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

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No. 17-965

In the Supreme Court of the Anited States

DONALD J. TRUMP,

PRESIDENT OF THE UNITED STATES, ET AL.,

Petitioners,

STATE OF HAWAII, ET AL.,

Respondents.

On Writ of Certiorari to

the United States Court of Appeals

for the Ninth Circuit

BRIEF OF U.S. COMPANIES

AS AMICI CURIAE IN SUPPORT OF

RESPONDENTS

ANDREW J. PINCUS

Counsel of Record

PAUL W. HUGHES

Mayer Brown LLP

1999 K Street, NW

Washington, DC 20006

(202) 263-3000

apincus@mayerbrown.com

Counsel for Amici Curiae

TABLE OF CONTENTS

Page

pF EE ee eA A RN NO Eee iii

SenbewOat OF Cw Amsbes CUE .....ccccnerecccecscececsccescsccsceees 1

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

ee iislacndctetcersntestadtecetndtesieinsieneatentintatetineiiiiarittcinenctaintascntien 5

|. The Proclamation Harms American

Innovation And Economic Growth. ....................... 5

A. Immigration provides significant

benefits to the U.S. economy............................ 5

B. The Proclamation harms the U.S.

GT censsncicencintinicnntimntenetwescceineessesemetesenced 8

1. The Proclamation creates

widespread uncertainty. ............................. 9

2. The Proclamation’s ban on travel

significantly impairs day-to-day

a a sedguionen 11

3. The Proclamation incentivizes

immigration to and investment in

foreign countries rather than the

RE IES TT 12

Il. The Proclamation Is Unlawful. ........................... 14

A. The INA does not authorize the

executive branch to implement

unilateral, permanent revisions of the

Nation’s immigration laws. ............................ 14

B. The Proclamation exceeds the authority

conferred by Section 1182. ............................. 17

1. The Proclamation does not contain a

finding sufficient to justify exercise

of the authority conferred by Section

ic tccricescdantabdededdasisecdsbebiintunnibpemsidaseds 17

TABLE OF CONTENTS—continued

Page

2. The Proclamation conflicts with

other provisions of the INA....................... 21

3. The Proclamation is procedurally

LE SEE Sn ea 23

C. The Proclamation violates Section

1152’s non-discrimination requirement......... 25

D. This Court can, and must, adjudicate

the scope of the President’s authority............ 28

RII NIIIINE scccsencasesusteuicenecabieasiasiediticasediadeesinennsensensdbiaitieiine 30

ill

TABLE OF AUTHORITIES

Page(s)

Cases

Abourezk v. Reagan,

785 F.2d 1043 (D.C. Cir. 1986)................ 15, 23, 30

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

ee kf ee a eneneeeres 18

Arizona v. United States,

I 16

Bowen v. Mich. Acad. of Family Physicians,

i 28

Carlson v. Landon,

ER Re Ee Ie RD a eRe ee 17

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

eT I siticcinsiocrtedsraccicncmicinsilissaicsaninainenkiniiais 27

Dalton v. Specter,

ERIE EL ARE ero es a Ban On 24, 29

Dames & Moore v. Regan,

ERA ECE ee ee m8 28

Foley v. Connelie,

REI SERRA IR SU me om 2

Franklin v. Massachusetts,

RSS REE ne eo ees RO 28

Hawaii v. Trump,

Tn i cca 3, 21

Heckler v. Chaney,

I a ienasbiol 29

Indus. Union Dep't, AFL-CIO vy.

Am. Petroleum Inst.,

SRE EEE ARSE SAP ee 18

TABLE OF AUTHORITIES—continued

Int'l Refugee Assistance Project v. Trump,

857 F.3d 554 (4th Cir. 2017)...........0.0000..

Int'l Refugee Assistance Project v. Trump,

883 F.3d 233 (4th Cir. 2018).....................

Kent v. Dulles,

ee I i IT ncrrenicsercviccnscnconsovesenneceni

Kerry v. Din,

ere es GR, TE Ge irercccsctecessinaacensensoctees

United States ex rel. Knauff v. Shaughnessy,

Re Ps Ne Ci cicestrcninnnscininnverectsiiesiuvacs

Legal Assistance for Vietnamese Asylum

Seekers v. Dep't of State,

45 F.3d 469 (D.C. Cir. 1995)...

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

United Distribution Cos.,

SF rs i ee rccncncnccscevesapesecenssascsscnnse

Motor Vehicle Mfrs. Ass'n v. State Farm

Mut. Auto. Ins. Co.,

Sy SE Mr EE icicmnrtnnciccenectoshettasmeseetion

Olsen v. Albright,

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

Patel v. Reno,

134 F.3d 929 (9th Cir. 1997)................0.....

Saavedra Bruno v. Albright,

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

Sale v. Haitian Ctrs. Council, Inc.,

i Ce

Page(s)

secesevesees 3

TABLE OF AUTHORITIES—continued

Page(s)

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

68 F.3d 1106 (D.C. Cir. 1006) ........00.00000.060.0000000.. 18

United States v. Mead Corp.,

ee ns a apensienunnminandiabie 24

United States v. Witkovich,

ey i cerccneiesencelons 17, 18

Whitman v. Am. Trucking Ass’ns,

Ie as ii usenainiiosiaine 17

Youngstown Sheet & Tube Co. v. Sawyer,

I a eleuusubinnens 28

Zemel v. Rusk,

Be i I inssscctaccicccecandancinosnipiingeidetndcobbuaneside 17, 19

Statutes and Regulations

82 Fed. Reg.

re I sesidiiseinnielndeimniinddiaabonenans 3

Ne Ms Oe IIE DP cicrcsavsecescccccovoccneccssinecuosesons 3, 4

re Ie Bly HEF Riveni tordsvncsnnsncnmissinincieint passim

oe ge Oe III fsiscrclid cai ctn ciecbsceinaiinnasacauadiniodsavtrtnintcnaniectes 24

8 U.S.C.

REE EL SEE nas DLP Oe mate Poe 25, 26

lense aces 15, 21, 22, 23

ARES TE emer ea oe passim

2 eee 2 14, 16, 24, 27

RR TET AGP SNISS wmriaae NoMeapte im yer = TY aa 22

Other Authorities

Americas Soc’y & Council of the Americas,

Bringing Vitality to Main Street (2015) ................ 6

TABLE OF AUTHORITIES—continued

Page(s)

Stuart Anderson, /mmigrants Flooding

America with Nobel Prizes,

i cs seuiniion

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

The Contributions of the Children of

Immigrants to Science in America

a pi rraakentnsiteneninanensedatedekiclousndioveemenssees

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

Immigrants and Billion Dollar Startups

John Austin et al., Mich. Econ. Ctr., Michigan:

We Are All Migrants Here (2017)................0c000-0+ 13

Maksim Belenkiy & David Riker, Face-to-Face

Exports: The Role of Business Travel in

Trade Promotion, 51 J. Travel Res. 632

SEE iinns dudiensisvivicntiasoneetbaviansiasenteateniamitietiinateyies

BGRS, Breakthrough to the Future of Global

I csascdebuatiie

Muzaffar Chishti & Claire Bergeron,

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

Dramatic tlly Alter the U.S. Immigration

BM GE G, FG BD ven cisccssnavecvnscvccscctssnssce

Economic Effects of Immigration Policies, Bus.

