Intl. Refugee Assistance v. Donald J. Trump

Filing 78

AMICUS CURIAE BRIEF by T.A., A U.S. Citizen of Yemeni Descent in electronic and paper format. Method of Filing Paper Copies: mail. Date Paper Copies Mailed, Dispatched, or Delivered to Court: 11/09/2017. [1000190278] [17-2231, 17-2232, 17-2233, 17-2240] Richard Bernstein [Entered: 11/09/2017 04:41 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/Cross-Appellants,
v.
DONALD J. TRUMP, et al.
Defendants-Appellants.
______________________
On Appeal from an Order of the United States
District Court for the District of Maryland
______________________
United States District Judge Theodore D. Chuang
Nos. 8:17-cv-00361-TDC, 8:17-cv-02921-TDC, 1:17-cv-02969-TDC
BRIEF OF AMICUS CURIAE T.A., A U.S. CITIZEN OF YEMENI
DESCENT, IN SUPPORT OF PLAINTIFFSAPPELLEES/CROSS-APPELLANTS
[caption continued on next page]
WILLKIE FARR & GALLAGHER LLP
Richard D. Bernstein
[e-mail]
1875 K Street, N.W.
Washington, D.C. 20006-1238
Telephone: [phone]
Facsimile: [phone]
Counsel for Amicus Curiae T.A.
November 9, 2017

______________________
No. 17-2231(L)
On Cross-Appeal from the United States District Court for the District of
Maryland, Southern Division
(8:17-cv-00361-TDC)
______________________
No. 17-2232
(8:17-cv-02921-TDC)
______________________
IRANIAN ALLIANCES ACROSS BORDERS; JANE DOE #1, JANE DOE #2,
JANE DOE #3, JANE DOE #4, JANE DOE #5, JANE DOE #6,
Plaintiffs-Appellees,
v.
DONALD J . TRUMP, in his official capacity as President of the United States;
ELAINE C. DUKE, in her official capacity as Acting Secretary of Homeland
Security; KEVIN K. MCALEENAN, in his official capacity as Acting
Commissioner of U.S. Customs and Border Protection; JAMES MCCAMENT, in
his official capacity as Acting Director of U.S. Citizenship and Immigration
Services; REX TILLERSON, in his official capacity as Secretary of State;
JEFFERSON B. SESSIONS III,
in his official capacity as Attorney General of the United States,
Defendants-Appellants.
______________________
No. 17-2233
(1:17-cv-02969-TDC)
______________________
EBLAL ZAKZOK; SUMAYA HAMADMAD; FARED MUQBIL;
JOHN DOE #1; JOHN DOE #2; JOHN DOE #3,
Plaintiffs-Appellees,

TABLE OF CONTENTS
Page

SUMMARY OF ARGUMENT ..............................................................................1
BACKGROUND ....................................................................................................2
A.

EO-3’s Bans Have An Unlimited Duration .........................................2

B.

T.A. ....................................................................................................3

ARGUMENT..........................................................................................................4
I.

EO-3’s Unlimited Bans Violate the INA and Separation of Powers ..............4
A.

The INA Precludes an Executive Travel Ban of Unlimited
Duration Based On A Reason Already Addressed By The INA ..........4
1.

Subsection 1182(f)’s Use of “Suspend,” “Period,” and
“Necessary” Precludes EO-3’s Travel Bans of Unlimited
Duration ....................................................................................4

2.

If Subsection 1182(f) Authorized EO-3, Then Other
Subsections Would be Rendered Practical Nullities ..................7
a.
b.

II.

Subsection 1182(a)(3)(C) .............................................. 10

c.
B.

Subsection 1182(a)(3)(B) ................................................8

Subsection 1182(l)(5).................................................... 11

Norms of Separation of Powers Are Incompatible With
Executive Immigration Bans of Unlimited Duration Based On
Reasons Already Addressed More Narrowly By The INA ................ 12

Cross-Appeal: The Preliminary Injunction Should Not Exclude
Potential Entrants Who Lack a Prior U.S. Relationship............................... 18
A.

Facial Invalidation of EO-3’s Travel Bans Warrants a Complete
Injunction Against Those Bans ......................................................... 18

i

B.

The Balance of Equities Has Changed Because This
Administration’s “Extreme Vetting” Substantially Reduced
Any Information Risk Without A Travel Ban .................................... 21

CONCLUSION .................................................................................................... 29

ii

TABLE OF AUTHORTIES
Case

Page(s)

Amoco Prod. Co. v. Village of Gambell, Alaska,
480 U.S. 531 (1987) .............................................................................. 18, 19
Boumediene v. Bush,
553 U.S. 723 (2008) .............................................................................. 27, 28
Carrington Gardens Assocs., I v. Cisneros,
1 F. App’x 239 (4th Cir. 2001)......................................................................5
Clinton v. City of New York,
524 U.S. 417 (1998) .............................................................................. 13, 16
Doe v. Pub. Citizen,
749 F.3d 246 (4th Cir. 2014) .........................................................................1
Freytag v. Comm’r of Internal Revenue,
501 U.S. 868 (1991) ......................................................................................9
Galvan v. Press,
347 U.S. 522 (1954) .................................................................................... 13
Hawaii v. Trump,
859 F.3d 741 (9th Cir. 2017), vacated as moot, Trump v. Hawaii, No. 161540, 2017 WL 4782860 (Oct. 24, 2017) .............................................. 12, 16
Hoffman ex rel. N.L.R.B. v. Beer Drivers & Salesmen’s Local Union No. 888,
536 F.2d 1268 (9th Cir. 1976) .......................................................................4
Holder v. Humanitarian Law Project,
561 U.S. 1 (2010)........................................................................................ 27
RadLAX Gateway Hotel, LLC v. Amalgamated Bank,
566 U.S. 639 (2012) ......................................................................................8
Trump v. Int'l Refugee Assistance Project,
137 S. Ct. 2080 (2017) ................................................................................ 22
United States v. Hayes,
555 U.S. 415 (2009) ......................................................................................7
iii

