Amicus Curiae Brief — Trump v. Hawaii, 138 S. Ct. 923 (2018) (No. 17-965)

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No. 1 7-965

In The

Supreme Court of the United States

DONALD J. TRUMP, et a/.,

Petitioners,

STATE OF HAWAIL, et ai.,

Respondents.

.’

On Writ Of Certiorari To The

United States Court Of Appeals

For The Ninth Circuit

€

BRIEF OF AMICI CURIAE

CONSTITUTIONAL LAW SCHOLARS

IN SUPPORT OF RESPONDENTS

ILYA SOMIN MICHAEL J. ZYDNEY

Counsel of Record MANNHEIMER

Professor of Law Professor of Law

GEORGE MASON SALMON P., CHASE

UNIVERSITY COLLEGE OF LAW

3301 Fairfax Dr. NORTHERN KENTUCKY

Arlington, VA 22201 UNIVERSITY

(703) 993-8069 518 Nunn Hall

isomin@gmu.edu Highland Heights, KY 41099

(859) 572-5862

mannheimem1@nku.edu

BARRY R. LEVY

H. THOMAS WATSON

KIRK C, JENKINS

Horvitz & Levy LLP

3601 W. Olive Ave., 8th FI.

Burbank, CA 91505

(818) 995-0800

blevy@horvitzlevy.com

htwatson@horvitzlevy.com

kjenkins@horvitzlevy.com

COC'\LE LEGAL BRIEFS (800) 225-6064

WWW COCKLELEGALBRIEFS COM

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES. ...................cccceeeceeeees iii

INTEREST OF AMICI CURIAE ...................:. aah

SUMMARY OF ARGUMENT .................0.........6.. l

Titi eta tacrehdint hacia egenmentonerscnccacsoosess< 3

I. The Bill of Rights limits federal power

I tins ctldanindensnacocnnenanensacerses 3

A. The Bill of Rights consists largely of

structural constraints that limit the

power of the federal government in

every realm, including immigration.... 4

1. The text of the First Amendment

does not limit its applicability based

on either territory or citizenship...... 4

2. The original understanding of the

Bill of Rights does not set territorial

or citizenship status limitations on

SOD OID osesncccecsevcccsscccecescsessss 5

3. The structural principle advanced

here is consistent with the way the

Bill of Rights constrains the exercise

of other federal powers .................... 8

B. This Court’s precedents belie the notion

that immigration policy is “largely im-

mune” from judicial review of claims

that it violates the Bill of Rights .......... 12

TABLE OF CONTENTS - Contin a

"age

C. To the extent that the Court’s pre+» “ent

does cast doubt on the applicability of

the Bill of Rights to immigration cases,

it should be limited or overruled........... 18

D. Because the Bill of Rights constrains

federal power over immigration, it is

permissible for courts to assess the

President’s statements as evidence of

discriminatory motive ......................... 20

Il. Under the Establishment Clause of the

First Amendment, the proclamation is un-

constitutional and void even as to foreign

I Be ektsciectnttnevntanaiidintinticntiintaiiia 26

A. The Proclamation violates the Estab-

lishment Clause because it interferes

with State primacy over religion......... 28

B. The Proclamation is void and may not

be applied to anyone, including foreign

ee silesncnniahtitriisipcinintinicmpitilinisinieitisinite 36

Ill. The serious constitutional flaws of the

proclamation should lead this court to rule

in favor of the respondents on the statu-

tory issues in the case, in order to adhere

to the requirement of avoiding statutory

interpretations that raise constitutional

SE ver Rinisactncamsenttidstenmidiatibiminassieinhics 37

iii

TABLE OF AUTHORITIES

Page

CASES

Arizona v. United States, 567 U.S. 387 (2012) ........... 10

Barrington v. Missouri, 205 U.S. 483 (1907).............. 16

Bond v. United States, 564 U.S. 211 (2011)................ 37

Boutilier v. INS, 387 U.S. 118 (1967) ....................220. 16

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

i avadicinnasendanianidetnddaninaataiiniiaenieesintiiepaeneinie 9,12

Demore v. Kim, 538 U.S. 510 (20038) ................0..ccc0e 14

Dennis v. United States, 341 U.S. 494 (1951)....... 14, 15

Edward J. DeBartolo Corp. v. Fla. Gulf Coast

Bldg. & Constr. Trades Council, 485 U.S. 568

TIT isschsossewtainadeaisinnabsashlenttiehtdoniddiilasithangsdoniahbadiabDadsenblindidiaid 38

Everson v. Bd. of Educ. of Ewing Twp., 330 U.S.

yi iketssssnustinniatdilpinhsiabpatontaishaisiamipastipsiadees 28, 30

Flemming v. Nestor, 363 U.S. 603 (1960) ................... 11

Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824)............. 8

Harisiades v. Shaughnessy, 342 U.S. 580

Gee arncsiecsemningunnimanitionaatonsinaignets 3, 14, 15, 17, 18

Hawaii v. Trump, 878 F.3d 662 (9th Cir. 2017).......... 37

Hein v. Freedom from Religion Found., Inc., 551

Se ee HT anccadcitescaclidiiiitinepiatennitnaininaetabeenetines 26

INS v. Chadha, 462 U.S. 919 (1983) ................cccceeceees 12

Int'l Refugee Assistance Project v. Trump, 857

F.3d 554 (4th Cir. 2017).............ccccccseeeseeceeeeeeenes 20, 22

TABLE OF AUTHORITIES — Continued

Page

Int'l Refugee Assistance Project v. Trump, 883

oe ee 34, 35

Kerry v. Din, 135 S. Ct. 2128 (2015)............... 16, 17, 20

Kleindienst v. Mandel, 408 U.S. 753

EE Ea ee ee 12, 13, 18, 19, 20

Mathews v. Diaz, 426 U.S. 67 (1976) ...............00..00000 14

Mincey v. Arizona, 437 U.S. 385 (1978) ..................... 16

Montejo v. Louisiana, 556 U.S. 778 (2009) ................. 19

N.Y. Times Co. v. United States, 403 U.S. 713

Sie tubditchicptanpnactiebiduncialiadindspedhtdctinaimiinesecbcntnneaintid 8,9

NFIB v. Sebelius, 567 U.S. 519 (2012).........0...........0.. 38

Nigro v. United States, 276 U.S. 332 (1928)............... 37

Nishimura Ekiu v. United States, 142 U.S. 651

Poe csnihutatiicedeincheciainhdiitdnnenidiaitdeniaaeyubiddiennmneninsl 15,17

NLRB v. Catholic Bishop of Chi., 440 U.S. 490

SE Usaasrrera ideo cssinebsidtienhndcaaiToaesatbtiaedestnehiedesebeieibbaias adtimibaenianaiiannnichiielad 38

Plessy v. Ferguson, 163 U.S. 537 (1896)..................... 18

Sch. Dist. of Abington Twp. v. Schempp, 374 U.S.

I tn sischsinsltnciastcntidmnenntinnisiilediebaeianteasinntinnesnneet 30

Shaughnessy v. United States ex rel. Mezei, 345

I cicticlictendciintnd ‘dibualammmentienigmbainnaninads 15

Town of Greece v. Galloway, 134 S.Ct. 1811

eae et eo ee? Ce ee ae Oe 29

Trinity Lutheran Church of Columbia, Inc. v.

Comer, 137 S. Ct. 2012 (2017)...........cccccrccccocrssceceeese 21

TABLE OF AUTHORITIES — Continued

Page

Trop v. Dulles, 356 U.S. 86 (1958)... ccccccceeeteeeeee 14

United States ex rel. Knauff v. Shaughnessy, 338

ED ET CID cndeccasctactsnstncscstadssencatintiebseseinmnmneenesi 15

U.S. Dep't of Agric. v. Moreno, 413 U.S. 528

Sine bisnntershccuchiansnencsistnatadiiiibidedininisiatiddetntinindeinbaneinsin 19

Vill. of Arlington Heights v. Metro. Hous. Dev.

