Intl. Refugee Assistance v. Donald J. Trump

Filing 107

AMICUS CURIAE BRIEF by Professors of Federal Courts Jurisprudence, Constitutional Law, and Immigration Law in electronic and paper format. Method of Filing Paper Copies: mail. Date Paper Copies Mailed, Dispatched, or Delivered to Court: 11/17/2017. [1000194761] [17-2231, 17-2232, 17-2233, 17-2240] Meir Feder [Entered: 11/17/2017 05:44 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, et al.,
Plaintiffs-Appellees,
IRANIAN ALLIANCES ACROSS BORDERS, et al.,
Plaintiffs-Appellees,
EBLAL ZAKZOK, et al.,

Plaintiffs-Appellees,

v.
DONALD J. TRUMP, in his official capacity as
President of the United States, et al.,
Defendants-Appellants.
__________________________________________________________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF MARYLAND, SOUTHERN DIVISION (NO. 8:17-CV-00361-TDC)
__________________________________________________________________
BRIEF OF AMICI CURIAE PROFESSORS OF FEDERAL COURTS
JURISPRUDENCE, CONSTITUTIONAL LAW, AND IMMIGRATION
LAW IN SUPPORT OF PLAINTIFFS-APPELLEES
__________________________________________________________________
CATHERINE Y. KIM
MEIR FEDER
New York, NY
RASHA GERGES SHIELDS
JONES DAY
JUDITH RESNIK
250 Vesey Street
New York, NY 10281-1047
New Haven, CT
Telephone: [phone]
Facsimile: [phone]
BURT NEUBORNE
Email: [e-mail]
New York, NY
LUCAS GUTTENTAG
Palo Alto, CA

Counsel for Amici Curiae

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

THE GOVERNING LEGAL FRAMEWORK ..............................................5

II.

SECTION 1182(F) DOES NOT GRANT THE PRESIDENT
UNFETTERED DISCRETION TO EXCLUDE NONCITIZENS ................ 9

III.

THE GENERAL TENOR OF IMMIGRATION LEGISLATION IS
CONTRARY TO THE PROCLAMATION ................................................19
A.

B.

In 1965, Congress Expressly Prohibited the Use of Nationality
in the Issuance of Immigrant Visas ....................................................22

C.

IV.

Congress Historically Used Nationality Categorically To
Exclude Noncitizens ...........................................................................20

Congress Has Repeatedly Required That Entry Decisions Be
Based on Assessment of Non-Invidious Criteria ...............................24

THE PROCLAMATION IS NOT AUTHORIZED UNDER THE
YOUNGSTOWN FRAMEWORK ................................................................27

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

i

TABLE OF AUTHORITIES
Cases

Page

Bank Markazi v. Peterson,
136 S. Ct. 1310 (2017) ..............................................................................8, 18, 28
Chae Chan Ping v. United States,
130 U.S. 581 (1889) ............................................................................................11
Dames & Moore v. Regan,
453 U.S. 654 (1981) .....................................................................................passim
Gulf Oil Co. v. Bernard,
452 U.S. 89 (1981) ........................................................................................ 18-19
Hamdan v. Rumsfeld,
548 U.S. 557 (2006) ..................................................................................4, 11, 12
Harisiades v. Shaughnessy,
342 U.S. 580 (1952) ............................................................................................11
Jean v. Nelson,
472 U.S. 846 (1985) ......................................................................................12, 13
Kerry v. Din,
135 S. Ct. 2128 (2015) ........................................................................................29
Knauff v. Shaughnessy,
338 U.S. 537 (1950) ............................................................................................28
Marbury v. Madison,
1 Cranch 137 (1803) .............................................................................................4
Morton v. Mancari,
417 U.S. 535 (1974) ............................................................................................26

ii

TABLE OF AUTHORITIES
(continued)

Page(s)

Sale v. Haitian Centers Council, Inc.,
509 U.S. 155 (1993) ............................................................................................23
United States v. Curtiss-Wright Export Corp.,
299 U.S. 304 (1936) ......................................................................................11, 19
Youngstown Sheet & Tube Co. v. Sawyer,
343 U.S. 579 (1952) .....................................................................................passim
Zadvydas v. Davis,
533 U.S. 678 (2001) ..............................................................................................9
Zivotofsky v. Kerry,
135 S. Ct. 2076 (2015) ..........................................................................................4
STATUTES
3 U.S.C. § 301 ..........................................................................................................10
8 U.S.C. § 1152(a) ............................................................................................passim
8 U.S.C. § 1182(3)(B) ..............................................................................................25
8 U.S.C. § 1182(f) .............................................................................................passim
8 U.S.C. § 1185(a)(1) ...................................................................................10, 14, 15
8 U.S.C. § 1187 ........................................................................................................16
22 U.S.C. § 1732 ......................................................................................................13
Act of April 27, 1904, Chapter 1630, 33 Stat. 428 (1904) ......................................20
Act of February 5, 1917, Chapter 29, § 3, 39 Stat. 874 (1917) ...............................21

iii

TABLE OF AUTHORITIES
(continued)

Page(s)

Anti-Terrorism and Effective Death Penalty Act of 1996, Pub. L. 104132, 110 Stat. 1214, § 302 (1996) ......................................................................18
Anti-Terrorism and Effective Death Penalty Act § 411 ..........................................24
Chinese Exclusion Act of 1882, Chapter 126, 22 Stat. 58 (1882) ...........................20
Geary Act of 1892, Chapter 60, 27 Stat. 25 (1892) .................................................20
Haitian Refugee Immigration Fairness Act of 1998, Pub. L. 105-277,
112 Stat. 2681 .....................................................................................................25
Hart-Celler Act .........................................................................................................22
Hostage Act of 1868 ............................................................................................8, 13
International Emergency Economic Powers Act ....................................................... 8
Illegal Immigration Reform and Immigrant Responsibility Act of
1996, Pub. L. 104-208, 110 Stat. 3009 §§ 342, 346 .....................................24, 25
Immigration Act of 1924, Chapter 190, § 13, 43 Stat. 153, 161–62
(1924) ..................................................................................................................21
Immigration and Nationality Act ......................................................................passim
Immigration and Nationality Act §§ 215(a)(1), 243(h) .....................................10, 23
International Emergency Economic Powers Act ....................................................... 8
Nicaraguan Adjustment and Central American Relief Act of 1997,
Pub. L. 105-100, 111 Stat. 2160 .........................................................................25
Pub. L. 89-236, 79 Stat. 911, § 2 (1965)..................................................................23

iv

TABLE OF AUTHORITIES
(continued)