United Sav. Ass’n of Tex. v. Timbers of Inwood Forest,
484 U.S. 365 (1988) ......................................................................................7
United States v. Updike,
281 U.S. 489 (1930) ......................................................................................5
United States v. Verdugo-Urquidez,
494 U.S. 259 (1990) .................................................................................... 20
Util. Air Regulatory Grp. v. E.P.A.,
134 S.Ct. 2427 (2014) ................................................................................. 18
Youngstown Sheet & Tube Co. v. Sawyer,
343 U.S. 579 (1952) .................................................................. 12, 17, 18, 27
Zivotsky ex rel. Zivotsky v. Kerry,
135 S.Ct. 2076 (2015) ........................................................................... 13, 14
Constitutions
U.S. CONST. Amend. I (1791) ................................................................................ 20
Statutes
8 U.S.C.A. § 1182 (2013) .................................................................... 1, 14, 17, 19
8 U.S.C. § 1182(a) (2013) .......................................................................................6
8 U.S.C. § 1182(a)(1)(A) (2013) ....................................................................... 6, 19
8 U.S.C. § 1182(a)(3)(C)(iii) (2013) ..................................................................... 10
8 U.S.C. § 1182(a)(3)(C)(iv) (2013) ..................................................................... 10
8 U.S.C. § 1182(a)(4)(B)(ii) (2013) ........................................................................6
8 U.S.C. § 1182(l)(5) (2013) ................................................................................. 11
8 U.S.C. § 1182(2)(A) (2013) .................................................................................6
8 U.S.C. § 1182(a)(3)(B) (2013) .............................................................................8
8 U.S.C. § 1182(a)(3)(C) (2013) ....................................................................... 9, 19
8 U.S.C. § 1182(2)(B) (2013) .................................................................................6
8 U.S.C. § 1182(f) (2013) ......................................................................... 1, 4, 6, 12
iv

8 U.S.C. § 1182(I)(6) (2013) ...................................................................................7
8 U.S.C. § 1182(n)(2)(c)(i)(I) (2013) ......................................................................7
8 U.S.C. § 1182(f)(3)(c)(ii) (2013) ..........................................................................7
8 U.S.C. § 1182(a)(3)(B)(i)(II) (2013) ....................................................................8
8 U.S.C. § 1182(a)(3)(B)(i)(VI) (2013) ...................................................................9
8 U.S.C. § 1182(a)(3)(B)(i)(IX) (2013) ...................................................................9
8 U.S.C. § 1182(a)(3)(B)(ii) (2013) ........................................................................9
8 U.S.C. § 1182(a)(7)(B)(i) (2013) ....................................................................... 11
8 U.S.C. § 1182(a)(7)(B)(iii) (2013) ..................................................................... 11
8 U.S.C. § 1187(a)(12) (2015) .............................................................................. 15
Pub L. No. 110-229, § 701(a), 122 Stat. 853 (2008) ............................................. 11
Rules
82 Fed. Reg. 19380 (Apr. 27, 2017) ...................................................................... 23
Other Authorities
Application for a Stay at 8, 30, Trump v. Int’l Refugee Assistance Project, No. 161436 (June 1, 2017) .............................................................................................. 22
Black’s Law Dictionary 893 (2d ed. 1910) ..............................................................5
Black’s Law Dictionary 1446 (6th ed. 1990) ...........................................................5
Black’s Law Dictionary 1508 (10th ed. 2014) .........................................................6
Black’s Law Dictionary 1675 (10th ed. 2014) .........................................................4
Bouvier’s Law Dictionary, 3d Rev. (1914)..............................................................5
Brief of the Cato Institute as Amicus Curiae at 9, Nos. 16-1436 and 16-1540
(U.S. Sept. 9, 2017)............................................................................................... 24
CBS/AP, Who were the London attackers? Chef, clerk and ‘suspicious’ Italian,
CBS News (Jun. 6, 2017 6:46 p.m. EDT), http://cbsn.ws/2g1LWYq .................... 28

v

David Nakamura, Trump, GOP senators introduce bill to slash legal immigration
levels, Wash. Post (Aug. 3, 2017), http://wapo.st/2z4lc1h. .................................... 26
Donald J. Trump, President Trump: In my first 100 days, I kept my promise to
Americans, Wash. Post (Apr. 29, 2017), http://wapo.st/2s7BmUg ........................ 24
Donald J. Trump (@realDonaldTrump), Twitter (Feb. 5, 2017, 12:39 p.m. EST),
http://bit.ly/2ojCwta .............................................................................................. 26
Donald J. Trump (@realDonaldTrump), Twitter (June 5, 2017, 3:37 a.m.),
http://bit.ly/2hGHz2Z...................................................................................... 24, 28
Donald J. Trump (@realDonaldTrump), Twitter (June 5, 2017, 3:44 a.m.),
http://bit.ly/2rtbEIK .............................................................................................. 24
Donald J. Trump (@realDonaldTrump), Twitter (Oct. 31, 2017, 6:26 p.m. EDT),
http://bit.ly/2A6exkS. .......................................................................................... 26
EO-2 § 2(c) ........................................................................................................... 22
Evan Perez, First on CNN: FBI Director James Comey balks at refugee
legislation, CNN (Nov. 19, 2015), http://cnn.it/1Ngw5ik. ..................................... 15
H.R. 3314, 114th Cong., introduced July 29, 2015 ................................................ 15
H.R. 4038, 114th Cong. (2015). ............................................................................ 15
H.R. 4038, 114th Cong. (2015): American Security Against Foreign Enemies Act
of 2015, http://bit.ly/2w3XhK7. ............................................................................ 15
H.R. Rep. No. 100-182 (1988) ................................................................................9
Karoun Demirjian & Jerry Markon, Obama administration rolls out new visa
waiver program rules in wake of terror attacks, Wash. Post (Jan. 21, 2016),
http://wapo.st/2sERVn1 ........................................................................................ 16
Nahal Toosi and Ted Hesson, Visas to Muslim-majority countries down 20 percent,
Politico (May 25, 2017, 10:28 p.m. EDT), http://politi.co/2r0XBHQ .................... 24
Press Release, The White House Office of the Press Secretary, Statement from
President Donald J. Trump (Sept. 5, 2017), http://bit.ly/2xMl2Zc ......................... 14
Proclamation No. 9645, 82 FR 45161 (Sept. 24, 2017) ............................... 1, 10, 25

vi

S. 2302, 114th Cong., introduced Nov. 18, 2015 ................................................... 15
State Dep’t Cable 25814 ¶¶ 8, 10, 13, available at http://bit.ly/2o0wBqt. ........... 23
The Declaration of Independence (U.S. 1776) ...................................................... 13
THE FEDERALIST NO. 10 (James Madison) ............................................................ 13
THE FEDERALIST NO. 47 (James Madison) ............................................................ 13
THE FEDERALIST NO. 63 (James Madison or Alexander Hamilton) ....................... 14
THE FEDERALIST NO. 78 (Alexander Hamilton) .................................................... 27
U.S. Customs and Border Prot., CBP Releases Statistics on Electronic Device
Searches (Apr. 11, 2017), http://bit.ly/2oyyLAu ................................................... 23
U.S. Customs and Border Protection, Visa Waiver Program Improvement and
Terrorist Travel Prevention Act Frequently Asked Questions (June 19, 2017
10:55), http://bit.ly/1Tz4wRn ................................................................................ 16
U.S. Dep’t of State, Supplemental Questions for Visa Applicants (2017),
http://bit.ly/2wzoatR ............................................................................................. 23
Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015,
H.R. 158, 114th Cong. (2015) ............................................................................... 16
Webster’s Third New International Dictionary (1966) ........................................ 4, 5

