Intl. Refugee Assistance v. Donald J. Trump

Filing 104

AMICUS CURIAE BRIEF by Scholars of Immigration Law, Amici Curiae in electronic and paper format. Method of Filing Paper Copies: mail. Date Paper Copies Mailed, Dispatched, or Delivered to Court: 11/17/2017. [1000194750] [17-2231, 17-2232, 17-2233, 17-2240] Alan Schoenfeld [Entered: 11/17/2017 04:59 PM]

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

United States Court of Appeals
for the Fourth Circuit
INTERNATIONAL REFUGEE ASSISTANCE PROJECT, ET AL.,
Plaintiffs-Appellees,
IRANIAN ALLIANCES ACROSS BORDERS, ET AL.,
Plaintiffs-Appellees,
EBLAL ZAKZOK, ET AL.,
Plaintiffs-Appellees,
v.
DONALD J. TRUMP, ET AL.,
Defendants-Appellants.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND, SOUTHERN DIVISION

(8:17-CV-00361-TDC)
BRIEF FOR AMICI CURIAE SCHOLARS OF IMMIGRATION LAW
IN SUPPORT OF PLAINTIFFS-APPELLEES

PETER MARGULIES
ROGER WILLIAMS UNIVERSITY
SCHOOL OF LAW
10 Metacom Avenue
Bristol, RI 02809
[phone]

ALAN E. SCHOENFELD
SCOTT MCABEE
WILMER CUTLER PICKERING
HALE AND DORR LLP
250 Greenwich Street
7 World Trade Center
New York, NY 10007
[phone]

Counsel for Amici Curiae Scholars of Immigration Law

TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES .................................................................................... ii
INTEREST OF AMICI CURIAE .............................................................................. 1
SUMMARY OF ARGUMENT ................................................................................. 2
ARGUMENT ............................................................................................................. 3
I.

THE PROCLAMATION RESUSCITATES THE NATIONAL-ORIGIN
DISCRIMINATION CONGRESS SOUGHT TO BAR IN THE 1965
AMENDMENTS................................................................................................... 3
A.

The Proclamation Runs Afoul Of Congress’s Purposes
Behind The 1965 Amendments To The INA ........................................ 4
1.
2.

Remedying the substantial inefficiency the quota
system created in the legislative process .................................. 10

4.

II.

Prioritizing family reunification ................................................. 9

3.

B.

Eliminating the unfairness and discrimination
inherent in a quota system........................................................... 4

Addressing the foreign-policy implications of
American immigration law ....................................................... 13

The Proclamation Asserts The Kind Of Unbridled
Discretion That The 1965 Amendments Sought
Specifically To Constrain .................................................................... 17

THE PROCLAMATION’S INDEFINITE BAR IS AN IMPROPER
EXERCISE OF EXECUTIVE DISCRETION ........................................................... 19
A.

Congress Enacted § 1182(f) Against The Backdrop Of
Tailored Presidential Authority To Limit Entry ................................. 21

B.

The Proclamation Is Inconsistent With Past Invocations
Of § 1182(f) ......................................................................................... 24

CONCLUSION ........................................................................................................ 30
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE
-i-

TABLE OF AUTHORITIES
CASES
Page(s)
Benitez v. Wallis, 337 F.3d 1289 (11th Cir. 2003) .................................................. 26
FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000) ....................... 23
Haitian Centers Council v. Sale, 509 U.S. 155 (1993)............................................ 28
Kent v. Dulles, 357 U.S. 1 (1958) ............................................................................ 24
Kleindienst v. Mandel, 408 U.S. 753 (1972) ........................................................... 17
Korematsu v. United States, 323 U.S. 214 (1944) ................................................... 20
Narenji v. Civiletti, 617 F.2d 745 (D.C. Cir. 1979) ...........................................24, 25
Olsen v. Albright, 990 F. Supp. 31 (D.D.C. 1997) .................................................... 4
Regan v. Wald, 468 U.S. 222 (1984) ....................................................................... 26
Russello v. United States, 464 U.S. 16 (1983) ......................................................... 19
Sosa v. Alvarez-Machain, 542 U.S. 692 (2004)....................................................... 25
Zemel v. Rusk, 381 U.S. 1 (1965) ............................................................................ 26
DOCKETED CASES
Trump v. Hawaii, No. 16-1540 (U.S.) .................................................................... 21
STATUTES, RULES, AND REGULATIONS
8 U.S.C.
§ 1101(a)(27)(D)-(G) ....................................................................................... 8
§ 1151 .............................................................................................................. 9
§ 1152(a)(1)(A) .......................................................................................passim
§ 1153 .............................................................................................................. 9
§ 1182(a)(1)-(3) ............................................................................................. 28
§ 1182(a)(7)(A)(i)(I) ...................................................................................... 28
§ 1182(f) .................................................................................................passim
§ 1185(a)(1) .............................................................................................23, 24
- ii -

Travel Control Act and the Entry & Departure Control Act, Pub. L.
No. 65-154, 40 Stat. 559, 559 (1918) ............................................................ 21
Pub. L. No. 83-751, 68 Stat. 1044 (1954) ................................................................ 10
Act of September 26, 1961, Pub. L. No. 87-301, 75 Stat. 650 (1961) .................... 12
Pub. L. No. 82-414, § 215, 66 Stat. 190 (1952)....................................................... 23
Pub. L. No. 85-316, 71 Stat. 639 (1957) .................................................................. 10
Pub. L. No. 87-885, 76 Stat. 1247 (1962) ................................................................ 12
Alien Visa Act, Pub. L. No. 77-113, 55 Stat. 252 (1941)........................................ 22
Refugee Relief Act of 1953, Pub. L. No. 83-203, 67 Stat. 400 (1953) ................... 10
Pub. L. No. 89-236, 79 Stat. 911 (1965) .................................................................... 2
Federal Rule of Appellate Procedure 29 .................................................................... 1
6 Fed. Reg. 5929 (1941) .......................................................................................... 23
LEGISLATIVE MATERIALS
H.R. Doc. No. 84-329 (1956) .................................................................................. 11
H.R. Rep. No. 77-754 (1941) ................................................................................... 22
H.R. Rep. No. 86-582 (1959) ................................................................................... 11
S. Rep. No. 89-748 (1965) .....................................................................5, 8, 9, 10, 16
Immigration: Hearings on H.R. 7700 Before Subcommittee No. 1 of
the House Committee on the Judiciary, 88th Cong. (1964) ...................passim
87 Cong. Rec. 5286 (1941) ...................................................................................... 22
98 Cong. Rec. 8021 (1952) ..............................................................................4, 5, 13
EXECUTIVE MATERIALS
Message from the President Transmitting Recommendations Relative
to Our Immigration and Nationality Laws, H.R. Doc. No. 84329 (1956) ........................................................................................................ 6
iii