Page(s)

Pub. L. No. 89-236, § 202, § 2(a), 79 Stat. 911–912 (1965) ...................................22
REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231, § 103
(2005) ..................................................................................................................18
Scott Act of 1888, Chapter 1064, 25 Stat. 504 (1888) ............................................20
USA PATRIOT Act, Pub. L. No. 107-56, 115 Stat. 272, § 411 (2001) ..................18
FEDERAL REGULATIONS
46 Fed. Reg. 48017 (Oct. 1, 1981) ..........................................................................15
50 Fed. Reg. 41329 (Oct. 10, 1985) ........................................................................15
51 Fed. Reg. 30470 (Aug. 26, 1986)........................................................................16
64 Fed. Reg. 62561 (Nov. 19, 1999)........................................................................15
67 Fed. Reg. 8857 (Feb. 26, 2002) .........................................................................15
76 Fed. Reg. 49277 (Aug. 9, 2011) .........................................................................15
82 Fed. Reg. 45,161 (Sept. 27, 2017) ........................................................................ 1
82 Fed. Reg. 8977 ......................................................................................................1
82 Fed. Reg. 13209 ....................................................................................................1
LEGISLATIVE MATERIALS
70 Cong. Rec. 3526 (1929) ......................................................................................21
111 Cong. Rec. 686 (Jan. 15, 1965).........................................................................22

v

TABLE OF AUTHORITIES
(continued)

Page(s)

H. R. Rep. 45-62, 3 (1879).......................................................................................20
H. R. Rep. 68-350, 13-14 .........................................................................................21
H. R. Rep. 68-350 (1924).........................................................................................21
H.R. Report 82-1365 at 5‒6 .....................................................................................10
OTHER AUTHORITIES
Colum. L. Rev. 1833, 1885 (1993) ..........................................................................20
Curtis A. Bradley & Trevor W. Morrison, Historical Gloss and the
Separation of Powers, 126 Harv. L. Rev. 411, 449 (2012) ................................19
Hearings on S. 500 Before the Subcomm. on Immigration &
Naturalization, 89 Cong. 4 (1965) ......................................................................22
Jimmy Carter, “Sanctions Against Iran Remarks Announcing U.S.
Actions” (Apr. 7, 1980) ......................................................................................15

vi

INTEREST OF AMICI CURIAE1
Amici curiae are academics whose expertise includes the jurisprudence of
federal courts, constitutional law, and/or immigration law. Amici submit this brief
to explain why, given constitutional commitments to separation of powers, the
President lacked authority to issue the directive set forth in section 2 of Presidential
Proclamation 9645 (the “Proclamation”) barring immigration to the United States
by nationals of seven countries—as well as the issuance of various categories of
non-immigrant visas—solely on the basis of nationality. 82 Fed. Reg. 45,161
(Sept. 27, 2017).
SUMMARY OF ARGUMENT
The Proclamation eliminates immigrant visas from a designated list of
countries (five of which are majority-Muslim countries targeted in both of the
President’s previous Executive Orders, see 82 Fed. Reg. 8977, 82 Fed. Reg.
13209)—and denies various categories of non-immigrant visas—solely on the
basis of nationality, on the premise that all of the affected nationals present
heightened risks to national security. Youngstown Sheet & Tube Co. v. Sawyer,
343 U.S. 579 (1952), is central to evaluating the validity of this executive action to

The parties have consented to the filing of this brief. No party, or counsel
for a party, played a role in the drafting or preparation of this brief; nor did any
person other than amici provide financial support in connection with the
preparation and filing of this brief. A list of amici may be found at Appendix A.
1

1

assess whether it complies with established separation-of-powers principles. The
Youngstown framework, and its subsequent application in Dames & Moore v.
Regan, 453 U.S. 654 (1981), requires analysis of what Congress has authorized,
what it has prohibited, and the “general tenor” of congressional immigration
legislation. As we explain below, the Proclamation is not authorized by statute and
contravenes express and implied congressional mandates; and the President lacks
the independent and exclusive authority to supplant congressional authority over
immigration.
Contrary to the President’s assertion, the Immigration and Nationality Act
(“INA”) does not delegate plenary authority to the Executive to act invidiously by
invoking nationality as the sole basis for excluding millions of people from the
United States. Reading section 212(f), codified at 8 U.S.C. § 1182(f) (hereinafter
§ 1182(f)), as authorizing such unfettered discretion is at odds with the provision’s
historical interpretation and usage and cannot be reconciled with the broader
statutory context within which it operates. Moreover, the President’s broad
reading of § 1182(f) would raise concerns that Congress has abdicated its own
constitutional role in setting immigration policy.
Section 1182(f) itself does not sustain the Proclamation, and must be read in
the context of the INA as a whole, which has articulated a detailed scheme for

2

immigration and imposed rules governing how decisions about migrants are to be
made. In 1965, Congress, troubled by the historic abuse of nationality as a stalking
horse for racial, ethnic, and religious intolerance, banned its use in the issuance of
immigrant visas. See 8 U.S.C. § 1152(a). In the half century since, Congress has
repeatedly insisted on the use of specific nondiscriminatory criteria when
excluding entrants to the United States as purported threats to safety and security.
The Proclamation, like the two Executive Orders preceding it, employs
nationality as a stand-in for the propensity to undermine Americans’ safety. This
action by the President to resurrect the use of nationality as a sole basis to ban
entry into the United States contravenes the congressional rejection of such
historically-discredited tests for entry. In these circumstances, under separation-ofpowers principles, the President’s power is at or near its “lowest ebb” and is valid
only if the President possesses independent and exclusive constitutional powers
that preclude Congress “from acting upon the subject.” Youngstown, 343 U.S. at
637‒38 (Jackson, J., concurring). Because the President has no such constitutional
power over immigration, the Proclamation cannot be sustained.
ARGUMENT
Throughout the Nation’s history, our courts have played a foundational role
in delineating and enforcing constitutional limits on the authority of the other

