Hearing On The Nomination Of John Roberts
To Be Chief Justice Of The Supreme Court,
109th Cong. (2005), 2005 WL 2214702.........
U.S. Senate Judiciary Committee Holds A
Hearing On The Nomination Of Judge
Samuel Alito To The U.S. Supreme Court,
109th Cong. (2006), 2006 WL 45940 ..........
U.S. Senate Committee On The Judiciary
Holds A Hearing On The Nomination
Of Judge Sonia Sotomayor To Be An
Associate Justice Of The U.S. Supreme
Court, 111th Cong. (2009), 2009 WL 2027308 . .
Visa Waiver Program Improvement and
Terrorist Travel Prevention Act of
2015, H.R. 158, 114th Cong. (2015)............
AliVitali,/n His Words: Donald TrumpontheMuslim
Ban, Deportations, NBC News (June 27, 2016,
4:58 p.m. ET), http://nbenews.to/2vx0d6C .....
Page
x2
Cited Authorities
Page
Chris Wallace, Justice Antonin Scalia on issues
facing SCOTUS and the country, Fox News
Sunday (July 29, 2012), http://fxn.ws/2fZZBiB .. . .33
Howard Witt, Jn Arizona Town, Oklahoma
Bombing Casts Dark Shadow Unwanted
Fame Because Suspect Once Lived There, Chi.
Trib. (June 18, 1995), https://goo.gl/ItHdGN ...... 32
Christopher S. Wren, McVeigh Is Executed
for Oklahoma City Bombing, N.Y. Times
(June 11, 2001), http://nyti.ms/2vaTif6. ........... 32
]
INTEREST OF AMICUS CURIAE
Amicus files this brief in support of Respondents.
This brief offers a narrow but dispositive basis for
affirming: the Government does not even assert a vetting
justification for the June 14, 2017 extension of the travel
and refugees bans. The purported reason for the bans had
been to enable the Administration to establish “adequate”
vetting. However, this Administration stated that it nad
implemented its own “extreme vetting” procedures by
June 5, 2017—before the extension and while the bans
were enjoined. The Government does not assert that this
Administration’s “extreme vetting” procedures may be
inadequate for nationals of the six countries designated
in the Amended Executive Order (“Amended Order”) or
refugees. Thus, the ongoing bans contradict their own
rationale.
T.A.' is a United States citizen who was raised in
Yemen. T.A. is a Muslim. T.A.’s father and many members
of T.A.’s extended family hold Yemeni passports and
reside abroad. The Amended Order would bar them from
entering the United States. Although the Government
states that banned persons “could” apply for “[clase by
case” waivers under Section 3 of the Amended Order,
1. This amicus brief uses initials, rather than T.A.’s full name,
to reduce the risk of potential! reprisals to T.A. or his family members.
This Court has permitted litigants to use pseudonyms and initials in
similar circumstances. See, e.g., Santa Fe Indep. School Dist. v. Doe,
530 U.S. 290 (2000). No counsel for any party authored the brief in
whole or in part, and no person or entity other than amicus made a
monetary contribution to its preparation or submission. Petitioners
have filed a blanket letter of consent. Consent from Respondents has
been lodged with the Clerk’s office.
2
Section 16(c) provides that nothing in the Amended
Order provides any “enforceable” right, “substantive or
procedural.” J.A. 1440. The Amended Order does not even
provide for any wnenforceable opportunity to be heard as
to any purported reason to deny a waiver, any timing for
or notification of a denial, much less any reason, or any
ability to appeal a denial.
SUMMARY OF ARGUMENT
This brief focuses on one narrow but dispositive
basis for affirming: the Government’s failure even
to assert that the travel and refugee bans are still
justified by vetting concerns after this Administration
implemented its own “extreme vetting.” By June 5, 2017,
this Administration had achieved “extreme vetting,” and
a resulting 55% reduction in visas to nationals of the six
nations designated by the Amended Order, while the travel
ban was completely enjoined. After achieving “extreme
vetting” and the 55% reduction, the President extended
the bans on June 14, 2017. Because the Administration
had surpassed the Amended Order’s goal of adequate
vetting before that extension, there is not even a purported
finding of detriment for the extended bans. Lacking such a
justification, the bans contravene both the statutory limits
on the President and the Establishment Clause.
Part I of this brief demonstrates that this Court’s
function includes comparing the asserted rationale for
the Amended Order with the public record of subsequent
Administration statements and official statistics.
Part [I demonstrates that the Administration’s own
official explanations and fficial statistics negate vetting
3
concerns as a basis for sustaining the ongoing travel and
refugee bans. The Government had represented that the
bans would be “temporary” so that the Administration
could establish vetting procedures that “are adequate
to detect terrorists.” Infra, at 14. Yet, on June 14, 2017,
the Administration extended the bans after it had
established “extreme vetting” by June 5, 2017. Before the
extension, this “extreme vetting” already had resulted in
a 55% reduction in visas to nationals of the six countries
designated by the Amended Order while the travel ban
was completely enjoined.
Part III demonstrates that, in accord with the texts
of the pertinent statutes and the Establishment Clause,
the Court should enjoin all prospective applications of the
Amended Order’s illegal travel and refugee bans.
BACKGROUND
A. President Trump’s Campaign Promise To Ban
Muslims.
President Trump made repeated campaign promises
to order a “shutdown of Muslims entering the United
States ....” J.A. 1050. The President stated during the
campaign that the ban would be dressed up in different
clothes: “I’m talking territory instead of Muslim.” See
J.A. 1015, 1133 (citing Meet the Press (NBC television
broadcast July 24, 2016), transcript available at https://
goo.gl/jHc6aU); see also https://youtu.be/Y RezIlhHA9Veg?t
(Trump to Sean Hannity on July 25, 2016: “People don’t
want me to say Muslim. I guess I prefer not saying it,
frankly, myself. So we’re talking about territories.”).
4
B. The Amended Order “Deliver[s] On” The
President’s “Campaign Promises.”
On March 6, 2017, President Trump issued the
Amended Order. J.A. 1416-1440. The next day, the White
House Press Secretary, in prepared remarks made before
taking questions from reporters, heralded the Amended
Order as the fulfillment of President Trump’s campaign
promises: “President Trump yesterday continue/d/
to deliver on... his most significant campaign
promises: protecting the country against radical /slamic
terrorism.” Brief of Amicus Curiae T.A., Ex. 2, CV.
No. 17-00050-DKW-KJM, Hawaii v. Trump (D. Haw.
Mar. 14, 2017), ECF No. 201-2 (Press Briefing by Press
Secretary Sean Spicer (Mar. 7, 2017), available at http://
bit.ly/2mW390B) (emphasis added).
Moreover, on March 15, 2017, President Trump
stated at a rally not only that the Amended Order was
a “watered-down version of the first order,” but also
that both Orders were justified by “radical /slamic”
terrorism. J.A. 183 (citing Katie Reilly, Read President
Trump’s Response to the Travel Ban Ruling: It ‘Makes
Us Look Weak’, Time (Mar. 16, 2017), available at http://
ti.me/2009ixe) (emphasis added).