Corp., 429 U.S. 252 (1977).............-scccccossesereeeees 21, 25

Williams v. Pennsylvania, 136 8S. Ct. 1899 (2016)....... 24

Yick Wo v. Hopkins, 118 U.S. 356 (1886) .................... 21

Zadvydas v. Davis, 533 U.S. 678 (2001) ............... 12, 16

CONSTITUTIONAL PROVISIONS

Se EL, MINNIS 1 victstisschcestochntsiectcbedontneiuhainitioniciinn passim

Se IIIS TT <1 scencenseeniierstanadsiinicenhenmennaiddidaiehitdia 7

ee ey MINNIE, SEIT cccscncconcosnadsessesnseisoodrensncts passim

I eee 33

IS I Is Te seceseuadenemneanemel 6

RE & noes 5

STATUTES

8 U.S.C. § 1152(aX 1 MA) (2012)..................0seerereeceeeeees 37

es Oe I canschuncestenetensnsciecabedudasontinténtiadsitia 37

eee OP Ge erdicnicusinccsaszensenperenistennsconsnsoninstdas 38

TABLE OF AUTHORITIES — Continued

Page

OTHER AUTHORITIES

Akhil Reed Amar, The Bill of Rights: Creation

and Reconstruction (1998) .................. 5, 6, 28, 29, 31

David Bier, A Dozen Times Trump Equated his

Travel Ban with a Muslim Ban, Cato Inst.:

Cato at Liberty (Aug. 14, 2017, 12:06 PM),

https://www.cato.org/blog/dozen-times-trump-

equated-travel-ban-muslim-ban..........................6+. 22

David Bier, Travel Ban is Based on Executive

Whim, not Objective Criteria, Cato Inst.: Cato

at Liberty (Oct. 9, 2017, 2:07 PM), https://

www.cato.org/blog/travel-ban-based-executive-

whim-not-objective-criteria ...................0.cc00ecceeeeee es 25

Gerard V. Bradley, Church-State Relationships

IE Pita aintrntidinniasiicedenindinersinnmenieetesie 32

John Wesley Brinsfield, Religion and Politics in

Colonial South Carolina (1983).................660000000 + 33

Nathan S. Chapman, Due Process Abroad, 112

gM ee 7

Gabriel J. Chin, Is There a Plenary Power Doc-

trine? A Tentative Apology and Prediction for

Our Strange but Unexceptional Constitutional

Immigration Law, 14 Geo. Immigr. L.J. 257

Gabriel J. Chin, Segregation’s Last Stronghold:

Race Discrimination and the Constitutional

Law of Immigration, 46 UCLA L. Rev. 1

vii

TABLE OF AUTHORITIES — Continued

Page

Thomas J. Curry, The First Freedoms: Church

and State in America to the Passage of the

PUES RIAN (IBGE) onc essrcvesersscccsssecscecssesesevessess 32

Shawn E. Fields, /s it Bad Law to Believe a Pol-

itician? Campaign Speech and Discrimina-

tory Intent, 52 U. Rich. L. Rev. 273 (2018)........ 21, 24

Timothy Hill, Trust Us: Politicians Keep Most of

their Promises, FiveThirtyEight (Apr. 21, 2016,

6:33 AM), https://fivethirtyeight.com/features/

trust-us-politicians-keep-most-of-their-promises/ ....... 22

Thomas Jefferson, Jefferson’s Draft, The Ken-

tucky Resolutions of 1798 (1798), in 30 The

Papers of Thomas Jefferson 536 (2003).................. 10

Laws of Maryland 1763-1784 Session of July-

August 1779 (Alexander Contee Hanson ed.,

1787), http://msa.maryland.gov/megafile/msa/

speccol/sc2900/sc2908/00000 1/000203/pdf/am

TT ahiitahsineciibaicdeisdenabinibindhindlegthndbebbibadicedtiidntecnasens 32

Leonard W. Levy, The Establishment Clause:

Religion and the First Amendment (1994) ............. 29

William K. Lietzau, Rediscovering the Estab-

lishment Clause: Federalism and the Rollback

of Incorporation, 39 DePaul L. Rev. 1191

James Madison, Virginia Resolutions of 1798

(1798), reprinted in Jefferson Powell, Lan-

guages of Power: A Source Book of Early Amer-

ican Constitutional History 134 (1991) .................. 10

viii

TABLE OF AUTHORITIES -— Continued

Michael J. Zydney Mannheimer, The Contingent

Fourth Amendment, 64 Emory LJ. 1229

(DOIG) .nrcosccossscnrcescnscscorccscoscoscssccsesesescocenscescosescnecsencens 6

Peter Margulies, The New Travel Ban; Under-

mining the Immigration and Nationality Act,

Lawfare (Sept. 25, 2017, 4:30 PM), https:/Awww.

lawfareblog.com/new-travel-ban-undermining-

immigration-and-nationality-act ............ccccceeeees 35

Masterpiece Cakeshop, Ltd. v. Colo, Civil Rights

Comm'n, No. 16-111 (U.S. Dee. 5, 2017)........:.c00 24

Michael W. McConnell, Establishment and Dis-

establishment at the Founding, Part I: Estab-

lishment of Religion, 44 Wm. & Mary L. Rev.

SO Ev ictktentceeinciitncninitntvenntinnsaaesniesowvininnss 28, 32

Francois Pétry & Benoit Collete, Measuring

How Political Parties Keep Their Promises, in

Do They Walk Like They Talk?: Speech and

Action in Policy Processes 65 (Louis M. Imbeau

Oi SD bhcnaciscevcesnicciscitisenliteiiedndalinicdianiaedaginginasinsnties 22

Prize Ship and Crew — How to be Disposed of,

1 Op. Att’y Gen. 85 (1798).........cscseesseesrreeserreereees 7

Katie Reilly, President Trump Praises Fake

Story About Shooting Muslims With Pig's

Blood-Soaked Bullets, Time.com, Aug. 17,

2017, http://time.com/4905420/donald-trump-

pershing-pigs-blood-muslim-tweet/ .............0008 34

2 Joseph Story, Commentaries on the Constitution

of the United States § 1879 (4th ed. 1873).......... 30, 36

INTEREST OF AMICI CURIAE'

This brief of amici curiae in support of Respond-

ents is respectfully submitted by law professors with

expertise in constitutional law. Amici submit this brief

in order to present their view on the structural role of

the Bill of Rights in our constitutional system, which

contradicts the federal government's claim to virtually

unlimited power over immigration free of constitu-

tional constraints that restrict all other federal powers.

In particular, the Establishment Clause uniquely for-

bids the federal government from favoring some reli-

gious sects over others. Proclamation No. 9645 (“the

Proclamation”) violates the Establishment Clause of

the First Amendment and therefore cannot stand.

A list of amici curiae appears as Appendix A.*

SUMMARY OF ARGUMENT

The Bill of Rights was added to the Constitution,

not just to protect individual rights, but also to impose

structural constraints on the federal government.

' The parties’ written consents to the filing of this brief have

been filed with the Clerk of the Court. No counsel for a party au-

thored this brief in whole or in part, and no counsel or party made

a monetary contribution intended to fund the preparation or sub-

mission of this brief. No person other than amici curiae or their

counsel made a monetary contribution to its preparation or sub-

mission.

* The views expressed herein are those of the individual

amict and not of any institutions or groups with which they are

affiliated.

These constraints sharply curb the powers granted in

the unamended Constitution, divesting the federal

government of some of the authority it would other-

wise have. Thus, Petitioners’ claim of nearly unlimited

authority over immigration that is immune from judi-

cial review has it backwards. No federal power can

override the Bill of Rights. To the contrary, the Bill of

Rights limits federal power in every sphere, including

immigration.

The Establishment Clause was originally under-

stood as preventing federal regulation of religion in or-

der to preserve state autonomy in this sphere. Prior to

the enactment of the Fourteenth Amendment, a State

could establish a state religion, favor some religions

over others, or adopt a policy of nondiscrimination.

Whatever it opted to do, the Establishment Clause

disqualified the federal government from interfering.

The authority of the States in the domain of religion

has now been curtailed by the Fourteenth Amendment

and its application of the Bill of Rights to the States.

But the constraints the Establishment Clause imposes

on the federal government remain in their original

form: The federal government can neither establish a

national religion, nor engage in discrimination based

on religious animus, nor interfere with what remains

of state authority in the religious domain.

The Proclamation, motivated by bias against Mus-

lims, violates the Establishment Clause by disfavoring

adherents of a particular minority religion. And be-

cause the Establishment Clause is a general structural

limitation on the power of the federal government, the

Proclamation cannot be enforced even against foreign

nationals abroad.

The role of the Establishment Clause as a struc-

tural constraint on federal authority over immigration

follows logically from the text, structure, and original

meaning of the Bill of Rights. It is also consistent with

this Court’s precedents, properly understood. To the

extent that the latter may nonetheless be read to give

the federal government unwarranted authority to dis-

regard the Bill of Rights, this Court should take the

opportunity to clarify, limit, or overrule them.