3

branches of government. See, e.g., Youngstown, 343 U.S. 579 (holding
unconstitutional an executive order that “legislated” the seizure of the nation’s
steel mills); Marbury v. Madison, 1 Cranch 137 (1803) (holding that courts possess
power to review actions by even the highest officers of the government).
When seeking to avoid judicial review, the Executive branch has often
argued its prerogatives in the areas of national security, foreign affairs, citizenship,
or immigration. Repeatedly, courts have concluded that such labels do not bar
adjudication. See, e.g., Hamdan v. Rumsfeld, 548 U.S. 557 (2006)
(notwithstanding Commander-in-Chief powers and an existing exigency,
Executive lacked authority to convene the military commission at issue). See also
Dames & Moore v. Regan, 453 U.S. 654, 678 (1981) (evaluating Executive action
to settle claims against a foreign nation against the “general tenor” of
congressional legislation). As the Supreme Court has explained, “[t]he Executive
is not free from the ordinary controls and checks of Congress merely because
foreign affairs are at issue.” Zivotofsky v. Kerry, 135 S. Ct. 2076, 2090 (2015).
Here, the President’s claimed basis for authorization must be scrutinized in
the context of Congress’s other, more specific actions dealing with the same
general subject. As explained below, the President’s use of nationality as a proxy
for the individualized determination of risks to security—and to bar entry to

4

millions of individuals on that basis alone—not only lacks specific statutory
authorization, but contravenes both express and implicit congressional directives.
I.

THE GOVERNING LEGAL FRAMEWORK
“The President’s power, if any, to issue [an] order must stem either from an

act of Congress or from the Constitution itself.” Youngstown, 343 U.S. at 585.
Youngstown provides the framework for assessing the validity of the Proclamation
in this case. As the Court explained, the President’s power must be analyzed
initially in light of relevant legislation. See id. at 585‒86.
Youngstown invalidated an executive order directing a temporary
government seizure of the nation’s steel mills to avoid a strike that could have
halted steel production during the Korean War. 2 Despite the threat to the lives of
American service members if steel production ceased, the Court struck down the
seizure order as an unconstitutional exercise of unilateral presidential power. The
Court found that it was “not only unauthorized by any congressional enactment,”
but also effectively legislated policy that Congress had specifically rejected. Id. at

At the time Youngstown was decided, American armed forces had been
fighting in Korea for “almost two full years . . . suffering casualties of over
108,000 men,” and hostilities had not abated. Youngstown, 343 U.S. at 668
(Vinson, C.J., dissenting).
2

5

586.3 The Court further held that the President’s constitutionally derived power
could not authorize the seizure order. Id. at 587. At bottom, the Court deemed the
power “to take possession of private property to keep labor disputes from stopping
production ... [to be] a job for the Nation’s lawmakers, not for its military
authorities.” Id.
In his concurrence, Justice Jackson set forth what has become an important
tripartite framework to evaluate the legality of presidential action. He described
exercises of presidential power as typically falling within one of three categories:
1.
When the President acts pursuant to an express or implied
authorization of Congress, his authority is at its maximum, for it
includes all that he possesses in his own right plus all that Congress can
delegate. [hereinafter “Category 1”]
2.
When the President acts in absence of either a congressional
grant or denial of authority, he can only rely upon his own independent
powers, but there is a zone of twilight in which he and Congress may
have concurrent authority, or in which its distribution is uncertain.
Therefore, congressional inertia, indifference or quiescence may
sometimes, at least as a practical matter, enable, if not invite, measures
on independent presidential responsibility. [hereinafter “Category 2”]
3.
When the President takes measures incompatible with the
expressed or implied will of Congress, his power is at its lowest ebb,
for then he can rely only upon his own constitutional powers . . . . Courts
can sustain exclusive Presidential control in such as case only by
disabling the Congress from acting upon the subject. [hereinafter
“Category 3”]

Five years prior, Congress had considered—and rejected—enacting a law
that would have authorized such governmental seizures in cases of emergency.
Youngstown, 343 U.S. at 586.
3

6

Id. at 635-38 (Jackson, J., concurring).
Justice Jackson concluded that the seizure order fell in Category 3 because
no statute explicitly authorized it, and Congress had enacted detailed procedures
for the seizure of property that were inconsistent with the President’s order. Id. at
639. Accordingly, the order could be sustained only if the seizure was “within [the
President’s] domain and beyond control by Congress.” Id. at 640. Justice Jackson
rejected each of the President’s asserted bases for such “conclusive and preclusive”
constitutional authority. Id. at 638, 640-46.
Thirty years later, in Dames & Moore, the Supreme Court returned to the
Youngstown categories. In evaluating three executive orders implementing an
agreement to secure the release of U.S. hostages in Iran, the Court recognized that
“executive action in any particular instance falls, not neatly in one of three
pigeonholes, but rather at some point along a spectrum running from explicit
congressional authorization to explicit congressional prohibition.” Dames &
Moore, 453 U.S. at 669.
The Supreme Court held that the first two executive orders were specifically
authorized by the International Emergency Economic Powers Act (“IEEPA”) and
thus fell within Youngstown’s Category 1. Id. at 670‒74. With respect to the third
order, suspending pending claims against Iranian interests, however, the Court

7

ruled that neither the IEEPA nor the so-called Hostage Act of 1868 provided
statutory authority for this executive action. “Although the broad language of the
Hostage Act suggests it may [have] cover[ed] this case,” the Court recognized that
the Act was passed in response to a non-analogous situation, and was therefore
“somewhat ambiguous” as to whether Congress contemplated the presidential
action at issue. Id. at 675‒77.
Given this ambiguity, the Court looked to two factors: (a) the “general tenor
of Congress’s legislation in this area” and (b) the long and unbroken history of
claims settlement through Executive Agreement. Id. at 678‒80. Based on these
factors, the Court concluded that Congress had acquiesced in the President’s
exercise of authority to settle claims against foreign powers. Id. The Court
emphasized the “narrowness” of its decision, id. at 688, and subsequently indicated
that its approach was not intended to “be construed as license of the broad exercise
of unilateral executive power.” Bank Markazi v. Peterson, 136 S. Ct. 1310, 1328
& n.28 (2017).
Under Youngstown and Dames & Moore, § 1182(f)’s facially broad
language cannot sustain the Proclamation’s categorical and permanent bar, solely
on the basis of nationality, to the entry of millions of immigrants and nonimmigrants who would otherwise qualify for admission. Neither of the factors