Message from the President Relative to Immigration Matters, H.R.
Doc. No. 85-85 (1957) ..................................................................................... 5
Message from the President Relative to Urging the Liberalization of
Some of Our Existing Restrictions upon Immigration, H.R.
Doc. No. 86-360 (1960) .............................................................................6, 13
President Jimmy Carter, Sanctions Against Iran Remarks Announcing
U.S. Actions (Apr. 7, 1980), available at http://www.presidency.
ucsb.edu/ws/?pid=33233 ............................................................................... 25
President John F. Kennedy, Letter to the President of the Senate and
to the Speaker of the House on Revision of the Immigration
Laws (July 23, 1963), available at http://www.presidency.ucsb.
edu/ws/index.php?pid=9355 ................................................................7, 14, 16
President Lyndon B. Johnson, Annual Message to the Congress on the
State of the Union (Jan. 8, 1964), available at http://www.presi
dency.ucsb.edu/ws/?pid=26787 ....................................................................... 7
President Ronald Reagan, Proclamation 5517: Suspension of Cuban
Immigration (Aug. 22, 1986), available at http://www.presiden
cy.ucsb.edu/ws/?pid=37775........................................................................... 25
Proclamation No. 1473 (1918), available at http://www.presidency.
ucsb.edu/ws/index.php?pid=117715 ............................................................. 21
Proclamation No. 3292, in H.R. Rep. No. 86-1433 (1960) ....................................... 6
Proclamation No. 4865 (1981), avaliable at http://www.presidency.
ucsb.edu/ws/index.php?pid=44316 ............................................................... 28
OTHER AUTHORITIES
Auerbach, Frank L., Immigration Legislation, 1959, Department of
State Bulletin (Oct. 26, 1959) ........................................................................ 11
Bier, David, Travel Ban is Based on Executive Whim, Not Objective
Criteria, Cato at Liberty (Oct. 9, 2017), availabla at https://
www.cato.org/blog/travel-ban-based-executive-whim-notobjective-criteria ............................................................................................ 27

iv

Cox, Adam B. & Cristina M. Rodríguez, The President and
Immigration Law, 119 Yale L.J. 458 (2009) ................................................. 29
Congressional Research Service, U.S. Immigration Law and Policy:
1952-1979 (1979), reprinted in 3 Immigr. & Nat’lity L. Rev. 95
(1980) .........................................................................................5, 6, 10, 11, 12
Maddux, Thomas R., Ronald Reagan and the Task Force on
Immigration, 74 Pac. Hist. Rev. 195 (2005).................................................. 26
Manuel, Kate M., Congressional Research Service, Executive
Authority to Exclude Aliens: In Brief (Jan. 23, 2017), available
at https://fas.org/sgp/crs/homesec/R44743.pdf ............................................. 29
Margulies, Peter, Bans, Borders, and Sovereignty: Judicial Review of
Immigration Law in the Trump Administration, __ Mich. St. L.
Rev. __ (forthcoming 2018), available at http://ssrn.com/
abstract=3029655............................................................................................. 9
Weinraub, Bernard, U.S. and Cuba Gain an Accord on Repatriation,
N.Y. Times, Dec. 15, 1984, at A1, available at http://www.
nytimes.com/1984/12/15/world/us-and-cuba-gain-an-accordon-repatriation.html .................................................................................26, 27

v

INTEREST OF AMICI CURIAE1
Amici curiae are law professors who teach and publish scholarship about
United States immigration law. They accordingly have an abiding interest in the
proper interpretation and administration of the Nation’s immigration laws, in
particular the Immigration and Nationality Act. Amici are:2
Richard Boswell, University of California, Hastings College of the Law
Gabriel J. Chin, University of California, Davis School of Law
Marisa S. Cianciarulo, Dale E. Fowler School of Law, Chapman University
Maryellen Fullerton, Brooklyn Law School
Pratheepan Gulasekaram, Santa Clara University
Alan Hyde, Rutgers Law School
Daniel Kanstroom, Boston College Law School
Stephen Legomsky, Washington University School of Law
Matthew Lindsay, University of Baltimore School of Law
Peter Margulies, Roger Williams University School of Law

1

Amici submit this brief pursuant to Federal Rule of Appellate Procedure
29(a)(2) and state that all parties have consented to its timely filing. Amici further
state, pursuant to Federal Rule of Appellate Procedure 29(a)(4)(E), that no counsel
for a party authored this brief in whole or in part, and no person other than the
amici curiae or their counsel made a monetary contribution intended to fund the
preparation or submission of this brief.
2

Institutional affiliations are listed for purposes of identification only.
-1-

Michael A. Olivas, University of Houston Law Center
David Rubenstein, Washburn University School of Law
Bijal Shah, Arizona State University
Anita Sinha, American University, Washington College of Law
Shoba Wadhia, Penn State Law
SUMMARY OF ARGUMENT
By indefinitely suspending immigration from designated countries, President
Trump’s third iteration of his travel ban (the “Proclamation”) engages in precisely
the kind of discrimination that Congress prohibited in the landmark Immigration
and Nationality Act (“INA”) amendments of 1965 and runs roughshod over the
carefully calibrated system of checks and balances Congress sought to impose on
the President’s exercise of discretion in administering immigration law. See Pub.
L. No. 89-236, 79 Stat. 911 (1965). Prior to 1965, the INA supported a quota
system that limited visa issuance based on national origin and ancestry. Over time,
a political consensus formed that recognized that the quota system operated
inequitably and inefficiently and that it undermined the foreign affairs objectives of
the United States. Congress remedied these ills by abolishing the quota system in
the 1965 amendments and by prohibiting discrimination on the basis of nationality
in the issuance of visas. See 8 U.S.C. § 1152(a)(1)(A) (the “Nondiscrimination