vii

T.A.1 is a United States citizen who was raised in Yemen. T.A. is a
Muslim. T.A.’s father and many members of T.A.’s extended family hold Yemeni
passports, although they reside in countries not designated by Presidential
Proclamation No. 9645, Enhancing Vetting Capabilities and Processes for
Detecting Attempted Entry Into the United States by Terrorists or Other PublicSafety Threats. 82 FR 45161 (Sept. 24, 2017) (“EO-3”). EO-3 would nonetheless
bar them from entering the United States.
SUMMARY OF ARGUMENT
This brief focuses on two issues. Part I addresses the first issue. It
demonstrates an additional, narrow basis—drawn from the statutory text—for
enjoining EO-3’s travel bans. Unlike EO-2’s bans, EO-3’s bans have neither a
time limit nor a link to a finite event. This unlimited duration of EO-3’s bans
contradicts the words “suspend,” “period,” and “necessary” in 8 U.S.C. § 1182(f),
would render other provisions of the Immigration and Naturalization Act (“INA”)
practical nullities, and contravenes fundamental norms of separation of powers.
1

This amicus brief uses initials, rather than T.A.’s full name, to reduce the risk of
potential reprisals to T.A. or his family members. Courts have permitted T.A. and
others to use pseudonyms and initials in similar circumstances. See, e.g., Doe v.
Pub. Citizen, 749 F.3d 246, 273 (4th Cir. 2014) (pseudonym appropriate, even for
a party, where “identification poses a risk of retaliatory physical or mental harm to
the requesting party or even more critically, to innocent nonparties”). No counsel
for any party authored the brief in whole or in part, and no person or entity other
than amicus made a monetary contribution to its preparation or submission.
Counsel for Appellants and Appellees have consented to the filing of this amicus
brief.

The President must propose bans of unlimited duration to Congress, not impose
them by executive fiat.
Part II addresses the cross-appeal. Part II demonstrates that, in accord
with the texts of the pertinent statutes and the Establishment Clause, the
preliminary injunction should enjoin all applications of EO-3’s illegal travel bans,
including applications to persons who lack a prior U.S. relationship. There are no
longer any countering equities to be balanced because the Trump administration
dramatically reduced the risks of inadequate information before EO-3 was
promulgated. The Administration had implemented “extreme vetting,” to quote
President Trump, that reduced visas from the designated countries 55% while all
EO-2 bans were completely enjoined. Tellingly, the Government cannot and does
not claim that, during the 100 days when all EO-2 travel bans were enjoined, this
Administration’s “extreme vetting” admitted with inadequate information even one
person with no prior U.S. relationship from the designated countries.
BACKGROUND
A.

EO-3’s Bans Have an Unlimited Duration
Unlike the travel bans in EO-2, the bans in EO-3 are of unlimited

duration. Not only do EO-3’s bans have no end date, no time period is defined by
reference to a finite event (e.g., during a declared war).

2

EO-3 does not even provide that, if future reports show that the often
nebulous “required” criteria in Section 1(c)(i)-(iii) have been satisfied, any travel
ban will end. Indeed, as Section 1(h) admits, eight nations are included in EO-3’s
bans even though only seven were determined not to satisfy adequately the Section
1(c) criteria. In addition, Section 9(c) renders everything in EO-3 unenforceable
against the Government. Section 9(c) provides that EO-3 “does not . . . create any
right or benefit, substantive or procedural, enforceable at law or in equity by any
party against the United States, its departments, agencies or entities, its officers,
employees, or agents, or any other person.”
B.

T.A.
T.A. is a Muslim and a United States citizen who grew up in Yemen.

When T.A. was eighteen, he returned to the United States to attend college. He
lives here and has been a videographer.
T.A.’s father, and some of his aunts, uncles, and cousins—all of
whom hold Yemeni passports—fled as refugees from the ongoing Yemeni Civil
War and now live in Jordan or other countries not designated by EO-3. Many of
T.A.’s extended family members want to travel to the United States to visit T.A.
and their extended family. One cousin has a pending visa application. Two others
visited the United States during the period when travel bans EO-2 were enjoined
and want to return.

3

ARGUMENT
I.

EO-3’s Unlimited Bans Violate the INA and Separation of Powers
A.

The INA Precludes an Executive Travel Ban of Unlimited
Duration Based on a Reason Already Addressed by the INA
EO-3’s travel bans indisputably have an unlimited duration. Supra, at

2-3. As demonstrated below, that unlimited duration both is precluded by the
words of 8 U.S.C. § 1182(f) and improperly renders at least three other provisions
of subsection 1182 superfluous.
1.

Subsection 1182(f)’s Use of “Suspend,” “Period,” and
“Necessary” Precludes EO-3’s Travel Bans of Unlimited
Duration

Under certain conditions, 8 U.S.C. § 1182(f) provides that the
President 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.” (Emphasis added). The italicized words preclude an entry ban of
unlimited duration.
To start, “suspend” means “[t]o interrupt; postpone; defer,” as in “[t]o
temporarily keep (a person) . . . from exercising a right or privilege.” Black’s Law
Dictionary 1675 (10th ed. 2014). “The word ‘suspend’ connotes a temporary
deferral.” Hoffman ex rel. N.L.R.B. v. Beer Drivers & Salesmen’s Local Union No.
888, 536 F.2d 1268 (9th Cir. 1976) (emphasis added) (citing Webster’s Third New

4

International Dictionary (1966) and Bouvier’s Law Dictionary, 3d Rev. (1914));
see also Carrington Gardens Assocs., I v. Cisneros, 1 F. App’x 239, 242
(4th Cir. 2001) (suspend means “to interrupt, to cause to cease for a time; to
postpone; to stay, delay, or hinder, to discontinue temporarily, but with an
expectation or purpose of resumption”) (emphasis added) (quoting Black’s Law
Dictionary 1446 (6th ed. 1990)).

EO-3’s bans of unlimited duration are not

temporary, nor do they merely interrupt, postpone, or defer entry.
The natural meaning of “suspend” is supported by subsection
1182(f)’s requirement that the “proclamation” set a “period” for suspension. The
singular “period” means a “point, space, or division of time.”

Black’s Law

Dictionary 893 (2d ed. 1910). As the United States told the Supreme Court in
1930, “the word ‘period’ connotes a stated interval of time commonly thought in
terms of years, months, and days.” United States v. Updike, 281 U.S. 489, 495
(1930).2
This time-limiting meaning of the singular “period” is reinforced by
subsection 1182(f)’s requirement that the period be “necessary,” rather than
“advisable” or the like. Nothing in EO-3 explains how its goals could not have
been achieved if its bans were limited to a single, specified interval of time, or
even to the time when the criteria in Section 1(c) are not satisfied.