8

present in Dames & Moore, suggesting congressional “acquiescence” to the
President’s exercise of unilateral authority, is present in this case. Indeed, other
“legislation in this area,” Dames & Moore, 453 U.S. at 678, demonstrates
Congress’s affirmative opposition to the use of nationality in determining
eligibility for entry and its opposition to substituting categorical proxies for
“dangerousness” in place of an individualized assessment. Because the President
lacks any “conclusive and preclusive” constitutional power to override this
congressional intent, Youngstown, 343 U.S. at 638 (Jackson, J., concurring), the
Proclamation was not authorized.
II.

SECTION 1182(F) DOES NOT GRANT THE PRESIDENT
UNFETTERED DISCRETION TO EXCLUDE NONCITIZENS
As Youngstown and Dames & Moore illustrate, careful analysis of specific

statutes is essential to evaluating the lawfulness of Executive action. The President
asserts that 8 U.S.C. § 1182(f) provides authorization for the Proclamation.
Section 1182(f) provides:
Whenever the President finds that the entry of any aliens or of any class
of aliens into the United States would be detrimental to the interests of
the United States, he may by proclamation, and for such period as he
shall deem necessary, suspend the entry of all aliens or any class of
aliens as immigrants or nonimmigrants, or impose on the entry of aliens
any restrictions he may deem to be appropriate.

9

8 U.S.C. § 1182(f).4
Although the President claims that this language delegates unfettered
discretion to exclude whole “class[es] of aliens” based on any criteria whatsoever,
canons of statutory construction as well as the statute’s interpretive history counsel
against such an expansive reading. The House Report recommending the bill that
would enact § 1182(f) began with a lengthy affirmance of the power of Congress
to control immigration, see H.R. Report 82-1365 at 5‒6, a principle derived
directly from the Constitution, which vests Congress with authority to “establish an
uniform Rule of Naturalization” and to regulate or prohibit the “Migration” of
persons. U.S. Const., art. I, s. 8,9. 5 The Migration Clause, notwithstanding its
sorry history aimed at protecting the slave trade from immediate interference,
provides the governing constitutional framework: after the stipulated twenty-year

The Proclamation cites two additional provisions: section 215(a)(1) of the
INA, which provides: “Unless otherwise ordered by the President, it shall be
unlawful … for any alien to depart from or enter or attempt to depart from or enter
the United States except under such reasonable rules, regulations, and orders, and
subject to such limitations and exceptions as the President may prescribe,” 8
U.S.C. § 1185(a)(1), and 3 U.S.C. § 301, which allows the President to delegate his
authority to others within the Executive branch. Neither provision adds to the
President’s substantive authority.
4

Article I, Section 9 prohibits Congress, for a period of twenty years, from
prohibiting “[t]he Migration or Importation of such Persons as any of the States
now existing shall think proper to admit.”
5

10

hiatus, it was for Congress to decide on the “Migration … of … Persons.”6 This
area is thus unlike others in which the constitutional scheme may contemplate a
primary role for Executive power. Cf. United States v. Curtiss-Wright Export
Corp., 299 U.S. 304, 312 (1936).
Given congressional power, the question becomes understanding what
Congress has delegated. This case is one of many in which a potentially broad
authorization from Congress has to be read to reflect basic separation-of-powers
principles and to avoid constitutional questions about the limits of delegation. In
Hamdan, 548 U.S. 557, the Supreme Court concluded that the Joint Resolution for
the Authorization for Use of Military Force (AUMF), enacted by Congress
immediately after the September 11 terrorist attacks, while capacious, did not
authorize the use of military commissions to try suspected terrorists. The AUMF
delegates to the President power to “‘use all necessary and appropriate force
against those nations, organizations, or persons he determined planned, authorized,
committed, or aided the terrorist attacks … in order to prevent any future acts of
international terrorism against the United States by such nations, organizations or

The Supreme Court has identified other sources for Congress’s power to
regulate immigration, including the Commerce Clause, war powers, and powers
inherent in sovereignty. See generally, e.g., Chae Chan Ping v. United States, 130
U.S. 581 (1889); Harisiades v. Shaughnessy, 342 U.S. 580 (1952).
6

11

persons.’” Id. at 568 (quoting AUMF, 115 Stat. 224). The President invoked this
authority to provide for trial by military commission for any individual suspected
of membership in al Qaeda or participation in terrorist acts against the United
States. Id. at 568. The Court concluded that “there is nothing in the text or
legislative history of the AUMF even hinting that Congress intended to expand or
alter Article 21 of the” Uniform Code of Military Justice. Id. at 594. Even in the
context of a direct response to domestic terrorist attacks, the Supreme Court did
not approve the claim of unfettered authority to convene military commissions to
try noncitizens.
Similarly, Jean v. Nelson, 472 U.S. 846 (1985), shows that a broad statutory
delegation of immigration discretion to the Executive does not confer limitless
power to engage in discrimination. There, the Eleventh Circuit had concluded that
a statute granting the Attorney General discretion to “parole into the United States
any … alien applying for admission ‘under such conditions as he may prescribe,’”
authorized parole decisions on the basis of race or national origin, and was
consistent with the Constitution. Id. at 848, 852 (quoting 8 U.S.C.
§ 1182(d)(5)(A)). The Supreme Court declined to endorse this view, concluding
that the statute and its implementing regulations prohibited such discrimination, id.