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Provision”). In furtherance of its goals, Congress also specifically sought to
constrain executive discretion in the allocation of visas.
Despite these amendments, the Government claims in this case that a
provision of the INA enacted in 1952, 8 U.S.C. § 1182(f) (the “Entry Provision”),
supports the Proclamation’s legality. The Government’s unchecked interpretation
of § 1182(f), however, discounts the 1965 amendments and incorrectly assumes
that § 1182(f) is an uncabined source of executive authority. Instead, § 1182(f)
authorizes executive action only on a temporary basis in emergency situations, not
for indefinite periods. And while the Government claims that its statutory
interpretation is consistent with past executive actions limiting immigration to the
United States, see Appellants’ Br. 31-32, the Proclamation in fact is unprecedented
in nature and asserts executive authority far beyond the bounds of § 1182(f).
ARGUMENT
I.

THE PROCLAMATION RESUSCITATES THE NATIONAL-ORIGIN
DISCRIMINATION CONGRESS SOUGHT TO BAR IN THE 1965 AMENDMENTS
As Plaintiffs have explained, there are powerful textual and structural

arguments why the President’s authority under § 1182(f) is cabined by the
Nondiscrimination Provision, which prohibits any executive action that would
discriminate against immigrants on the basis of national origin. Appellees’ Br. 2627. The history of the Nondiscrimination Provision further demonstrates that

-3-

Congress enacted the provision to narrow the power that it delegated to the
President under the INA.
A.

The Proclamation Runs Afoul Of Congress’s Purposes Behind
The 1965 Amendments To The INA

Congress amended the INA in 1965 to eliminate the quota system and bar
national-origin discrimination in immigration law. Congress had at least four goals
in mind when it amended the statute. The Proclamation frustrates each of those
objectives.
1.

Eliminating the unfairness and discrimination inherent in a
quota system

“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). Those laws were consolidated and
codified in the Immigration and Nationality Act of 1952, which preserved
preexisting quotas on immigration from particular countries. In his message
vetoing the Act, President Truman noted the regime’s abiding unfairness,
observing that “the present quota system … discriminates, deliberately and
intentionally, against many of the peoples of the world.” 98 Cong. Rec. 8021,
8083 (1952).
Truman singled out for particular opprobrium the quotas that suppressed
immigration by persons from Asia and of Asian ancestry. Until 1952, racial

-4-

restrictions in the immigration statute had barred naturalization of most Asian
noncitizens and suppressed immigration. See S. Rep. No. 89-748, at 14 (1965)
(“Senate Judiciary Report”). The 1952 statute, while eliminating race as an
absolute bar to immigration, subjected nationals from the Asia-Pacific triangle to
particularly narrow and rigid quotas. Id. A total of only 2,000 visas per year were
available to all countries in the entire region. Id. Moreover, the 1952 Act also
provided that the immigration to the U.S. of persons of Asian ancestry anywhere in
the world would count against the 2,000-person quota applicable to the AsiaPacific triangle. Id. In other words, persons of Asian descent who were nationals
of countries in other regions, such as Europe, Africa, the Caribbean, or Latin
America, were nonetheless subject to the quota’s parsimonious 2,000-person
quota. Truman denounced the impact of “this invidious discrimination” and
lamented the dissonance between the quota system and “our national ideals.” 98
Cong. Rec. at 8084-8085. Congress overrode Truman’s veto.
President Eisenhower reiterated his predecessor’s concerns, again observing
that the quota system “operate[d] inequitably,” Cong. Research Serv., U.S.
Immigration Law and Policy: 1952-1979, at 115 (1979) (quoting Message from the
President Relative to Immigration Matters, H.R. Doc. No. 85-85, at 1 (1957))

-5-

(“CRS Report”),3 and advising Congress that “the present national-origins method
of admitting aliens needs to be reexamined, and a new system adopted,” id. at 112
(quoting Message from the President Transmitting Recommendations Relative to
Our Immigration and Nationality Laws, H.R. Doc. No. 84-329, at 2 (1956)). In
1960, President Eisenhower noted that “[i]n the world of today our immigration
law badly needs revision.” Id. at 117 (quoting Message from the President
Relative to Urging the Liberalization of Some of Our Existing Restrictions upon
Immigration, H.R. Doc. No. 86-360, at 2 (1960) (“Liberalization Message”)).
Eisenhower urged a doubling in the number of immigrants granted admission
under the quotas then in effect, explaining that this would “moderate the features
of existing law which operate unfairly in certain areas of the world.”
Liberalization Message 2. Eisenhower also strongly recommended the elimination
of the ceiling of 2,000 annual immigrant visas from the Asia-Pacific Triangle. Id.
In addition, President Eisenhower proclaimed on May 19, 1959 a shortly ensuing
twelve-month period as “World Refugee Year as a practical means of securing
increased assistance for refugees throughout the world.” Proclamation No. 3292,
in H.R. Rep. No. 86-1433, at 4 (1960).

3

The report is reprinted at 3 Immigr. & Nat’lity L. Rev. 95 (1980).
-6-

By the early 1960s, the political branches’ consensus was that the nationalorigin quota system was “an anachronism … [that] discriminates among applicants
for admission into the United States on the basis of accident of birth.” Pres. John
F. Kennedy, Letter to the President of the Senate and to the Speaker of the House
on Revision of the Immigration Laws (July 23, 1963) (“Kennedy Letter”). In his
message to Congress in July 1963, President Kennedy highlighted the unfairness of
national-origin quotas in stressing the urgent need for their abolition. President
Kennedy noted that the national-origin quota system was “without basis in either
logic or reason.” Id. President Johnson was just as forthright in his State of the
Union message shortly after President Kennedy’s assassination. Echoing a wellknown passage from President Kennedy’s Inaugural Address, Johnson observed
that “a nation that was built by the immigrants of all lands can ask those who now
seek admission: ‘What can you do for our country?’ But we should not be asking:
‘In what country were you born?’” Annual Message to the Congress on the State
of the Union (Jan. 8, 1964).
Appearing before the House Judiciary Committee in 1964, Secretary of State
Dean Rusk cited Presidents Kennedy and Johnson in reiterating the quota system’s
unfairness. Secretary Rusk explained: “We in the United States have learned to
judge our fellow Americans on the basis of their ability, industry, intelligence,
integrity and all the other factors which truly determine … value to society. We do