The President’s statements in early June 2017 about
terror attacks in London demonstrate that banning
Muslims is the reason for the Amended Order. Within
an hour of a June 2. 2017 terror attack in London, the
President tweeted that it showed why “[w]e need the
Travel Ban... .” Donald J. Trump (@realDonaldTrump),
Twitter (June 3, 2017 4:17 p.m.), http://bit.ly/2rzYrwd. He
added the next morning: “We must stop being politically
5
correct.” Donald J. Trump (@realDonaldTrump), T'witter
(June 4, 2017 4:19 a.m.), http://bit.ly/2qQRnle.
But President Trump never had any basis to believe
that any of the three London attackers would be covered
by the Amended Order’s bans. Indeed, the Amended
Order’s bans would not have applied to the London
attackers. One was a British national; another was an
Italian national; and the third was a national of Morocco
and perhaps also had Libyan roots. CBS/AP, Who were
the London attackers? Chef, clerk and ‘suspicious’
Italian, CBS News (June 6, 2017 6:46 p.m.), http://cbsn.
ws/2g1LW Yq (identifying three London attackers as (1)
Khurum Butt, “a Pakistan-born failed customer service
clerk”; (2) Rachid Redouane, “a Moroccan pastry chef
... who claimed to have both Moroccan and Libyan roots”;
and (3) Youssef Zaghba, “an Italian man”).
The Amended Order does not apply to British, Italian,
or Moroccan nationals, or dual nationals who travel under
their status as a national of a non-designated country. See
Pet. Br. at 49 n.160; J.A. 1428 §§ 3(b)(iii), (iv). Moreover,
none of the London attackers had been screened by,
and passed, the equivalent of what President Trump
described on June 5, 2017 as his Administration’s current
“EXTREME VETTING.” /nfra, at 23.
The President’s statements as President about the
London attackers thus confirm that the basis for the
Amended Order’s bans has never been concerns about
the adequacy of vetting procedures, abroad or at home,
for nationals of the six countries or refugees. Rather, the
President’s blunt statements on June 3-4, 2017 show that
the basis for his bans always has been fulfilling his pledge
to ban Muslims.
C. TA.
T.A. is a Muslim and a United States citizen who grew
up in Yemen. When T.A. was eighteen, he returned to the
United States to attend college. He lives here and has
been a videographer.
T.A.’s father, aunts, uncles, and cousins—all of whom
hold Yemeni passports—now live in Jordan, where they
fled as refugees from the ongoing Yemeni Civil War. Many
of them want to travel to the United States to visit T.A.
and their extended family. In particular, T.A.’s cousin, with
whom he is close, wishes to travel to this country to look
at schools and visit his brother, a U.S. citizen, as well as
T.A. The Amended Order would bar T.A.’s father, cousin
and his extended family from traveling to this country.
D. The Decisions Below.
On March 16, 2017, the Maryland District Court
issued a preliminary injunction barring enforcement of
Section 2(c) of the Amended Order. See J.A. 117, 166.
The Maryland District Court found that “the record
provides strong indications that the national security
purpose is not the primary purpose for the travel ban.”
J.A. 157. The Maryland District Court further found
that the Government had “not shown, or even asserted
that national security cannot be maintained without an
unprecedented six-country travel ban.” J.A. 163-64. The
Fourth Circuit substantially affirmed the decision of the
Maryland District Court and demonstrated at length
that “any national security justification for EO-2 ... was
offered as more of a ‘litigating position’ than as the actual
purpose of EO-2.” J.A. 225.
7
On March 29, 2017, the Hawaii District Court issued
a preliminary injunction barring enforcement of Sections
2 and 6 of the Amended Order. J.A. 1163. The Hawaii
District Court found that “the record here” is “full of
religious animus, invective and obvious pretext.” J.A. 1157
(emphasis added).
On June 12, 2017, the Ninth Circuit affirmed the
preliminary injunction against Sections 2(c), 6(a), and
6(b) of the Amended Order. J.A. 1236. The court held that
these Sections contravened a number of provisions of the
Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101
et seq. Among other things, the decision explained that the
Amended Order and the Government have “specifically
avoid{ed} making any finding that the current screening
procedures are inadequate.” J.A. 1203.
ARGUMENT
i. This Court Has Authority To Compare The
Amended Order’s Asserted Rationale With The
Administration’s Statements And Official Statistics.
This Court’s judicial review could stop with comparing
the Amended Order’s asserted rationale with the
Administration’s own public statements and official
statistics. This comparison provides a dispositive basis
for affirming and does not involve either balancing or
substituting this Court’s national security judgment
for the President’s. First, as Part I] demonstrates, the
Administration’s own public explanations and statistics
have severed any connection between (a) the Amended
Order and (b) its purported statutory authority, 8 U.S.C.
§ 1182(f), and national security rationale. The Amended
8
Order states that its statutory authority rests on the need
to prevent the “detriment[]” of “unrestricted entry into the
United States of nationals” of the six designated countries.
J.A. 1426, 1434 (emphasis added). But before the President
extended the bans on June 14, 2017, the Administration’s
own statements and statistics established that without any
ban, the entry of these nationals and refugees had been
and would remain heavily restricted. Specifically, while
the ban was completely enjoined, the President stated on
June 5, 2017, that his Administration was subjecting all
entrants to “extreme vetting.” See infra, at 17. Indeed,
visa issuances to nationals of the six designated countries
were cut by 55% by April 2017. See infra, at 18.
Second, as Part IT also demonstrates, under the
Establishment Clause, a review of the same public
record shows that the Amended Order’s national security
assertion is, at best, “secondary to « religious objective”
of banning the entry of Muslims. McCreary Cty., Ky.
v. Am. Civil Liberties Union of Ky., 545 U.S. 844, 864
(2005). The Government’s national security assertion
has been that temporary bans were ordered to enable
the Administration to establish adequate vetting. Infra,
at 14. But the Administration had established “extreme
vetting” by June 5, 2017. Yet the President subsequently
extended the bans on June 14, 2017. The plain, undebatable
public record of Administration statements and official
statistics therefore debunks that improving vetting is the
primary objective of the Amended Order. There is thus
no need for “judicial psychoanalysis.” Jd. at 862. This is
especially so as it is equally unconstitutional under the
Establishment Clause, whether the primary objective
of a government action is religious discrimination, or an
opportunistic, public appeal to religious prejudice. Cf.
9
Edwards v. Aguillard, 482 U.S. 578, 594 (1987) (finding
“violation” where “primary purpose” was “to endorse a
particular religious doctrine”) (emphasis added).
Comparing the Administration’s rationale with its own
subsequent statements and statistics is well within this
Court’s authority. National security is not a “talismanic
incantation” that obviates judicial review. United States v.
Robel, 389 U.S. 258, 263 (1967). This Court’s “precedents,
old and new, make clear that concerns of national security
and foreign relations do not warrant abdication of the
judicial role.” Holder v. Humanitarian Law Project, 561
U.S. 1, 34 (2010). “Security subsists, too, in fidelity to
freedom’s first principles.” Boumedine v. Bush, 553 U.S.