2

Updike itself did not decide the meaning of “period.”
5

EO-3 is not saved by subsection 1182(f)’s authority to “impose on the
entry of aliens any restrictions [the President] may deem to be appropriate.” Under
subsection 1182(f), like suspension of entry, any restrictions on entry must be
limited to a singular “period” that is “necessary.” Restrictions on entry for an
unlimited duration are not limited to a necessary “period.”
Moreover, a “restriction” means a “confinement within bounds or
limits; a limitation or qualification.” Black’s Law Dictionary 1508 (10th ed. 2014).
A ban on entry does not merely set limitations or qualifications on entry. It bans
entry entirely. An example of a “limitation or qualification” on entry would be
conditioning entry on the potential entrant’s permitting his or her mobile phone to
be searched. When the INA authorizes barring entry for an unlimited duration, the
INA refers not to a “restriction,” but rather to rendering an alien “ineligible,” 8
U.S.C. § 1182(a), or “inadmissible,” e.g., id. §§ 1182(a)(1)(A), 1182(2)(A),
1182(2)(B), or to the alien’s “exclusion,” e.g., § 1182(a)(4)(B)(ii). Subsection
1182(f) uses none of those words.
Finally, most of EO-3’s travel bans are also invalid because they
violate the timing limit in subection 1182(f) in an additional way. Subsection
1182(f) authorizes the President to use one set of concerns as the basis for a
singular “proclamation” suspending travel for a “class of aliens” for a singular
“period.”

A President thus cannot do an end-around that evades subsection

6

1182(f)’s duration limit by issuing serial bans. Subsection 1182(f)’s use of the
singular is very different from other provisions of section 1182 that use plural
nouns to authorize multiple actions by the executive branch. See, e.g., 8 U.S.C.
§§ 1182(I)(6) (impose “special requirements”), 1182(n)(2)(c)(i)(I) (“impose such
other administrative remedies”), and 1182(f)(3)(c)(ii) (same). Cf. United States v.
Hayes, 555 U.S. 415, 421-22 (2009) (had Congress meant a provision in a
comprehensive code to cover multiple items, “it likely would have used the plural
…, as it has done in other offense-defining provisions”). EO-3 is therefore invalid
at least for nationals of five of EO-3’s designated countries—Yemen, Somalia,
Iran, Libra, and Syria. This is because nationals from those countries already had
been banned by the EO-2 “proclamation” for the “period” from June 26, 2017 to
September 24, 2017.
2.

If Subsection 1182(f) Authorized EO-3, Then Other
Subsections Would Be Rendered Practical Nullities

“Statutory construction . . . is a holistic endeavor.” United Sav. Ass’n
of Tex. v. Timbers of Inwood Forest, 484 U.S. 365, 371 (1988) (Scalia, J., for a
unanimous Court). “A provision that may seem ambiguous in isolation is often
clarified by the remainder of the statutory scheme-because . . . only one of the
permissible meanings produces a substantive effect that is compatible with the rest
of the law.”

Id.

No provision of a statutory scheme should be given an

interpretation that “renders [another provision] a practical nullity.” Id. at 375.

7

Specifically, when a “comprehensive [statutory] scheme” includes “a general
authorization and a more limited, specific authorization,” the “terms of the specific
authorization must be complied with” to avoid “the superfluity of a specific
provision that is swallowed by the general one.” RadLAX Gateway Hotel, LLC v.
Amalgamated Bank, 566 U.S. 639, 645 (2012) (Scalia, J., for a unanimous court)
(citation omitted).
The Government contends that subsection 1182(f) overrides all the
specific limits on executive action contained in other provisions of the
comprehensive section 1182. This improperly would turn more specific statutory
provisions into mere items in a suggestion box that a President could disregard for
as long as the President wants.
a.

Subsection 1182(a)(3)(B)

This subsection addresses when to ban an alien for an unlimited
duration based on whether an alien “is likely to engage after entry in any terrorist
activity.” 8 U.S.C. § 1182(a)(3)(B)(i)(II). Under subsection 1182(a)(3)(B), a ban
based on an association with others who have committed terrorism requires far
more than birth in a nation that has some terrorists. Only two associations qualify.
First is being “a member of a terrorist organization . . . , unless the alien can
demonstrate . . . that the alien did not know, and should not reasonably have
known,

that

the

organization

was

8

a

terrorist

organization.”

Id. § 1182(a)(3)(B)(i)(VI) (emphasis added). The second is being “the spouse or
child of an alien who is inadmissible under [§ 1182(a)(3)(B)],” unless activity
causing the inadmissibility occurred more than five years ago, the “spouse or child
. . . did not know or should not reasonably have known of the activity causing the
alien to be found inadmissible under [§ 1182(a)(3)(B)],” or “the spouse or child . . .
has renounced the activity causing the alien to be found inadmissible.”
Id. §§ 1182(a)(3)(B)(i)(IX), 1182(a)(3)(B)(ii).
EO-3 nullifies three specific limits contained in subsection
1182(a)(3)(B) on a ban of unlimited duration based on association with terrorists.
First, birth in a designated country is not a basis to deny entry as such birth neither
makes one a member of a terrorist organization nor a spouse or child of an
inadmissible alien. Second, EO-3 has no exception based on the potential entrant’s
personal knowledge or renunciation. Third, as the legislative history confirms,
because subsection 1182(a)(3)(B) refers to “the alien” and “an alien,” it requires
that a travel ban based on potential association with terrorism “must be applied on
a case by case basis.” H.R. Rep. No. 100-182, at 30 (1988); c.f., e.g., Freytag v.
Comm’r of Internal Revenue, 501 U.S. 868, 902 (1991) (“[t]he definite article ‘the’
obviously narrows . . .”).

9

b.

Subsection 1182(a)(3)(C)

This subsection provides a narrow authority to exclude “an alien” for
an unlimited duration based on “potentially serious adverse foreign policy
consequences.” EO-3 nullifies three of subsection 1182(a)(3)(C)’s specific limits
on foreign policy exclusion.

