Intl. Refugee Assistance v. Donald J. Trump

Filing 101

AMICUS CURIAE BRIEF by BENNA RUTH SOLOMON, Attorney for amicus curiae City of Chicago in electronic and paper format. Method of Filing Paper Copies: mail. Date Paper Copies Mailed, Dispatched, or Delivered to Court: 11/20/2017. [1000194735] [17-2231, 17-2232, 17-2233, 17-2240] Benna Solomon [Entered: 11/17/2017 04:49 PM]

Nos. 17-2231 (L), 17-2232, 17-2233, 17-2240 (Consolidated)

IN THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
INTERNATIONAL REFUGEE ASSISTANCE PROJECT, a project of the Urban Justice Center, Inc., on
behalf of itself and its clients; HIAS, INC., on behalf of itself and its clients; JOHN DOES #1 AND 3;
JANE DOE #2; MIDDLE EAST STUDIES ASSOCIATION OF NORTH AMERICA, INC., on behalf of
itself and its members; MUHAMMED METEAB; PAUL HARRISON; IBRAHIM AHMED
MOHOMED; ARAB AMERICAN ASSOCIATION OF NEW YORK, on behalf of itself and its clients,
Plaintiffs – Appellees,
and ALLAN HAKKY; SAMANEH TAKALOO,
Plaintiffs
v.
DONALD J. TRUMP, in his official capacity as President of the United States; UNITED STATES
DEPARTMENT OF HOMELAND SECURITY; DEPARTMENT OF STATE; OFFICE OF THE
DIRECTOR OF NATIONAL INTELLIGENCE; ELAINE C. DUKE, in her official capacity as Acting
Secretary of Homeland Security; REX TILLERSON, in his official capacity as Secretary of State;
DANIEL R. COATS, in his official capacity as Director of National Intelligence,
Defendants-Appellants.
No. 17-2231 (L)
On Cross-Appeal from the United States District Court
for the District of Maryland, Southern Division
(8:17-cv-00361-TDC)
[Caption continued on next page]
BRIEF OF CHICAGO, LOS ANGELES, NEW YORK, PHILADELPHIA, AND OTHER CITIES AND
COUNTIES, JOINED BY THE U.S. CONFERENCE OF MAYORS,
AS AMICI CURIAE SUPPORTING PLAINTIFFS

NICK KAHLON
Riley Safer Holmes & Cancila LLP
Three First National Plaza
70 W. Madison Street, Suite 2900
Chicago, IL 60602
[phone]
RYAN P. POSCABLO
BRIAN NEFF
ELIBERTY LOPEZ
Riley Safer Holmes & Cancila LLP
1330 Avenue of the Americas, 6th Floor
New York, NY 10019
[phone]
Attorneys for Amicus Curiae,
City of Chicago

EDWARD N. SISKEL
Corporation Counsel
of the City of Chicago
BENNA RUTH SOLOMON
Deputy Corporation Counsel
ANDREW W. WORSECK
Chief Assistant Corporation Counsel
CARL NEWMAN
SARA K. HORNSTRA
JONATHON D. BYRER
Assistant Corporation Counsel
30 N. LaSalle Street, Suite 800
Chicago, IL 60602
[phone]
[e-mail]
Attorneys for Amicus Curiae,
City of Chicago

MICHAEL N. FEUER
City Attorney
of the City of Los Angeles
200 N. Main St., 800 CHE
Los Angeles, CA 90012
Attorney for City of Los Angeles

JOHN DANIEL REAVES
1200 New Hampshire Ave. NW
Washington, DC 20036
Attorney for The U.S. Conference of Mayors

ZACHARY W. CARTER
Corporation Counsel
of the City of New York
100 Church St.
New York, NY 10007
Attorney for Mayor & City
Council of New York
SOZI PEDRO TULANTE
City Solicitor
City of Philadelphia
Law Department
1515 Arch St., 17th Fl.
Philadelphia, PA 19102
Attorney for City of Philadelphia

*Additional counsel for amici curiae are listed in the
appendix to this brief

No. 17-2232
(8:17-cv-02921-TDC)
IRANIAN ALLIANCES ACROSS BORDERS; JANE DOE #1; JANE DOE #2; JANE DOE #3;
JANE DOE #4; JANE DOE #5, JANE DOE #6,
Plaintiffs – Appellees,
v.
DONALD J. TRUMP, in his official capacity as President of the United States; ELAINE C. DUKE, in
her official capacity as Acting Secretary of Homeland Security; KEVIN K. MCALEENAN, in his official
capacity as Acting Commissioner of U.S. Customs and Border Protection; JAMES MCCAMENT, in his
official capacity as Acting Director of U.S. Citizenship and Immigration Services; REX TILLERSON;
JEFFERSON B. SESSIONS III, in his official capacity as Attorney General of the United States,
Defendants – Appellants.

No. 17-2233
(1:17-cv-02969-TDC)
EBLAL ZAKZOK; SUMAYA HAMADMAD; FAHED MUQBIL; JOHN DOE #1; JOHN DOE #2;
JOHN DOE #3,
Plaintiffs – Appellees,
v.
DONALD J. TRUMP, in his official capacity as President of the United States; UNITED STATES
DEPARTMENT OF HOMELAND SECURITY; UNITED STATES DEPARTMENT OF STATE;
ELAINE C. DUKE, in her official capacity as Acting Secretary of Homeland Security; REX
TILLERSON, in his official capacity as Secretary of State,
Defendants – Appellants.

No. 17-2240
(8:17-cv-00361-TDC)

INTERNATIONAL REFUGEE ASSISTANCE PROJECT, a project of the Urban Justice Center, Inc., on
behalf of itself and its clients; HIAS, INC., on behalf of itself and its clients; JOHN DOES #1 AND 3;
JANE DOE #2; MIDDLE EAST STUDIES ASSOCIATION OF NORTH AMERICA, INC., on behalf of
itself and its members; MUHAMMED METEAB; ARAB AMERICAN ASSOCIATION OF NEW
YORK, on behalf of itself and its clients,
Plaintiffs – Appellants,
and PAUL HARRISON; IBRAHIM AHMED MOHOMED; ALLAN HAKKY; SAMANEH TAKALOO,
Plaintiffs,
v.
DONALD J. TRUMP, in his official capacity as President of the United States; UNITED STATES
DEPARTMENT OF HOMELAND SECURITY; DEPARTMENT OF STATE; OFFICE OF THE
DIRECTOR OF NATIONAL INTELLIGENCE; ELAINE C. DUKE, in her official capacity as Acting
Secretary of Homeland Security; DANIEL R. COATS, in his official capacity as Director of National Intelligence,
Defendants – Appellees.