723, 797 (2006).
The Government’s argument against considering the
Administration’s own statements and statistics contradicts
the controlling concurrence of Justice Kennedy, joined by
Justice Alito, in Kerry v. Din, 135 S. Ct. 2128 (2015). That
concurrence looked beyond the consular officer’s official
decision to evidence that the particular visa applicant
“worked for the Taliban government, which . . . provides
at least a factual connection to terrorist activity.” Jd. at
2141. That concurrence also stated that courts properly
look beyond the stated reason for the denial of a visa when
there is “an affirmative showing of bad faith... .” Jd. Even
by itself, extending the bans after the purported reason
for them had ended shows bad faith. See Romer v. Evans,
517 U.S. 620, 632 (1996) (When the “sheer breadth [of
government action] is so discontinuous with the reasons
offered for it that the [action] seems inexplicable by
anything but animus toward the class it affects; it lacks
a rational relationship to legitimate state interests.”)
(emphasis added).
10
In contrast, there were neither explanations by
the President nor official statistics that contradicted a
purported reason in any case relied on by Petitioners. The
visa applicant in Kleindienst v. Mandel, 408 U.S. 753, 758
(1972), did not rely on publicly-stated reasons different
from those offered by the sole decision maker, the consular
official. See also Fiallo v. Bell, 430 U.S. 787, 795 n.6 (1977)
(“This is not to say... that the Government’s power in this
area [of immigration] is never subject to judicial review.”).
Judicial reliance on the public record of Administration
statements and official statistics for the limited purposes
described above does not open the door to routine legal
challenges to, much less discovery concerning, visa
denials. By definition, reliance on public statements and
public statistics is the opposite of attempting to discover
a secret reason.
The Government properly does not assert that
its constitutional or statutory interpretations in this
case should be accorded deference. Hamilton wrote in
Federalist Paper No. 78 that the function of interpreting
and enforcing the Constitution “belong[s] to” the
judicia] role. Alexander Hamilton, The Federalist No.
78, INDEPENDENT JOURNAL (June 14, 1788) (“Federalist
No. 78”), available at http://bit.ly/2x1VLnJ. Hamilton
also explained that the judicial role includes deciding
“the meaning of any particular act proceeding from the
legislative body.” Jd. This should be particularly so for the
immigration statutes at issue in this case.
To start, the President’s interpretations of immigration
statutes here would create, at a minimum, serious
constitutional issues. This supplies a reason to reject
11
these interpretations, not to defer to them. See, e.g., .N_S.
v. St. Cyr, 583 U.S. 289, 299-300 (2001). See also Wong
Wing Hang v. I.N.S., 360 F.2d 715, 719 (2d Cir. 1966)
(Friendly, J.) “Congress could not have intended” to give
the executive branch authority to rest an immigration
decision “on an impermissible basis such as invidious
discrimination against a particular race or group.”)
(emphasis added).
Constitutional history further cautions against
deference here. The Declaration of Independence lists
“obstructing the laws for Naturalization of Foreigners” and
“refusing to pass [persons] to encourage their migrations
hither” as among the acts of “absolute Tyranny” of
“the present King of Great Britain.” DECLARATION OF
INDEPENDENCE (U.S. 1776). Not surprisingly, Article I,
section 8, clause 4 of the Constitution gives the power to
make rules for immigration “exclusively to Congress,” not
to the executive. Galvan v. Press, 347 U.S. 522, 531 (1954).
Deference to the President in interpreting immigration
statutes that give him only limited authority risks
improperly transferring the immigration power conferred
on Congress to the President.
Indeed, President Trump stated on September 5, 2017,
that in the “immigration” context, a President should not
be “able to rewrite or nullify federal laws” by adopting in
an executive order an approach that “Congress repeatedly
rejected ....” But the Amended Order’s travel and refugee
bans do exactly that. Press Release, The White House
Office of the Press Secretary, Statement from President
Donald J. Trump (Sept. 5, 2017), http://bit.ly/2xM12Zc.
12
For example, in 2015, Congress addressed travel
by nationals of the six designated countries. Congress
enacted the Visa Waiver Program Act (“Visa Waiver Act”)
codified in 8 U.S.C. § 1187(a)(12). Congress rejected a ban.’
As implemented by the Department of Homeland Security
(“DHS”), the Visa Waiver Act requires visas for nationals
of the six designated countries, see Pet. Br. at 5-6, but does
not ban travel. Under the Visa Waiver Act, nationals of the
six countries “go through the full vetting of the regular
visa process, which includes an in-person interview at a
U.S. embassy or consulate.” Karoun Demirjian & Jerry
Markon, Obama administration rolls out new visa waiver
program rules in wake of terror attacks, Wash. Post (Jan.
21, 2016), http://wapo.st/2sERVn1 (emphasis added); U.S.
Customs and Border Protection, Visa Waiver Program
2. The House had passed the American Security Against
Foreign Enemies Act of 2015 (“SAFE Act”). American Security
Against Foreign Enemies Act of 2015, H.R. 4038, 114th Cong.
(2015). It would have banned any refugees from Syria or Iraq absent
personal, unanimous certifications by the Secretary of DHS, the
FBI Director, and the Director of National Intelligence that the
specific refugee was not a security threat. Jd. at § 2(a). The SAFE
Act would have operated as a ban. See Evan Perez, First on CNN:
FBI Director James Comey balks at refugee legislation, CNN (Nov.
19, 2015), http://enn.it/1 Ngw5ik (“Comey has told administration and
congressional officials that the legislation would make it impossible
to allow any refugees into the U.S., and could even affect the ability
of travelers from about three dozen countries that are allowed easier
travel to the U.S. under the visa waiver program, the officials say.”).
But the Senate di€ not pass the SAFE Act, as a cloture vote failed.
See H.R. 4038 (114th): American Security Against Foreign Enemies
Act of 2015, CONGRESS.GOV, http://bit.ly/2w3XhK7. Instead, both
houses of Congress enacted the compromise Visa Waiver Act by
Jarge margins. See Visa Waiver Program Improvement and Terrorist
Travel Prevention Act of 2015, H.R. 158, 114th Cong. (2015).
15
Improvement and Terrorist Travel Prevention Act
Frequently Asked Questions (June 19, 2017), http://bit.
ly/1Tz4wRn. Since such vetting began, the Government
cites no terrorist attack or attenpted terrorist attack in
this country by any national of any of the six countries.
As the Ninth Circuit held, the Amended Order’s bans
operate to nullify the Visa Waiver Act. See J.A. 1204-05.
Congress also has provided in 8 U.S.C. § 1182(a)(3)
(B) “specific criteria for determining terrorism-related
inadmissibility.” Kerry v. Din, 1358. Ct. 2128, 2140 (2015)
(Kennedy, J., joined by Alito, J., concurring) (emphasis
added). To hold that the Amended Order’s blanket
travel and refugee bans have statutory authority would
impermissibly nullify the “specific criteria” in Section
1182(a)(8)(B).
The Court should fulfill its judicial role. As has been
attributed to Edmund Burke: “The only thing necessary
for the triumph of evil is for good men to do nothing.”