Se IE, TED cncecnsticcsrsccescincncesesencess

Robert W. Fairlie et al., Ewing Marion

Kauffman Found., The 2016 Kauffman

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

vil

TABLE OF AUTHORITIES—continued

Page(s)

Seth Fiegerman, Former Google Exec Calls

Trump Travel Ban an ‘Enormous Problem,’

GUE UN IN OI, EDD cocciseecteccticscnccccectecsrnes

David Steele-Figueredo, Trump’s Anti-

Immigrant Rhetoric Is Already Hurting US

Higher Education, Times Higher Educ.

CI I SI. sib vcestarsaacdddchniabinseubibinioedameinidiersiesecsee

Michael Greenstone & Adam Looney, The

Hamilton Project, Ten Economic Facts

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

af & ee ler ean

Harv. Bus. Rev., Strategic Global Mobility

Ui osnnsdncenaransaivnsscscnnisinetéptanabeeadttnegesesetsceoussiess

Nune Hovhannisyan & Wolfgang Keller,

International Business Travel: An Engine

of Innovation?, 20 J. Econ. Growth 75

Immigration Laws and Iranian Students,

Elizabeth MacBride, CNBC, Silicon Valley

Reeling as Trump Chokes Off a Critical

Source of Tech Talent (Mar. 15, 2018) .............

Kate M. Manuel, Cong. Research Serv.,

Executive Authority to Exclude Aliens: In

NRE a Ee Re I SE

Mass. Tech. Leadership Council, The

Economic Impact of Immigration on the

United States (Jume 2017) ...........ccccccccceeceeeeeees

nae

whe

viii

TABLE OF AUTHORITIES—continued

Page(s)

New Am. Econ., Reason for Reform:

Entrepreneurship (Oct. 2016) .........................00000+- 7

Alex Nowrasteh, Cato Inst., New Trump

Executive Order Fails Cost-Benefit Test,

I: SS I nl ac cae 13

Org. Econ. Co-operation & Dev., International

Migration Outlook 2017 (Alst ed. 2017).............. 12

Pia Orrenius, George W. Bush Inst., Benefits

of Immigration Outweigh the Costs, The

Catalyst (2016), https://goo.gl/qC9uOc.................. 7

Tara Palmeri & Bryan Bender, U.S. Diplomats

Warning GE’s Major Deals in Iraq at Risk

over Travel Ban, Politico (Feb. 1, 2017).............. 12

P’ship for a New Am. Econ., Open For

Business: How Immigrants Are Driving

Small Business Creation in the United

Be I I hice ictnihastctiatntaincdecsidesenneennwenvseces 6

P’ship for a New Am. Econ., The “New

American” Fortune 500 (2011)...............00..0000000- 5, 6

Remarks at the Opening Ceremonies of the

Statute of Liberty Centennial Celebration

A Te eam ney Aa a tae hie 8 ES SE 2

Be I Bs Be UE I ciiscaiciannchenictiientioniancistivsdoenntinie 26

Dionne Searcey & Jaime Yaya Barry, Chad,

an Ally Against Militants, Asks, “Why Us?”,

ya Pe 12

TABLE OF AUTHORITIES—continued

Page(s)

U.S. Chamber of Commerce, /mmigration:

FEED GIES PII GD cncctcccecesncecncsccecescesessnsessscese 7

Vivek Wadhwa et al., America’s New

Immigrant Entrepreneurs, Duke Univ. &

Univ. Cal. Berkeley (Jan. 4, 2007) ........................ 7

INTEREST OF THE AMICI CURIAE

Amici curiae are 115 of the Nation’s leading

companies. Amici produce iconic goods and services

that touch nearly every aspect of our lives—from

business and finance to recreation and communica-

tion. Together, amici employ millions of Americans

and contribute significantly to our country’s econo-

my. A complete list of amici is set forth in Appendix

A.!

Amici are gravely concerned about the adverse

effects of the Presidential Proclamation challenged in

this case. As amici explain below, the Proclamation

makes it more difficult for them to hire the very best

talent, to send their employees abroad, to grow their

operations, and, fundamentally, to compete in the

global economy. Amici believe that the Proclamation

will therefore stifle the Nation’s economic growth

and global competitiveness. Amici previously raised

these concerns before this Court and before the court

below. See Pet. App. 60a.

Amici’s own stories reflect the benefits that im-

migrants bring to the Nation. Many amici were

founded by immigrants, virtually all employ immi-

grants, and every amicus recognizes that the Ameri-

can economy, and the Nation as a whole, thrives

when it welcomes immigrants with properly cali-

brated policies.

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

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

other than amici or their counsel made a monetary contribution

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

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

INTRODUCTION AND

SUMMARY OF ARGUMENT

For decades, stable U.S. immigration policy has

embodied the principles that we are a people de-

scended from immigrants, that we welcome new im-

migrants, and that we provide a home for refugees

seeking protection. As President Reagan noted when

rededicating the Statue of Liberty in 1986, “which of

us does not think of * * * grandfathers and grand-

mothers, from so many places around the globe, for

whom this statue was the first glimpse of America?”

Remarks at the Opening Ceremonies of the Statute

of Liberty Centennial Celebration (July 3, 1986),

https://goo.gl/lqwq5N. See also Foley v. Connelie, 435

U.S. 291, 294 (1978) (describing America as “a nation

of immigrants’).

At the same time, America has long recognized

the importance of protecting ourselves against those

who would do us harm. But we have done so while

maintaining our fundamental commitment to wel-

coming immigrants—through increased background

checks and other controls on people seeking to enter

our country.”

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

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

enforcement initiatives, heightened visa controls and screening

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

tion and storage of information in vast new interoperable data-

bases used by law enforcement and intelligence agencies, and

the use of state and local law enforcement as force multipliers

in immigration enforcement.” Muzaffar Chishti & Claire Ber-

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

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

https://goo.gl/6rdagt.

For more than fifty years, moreover, immigration

rules have been based on input from, and considera-

tion of views advanced by, all relevant stakehold-

ers—through congressional legislation and agency

notice-and-comment rulemaking—with exceptions

limited to temporary measures addressing emergen-

cy situations.

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

ration and without interagency review,” Executive

Order 13,769, 82 Fed. Reg. 8,977 (Wan. 29, 2017)

(“First Executive Order”), was issued. Hawaii v.

Trump, 859 F.3d 741, 756 (9th Cir.), vacated, 138 S.

Ct. 377 (2017). That Order altered immigration poli-

cy in significant respects: it barred nationals of seven

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

and Sudan—from entering the United States for at

least 90 days (First Executive Order § 3(c)), with the

possibility of expansion to additional countries (id.