The constitutional flaws of the Proclamation

should lead this Court to rule in favor of the Respond-

ents on the statutory issues in the case, in order to ad-

here to the canon against statutory constructions that

raise constitutional problems.

ARGUMENT

I. The Bill of Rights limits federal power

over immigration.

Petitioners contend that federal power over immi-

gration is essentially unconstrained by the Bill of

Rights. Immigration policy, they assert, is “exclusively

entrusted to the political branches” and is “largely im-

mune from judicial inquiry.” Pet'rs’ Br. at 18 (quoting

Harisiades v. Shaughnessy, 342 U.S. 580, 589 (1952)).

Such claims are inconsistent with the role of the Bill of

Rights as a structural limitation on federal power.

A. The Bill of Rights consists largely of

structural constraints that limit the

power of the federal government in

every realm, including immigration.

The text, h‘story, and original meaning of the Bill

of Rights indicate that most of its provisions — includ-

ing the Establishment and Free Exercise Clauses of

the First Amendment — are structural limitations on

federal government power. Their applicability is not

limited to government actions within the territory of

the United States, or those that target American citi-

zens. This conclusion is supported by the clear and un-

equivocal phrasing of the text, and by Founding-era

practice.

1. The text of the First Amendment

does not limit its applicability based

on either territory or citizenship.

The text of the First Amendment states, in rele-

vant part, that “Congress shall make no law respecting

an establishment of religion, or prohibiting the free ex-

ercise thereof.” U.S. Const. amend. I. Nothing there

suggests that the Amendment is limited to govern-

ment actions within the territory of the United States

or those that target American citizens or legal perma-

nent residents. Neither does it suggest that the force

of the Amendment is somehow weaker when it comes

to government actions abroad. To the contrary, the text

creates a categorical structural limitation on federal

power. Regardless of the location or citizenship status

of its objects, “Congress shall make no law” that trans-

gresses the bounds of the Amendment.

The Constitution does reserve a few rights for cit-

izens alone. Most notably, the Privileges and Immuni-

ties Clause of Article IV, Section 2, and the Privileges

or Immunities Clause of the Fourteenth Amendment

both protect the “privileges” and “immunities” of An er-

ican citizens. U.S. Const. art. IV, § 2, cl. 1. But the fact

that a few rights are explicitly reserved to citizens only

serves to make clear that others are not. If there were

an implicit assumption that all rights are reserved to

citizens unless specifically indicated otherwise, there

would be no need to explicitly indicate such a reserva-

tion with respect to any particular rights.

2. The original understanding of the

Bill of Rights does not set territorial

or citizenship status limitations on

its applicability.

The Bill of Rights was added to the Constitution

at the insistence of the Anti-Federalists because they

feared the powers of the new federal government. See,

e.g., Akhil Reed Amar, The Bill of Rights: Creation and

Reconstruction ch. 1 (1998) (describing the historical

origins of the Bill of Rights). The Bill of Rights was

thus originally understood as not only protecting cer-

tain individual rights, but also establishing a set of

structural limitations on federal power. See id. at chs.

1-6.

Moderate Anti-Federalists in the key States of

New York and Virginia voted in favor of the Constitu-

tion on the expectation that the federal government's

new powers would be constrained by a bill of rights.

See Michael J. Zydney Mannheimer, The Contingent

Fourth Amendment, 64 Emory LJ. 1229, 1278-81

(2015) It is because of this promise that we have the

Constitution we know today. Any claim that the federal

government has virtually unlimited power over immi-

gration — and therefore can ignore the Bill of Rights

when formulating immigration policy — has things

backwards: The Bill of Rights limits federal authority

over immigration, not the other way around.

This structural account of the Bill of Rights is con-

sistent with Founding-era practice, which made no dis-

tinction between the way the Bill’s restrictions on

federal power applied within the United States and the

way it constrained federal government actions abroad,

including those targeting noncitizens.

In the early Republic, potential conflicts between

the Bill of Rights and the exercise of federal power

against noncitizens abroad mostly arose in the context

of efforts to combat lawbreaking in international wa-

ters. Many involved enforcement of federal laws au-

thorized by Congress’s power to “define and punish

Piracies and Felonies committed on the high Seas.”

U.S. Const. art. I, § 8, cl. 10. They included efforts to

suppress piracy and the slave trade, and catch

violators of United States tariff and embargo policies.

See generaily Nathan S. Chapman, Due Process

Abroad, 112 Nw. U.L. Rev. 377 (2017).

Both Congress and the executive consistently con-

cluded that pirates could not be detained and punished

without being afforded due process of law, as required

by the Due Process Clause of the Fifth Amendment —

including a trial in a regularly constituted federal

court. See id. at 413. The same was true of the proce-

dures for detaining and trying suspected slave traders

and smugglers. Jd. at 419. Such prominent jurists and

statesmen as Supreme Court Justice James Iredell, Al-

bert Gallatin, and John Quincy Adams argued that

this was required by the Constitution. See id. at 382,

413.

Importantly, these policies made no distinction be-

tween suspected pirates, smugglers, and slave traders

who were foreign nationals and those who were Amer-

ican citizens. As President John Adams’s Attorney

General Charles Lee instructed in 1798, suspected pi-

rates were to be tried in ordinary federal courts, “ac-

cording to the law of the United States, without respect

to the nation which each individual may belong,

whether he be British, French, American, or of any

other nation.” Jd. at 427 (quoting Prize Ship and Crew

~— How to be Disposed of, 1 Op. Att’y Gen. 85, 86 (1798)).

If the Due Process Clause of the Fifth Amendment

applies to Federal actions abroad, including those tar-

geting noncitizens, the same goes for other parts of the

Bill of Rights. And if federal power to punish crimes

“on the high Seas” is constrained by the Bill of Rights,

that principle also applies to the power to regulate im-

migration. It would be strange indeed if captured pi-

rates and smugglers were accorded greater protection

under the Constitution than peaceful migrants.

3. The structural principle advanced

here is consistent with the way the

Bill of Rights constrains the exer-

cise of other federal powers.

The claim that the federal government’s “plenary

power” over immigration gives it the authority to over-

ride the constraints of the Bill of Rights is flatly incon-

sistent with the way the Supreme Court has treated

other federal powers, which are all subject to the Bill

of Rights, regardless of how “plenary” they otherwise

are. For example, Congress has long been understood

to have plenary power to regulate interstate com-

merce. That authority is “plenary as to those objects”

to which it extends. Gibbons v. Ogden, 22 U.S. (9

Wheat.) 1, 197 (1824). Yet it does not follow that the

federal government has the power to forbid the use of

interstate commerce to disseminate ideas critical of

the President, or that it can bar interstate trade car-

ried on by Muslims or Jews.

Even the power over national defense — as funda-

mental and essential a federal power as any — is sub-

ject to the constraints of the Bill of Rights. See, e.g. , N_Y.

Times Co. v. United States, 403 U.S. 713, 714 (1971)

(ruling that this power is limited by the Free Speech

Clause of the First Amendment). As Justice Black

wrote in the famous “Pentagon Papers” case:

When the Constitution was adopted, many

people strongly opposed it because the docu-

ment contained no Bill of Rights to safeguard

certain basic freedoms. ... In response to an

overwhelming public clamor, James Madison

offered a series of amendments to satisfy citi-

zens that these great liberties would remain

safe and beyond the power of government to

abridge. . . . |T|he Solicitor General argues . . .

that the general powers of the Government

adopted in the original Constitution should be

interpreted to limit and restrict the specific

and emphatic guarantees of the Bill of Rights

adopted later. I can imagine no greater perver-

sion of history.

Id. at 715-16 (Black, J., concurring).

If this principle restricts even Congress's and the

President's specifically enumerated powers, such as

the power to regulate interstate commerce and na-

tional defense powers, it should apply with at least

equal force to federal authority over immigration. The

latter is not enumerated in the Constitution, but has

been merely assumed to exist by the Court because the

power to “exclude aliens from its territory . . . is an in-

cident of every independent nation” and therefore an

“incident of sovereignty belonging to the government

of the United States.” Chae Chan Ping v. United States,

130 U.S. 581, 603, 609 (1889).

As Justice Scalia explained, “after the adoption of

the Constitution there was some doubt about the

power of the Federal Government to control immigra-

tion,” and “with the fleeting exception of the Alien

Act lof 1798], Congress did not enact any legislation

regulating immigration for the better part of a cen-

tury.” Arizona v. United States, 567 U.S. 387, 421 (2012)

(Scalia, J., concurring in part and dissenting in part).