Additional Counsel for Amici Curiae
JAMES L. BANKS, Jr.
City Attorney
301 King St. Ste. 1300
Alexandria, VA 23214
Attorney for City of Alexandria
and Mayor Allison Silberberg

KENNETH W. GORDON
Attorney to the Town
2300 Elmwood Ave.
Rochester, NY 14618
Attorney for Town of Brighton,
NY

ANNE L. MORGAN
City Attorney
City of Austin Law Department
P.O. Box 1088
Austin, TX 78767
Attorney for City of Austin

G. NICHOLAS HERMAN
General Counsel
The Brough Law Firm, PLLC
1526 E. Franklin St.
Ste. 200
Chapel Hill, NC 27514
Attorney for Town of Carrboro

ANDRE M. DAVIS
City Solicitor
Baltimore City Department of
Law
100 Holiday St.
Baltimore, MD 21202
Attorney for Mayor and City
Council of Baltimore

MATTHEW T. JERZYK
City Solicitor
580 Broad St.
Central Falls, RI 02863
Attorney for James A. Diossa,
Mayor of Central Falls, Rhode
Island

EUGENE L. O’FLAHERTY
Corporation Counsel
1 City Hall Square, Rm. 615
Boston, MA 02201
Attorney for Boston and
Mayor Martin J. Walsh

KIMBERLY M. FOXX
State’s Attorney for Cook County
69 W. Washington, 32nd Fl.
Chicago, IL 60602
Attorney for Cook County,
Illinois

W. GRANT FARRAR
Corporation Counsel
City of Evanston Law
Department
2100 Ridge Ave.
Evanston, IL 60201
Attorney for City of Evanston
GREGORY L. THOMAS
City Attorney
401 Broadway, Ste. 101
Gary, IN 46402
Attorney for City of Gary
ELEANOR M. DILKES
City Attorney
410 E. Washington St.
Iowa City, IA 52240
Attorney for City of Iowa City
AARON O. LAVINE
City Attorney
108 E. Green St.
Ithaca, NY 14850
Attorney for Svante L. Myrick,
Mayor of Ithaca
SUSAN L. SEGAL
City Attorney
350 South 5th St., Rm. 210
Minneapolis, MN 55415
Attorney for City of Minneapolis

MICHAEL P. MAY
City Attorney
210 Martin Luther King Jr.
Blvd., Rm. 401
Madison, WI 53703
Attorney for City of Madison
MARC P. HANSEN
County Attorney
Montgomery County, Maryland
101 Monroe St., 3rd Fl.
Rockville, MD 20850
Attorney for Montgomery County
JON COOPER
Director of Law
Department of Law
Metro Courthouse, Ste. 108
Nashville, TN 37219
Attorney for Mayor Megan Barry,
Metropolitan Government of
Nashville, and Davidson County
JOHN ROSE Jr.
Corporation Counsel
165 Church St.
New Haven, CT 06501
Attorney for City of New Haven
and Mayor Toni N. Harp
BARBARA J. PARKER
City Attorney
1 Frank H. Ogawa Plz. 6 Fl.
Oakland, CA 94612
Attorney for City of Oakland

LOURDES SANCHEZ RIDGE
City Solicitor
Chief Legal Officer
414 Grant St. 3rd Fl.
Pittsburgh, PA 15219
Attorney for City of Pittsburgh
TRACY REEVE
City Attorney
430 City Hall
1221 SW Fourth Ave.
Portland, OR 97204
Attorney for Portland
JEFFREY DANA
City Solicitor
444 Westminster St.
Ste. 220
Providence, RI 02903
Attorney for City of Providence
and
Mayor Jorge O. Elorza

DENNIS J. HERRERA
San Francisco City Attorney
City Attorney’s Office
City Hall Room 234
1 Dr. Carlton B. Goodlett Pl.
San Francisco, CA 94102
Attorney for City and County of
San Francisco
RICHARD DOYLE
City Attorney
200 East Santa Clara St. 16th
Fl.
San José, CA 95113
Attorney for City of San José
JAMES R. WILLIAMS
County Counsel
Office of the County Counsel
70 West Hedding St., 9th Fl.
San Jose, CA 95110-1770
Attorney for Santa Clara County

BRIAN F. CURRAN
Corporation Counsel
30 Church St., Rm. 400A
Rochester, NY 14614
Attorney for City of Rochester

PETER S. HOLMES
Seattle City Attorney
701 Fifth Ave., Ste. 2050
Seattle, WA 98104
Attorney for City of Seattle

SAMUEL J. CLARK
City Attorney
400 City Hall
15 Kellogg Blvd. W
Saint Paul, MN 55102
Attorney for City of Saint Paul

MICHAEL M. LORGE
Corporation Counsel
5127 Oakton Ave.
Skokie, IL 60077
Attorney for Village of Skokie

STEPHANIE STEELE
Corporation Counsel
Department of Law
227 W. Jefferson Blvd., Suite
1200S
South Bend, IN 46601
Attorney for City of South Bend
MICHAEL RANKIN
City Attorney
255 W. Alameda, 7th Fl.
P.O. Box 27210
Tucson, AZ 85726-7210
Attorney for City of Tucson
MICHAEL JENKINS
JENKINS & HOGIN, LLP
1230 Rosecrans Ave.
Ste. 110
Manhattan Beach, CA 90266
Attorney for West Hollywood

TABLE OF CONTENTS
_______
Page
STATEMENT OF INTEREST OF AMICI CURIAE ................................ 1
SUMMARY OF ARGUMENT ................................................................. 11
ARGUMENT ........................................................................................... 12
I.

THE DISTRICT COURT CORRECTLY CONCLUDED
THAT PLAINTIFFS ARE LIKELY TO SUCCEED ON THE
MERITS. . ....................................................................................... 13
A. The Proclamation Violates the Establishment Clause. ........... 13
1. The primary purpose of the Proclamation is to
discriminate against Muslims. .................................................. 16
2. The asserted national security rationale for the
Proclamation is, at best, secondary. .......................................... 19
3. The Proclamation does not cure the serious Establishment
Clause violations of the Executive Orders………………...........21
B. The Proclamation Unlawfully Discriminates Based
On National Origin.................................................................... 23

II.