See Albert Bandura, Moral Disengagement in the
Perpetration of Inhumanities, 3 Personality and Soc.
Psychol. Rev. 193, 206 (1999). This applies to good judges.
II. No National Security Rationale Supported The
Extension Of The Travel And Refugee Bans After
This Administration Achieved “Extreme” Vetting.
When arule is extended after its stated reason is over,
that purported reason cannot support the rule. That is
the story of the national security rationalization for the
travel and refugee bans.
14
A. The Amended Order’s Rationale Was That
“Short” Bans Would Enable “Adequate”
Vetting.
The Government repeatedly has represented to this
Court and the courts below that the reason for the “short”
and “temporary” travel and refugee bans was to allow
this Administration to establish “current screening and
vetting procedures [that] are adequate to detect terrorists
seeking to infiltrate this Nation.” Application (16A1190)
for a Stay, No. 16-1436, Trump v. Int’l Refugee Assistance
Project, at 8, 30 (June 1, 2017) (emphasis added); Brief for
Appellants at 1-2, 10, 12, 36, 43, No. 17-15589, Hawaii v.
Trump (9th Cir. Apr. 7, 2017), ECF No. 23; see also Pet. Br.
at 49-50 (bans are a “temporary pause” to “allow a review
precisely to determine whether adequate screening is in
place”). But that rationale cannot sustain the bans. This
is because those bans were extended on June 14, 2017,
after President Trump stated on June 5, 2017 that his
Administration had achieved “extreme vetting” while the
travel and refugee bans were completely enjoined. Indeed,
nothing in the Government’s brief even asserts that, at
the time of the extension, this Administration’s “extreme
vetting” was inadequate somehow either for nationals
of the six countries designated in the Amended Order
because of problems in those countries or for refugees.
B. This Administration Implemented “Extreme
Vetting” By June 5, 2017.
Section 5(a) of the Amended Order was never enjoined.
Pursuant to Section 5(a):
15
The Secretary of State, the Attorney General,
the Secretary of Homeland Security, and
the Director of National Intelligence shall
implement a program, as part of the process for
adjudications, to identify individuals who seek
to enter the United States on a fraudulent basis,
who support terrorism, violent extremism, acts
of violence toward any group or class of people
within the United States, or who present a risk
of causing harm subsequent to their entry.
This program shall include the development of
a uniform baseline for screening and vetting
standards and procedures, such as in-person
interviews; a database of identity documents
proffered by applicants to ensure that duplicate
documents are not used by multiple applicants;
amended application forms that include
questions aimed at identifying fraudulent
answers and malicious intent; a mechanism to
ensure that applicants are who they claim to be;
a mechanism to assess whether applicants may
commit, aid, or support any kind of violent,
criminal, or terrorist acts after entering the
United States; and any other appropriate
means for ensuring the proper collection
of all information necessary for a rigorous
evaluation of all grounds of inadmissibility
or grounds for the denial of other immigration
benefits.
J.A. 1432 (emphasis added).
By June 5, 2017, this Administration had
“implement{ed]” the additional screening and vetting
16
that Section 5(a) of the Amended Order required for
all potential entrants, including nationals of the six
countries and refugees. For example, on March 17, 2017,
the State Department adopted enhanced visa screening
by requiring longer interviews, more detailed questions
by consular officials, and a “mandatory social media
review” by the “Fraud Prevention Unit” if an “applicant
may have ties to ISIS or other terrorist organizations
or has ever been present in an ISIS-controlled territory
....” Brief of Amicus Curiae T.A. at 12, 56, 70, No. 17-
15589, Hawaii v. Trump (9th Cir. Apr. 7, 2017), ECF No.
114 (State Dep’t Cable 25814 11 8, 10, 13, available at http://
bit.ly/200wBaqt).*? On April 27, 2017, the Administration
issued a new rule that adds a question to the Electronic
Visa Update System, asking for information associated
with an applicant’s “online presence,” meaning information
related to his or her “Provider/Platform”; “social media
identifier”; and “contact information.” 82 Fed. Reg. 19380
(Apr. 27, 2017). On June 1, 2017, the State Department
promulgated a new supplemental questionnaire for visa
applicants that asks applicants to list (1) every place
they have lived, worked, and traveled internationally—
including how such travel was funded—for the past fifteen
years; (2) every passport they have ever held, including
number and country of issuance; (3) names and birth
dates of all siblings, children, spouses, and partners; and
(4) every social media handle, phone number, and e-mail
address they have used for the past five years. U.S. Dep’t
of State, Supplemental Questions for Visa Applicants
(2017), http://bit.ly/2wzoatR. In addition, during the first
six months of the 2017 fiscal year, searches of electronic
3. Even before this Administration, every refugee was vetted
by numerous federal agencies and the office of the United Nations
High Commissioner for Refugees. See Hawaii v. Trump, 859 F.3d
741, 775 n.17 (9th Cir. 2017).
17
devices of international travelers arriving at U.S. airports
increased 36.5%. U.S. Customs and Border Prot., CBP
Releases Statistics on Electronic Device Searches (Apr.
11, 2017), http://bit.ly/20oyyLAu.
President Trump himself has established that his
Administration’s vetting had surpassed adequate while
the travel and refugee bans were fully enjoined and
before the President extended the bans. By April 29,
2017, President Trump wrote that his Administration was
“substantially improvling]| vetting and screening.” See
Donald J. Trump, President Trump: In my first 100 days,
I kept my promise to Americans, Wash. Post (Apr. 29,
2017), http://wapo.st/2s7BmUg (“Visa processes are being
reformed to substantially improve vetting and screening
....) (emphasis added). On June 5, 2017, although the
President disparaged the injunctions against the “Travel
Ban,” President Trump admitted: “/n any event we are
EXTREME VETTING people coming into the U.S. in
order to help keep our country safe.” Donald J. Trump
(@realDonaldTrump), Twitter (June 5, 2017 6:37 a.m. and
6:44 a.m.), http://bit.ly/2rtbEIK and http://bit.ly/Zetglyy
(emphasis added; capitalization in original). Thus, the
Administration had implemented “extreme vetting” for
all entrants without any ban or any change in vetting
cooperation from any of the six designated countries. The
next day, the White House Press Secretary stated that the
President’s tweets are “considered official statements by
the President of the United States.” Aric Jenkins, Sean
Spicer Says President Trump Considers His Tweets
‘Official’ White House Statements, Time (June 6, 2017),
http://ti.me/2rT57a0.‘
4. Thus, the President’s “official statements” prove that a
March 10, 2017 letter to him from more than 130 generals and national]
18
The proof of the pudding is in the eating. Comparing
April 2017—when the Amended Order’s bans were
entirely enjoined—to the 2016 monthly averages, non-
immigrant visa issuances were down 15% among all
countries, 20% among Muslim-majority countries, almost
30% among Arab countries, and 55% among the six
countries designated by the Amended Order. Nahal Toosi
and Ted Hesson, Visas to Muslim-majority countries
down 20 percent, Politico (May 25, 2017 10:28 EDT),
http://politi.co/2r0X BHQ.