James Madison, Thomas Jefferson, and others argued

that the Alien Friends Act was unconstitutional be-

cause the federal government lacked any general

power to regulate immigration. See James Madison,

Virginia Resolutions of 1798 (1798) (stating that the

Act “exercises a power nowhere delegated to the fed-

eral government”), reprinted in Jefferson Powell, Lan-

guages of Power: A Source Book of Early American

Constitutional History 134 (1991); Thomas Jefferson,

Jefferson’s Draft, The Kentucky Resolutions of 1798

(1798) (“ALIEN -friends are under the jurisdiction and

protection of the laws of the state wherein they are;

that no power over them has been delegated to the

US”), in 30 The Papers of Thomas Jefferson 536 (2003).

It would be perverse to allow the plenary power doc-

trine to give a merely implied — and historically con-

tested — federal power over immigration higher status

than the federal government’s specifically enumerated

powers.

Petitioners claim that “the exclusion of aliens

abroad calls for especially deferential judicial review.”

Pet’rs’ Br. at 61. But the political branches also have

broad — indeed plenary — authority over interstate

commerce and many aspects of national defense. Yet it

does not follow that the courts must engage only in “es-

pecially deferential ... review” of federal government

actions in these fields. Indeed, precisely because the

government has such broad authority, it is especially

important to ensure that power is not wielded in ways

that are unconstitutional. The breadth of federal

power under the unamended Constitution is the main

reason that the Bill of Rights was enacted in the first

place.

Petitioners also contend that the use of the ple-

nary power doctrine to circumvent the Bill of Rights in

the immigration field is proper because aliens seeking

admission from abroad “have no constitutional rights

at all regarding entry into the country.” Pet’rs’ Br. at

59. But the lack of a constitutional right to enter does

not mean that the federal government can deny entry

on any basis it wants. For example, Congress has the

power to give or withhold Social Security benefits. See

Flemming v. Nestor, 363 U.S. 603, 609-11 (1960). That

does not mean it is free to discriminate on the basis of

race or religion in doing so. See id. at 611. A law that

excluded Muslims or Jews from receiving Social Secu-

rity benefits would be unconstitutional. The same nec-

essarily goes for a law or executive action that engages

in similar discrimination with respect to potential im-

migrants.

B. This Court’s precedents belie the notion

that immigration policy is “largely im-

mune” from judicial review of claims

that it violates the Bill of Rights.

This Court’s precedents are consistent with the

principle that the Bill of Rights imposes structural con-

straints on federal power over immigration. Indeed,

these precedents show that claims that federal immi-

gration policy violates a provision of the Bill of Rights

have not been categorically barred by the Court. To the

extent that any of the Court’s precedents could be read

as allowing Congress to ignore the Bill of Rights in the

immigration context, it should take this opportunity to

clarify, limit, or overrule those decisions.

For well over a century, this Court has recognized

the obvious fact that federal power over immigration

is constrained by the Constitution. See Zadvydas v. Da-

vis, 533 U.S. 678, 695 (2001) (observing that federal

power over immigration law “is subject to important

constitutional limitations”); INS v. Chadha, 462 U.S.

919, 940-41 (1983) (noting that the federal government

must choose “a constitutionally permissible means of

implementing |its] power” over immigration); Chae

Chan Ping, 130 U.S. at 604 (observing that federal

power over immigration is “restricted . . . by the |Clon-

stitution itself”).

Notwithstanding this established principle, Peti-

tioners insist, based largely on Kleindienst v. Mandel,

408 U.S. 753 (1972), that immigration policy is virtu-

ally immune from judicial review, even when it

implicates the Bill of Rights. See Pet’rs’ Br. at 58-64.

Petitioners misread that case.

In Mandel, the Court addressed a First Amend-

ment challenge to the Attorney General’s decision not

to grant a waiver to Mandel from his disqualification

for a temporary visa pursuant to a federal statute that

denied visas to anyone who advocated communism.

408 U.S. at 755-57. Importantly, though, the appellees

in Mandel did not challenge the federal statute on

First Amendment grounds. Instead, they conceded

that Congress’s exclusion of communists was con-

sistent with the First Amendment. /d. at 767. They

claimed merely that the First Amendment prohibited

the Attorney General’s exercise of executive discretion

to refuse a waiver in Mandel’s particular case.

The Court’s statement that withholding judicial

review was appropriate so long as the executive's rea-

son for refusing a particular waiver was “facially legit-

imate and bona fide,” id. at 770, was premised on the

concession that the general exclusion of communists

was consistent with the First Amendment. So long as

that general exclusion is constitutional, and a specific

decision implementing that general exclusion rests

upon a “facially legitimate and bona fide” reason, the

courts will not look behind that reason.

The present case is wholly different. Respondents

here challenge the Proclamation itself, not just the

manner in which it has been applied to a particular

individual. Had the appellees in Mandel challenged

the statute head on, the Court could have decided the

case based on ordinary First Amendment principles.

Petitioners argue that ordinary constitutional

principles do not apply to the immigration context.

Again, this misreads precedent. It is true that the

Court said in Demore v. Kim, 538 U.S. 510, 521 (2003),

that, “{iJn the exercise of its broad power over natural-

ization and immigration, Congress regularly makes

rules that would be unacceptable if applied to citizens”

(quoting Mathews v. Diaz, 426 U.S. 67, 79-80 (1976)).

But aside from the obvious fact that, unlike citizens,

noncitizens can be deported, cf. Trop v. Dulles, 356 U.S.

86, 92-93 (1958) (plurality opinion), this dictum does

not imply a general power to override normal constitu-

tional constraints in immigration cases.

The dictum appears to stem from Harisiades, 342

U.S. at 581-84, in which three aliens challenged depor-

tation orders based on their prior membership in the

Communist Party, which a federal statute made a

ground for deportation. The Court rejected their First

Amendment claims, but not because of any special def-

erence or solicitude granted to Congress when it legis-

lates in the immigration context. Jd. at 591-92. Rather,

the Court relied on then-conventional First Amend-

ment principles, id. at 592 & n.18. Dennis v. United

States, 341 U.S. 494, 516-17 (1951), decided just nine

months earlier, held that Congress could, consistent

with the First Amendment, criminalize membership in

the Communist Party.

Thus Harisiades stands only for the simple notion

that, if Congress could make membership in the Com-

munist Party by American citizens a crime without vi-

olating the First Amendment, it could also make such

membership grounds for deportation of an alien. See

342 U.S. at 592 & n.19 (“T]he test applicable to the

Communist Party has been stated too recently to make

further discussion at this time profitable.” (citing Den-

nis, 341 U.S. 494)). The federal government did not get

any special deference merely because Harisiades was

an immigration case.

Petitioners also rely heavily on cases in which an

alien brought a procedural due process challenge to an

order of exclusion. Typical is Shaughnessy v. United

States ex rel. Mezei, 345 U.S. 206, 207 (1953), in which

an alien challenged the Attorney General’s decision to

exclude him without a hearing. The Court rejected the

claim, explaining: “Whatever the procedure authorized

by Congress is, it is due process as far as an alien de-

nied entry is concerned.” Jd. at 212 (quoting United

States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 544

(1950)). This dictum traces its lineage to Nishimura

Ekiu v. United States, 142 U.S. 651 (1892), on which

Petitioners also rely. There the Court wrote that, as to

aliens seeking entry, “the decisions of executive or ad-

ministrative officers, acting within powers expressly

conferred by |Clongress, are due process of law.” Jd. at

660.

But Nishimura Ekiu merely reflects an era in

which the concept of procedural due process was

thought to mean only that executive branch officials

must follow the applicable statutory and common law

procedures of the jurisdiction in question. For example,

in a roughly contemporaneous appeal in a state crimi-

nal case, the Court rejected the defendant’s contention

that his confession was coerced in violation of due pro-

cess, writing that “if ... the admission of thle] testi-

mony did not violate ... the Constitution and laws of

the state of Missouri, the record affords no basis for

holding that he was not awarded due process of law.”

Barrington v. Missouri, 205 U.S. 483, 486-87 (1907).