THE BALANCE OF THE EQUITIES FAVORS AN
INJUNCTION.. .............................................................................. 28

CONCLUSION ........................................................................................ 30

i

TABLE OF AUTHORITIES
_______
Page(s)

Cases

Astoria Fed. Sav. & Loan Ass’n v. Solimino,
501 U.S. 104 (1991) ........................................................................ 26
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah,
508 U.S. 520 (1993) ............................................................ 14, 15, 19
Edwards v. Aguillard,
482 U.S. 578 (1987) ........................................................................ 15
Epperson v. Arkansas,
393 U.S. 97 (1968) .......................................................................... 14
FDA v. Brown & Williamson Tobacco Corp.,
529 U.S. 120 (2000) ................................................................... 25-26
Felix v. City of Bloomfield,
841 F.3d 848 (10th Cir. 2016) ........................................................ 21
FTC v. Mandel Brothers, Inc.,
359 U.S. 385 (1959) ........................................................................ 26
Gustafson v. Alloyd Co.,
513 U.S. 561 (1995) ........................................................................ 26
Hamdi v. Rumsfeld,
542 U.S. 507 (2004) ........................................................................ 27
Hawaii v. Trump, 859 F.3d 741 (9th Cir.),
cert. granted, judgment vacated as moot,
No. 16-1540 (U.S. Oct. 24, 2017),
and vacated and dismissed as moot,
No. 17-15589 (9th Cir. Nov. 2, 2017) ............................................. 25
ii

Hoffman ex rel. NLRB v. Beer Drivers & Salesmen’s Local Union No.
888,
536 F.2d 1268 (9th Cir. 1976) ................................................... 24-25
IRAP v. Trump,
857 F.3d 554 (4th Cir. 2017) (en banc),
vacated and remanded as moot,
No. 16-1436 (U.S. Oct. 10, 2017) ........................................ 15, 17, 22
Judulang v. Holder,
565 U.S. 42 (2011) .......................................................................... 28
Kerry v. Din,
135 S. Ct. 2128 (2015) .................................................................... 15
Kleindienst v. Mandel,
408 U.S. 753 (1972) ........................................................................ 15
Korematsu v. United States,
584 F. Supp. 1406 (N.D. Cal. 1984) ............................................... 27
Larson v. Valente,
456 U.S. 228 (1982) ........................................................................ 14
Lemon v. Kurtzman,
403 U.S. 602 (1971) ........................................................................ 15
Lynch v. Donnelly,
465 U.S. 668 (1984) ........................................................................ 14
McCreary County v. ACLU,
545 U.S. 844 (2005) ............................................................ 13, 19, 21
Olsen v. Albright,
990 F. Supp. 31 (D.D.C. 1997).................................................. 23, 24
Radzanower v. Touche Ross & Co.,
426 U.S. 148 (1976) ........................................................................ 26
U.S. ex rel. Knauff v. Shaughnessy,
338 U.S. 537 (1950) ........................................................................ 27

iii

Washington v. Trump,
847 F.3d 1151 (9th Cir. 2017) ........................................................ 19
Statutes, Legislative Materials, and Ordinances
8 U.S.C. § 1152(a)(1)(A) ........................................................................... 24
1965 U.S.C.C.A.N. 3328. ......................................................................... 24
Municipal Code of Chicago, Ill. § 2-160-010 ............................................. 9
Municipal Code of Chicago, Ill. § 5-8-010 ................................................. 9
Municipal Code of Chicago, Ill. § 9-115-180 ............................................. 9
Municipal Code of Chicago, Ill. § 13-72-040 ............................................. 9
Municipal Code of Los Angeles Charter § 104(i) ...................................... 9
Municipal Code of Los Angeles Charter § 1024........................................ 9
Municipal Code of Los Angeles Admin. Code § 4.400 ............................ 10
Municipal Code of Los Angeles Admin. Code § 10.8 .............................. 10
Municipal Code of Los Angeles Admin. Code § 10.13 ............................ 10
New York City Charter § 900.................................................................. 10
N.Y.C. Admin. Code § 4-116.................................................................... 10
N.Y.C. Admin. Code § 8-107.................................................................... 10
Philadelphia Code § 9-1101..................................................................... 10
Philadelphia Code § 9-1103..................................................................... 10
Philadelphia Code § 9-1106..................................................................... 10
Philadelphia Code § 9-1108..................................................................... 10
Other Sources
Immigrants & Competitive Cities, Americas Society/Council of the
Americas, http://www.as-coa.org/sites/default/files/
ImmigrantsandCompetitiveCities.pdf ............................................. 2
iv

Alan Berube, These communities have a lot at stake in Trump’s
executive order on immigration,
http://www.brookings.edu/blog/the-avenue/2017/01/30/thesecommunities-have-a-lot-at-stake-in-trumps-executive-order-onimmigration ...................................................................................... 2
Community Policing Defined, Dep’t of Justice, Office of Community
Oriented Policing Services (rev. 2014), http://ric-zaiinc.com/Publications/cops-p157-pub.pdf .......................................... 7
DHS Announces Expansion of the Securing the Cities Program,
http://www.dhs.gov/news/2015/09/14/dhs-announces-expansionsecuring-cities-program ................................................................... 7
Sally Herships, Trump’s travel ban worries international students,
http://www.marketplace.org/2017/02/08/world/overseasstudents .......................................................................................... 10
Ted Hesson, Why American Cities Are Fighting to Attract Immigrants,
http://www.theatlantic.com/business/archive/2015/07/us-citiesimmigrants-economy/398987/ (NYC, LA, Houston, and Chicago
are roughly 1/5 of GDP).................................................................... 2
John F. Kennedy, A Nation of Immigrants 3
(Harper rev. ed. 2008) ................................................................ 5, 23
James Madison, Memorial and Remonstrance Against Religious
Assessments, reprinted in 8 The Papers of James Madison 299
(Robert A. Rutland ed., 1973) ........................................................ 13
John Maxfield, More Foreign Visitors Say ‘No Thanks’ to U.S. as a
Destination, http://www.usatoday.com/story/money/2017/10/21/afoolish-take-the-us-tourism-slump/106719412/. .............................. 4

v

David Thacher, The Local Role in Homeland Security, 39 Law & Soc’y
Rev. 635 (Sept. 2005),
http://deepblue.lib.umich.edu/bitstream/handle/2027.42/73848/j.15
40-5893.2005.00236.x.pdf?sequence=1 ......................................... 6-7
National Travel and Tourism Office, “Non-Resident Arrivals to the
United States: World Region of Residence,” available at
http://travel.trade.gov/view/m-2017-I-001/index.asp ...................... 5
Update: 1,094 Bias-Related Incidents in the Month Following the
Election, http://www.splcenter.org/hatewatch/2016/12/16/update1094-bias-related-incidents-month-following-election .................... 9
Kristen Schorsch, How Trump’s Travel Ban Could Hit Medical Tourism
Hard,
http://www.chicagobusiness.com/article/20170201/news03/1702099
96/how-trumps-travel-ban-could-hit-medical-tourism-hard ........... 5
Mitch Silber and Adam Frey, Detect, Disrupt, and Detain: Local Law
Enforcement’s Critical Roles in Combating Homegrown Terrorism
and the Evolving Terrorist Threat,
http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2508&con
text=ulj ............................................................................................. 6
Shivani Vora, After Travel Ban, Interest in Trips to U.S. Declines,
http://www.nytimes.com/2017/02/20/travel/aftertravel-ban-declining-interest-trips-to-united-states.html............... 4

vi

STATEMENT OF INTEREST OF AMICI CURIAE1
______________
Amici include some of the largest cities and counties in the United
States. The U.S. Conference of Mayors (USCM), founded in 1932, is the
official nonpartisan organization of all U.S. cities with a population of
more than 30,000 people, which presently includes over 1,400
cities. Each city is represented in USCM by its chief elected official, the
mayor. Amici are categorically opposed to the travel bans adopted by
the Trump Administration, including the current iteration,
Proclamation 9645 (“the Proclamation”), which discriminates
invidiously on the basis of religion and national origin and will
significantly undermine the safety, economic well-being, and social
cohesion in our communities and across the United States.
Our cities are heavily dependent on the contributions of