§ 3(e)-(f)), and it gave the Secretaries of State and

Homeland Security discretion to issue visas to affect-

ed nationals “on a case-by-case basis” (id. § 3(g)).

On March 6, 2017, the First Executive Order was

rescinded, and Executive Order 13,780, 82 Fed. Reg.

13,209 (Mar. 6, 2017) (“Second Executive Order’),

was issued. That Order banned nationals from six

countries for 90 days beginning on March 16—the

same countries as the first order, omitting Iraq, but

subjecting nationals from Iraq to intensive scruti-

ny—and otherwise contained many of the character-

istics of the First Executive Order. Second Executive

Order §§ 2(c), 4. That Order, like the First Executive

Order, was enjoined by multiple courts. See, e.g.,

Hawaii, 859 F.3d 741; Int'l Refugee Assistance Pro-

ject v. Trump, 857 F.3d 554 (4th Cir.), vacated, 138 S.

Ct. 353 (2017).

On September 24, 2017, the Second Executive

Order was supplanted by Presidential Proclamation

9645, 82 Fed. Reg. 45,161 (Sept. 24, 2017) (the “Proc-

lamation”). The Proclamation bans nationals, in

whole or in part, from eight countries—Chad, Iran,

Libya, North Korea, Somalia, Syria, Venezuela, and

Yemen—without any expiration date. Proclamation

§ 2. The Proclamation again confers discretion on

consular officers to “grant waivers on a case-by-case

basis” to nationals from the designated countries. /d.

§ 3(c). And the Proclamation creates a procedure by

which the Secretaries of Homeland Security and

State can identify new countries to subject to the

ban. Id. § 4(a)(ii). “As with EO-1 and EO-2, the Proc-

lamation faced swift legal challenge.” Jntl Refugee

Assistance Project v. Trump, 883 F.3d 233, 253 (4th

Cir. 2018). See also Pet. App. 4a.

Like its prior iterations, the Proclamation effects

a significant shift in the rules governing entry into

the United States; injects substantial uncertainty

and instability into the Nation’s immigration system;

and inflicts harm on American companies, their em-

ployees, and the entire economy. It hinders the abil-

ity of American companies to attract talented em-

ployees; increases costs imposed on business; makes

it more difficult for American firms to compete in the

international marketplace; and gives global enter-

prises a new, significant incentive to build opera-

tions—and hire new employees—outside the United

States.

The Proclamation is unlawful because it exceeds

the executive branch’s authority under the Nation's

immigration laws. Narrow statutory provisions that

authorize the executive branch to address emergency

circumstances on a temporary basis do not license

significant, permanent alterations to standards set

forth in immigration laws.

Moreover, to bar a class of aliens from the United

States, the executive branch must reasonably deter-

mine that their entry would be detrimental to the

Nation, and then craft an order that reasonably ad-

dresses any threat that those individuals might pose.

But the Proclamation neither explains why the tar-

geted individuals’ entry would be detrimental to the

United States nor imposes reasonable restrictions.

Finally, Congress in 1965 prohibited discrimina-

tion in immigration decisions on the basis of national!

origin precisely so that the Nation would not shut its

doors to immigrants based on where they come

from—but the Proclamation does just that. It would

turn the clock back and restore the national-origins

system that Congress expressly abolished.

The Court accordingly should affirm the decision

below barring enforcement of the Proclamation.

ARGUMENT

I. The Proclamation Harms American Innova-

tion And Economic Growth.

Immigration is a key driver of the U.S. economy.

The Proclamation, both by its direct effects and by

the signal it sends, hamstrings American innovation

and economic growth.

A. Immigration provides significant bene-

fits to the U.S. economy.

To begin with, immigrants are leading entrepre-

neurs. “The American economy stands apart because,

more than any other place on earth, talented people

from around the globe want to come here to start

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

“New American” Fortune 500, at 5 (2011),

http://goo.gl/ycOh7u. Indeed, “|iJmmigrants continue

to be a lot more likely than the native-born to become

entrepreneurs.” Robert W. Fairlie et al., Ewing Mar-

ion Kauffman Found., The 2016 Kauffman Index:

Startup Activity 7 (Aug. 2016), https://goo.gl-

/6Wr5Mc.

Some of these businesses are large. “Immigrants

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

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

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

agement and product development teams in over 70

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

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

lion Dollar Startups 1, 4 (Mar. 2016), https://goo.g]l-

/Mk7iJM. Immigrants or their children founded more

than 200 of the companies on the Fortune 500 list,

including Apple, Kraft, Ford, General Electric,

AT&T, Google, McDonald’s, Boeing, and Disney.

P’ship for a New Am. Econ., supra, at 1-2. Collective-

ly, these companies generate annual revenue of $4.2

trillion and employ millions of Americans. /d. at 2.

Many of these businesses are small. “While ac-

counting for 16 percent of the labor force nationally

and 18 percent of business owners, immigrants make

up 28 percent of Main Street business owners.”

Americas Soc’y & Council of the Americas, Bringing

Vitality to Main Street 2 (2015), https://goo.gl-

Ai9NWc9. These are “the shops and services that are

the backbone of neighborhoods around the country.”

Id. In 2011, immigrants opened 28% of all new busi-

nesses in the United States. See P’ship for a New

Am. Econ., Open For Business: How Immigrants Are

Driving Small Business Creation in the United States

3 (Aug. 2012), https://goo.g/zqwpVQ.

Immigrant entrepreneurs come from all parts of

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

the Middle East and North Africa were entrepre-

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

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

Immigrants also fuel the growth of the economy

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

they increase the productive capacity of the economy

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

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

fits of Immigration Outweigh the Costs, The Catalyst

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

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

they establish ... [and] play an important role in job

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

Chamber of Commerce, /mmigration: Myths and

Facts 3 (2016), https://goo.gl/NizPEQ. Studies “over-

whelmingly conclude that immigrants have a net

positive effect on wages, especially in the long run.”

Economic Effects of Immigration Policies, Bus.

Roundtable 3 (Sept. 2017), https://goo.gl/PnG3pB.

Immigrants are also innovators. Since 2000,

more than one-third of all American Nobel Prize

winners in Chemistry, Medicine, and Physics have

been immigrants. See Stuart Anderson, /mmigrants

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

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

advanced educational degrees, immigrants are near-

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

born citizens. Michael Greenstone & Adam Looney,

The Hamilton Project, Ten Economic Facts About

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

By one estimate, noncitizen immigrants were named

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

patent applications filed in 2006. Vivek Wadhwa et

al., America’s New Immigrant Entrepreneurs, Duke

Univ. & Univ. Cal. Berkeley 4 (@Jan. 4, 2007),

https://goo.g/wClySz. And children of immigrants

made up 83% of the top-performing students in the

well-known Intel high school science competition.

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

Contributions of the Children of Immigrants to Sci-

ence in America 1-3, 5, 12 (Mar. = 2017),

https://goo.gl/7noMyC.

In sum, immigrants provide incalculable benefits

to the U.S. economy and the Nation as a whole.

B. The Proclamation harms the U.S. econ-

omy.