The modern understanding of due process in both

of these contexts is, of course, very different. See

Zadvydas, 533 U.S. at 690 (“A statute permitting indef-

inite detention of an alien would raise a serious consti-

tutional problem |under| |t|]he Fifth Amendment’s Due

Process Clause.”); Mincey v. Arizona, 437 U.S. 385, 398-

400 (1978) (holding that unwanted interrogation of

hospital patient in “unbearable” pain in intensive care

unit violates Due Process Clause of Fourteenth

Amendment); see also Boutilier v. INS, 387 U.S. 118,

123-24 (1967) (rejecting due process void for vagueness

challenge to immigration statute under the same

standards used in other void for vagueness cases).

Kerry v. Din, 135 S. Ct. 2128 (2015), as explained

in Justice Kennedy’s decisive concurring opinion, is

also a procedural due process case, in which the Court

rejected a claim that the visa application of a foreign

spouse of an American citizen was denied without suf-

ficient reason for the denial. Jd. at 2139-41 (Kennedy,

J., concurring in the judgment). Justice Kennedy did

not deny that due process required the government to

provide a reason. He simply determined that the State

Department’s citation of the applicable statutory

provision barring from visa eligibility those who had

engaged in “terrorist activities,” coupled with the

American spouse’s concession that her husband had

worked for the Taliban, provided a sufficient reason.

Id.

A determination of what process is due regarding

an individualized assessment of a visa application is

worlds apart from the contention that a large swath of

immigration policy is virtually exempt from the Estab-

lishment Clause. Like Harisiades, Nishimura Ekiu

and its progeny, including Din, stand for the unre-

markable proposition that constitutional claims in the

immigration context are generally treated the same as

in any other context. See Gabriel J. Chin, Js There a

Plenary Power Doctrine? A Tentative Apology and Pre-

diction for Our Strange but Unexceptional Constitu-

tional Immigration Law, 14 Geo. Immigr. L.J. 257, 258

(2000) (explaining that immigration cases have typi-

cally been “consistent with domestic constitutional

law” as it existed when they were decided).

Importantly, this Court has never approved a dis-

tinction based on religion in the immigration context,

or intimated that such a distinction is only subject to

diminished judicial scrutiny. To the contrary, this issue

simply has not arisen before, precisely because of wide-

spread recognition that religion-based immigration re-

strictions would be anathema to the First Amendment.

See infra Part I1.A. Only two of this Court’s immigra-

tion cases involve First Amendment challenges at all:

Mandel, in which the viewpoint-based distinction

made by the immigration statute in question went un-

challenged, and Harisiades, in which the Court sub-

jected such a distinction to the same constitutional

standards applied in domestic First Amendment cases

at the time.

C. Vo the extent that the Court’s precedent

does cast doubt on the applicability of

the Bill of Rights to immigration cases,

it should be limited or overruled.

To whatever extent the Court’s precedents are in-

consistent with the principle that the Bill of Rights

constrains all powers granted to the federal govern-

ment, they should be limited or overruled. The im-

portance of the Bill of Rights as a check on abuses of

federal power is such a fundamental element of our

Constitution that this Court should not allow mis-

guided or misunderstood precedent to negate it. This

imperative is heightened by the painful reality that

the plenary power doctrine has its origins, not in the

ideals of the Founding, but in the widespread racial

and ethnic prejudices of the same era that gave rise to

Jim Crow segregation and Plessy v. Ferguson, 163 U.S.

537 (1896). See Gabriel J. Chin, Segregation’s Last

Stronghold: Race Discrimination and the Constitu-

tional Law of Immigration, 46 UCLA L. Rev. 1, 12-53

(1998) (describing the effects of racial prejudice on de-

velopment of the plenary power doctrine, and its con-

nections with domestic racial segregation). A key

factor that this Court considers in deciding whether to

overrule precedent is whether it was “well reasoned.”

Montejo v. Louisiana, 556 U.S. 778, 792-93 (2009). A

doctrine that is at odds with basic textual and struc-

tural principles of the Constitution and owes its ori-

gins in large part to racial prejudice surely is not.

Should the Court choose to apply the rule of Man-

del to the present case, it can do so in a way that is

compatible with the role of the Bill of Rights as a fun-

damental constraint on federal power. Petitioners rely

on the passage in Mandel that indicates that “when the

Executive exercises this power [to exclude an alien| on

the basis of a facially legitimate and bona fide reason,

the courts will neither look behind the exercise of that

discretion, nor test it by balancing its justification

against the |plaintiffs’] First Amendment interests.”

408 U.S. at 770. Under this approach, the government

is entitled to heavy judicial deference only if it offers a

justification for exclusion that is both “facially legiti-

mate” and “bona fide.”

The Court should make clear that a justification

cannot be “facially legitimate” if it contravenes the Bill

of Rights — for example, by targeting potential immi-

grants based on their speech or religion. The very na-

ture of a legitimate government interest assumes that

it does not involve attacking a constitutional right. See,

e.g., U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528, 534

(1973) (holding that an attack on the constitutional

right to equal protection of the laws by attempting to

“harm a politically unpopular group” does not qualify

as a legitimate state interest).

In order to be “bona fide,” the interest in question

must be offered in good faith, and cannot be a mere

pretext for indirectly violating the Bill of Rights, as is

the case here. See Din, 135 S. Ct. at 2141 (Kennedy J.,

concurring in the judgment) (noting that “an affirma-

tive showing of bad faith” would vitiate the judicial def-

erence that might otherwise be due under Mandel);

Int'l Refugee Assistance Project v. Trump (IRAP I), 857

F.3d 554, 590 (4th Cir. 2017) (noting that “as the name

suggests, the ‘bona fide’ requirement concerns whether

the government issued the challenged action in good

faith”), vacated as moot, Trump v. Int'l Refugee Assis-

tance, 138 S. Ct. 353 (2017). Should the Court conclude

that Mandel applies to the present case, it can avoid

overruling it, while still vindicating the importance of

the Bill of Rights as a constraint on federal power of

every kind.

D. Because the Bill of Rights constrains

federal power over immigration, it is

permissible for courts to assess the Pres-

ident’s statements as evidence of dis-

criminatory motive.

Because the Bill of Rights constrains federal

power over immigration, just as it does other govern-

ment powers, courts can and should consider the

President’s many statements indicating that discrimi-

nation against Muslims was the true purpose of the

Proclamation.

Laws and executive actions that discriminate on

the basis of religion are subject to strict scrutiny, much

like those that discriminate on the basis of race or eth-

nicity. See, e.g., Trinity Lutheran Church of Columbia,

Inc. v. Comer, 137 S. Ct. 2012, 2019 (2017) (reiterating

this rule under the Free Exercise Clause). This Court

has long held that a facially neutral law or regulation

may be invalidated if its true purpose was to discrimi-

nate on the basis of a prohibited classification. See, e.g.,

Yick Wo v. Hopkins, 118 U.S. 356, 374 (1886) (striking

down facially neutral ordinance that was used to dis-

criminate against the Chinese).

In assessing whether an impermissible discrimi-

natory motive is present, this Court’s precedents re-

quire judges to make “a sensitive inquiry into such

circumstantial and direct evidence of intent as may be

available,” including “|t|he historical background of

the decision” and “|t)he specific sequence of events

ading up to the challenged decision.” Vill. of Arling-

ton Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252,

266-67 (1977). The President’s numerous statements

indicating that the true purpose of his ostensibly terri-

torially-based travel ban was to fulfill his campaign

promise to impose a “Muslim ban” are undeniably key

elements of “the historical background” of the Procla-

mation, and they are clearly part of the “specific se-

quence of events leading up” to it. Jd.; see also Shawn

E. Fields, Js it Bad Law to Believe a Politician? Cam-

paign Speech and Discriminatory Intent, 52 U. Rich. L.

Rev. 273, 294-315 (2018) (outlining reasons why it is

appropriate and necessary for courts to consider

campaign statements in cases alleging discriminatory

intent).

On at least a dozen separate occasions, President

Trump equated his territorial travel ban policy with

the Muslim ban he advocated during the campaign.

For example, he noted that the second iteration of the

travel ban was not a repudiation but actually an

“expansion” of the initial ban that was deemed uncon-

stitutional by every federal court that addressed the

issue. See David Bier, A Dozen Times Trump Equated

his Travel Ban with a Muslim Ban, Cato Inst.: Cato at

Liberty (Aug. 14, 2017, 12:06 PM), https://www.cato.

org/blog/dozen-times-trump-equated-travel-ban-muslim-

ban; see also IRAP I, 857 F.3d at 575-77, J.A. 122-23,

169, 179, 399 (describing several of the President's

statements to this effect in detail).