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not reflect this judgment of our fellow citizens when we hold to immigration laws
which classify … according to national and geographical origin.” Immigration:
Hearings on H.R. 7700 Before Subcomm. No. 1 of the H. Comm. on the Judiciary,
88th Cong., at 386 (1964) (“Hearings on H.R. 7700”).4
The centerpiece of Congress’s efforts to address these concerns was the
Nondiscrimination Provision, which declares that no individual shall “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.” The exceptions to the
provision are surpassingly narrow. See, e.g., 8 U.S.C. § 1101(a)(27)(D)-(G). The
Nondiscrimination Provision accordingly reflects an abiding national commitment
to nondiscrimination on the basis of national origin in the administration of the
Nation’s immigration laws. That commitment was critical to effecting Congress’s
remaining purposes in removing the quota system.

4

Echoing Truman’s concern on the subject, the 1965 Senate Judiciary Report
stressed the particularly adverse impact of quota provisions governing the AsiaPacific triangle. The Report declared that in the future, there would be “no
differentiation” in the treatment of Asian immigrants. Senate Judiciary Report 15.
-8-

2.

Prioritizing family reunification

The 1965 amendments provided a detailed structure for immigrant
admissions that prioritized close family relationships.5 As the Senate Judiciary
Committee noted, the revisions to the statute included “a new system of allocation
based on a system of preferences which extends priorities … to close relatives of
U.S. citizens and [lawful permanent residents],” along with certain “members of
the professions, arts, or sciences,” whose skills or other attributes were needed in
the U.S. economy, and refugees. Senate Judiciary Report 11. The Committee
Report declared that “[r]eunification of families is to be the foremost
consideration.” Id. at 13.
The 1965 amendments decisively rejected the system of national-origin
quotas because the system lacked the “required degree of flexibility” to handle
such factors as “the reuniting of families.” Senate Judiciary Report 13. Because of
this flaw—and as discussed in further detail below—Congress repeatedly resorted
to “special legislation” to be appropriately “generous and sympathetic” to the
needs of families and others. Id. In sparing Congress from the need for this
continual recourse to special legislation, the Judiciary Committee pointedly praised

5

8 U.S.C. §§ 1151, 1153; cf. Margulies, Bans, Borders, and Sovereignty:
Judicial Review of Immigration Law in the Trump Administration, __ Mich. St. L.
Rev. __ (forthcoming 2018), available at http://ssrn.com/abstract=3029655.
-9-

the 1965 amendments’ replacement of the national-origin quota system with a
family-based visa program that was to be “fair, rational, humane, and in the
national interest.” Id.
3.

Remedying the substantial inefficiency the quota system
created in the legislative process

As noted, the United States’ commitment to family reunification was
complicated by the existence of the quota system. So too was the Nation’s
commitment to refugees and others who sought entry to the United States. As a
result, in the period between the 1952 Act and the 1965 amendments, Congress
repeatedly passed ad hoc legislation to admit relatives of U.S. citizens, refugees,
and others over and above the quotas. These recurring ad hoc efforts drained
legislative time, effort, and deliberation.
The Refugee Relief Act of 1953, Pub. L. No. 83-203, 67 Stat. 400 (1953),
amended by Pub. L. No. 83-751, 68 Stat. 1044 (1954), provided for admission
beyond the otherwise applicable quotas of a broad swath of foreign nationals,
including refugees, escapees from Communist countries, persons expelled from
such countries, and relatives of U.S. citizens. CRS Report 113.
In 1957, Congress, in a bill whose principal sponsor was then-Senator John
F. Kennedy, Pub. L. No. 85-316, 71 Stat. 639 (1957), enacted still more ad hoc
adjustments within the overall structure of the quota system. CRS Report 115.
First, the 1957 Act, as a temporary expedient to mitigate the harshness of the quota
- 10 -

system, provided that foreign national visa applicants on whose behalf petitions
had been filed by a “specified date” would qualify for visas without regard to the
quota system. Id. at 116. This relief, to a cohort of foreign nationals whose
admission would otherwise have been severely delayed by the quota system’s
operation, was the “first of a series” of ad hoc adjustments that Congress made to
provisions for such nationals. Id. Along the same lines, on September 22, 1959,
Congress again made ad hoc time-bound adjustments to certain petitions for
foreign nationals who were relatives of United States citizens in service of “the
recognized principle of avoiding separation of families.” Id. at 118 (quoting
Auerbach, Immigration Legislation, 1959, Department of State Bulletin 600 (Oct.
26, 1959) (quoting H.R. Rep. No. 86-582, at 2 (1959))).
Moreover, members of Congress compensated for the rigidity of nationalorigin quotas with what President Eisenhower, who strongly favored
comprehensive reform of the quota system, called an “avalanche … of private
bills.” H.R. Doc. No. 84-329, at 3 (1956). In the 85th Congress, fully “[t]wenty
percent of all legislation” stemmed from 4,364 private immigration bills providing
relief to 5,282 persons who would otherwise have been caught up in delays
attributable to the quota system. CRS Report 120. Because of Congress’s
persistence in fashioning continual ad hoc adjustments to the quota system through

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special and private legislation, less than half of the over 2.5 million immigrants
admitted between 1951 and 1960 entered under the quota system. Id.
This same exhausting regime of ad hoc adjustments continued through the
early 1960s. In the Act of September 26, 1961, Pub. L. No. 87-301, 75 Stat. 650
(1961), Congress again enacted a temporary program for the admission outside the
quota system of specified cohorts of foreign nationals. CRS Report 140. Since
certain visa categories were severely backlogged because of the quota system, the
1961 Act authorized temporary non-quota admission for a discrete cohort of
petitions. Id. at 141. Legislation passed in 1962 accomplished the same result. Id.
(citing Pub. L. No. 87-885, 76 Stat. 1247 (1962)). In overall terms, all of this
legislation “reflect[ed] a gradual shift in focus, at least on an ad hoc basis,” from
national-origin quotas to “values” such as the “reunification of families.” Id.
In crucial testimony before the House Judiciary Committee in 1964,
Secretary of State Rusk acknowledged the adverse impact that the quota system
had on the efficiency of the legislative process. Secretary Rusk put a diplomatic
spin on these extensive, iterative efforts, noting that Congress had repeatedly found
it “desirable” to pass “special laws” allowing admission outside the quota system.
Hearings on H.R. 7700, at 386. Secretary Rusk reminded Congress of the fitfully
spinning wheels caused by the need to regularly pass additional legislation, noting

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that from 1953 to 1962, only 34 percent of immigrants to the United States were
quota immigrants. Id.
4.