“[B]ecause the proclamation bans the entry of po-

tential entrepreneurs, inventers, and innovators, the

public’s interest in innovation is thwarted at both the

state and corporate levels.” Pet. App. 60a.

But that is not all. The Proclamation abandons

the principles that have undergirded U.S. immigra-

tion policy for more than half a century—clear, set-

tled standards and constrained discretion. It intro-

duces sudden changes without an opportunity for af-

fected parties to inform decisionmakers of the conse-

quences of those changes before their adoption,

provides unclear standards for implementation, and

leaves entirely to individual officers’ discretion the

exercise of case-specific waiver authority.

Moreover, nothing prevents future executive

branch changes in the immigration system unrelated

to the matters addressed in this Proclamation. Busi-

nesses need a predictable, stable system so they can

make long-term personnel and investment decisions

and be certain that they will be able to interact with

their global customers. The continuing risk of addi-

tional, unanticipated changes in immigration rules

creates significant uncertainty that imposes a sub-

stantial burden on managing global businesses and

planning for the future.

The Proclamation will therefore make it more

difficult and expensive for U.S. companies to recruit,

hire, and retain some of the world’s best employees.

It will disrupt ongoing business operations—making

it harder for U.S. companies to compete in today’s

global markets. And it will inhibit investment in the

United States. That will inflict significant harm on

American business, innovation, and economic

growth.

1. The Proclamation creates widespread un-

certainty.

Confusion and uncertainty are the hallmarks of

the Proclamation and its predecessors. The Procla-

mation again establishes a system of “case-by-case”

exceptions from its ban on nationals from eight coun-

tries, but leaves the application of those exceptions to

the discretion of Customs and Border Protection of-

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

stances in which such exceptions “may be appropri-

ate.” Proclamation § 3(c) (emphasis added). Because

individual immigration officers retain broad discre-

tion in issuing these individual-by-individual excep-

tions, it is unclear what exemptions will actually be

given, or why—and whether that authority is being

exercised fairly and without discrimination or favor-

itism.

Even more important, the Proclamation provides

that the ban, and its accompanying standardless ex-

ception process, may be expanded to include an un-

specified number of additional countries if those na-

tions do not provide information the Secretaries of

Homeland Security and State deem necessary to ap-

prove visas. See Proclamation § 4(a). Individuals and

businesses thus face the significant risk that new,

as-yet-unidentified countries will be added to the

ban—all without any governing standard.

The Proclamation will have the immediate, ad-

verse consequence of making it far more difficult and

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

talent and compete effectively in the global market-

place. Businesses and employees have little incentive

to go through the laborious process of sponsoring or

obtaining a visa and relocating to the United States

if an employee may be unexpectedly stopped at the

border.

The Proclamation and its prior iterations have

also significantly reduced the talent pipeline: enroll-

ment data from the last year shows that they have

discouraged international students from enrolling in

U.S. colleges. David Steele-Figueredo, Trump's Anti-

Immigrant Rhetoric Is Already Hurting US Higher

Education, Times Higher Educ. (Jan. 30, 2018),

https://goo.gl//VEaVp5.

At the end of the day, skilled individuals will not

wish to immigrate to this country if they may be cut

off without warning from their spouses, grandpar-

ents, relatives, and friends. They will not pull up

roots, incur significant economic risk, and subject

their family to considerable uncertainty to immigrate

to the United States in the face of this instability.

Seth Fiegerman, Former Google Exec Calls Trump

Travel Ban an ‘Enormous Problem,’ CNN Tech (Jan.

30, 2017), https://goo.gl/vNVgLt. The Proclamation

therefore significantly disadvantages U.S. companies

in the global competition for talent.

2. The Proclamation’s ban on travel signifi-

cantly impairs day-to-day business.

The marketplace for today’s businesses is global.

Companies routinely send employees across borders

for conferences, meetings, or job rotations; and they

invite customers, clients, and users from abroad to

attend meetings in the U.S. Global mobility is there-

fore critical to businesses whose customers, suppli-

ers, users, and workforces are spread all around the

world. See, e.g., BGRS, Breakthrough to the Future of

Global Talent Mobility (2016), http://goo.gl/ZhIxSr;

Harv. Bus. Rev., Strategic Global Mobility (2014),

http://goo.g/AV3nhJ.

Global business travel enables employees to de-

velop new skills, take on expanded roles, and stay

abreast of new technological or business develop-

ments. It also facilitates development of new mar-

kets and business partnerships. Indeed, one study

has shown that each additional international busi-

ness trip increases exports from the United States to

the visited country by, on average, over $36,000 per

year. Maksim Belenkiy & David Riker, Face-to-Face

Exports: The Role of Business Travel in Trade Pro-

motion, 51 J. Travel Res. 632, 637 (2012). See also

Nune Hovhannisyan & Wolfgang Keller, I/nterna-

tional Business Travel: An Engine of Innovation?, 20

J. Econ. Growth 75 (2015).

But the Proclamation will mean that many com-

panies and employees (both inside and outside the

United States) would be unable to take advantage of

these opportunities. The Proclamation will prevent

companies from inviting customers to the United

States and prevent employees from outside the Unit-

ed States from traveling here. That is true even for

persons or countries not currently covered by the

Proclamation because there is no way to know

whether or when a country may be added to the no-

entry list.

The Proclamation also could lead to retaliatory

actions by other countries, which would seriously

hinder U.S. companies’ ability to do business or ne-

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

have already been threatened. See, e.g., Dionne

Searcey & Jaime Yaya Barry, Chad, an Ally Against

Militants, Asks, “Why Us?”, N.Y. Times (Sept. 25,

2017), https://goo.g/xSPDSo; Tara Palmeri & Bryan

Bender, U.S. Diplomats Warning GE’s Major Deals

in Iraq at Risk over Travel Ban, Politico (Feb. 1,

2017), http://goo.gl/nhj9CZ.

3. The Proclamation incentivizes immigra-

tion to and investment in foreign coun-

tries rather than the United States.

Because of the Proclamation, highly skilled indi-

viduals will be more interested in working elsewhere,

in places where they and their colleagues can travel

freely and with assurance that their immigration

status will not suddenly be revoked. Other countries

have already begun “actively pursuing foreign inves-

tors and entrepreneurs, with the aim of increasing

investment and creating jobs for the benefit of the

national economy.” Org. Econ. Co-operation & Dev.,

International Migration Outlook 2017 46 (Alst ed.

2017). See also Elizabeth MacBride, CNBC, Silicon

Valley Reeling as Trump Chokes Off a Critical Source

of Tech Talent (Mar. 15, 2018), https://goo.gl/BJscj3

(giving examples).

Non-U.S. companies have taken note, as well.

Multinational companies will have strong incentives,

including pressure from their own employees, to base

operations outside the United States or to move or

hire employees and make investments abroad. For-

eign companies will have significantly less incentive

to establish operations in the United States and to

hire American citizens, because the Proclamation

will preclude the ability of those companies to em-

ploy their world-class talent within their U.S. subsid-

iaries. Ultimately, American workers and the econ-

omy will suffer as a result.