12

at 854‒56, despite the absence of statutory language expressly prohibiting
nationality-based distinctions, see id. at 862‒63 (Marshall, J., dissenting).
In Dames & Moore, which upon review of the Executive action found it was
within congressional authorization, the Court was unwilling to read a broadly
worded statute without also considering the context of other relevant statutes and
past practices. In particular, the Court analyzed the Hostage Act of 1868, which
provided that whenever a U.S. citizen was unjustly held by a foreign government,
“if the release … is unreasonably delayed or refused, the President shall use such
means, not amounting to acts of war and not otherwise prohibited by law, as he
may think necessary and proper to obtain or effectuate the release.” 22 U.S.C.
§ 1732 (emphasis added). While recognizing this “broad language,” the Court
declined to construe it as authorizing the President’s suspension of pending claims
against foreign nations. The Court noted that the issue prompting the 1868
legislation involved not foreign powers interested in trading hostages back, but
rather foreign powers seeking to repatriate American citizens. See Dames &
Moore at 676-77. The Court then turned to the legislative history, which it found
“somewhat ambiguous.” Id. at 677. It was only after finding (1) “a longstanding
practice of settling such claims by executive agreement,” and (2) that Congress had
enacted specific procedures to implement Executive Agreements of this kind, that

13

the Court concluded that Congress had “placed its stamp of approval” on such
actions. Id. at 679-80.
The Proclamation here benefits from no such “stamp of approval.” Unlike
in Dames & Moore, there is no evidence that Congress assumed, much less
endorsed, unlimited executive power to exclude noncitizens on the basis of
nationality. No President has ever issued an order akin to the Proclamation—
eliminating any possible inference that Congress has “acquiesced” in such a
practice. Rather, past presidential actions suggest an understanding of meaningful
limits to this power. A Congressional Research Service Report identified 43
instances between 1981 and 2017 where the president invoked § 1182(f) to
suspend the entry of noncitizens. See Kate Manuel, Cong. Research Serv.,
R44743, Executive Authority to Exclude Aliens: In Brief (Jan. 23, 2017). In one
additional instance, the President relied on § 1185(a)(1) rather than § 1182(f) to
justify suspending entry of a class of noncitizens. 7
On no occasion has a President used nationality alone to impute
individualized characteristics to bar noncitizens’ entry into the United States. In
the vast majority of instances, the Executive barred noncitizens who engaged in a

As discussed below, President Carter relied on § 1185(a) to “prescribe
limitations and exceptions” on the entry of Iranians.
7

14

particular course of conduct. See, e.g., Proclamation No. 8697, 76 Fed. Reg.
49277 (Aug. 9, 2011) (individuals who participate in serious human rights
violations); Proclamation No. 4865, 46 Fed. Reg. 48017 (Oct. 1, 1981)
(noncitizens who approach the United States by sea without documentation).
A number of instances target individuals from particular nations based on
specific conduct or affiliations. See Exec. Order No. 13687, 80 Fed. Reg. 819 (Jan.
6, 2015) (officials of the North Korean government or the Workers’ Party of
Korea); Proclamation No. 7524, 67 Fed. Reg. 8857 (Feb. 26, 2002) (individuals
who threaten Zimbabwe’s democratic institutions); Proclamation No. 7249, 64
Fed. Reg. 62561 (Nov. 19, 1999) (individuals responsible for repression of civilian
population in Kosovo); Proclamation No. 5377, 50 Fed. Reg. 41329 (Oct. 10,
1985) (nonimmigrant officers or employees of the Government of Cuba or the
Communist Party of Cuba).
The President has suspended entry without regard to individualized conduct
on only two occasions. During the Iran hostage crisis, President Carter invoked
§ 1185(a)(1) to deny entry to Iranian nationals. Exec. Order No. 12172, 44 Fed.
Reg. 67947 (Nov. 26, 1979); Exec. Order 12206, 45 Fed. Reg. 24101 (Apr. 7,
1980); see also Jimmy Carter, “Sanctions Against Iran Remarks Announcing U.S.
Actions” (Apr. 7, 1980). Then, in response to the Cuba’s decision to suspend

15

execution of a bilateral immigration agreement with the U.S., President Reagan, in
August 1986, suspended the entry of Cuban nationals under certain types of
immigrant visas. Proclamation No. 5517, 51 Fed. Reg. 30470 (Aug. 26, 1986). 8
Both instances were considerably narrower than the instant case, which imposes a
potentially permanent bar to the entry of millions of individuals from eight
countries. Moreover, in neither instance did the Executive’s actions impute
individualized characteristics—such as dangerousness or criminality—on the basis
of nationality. Nationality was instead used to sanction a country for hostile acts
towards the United States during a discrete foreign policy crisis. 9 As such, they
qualitatively differ from the Proclamation.
In an attempt to avoid suggesting that the covered non-citizens are presumed
dangerous solely because of their nationalities, the Proclamation states that these
individuals all hail from countries with “deficient . . . identity-management and
information-sharing capabilities, protocols, and practices.” Proclamation 9645,

The exclusion of Cubans applied only to those immigrant entrants who did
not enter as “immediate relatives under Section 201(b)” or “as preference
immigrant under Section 203(a).” Proclamation No. 5517, 51 Fed. Reg. 30470
(Aug. 26, 1986).
8

The President has, through Executive Orders, identified specific
nationalities in another context—to determine (and to potentially relax) the level of
scrutiny to be applied to visa applicants—but those actions are explicitly
authorized by Congress. See 8 U.S.C. § 1187.
9

16

preamble. The Government’s brief similarly proffers this purported justification.
See Gov’t Br. at 32-34. But this rationale is hard to take seriously. The
Proclamation targets five of the six countries targeted by the two prior, similar
Executive Orders—both of which made clear that they selected nationalities based
on a presumed heightened risk of terror. Iran, Libya, Somalia, Syria, and Yemen
are targeted in all three orders, and the Proclamation adds only Chad (another
Muslim-majority nation) and North Korea (from which there is no appreciable
immigration) as subject to categorical exclusion based on nationality.
No prior precedents support this Proclamation. The two isolated instances
the Government cites—the response to the Iran hostage crisis and Cuba’s
suspension of a bilateral agreement with the U.S.—do not establish the type of
“systematic, unbroken, executive practice, long pursued to the knowledge of the
Congress and never before questioned” that was deemed sufficient to infer
congressional acquiescence in Dames & Moore. 453 U.S. at 686 (quoting
Youngstown, 343 U.S. at 610-11).
The present case is, thus, the inverse of Dames & Moore. There, the
President asserted authority in an area in which the Executive had long exercised
the power, and Congress had repeatedly acquiesced to such exercises. Here, by
contrast, the President asserts broader authority than any president before him—in