First, subsection 1182(a)(3)(C)(iii) prohibits an

exclusion based on “the alien’s . . . associations” when such “associations would
be lawful within the United States, unless the Secretary of State personally
determines that the alien’s admission would compromise a compelling United
States foreign policy interest.” (Emphasis added). Being born in one of the
designated countries is not an “association that would be unlawful within the
United States.” Nor does EO-3 even assert that admitting any particular alien
“would compromise a compelling United States foreign policy interest.” Second,
EO-3 contains no determination by the Secretary of State. EO-3 states that the
President made the determination, EO-3 § 1(h)(ii) (“I have determined”), § 1(i)
(same), adopting in part “recommend[ations]” from the “Secretary of Homeland
Security.” Id. § 1(h). The role of the Secretary of State was no more than
“consultation.” Id. Preamble, § 1(h)(i). Third, § 1182(a)(3)(C)(iv) requires notice
from the Secretary of State to four congressional committee chairmen “of the
identity of the alien and the reasons for the determination.” (Emphasis added).

10

EO-3 contains no notice of “the identity of the alien” or “the reasons” specific to
any alien.
c.

Subsection 1182(l)(5)

This subsection is incompatible with the Government’s interpretation
that subsection 1182(f) implicitly allows suspension of all immigrant and
nonimmigrant entry of nationals from a country because of security risks.
Subsection 1182(l)(5) is important because its official statutory purpose was to
bring Guam and the Northern Mariana Islands within the “uniform adherence to
long-standing fundamental immigration policies of the United States” on a number
of subjects, including “national security and homeland security issues.”
Pub L. No. 110-229, § 701(a), 122 Stat. 853 (2008) (emphasis added). Subsection
1182(l)(1) authorizes the Secretary of DHS to admit nonimmmigrant visitors to
enter and stay in Guam and the Northern Mariana Islands without meeting the
standard visa and passport requirements. See also 8 U.S.C. § 1182(a)(7)(B)(i) and
(iii). Subsection 1182(l)(5) provides that when the Secretary of DHS determines
“that visitors from a country pose a risk to . . . security interests . . . of the United
States,” the Secretary of DHS may “suspend the admission of nationals of such
country under this subsection.” (Emphasis added).
Subsection 1182(l)(5)’s text is incompatible with the Government’s
interpretation of subsection 1182(f) for two reasons. First, the limiting words

11

“under this subsection [1182(l)(5)]” reflect the understanding of Congress that the
executive branch may require visas because of security risks, not bar entry of the
nationals of a country altogether. Second, subsection 1182(l)(5) uses the critical
words “nationals” and “a country.” Those are the express, specific words that
Congress uses when a provision of section 1182 authorizes executive action based
on nationality. Subsection 1182(f) does not use those words.3
B.

Norms of Separation of Powers Are Incompatible with Executive
Immigration Bans of Unlimited Duration Based on Reasons
Already Addressed More Narrowly by the INA
Under Justice Jackson’s formative opinion on separation of powers,

when Congress has enacted comprehensive legislation on a subject within its
powers, a President may not take “measures incompatible with the expressed or
implied will of Congress.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S.
579, 637 (1952) (Jackson, J., concurring) (emphasis added).

This norm of

separation of powers is incompatible with an executive decree that sets
immigration bans of unlimited duration based on reasons already addressed more
narrowly by an INA provision.

3

For similar reasons, as in the EO-2 cases, 8 U.S.C. § 1185(a)(1) does not provide
“an independent basis for the suspension of entry.” Hawaii v. Trump, 859 F.3d
741, 770 n.10 (9th Cir. 2017), vacated as moot, Trump v. Hawaii, No. 16-1540,
2017 WL 4782860 (Oct. 24, 2017). Moreover, unlike subsection 1182(f),
subsection 1185(a)(1) does not authorize imposing any restrictions on entry by a
“class of aliens” or use the word “suspend.”
12

As Justice Jackson wrote in Youngstown Sheet, 343 U.S. at 641: “The
example of such unlimited executive power that must have most impressed the
forefathers was the prerogative exercised by George III, and the description of its
evils in the Declaration of Independence leads me to doubt that they were creating
the new Executive in his image.” The Declaration of Independence lists
“obstructing the laws for Naturalization of Foreigners” and “refusing to pass
[persons] to encourage their migrations hither” as among the acts of “absolute
Tyranny” of “the present King of Great Britain.” The Declaration of Independence
(U.S. 1776). Accordingly, Article I, section 8, clause 4 of the Constitution gives
the power to make rules for immigration “exclusively to Congress,” not to the
executive. Galvan v. Press, 347 U.S. 522, 531 (1954).
As Madison explained in Federalist No. 47, separation of powers
prevents “tyranny” and protects “liberty.”

THE FEDERALIST NO. 47 (James

Madison), (“Federalist”) (emphasis added). “Separation of powers was designed to
implement a fundamental insight: Concentration of power in the hands of a single
branch is a threat to liberty.” Clinton v. City of New York, 524 U.S. 417, 450
(1998) (Kennedy, J., concurring). As Madison also explained in Federalist No. 10,
“[m]en of factious tempers . . . or of sinister designs, may, by intrigue, by
corruption, or by other means, first obtain the suffrages, and then betray the
interests, of the people.” This was one reason why legislative powers must be

13

exercised by a sufficiently large “number” of representatives rather than by “the
cabals of a few.” Id.
The fundamental anti-concentration insight of separation of powers
applies equally to both foreign and domestic policy. See Zivotsky ex rel. Zivotsky
v. Kerry, 135 S.Ct. 2076, 2090 (2015) (“The Executive is not free from the
ordinary controls and checks of Congress merely because foreign affairs are at
issue.”). In particular, as Federalist No. 63 stated, in both foreign and domestic
policy, “a well-constructed Senate” with six-year terms serves as a bulwark against
lamentable measures proposed by demagogues:
[T]here are particular moments in public affairs when the
people, stimulated by some irregular passion, or some
illicit advantage, or misled by the artful
misrepresentations of interested men, may call for
measures which they themselves will afterwards be the
most ready to lament and condemn. In these critical
moments, how salutary will be the interference of some
temperate and respectable body of citizens, in order to
check the misguided career, and to suspend the blow
meditated by the people against themselves, until reason,
justice, and truth can regain their authority over the
public mind?
President Trump invoked separation of powers principles when he
stated on September 5, 2017, in another “immigration” context, that a President
should not be “able to rewrite or nullify federal laws” by adopting in an executive
order an immigration approach that Congress had “rejected.” Press Release, The
White House Office of the Press Secretary, Statement from President Donald J.
14

Trump (Sept. 5, 2017), http://bit.ly/2xMl2Zc. But EO-3’s unlimited travel bans
adopt approaches that specific provisions of 8 U.S.C. § 1182 reject. See supra, at
4-12.
Additionally, in 2015, Congress rejected travel bans on nationals of
countries designated by EO-3. See, e.g., H.R. 3314, 114th Cong., introduced July
29, 2015; S. 2302, 114th Cong., introduced Nov. 18, 2015 (ban on refugees from
Libya, Somalia, Syria, and Yemen). Instead, Congress enacted the Visa Waiver
Program Act (“VWPA”), Pub. L. 114-113, dir. O, tit. II, § 203, 129 stat. 2242,
codified in 8 U.S.C. § 1187(a)(12).
The House had initially passed the American Security Against
Foreign Enemies Act of 2015 (“SAFE Act”). H.R. 4038, 114th Cong. (2015). It
would have banned any refugees from Syria or Iraq absent personal certifications
by the Secretary of DHS, the FBI Director, and the Director of National
Intelligence that the specific refugee was not a security threat. Id. at § 2(a). In
practice, the SAFE Act would have operated as a ban. See Evan Perez, First on
CNN: FBI Director James Comey balks at refugee legislation, CNN (Nov. 19,
2015), http://cnn.it/1Ngw5ik.
Fulfilling the moderating role envisioned by Federalist No. 63, supra
at 14, the Senate did not pass the SAFE Act, as a cloture vote failed.