These impacts are concrete and quantifiable: one

study found that the Proclamation would reduce

wages for U.S. citizens and residents by roughly $1.4

billion over the next ten years. See Alex Nowrasteh,

Cato Inst., New Trump Executive Order Fails Cost-

Benefit Test, (Sept. 25, 2017), https://goo.gl//N5Cgoj.

And these adverse effects have been felt nationwide,

from Michigan (see John Austin et al., Mich. Econ.

Ctr., Michigan: We Are All Migrants Here 10-12

(2017), https://goo.gl/D3bz99) to Massachusetts (see

Mass. Tech. Leadership Council, The Economic Im-

pact of Immigration on the United States 3-4 (June

2017), https://goo.g/Cvt3uC) and beyond.

a a a

Of course, the federal government can and

should implement targeted, appropriate adjustments

to our country’s immigration system to enhance the

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

together with the indication that the ban could be

expanded to other countries, or that additional, dif-

ferent restrictions could be adopted, without notice—

will undermine rather than protect American inter-

ests, producing serious, widespread adverse conse-

quences without any reasonable relationship to the

goal of making the country more secure.

Il. The Proclamation Is Unlawful.

The Proclamation is unlawful for several rea-

sons. We focus on three. First, the Immigration and

Nationality Act (“INA”) does not authorize the use of

unilateral executive action to fundamentally and

permanently change the character of the Nation’s

immigration laws. Second, the Proclamation is not

authorized by Section 1182 or the Immigration and

Nationality Act as a whole; the Proclamation lacks

an adequate finding of detriment; it conflicts with

other relevant statutory provisions; and it fails to

comply with necessary procedural requirements. And

third, the Proclamation’ violates the non-

discrimination requirement of Section 1152.

A. The INA does not authorize the execu-

tive branch to implement unilateral,

permanent revisions of the Nation’s

immigration laws.

The government relies primarily on the Presi-

dent’s power under the INA to “suspend the entry of

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

be detrimental to the interests of the United States

* * * for such period as he shall deem necessary.” 8

U.S.C. § 1182(f). It also points to Section 1185(a),

which permits the President to issue “reasonable

rules, regulations, and orders” and “limitations and

exceptions” for the entry of immigrants and nonim-

migrants. Those grants of authority, the government

claims, “authorize the President to halt any and all

foreign travel into the country at any time, from any

and all countries, for any reason he decrees, for how-

ever long he wishes, notwithstanding any other pro-

vision of law.” IRAP, 883 F.3d at 291 (Gregory, C.dJ.,

concurring).

But these statutory provisions do not confer such

unlimited authority. No other administration has

used these statutes to presumptively prohibit the en-

try of millions of foreign nationals solely on the basis

of their nationality—and in perpetuity. The text and

context of Sections 1182(f) and 1185(a) make clear

that an exercise of authority must be limited to a

specific, emergency situation. The Proclamation here

exceeds those limitations.

By its terms, Section 1182(f) allows the executive

branch to “suspend” the entry of certain aliens for a

designated “period”—not to prohibit entry by those

aliens in perpetuity. Pet. App. 26a. In other words,

Section 1182(f) is “a gap-filling provision,” authoriz-

ing targeted, temporary action to respond to an

emergency situation. JRAP, 883 F.3d at 296 (Grego-

ry, C.J., concurring). See Abourezk v. Reagan, 785

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

Section 1182(f) “provides a safeguard against the

danger posed by any particular case or class of cases

that is not covered by one of the [inadmissibility]

categories in [S]ection 1182(a)”).

That was the context in which the language con-

tained in Section 1182(f) was enacted. See page 18,

infra. And it is how past administrations have em-

ployed this authority since 1952, each time issuing a

targeted restriction, usually limited to dozens or

hundreds of people on the grounds that each affected

person had engaged in culpable conduct, such as

human trafficking, illegal entry, or corruption. See

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

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

2017), https://goo.gl//DObRkS; Pet. App. 35a-38a. This

consistent executive branch practice is powerful evi-

dence of the limited reach of the provision, and it is

consistent with the context of Section 1182(f)—as one

provision in an extraordinarily detailed set of statu-

tory rules, elaborated in administrative regulations,

that govern the issuance of visas and entry of aliens.

Similarly, Section 1185(a) permits the President

to issue “reasonable rules, regulations, and orders”

regarding the entry of aliens into the United States.

8 U.S.C. § 1185(a)(1) (emphasis added). Like Section

1182(f), it does not purport to give the executive

branch authority to engage in wholesale, permanent

revision of the Nation’s immigration laws.

These statutes cannot be read to confer absolute

authority over the Nation’s immigration system to

the executive branch. Without the important limita-

tions imposed by the statutes’ text and structure, the

executive could usurp Congress’s power under Arti-

cle I, Section 8 to “establish a uniform rule of natu-

ralization.” See also Arizona v. United States, 567

U.S. 387, 409 (2012) (“Policies pertaining to the entry

of aliens and their right to remain here are * * * en-

trusted exclusively to Congress.”) (quotation omit-

ted). Congress did not intend, and the Constitution

does not permit, that result.

The Proclamation here exceeds the powers

granted under these two statutes. It applies to mil-

lions of people, sweeping them in because of their na-

tionality, rather than on the basis of culpable con-

duct. And unlike the first two executive actions, the

Proclamation does not expire—meaning that it is the

polar opposite of a time-limited, gap-filling measure.

It is, instead, the replacement of the system estab-

lished by Congress with a new scheme crafted by the

executive branch. The INA does not authorize per-

manent unilateral revision of the immigration laws.

B. The Proclamation exceeds the authority

conferred by Section 1182.

Even assuming that Section 1182 confers author-

ity to permanently revise the Nation’s immigration

laws, the Proclamation fails to do so in a manner

that comports with the statute.

1. The Proclamation does not contain a find-

ing sufficient to justify exercise of the au-

thority conferred by Section 1182(f).

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

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

that their entry “would be detrimental to the inter-

ests of the United States.” Congress could not have

made it more plain that it did not intend to confer

upon the executive branch unbounded power to bar

aliens, and instead conditioned authority under Sec-

tion 1182(f) upon an adequate finding of detriment.

That Congress required such a finding is unsur-

prising, for Congress may delegate power only if “the

executive judgment is limited by adequate stand-

ards.” Carlson v. Landon, 342 U.S. 524, 544 (1952).

An “intelligible principle” must guide the exercise of

delegated power. Whitman v. Am. Trucking Ass’ns,

531 U.S. 457, 472 (2001).

For that reason, the Court has consistently iden-

tified limits on discretionary authority delegated by

Congress, even when confronted with a clause that

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

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

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

(rejecting the view that “simply because a statute

deals with foreign relations, it can grant the Execu-

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

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

power to issue passports, the Court observed that the

executive's authority was “expressed in broad terms,”

but refused to “impute to Congress * * * a purpose to

give [the executive] unbridled discretion to grant or

withhold a passport from a citizen for any substan-

tive reason he may choose”). See also Pet. App. 39a-

42a.