17

essence, the type of “license for the broad exercise of unilateral executive power”
that the Supreme Court forbade. Bank Markazi, 136 S. Ct. at 1328 & n.28.
Nor does the “general tenor” of legislation in the immigration arena suggest
congressional approval of the President’s actions. See Dames & Moore, 453 U.S.
at 678-79. Rather, Congress has enacted a complex statutory scheme that suggests
just the opposite: Contrary to the Proclamation, denials of entry must be based on
more individualized evaluations of dangerousness rather than the blanket
assumption that certain nationalities are per se dangerous. See, e.g., AntiTerrorism and Effective Death Penalty Act of 1996, Pub. L. 104-132, 110 Stat.
1214, § 302 (1996); USA PATRIOT Act, Pub. L. No. 107-56, 115 Stat. 272, § 411
(2001); REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231, § 103 (2005).
As FDA v. Brown & Williamson Tobacco Corp. put it, “[i]t is a ‘fundamental
canon of statutory construction that the words of a statute must be read in their
context and with a view to their place in the overall statutory scheme.’” 529 U.S.
120, 132 (2000) (quoting Davis v. Michigan Dept. of Treasury, 489 U.S. 803, 809
(1989)).10 Amici now turn to these other provisions of the INA.

Given that § 1182(f), properly construed, does not allow unfettered
executive discretion to engage in invidious nationality-based discrimination, see
supra § II, this Court need not address whether the President’s sweeping view of §
1182(f) would make Congress’s delegation to the Executive invalid. See, e.g., Gulf
10

18

III.

THE GENERAL TENOR OF IMMIGRATION LEGISLATION IS
CONTRARY TO THE PROCLAMATION
A review of the history of immigration law is required to understand how the

“general tenor” of congressional legislation changed during the last century. By
the time § 1182(f) was enacted in 1952, Congress had already begun to eschew the
use of nationality as a proxy for racial, ethnic, and religious intolerance in entry
determinations. And legislation enacted after 1952 evinces Congress’s repudiation
of the use of nationality as the sole basis to exclude persons based on generalized
fears of terrorism. 11 Thereafter, in 1965, Congress enacted an explicit ban on the
use of nationality to discriminate against persons seeking immigrant visas. And in
other legislation, Congress has repeatedly demonstrated a commitment to relying
on individualized assessments—rather than discredited stereotypes—to determine
admissibility.
Oil Co. v. Bernard, 452 U.S. 89, 99 (1981) (“Prior to reaching any constitutional
questions, federal courts must consider nonconstitutional grounds for decision.”);
cf. United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 312 (1936)
(rejecting non-delegation challenge where President acted pursuant to a specific,
limited authorization from Congress to prohibit “the sale of arms and munitions of
war in the United States to those countries now engaged in armed conflict in the
Chaco”).
Given “the institutional and other barriers to the passage of legislation,”
affirmative acts by Congress rejecting a particular course of presidential conduct
“should be given very heavy interpretive weight.” Curtis A. Bradley & Trevor W.
Morrison, Historical Gloss and the Separation of Powers, 126 Harv. L. Rev. 411,
449 (2012).
11

19

A.

Congress Historically Used Nationality Categorically To Exclude
Noncitizens

Our Nation’s immigration policies once routinely relied on notions of racial
and cultural inferiority and religious prejudice to exclude certain nationalities as
threats to our safety and stability. It was not until the mid-twentieth century that
Congress, recognizing the frequency with which nationality and national origin had
historically been employed as the basis for invidious discrimination based on race,
religion, and ethnicity, prohibited the use of such classifications.
A brief recap of this history is helpful here. Beginning after the Civil War,
Congress relied expressly on nationality to restrict the entry of noncitizens
perceived as threats to national security and American identity. 12 Congress enacted
a series of laws targeting and ultimately prohibiting virtually all Chinese
immigration. See, e.g., Chinese Exclusion Act of 1882, ch. 126, 22 Stat. 58
(1882); Scott Act of 1888, ch. 1064, 25 Stat. 504 (1888); Geary Act of 1892, ch.
60, 27 Stat. 25 (1892); Act of April 27, 1904, ch. 1630, 33 Stat. 428 (1904).13 In
1917, Congress created the “Asiatic Barred Zone,” excluding noncitizens from a
Prior to the Civil War, states regulated the entry of noncitizens. See
generally Gerald L. Neuman, The Lost Century of American Immigration Law
(1776-1875), 93 Colum. L. Rev. 1833, 1885 (1993).
12

Proponents of these measures frequently invoked national security
rationales, characterizing the Chinese as “a standing menace to the social and
political institutions of the country.” H. R. Rep. 45-62, 3 (1879).
13

20

vast swathe of the globe from Saudi Arabia to the Polynesian islands. See Act of
February 5, 1917, ch. 29, § 3, 39 Stat. 874 (1917). In 1924, Congress imposed an
even broader prohibition on the immigration of noncitizens who were not “free
white persons,” “aliens of African nativity, . . . [or] persons of African descent.”
See Immigration Act of 1924, Ch. 190, § 13, 43 Stat. 153, 161–62 (1924); H. R.
Rep. 68-350 at 6 (1924) (internal quotation marks omitted).
Noncitizens who were not categorically excluded on these racial grounds
remained subject to strict national-origin quotas that favored immigrants from
northern and western Europe. Id. These restrictions were understood to be aimed
“principally at two peoples, the Italians and the Jews.” 70 Cong. Rec. 3526 (1929).
During this time, national origin served as a proxy for undesirable groups
perceived to “reproduce more rapidly on a lower standard of living” and “unduly
charge our institutions for the care of the socially inadequate.” H. R. Rep. 68-350,
13-14. The goal was to “preserve, as nearly as possible, the racial status quo in the
United States.” Id. at 16. These measures were described as necessary to national
survival: “If therefore, the principle of individual liberty, guarded by a
constitutional government created on this continent nearly a century and a half ago,
is to endure, the basic strain of our population must be maintained.” Id. at 13.