See

H.R. 4038, 114th Cong. (2015): American Security Against Foreign Enemies Act

15

of 2015, http://bit.ly/2w3XhK7. This illustrates how Justice Kennedy has said
separation of powers works: “The Framers of the Constitution could not command
statesmanship.

They could simply provide structures from which it might

emerge.” Clinton v. City of New York, 524 U.S. 417, 452-53 (1998) (Kennedy, J.,
concurring).
Having rejected travel bans, both houses of Congress addressed
“Terrorist Travel Prevention” by enacting the compromise VWPA by large
margins. See Visa Waiver Program Improvement and Terrorist Travel Prevention
Act of 2015, H.R. 158, 114th Cong. (2015). Like 8 U.S.C. § 1182(l)(5), supra at
10-12, the VWPA requires visas for nationals of the designated countries but does
not ban travel altogether. Under the VWPA, nationals of the designated countries
“go through the full vetting of the regular visa process, which includes an inperson interview at a U.S. embassy or consulate.” Karoun Demirjian & Jerry
Markon, Obama administration rolls out new visa waiver program rules in wake of
terror attacks, Wash. Post (Jan. 21, 2016), http://wapo.st/2sERVn1 (emphasis
added); U.S. Customs and Border Protection, Visa Waiver Program Improvement
and Terrorist Travel Prevention Act Frequently Asked Questions (June 19, 2017,
10:55), http://bit.ly/1Tz4wRn. As the Ninth Circuit previously held, even EO-2’s
temporary bans operated to nullify the VWPA.
859 F.3d 741 at 773-74 (9th Cir. 2017).

16

See Hawaii v. Trump,

EO-3’s bans of unlimited duration are more of an assault on
separation of powers than were EO-2’s bans. A single, temporary ban could give a
president an opportunity to persuade Congress to change the INA. But EO-3 cuts
Congress out of the picture. Indeed, although President Trump has been in office
nearly ten months, he has not proposed any travel ban to Congress.
The prospect that a president might not persuade Congress is an
essential part of the design of separation of powers. Justice Jackson wrote: “The
tendency is strong to emphasize transient results upon policies . . . and lose sight of
enduring consequences upon the balanced power structure of our Republic.”
Youngstown Sheet, 343 U.S. at 643. The framers “knew what emergencies were,
knew the pressures they engender for authoritative action, knew, too, how they
afford a ready pretext for usurpation.”

Id. at 650.

As the chief Nuremburg

prosecutor, Justice Jackson knew better than most that history was littered with
republics that gave way to executive autocracy in response to assertions of national
security. See id. at 651 (citing, inter alia, the Weimar Republic). The lesson is
that “emergency powers are consistent with free government only when their
control is lodged elsewhere than in the Executive who exercises them.” Id. at 652.
Thus, the “law” made in response to emergencies must “be made by parliamentary
deliberations”—that is, by Congress. Id. at 655.

17

Interpreting 8 U.S.C. § 1182(f) to enable executive decrees that ban
travel for an unlimited duration, or serially, based on reasons already addressed
more narrowly by more specific subsections in 8 U.S.C. § 1182, supra, at 4-12,
would not, in Justice Jackson’s words, “plunge us straightaway into dictatorship,
but it is at least a step in that wrong direction.” Id. at 653. Our separated powers
“may be destined to pass away. But it is the duty of the Court to be the last, not
first, to give them up.” Id. at 655.
II.

Cross-Appeal: The Preliminary Injunction Should Not Exclude
Potential Entrants Who Lack a Prior U.S. Relationship
The District Court erred in excluding from injunctive relief EO-3’s

bans against foreign nationals who lack a prior bona fide relationship with a person
or entity in the United States (hereinafter, “a Prior U.S. Relationship”). This
exclusion is contrary to principles of standing and the merits, and unwarranted by
the balance of the equities. EO-3 does not present a case where splitting the baby
is a Solomonic decision.
A.

Facial Invalidation of EO-3’s Travel Bans Warrants a Complete
Injunction Against Those Bans
First, as the District Court held, the Plaintiffs-Appellees/Cross-

Appellants have standing to obtain a judicial ruling that the President lacked
authority for the bans in EO-3. An injunction based on lack of authority for an
executive rule enjoins the unauthorized rule, not merely some applications of the

18

unauthorized rule. See Util. Air Regulatory Grp. v. E.P.A., 134 S.Ct. 2427, 2449
(2014).
Second, when considering the merits at the preliminary injunction
stage, a court projects what the final judgment likely will provide. See Amoco
Prod. Co. v. Village of Gambell, Alaska, 480 U.S. 531, 546 n.12 (1987) (“The
standard for a preliminary injunction is essentially the same as for a permanent
injunction with the exception that the plaintiff must show a likelihood of success
on the merits rather than actual success.”) (citations omitted). A final merits
decision would invalidate the bans in EO-3 as to aliens with and without a Prior
U.S. Relationship.
The plain meaning of the limits in the pertinent INA subsections
precludes reading into them exceptions for aliens without a Prior U.S.
Relationship. 8 U.S.C. § 1182(f) prescribes conditions that limit the President’s
authority to ban “the entry of any aliens or any class of aliens . . . .”
8 U.S.C. § 1182(a)(3)(C) sets limitations that apply to every executive branch
exclusion of “an alien” on “foreign policy” grounds. 8 U.S.C. § 1182(a)(3)(B)
likewise sets conditions for excluding “[a]ny alien” based on potential terrorism.
(Emphasis added). 8 U.S.C. § 1182(a)(1)(A) prescribes that “no person shall . . .
be discriminated against” based on nationality with four express, and hereinapplicable, statutory exceptions. Id. (emphasis added). The lack of a Prior U.S.