Section 1182 also contains a clear limitation on

presidential action: the President must “find” that

the specified aliens’ entry would be “detrimental to

the interests of the United States.” A reasonable

finding of the requisite “detriment{]” thus “consti-

tute[s] a condition precedent to embarking upon the

exercise of regulatory power’—and such action is in-

valid in the absence of such a reasonable determina-

tion. Amoco Oil Co. v. Envtl. Prot. Agency, 501 F.2d

722, 736 (D.C. Cir. 1974). Indeed, courts in a variety

of contexts analyze whether the executive branch has

reasonably made the findings specified by Congress

as prerequisites for executive action. See, e.g., Mobil

Oil Expl. & Producing Se. Inc. v. United Distribution

Cos., 498 U.S. 211, 227 (1991); Indus. Union Dep't,

AFL-CIO vy. Am. Petroleum Inst., 448 U.S. 607, 642

(1980); United Distribution Cos. v. F.E.R.C., 88 F.3d

1105, 1139 (D.C. Cir. 1996).

The executive branch must therefore meet a

standard of reasonableness in exercising Section

1182(f) authority. Witkovich, 353 U.S. at 198-202

(holding that authority to request information that

the Attorney General “may deem fit and proper” had

an implicit limit of reasonableness). That conclusion

accords with the longstanding interpretation of the

statute by the Executive Branch. See /mmigration

Laws and Iranian Students, 4A Op. O.L.C. 133, 140

(1979) (recognizing that any suspension under Sec-

tion 1182(f) “must meet the test of ‘reasonableness”’).

In addition, the permissible justifications for the

exercise of this authority are limited by the context

in which Congress acted when it adopted the lan-

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

text from a series of narrowly drawn wartime stat-

utes, proclamations, and regulations permitting the

executive branch to exclude only limited classes of al-

iens, for limited periods of time, to address emergen-

cy situations. See Hawaii Br. 38-41. That context re-

stricts the use of the authority conferred by Section

1182. Zemel, 381 U.S. at 17-18 (statute “must take

its content from history”); Kent, 357 U.S. at 128

(grounds for refusing passport limited to those that

“it could fairly be argued were adopted by Congress

in light of prior administrative practice”).

The Proclamation transgresses this limitation on

executive authority. It provides barely any justifica-

tion for why the admission of aliens it bans from the

United States—based on nothing more than their

national origin—would be detrimental to the Nation.

Its express aim is to protect U.S. “citizens from ter-

rorist attacks and other public-safety threats,” by

preventing “foreign nationals who may * * * pose a

safety threat * * * from entering the United States.”

Proclamation, pmbl. But it “makes no finding what-

soever that foreign nationals’ nationality alone ren-

ders entry of this broad class of individuals a height-

ened security risk to the United States.” Pet. App.

45a. See also JRAP, 883 F.3d at 317 (Keenan, J., con-

curring).

Certainly there is no reasonable basis to conclude

that nationals of Chad, Iran, Libya, North Korea,

Somalia, Syria, Venezuela, and Yemen, simply by

virtue of their national origin, will commit terrorist

activities upon entry to the United States.’ Indeed,

the ban applies to hundreds of thousands of stu-

dents, employees, and family members of citizens

who have been previously admitted to the United

States—and thus who the United States, after care-

ful, individualized review, concluded that their ad-

mission to the United States posed no security risk to

the Nation.

The past history of admitting these individuals is

especially important because “there is no finding

that the present vetting procedures are inadequate.”

Pet. App. 44a. The Proclamation simply recites well-

known facts regarding these countries as a whole,

ignoring that no alien from these countries admitted

to the United States has engaged in terroristic activi-

ty.

It is no surprise that the Proclamation falls back

on a different rationale: that the designated coun-

tries, with the exception of Somalia, “continue to

have ‘inadequate’ identity-management protocols, in-

formation-sharing practices, and risk factors.” Proc-

lamation § 1(g). But “[nJowhere in the Proclamation

does the President claim that these individuals pose

a detriment to the United States’ interests because

they are nationals of these particular countries.”

IRAP, 883 F.3d at 317 (Keenan, J., concurring). Nor

does the purported need to encourage these countries

to improve their practices amount to the statutorily

required finding that the entry of nationals from the-

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

found itself embroiled in litigation. As a study from the De-

partment of Homeland Security noted, “country of citizenship is

unlikely to be a reliable indicator of potential terrorist activity.”

Pet. App. 45a n.20.

se countries “would be detrimental” to the United

States. Claimed “inadequacy” cannot constitute a

reason for banning 140 million people from the Unit-

ed States based on nothing more than their national-

ity.

The Proclamation’s purported rationale falls

short for other reasons. The Proclamation does not

include thirty-nine other countries with borderline

performance; “the explanation for how the admin-

istration settled on the list of eight countries is ob-

scured.” Pet. App. 10a n.3 (quotation omitted). The

list remains both overinclusive and underinclusive:

its focus on nationality “could have the paradoxical

effect of barring entry by a Syrian national who has

lived in Switzerland for decades, but not a Swiss na-

tional who has immigrated to Syria during its civil

war.” Hawaii, 859 F.3d at 773 (quotation omitted).

And its reliance on the exclusion of several listed

countries from the Visa Waiver Program is uncon-

vincing: rather than “restricting travel from coun-

tries with inadequate risk factors,” Congress “enact-

ed provisions facilitating travel from low-risk coun-

tries.” Pet. App. 31a (emphasis added).

In sum, the Proclamation lacks the reasonable

finding of detriment required by Section 1182(f).

2. The Proclamation conflicts with other

provisions of the INA.

The Proclamation also displaces the INA’s specif-

ic requirements for excluding aliens on the basis that

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

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

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

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

Ct. 2128, 2145, 2146 (2015) (Breyer, J., dissent-

ing))}—provides detailed standards for determining

when an alien may be excluded based on a potential

to commit terrorist acts. Specifically, an alien who

has never before engaged in terrorist activities or

joined a terrorist organization may be excluded only

if the government has a “reasonable ground to be-

lieve” that the alien “is likely to engage after entry in

any terrorist activity.” 8 U.S.C. § 1182(a)(3)(B)\@ dD.

The Proclamation’s system of ad hoc waivers

turns that provision on its head. Instead of creating a

presumption of admittance absent any “reasonable

ground” to think an alien will commit terrorist activ-

ities—as Section 1182(a)(3)(B) requires—the Procla-

mation creates a presumption of exclusion and leaves

it to Customs and Border Protection to decide

whether an alien has demonstrated, “to the consular

officer's * * * satisfaction,” that he or she would not

threaten national security. Proclamation § 3(c)(i).