Addressing the foreign-policy implications of American
immigration law

In 1965, Congress explicitly recognized what presidents since Truman had
noted regarding the 1952 Act’s hardening of quotas: that the “quota system [was]
… unrealistic in the face of present world conditions … [and] a constant handicap
in the conduct of our foreign relations.” 98 Cong. Rec. at 8083. President Truman
urged Congress to abandon the quota system and enact a “decent policy of
immigration—a fitting instrument for our foreign policy and a true reflection of the
ideals we stand for, at home and abroad.” Id. Indeed, President Truman reiterated
his contention that the need for a replacement of the quota system was nothing
short of a national “emergency.” Id.
President Eisenhower was equally vocal in noting the foreign policy costs of
the quota system. Urging that Congress pass legislation that would result in
“[a]bandonment of the concept of race and ethnic classifications within our
population” and an increase in the number of immigrants allowed and of refugee
admissions, President Eisenhower noted that victims of persecution who at that
time had to wait long periods for admission “will become worthwhile citizens and
will keep this Nation strong and respected as a contributor of thought and ideals.”
Liberalization Message 2.
- 13 -

President Kennedy continued this emphasis on liberalizing or eliminating
quotas. In a July 1963 message to Congress, President Kennedy denied that the
quota system “satisfies a national need[] or accomplishes an international
purpose.” Kennedy Letter. Critiquing the quota system as counterproductive to
American interests, President Kennedy observed that “[o]ur investment in new
citizens has always been a valuable source of our strength.” Id.
In hearings before the House Judiciary Committee in 1964, Secretary of
State Rusk alluded to Presidents Kennedy and Johnson and added his own
assessment of the foreign policy reasons for abolishing the quota system. As
Secretary Rusk put it: “Since the end of World War II, the United States has been
placed in the role of critical leadership in a troubled and constantly changing
world. We are concerned to see that our immigration laws reflect our real
character and objectives. What other peoples think about us plays an important
role in the achievement of our foreign policies.” Hearings on H.R. 7700, at 386.
Secretary Rusk added that because America’s immigration laws are “the basis of
how we evaluate others around the world,” we can readily detect “their effect on
people abroad and consequently on our influence.” Id.
Speaking about the Asia-Pacific Triangle quota, Secretary Rusk was even
more pointed in his critique, observing that, “[t]here have been times in the past
when we have been accused of preoccupation with the peoples of the West to the

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neglect of Asian peoples in the Far East.” Hearings on H.R. 7700, at 386.
Secretary Rusk warned Congress that “the national origins system gives a measure
of support and credence to these observations.” Id. Responding to committee
members’ questions, Secretary Rusk further noted that perceptions of United States
discrimination in immigration policy were “picked up by people unfriendly to the
United States and made an issue” in other countries around the world, “caus[ing]
political disturbances in the good relations which we would hope to establish.” Id.
at 390. Rusk described this political blowback as a “matter of frequent discussion
… with foreign ministers of other countries.” Id. Summing up the tone and tenor
of discourse with foreign officials occasioned by the quota system, Rusk described
the quotas as creating an “unwholesome atmosphere.” Id. Secretary Rusk thus
echoed the calls of Presidents Eisenhower through Johnson for the quotas’ demise.
Faced with these concerns, the 1965 Congress chose to accept the political
branches’ shared view that the quota system undermined the foreign affairs
objectives of the United States. The 1965 amendments abolished the quota system
to permanently heal the wounds inflicted by our discriminatory policies.
*

*

*

The Proclamation, if allowed to take effect, would reopen these wounds. As
the foregoing discussion makes clear, Congress very specifically intended the
Nondiscrimination Provision to prohibit the formulation of immigration policy that

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turned on national origin. Congress identified particular ills attributable to the old
system and viewed the elimination of national-origin discrimination as critical to
remedying them. The ban, however, imposes an indeterminate bar on the entry of
immigrants from designated nations, thus reprising precisely the form of nationalorigin discrimination Congress eliminated in the 1965 amendments. It does so
without regard to the goal of family reunification, which Congress in 1965
declared was the “foremost consideration” in the allocation of visas. Senate
Judiciary Report 13. The Proclamation indefinitely delays reunification of close
relatives from listed countries with United States citizens and lawful permanent
residents, and it shifts the default position from the equitable visa allocation that
Congress envisioned in 1965 back to the nationality-based system that President
Kennedy declared to be an “anachronism” in 1963 and that Congress rejected in
1965. Kennedy Letter.
As was the case with the national-origin quota system, congressional efforts
to override or adjust the Proclamation would create a sustained spectacle of
legislative inefficiency. The recurring need to pass special legislation imposed
substantial costs on pre-1965 Congresses, requiring time, effort, and deliberation
that legislators could otherwise have devoted to other matters of public importance.
The point of the 1965 amendments was to “eliminate the need for th[e]se special
bills.” Hearings on H.R. 7700, at 421. But the Proclamation would redouble that

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need. Finally, the Proclamation risks precisely the adverse impact on foreign
relations that the 1965 amendments were meant to address. It singles out for
adverse treatment the citizens of nations located in critical parts of the world,
compromising the “good relations which we would hope to establish” with those
nations and their neighbors and defenders. Id. at 390.
In sum, the Proclamation undoes much of the work Congress accomplished
in the 1965 amendments, which were decades in the making. Nothing in the INA
gives the President the authority to so thoroughly undermine Congress’s
handiwork in a domain over which it has plenary power. See Kleindienst v.
Mandel, 408 U.S. 753, 766 (1972).
B.