The parties have consented to the filing of this brief. Pursuant to Fed.
R. App. P. 29(a)(4)(E), amici state that no counsel for any party
authored this brief, in whole or in part, and no person other than amici
contributed monetarily to its preparation or submission.
1

immigrants.2 Of the 16.6 million residents of Chicago, Los Angeles,
New York City, and Philadelphia, more than five million are
immigrants, who hail from 150 countries.3 These cities account for
almost one-fifth of the Nation’s gross domestic product.4 As of 2015,
approximately 210,200 residents in the Chicago, Los Angeles, and New
York City metropolitan areas were born in four of the Muslim-majority
countries targeted by the Proclamation.5
Chicago, Los Angeles, and New York City are some of their
jurisdictions’ largest employers, collectively employing approximately
365,000 people. In New York City, 34% of city workers are foreignImmigrants & Competitive Cities, Americas Society/Council of the
Americas, http://www.as-coa.org/sites/default/files/
ImmigrantsandCompetitiveCities.pdf.
2

3

Support for the data cited is in the appendix to this brief.

Ted Hesson, Why American Cities Are Fighting to Attract Immigrants,
http://www.theatlantic.com/business/archive/2015/07/us-citiesimmigrants-economy/398987/ (NYC, LA, Houston, and Chicago are
roughly 1/5 of GDP).
4

Alan Berube, These communities have a lot at stake in Trump’s
executive order on immigration,
http://www.brookings.edu/blog/the-avenue/2017/01/30/thesecommunities-have-a-lot-at-stake-in-trumps-executive-order-onimmigration.
5

2

born; in Los Angeles, 22% are. Immigrants also make up a substantial
portion of our cities’ private workforces: 46% of the 4.3 million workers
in New York; 26.5% of the 1.27 million workers in Chicago; and
approximately 17% of the 640,000 workers in Philadelphia. At least
12,500 private employees work on international visas in Chicago, which
is also home to more than 100,000 immigrant entrepreneurs.
Immigrants are a majority of New York City’s business owners; 44% in
Los Angeles; 27% in Chicago; and 14% in Philadelphia.
Chicago and Los Angeles welcome and resettle some of the largest
numbers of refugees in the United States. In 2016, approximately 2,091
refugees resettled in the Chicago area, including nearly 764 from the
targeted countries. 2,322 resettled in the Los Angeles area, including
1,808 from Iran alone. 794 refugees arrived in Philadelphia, including
253 from the targeted countries. Approximately 1,300 refugees
resettled in New York City from October 1, 2012 through September 30,
2016. And from October 1, 2016 through September 2017, our cities
have become home to more than 3,000 refugees.
Chicago, Los Angeles, New York City, and Philadelphia also
operate or are served by large international airports. More than 400
3

international flights, bringing more than 60,000 passengers, arrive
daily in Chicago and Los Angeles alone. Tourism in Chicago, Los
Angeles, New York City, and Philadelphia generates roughly $70 billion
a year in local revenue. In 2016, our cities hosted more than 20 million
foreign visitors, who spent an estimated $6.3 billion in Los Angeles
County, and $1.88 billion in Chicago. As a result of the travel bans, Los
Angeles stands to lose an estimated $736 million and New York expects
to lose $600 million.6 More generally, following EO-1, “the demand for
travel to the United States took a nosedive, according to data from
several travel companies and research firms.”7 The U.S. Department of
Commerce reports that for the first five months of 2017, the number of
international visitors fell by 5% overall, and 25-30% from Africa and the

John Maxfield, More Foreign Visitors Say ‘No Thanks’ to U.S. as a
Destination, http://www.usatoday.com/story/money/2017/10/21/a-foolishtake-the-us-tourism-slump/106719412/.
6

Shivani Vora, After Travel Ban, Interest in Trips to U.S. Declines,
http://www.nytimes.com/2017/02/20/travel/after-travel-ban-declininginterest-trips-to-united-states.html.
7

4

Middle East.8
Chicago, Los Angeles, New York City, and Philadelphia together
have 162 four-year colleges and universities, with approximately
100,000 international students. Chicago is also home to 44 major
hospitals, and Philadelphia is home to 29, which serve thousands of
international patients a year. The Middle East is the top source of
patients traveling to the U.S. for medical care.9
Like the two Executive Orders before it, the Proclamation is as
misguided as it is unconstitutional. Our cities serve as gateways for
immigrants and refugees starting new lives in America. And when they
have come, “[e]verywhere immigrants have enriched and strengthened
the fabric of American life.”10 Indeed, perhaps uniquely in the world,
the identity of American cities has been forged from the toil of
National Travel and Tourism Office, “Non-Resident Arrivals to the
United States: World Region of Residence,” available at
http://travel.trade.gov/view/m-2017-I-001/index.asp.
8

Kristen Schorsch, How Trump’s Travel Ban Could Hit Medical
Tourism Hard, http://www.chicagobusiness.com/article/
20170201/news03/170209996/how-trumps-travel-ban-could-hit-medicaltourism-hard.
9

10

John F. Kennedy, A Nation of Immigrants 3 (Harper rev. ed. 2008).
5

immigrants.
But beyond our ideals, the Proclamation subverts the very
national security purpose it claims to serve. With decades of experience
policing neighborhoods that are home to immigrant populations, amici
are keenly and uniquely aware that frightened or ostracized residents
are reluctant to report crimes, against themselves or others, or behavior
that should, in the interest of safety and national security, be reported
as suspicious. Although this hurts the entire Nation, the effects on
amici are especially profound. Chicago, Los Angeles, New York City,
Philadelphia, and the other amici, as financial, political, and cultural
hubs, draw unique attention from individuals looking to cause harm in
this country. Additionally, local law enforcement officers play an
increasingly important role in detecting and protecting against national
security threats. For these and other reasons, cities are a crucial part of
the first-line defense against terrorism.11 And to serve these purposes,

E.g., Mitch Silber and Adam Frey, Detect, Disrupt, and Detain: Local
Law Enforcement’s Critical Roles in Combating Homegrown Terrorism
and the Evolving Terrorist Threat,
http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2508&context=
ulj; David Thacher, The Local Role in Homeland Security, (cont. . . .)
11

6

our cities must be able to work with everyone in our diverse
communities. Even at the strictly local level, the safety and security of
our residents and visitors depends upon cooperation between the
residents and local police. The U.S. Department of Justice’s own Office
of Community Oriented Policing Services has emphasized this fact time
and again.12 In short, by targeting immigrants based on religion and
national origin, the Proclamation undermines trust between our law
enforcement agencies and our immigrant communities, which in turn
makes all of our residents and visitors, and indeed everyone in the
country, less safe.
Overt discrimination presents other dangers. Immigrant
residents of our cities who feel unwelcome are more likely to cut
themselves off from public life and participation in public programs.