C. There Is No Vetting Rationale For The
President’s Subsequent June 14, 2017 Extension
Of The Bans.
Because the Administration had achieved “extreme
vetting” by June 5, 2017, the bans should have ended
without an extension. Under the Amended Order’s plain
meaning, the “Effective Date” of “[t]his order” was
defined as “March 16, 2017,” the travel ban was set to end
“90 days from the effective date of this order,” and the
refugee ban was set to end “120 days after the effective
date of this order.” J.A. 1426-1427; 1439 (emphasis added).
Because the bans had run from “the effective date of this
order”—March 16, 2017—the travel ban was set to expire
security experts from across the political spectrum— including two
former Secretaries of the Department of Homeland Security—had
been correct. That letter explained that the United States would be
able to “implement any necessary [vetting] enhancements without
a counterproductive ban or suspension on entry of nationals of
particular countries or religions.” Brief of Amicus Curiae T.A., Ex.
5, CV. No. 17-00500-DK W-KJM, Hawaii v. Trump (D. Haw. Mar. 14,
2017), ECF No. 201-5 (Nat’l Security Experts’ Mar. 10, 2017 Letter
to President Trump, available at http://politi.co/2kle2FU).
19
on June 14, 2017, and the refugee ban on July 14, 2017. Cf,
¢.g., Freytag v. Conm’r, 501 U.S. 868, 902 (1991) (“[t]he
definite article ‘the’ obviously narrows .. .”); Reamsfeld v.
Padilla, 542 U.S. 426, 434 (2004) (“The consistent use of
the definite article in reference to the custodian indicates
that there is generally only one proper respondent .. . .”).
Instead, the President, on June 14, 2017, “revise[d]”
the Amended Order to extend the travel ban until at least
September 24, 2017, and the refugee ban until at least
October 24, 2017. Pet. Br. at 37; J.A. 1442. Therefore,
the ban periods in effect at the time of this Court’s ora]
argument were promulgated after this Administration had
achieved “extreme vetting” and the resulting reduction
in visa issuances.
Consequently, the bans are adrift from any statutory
mooring on which they purport to be based. Section 2(¢) of
the Amended Order rested the travel ban on the statement
that “the unrestricted entry into the United States of
nationals of Iran, Libya, Somalia, Sudan, Syria, and
Yemen would be detrimental to the interests of the United
States.” J.A. 1426 (emphasis added). But the “extreme
vetting” and 55% reduction in visas achieved before the
extension are the opposite of “unrestricted entry.”
5. Indeed, the extension violates President Trump’s campaign
promise: “I don’t want people coming in from the terror countries
... unters they're very, very strongly vetted.” Ali Vitali, /» His Words:
Donald Trump on the Muslim Ban, Deportations, NBC News
(June 27, 2016, 4:58 p.m. E'T), http://nbenews.to/2vx0d6C (emphasis
added). In a Presidential debate, he similarly promised “extreme
vetting from certain areas of the world.” J.A. 1015, 1133 (citing The
American Presidency Project, Presidential Debates: [residential
Debate at Washington University in St. Louis, Missouri (Oct. 9,
2016), available at https://goo.gl/ilzf0A).
20
Nothing in the prior Amended Order supports
continuation of the bans after this Administration
implemented “extreme vetting.” The Amended Order had
cited only one example that involved a native of any of the
six designated countries. “[I]n October 2014, a native of
Somalia who had been brought to the United States as a
child refugee and later became a naturalized United States
citizen was sentenced to 30 years in prison for attempting
to use a weapon of mass destruction as part of a plot to
detonate a bomb at a crowded Christmas-tree-lighting
ceremony in Portland, Oregon.” J.A. 1424 (emphasis
added). The Amended Order, however, could not claim
that this United States national was radicalized before he
came to this country as a three-year-old “child refugee”
who attempted terrorism sixteen years later. Hawaii v.
Trump, 859 F.3d at 775 n.16. So this lone instance cannot
support a suggestion that vetting for nationals of the six
countries ever was inadequate, much less that it remains
so, despite this Administration’s “extreme vetting.”
The conclusory March 6, 2017 letter from the Attorney
General and Secretary of DHS, cited by Petitioners’
Brief at 7, similarly does not support the extension of the
travel and refugee bans. That letter did not and could
not address whether this Administration’s own “extreme
vetting” procedures, put in place after the March 6, 2017
letter, are currently adequate for nationals of the six
countries and refugees. Even when issued, that letter was
not joined by the then-senior national security officials
with the most anti-terrorism experience—namely, then-
FBI Director James Comey and NSA Director Admiral
Michael Rogers. Moreover, the letter is belied by the
President’s subsequent admissions that the Amended
Order is merely a “watered-down version of the first
21
order.” J.A. 183 (citing Appellees’ Br. 7) (citing Katie
Reilly, Read President Trump’s Response to the Travel
Ban Ruling: It ‘Makes Us Look Weak,’ Time (Mar. 16,
2017), available at http://ti.me/2009ixe); see also Donald
J. Trump (@rea!DonaldTrump), Twitter (June 5, 2017
3:29 a.m.), http://bit.ly/2rDbHzY (“The Justice Dept.
should have stayed with the original Travel Ban, not the
watered down, politically correct version they submitted
to S.C.”). That first executive order was issued “without
consulting the relevant national security agencies.” J.A.
224 (emphasis added).®
6. Before the Amended Order, a senior White House official
was quoted as stating that “DHS and DOJ are working on an
intelligence report that will demonstrate that the security threat for
these seven countries is substantial and that these seven countries
have all been exporters of terrorism into the United States.” Jake
Tapper & Pamela Brown, White House Effort to Justify Travel Ban
Causes Growing Concern for Some Intelligence Officials, CNN Feb.
25, 2017), http://enn.it/2kSAkZB. Instead, the Government’s vetting
review produced “internal reports” that “contradict th[e] national
security rationale” for the travel ban. J.A. 225. A DHS internal
report, made public on February 25, 2017, concluded that being a
national from one of the six countries is an “unlikely indicator” of
terrorism threats against the United States. J.A. 1051-56. A second
DHS report, dated March 1, 2017, concluded that “most foreign-born,
U.S.-based violent extremists [are] likely radicalized several years
after their entry to the United States.” J.A. 1059. Internal FBI data
also “undermine[d] a key premise of the travel ban” because that data
revealed that “most” foreign nationals who have posed a risk to the
United States came from “countries unaffected” by the Amended
Order. See Devlin Barrett, Internal Trump Administration Data
Undercuts Travel Ban, Wash. Post (Mar. 16, 2017), http://wapo.
st/2nVszOX. In sum, a “significant amount of interna! government
data” demonstrated the travel ban was “not likely to be effective in
curbing the threat of terrorism in the United States.” /d.
22
The June 14, 2017 extension also inexplicably did not
remedy even the most obvious disconnect between the
travel ban and a purported lack of cooperation in vetting
by the six countries. The ban still applies to “nationals
of the six countries without significant ties to the six
designated countries, such as those who left as children
or whose nationality is based on parentage alone... .