The Proclamation Asserts The Kind Of Unbridled Discretion
That The 1965 Amendments Sought Specifically To Constrain

In enacting the 1965 amendments—including the Nondiscrimination
Provision—Congress sought specifically to constrain executive power. More to
the point, it sought specifically to prevent the President from making immigration
decisions based on national origin. Indeed, a review of the legislative history
reveals that members of Congress were gravely concerned with the executive’s
encroachment upon the legislature’s authority to regulate immigration. The Chair
of the House Immigration Subcommittee, Rep. Michael Feighan of Ohio,
repeatedly expressed his desire to cabin administrative discretion that might
perpetuate vestiges of the quota system.
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As originally drafted, the bill that reached Rep. Feighan’s subcommittee
provided for an Immigration Board that could recommend funneling visas in a
“quota reserve” to particular countries. See Hearings on H.R. 7700, at 387-388,
392 (testimony of Secretary of State Rusk). Representative Feighan resisted
leaving such discretion with the Executive Branch (either the presidential
administration or the proposed board), arguing that the best approach was to enact
comprehensive legislation. Id. at 392-393.
Skeptical about the proposed deference to executive discretion, Rep. Feighan
probed Secretary Rusk’s defense of the “Immigration Board” concept, inquiring
whether “Congress is inadequate for the task of establishing a clear and allinclusive immigration policy.” See Hearings on H.R. 7700, at 392. And Secretary
Rusk conceded that “[b]oth under the Constitution and under the practices of our
system of government, it is for the Congress to establish the basic policy and the
basic legislation” regarding immigration. Id.
Rep. Feighan also objected to the administration’s proposal of establishing
an Immigration Board due to the absence of “checks and balances” on
administrative discretion in the draft proposal of the bill. See Hearings on H.R.
7700, at 99. Because of the absence of such safeguards in the draft bill, Rep.
Feighan suggested that the Immigration Board would be “subject to all sorts of
charges as well as pressures, thus creating more problems than we already have.”

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Id. at 422. Rep. Feighan also resisted the proposal to lodge in the executive branch
“broad authority … to allocate quotas, to actually set preferences and priorities …
to admit 10 percent per country by Presidential determination, and similar
discretionary authority.” Id. at 423.
The President’s assertion of authority to promulgate the Proclamation,
regardless of its conflict with the Nondiscrimination Provision, runs roughshod
over Congress’s very clear intent to cabin executive discretion in the
administration of the immigration laws. As the evolution of the 1965 amendments
makes plain, the nondiscrimination mandate in 8 U.S.C. § 1152(a)(1)(A) ensured
that administrative discretion would not backslide to the discredited practices of
the quota system. See Russello v. United States, 464 U.S. 16, 23 (1983) (using the
“evolution of … statutory provisions” as evidence of congressional intent).
II.

THE PROCLAMATION’S INDEFINITE BAR IS AN IMPROPER EXERCISE OF
EXECUTIVE DISCRETION
In imposing a ban of indeterminate duration on the entry of immigrants from

particular countries, the Proclamation not only runs afoul of the Nondiscrimination
Provision, but it also breaches the very prescribed limitations of Section 1182(f),
the ban’s purported source of statutory authority. The Entry Provision allows the
President to act quickly and decisively when situations require an exigent response,
but it does not authorize actions of indefinite duration, which require a more

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substantial justification as they are more likely to interfere with the INA’s overall
plan—including the Nondiscrimination Provision.
The Government’s invocation of § 1182(f) to justify the Proclamation’s
indefinite alteration of Congress’s reticulated immigration scheme lacks a coherent
limiting principle. Extended to the “limit of its logic,” Korematsu v. United States,
323 U.S. 214, 246 (1944) (Jackson, J., dissenting) (quotation marks omitted), the
government’s reading would render superfluous the Nondiscrimination Provision.
It would also strain the entire structure of visa allocation that Congress sought to
erect in 1965 and in subsequent amendments to the INA. Fortified merely by a
thin claim that admission of immigrants from countries X, Y, and Z would be
“detrimental to the interests of the United States,” 8 U.S.C. § 1182(f), the President
would be able to sweep aside Congress’s commitment to a uniform system of percountry visa allocation and its prohibition on discrimination in the issuance of
immigrant visas. The result would be a de facto return to the national-origin-based
system that Congress decisively rejected in 1965 and to the broad discretion that
Congress sought to combat by insisting on the Nondiscrimination Provision.
Similarly, the government’s interpretation of § 1182(f) would undermine the
intricately constructed latticework of inadmissibility grounds that Congress has
enacted in § 1182 of the INA. Armed with an unchecked reading of § 1182(f), the
President could unilaterally add revisions of indefinite duration to § 1182’s list of

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inadmissibility grounds. Supplementing that list in exigent circumstances may be
permissible. However, an executive decree of an indefinite ban on otherwise
admissible individuals from several countries is not.
A.

Congress Enacted § 1182(f) Against The Backdrop Of Tailored
Presidential Authority To Limit Entry

The statutory pedigree of § 1182(f) illustrates its limited scope. See
generally Resp. Br. 31, Trump v. Hawaii, No. 16-1540 (U.S. filed Sept. 11, 2017).
Following the United States’ entry into World War I, President Wilson sought
authority to exclude persons “reasonably suspected of aiding Germany’s
purposes.” Proclamation No. 1473 (1918). In recognizing the need to limit the
entry and departure of immigrants during wartime, Congress empowered the
President to implement such limitations “if the President shall find that the public
safety requires.” Travel Control Act and the Entry & Departure Control Act, Pub.
L. No. 65-154, 40 Stat. 559, 559 (1918).
The legislation also contained provisions regarding authority to set rules
governing passports issued to Americans for travel abroad. Pub. L. No. 65-154,
§§ 1(b)-(g), 2. President Wilson issued a proclamation restricting entry and
departure of persons whose admission would be “prejudicial to the interests of the
United States,” including persons acting as German agents. Proclamation
No. 1473, § 2.