(. . . cont.) 39 Law & Soc’y Rev. 635 (Sept. 2005),
http://deepblue.lib.umich.edu/bitstream/handle/2027.42/73848/j.15405893.2005.00236.x.pdf?sequence=1; DHS Announces Expansion of the
Securing the Cities Program, http://www.dhs.gov/news/2015/09/14/dhsannounces-expansion-securing-cities-program.
E.g., Community Policing Defined, Dep’t of Justice, Office of
Community Oriented Policing Services (rev. 2014), http://ric-zaiinc.com/Publications/cops-p157-pub.pdf.
12

7

They may refuse to participate in public health programs such as
vaccinations or to seek medical care for contagious diseases. They may
keep their children out of school to avoid harassment and stay away
from mosques because of the fear that they will be unsafe. These effects
will not be limited to individuals from the targeted countries.
Thousands of other Muslims in the amici cities and counties have
reason to worry that the public will embrace the anti-Muslim stance
embodied in the Proclamation. It therefore places millions of people at
risk of harm or being driven underground, which makes both those
residents and our cities less safe.
Worse still, the message that citizens of majority-Muslim
countries threaten national security conveys that members of those
communities, and other immigrant communities, are to be distrusted
and feared. Thus, targeting Muslims makes these residents more
vulnerable to victimization, and adds to the difficulty local governments
face in trying to provide protection. At the extreme, this climate gives
rise to hate crimes. The Southern Poverty Law Center reports that in
the 34 days following the 2016 presidential election, there were 1,094
hate crimes and lesser hate incidents; 315 were categorized as anti8

immigrant, and 112 as anti-Muslim.13 In cities across the country, hate
crimes have risen dramatically since that election. New York City
reported twice the number of hate crime incidents in the three months
after the election compared to the same period a year prior. In Los
Angeles, hate crime incidents doubled in the month following the
election. And in the first five weeks of 2017, the number of hate crimes
recorded in Chicago was more than triple the number for the same
period in 2016. Philadelphia received more reports of hate crimes in the
first half of 2017 than in all of 2016, and, at that rate will see more hate
crimes in 2017 than in the previous three years combined.
The Proclamation also undermines local laws prohibiting
discrimination based on religion and national origin, among other
invidious grounds, in all aspects of life – housing, employment, public
accommodation, transportation, schooling, and government services.
E.g., Municipal Code of Chicago, Ill. §§ 2-160-010, 5-8-010, 9-115-180,
13-72-040; Los Angeles Charter §§ 104(i), 1024; Los Angeles Admin.

Update:1,094 Bias-Related Incidents in the Month Following the
Election, http://www.splcenter.org/hatewatch/2016/12/16/update-1094bias-related-incidents-month-following-election.
13

9

Code §§ 4.400, 10.8, 10.13; New York City Charter § 900; N.Y.C. Admin.
Code §§ 4-116; 8-107; Philadelphia Code §§ 9-1101, 9-1103, 9-1106, 91108. Such laws reflect amici’s strong commitment to equal rights, as
well as their belief that diversity enriches us and diminishes no one.
The Proclamation’s blatant discrimination turns the clock back on civil
rights.
Finally, the Proclamation deprives our communities and our
residents of the opportunity to interact with persons from the targeted
countries, including not just people who are barred but others who
decide not to travel to the United States, much less to live here. These
individuals enrich us with their customs and celebrations, their hard
work and perseverance, and their unique skills and training. Our cities
would be bereft without them. Foreign residents and students also
make an immeasurable contribution to America’s ability to participate
in the global economy, among other reasons because fewer than half of
Americans have passports.14 Thus, many Americans become
acquainted with other cultures only if visitors and students from foreign
Sally Herships, Trump’s travel ban worries international students,
http://www.marketplace.org/2017/02/08/world/overseas-students.
14

10

countries come here.
Amici file this brief to urge the court to affirm the district court’s
preliminary injunction.
SUMMARY OF ARGUMENT
________
Defendants have failed to establish that the district court abused
its discretion in issuing the preliminary injunction.
The district court properly recognized that the Proclamation
violates the Establishment Clause. The record presents compelling
evidence that the Proclamation continues to be motivated by President
Trump’s stated belief that “Islam hates us” and his related desire to
exclude Muslims. Broadcast many times and in many ways, the
President’s anti-Muslim message has been clear and consistent.
Accordingly, the national security considerations defendants cite are, at
best, a secondary consideration. In addition, the Proclamation’s minor
modifications to the prior travel bans fall far short of curing the prior,
egregious Establishment Clause violations.

11

The Proclamation also unlawfully discriminates based on national
origin. The Immigration and Nationality Act of 1965 prohibits this
arbitrary, blanket discrimination.
Plaintiffs, and amici, would be greatly harmed if the Proclamation
were not enjoined. In contrast, the injunction does not prevent
defendants from individually vetting those who apply for entry from the
targeted countries. The district court appropriately balanced the
interests on both sides in issuing the injunction.
ARGUMENT
________
Like the EOs, the Proclamation continues to ban immigration by
most individuals from Iran, Libya, Somalia, Syria, and Yemen. It adds
most individuals from Chad, another Muslim-majority country. And it
adds perhaps a few hundred from North Korea and Venezuela—the
only two countries that are not predominately Muslim. Thus, the vast
majority of people affected by the Proclamation are Muslim.
The Proclamation’s minor changes from EO-2 are mere
decoration—foreign policy non-sequiturs strung together in a single
document to attempt to cast it as something other than round three of

12

invidious discrimination based on religious and national origin. The
district court properly enjoined it.
I.

THE DISTRICT COURT CORRECTLY CONCLUDED THAT
PLAINTIFFS ARE LIKELY TO SUCCEED ON THE
MERITS.
A.

The Proclamation Violates The Establishment Clause.