19

Relationship is not an exception to any subsection of section 1182 that EO-3
transgresses.
Likewise, the express limits imposed by the Establishment Clause also
apply to a government-wide order issued in the United States to deny entry to
foreigners, including those without a Prior U.S. Relationship. The Establishment
Clause provides: “Congress shall make no law respecting an establishment of
religion . . . .” U.S. CONST. Amend. I (emphasis added). That Clause therefore
applies to any law, without any exception permitting religious discrimination
toward those who lack a Prior U.S. Relationship.
The reasoning of United States v. Verdugo-Urquidez, 494 U.S. 259
(1990), supports this conclusion. Verdugo-Urquidez held that the reach of the
Fourth Amendment was circumscribed by its use of the term “the right of the
people.”

Id. at 265.

The Court emphasized, however, that “in some cases,

provisions [without that term] extend beyond the citizenry.” Id. at 269.
Justice Kennedy’s concurrence, which was necessary for the majority,
is even more supportive.

Justice Kennedy emphasized that in general “the

Government may act only as the Constitution authorizes, whether the actions in
question are foreign or domestic.” Id. at 277.
Unlike the Fourth Amendment, the First Amendment’s Establishment
Clause is not circumscribed by the term “the right of the people.” This omission is

20

particularly meaningful as, in sharp contrast to the Establishment Clause, the First
Amendment’s protection of peaceful assembly extends only to “the right of the
people.” Because the Establishment Clause uses the universal term “no law”
without any limitation, the Establishment Clause applies to the entry suspensions
in EO-3 for persons without a Prior U.S. Relationship.
Indeed, were this Court to create an exception for those without a
Prior U.S. Relationship from the limits in the INA and the Establishment Clause,
the cure would be worse than the disease. For example, any President could permit
entry only by foreigners who were Christians, unless a non-Christian had a Prior
U.S. Relationship.
B.

The Balance of Equities Has Changed Because This
Administration’s “Extreme Vetting” Substantially Reduced Any
Information Risk Without a Travel Ban
Neither of the interests asserted by the Government—foreign leverage

and information imperfections—warrants limiting the preliminary injunction based
on the balance of the equities. EO-3’s use of unlimited bans as leverage on foreign
governments is not only invalid, supra, at 4-18, it has no place in the balance of
equities. Such leverage is sought for the long term and not in response to any
emergency. Thus, any such leverage would have the same effect whether it begins
now or after this case has been promptly adjudicated.

21

When the Supreme Court balanced the equities to stay the portions of
preliminary injunctions against EO-2’s bans that applied to aliens without a Prior
U.S. Relationship, the Court relied on the national security rationale asserted for
the now-expired bans in EO-2. EO-2’s stated rationale was to pause what it called
the “unrestricted entry into the United States of nationals” of the six designated
countries. EO-2 § 2(c) (emphasis added). The Government represented to the
Supreme Court in its stay application that the reason for the “short” and
“temporary” travel ban in EO-2 was to allow this Administration to establish its
own “current screening and vetting procedures [that] are adequate to detect
terrorists seeking to infiltrate this Nation.” Application for a Stay at 8, 30, Trump
v. Int’l Refugee Assistance Project, No. 16-1436 (June 1, 2017) (emphasis added).
Based on this rationale, the Supreme Court allowed EO-2’s temporary pause to be
applied to aliens without a Prior U.S. Relationship pending Supreme Court review.
Trump v. Int'l Refugee Assistance Project, 137 S. Ct. 2080, 2088 (2017).
EO-2’s rationale for a temporary pause, however, is not the rationale
for EO-3.

To start, EO-2’s rationale was fulfilled well before EO-3 was

promulgated. By June 2017, this Administration had implemented its own not just
adequate but extreme vetting for all potential entrants, including nationals of the
countries designated in EO-2 or EO-3.

22

For example, on March 17, 2017, the State Department adopted
enhanced visa screening by requiring longer interviews, more detailed questions by
consular officials, and a “mandatory social media review” by the “Fraud
Prevention Unit” if an “applicant may have ties to ISIS or other terrorist
organizations or has ever been present in an ISIS-controlled territory . . . .” State
Dep’t Cable 25814 ¶¶ 8, 10, 13, available at http://bit.ly/2o0wBqt. On April 27,
2017, the Administration issued a new rule that adds a question to the Electronic
Visa Update System, asking for information associated with an applicant’s “online
presence,” meaning information related to his or her “Provider/Platform,” “social
media identifier,” and “contact information.” 82 Fed. Reg. 19380 (Apr. 27, 2017).
On June 1, 2017, the State Department promulgated a new supplemental
questionnaire for visa applicants that asks applicants to list (1) every place they
have lived, worked, and traveled internationally—including how such travel was
funded—for the past fifteen years; (2) every passport they have ever held;
(3) names and birth dates of all siblings, children, spouses, and partners; and (4)
every social media handle, phone number, and e-mail address they have used for
the past five years.

U.S. Dep’t of State, Supplemental Questions for Visa

Applicants (2017), http://bit.ly/2wzoatR. In addition, during the first six months of
the 2017 fiscal year, searches of electronic devices of international travelers
arriving at U.S. airports increased 36.5%. U.S. Customs and Border Prot., CBP

23

Releases

Statistics

on

Electronic

Device

Searches

(Apr.

11,

2017),

http://bit.ly/2oyyLAu.
As a result, well before EO-3, President Trump himself established
that his Administration had substantially improved vetting and screening while all
EO-2 travel bans were fully enjoined from March 16, 2017, to June 24, 2017. On
April 29, 2017, President Trump wrote that his Administration was “substantially
improv[ing] vetting and screening.” See Donald J. Trump, President Trump: In my
first 100 days, I kept my promise to Americans, Wash. Post (Apr. 29, 2017),
http://wapo.st/2s7BmUg. On June 5, 2017, although the President disparaged the
full injunctions against the EO-2 “Travel Ban,” President Trump admitted: “In any
event we are EXTREME VETTING people coming into the U.S. in order to help
keep our country safe.” Donald J. Trump (@realDonaldTrump), Twitter (June 5,
2017, 3:37 a.m. and 3:44 a.m.), http://bit.ly/2hGHz2Z and http://bit.ly/2rtbEIK and
(emphasis added; capitalization in original).
State Department data shows the impact of this Administration’s
extreme vetting of nationals of the countries designated by EO-2. Comparing
April 2017—when all EO-2 bans were entirely enjoined—to the 2016 monthly
averages, non-immigrant visa issuances by State Department officials were down
55% among the six countries designated by EO-2. Nahal Toosi and Ted Hesson,
Visas to Muslim-majority countries down 20 percent, Politico (May 25, 2017,

24

10:28 p.m. EDT), http://politi.co/2r0XBHQ.