Yet nationals of other countries who do have meaningful
|current] ties to the six designated countries . . . fall outside
the scope of Section 2(a).” J.A. 1202—03 (emphasis added).
Thus, the Amended Order would ban travel by a doctor
who is a Sudanese national but who lives, works, and would
be vetted by a U.S. consular official in Saudi Arabia. J.A.
1024 (citing Jane Morice, Two Cleveland Clinic doctors
vacationing in Iran detained in New York, then released,
Cleveland.com (Jan. 29, 2017), available at https://goo.
gl/J8x2iu). But the Amended Order permits travel by a
Saudi national with no job at all who lives, and would be
vetted, in Sudan.
This disparity already had produced absurd results
before the June 14, 2017 extension. Groups of Canadian
girl scouts and school children would not visit the United
States because their groups contain some young people
who reside in Canada but are nationals of the six countries.
See Derek Hawking, Worried about Trump’s travel ban,
Canada’s largest school district calls off U.S. trips, Wash.
Post (Mar. 24, 2017), http://wapo.st/2nVbHrP.
The Government’s brief does not provide even a post
hoc vetting justification for the June 14, 2017 extension of
the bans. This omission is particularly telling as before
the Government’s brief, the Government had received
the 20-day report required by Sections 2(a) and (b) of the
23
Amended Order. Farhana Khera and Johnathan J. Smith,
How Trump Is Stealthily Carrying Out His Muslim Ban,
N.Y. Times (July 18, 2017), http://nyti.ms/2u5Ay0J.
If the Government belatedly argues in its reply
that “extreme vetting” is somehow not enough vetting,
this transparent litigation tactic would be an improper
new reply brief argument. See, ¢.9., S. Shapiro, et al.,
Supreme Court Practice § 6.38, p. 511 (10th ed. 2013).
Most important, any new argument would be even
farther removed from the Amended Order’s rationale
that “detriment” resulted from “unrestricted entry.”
J.A. 1426 (emphasis added). See Romer, 517 U.S. at 635
(government’s “particular justifications” are “jmpossible
to credit” when the “breadth” of government action is “so
far removed” from those justifications).
The unfortunate but inescapable conclusion is that
the actual basis for the June 14, 2017 extension of the
travel and refugee bans was fulfilling the President’s
pledges to ban Muslims. The President as President
has confirmed this. He stated on June 3, 2017 that a
London terror attack by three Muslims who would not
be banned by the Amended Order show why “[wle need
the Travel Ban.” Supra, at 4. The President's linking of
terror by Muslims with his purportedly narrower bans
explains why the President extended the bans after his
Administration achieved “extreme vetting.” Supra, at
18-19. The President’s bans were and are about fulfilling
his pledge to ban Muslims. They are not—and never
were—about the adequacy of vetting for nationals of the
six designated countries or refugees.
24
[III.In Accord With The Applicable Statutory And
Constitutional Texts, This Court Should Enjoin All
Prospective Applications Of The Amended Order’s
Illegal Travel And Refugee Bans.
This is not a case where splitting the baby would be
a Solomonic decision. Consider, for example, a ruling by
this Court that Respondents have standing and prevail on
the merits, but that would restrict injunctive relief so as
to enable bans against travelers and refugees who lack a
prior bona fide relationship with a person or entity in the
United States (hereinafter, “a Prior U.S. Relationship”).
This Court should reject any such restriction for at least
four reasons.
First, the plain meaning of the pertinent INA
provisions precludes restricting their prescriptions to
aliens with a Prior U.S. Relationship. 8 U.S.C. § 1182(f)
prescribes conditions that apply “|w]henever” the
President seeks to suspend “the entry of any aliens or
any class of aliens ... .” 8 U.S.C, § 1157(a)(2) prescribes
conditions that apply whenever the President seeks to limit
“the number of refugees.” 8 U.S.C. § 1182(a)(3)(B) sets
conditions for denying admission to “/a/ny alien” based on
potential terrorism. (emphasis added). 8 U.S.C. § 1152(a)(1)
(A) prescribes that “no person shall... be discriminated
aguinst” based on nationality with four express statutory
exceptions. Jd. (emphasis added). The lack of a Prior U.S.
Relationship is not one of the exceptions. The Visa Waiver
Act applies to all nationals of the six countries. Supra,
at 12.
Second, the express limits imposed by the
Establishment Clause also apply to a government-
25
wide order issued in the United States to deny entry
to foreigners, including those without a Prior U.S.
Relationship. In 1787, the Constitution gave the power
to make laws on foreign immigration to Congress. Two
year's later, the Establishment Clause was proposed for
ratification. It provides: “Congress shall make no law
respecting ax establishment of religion ....” U.S. Const.
Amend. I (emphasis added). That Clause therefore applies
to immigration laws and rules, without any exception
permitting religious discrimination toward those who lack
a Prior U.S. Relationship.
The Government cites United States v. Verdugo-
Urquidez, 494 U.S. 259 (1990), for the proposition that
“fajliens abroad have no Establishment Clause rights.” Pet.
Br. at 35 n.13. That both misreads Verdugo-Urquidez and
ignores the comprehensive language of the Establishment
Clause. Verdugo-Urquidez was expressly limited to
the Fourth Amendment, “the particular provision[] in
question ... .” 494 U.S. at 273. The Court held that the
reach of the Fourth Amendment was circumscribed by its
use of the term “the right of the people.” /d. at 265. The
Court emphasized that “in some cases, [other| provisions
extend beyond the citizenry.” Jd. at 269.
Justice Kennedy’s concurrence, which was necessary
for the majority, was even narrower. It held only that,
because it would be “impracticable and anomalous,”
the “Fourth Amendment’s warrant requirement should
not apply [abroad] as it does in this country.” Jd. at 277-
78. Justice Kennedy emphasized that in general “the
Government may act only as the Constitution authorizes,
whether the actions in question are foreign or domestic.”
Id. at 277.
26
Unlike the Fourth Amendment, the First Amendment’s
Establishment Clause is not circumscribed by the term
“the right of the people.” This omission is particularly
telling as, in sharp contrast to the Establishment Clause,
the First Amendment’s protection of peaceful assembly
extends only to “the right of the people.” By using the
term “no law” without modification, the Establishment
Clause prescribes a comprehensive limit on government
action whether foreign or domestic.
Nor would it be impracticable or anomalous for the
Establishment Clause to apply to a President’s government-
wide order that is issued in this country and implemented
here and in U.S. consular offices. Our country has long
admitted foreign travelers, immigrants, and refugees,
including those who lack a Prior U.S. Relationship, while
complying with various U.S. laws. Indeed, the inscription
on the Statue of Liberty does not request “your tired,
your poor, your huddled masses yearning to breathe free,
if they have a Prior U.S. Relationship.”