Campaign promises are an important indication

of politicians’ intentions. Despite the stereotype that

candidates routinely break their commitments, empir-

ical evidence suggests that presidents keep the vast

majority of their campaign promises — generally two

thirds or more. And it is likely they at least attempt to

keep an even larger percentage. See Timothy Hill,

Trust Us: Politicians Keep Most of their Promises,

FiveThirtyEight (Apr. 21, 2016, 6:33 AM), https://

fivethirtyeight.com/features/trust-us-politicians-keep-

most-of-their-promises/ (summarizing relevant evi-

dence); Francois Pétry & Benoit Collete, Measuring

How Political Parties Keep Their Promises (presenting

historical data on presidential promise-keeping), in Do

They Walk Like They Talk?: Speech and Action in

Policy Processes 65 (Louis M. Imbeau ed., 2009). The

President himself emphasized that he would issue the

second Executive Order, after a prior one was struck

down, in order to “keep |his| campaign promises,”

thereby demonstrating that those promises are indeed

part of the “historical background” of this case. See J.A.

127-28. At the same time, he denigrated the second Ex-

ecutive Order as a “watered down” and “politically cor-

rect” version of his original order, concocted by the

Department of Justice (“DOJ”) to pass constitutional

muster, and urged DOJ lawyers to return to the origi-

nal version that had been struck down as based on

anti-Muslim animus. J.A. 132-33. The present Procla-

mation was a direct outgrowth of two previous execu-

tive orders motivated by anti-Muslim bias.

To ignore campaign statements in such a context

would be to close judicial eyes to obvious political real-

ities. It would also set a dangerous precedent for future

cases. If even the most egregious statements of dis-

criminatory intent by decision-makers can be ignored

if uttered during a campaign, future presidents and

other policymakers would have a ready-made playbook

for getting away with enacting a wide range of discrim-

inatory policies. They could blatantly appeal to bigotry

during the campaign, then moderate their rhetoric af-

ter the election and target racial, ethnic, or religious

groups for discrimination by using facially neutral cri-

teria that have a high correlation with the prohibited

classification. For instance, they could target African-

Americans by singling out people who live in majority-

black neighborhoods, a strategy similar to the

“territorial” approach to targeting Muslims adopted by

the Proclamation.

The President's statements are particularly rele-

vant in a case like the present one, where the chal-

lenged government policy was the product of a single

decision-maker, who made his intentions very obvious.

In such a situation, courts do not face the difficulties

inherent in assessing the purposes of multi-member

legislative bodies, where different participants in the

process may have supported the same policy for widely

divergent reasons. Cf. Fields, supra, at 316 (“Unsur-

prisingly, it is more difficult to establish the underlying

motives of ten county commissioners or one hundred

senators than it is of one mayor, governor, or Presi-

dent.”).

In the recent oral argument in Masterpiece

Cakeshop, Ltd. v. Colorado Civil Rights Commission,

Justice Kennedy suggested that “hostility to religion”

on the part of one key member of a seven-person state

commission could be a significant factor in rendering

the resulting policy unconstitutional. Transcript of

Oral Argument at 52, Masterpiece Cakeshop, Ltd. v.

Colo. Civil Rights Comm’n, No. 16-111 (U.S. Dee. 5,

2017); cf Williams v. Pennsylvania, 136 S. Ct. 1899,

1909-10 (2016) (concluding that bias by one judge on a

multi-judge appeals court requires vacatur even where

his was not the decisive vote). The evidence of religious

animus in the present case is far stronger. There is only

one decision-maker, and he has made his motives clear

on numerous occasions, not just in a single, possibly

isolated, statement.

Evidence of impermissible motive does not by it-

self prove that the challenged government action must

be ruled unconstitutional. The government can still

vindicate its policy by demonstrating that it would

have been enacted in the same form even in the ab-

sence of illicit motivations. See Arlingion Heights, 429

U.S. at 270 n.21 (“Proof that the decision by the |gov-

ernment] was motivated in part by a racially discrimi-

natory purpose would not necessarily have required

invalidation of the challenged decision. Such proof

would, however, have shifted to the |government] the

burden of establishing that the same decision would

have resulted even had the impermissible purpose not

been considered.”). But assessing evidence of motive is

nonetheless a crucial part of the judicial role in cases

like the present one, and the President's statements

cannot be ignored in such an inquiry. In the present

case, it is unlikely that the Petitioner can prove he

would have issued the Proclamation even in the ab-

sence of religious animus, because the security ration-

ales he offers are weak and do not meaningfully

differentiate nations subject to the ban from those

that are not. See, e.g., David Bier, Travel Ban is Based

on Executive Whim, not Objective Criteria, Cato Inst.:

Cato at Liberty (Oct. 9, 2017, 2:07 PM), https://

www.cato.org/blog/travel-ban-based-executive-whim-

not-objective-criteria (explaining how the Proclamation

fails to consistently apply its own supposed criteria for

determining which nations should be covered).

1 bs *

First principles and precedent point in the same

direction: Irrespective of the fact that the Proclamation

operates in the immigration context, the Court may,

and must, subject it to ordinary principles of constitu-

tional law. Doing so would leave Congress and the

President with broad power to regulate immigration

on a wide range of grounds. They could, for example,

discriminate among potential immigrants on the basis

of job skills, educational attainment, criminal record,

presence of family members in the United States, and

so on. Just as Congress retains broad authority over

interstate commerce and other matters within its Ar-

ticle | powers, the same is true in the field of immigra-

tion. What the federal government cannot do, however,

is discriminate on bases that violate the Bill of Rights

or other constitutional provisions.

Il. Under the Establishment Clause of the

First Amendment, the proclamation is un-

constitutional and void even as to foreign

nationals abroad.

The Establishment Clause of the First Amend-

ment states that “Congress shall make no law respect-

ing an establishment of religion.” U.S. Const. amend. I.

Because this case involves a challenge to a federal ex-

ecutive proclamation, the First Amendment applies di-

rectly, unmediated by the Fourteenth Amendment.’

* The Establishment Clause principles that limit Congres-

sional action also apply to the executive. Cf Hein v. Freedom from

But because most of the Establishment Clause ju-

risprudence over the past seventy years has addressed

the Clause as incorporated against the States, the orig-

inal understanding of the Clause as a constraint on

uniquely federal power has often been ignored. That

original understanding dictates that the federal gov-

ernment may neither establish a national religion, nor

interfere with the primacy of the States in the field of

religion.

The challenge in this case goes to the latter con-

straint. By using entry restrictions to target a particu-

lar religious minority, the Proclamation interferes with

State primacy in the religious domain: It hampers the

ability of the States to attract Muslim residents and

thereby enhance the States’ religious diversity. Be-

cause the Clause acts as a structural limitation on the

power of the federal government, and not just a protec-

tion for individual rights, the Proclamation is void and

cannot be applied to anyone, including foreign nation-

als abroad.

Religion Found., Inc., 551 U.S. 587, 593-95 (2007) (plurality opin

ion) (addressing Establishment Clause challenge to Executive Or-

ders). If the First Amendment prohibits Congress from passing a

statute, it surely must prohibit the President from taking the

same action unilaterally by executive order. Petitioners have not

argued to the contrary.

A. The Proclamation violates the Establish-

ment Clause because it interferes with

State primacy over religion.

The original understanding of the First Amend-

ment’s Establishment Clause was that it was a feder-

alism provision, preventing the federal government

from establishing a national religion or interfering

with the States’ exclusive sovereignty in the religious

sphere. The Proclamation, directed at limiting entry

into the country by Muslims, conflicts with the latter

constraint.

This Court’s modern Establishment Clause juris-

prudence began with Everson v. Bd. of Educ. of Ewing

Twp., 330 U.S. 1, 3 (1947), a challenge to a New Jersey

statute. It was also in this case that the Court held that

the Clause applies to the States via incorporation into

the Fourteenth Amendment. See id. at 15. Since that

time, the Court has not taken the opportunity to rule

on the distinctive federalism strand of the Establish-

ment Clause, which specifically disqualifies the federal

government from regulating religion.

The Establishment Clause was originally under-

stood, at least in part, as a federalism provision. Obvi-

ously, in 1791, it constrained only the federal

government. That restriction on federal power was

twofold. First, it prohibited the federal government

from establishing a national religion or church. See

Amar, supra, at 32. Second, it prevented the federal

government “from interfering in the religious estab-

lishments of the states.” Michael W. McConnell,

Establishment and Disestablishment at the Founding,

Part I; Establishment of Religion, 44 Wm. & Mary L.