The Establishment Clause prohibits any “law respecting an
establishment of religion.” It enshrines, in the first words of the First
Amendment, the special protection that the Framers intended for
religion to have from governmental compulsion. Those words were
“written by the descendants of people who had come to this land
precisely so that they could practice their religion freely,” and were
“designed to safeguard the freedom of conscience and belief that those
immigrants had sought.” McCreary County v. ACLU, 545 U.S. 844, 881
(2005) (O’Connor, J., concurring); see also James Madison, Memorial
and Remonstrance Against Religious Assessments, reprinted in 8 The
Papers of James Madison 299 (Robert A. Rutland ed., 1973) (“The
Religion . . . of every man must be left to the conviction and conscience
of every man; and it is the right of every man to exercise it as these may
dictate.”).
13

Consistent with these principles, the “clearest command” of the
Establishment Clause is that the government cannot favor or disfavor
one religion over another. Larson v. Valente, 456 U.S. 228, 244 (1982);
accord Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508
U.S. 520, 535-36 (1993) (“In our Establishment Clause cases we have
often stated the principle that the First Amendment forbids an official
purpose to disapprove of a particular religion . . . .”); Lynch v. Donnelly,
465 U.S. 668, 673 (1984) (Establishment Clause “forbids hostility
toward any [religion]”); Epperson v. Arkansas, 393 U.S. 97, 106 (1968)
(“[T]he State may not adopt programs or practices . . . which aid or
oppose any religion. This prohibition is absolute.”) (internal citations
and quotation omitted).
The Proclamation violates the Establishment Clause by
disfavoring Muslims. Five of the targeted countries are, as in EO-2,
Muslim-majority countries, and now there is a sixth, Chad, as well.
That the Proclamation does not explicitly reference Islam is beside the
point. The Establishment Clause “extends beyond facial
discrimination” and “protects against governmental hostility which is
masked, as well as overt. The Court must survey meticulously the
14

circumstances of governmental categories to eliminate, as it were,
religious gerrymanders.” Lukumi, 508 U.S. at 534 (citation and
quotation omitted).
Consistent with this Court’s conclusion in the prior travel ban
appeal, IRAP v. Trump, 857 F.3d 554, 592 (4th Cir. 2017) (en banc),
vacated and remanded as moot, No. 16-1436 (U.S. Oct. 10, 2017), the
district court found that the facially legitimate reason for the
Proclamation defendants claimed is not bona fide. R. 46 at 64-65. The
court then assessed the Proclamation under the three-part test of
Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971).15 If a policy fails any
part, it violates the Establishment Clause, Edwards v. Aguillard, 482
U.S. 578, 583 (1987), and here, the Proclamation fails at least the first.
As the district court recognized, there is every indication that the
predominant purpose of the Proclamation was religious discrimination,
Defendants urge reliance on Kleindienst v. Mandel, 408 U.S. 753
(1972), and Kerry v. Din, 135 S. Ct. 2128 (2015). First Cross-Appeal
Brief for Appellants [“Trump Br.”] 40-42. These cases did not involve
limits the Establishment Clause imposes on the federal government’s
immigration powers. Instead, both cases involved discretionary
decisions made by executive officers to admit or deny specific aliens
under statutory immigration restrictions, the constitutionality of which
was not challenged.
15

15

and that the stated secular purpose of protecting national security was,
at best, a secondary consideration. JA 1065-76. Moreover, the district
court properly found that the Proclamation does not adequately cure
the serious Establishment Clause violations in the earlier Executive
Orders.
1.

The primary purpose of the Proclamation
is to discriminate against Muslims.

President Trump’s formal statement calling for “a total and
complete shutdown of Muslims entering the United States,” JA 135,
was a defining moment of his campaign, and a policy position he
defended by asserting that “Islam hates us,” JA 305.16 Just one week
after swearing the oath of office, he moved to turn that campaign
rhetoric into official policy, banning travel to the United States from
seven Muslim-majority countries. After EO-1 was enjoined on due
process grounds, President Trump issued EO-2—a measure that made
minor technical changes to EO-1, but preserved the ban on entry of
Campaign statements may not always evince intent, since candidates
sometimes pledge one thing and do another once elected. But here,
President Trump confirmed the discriminatory purpose of his travel
bans after taking office—and they have functioned exactly as he
promised when campaigning.
16

16

nationals from six of these seven countries.17 All the while, he
repeatedly confirmed that these Executive Orders spring from the same
discriminatory well as his campaign promise. He declared, for example,
that EO-2 was “a watered down version of the first one” and lamented
that “we ought to go back to the first one and go all the way.” JA 780.
After reviewing this and other evidence, this Court rightly concluded
that “[t]he evidence in the record, viewed from the standpoint of the
reasonable observer, creates a compelling case that EO-2’s primary
purpose is religious.” IRAP, 857 F.3d at 594.
The Proclamation is nothing more than a repackaged version of
the same discriminatory policy. As the district court noted, “the
underlying architecture of the prior Executive Orders and the
Proclamation is fundamentally the same.” JA 1067. Moreover, the
impact of the Proclamation again “closely aligns with religious
affiliation.” JA 1066. Indeed, of the eight countries whose citizens are
now banned, five are the same Muslim-majority countries that have
been banned from the beginning, and another Muslim-majority country,

17

Defendants omit EO-1 from their statement of facts.
17

Chad, has been added.
Adding fewer than 100 North Korean citizens, JA 1066, and
certain Venezuelan officials and their families, does not change this.
These additions are window dressing. They reflect entirely different
foreign policy concerns from those defendants claim as a basis for the
list of Muslim countries. North Korea is a rogue state, and Venezuela is
hostile to the United States. And even then, these restrictions are
nearly pointless. North Korean citizens do not emigrate in any event;
and only certain Venezuelan government officials and their families are
barred—private Venezuelan citizens are not. Indeed, defendants
themselves recognize that the Proclamation’s collection of countries
serves different interests. Trump Br. 11. Thus, these separate agenda
items cannot conceal the religious motivation for targeting the Muslim
countries. That the Proclamation also bars a small number of nonMuslims from the targeted Muslim countries likewise does not matter.
That makes its religious gerrymander imprecise and inefficient; it does
not make it constitutional. Overwhelmingly, the Proclamation operates
to exclude Muslims from entering the United States, precisely as
President Trump has long promised. Collateral damage to non18

Muslims is not evidence of a secular purpose.
Thus, a reasonable observer would conclude that the Proclamation
shares the same primary purpose as its predecessors: discrimination
against adherents of Islam.
2.

The asserted national security rationale for
the Proclamation is, at best, secondary.