21

B.

In 1965, Congress Expressly Prohibited the Use of Nationality in
the Issuance of Immigrant Visas

In 1965, Congress enacted the Hart-Celler Act, amending the Immigration
and Nationality Act by abandoning the national-origin quota system and instead
imposing a uniform per-country limit of 20,000 immigrant visas for all countries
outside the western hemisphere. See Pub. L. No. 89-236, sec. 202, § 2(a), 79 Stat.
911–912 (1965).
An overarching goal of the 1965 Act was to ensure that exclusions would be
based on individualized determinations, not blanket stereotypes about race and
country of origin. Senator Philip Hart, one of the chief sponsors of the bill,
explained the rejection of the national-origins quota system: “[I]it is impossible to
defend and it is offensive to anyone with a sense of the right of an individual to be
judged as a good or a bad person, not from which side of the tracks he comes.”
Hearings on S. 500 Before the Subcomm. on Immigration & Naturalization, 89
Cong. 4 (1965). President Johnson described the system as “incompatible with our
basic American tradition…. The fundamental, longtime American attitude has been
to ask not where a person comes from but what are his personal qualities.” See 111
Cong. Rec. 686 (Jan. 15, 1965). Thereafter, when he signed the bill, the President
made plain its commitments: “This bill says simply that from this day forth those
wishing to immigrate to America shall be admitted on the basis of their skills and

22

their close relationship with those already here.” Lyndon B. Johnson, Remarks at
the Signing of the Immigration Bill (Oct. 3, 1965).
In addition, the 1965 Act expressly ruled out the use of nationality—as well
as race, sex, place of birth, and place of residence—in the issuance of long-term
immigrant visas. Pub. L. 89-236, 79 Stat. 911, sec. 2 (1965). Section 1152(a)
provides, in relevant part, that except to enforce the uniform per-country visa
allocation: “[N]o 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).
Congress intended this prohibition on discrimination to be applied broadly.
Unlike other provisions of the INA, § 1152(a) restrains the entire executive branch,
including the President. Cf. Sale v. Haitian Centers Council, Inc., 509 U.S. 155,
172 (1993) (concluding that § 243(h) of the INA constrains the Attorney General
but not the President). Congress enumerated limited exceptions to the bar on using
nationality to deny immigrant visas, relating to enforcement of the uniform cap on
immigrant visas for all countries; the President’s exercise of § 1182(f) power is
notably absent from that list of exceptions.

23

C.

Congress Has Repeatedly Required That Entry Decisions Be
Based on Assessment of Non-Invidious Criteria

In addition to the express language of § 1152(a) prohibiting discrimination
against noncitizens seeking entry as permanent residents, the historical arc of our
Nation’s immigration laws and the overall structure of the INA demonstrate
congressional intent to preclude the use of invidious stereotypes for non-immigrant
temporary entrants as well.
Beginning in the 1940s with the repeal of the Chinese Exclusion Acts,
Congress has jettisoned nationality-based bars to entry in favor of individualized
assessments for undesirable traits. Since the 1965 legislation, it has repeatedly
affirmed the need for individualized assessment to determine whether a given
noncitizen—immigrant or a non-immigrant—should be excluded as a national
security risk. See, e.g., Anti-Terrorism and Effective Death Penalty Act § 411
(expanding grounds for excluding noncitizens affiliated with terrorist
organizations); Illegal Immigration Reform and Immigrant Responsibility Act of
1996 (IIRIRA), Pub. L. 104-208, 110 Stat. 3009 § 342; USA PATRIOT Act § 411
(2001) (expanding definition of terrorist activity for purposes of exclusion); REAL
ID Act § 103 (same). Thus, individuals may be excluded because, for example,
they are “a member of a terrorist organization”—unless “the alien can
demonstrate” that he or she “did not know, and should not reasonably have known,

24

that the organization was a terrorist organization”—or because they are “the spouse
or child of an alien who is inadmissible” on this basis, unless the spouse or child
did not know of or has renounced the terrorist activity. 8 U.S.C. § 1182(3)(B).
Similarly, with immigration issues unrelated to terrorism, Congress has also
eschewed the use of nationality as a basis for exclusion. See generally IIRIRA
§ 346. On the few occasions where Congress has employed nationality
classifications, it did so to grant relief based on particular country conditions—
either to permit special opportunities to enter the United States or to avoid
deportation—and did so without imputing invidious or stigmatizing traits. See,
e.g., Nicaraguan Adjustment and Central American Relief Act of 1997, Pub. L.
105-100, 111 Stat. 2160; Haitian Refugee Immigration Fairness Act of 1998, Pub.
L. 105-277, 112 Stat. 2681.
The historical evolution of our Nation’s immigration laws, the 1965
statutory ban on the use of nationality in issuing immigrant visas, and Congress’s
post-1965 enactments focusing on individualized assessments to determine
admissibility all demonstrate that the “general tenor of Congress’s legislation in
this area” repudiates the blanket use of “nationality” to impute traits of
dangerousness or criminality for the purpose of imposing a categorical bar to entry.

25

Dames & Moore, 453 U.S. at 678. Here, as a result, the President is “acting
alone,” without “the acceptance of Congress.” Id.
This conclusion is consistent with the accepted approach to statutory
interpretation. “[W]hen two statutes are capable of co-existence, it is the duty of
the courts, absent a clearly expressed congressional intention to the contrary, to
regard each as effective.” Morton v. Mancari, 417 U.S. 535, 551 (1974). “Where
there is no clear intention otherwise, a specific statute will not be controlled or
nullified by a general one . . . .” Id. at 550–51; see also Brown & Williamson
Tobacco Corp., 529 U.S. at 133 (“[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.”).
Here, § 1152(a) was enacted after § 1182(f) and mandates nondiscrimination in the issuance of immigrant visas. Given that the President cannot
discriminate against persons in the issuance of immigrant visas based on
nationality, § 1182(f) should not be read to permit such discrimination. See, e.g.
Brown & Williamson Tobacco Corp., 529 U.S. at 133. Moreover, the two sections
are reconcilable: the President may exercise § 1182(f) power—suspending entry
of a “class of aliens” deemed to be “detrimental to the interests of the United
States”—in circumstances where such exercise does not violate § 1152(a). Absent

26

a discrete intergovernmental conflict—such as Iran’s taking of U.S. hostages or
Cuba’s suspension of a bilateral agreement with the U.S.—imposing a bar to entry
solely on the basis of nationality, and in a manner that carries invidious
implications of criminal, terrorist, or dangerous tendencies on the part of all
persons of that nationality, is not permissible. In short, the Executive’s use of
nationality as a proxy for dangerousness, and to prevent entry into the United
States, cannot be reconciled with § 1152(a) and subsequent immigration laws,
which demonstrate congressional intent to move the United States away from
reliance on nationality as a categorical basis for exclusion. 14
IV.