Third, when considering a preliminary injunction,
a court envisages what the final judgment likely will
provide. See Amoco Prod. Co. v. Village of Gambell, 480
U.S. 531, 546 n.12 (1987) (“The standard for a preliminary
injunction is essentially the same as for a permanent
injunction with the exception that the plaintiff must
show a likelihood of success on the merits rather than
actual success.”) (citations omitted). Here, the district
court’s final judgment is readily envisioned should the
Respondents prevail in this Court on their standing and
the merits. Such a merits ruling by this Court—unlike
a lower court ruling or a stay pending review—will
conclusively establish the law in every venue that Sections
2(a), 6(a), and 6(b) of the Amended Order violate both
statutory and constitutional limits. The subsequent final
27
judgments of the two district courts ineluctably will
therefore provide declaratory relief to the same effect. It
makes no sense in this case for the final injunctive relief,
or preliminary injunctive relief, to be narrower than this
ourt’s invalidation of Sections 2(c), 6(a), and 6(b).
Such a dichotomy would invite mischief against the
rule of law. Indeed, the Administration states that, should
this Court rule that Sections 2(c), 6(a), and 6(b) “are invalid
on their face,” the Administration would nonetheless
apply those Sections in countless circumstances unless
the Court also enjoins the Administration from such
applications. Pet. Br. at 82-83.
Fourth, were this Court to exclude those without a
Prior U.S. Relationship from the scope of the INA and the
Establishment Clause, the cure would be worse than the
disease. Any President could restrict travel, immigration,
and refugees to foreigners who were Christians, unless a
non-Christian had a Prior U.S. Relationship. Most Jewish
refugees from Hitler could have been banned, and more
than one billion foreign Muslims could be banned now.
Eight Justices of this Court have indicated that he
or she would never join a decision like Korematsu v.
United States, 323 U.S. 214 (1944). Chief Justice Roberts
is typical. The Chief Justice testified that if a case “like”
Korematsu came before the Court, “I would be surprised
if there were any arguments that could support it.” U.S.
Senate Judiciary Committee Holds A Hearing On The
Nomination Of John Roberts To Be Chief Justice Of The
Supreme Court, 109th Cong. (2005), 2005 WL 2214702,
at *22.’
7. Justices Ginsburg and Breyer similarly rejected Korematsu.
See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 275 (1995)
28
Perhaps most instructive is the “Reading List of
Justice Anthony M. Kennedy,” entitled “Understanding
Freedom’s Heritage: How to Keep and Defend Liberty,”
which is available at http://bit.ly/2iZXm08 (hereinafter,
“Liberty Reading List”). Justice Kennedy’s Liberty
Reading List ineludes the dissent of Justice Murphy in
(Ginsburg, J., dissenting) (Korematsu “yielded a pass for an
odious, gravely injurious racial classification|.| A Korematsu-
type classification .. . will never again survive scrutiny: Such a
classification, history and precedent instruct, properly ranks as
prohibited.”); Stephen Breyer, Making Our Democracy Work: A
Judge's View, 193 (Knopf, 2010) (Korematsu “has been so thoroughly
discredited, that it is hard to conceive of any future court referring
to it favorably or relying on it.”). Justice Alito testified that the
“Japanese internment cases ... were one of the great constitutional
tragedies that our country has experienced... .” U.S. Senate
Judiciary Committee Holds A Hearing On The Nomination Of
Judge Samuel Alito To The U.S. Supreme Court, 109th Cong.
(2006), 2006 WL 45940, at *150-—51. Justice Sotomayor testified that
Korematsu “was wrongly decided.” U.S. Senate Committee On The
Judiciary Holds A Hearing On The Nomination Of Judge Sonia
Sotomayor To Be An Associate Justice Of The U.S. Supreme Court,
111th Cong. (2009), 2009 WL 2027303, at *79. Justice Kagan gave
Korematsu as the example of a “poorly reasoned” Supreme Court
decision. Responses to Supplemental Questions from Senators
Jeff Sessions, Orrin Hatch, Charles Grassley, Jon Kyl, Lindsey
Graham, John Cornyn, and Tom Coburn, available at http://bit.
ly/20oI0aAf. When Justice Gorsuch was asked whether Korematsu has
any precedential value in any case that may come before the Supreme
Court, he testified, “no.” Senator Mazie K. Hirono, Questions for the
Record following Hearing on March 20-23, 2017 entitled: “On the
Nomination of the Honorable Neil M. Gorsuch to be an Associate
Justice of the Supreme Court of the United States,” Senate Judiciary
Committee (Mar. 20-23, 2017), available at http://bit.ly/2pmtW HD.
See Generally Steinberg v. Carhart, 530 U.S. 914, 953 (2000) (Scalia,
J., dissenting) (describing “Korematsu and Dred Scott” as occupying
the worst “place in the history of this Court’s jurisprudence”).
29
Korematsu as what the Ninth Circuit website describes
as containing some of the “key principles that are integral
to our nation’s DNA.” Justice Murphy stated that even
claims by the executive branch regarding military
necessity “must [be] subject” to the “judicial process of
having... reasonableness determined... .” Korematsu,
323 U.S. at 234. That reasonable “relation” was “lacking”
because the internment order simply “assum{ed] that
all persons of Japanese ancestry may have a dangerous
tendency to commit sabotage and espionage and to aid
our Japanese enemy.” Jd. at 235. However, no “reason,
logie or experience could be marshalled in support of
such an assumption.” /d.; see also id. at 240 (rejecting
“infer[ence] that examples of individual disloyalty prove
group disloyalty and justify discriminatory action against
the entire group”).
What unavoidably remained, Justice Murphy
explained, as the underlying basis for the internment was
“an accumulation of much of the misinformation, half-
truths, and insinuations that for years have been directed
against Japanese Americans by people with racial and
economic prejudices—the same people who have been
among the most foremost advocates of the evacuation.” /d.
at 239 (emphasis added). Justice Murphy explained that
even a “military judgment” in wartime that was “based
upon such racial and sociological considerations is not
entitled to the great weight” ordinarily given to military
assessments. Jd. at 239-40. Justice Murphy concluded:
Racial discrimination in any form and in any
degree has no justifiable part whatever in our
democratic way of life. It is unattractive in any
setting but it is utterly revolting among a free
30
people who have embraced the principles set
forth in the Constitution of the United States.
Id. at 242 (emphasis added).*
The Administration likewise has provided no “reason,
logic or experience,” id. at 235, in support of the Amended
Order’s ongoing bans. In particular, there is no support
that nationals of the six countries and refugees may
possess some inherent tendency to commit terrorism in
the United States that this Administration’s “extreme
vetting” would not adequately detect. See Part II, supra.°
Instead of providing any supporting reason, logic, or
experience, President Trump has attempted to intimidate
the federal judiciary: “Jf something happens, blame [the
8. Inthe highest tradition of the bench, Justice Murphy ignored
partisan and personal loyalties. President Roosevelt had appointed
Justice Murphy three times: as Governor General of the Philippines,
Attorney General, and Justice.
9. Then-Candidate Trump attempted to support his proposed
bans by citing the Japanese internment, telling reporters,
“{ Roosevelt] did the same thing.” J.A. 1013 n.15 (citing Jenna Johnson,
Donald Trump says he is not bothered by comparisons to Hitler,
Wash. Post (Dec. 8, 2015), https://goo.g1/6G00H7). Taking the wrong
page from history again, President Trump has asserted that Muslims
do not assimilate in Western societies. See Chris Cillizza, Donald
Trump’s explanation of his wire-tapping tweets will shock and
amaze you, Wash. Post (Mar. 16, 2017), http://wapo.st/200QXzA.