The decrease caused by this

Administration’s “extreme vetting” is especially compelling because even before
this Administration, the State Department’s visa refusal rate was at least 79 percent
higher for nationals of the EO-2 designated countries than for nationals of other
countries. Brief of the Cato Institute as Amicus Curiae at 9, Nos. 16-1436 and
16-1540 (U.S. Sept. 9, 2017) (citing State Department data).
Faced with the success of the Trump Administration’s own “extreme
vetting”—without a travel ban—in decreasing admissions of nationals from the
designated countries, EO-3’s rationale moved the goalposts. EO-3 does not seek
more time to improve U.S. vetting procedures. Instead, the stated rationale for
EO-3 is that, regardless of the extreme vetting by U.S. officials, the designated
countries could and should provide better information. See EO-3 §§ 1(b)-(e).
This new rationale for EO-3 weakens the equities invoked by the
Government. Tellingly, the Government does not claim that, during the 100-day
injunction of all of EO-2’s bans, this Administration was forced to admit with
inadequate information even one person with no Prior U.S. Relationship from the
designated countries. The record thus shows that this Administration’s “extreme
vetting,” without any ban, substantially reduced any potential information risks
concerning those without a Prior U.S. Relationship. This is confirmed by EO-3’s
waiver provision. Under that provision, the Secretaries of State and DHS with

25

current information are able to determine when, for any national of a designated
country, “entry would not pose a threat to the national security or public safety of
the United States.” EO-3 § 3(c)(i)(B).
Moreover, President Trump has had ten months to propose to
Congress amendments to the INA that would limit travel by foreigners who lack a
Prior U.S. Relationship.

Going to Congress is the process the Constitution

envisions. Supra, at 16-17. The President has proposed other changes to the INA
to Congress. David Nakamura, Trump, GOP senators introduce bill to slash legal
immigration levels, Wash. Post (Aug. 3, 2017), http://wapo.st/2z4lc1h. But the
President has not done so for any travel ban.
Because President Trump has imposed his own “extreme vetting” and
has chosen not to propose a travel ban to Congress, the President can no longer
argue, as he did on February 5, 2017: “If something happens, blame [the judge]
and court system.” Donald J. Trump (@realDonaldTrump), Twitter (Feb. 5, 2017,
12:39 p.m. EST), http://bit.ly/2ojCwta (emphasis added).

For example, the

preliminary injunctions against EO-3’s travel bans do not preclude the President
from, as he did on October 31, 2017, “ordering” his Administration “to step up our
already Extreme Vetting Program.”

Donald J. Trump (@realDonaldTrump),

Twitter (Oct. 31, 2017, 6:26 p.m. EDT) (emphasis added), http://bit.ly/2A6exkS.

26

Moreover, statutory constraints on travel bans by executive decree
would be pointless if the judiciary discarded them because the executive has a
different view than does the statute of their proper scope and duration.

For

example, a different President could invoke national security to ban entry by
foreigners who have owned guns, or who have had or are seeking firearms training,
because the San Bernardino and Orlando terrorists (who were not nationals of a
designated country) used guns.

Constitutional constraints would similarly be

pointless.
The rule of law, however, rejects using national security as “a ready
pretext,” Youngstown Sheet, 343 U.S. at 650 (Jackson, J., concurring), for
discarding legal constraints on executive decrees.

Rather, the Supreme Court

addressed risks of “terrorism” in Boumediene v. Bush and held: “The laws and
Constitution are designed to survive, and remain in force, in extraordinary times.
Liberty and security can be reconciled; and in our system they are reconciled
within the framework of the law.” 553 U.S. 723, 798 (2008) (emphasis added).
Federal judges must never surrender the rule of law to executive
rhetoric or intimidation. As Hamilton wrote in Federalist No. 78:
This independence of the judges is equally requisite to
guard the Constitution and the rights of individuals from
the effects of those ill humors, which the arts of
designing men, or the influence of particular
conjunctures, sometimes disseminate among the people
themselves, and which, though they speedily give place
27

to better information, and more deliberate reflection,
have a tendency, in the meantime, to occasion dangerous
innovations in the government.
(Emphasis added). The Supreme Court’s “precedents, old and new, make clear
that concerns of national security and foreign relations do not warrant abdication of
the judicial role.” Holder v. Humanitarian Law Project, 561 U.S. 1, 34 (2010).
“Security subsists, too, in fidelity to freedom’s first principles.” Boumediene,
553 U.S. at 797.
Finally, long before the President received any of the reports
mentioned in EO-3, the President linked EO-3’s tougher travel bans of unlimited
duration to anti-Muslim sentiments.

Specifically, President Trump, on

June 5, 2017, two days after a London terror attack, tweeted that this attack
supported a “much tougher version” of the “TRAVEL BAN.” Donald J. Trump
(@realDonaldTrump), Twitter (Jun. 5, 2017, 3:37 a.m.), http://bit.ly/2uKjVYU
(emphasis added).
By June 5, 2017, however, President Trump surely knew that although
the deceased June 3, 2017 London attackers were Muslims, none was a national of
a country designated by EO-2 (or EO-3). One was a British national; another was
an Italian national; and the third was a national of Morocco who perhaps also had
Libyan roots.

CBS/AP, Who were the London attackers? Chef, clerk and

28

‘suspicious’

Italian,

CBS

News

(Jun.

6,

2017

6:46

p.m.

EDT),

http://cbsn.ws/2g1LWYq.
Thus, the original impetus stated in June 2017 by President Trump for
EO-3’s “much tougher” travel ban was purported risks from Muslims, not
information imperfections regarding nationals of the designated countries. There is
no equitable reason for the judiciary to countenance anti-Muslim bans, even in
part.
CONCLUSION
This Court should affirm the decision of the district court in all
respects except that the preliminary injunction should be amended to include
barring application of EO-3’s travel bans to persons without a Prior U.S.
Relationship.

DATED: November 9, 2017

29

Respectfully submitted,
Of Counsel:
SHAIMAA M. HUSSEIN
MATTHEW R. DOLLAN
JOHN L. BRENNAN
RAVI CHANDERRAJ
Willkie Farr & Gallagher LLP
787 Seventh Avenue
New York, N.Y. 10019-6099

RICHARD D. BERNSTEIN
Counsel of Record
Willkie Farr and Gallagher LLP
1875 K Street, N.W.
Washington, D.C. 20006-1238
Telephone: [phone]
E-Mail: [e-mail]
Counsel for Amicus Curiae T.A.

30

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
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Party Name
Dated:

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11/14/2016 SCC

CERTIFICATE OF SERVICE

November 9, 2017
I certify that on _________________ the foregoing document was served on all parties or their
counsel of record through the CM/ECF system if they are registered users or, if they are not, by
serving a true and correct copy at the addresses listed below:

/s/ Richard D. Bernstein
___________________________
Signature

11/09/2017
________________________
Date