THE PROCLAMATION IS NOT AUTHORIZED UNDER THE
YOUNGSTOWN FRAMEWORK
By excluding individuals based solely on nationality—and justifying its use

as a credible proxy for “heightened risks to the security of the United States”
instead of making more individualized assessments—the President took “measures

Amici do not suggest that nationality classifications are never permitted in
the immigration context in any respect. For example, the President has used
nationality as a factor to determine the level of scrutiny for individuals of identified
countries, or to respond to special disaster needs. In such instances, there is no
imputation of invidious, discriminatory purpose based on nationality, of the kind
that can redound to the detriment of U.S. citizens and others within the United
States of the same heritage.
14

27

incompatible with the expressed [and] implied will of Congress.” Youngstown,
343 U.S. at 637 (Jackson, J., concurring).
Even if this Court decided that Congress’s position is “somewhat
ambiguous,” Dames & Moore, 453 U.S. at 677, the Proclamation could not be
sustained. No longstanding history suggests congressional acquiescence to the
action at issue here. Cf. Dames & Moore, 453 U.S. at 680. See also Bank
Markazi, 136 S. Ct. at 1328 & n.28 (“Much of the [Dames] Court’s cause for
concern, however, was the risk that the ruling could be construed as license for the
broad exercise of unilateral executive power.”). At a minimum, the Proclamation
is quite close, on the “spectrum running from explicit congressional authorization
to explicit congressional prohibition,” to the type of discriminatory actions
Congress has rejected. Dames & Moore, 453 U.S. at 669.
Nor can the President rely on his exclusive constitutional powers to
authorize the Proclamation. “Presidential claim to a power at once so conclusive
and preclusive must be scrutinized with caution, for what is at stake is the
equilibrium established by our constitutional system.” Id.
Here, the President can make no such claim. Although some earlier case law
characterized executive authority over immigration as capacious, see Knauff v.
Shaughnessy, 338 U.S. 537, 542 (1950) (addressing executive exercise of power

28

expressly authorized by Congress), the Supreme Court has repeatedly recognized
legislative control over immigration as pivotal. See, e.g., Zadvydas v. Davis, 533
U.S. 678, 695 (2001) (“Congress has ‘plenary power’ to create immigration law,”
subject to constitutional limitations); Kerry v. Din, 135 S. Ct. 2128, 2140 (2015)
(same). Any constitutionally derived presidential authority to regulate immigration
is, at best, shared with Congress. Absent “conclusive and preclusive”
constitutional power, the President has no power to act unilaterally, in
contravention of congressional intent to prohibit the use of nationality as a basis for
discrimination. Youngstown, 343 U.S. at 638 (Jackson, J. concurring).

29

CONCLUSION
The President lacked statutory and constitutional authority to issue the
Proclamation. The decision of the court below should be affirmed.
Dated: November 17, 2017

Respectfully submitted,
/s/ Meir Feder
MEIR FEDER
Lead Counsel
RASHA GERGES SHIELDS
JONES DAY
250 Vesey Street
New York, NY 10281-1047
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
CATHERINE Y. KIM
New York, NY
JUDITH RESNIK
New Haven, CT
BURT NEUBORNE
New York, NY
LUCAS GUTTENTAG
Palo Alto, CA
Counsel for Amici Curiae

30

Appendix A
Amici Curiae Law Professors ∗
Janet Cooper Alexander, Frederick I. Richman Professor of Law, Emerita,
Stanford Law School
Gabriel J. Chin, Edward L. Barrett Chair and Martin Luther King, Jr. Professor of
Law, UC Davis School of Law
Laura K. Donahue, Professor of Law, Director of the Center on National Security
and the Law, and Director of the Center on Privacy and Technology, Georgetown
University Law Center
Lucas Guttentag, Professor of the Practice of Law, Stanford Law School
Alan Hyde, Distinguished Professor of Law and Sidney Reitman Scholar
Catherine Y. Kim, George B. Ward Term Professor of Law and Associate
Professor of Law, University of North Carolina School of Law
Burt Neuborne, Norman Dorsen Professor in Civil Liberties, New York
University School of Law
Gerald L. Neuman, J. Sinclair Armstrong Professor of International, Foreign, and
Comparative Law, Harvard Law School
Judith Resnik, Arthur Liman Professor of Law, Yale Law School
Stephen I. Vladeck, A. Dalton Cross Professor in Law, University of Texas
School of Law
Michael J. Wishnie, William O. Douglas Clinical Professor of Law, Yale Law
School

∗

Affiliations of amici curiae are listed for identification purposes only.

CERTIFICATE OF COMPLIANCE
I hereby certify that the foregoing brief complies with the type-volume
limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 6,489 words, excluding
the parts of the brief exempted by that Rule, as counted using the word-count
function on Microsoft Word 2007 software.

November 17, 2017

/s/ Meir Feder
MEIR FEDER
Counsel for Amici Curiae

CERTIFICATE OF SERVICE
I hereby certify that, on this 17th day of November 2017, I electronically filed
the original of the foregoing document with the clerk of this Court by using the
CM/ECF system. I certify that the participants in the case are registered CM/ECF
users and that service will be accomplished by the appellate CM/ECF system.

November 17, 2017

/s/ Meir Feder
MEIR FEDER