Similar assertions about non-assimilation were made to justify the
Japanese internment. See Hirabayashi v. United States, 320 U.S. 81,
96 (1943). The Government’s brief (Pet. Br. at 23) cites Harisiades
v. Shaughnessy, 342 U.S. 580 (1952), which in turn relies in part
on Korematsu and Hirabayashi. See 342 U.S. at 589 n.16, 591 n.17.
jl
judge} and court system.” Brief of Amicus Curiae T.A.,
Ex. 6, CV. No. 17-00050-DKW-KJM, Hawaii v. Tramp
(D. Haw. Mar. 14, 2017), ECF No. 201-6 (Donald J. Trump
(@realDonaldTrump), Twitter (Feb. 5, 2017, 12:39 p.m.
ET), available at http://bit.ly/20jCwta) (emphasis added).
Such intimidation is antithetical to our constitutional
system. To start, constitutional and statutory constraints
effectively would be discarded if they could be overridden
by a suggestion that folliwing them may increase some
potential risk of terrorism or other horrific violence. If
that were enough, one could ban the purchase of firearms
because the San Bernardino and Orlando terrorists used
guns.!° Or ban the internet because foreign and domestic
terrorists use the internet for recruitment, inspiration, and
planning. Or ban interstate travel by white nationalists
because for decades some of them have crossed state lines
in traveling to commit terrorist attacks.'’ And so on.
10. Indeed, President Trump has used the San Bernardino
and Orlando shootings as support for his bans even though those
terrorists were neither nationals of the six countries nor refugees.
One day after the Orlando shooting, then-candidate Trump cited 8
U.S.C. § 1182(f) as a basis to “suspend immigration from areas of
the world where there is a proven history of terrorism,” explaining
that “I called for a ban after San Bernardino, and was met with such
great scorn and anger but now ... many are saying that I was right
to do so.” Ryan Teague Beckwith, Read Donald Trump’s Speech
on the Orlando Shooting, Time.com (June 13, 2016 4:36 p.m. ET),
http://ti.me/1XSQ8YS.
11. For example, in 1985, David Tate, a member of The Order—
“a violent anti-Semitic group” that “committed armed robberies
_.. and directed counterfeiting operations to finance a ‘war’ against
the Federal Government”—traveled from Idaho to Missouri to
murder a Missouri state trooper. See Wayne King, Suspect Wanted
in Shooting of Missouri Trooper is Arrested, N.Y. Times (Apr. 21,
1985), https://goo.gl/xHT1hK; Associated Press, AROUND THE
32
But this Court addressed “terrorism” in Boumedine
and held: “The laws and Constitution are designed to
survive, and remain in force, in extraordinary times.
Liberty and security can be reconciled; and in our system
they are reconciled within the framework of the law.”
Boumedine, 533 U.S. at 798. The Framers decided that
the Establishment Clause is an essential part of that
framework.
As important, this Court must never surrender to
intimidation. As Hamilton wrote in Federalist No. 78:
This independence of the judges is equally
requisite to guard the Constitution and the
rights of individuals from the effects of those ill
humors, which the arts of designing men, or the
influence of particular conjunctures, sometimes
disseminate among the people themselves, and
which, though they speedily give place to better
information, and more deliberate reflection,
NATION; White Supremacist Gets Life for Killing Trooper, N.Y.
Times (Jan. 8, 1986), http://nyti.ms/2wkuBAr. In 1995, Timothy
MeVeigh, “a disgruntled Army veteran who went on to declare war on
the United States government,” traveled from Arizona to Oklahoma
to destroy the Alfred P. Murrah Federal! Building. Christopher S.
Wren, McVeigh Is Executed for Oklahoma City Bombing, N.Y. Times
(June 11, 2001), http://nyti.ms/2vaTif6; Howard Witt, /n Arizona
Town, Oklahoma Bombing Casts Dark Shadow Unwanted Fame
Because Suspect Once Lived There, Chi. Trib. (June 18, 1995), https://
goo.gl/1tHdGN. And, recently, James Fields traveled from Ohio to
Virginia to plow his car into a group of counter-protestors at a white
nationalist rally, killing one and injuring others. See Jonah Engel
Bromwich, Alan Blinder, What We Know About Janies Alex Fields,
Driver Charged in Charlottesville Killing, N.Y. Times (Aug. 13,
2017), https://goo.gl/xzKdje.
33
have a tendency, in the meantime, to occasion
dangerous innovations in the government.
Alexander Hamilton, The Federalist No. 78, INDEPENDENT
JOURNAL (June 14, 1788) (emphasis added), available at
http://bit.ly/2xlV LnJ.
Likewise, then-Judge Cardozo wrote:
The great ideals of liberty and equality are
preserved against the assaults of opportunism,
the expediency of the passing hour, the erosion
of small encroachments, the scorn and derision
of those who have no patience with general
principles, by enshrining them in constitutions,
and consecrating to the task of their protection
a body of defenders.
Benjamin N. Cardozo, The Nature of the Judicial Process,
92-93 (1921) (emphasis added).
Our Constitution inoculates its “body of defenders”
against presidential intimidation. As Justice Scalia said:
“What can he do to me? Or to any of us? We have life tenure
and we have it precisely so that we will not be influenced
by politics, by threats from anybody.” Chris Wallace,
Justice Antonin Scalia on issues facing SCOTUS and
the country, Fox News Sunday (July 29, 2012), http://fxn.
ws/2fZZBiB (emphasis added).
Experience teaches that half-measures do not assuage
autocratic intimidation.’ This Court’s decision should
12. “History will teach us that... of those men who have
overturned the liberties of republics, the greatest number have
34
resolve this matter once and for all with a prospective
injunction that enforces the full scope of the applicable
statutory and constitutional limits.
CONCLUSION
This Court should affirm the decisions of the Fourth
and Ninth Circuits.
DATED: September 6, 2017.
Respectfully submitted,
SHAIMAA M. Hussein RicHarD D. BERNSTEIN
D. NicoLeE GUNTNER Counsel of Record
Martruew R. DoLLAN WILLKIE Farr
WILLKIE FARR & GALLAGHER LLP
& GALLAGHER LLP 1875 K Street, NW
787 Seventh Avenue Washington, DC 20006
New York, New York 10019 (202) 303-1000
(212) 728-8000 rbernstein@willkie.com
Counsel for Amicus Curiae
begun their career by paying an obsequious court to the people;
commencing demagogues, and ending tyrants.” Alexander Hamilton,
Federalist No. 1, cited in Liberty Reading List. The Bible in Proverbs
28:15 likens a “tyrant” to “a roaring lion, and a charging bear.”
Proverbs 28:15 (International Standard Version). Pastor Martin
Niemiller’s iconic 1946 Lecture, “First They Came,” cited in Liberty
Reading List, illustrates the horrific consequences that can follow
from attempts to appease nascent autocracy.
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.