Rev. 2105, 2109 (2003).

While the first constraint is self-explanatory, the

second requires some exploration of religious estab-

lishments and other arrangements by the States at the

time of the adoption of the First Amendment. These ar-

rangements ran the gamut from outright establish-

ment of an official state church to an ecumenical

embrace of all sects. On one end of the spectrum,

Connecticut, Massachusetts, and New Hampshire es-

sentially adopted a single Protestant sect — Congrega-

tionalism — as their state religion, though they did so

indirectly, by delegating religious establishment to the

local level through home rule provisions. See Amar, su-

pra, at 32-33. South Carolina was somewhat more ecu-

menical, establishing Protestantism in general as its

state religion by permitting taxation in support of all

Protestant churches in the State. See Leonard W. Levy,

The Establishment Clause: Religion and the First

Amendment 52-58 (1994). Maryland and Georgia were

more ecumenical still, by including Catholicism within

their general establishment of Christianity as state re-

ligions. See id. at 54-56. Delaware, Pennsylvania, and

Rhode Island had no official state religions and no

state tax in support of any church, but still maintained

“establishments” to the extent that they required reli-

gious tests to hold public office. See Town of Greece v.

Galloway, 134 S. Ct. 1811, 1836 (2014) (Thomas, J.,

concurring in part and concurring in the judgment).

And Virginia was furthest on the disestablishment

side of the spectrum, neither permitting state taxation

in support of religion nor requiring religious tests for

officeholders. Sch. Dist. of Abington Twp. v. Schempp,

374 US. 203, 310 (1963) (Stewart, J., dissenting). Thus,

the States in 1791 took drastically different ap-

proaches to church-state relations.

The Establishment Clause was designed to en-

trench the principle that religion was under the control

of the States, by forbidding interference by the federal

government. “Each State was left free to go its own way

and pursue its own policy with respect to religion.” Jd.;

see also William K. Lietzau, Rediscovering the Estab-

lishment Clause: Federalism and the Rollback of Incor-

poration, 39 DePaul L. Rev. 1191, 1200 (1990) (“|T|here

was no consensus on proper church/state relations. The

only agreement was that the issue was properly left to

the state and local governments.” (footnote omitted)).

Thus, the Establishment Clause disqualified the fed-

eral government from interfering in sta‘e policy to-

ward religion. As Justice Story wrote: “|T|he whole

power over the subject of religion is left exclusively to

the State governments.” 2 Joseph Story, Commentaries

on the Constitution of the United States § 1879 (4th ed.

1873).

This authority, reserved to the States through the

Establishment Clause, was subsequently limited by

the Fourteenth Amendment, which incorporated the

Bill of Rights against the States. This Court’s cases, be-

ginning with Everson, 330 U.S. at 15-16, make this

clear. For example, States can no longer create an es-

tablished church or favor one religious group over

others. Cf Amar, supra, at 253-54 (discussing the im-

pact of incorporation on states’ religious policies).

Incorporation against the States is not relevant to

the present litigation, however. Here, we deal purely

with actions of the federal government. In such a con-

text, the Establishment Clause applies in its original

form, unaffected by the Fourteenth Amendment. Vis-a-

vis the federal government, the Establishment Clause

means in 2018 what it meant in 1791: The federal gov-

ernment may not assert authority over religion and

church-state relations.

With these principles in mind, this is an easy case.

Hawaii has made clear its commitment to maintain,

enhance, and promote diversity. See J.A. 141 (discuss-

ing Hawaii’s “commitment|| to . . . diversity embodied

in the State’s Constitution, laws, and policies”). Ha-

waii’s commitment to diversity includes diversity of re-

ligion. Hawaii, of course, does not claim the authority

to show favoritism toward Muslims, for such a policy

would be unconstitutional. It simply seeks to make the

State, including its agencies and schools, a place where

adherents of all faiths, including Muslims, are toler-

ated and welcome. Such government policy towards re-

ligious diversity is a matter of church-state relations

that was reserved to the States by the Establishment

Clause, so long as it does not violate other parts of the

Constitution. And it is part of the residual state au-

thority over religious matters that survives incorpora-

tion.

The regulation of religious diversity through the

attraction (or repulsion) of religiously diverse newcom-

ers was a matter of church-state relations in 1791.

States chose more ecumenical or more exclusionary

approaches to religion based in part on the goal of

either attracting or deterring religious dissenters as

immigrants. In Connecticut and Virginia, debates

over whether and to what extent churches should be

supported by public tax money included discussions

over whether such arrangements would “discourage| |

new settlers.” Thomas J. Curry, The First Freedoms:

Church and State in America to the Passage of the First

Amendment 182 (1986). A few States exhibited hostil-

ity to members of some religious sects, thereby discour-

aging their immigration to those States. New York did

this by requiring an oath by newcomers that made it

virtually impossible for Catholics to become citizens.

Gerard V. Bradley, Church-State Relationships in

America 54 (1987). Maryland required any new citizen

to declare “his belief in the |C|hristian religion.” Laws

of Maryland 1763-1784 Session of July-August 1779

ch. 6 (Alexander Contee Hanson ed., 1787), http://msa.

maryland.gov/megafile/msa/speccol/sc2900/sc2908/00

000 1/000203/pdf/am203-212.pdf. Other States were far

more welcoming of newcomers of different faiths.

Pennsylvania adopted a policy of aid to all religions ev-

enhandedly because lawmakers wanted to maintain

their State as “a sectarian melting pot.” Bradley, supra,

at 48. Georgia’s reputation for religious tolerance was

driven in part by a desire to attract a wide variety of

settlers of various minority faiths. See McConnell, sw-

pra, at 2129. Earlier in its history, South Carolina went

to “extreme lengths in order to secure religious liberty

as bait for dissenting settlers.” John Wesley Brinsfield,

Religion and Politics in Colonial South Carolina 6

(1983).

State naturalization provisions were preempted

by the Constitution, which made naturalization an ex-

clusive federal power. See U.S. Const. art. I, § 8, cl. 4.

But after adoption of the Establishment Clause, Con-

gress was prohibited from enacting similar naturaliza-

tion provisions that made distinctions based on

religion. And the States maintained more general

power over religious matters within their boundaries

which could be, and was, used to attract or deter new-

comers of different religious faiths. While policies de-

signed to deter religious nonconformists from entering

a state are now forbidden by the Fourteenth Amend-

ment, those designed to attract religious minorities

survive, to the extent that they do not adversely affect

the constitutional rights of others and do not them-

selves discriminate on the basis of religion.

The Proclamation interferes with this state au-

thority over religious matters and therefore violates

the Establishment Clause. Imagine that the Proclama-

tion explicitly barred Muslims from entering the coun-

try. This would infringe Hawaii's interests in seeking a

religiously diverse populace for the simple and obvious

reason that if Muslims could not enter the country,

they also could not enter the State of Hawaii. Such an

order would exclude alien adherents of an entire faith

from joining the community of Hawaiians, hampering

the State’s goal of promoting religious diversity. The

same point applies even if, as in the present case, the

federal government merely targets a subset of Mus-

lims for exclusion.

The step from that case to this one is a short one.

For the reasons discussed above, see supra Part I.D,

and those demonstrated by Respondents and their

other amici, the Proclamation was transparently moti-

vated by anti-Muslim animus. On numerous occasions,

both during and after the 2016 presidential campaign,

the President characterized what would eventually be-

come the Proclamation as an attempt to restrict entry

by Muslims.

After previous iterations of the Proclamation were

struck down by courts, the President could have taken

steps to repudiate his earlier anti-Muslim animus, and

make a clean break with policies intended to imple-

ment it. Instead, he doubled down. On August 17, 2017,

about five weeks before signing the Proclamation, the

President repeated the anti-Islamic fantasy about

General John Pershing having supposedly killed

“|r|adical Islamic” terrorists with bullets dipped in pigs

blood. Katie Reilly, President Trump Praises Fake Story

About Shooting Muslims With Pig’s Blood-Soaked

Bullets, Time.com, Aug. 17, 2017, http://time.com/4905

420/donald-trump-pershing-pigs-blood-muslim-tweet/.

On November 19, 2017, two months after the Procla-

mation was issued, the President tweeted three videos

that he expressly described as depicting “Muslim|s]”

engaged in acts of violence, including one he falsely de-

scribed as depicting a “Muslim migrant.” Int'l Refugee

Assistance Project v. Trump URAP ID), 883 F.3d 233,

267 (4th Cir. 2018), petition for cert. filed, 86 U.S.L.W.