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The political branches’ activity during World War II reflected the same
tailored model. In the months before the Pearl Harbor attack and America’s entry
into World War II, President Roosevelt sought authority from Congress to limit
both departure and entry “whenever … the President shall deem that the interests
of the United States require it.” H.R. Rep. No. 77-754, at 1 (1941). This time,
Congress pushed back. Senator Robert Taft, presaging concerns about executive
discretion raised by Rep. Feighan almost twenty-five years later, cautioned that
codifying the broad language proposed by the White House would add “another
statute which would give the President unlimited power, under any circumstances,
to make the law of the United States and to prescribe the terms upon which any
person—any American or any other person—might leave the United States.” 87
Cong. Rec. 5286, 5326 (1941). Senator Taft warned about the prospect that the
“extreme” power granted to the President under the proposal would apply not only
during wartime, but also to “any time that war exists anywhere in the world and the
President desires to exercise the power.” Id. at 5386. Addressing Senator Taft’s
warning, Senator Van Nuys explained that the State Department had provided
assurances that the wartime authority granted to the President would be used only
to deter “subversive activities.” Id.
Congress enacted the bill with no material changes, see Alien Visa Act, Pub.
L. No. 77-113, 55 Stat. 252 (1941), and President Roosevelt tailored exercise of his

- 22 -

new statutory authority to persons suspected of working on behalf of hostile
foreign powers. See 6 Fed. Reg. 5929, 5931-5932 (1941) (deeming “prejudicial to
the interests of the United States” the entry of certain categories of persons,
including foreign nationals “affiliated with … a political organization associated
with or carrying out the policies of any foreign government opposed to the
measures adopted by the Government of the United States in the public interest,”
or who possessed “unauthorized secret information concerning … the national
defense of the United States,” or conducted “activities designed to obstruct,
impede, retard, delay, or counteract the effectiveness of the measures adopted by
the Government of the United States for the defense of the United States or any
other country”).
Congress was aware of this backdrop when it enacted the Immigration and
Nationality Act of 1952. To provide authority in wartime and emergencies,
Congress enacted a precursor of 8 U.S.C. § 1185(a)(1), rendering it unlawful for a
foreign national to depart from or enter the United States in wartime except under
rules prescribed by the President. See Pub. L. No. 82-414, § 215, 66 Stat. 190
(1952). Congress also enacted the present § 1182(f) in 1952 as a supplement to
that wartime authority.
Reading these provisions as a “harmonious whole,” see FDA v. Brown &
Williamson Tobacco Corp., 529 U.S. 120, 133 (2000), Congress must be

- 23 -

understood to have authorized nothing more than the limited exigent authority
successfully sought by presidents Wilson and Roosevelt, see Kent v. Dulles, 357
U.S. 1, 130 (1958) (declining to hold that executive branch “has been silently
granted” a “larger, more pervasive power” to restrict travel). Indeed, it would have
been particularly odd to expand the President’s peacetime power beyond the power
that Congress had granted the President to address the exigencies of war.
B.

The Proclamation Is Inconsistent With Past Invocations Of
§ 1182(f)

Defenders of the Proclamation have pointed to purported historical
precedent to buttress the President’s claim to authority under § 1182(f). But none
of the cited precedents lends any credence to the government’s claim of authority
here. Rather, historical invocations of § 1182(f) demonstrate that past presidents
have used this authority to address discrete bilateral diplomatic disputes or control
the migration of persons who were already inadmissible under the INA. In marked
contrast to the tailored nature of these historical invocations, the Proclamation’s
indefinite ban sweeps far more broadly.
President Carter used authority under the INA6 in response to Iran’s illegal
seizure and imprisonment of U.S. diplomatic personnel in 1979. See Narenji v.
6

President Carter invoked authority under 8 U.S.C. § 1185(a)(1) to regulate
foreign nationals’ entry into and departure from the United States. In this case, the
government has treated authority under §§ 1185(a)(1) and 1182(f) as
interchangeable.
- 24 -

Civiletti, 617 F.2d 745, 747-748 (D.C. Cir. 1979). The measures taken by
President Carter to respond to this illegal act included requiring Iranian students in
the United States to report to a government office with updated information
showing compliance with the terms of their visas, id. at 746, and suspending
issuance of new immigrant visas to Iranian nationals, apart from those required for
humanitarian reasons, see Pres. Jimmy Carter, Sanctions Against Iran Remarks
Announcing U.S. Actions (Apr. 7, 1980).
In upholding the first measure, the D.C. Circuit cited the INA’s requirement
that student visa-holders maintain their nonimmigrant status and comply with
conditions pertinent to that status. Narenji, 617 F.2d at 747. The second measure,
suspending issuance of new immigrant visas apart from those issued on
humanitarian grounds, was a tailored response to the Iranian regime’s violation of
international law regarding protection of diplomats. Cf. Sosa v. Alvarez-Machain,
542 U.S. 692, 715 (2004) (describing “infringement of the rights of ambassadors”
as a core violation of international law that was universally acknowledged during
the days of the “early Republic”).
President Reagan’s invocation of § 1182(f) in 1986 to suspend immigration
from Cuba stemmed from a diplomatic dispute regarding inadmissible foreign
nationals. See Pres. Ronald Reagan, Proclamation 5517: Suspension of Cuban
Immigration (Aug. 22, 1986). President Reagan’s action was one salvo in an

- 25 -

extended dispute between the United States and Cuba with wide effects on
immigration and travel between the two countries. In a policy repeatedly upheld
by the Supreme Court, the United States had for a quarter-century limited travel of
U.S. nationals to Cuba, to deprive the Castro regime of resources for foreign
incursions that endangered U.S. interests. See Zemel v. Rusk, 381 U.S. 1, 12
(1965); Regan v. Wald, 468 U.S. 222 (1984). Cuba had contributed to this
longstanding dispute by alternating rigid control of immigration to the United
States with episodes, such as the Mariel Boatlift of 1980, in which Cuban officials
knowingly facilitated the migration to the United States of over 130,000 persons,
including individuals with criminal records or other conditions that rendered them
inadmissible. See Benitez v. Wallis, 337 F.3d 1289, 1290 n.1 (11th Cir. 2003),
rev’d & remanded on other grounds sub nom. Clark v. Suarez Martinez, 543 U.S.
371 (2005); Maddux, Ronald Reagan and the Task Force on Immigration, 74 Pac.
Hist. Rev. 195, 202 (2005).
President Reagan issued the 1986 proclamation in response to Cuba’s
repudiation of a 1984 agreement curbing this confounding pattern. In that
agreement, Cuba had committed itself to accept the return of almost 3,000 of its
nationals with known criminal records or other disqualifying conditions. See
Weinraub, U.S. and Cuba Gain an Accord on Repatriation, N.Y. Times, Dec. 15,
1984, at A1. To persuade Cuba to accept return of these individuals and exercise