It is of no moment that the Proclamation professes a national
security purpose, or that it lacks an explicit religious preference.
“Official action that targets religious conduct for distinctive treatment
cannot be shielded by mere compliance with the requirement of facial
neutrality.” Lukumi, 508 U.S. at 534. Instead, it is “the duty of the
courts” to distinguish a “sincere” secular purpose from one that is a
“sham,” or that is “secondary” to a “predominately religious” purpose.
McCreary, 545 U.S. at 862.
The Proclamation’s asserted national security interests are
suspect. The observation the Ninth Circuit made in reviewing EO-1—
that there is “no evidence that any alien from any of the countries
named in the Order has perpetrated a terrorist attack in the United
States,” Washington v. Trump, 847 F.3d 1151, 1168 (9th Cir. 2017)—

19

remains true with respect to the countries targeted by the
Proclamation. Nor is there a legitimate concern that individuals from
those countries present a heightened risk of perpetrating such an attack
in the future; to the contrary, numerous former national security
officials have attested that there is no national security rationale for
these measures against the targeted Muslim-majority countries. JA
879-85, 892-903. Although defendants now argue that the Proclamation
is the independent product of DHS Review, Trump Br. 8-10, 40, 48-49,
the district court found that the evidence indicates that this outcome
“was at least partially pre-ordained,” JA 1068. Moreover, the
information-sharing deficiencies the Proclamation identifies do not
establish the need for “the specific response of an unprecedented,
sweeping nationality-based travel ban against majority-Muslim
nations.” JA 1072.
Thus, a reasonable observer would conclude that national security
considerations are secondary to President Trump’s stated purpose to
discriminate against Muslims.

20

3.

The Proclamation does not cure the serious
Establishment Clause violations of the
Executive Orders.

DHS Review and the Proclamation’s modifications to EO-2 are
also insufficient because “the Government’s cure must be made ‘as
persuasively as the initial’ violation.” JA 1075 (quoting Felix v. City of
Bloomfield, 841 F.3d 848 (10th Cir. 2016)). McCreary rejected the
argument that the two defendant counties remedied their earlier
Establishment Clause violation by modifying their courthouse displays
of the Ten Commandments to add certain historical documents, such as
the Declaration of Independence. The Court declined to limit its focus
to only “the last in a series of governmental actions, however close they
may all be in time and subject.” 545 U.S. at 866. Noting that the
counties had failed to repudiate their earlier resolutions endorsing the
religious message of the displays, id. at 871-72, the Court concluded
that a reasonable observer would not “swallow the claim that the
Counties had cast off the objective so unmistakable in the earlier
displays,” id. at 872.
As in McCreary, the Administration’s remedial efforts fall far
short when assessed in light of the egregious Establishment Clause
21

violations of the Executive Orders. Those Orders barred entry of
millions of members of what is a religious minority in this country—and
that action was closely tied to explicit statements of animus towards
that religious group. See generally IRAP, 857 F.3d at 572 (concluding
that EO-2 “drips with religious intolerance, animus, and
discrimination”). This frontal assault on the Establishment Clause
came from the President himself. It was the focus of extensive
nationwide attention, and applied nationwide.
The Proclamation is weak medicine for the serious harm wrought
by the EOs. For example, the President has failed to make any “public
statements showing any change in [his] intentions relating to a Muslim
ban.” JA 1073. Rather, as the district court found, the Proclamation
“doubles down on” the Orders’ fundamental approach. JA 1068.
As important, defendants seem to misunderstand what is needed
to break with the past. Merely offering new justifications, even if they
are non-discriminatory, for past actions that were driven by
discriminatory animus does not suffice. That is why adding nonreligious documents to a religious display did not cure the violation in
McCreary. Just so here—adding two non-Muslim countries to a Muslim
22

ban does not change or even obscure the ban’s purpose. That purpose
was set at the outset and remains the purpose today.
Accordingly, the district court properly found that defendants
failed to purge the taint of the prior Establishment Clause violations.
B.

The Proclamation Unlawfully Discriminates Based
On National Origin.

Defendants’ claim that the Proclamation is not a religious ban at
all but one based on national origin does not save it. To the contrary,
the discrimination based on national origin violates the Immigration
and Nationality Act of 1965 (“INA”). “During most of its history, the
United States openly discriminated against individuals on the basis of
race and national origin in its immigration laws.” Olsen v. Albright,
990 F. Supp. 31, 37 (D.D.C. 1997). But, as President Kennedy noted,
“the national origins quota system ha[d] strong overtones of an
indefensible racial preference.” John F. Kennedy, A Nation of
Immigrants 45 (Harper rev. ed 2008). Accordingly, “[t]hroughout the
latter half of the Twentieth Century, Congress moved away from such
discriminatory policies. The most profound change was the [INA],”
which “eliminated discrimination on the basis of race and national

23

origin.” Olsen, 990 F. Supp. at 37; see also 1965 U.S.C.C.A.N. 3328,
3328 (quoting S. Rep. No. 89-748) (principal purpose of INA was “to
repeal the national origin quota provisions of the [INA], and to
substitute a new system for the selection of immigrants to the United
States”). The INA could not be more clear: “no person shall receive any
preference or priority or be discriminated against in the issuance of an
immigrant visa because of the person’s race, sex, nationality, place of
birth, or place of residence.” 8 U.S.C. § 1152(a)(1)(A). Moreover, “[t]he
legislative history surrounding the [INA] is replete with the bold antidiscriminatory principles of the Civil Rights Era. Indeed, the [INA] was
passed alongside the Civil Rights Act of 1964 and the Voting Rights Act
of 1965.” Olsen, 990 F. Supp. at 37. The Proclamation directly violates
section 1152(a).
To be sure, the President has broad authority over the entry of
aliens generally under 8 U.S.C. § 1182(f). But for a number of reasons,
section 1182(f) does not permit the Proclamation’s discrimination.
First, section 1182(f) authorizes the President to “suspend” the
entry of aliens under certain circumstances. “The word ‘suspend’
connotes a temporary deferral.” Hoffman ex rel. NLRB v. Beer Drivers
24

& Salesmen’s Local Union No. 888, 536 F.2d 1268, 1277 (9th Cir. 1976).
Unlike the prior EOs, however, “the Proclamation has effectively
imposed a permanent, rather than temporary, ban on immigrants from
the Designated Countries.” JA 1038. Thus, section 1182(f) does not
apply.
In any event, defendants’ reliance on section 1182(f) fails because,
as the Ninth Circuit recognized in its ruling on EO-2, “§ 1152(a)(1)(A)’s
non-discrimination mandate cabins the President’s authority under §
1182(f).” Hawaii v. Trump, 859 F.3d 741, 779 (9th Cir.), cert. granted,
judgment vacated as moot, No. 16-1540 (U.S. Oct. 24, 2017), and
vacated and dismissed as moot, No. 17-15589 (9th Cir. Nov. 2, 2017).
Section 1152(a)’s prohibition on discrimination was enacted after
section 1182(f) and is properly understood as a limitation on the
authority granted under section 1182(f) to suspend entry. “[T]he
meaning of one statute may be affected by other Acts, particularly
where Congress has spoken subsequently and more specifically to the
topic at hand.” FDA v. Brown & Williamson Tobacco Corp., 529 U.S.