The Proclamation thus eliminates Congress’s

substantive requirement that there be reasonable

grounds to exclude an alien on the basis of the threat

of future acts of terrorism. And it does so without

even attempting to explain why changed circum-

stances or other facts make Congress’s determina-

tions inadequate to protect the Nation.‘

As construed by the government, therefore, Sec-

tion 1182(f) would allow the executive branch to re-

‘ In addition, Congress in 2015 specifically considered the risk

that travelers from these countries might engage in terrorism,

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

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

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

nation, too, is overridden by the Proclamation without any jus-

tification or explanation.

write all of Congress’s detailed rules for when aliens

may be excluded, which are set forth in detail in Sec-

tion 1182(a). “[T)he statute lists thirty-three distinct-

ly delineated categories that conspicuously provide

standards to guide the Executive in its exercise of

the exclusion power.” Abourezk, 785 F.2d at 1051. By

banning groups of aliens at will, and for reasons that

contradict the standards specified by Congress, the

executive has “nulliffied] numerous specific provi-

sions of the INA indefinitely * * * and has overridden

Congress’s legislative responses to the same concerns

the Proclamation aims to address.” Pet. App. 32a.

Indeed, were the Court to uphold the Proclama-

tion here, an administration could use Section

1182(f) to rewrite the immigration laws in their en-

tirety, prescribing via executive order an entire new

regime—with standards for issuing visas and exclud-

ing aliens wholly different from those prescribed by

Congress. Section 1182(f) does not, as the govern-

ment would have it, empower the executive to nullify

duly enacted immigration laws at will. If it did, such

a delegation of authority would pose grave constitu-

tional concerns.

3. The Proclamation is procedurally unrea-

sonable.

The comprehensive revision of the immigration

system effected by the Proclamation—and the execu-

tive orders that apparently will follow—improperly

circumvents Congress’s directive that significant

changes in immigration rules be implemented

through notice and comment rulemaking.

Sections 2(a) to 2(f) of the Proclamation effective-

ly create a new immigration system pursuant to

which the Secretary of Homeland Security, the Sec-

retary of State, and the Director of National Intelli-

gence determine what unspecified “information”

countries must share with the United States in order

to allow their nationals to enter this country. Then,

these officials may recommend to the President an

expansion or extension of the ban on entry to the

United States.

In addition, the Proclamation confers effectively

unconstrained discretion on consular officers and

customs officials to “grant waivers on a case-by-case

basis to permit the entry of foreign nationals for

whom entry is otherwise suspended or limited.” Proc-

lamation § 3(c). Other than listing a series of nonex-

clusive considerations, the Proclamation neither pro-

scribes a procedural mechanism for this exercise of

discretion, nor establishes substantive guideposts to

govern the exercise of this broad discretion.

Congress expressly identified the need for rule-

making in the INA, authorizing the President to im-

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

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

here, notwithstanding the Proclamation’s broad ap-

plicability. Moreover, while the Administrative Pro-

cedure Act does not generally apply to the Presi-

dent’s actions (see Dalton v. Specter, 511 U.S. 462,

469 (1994)), it does apply to the subsequent conduct

of the Departments of State and Homeland Security,

which must ultimately implement the Proclamation.

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

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

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

to participate in the rule making through submission

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

§ 553(c). See also Motor Vehicle Mfrs. Ass'n v. State

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

(rulemaking process ensures that an agency has not

“relied on factors which Congress has not intended it

to consider, entirely failed to consider an important

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

its decision that runs counter to the evidence before

the agency’).

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

larly important given the huge range of individuals

and entities affected by these rules, such as families

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

tunity to visit one another; businesses wishing to in-

teract with customers, to enable employees to obtain

experience at their home offices in the United States,

or to hire individuals with expertise not otherwise

available; and cultural institutions planning perfor-

mances by artists from outside the United States.

For these reasons, Section 1182(f) does not provide a

means of circumventing the ordinary rulemaking

process for promulgating legal principles of general

applicability.

C. The Proclamation violates Section

1152’s non-discrimination requirement.

The Proclamation separately contravenes 8

U.S.C. § 1152(a)(1)(A), which provides that “no per-

son shall * * * be discriminated against in the issu-

ance of an immigrant visa because of the person’s

race, sex, nationality, place of birth, or place of resi-

dence.” “Congress could hardly have chosen more ex-

plicit language” to “unambiguously direct{] that no

nationality-based discrimination” shall occur with

respect to immigration. Legal Assistance for Viet-

namese Asylum Seekers v. Dep’t of State, 45 F.3d 469,

473 (D.C. Cir. 1995), vacated on other grounds, 519

U.S. 1 (1996).

Congress enacted Section 1152 to “eliminate the

national origins system as the basis for the selection

of immigrants to the United States.” Pet. App. 49a

(quoting H.R. Rep. No. 89-745, at 8 (1965) (altera-

tions omitted)). That system, as President Johnson

explained, was “incompatible with our basic Ameri-

can tradition” that we “ask not where a person comes

from but what are his personal qualities.” H.R. Rep.

No. 89-745, at 11. Congress replaced the national or-

igins system with “a new system of selection de-

signed to be fair, rational, humane, and in the na-

tional interest” (S. Rep. No. 89-748, at 13 (1965)),

based largely on “the advantage to the United States

of the special talents and skills of the immigrant.”

H.R. Rep. No. 89-745, at 18.

On its face, the Proclamation discriminates on

the basis of nationality and therefore violates Section

1152. Although the Proclamation purports to bar on-

ly the entry of designated foreign nationals, it does

so “by precluding consular officers from issuing visas

to nationals from the designated countries.” Pet.

App. 50a. “This directly contravenes Congress’s ‘un-

ambiguous directions that no nationality-based dis-

crimination occur.” Jd. (quoting Legal Assistance for

Vietnamese Asylum Seekers, 45 F.3d at 473) (altera-

tions adopted).®

Section 1152 must be understood to constrain the

powers granted by Section 1182(f). Section 1152, as

the “later-enacted, more specific provision,” “provides

®° The Proclamation also cannot be defended as creating “pro-

cedures for the processing of immigrant visa applications’ (8

U.S.C. § 1152(a)(1)(B)). That statute—at most—permits the ex-

ecutive to regulate the manner in which foreign nationals can

receive visas or enter the United States, but does not authorize

a sweeping ban on nationals from eight countries.

a specific anti-discrimination bar to the President’s

general § 1182(f) powers.” Pet. App. 52a. See, e.g.,

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

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

otherwise, a specific statute will not be controlled or

nullified by a general one, regardless of the priority

so “clearly provides for exceptions in a number of cir-

cumstances,” and “[t]he conspicuous absence” of Sec-

tions 1182(f) and 1185(a) from that list strongly indi-

cates that Congress did not intend to include them.

Pet. App. 52a-53a.

The government asserts that there is no conflict

between the Proclamation and Section 1152 because,

“if an alien abroad is subject to the Proclamation and

does not qualify for a waiver, he is denied an immi-

grant visa because he is ineligible to enter under

Section 1182.” Pet’r Br. 51 (quotation and alteration

omitted). But it makes no difference that the aliens

who are banned by the Proclamation cannot receive

visas because they are barred from entering the

United States when the reason for that bar is their

national origin.