3447 (U.S. Feb. 23, 2018) (No. 17-1194).

That the Proclamation, unlike the earlier execu-

tive orders, is permanent rather than temporary adds

weight to the determination that it was spurred by an-

imus. It cannot be defended on the grounds that it is

just a temporary measure needed to improve vetting

procedures.

Nor does the Proclamation’s addition of two

non-Muslim-majority countries to the list of nations

change the situation. The restrictions on Venezuela af-

fect only a very small group of government officials and

their families. Jd. at 300. And only a vanishingly smal!

number of North Koreans seek entry to the country

every year. See Peter Margulies, The New Travel Ban:

Undermining the Immigration and Nationality Act,

Lawfare (Sept. 25, 2017, 4:30 PM), https://www.law

fareblog.com/new-travel-ban-undermining-immigration-

and-nationality-act (“Since North Korea does not allow

its nationals to emigrate to the U.S. (or anywhere else),

the number of North Koreans affected by the new ban

is virtually nil.”).

An entry ban motivated by animus against Mus-

lims does not become any less so simply because it does

not cover all the Muslims in the world, while including

a few non-Muslims. Consider the case of a federal

agency head who has repeatedly declared that he

would refuse to hire any African-Americans. He cannot

make his racially motivated hiring practices immune

to constitutional challenge by instead refusing to hire

anyone who attended a Historically Black College or

University (“HBCU”) even though not all African-

American job applicants attended such schools and a

few HBCU alumni are actually white.

Petitioners’ plea for a unique form of deference —

that domestic Establishment Clause jurisprudence is

too strict to apply to federal policy on immigration, see

Pet’rs’ Br. at 61-62, once again has it backwards. Fed-

eral policies call for at least as much scrutiny as those

made by state and local governments. The Establish-

ment Clause in fact applies with unique stringency to

the federal government.

B. The Proclamation is void and may not

be applied to anyone, including foreign

nationals.

Because the Establishment Clause is a structural

provision that limits the power of the federal govern-

ment, the Proclamation is null and void, and cannot be

enforced against anyone, including aliens abroad. The

Establishment Clause was designed to divest from the

federal government “the whole power over the subject

of religion.” 2 Story, supra, § 1879. Like the Bill of

Rights more generally, it is a structural constraint on

federal power.

Petitioners’ claim that “aliens outside the United

States ... have no constitutional rights at all regard-

ing entry into the country,” Pet’rs’ Br. at 59, misses the

point entirely. The question is not simply one of indi-

vidual rights but also one of structural limitations on

power. The Establishment Clause, and the rest of the

Bill of Rights, divest the federal government of certain

powers. Thus, to ask whether aliens abroad have Es-

tablishment Clause rights is to ask the wrong ques-

tion. “|A] law ‘beyond the power of Congress,’ for any

reason, is ‘no law at all.’” Bond v. United States, 564

U.S. 211, 227-28 (2011) (Ginsburg, J., concurring)

(quoting Nigro v. United States, 276 U.S. 332, 341

(1928)). An executive Proclamation beyond the power

of the President, likewise, is “no law at all.” It cannot

be enforced against anyone, anywhere.

Such was the understanding of the Bill of Rights

at the time of the Founding. See supra Part 1.A.2 The

government must respect structural limitations on its

power. If it does not, its actions are unconstitutional.

Ill. The serious constitutional flaws of the proc-

lamation should lead this court to rule in fa-

vor of the respondents on the statutory

issues in the case, in order to adhere to the

requirement of avoiding statutory interpre-

tations that raise constitutional problems.

In addition to challenging the constitutionality of

the Proclamation, Respondents also contend that it vi-

olates the Immigration and Nationality Act of 1965

(“INA”), and exceeds the authority granted by the 1952

INA. See Hawaii v. Trump, 878 F.3d 662, 683-97 (9th

Cir. 2017) (holding that the Proclamation violates 8

U.S.C. § 1152(a)(1)(A) (2012), and exceeds the scope of

authority granted to the President by 8 U.S.C. § 1182

(2012) and 8 U.S.C. § 1185 (2012)), cert. granted, 138

S. Ct. 423 (2018). Amici do not take a definitive posi-

tion on the statutory issues in the case. But the

longstanding canon against raising constitutional

problems counsels in favor of interpreting the INA in

favor of the Respondents, in order to avoid the serious

constitutional flaws outlined in the present brief. This

Court has a strong commitment to avoiding statutory

constructions that raise “constitutional problems” of

the type that would surely arise if the Petitioners’ in-

terpretation of the INA were to be upheld. Edward /.

DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr.

Trades Council, 485 U.S. 568, 575 (1988). “|W|here an

otherwise acceptable construction of a statute would

raise serious constitutional problems, the Court will

construe the statute to avoid such problems unless

such construction is plainly contrary to the intent of

Congress.” Id.; see also NLRB v. Catholic Bishop of

Chi., 440 U.S. 490, 504 (1979) (requiring a “clear ex-

pression of an affirmative intention of Congress” before

a statutory interpretation that raises serious constitu-

tional questions can be upheld).

Courts should avoid constitutionally problematic

interpretations of statutes in any case where it is

“fairly possible” to do so — even if “the most natural in-

terpretation” of the law supports a different outcome.

NFIB v. Sebelius, 567 U.S. 519, 563 (2012) (opinion of

Roberts, C.J.). If there is any “fairly possible” way to

interpret the INA to avoid delegating to the President

the authority to issue a Proclamation that raises se-

vere constitutional problems under the Establishment

Clause, the Court has a duty to adopt that reading,

even if a different interpretation might otherwise be

preferable. If the INA authorizes presidential actions

that are likely to be unconstitutional, that provision of

the statute would itself be unconstitutional, at least as

applied here.

CONCLUSION

For the reasons stated above, the judgments of the

United States Court of Appeals for the Ninth Circuit

should be affirmed.

Respectfully submitted,

ILyA SOMIN

Counsel of Record

MICHAEL J. ZYDNEY MANNIIEIMER

Horvitz & Levy LLP

Barry R. Levy

H. THOMAS WATSON

Kirk C. JENKINS

March 2018

APPENDIX A

LIST OF AMICI

ILYA SOMIN

Professor of Law

GEORGE MASON UNIVERSITY

3301 Fairfax Dr.

Arlington, VA 22201

(703) 993-8069

e-mail: isomin@gmu.edu

MICHAEL J. ZYDNEY MANNHEIMER

Professor of Law

Associate Dean for Faculty Development

SALMON P. CHASE COLLEGE OF LAW

NORTHERN KENTUCKY UNIVERSITY

518 Nunn Hall

Highland Heights, KY 41099

(859) 572-5862

e-mail: mannheimem 1l@nku.edu

GABRIEL “JACK” CHIN

Edward L. Barrett Jr. Chair &

Martin Luther King Jr. Professor of Law

UNIVERSITY OF CALIFORNIA, DAvis SCHOOL OF LAW

400 Mrak Hall Dr.

Davis, CA 95616

(520) 401-6586

e-mail: gchin@aya.yale.edu

SHAWN E. FIELDS

Assistant Professor of Law

(beginning Fall 2018)

CAMPBELL UNIVERSITY

NORMAN ADRIAN WIGGINS SCHOOL OF LAW

225 Hillsborough Street

Raleigh, NC 27603

(919) 865-5991

e-mail: sfields@sandiego.edu

IRINA D. MANTA

Professor of Law and Director of the

Center for Intellectual Property Law

MAURICE A. DEANE SCHOOL OF LAW

AT HOFSTRA UNIVERSITY

121 Hofstra University

Hempstead, NY 11549

(516) 463-5865

e-mail: Irina.Manta@hofstra.edu

CASSANDRA BURKE ROBERTSON

John Deaver Drinko — BakerHostetler Professor of Law

Director, Center for Professional Ethics

CASE WESTERN RESERVE UNIVERSITY

SCHOOL OF LAW

11075 East Boulevard

Cleveland, OH 44106

(216) 368-3302

e-mail: cbr10@case.edu

ERIN L. SHELEY

Assistant Professor

UNIVERSITY OF CALGARY FACULTY OF LAW

2500 University Dr. NW

Calgary, AB T2N 1N4, Canada

(403) 220-3020

e-mail: erin.sheley@ucalgary.ca

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.