25

120, 133 (2000).18 Thus, although section 1182(f) grants the President
authority to suspend entry of a class of immigrants whose entry “would
be detrimental to the interests of the United States,” section 1152
declares Congress’s determination that it is not in the national interest
to discriminate based upon national origin. This reading also construes
these provisions “as a symmetrical and coherent regulatory scheme,”
Gustafson v. Alloyd Co., 513 U.S. 561, 569 (1995), and “fit[s] all parts
into an harmonious whole,” FTC v. Mandel Brothers, Inc., 359 U.S. 385,
389 (1959). By contrast, to read section 1182(f) as though section
1152(a) did not exist is inconsistent with settled rules of statutory
construction and should be rejected. E.g., Astoria Fed. Sav. & Loan
Ass’n v. Solimino, 501 U.S. 104, 112 (1991) (“[W]e construe statutes,
where possible, so as to avoid rendering superfluous any parts

Defendants argue that section 1185(a)(1) should prevail as the more
recent provision because it was amended after the enactment of section
1152(a). Trump Br. 38. That claim should be rejected. The
amendment of section 1185(a)(1) did not address the specific subject of
discrimination based on nationality in the issuance of an immigrant
visa. “It is a basic principle of statutory construction that a statute
dealing with a narrow, precise, and specific subject is not submerged by
a later enacted statute covering a more generalized spectrum.”
Radzanower v. Touche Ross & Co., 426 U.S. 148, 153 (1976).
18

26

thereof.”). Because section 1182(f) is constrained by section 1152(a),
section 1182(f) no more empowers the President to discriminate on
national origin than it allows him to suspend immigration by women.19
In addition, section 1182(f) should be read in light of the grounds
for denial of admission for terrorist activity that are specifically set
forth in section 1182(a)(3)(B). That provision mandates an
individualized inquiry; it does not authorize blanket exclusion based
solely on the applicant’s nation of origin.
Even considering section 1182(f) in isolation, the Proclamation’s
exclusion of immigrants from the designated countries, solely because of
the happenstance of their birthplace, cannot stand. The plain language
The Court should reject defendants’ assertion that invoking section
1152(a) to limit the President’s authority under section 1182(f) raises
“serious constitutional concerns.” Trump Br. 34, 36. Defendants cite
U.S. ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 543 (1950), for the
proposition that rules concerning the admission of aliens draw on
“inherent executive power,” as well as legislation, Trump Br. 53,
ignoring the Court’s recognition in Knauff itself that “[n]ormally
Congress supplies the conditions of the privilege of entry into the
United States,” 338 U.S. at 543. As for defendants’ specter that the
President might sometime act on the “brink of war,” Trump Br.36, that
is not the situation here. In any event, the Supreme Court has
emphasized that even “a state of war is not a blank check for the
President.” Hamdi v. Rumsfeld, 542 U.S. 507, 536 (2004). See also
Korematsu v. United States, 584 F. Supp. 1406, 1410 (N.D. Cal. 1984).
19

27

of section 1182(f) requires a determination that the entry of aliens or a
class of aliens is “detrimental to the interests of the United States,” and
here it is simply not possible to say that every single person, or even a
majority of persons, born in the targeted countries presents a security
risk to the United States. Most obviously, this group includes people
who left their birthplace as infants or children, and perhaps had
parents who were not citizens of their children’s birthplace country.
These individuals could have lived nearly their entire lives in countries
that even defendants do not think present any risk to the United
States, and yet they are banned solely because of where they were born.
Even on immigration matters, discretion must be exercised “in a
reasoned manner.” Judulang v. Holder, 565 U.S. 42, 53 (2011). The
Proclamation’s classification based on national origin is not rational.
II.

THE BALANCE OF THE EQUITIES FAVORS AN
INJUNCTION.
Defendants have failed to establish that the district court abused

its discretion in concluding that plaintiffs would suffer irreparable harm
in the absence of a preliminary injunction. In contrast to the specific,
concrete harms that plaintiffs would sustain if the Proclamation were

28

not enjoined, defendants identify no actual irreparable harm from the
injunction. They rely upon the general proposition that the interests of
the public are impaired “by barring effectuation of a judgment of the
President,” Trump Br. 3, but the district court properly determined that
“Defendants are not directly harmed by a preliminary injunction
preventing them from enforcing a Proclamation likely to be found
unconstitutional,” JA 1077. Moreover, even with the injunction in
place, visa applicants from the targeted countries still will be screened
through the standard, individualized vetting process. JA 1078.
Accordingly, amici urge the Court to affirm the preliminary
injunction.

29

CONCLUSION
________
The district court’s preliminary injunction should be affirmed.
Respectfully submitted,
s/Benna Ruth Solomon
NICK KAHLON
Riley Safer Holmes & Cancila LLP
Three First National Plaza
70 W. Madison Street, Suite 2900
Chicago, IL 60602
[phone]
[e-mail]
RYAN P. POSCABLO
BRIAN NEFF
ELIBERTY LOPEZ
Riley Safer Holmes & Cancila LLP
1330 Avenue of the Americas,
6th Floor
New York, NY 10019
[phone]
[e-mail]

EDWARD N. SISKEL
Corporation Counsel
of the City of Chicago
BENNA RUTH SOLOMON
Deputy Corporation Counsel
ANDREW W. WORSECK
Chief Assistant Corporation
Counsel
CARL NEWMAN
SARA K. HORNSTRA
JONATHON D. BYRER
Assistant Corporation Counsel
30 N. LaSalle Street, Suite 800
Chicago, IL 60602
[phone]
[e-mail]
Attorneys for Amicus Curiae,
City of Chicago

Attorneys for Amicus Curiae,
City of Chicago

30

CERTIFICATE OF SERVICE
I hereby certify that on November 17, 2017, I electronically filed
the foregoing Brief and Appendix of Chicago, Los Angeles, New York,
Philadelphia, and Other Cities and Counties joined by the U.S.
Conference of Mayors as Amici Curiae in Support of Plaintiffs with the
Clerk of the Court for the United States Court of Appeals for the Fourth
Circuit by using the appellate CM/ECF system.
Participants in the case who are registered CM/ECF users will be
served by the appellate CM/ECF system.
s/Benna Ruth Solomon
BENNA RUTH SOLOMON
Deputy Corporation Counsel
of the City of Chicago
30 N. LaSalle Street, Suite 800
Chicago, IL 60602
[phone]
[e-mail]

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