Congress did not allow for Section 1152 “to be so

easily circumvented.” Pet. App. 51a. Put differently,

Congress could not have intended to prohibit dis-

crimination at the embassy but permit it at the air-

port gate. Congress instead commanded “that gov-

ernment must not discriminate against particular

individuals because of the color of their skin or the

place of their birth,” because such discrimination “is

unfair and unjustified” wherever it occurs. Olsen v.

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

In sum, the Proclamation exceeds the authority

conferred by Section 1182—but even if it does not, it

nonetheless violates the ban on nationality-based

discrimination codified in Section 1152.6

D. This Court can, and must, adjudicate

the scope of the President’s authority.

“Congress intends the executive to obey its statu-

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

courts to grant relief when an executive agency vio-

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

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

reason, “[rjeview of the legality of Presidential action

can ordinarily be obtained in a suit seeking to enjoin

the officers who attempt to enforce the President's

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

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

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

It is fundamental that the President's exercise of

his statutory powers is not above review by this

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

Court addressed claims that President Reagan’s ex-

ecutive order suspending certain claims against Iran

exceeded the President’s statutory powers, holding

that the order fell within that authority. 453 US.

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

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

(reviewing on the merits claims that a presidential

proclamation violated two statutes). Respondents

here raise a similar claim, arguing that the Order

® To be sure, the text of Section 1152 only prohibits discrimi-

nation with respect to immigrant visas. But the basic nondis-

crimination principle that it embodies is reflected throughout

U.S. law. Olsen, 990 F. Supp. at 33 (addressing nonimmigrant

visas). Section 1182(f) therefore does not confer authority to

discriminate on this basis with respect to nonimmigrant visas

in the absence of a reasonable justification for displacing this

fundamental principle. Such a justification is lacking here.

exceeds the President’s limited authority under Sec-

tion 1182(f).

To be sure, there is a narrow exception to judicial

review where a statute gives the President unlimited

discretion to make a discrete and specific decision.

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

general principle that review is unavailable when a

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

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

U.S. 821, 830 (1985).

The President's discretion under Section 1182(f)

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

President's authority is constrained by the require-

ment that he make an adequate finding of detriment,

and that he exercise his power under Section 1182

reasonably. Accord Sale v. Haitian Ctrs. Council,

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

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

The Proclamation is unlawful—and the Court should

say so.

Petitioners’ invocation of the so-called “consular

nonreviewability” doctrine is similarly misplaced.

Petr Br. 19. The question here does not involve an

individualized, discretionary “decision” by a “consu-

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

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

1999). Rather than any discretionary determination,

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

lish broad standards banning wholesale immigration

from certain specified nationalities. Such determina-

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

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

consul’s authority to suspend their visa applications,

not challenging a decision within the discretion of

the consul. Therefore, jurisdiction exists to consider

whether the consulate has the authority to suspend

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

spondents are not themselves foreign nationals, the

harms addressed in this case span far beyond indi-

vidualized entry or admissions decisions.

Petitioners assert that this “distinction is fun-

damentally flawed” because the doctrine of consular

nonreviewability bars any “review of the President’s

national-security and foreign-relations judgments.”

Pet’'r Br. 21-22. But that argument proves too much.

“The Executive has broad discretion over the admis-

sion and exclusion of aliens, but that discretion is not

boundless.” Abourezk, 784 F.2d at 1061. To the ex-

tent that courts ever hesitate to review statutory

claims about individualized consular officer determi-

nations, that has no bearing on the sort of claims

raised here.

CONCLUSION

The judgment of the court of appeals should be

affirmed.

Respectfully submitted.

ANDREW J. PINCUS

Counsel of Record

PAUL W. HUGHES

Mayer Brown LLP

1999 K Street, NW

Washington, DC 20006

(202) 263-3000

apincus@mayerbrown.com

Counsel for Amici Curiae

MARCH 2018

See

APPENDIX A

LIST OF AMICI CURIAE

A Medium Corporation

Adobe Systems Incorporated

AdRoll, Inc.

Affirm, Inc.

Airbnb, Inc.

AltSchool, PBC

Amazon.com, Inc.

Ampush LLC

Asana, Inc.

Atlassian Corp. Plc

Automattic/WordPress.com

Azavea Inc.

Bigtooth Ventures

Bitly, Inc.

27.

28.

Box, Inc.

Braze, Inc. (formerly Appboy, Inc.)

Brightcove Inc.

Bungie, Inc.

CareZone Inc.

Casper Sleep Inc.

Castlight Health

Checkr Inc.

Chegg, Inc.

Chobani, LLC

Civis Analytics, Inc.

ClassPass Inc.

Cloudera, Inc.

Cloudflare, Inc.

Codecademy

30.

31.

32.

33.

34.

35.

36.

37.

38.

39.

40.

41.

42.

43.

44.

Color Genomics, Inc.

Copia Institute

DocuSign, Inc.

Dropbox, Inc.

eBay Inc.

Edmodo, Inc.

Electronic Arts Inc.

Eventbrite Inc.

Expa, LLC

Facebook, Inc.

Fastly, Inc.

Flipboard, Inc.

Foursquare Labs, Inc.

General Assembly Space, Inc.

GitHub, Inc.

59.

Glassdoor

Google LLC

Greenough Consulting Group

Gusto

Hewlett Packard Enterprise

HP Inc.

IDEO LLP

Justworks

Kickstarter, PBC

Knotel

Lam Research Corporation

Levi Strauss & Co.

Light Labs Inc.

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

Lyft, Inc.

Mapbox, Inc.

Marin Software Incorporated

Medallia, Inc.

Medidata Solutions, Inc.

Microsoft Corporation

Minted, LLC

Molecule Software, Inc.

MongoDB, Inc.

Mozilla Corporation

MPOWERD Inc.

Netflix, Inc.

NETGEAR, Inc.

NewsCred, Inc.

NIO US.

Oath, Inc.

88.

89.

Pandora Media, Inc.

Patreon, Inc.

PayPal Holdings, Inc.

Pixability, Inc.

Plaid Inc.

Postmates Inc.

Pure Storage, Inc.

Quantcast Corp.

Quora, Inc.

RealNetworks, Inc.

Reddit, Inc.

Redfin Corporation

Salesforce.com, Inc.

Shutterstock, Inc.

Singularity University

90.

91.

101.

102.

103.

104.

Snap Inc.

Space Exploration Technologies Corp.

Spokeo, Inc.

SpotHero, Inc.

Spotify USA Inc.

Square, Inc.

Squarespace, Inc.

Strava, Inc.

SugarCRM

Sunrun, Inc.

SurveyMonkey Inc.

TaskRabbit, Inc.

Tesla, Inc.

Thumbtack, Inc.

TripAdvisor, Inc.

105,

106,

107.

108.

109.

110.

111.

112.

113.

114.

115.

Turo Ine,

Twilio Ine.

Uber Technologies, Inc.

Upwork Inc.

Verizon Communications Inc.

Via Transportation, Inc.

Warby Parker

Wikimedia Foundation, Inc.

Work & Co.

Workday, Inc.

Y Combinator Management, LLC

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.