- 26 -

future due diligence in its immigration policy, the Reagan Administration had
agreed to issue immigrant visas to an additional cohort of Cuban nationals who had
close relatives in the United States. Id. When Cuba reneged on the agreement,
President Reagan proclaimed that the United States would also return to the preagreement status quo. In taking this step, President Reagan hoped to exert some
leverage over Cuba to promote compliance with the 1984 agreement’s terms.
President Reagan’s action was both tailored and transactional, responding in
a measured way to a discrete problem with a single foreign state. This tailored
approach was entirely consistent with the INA’s overall scheme. In contrast, the
Proclamation’s indefinite ban is programmatic, not transactional. No country
subject to the ban has emulated Cuba by knowingly engineering the migration to
the United States of inadmissible foreign nationals. Indeed, with the exception of
Iran, the countries designated in the Proclamation cooperate with the United States
on immigration, while many countries not on the list do not cooperate with the
United States. See Bier, Travel Ban is Based on Executive Whim, Not Objective
Criteria, Cato at Liberty (Oct. 9, 2017). Far from responding to a particularly
exigent crisis, the Proclamation appears untethered to any emergent foreign policy
issue. Moreover, unlike President Reagan’s 1986 Proclamation, which targeted
only one country, the Proclamation is an indefinite ban on immigration from
several countries.

- 27 -

Deterrence of the “attempted mass migration” of inadmissible foreign
nationals played a role in another prominent use of § 1182(f) by President Reagan.
See Haitian Centers Council v. Sale, 509 U.S. 155, 187-188 (1993) (discussing
Proclamation 4865: High seas interdiction of illegal aliens (Sept. 29, 1981)).
Addressing efforts by thousands of Haitians who sought to escape political
oppression and economic privation by securing passage to the United States from
smugglers—often on unseaworthy vessels—President Reagan “suspended” the
entry of undocumented persons from the high seas and ordered the Coast Guard to
interdict vessels engaged in this activity. President Reagan’s proclamation did not
suspend the granting of visas to Haitian nationals or other persons. Any foreign
national with a close family relationship with a U.S. citizen or lawful permanent
resident could still apply for and receive a visa if she had a qualifying relationship
with a citizen or lawful permanent resident and did not fall within any of the INA’s
express exclusion grounds, such as those concerning health, criminal history, or
national security. See 8 U.S.C. § 1182(a)(1)-(3).
President Reagan’s proclamation, subsequently followed by Presidents
George H.W. Bush and Bill Clinton, applied only to persons who lacked a visa and
were therefore already inadmissible under 8 U.S.C. § 1182(a)(7)(A)(i)(I) (current
version) (providing that foreign national who applies for admission to the United
States without “valid unexpired immigrant visa … or other valid entry document”

- 28 -

is inadmissible).7 President Reagan’s order had no effect at all on the issuance of
immigrant visas in Haiti or elsewhere. The contrast is marked with the
Proclamation, which expressly restricts issuance of immigrant visas for nationals
of the countries named.
In sum, past practice under § 1182(f) and related statutory authority has been
limited to resolution of discrete bilateral diplomatic disputes or other exigent
matters such as the Iranian hostage crisis and efforts to deter or redress entry of
persons who were inadmissible under the INA. Cf. Manuel, Cong. Research Serv.,
Executive Authority to Exclude Aliens: In Brief, 7-12 (Jan. 23, 2017) (discussing
background and past practice regarding § 1182(f)). In contrast, a presidentially
decreed indefinite ban on otherwise admissible individuals from several countries
threatens Congress’s carefully wrought structure. It also defies the “checks and
balances” that Chairman Feighan and his fellow legislators sought to inscribe in
the INA. This Court should reject the government’s invitation to so undermine the
statutory scheme.

7

Under the procedure provided for in the proclamation, U.S. State
Department and immigration officials would interview foreign nationals
interdicted under the proclamation who alleged that they had a well-founded fear
of persecution if they were returned to their country of origin. Those who made
this showing were transported to the United States. Cox & Rodríguez, The
President and Immigration Law, 119 Yale L.J. 458, 495-496 (2009).
- 29 -

CONCLUSION
The district court’s order preliminarily enjoining the Proclamation should be
affirmed.
Respectfully submitted,
/s/ Alan E. Schoenfeld
ALAN E. SCHOENFELD
SCOTT MCABEE
WILMER CUTLER PICKERING
HALE AND DORR LLP
250 Greenwich Street
7 World Trade Center
New York, New York 10007
[phone]
PETER MARGULIES
ROGER WILLIAMS UNIVERSITY
SCHOOL OF LAW
10 Metacom Avenue
Bristol, RI 02809
[phone]
Counsel for Amici Curiae Scholars of
Immigration Law
November 17, 2017

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CERTIFICATE OF COMPLIANCE
I hereby certify that the foregoing complies with the type-volume limitation
established by Fed. R. App. P. 32(a)(7)(B), because it contains 6,439 words,
excluding the portions of the brief exempted by Fed. R. App. P. 32(f). I also
certify that this brief complies with the typeface requirements of Fed. R. App. P.
32(a)(5) and the type-style requirements of Fed. R. App. P. 32(a)(6) because this
brief has been prepared in a proportionally spaced typeface, 14-point Times New
Roman, using Microsoft Word 2016.

/s/ Alan E. Schoenfeld
ALAN E. SCHOENFELD
WILMER CUTLER PICKERING
HALE AND DORR LLP
250 Greenwich Street
7 World Trade Center
New York, New York 10007
[phone]
Counsel for Amicus Curiae Scholars
of Immigration Law
November 17, 2017

CERTIFICATE OF SERVICE
I, Alan E. Schoenfeld, hereby certify that on this 17th day of November,
2017, I served true and correct copies of the foregoing on all counsel of record via
ECF.
/s/ Alan E. Schoenfeld
ALAN E. SCHOENFELD