State of Washington, et al v. Donald J. Trump, et al

Filing 166

Filed (ECF) Amicus Curiae Constitutional Scholars Correspondence: Providing copy of brief filed in Darweesh v. Trump, 17-cv-480 (E.D.N.Y.). Date of service: 02/17/2017 [10323844] [17-35105] (Shields, Rasha) [Entered: 02/17/2017 09:04 AM]

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN
DISTRICT OF NEW YORK
Hameed Khalid Darweesh and Haider Sameer Abdulkhaleq Alshawi, et al.
Petitioners,
v.
Donald Trump, President of the United States, et al.,
Respondents.

17 Civ. 480 (CBA)

BRIEF OF LAW PROFESSORS OF CONSTITUTIONAL LAW, FEDERAL
COURT JURISDICTION, IMMIGRATION, NATIONAL SECURITY, AND
CITIZENSHIP, AS AMICI CURIAE IN SUPPORT OF PETITIONERS
JONES DAY
Meir Feder
Matthew R. Cushing
250 Vesey Street
New York, NY 10281
Telephone: [phone]
[e-mail]

Of Counsel:
Judith Resnik
Burt Neuborne
Counsel for Amici Curiae Law Professors

TABLE OF CONTENTS
INTEREST OF AMICI CURIAE ................................................................................. 1
ARGUMENT....................................................................................................................... 1
I.

U.S. Law No Longer Reflects Doctrines of Unconstrained
Authority And A Tolerance of Invidious Discrimination That
Once Had Currency In Immigration Law. .................................................. 2

II.

The Supreme Court Has Recognized Numerous Limits On
Executive And Legislative Power Over Immigration. ............................... 8
A.

Section 1182(f), like any other statutory provision, must be
construed to avoid raising serious constitutional questions. ......... 8

B.

Courts have consistently exercised constitutionally-based
judicial review of the immigration process. ................................... 10

C.

Invocation of national security or foreign affairs does not
displace the essential role of the courts in enforcing
constitutional limits........................................................................... 13

III.

The Executive Order, At A Minimum, Raises Grave Questions
Under The First Amendment And The Due Process Clause. ................ 14

IV.

Deliberation Based On A Full Factual Record Is Essential................... 17

CONCLUSION ................................................................................................................ 20
ADDENDUM

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TABLE OF AUTHORITIES
Page
CASES
Adarand Constructors, Inc. v. Pena,
515 U.S. 200 (1995) ........................................................................................................ 19
Alden v. Maine,
527 U.S. 706 (1999) .......................................................................................................... 8
Aziz v. Trump,
17-cv-116, 2017 WL 580855 (E.D. Va. Feb. 13, 2017) .................................... 9, 12, 14
Betrand v. Sava,
684 F.2d 204 (2d Cir. 1982) ........................................................................................... 12
Boumediene v. Bush,
553 U.S. 723 (2008) .................................................................................................. 11, 14
Chae Chan Ping v. United States,
130 U.S. 581 (1889) .......................................................................................................... 4
City of Richmond v. J.A. Croson Co.,
488 U.S. 469 (1989) ........................................................................................................ 20
Ex parte Endo,
323 U.S. 283 (1944) ........................................................................................................ 18
Fiallo v. Bell,
430 U.S. 787 (1977) ........................................................................................................ 11
Fisher v. Univ. of Tex. at Austin,
133 S. Ct. 2411 (2013) .................................................................................................... 19
Fong Yue Ting v. United States,
149 U.S. 698 (1893) .......................................................................................................... 4

- ii -

Galarza v. Szalczyk,
745 F.3d 634 (3d Cir. 2014) ........................................................................................... 13
Gomez v. United States,
490 U.S. 858 (1989) .......................................................................................................... 8
Hamdan v . Rumsfeld,
548 U.S. 557 (2006) ........................................................................................................ 14
Hamdi v. Rumsefeld,
542 U.S. 507 (2004) ........................................................................................................ 14
INS v. Chadha,
462 U.S. 919 (1983) .................................................................................................. 11, 12
INS v. St Cyr,
533 U.S. 289 (2001) .................................................................................................... 9, 12
Kerry v. Din,
135 S. Ct. 2128 (2015) .................................................................................................... 12
Kleindienst v. Mandel,
408 U.S. 753 (1972) ........................................................................................................ 11
Knauff v. Shaughnessy,
338 U.S. 537 (1950) .......................................................................................................... 6
Korematsu v. United States,
323 U.S. 214 (1944) ........................................................................................................ 18
Korematsu v. United States,
584 F. Supp. 1406 (N.D. Cal. 1984) ............................................................................. 19
Kwong Hai Chew v. Colding,
344 U.S. 590 (1953) .................................................................................................... 6, 11
Landon v. Plasencia,
459 U.S. 21 (1982) .................................................................................................... 10, 11

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Louhghalam v. Trump,
17-cv-10154, 2017 WL 479779 (D. Mass. Feb. 3, 2017)............................................ 14
Loving v. Virginia,
388 U.S. 1 (1967)............................................................................................................. 19
Munfa v. Geren,
553 U.S. 674 (2008) ........................................................................................................ 11
Obergefell v. Hodges,
135 S. Ct. 2584 (2015) .................................................................................................... 20
Oyama v. California,
322 U.S. 633 (1948) .......................................................................................................... 7
Printz v. United States,
521 U.S. 898 (1997) ........................................................................................................ 13
Regents of Univ. of Cal. v. Bakke,
438 U.S. 265 (1978) ........................................................................................................ 19
Romer v. Evans,
517 U.S. 620 (1996) .................................................................................................. 16, 17
Shaughnessy v. Mezei,
345 U.S. 206 (1953) .......................................................................................................... 6
United States v. Ju Toy,
198 U.S. 254 (1905) .......................................................................................................... 4
Washington v. Trump,
No. 17-35105, 2017 WL 526497 (9th Cir. Feb. 9, 2017) ..................................... 13, 14
Webster v Doe,
486 U.S. 592 (1988) .......................................................................................................... 8
Zadvydas v. Davis,
533 U.S. 678 (2001) .......................................................................................... 8, 9, 10, 11

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STATUTES
8 U.S.C. § 1182(a)(3) .............................................................................................................. 9
8 U.S.C. § 1182(f) ............................................................................................................. 8, 15
8 U.S.C. § 1187(a)(12)(A)..................................................................................................... 16
8 U.S.C. § 1324B(a) ................................................................................................................ 9
22 U.S.C. § 6411 ................................................................................................................... 10
Chinese Exclusion Act, Chapter 126, 22 Stat. 58 (1882) ................................................... 3
Immigration Act of 1924, 43 Stat. 153 (1924) .................................................................... 3
Immigration and Nationality Act of 1952, Chapter 477, § 311, 66 Stat.
163 (1952) .......................................................................................................................... 5
Immigration and Nationality Act, Pub. L. No. 89-236, § 202, § 2(a), 79
Stat. 911-912 (1965) ...................................................................................................... 5, 9
Immigration and Nationality Act, Pub. L. No. 94-571, sec. 101(a)(27),
§ 7(a), 90 Stat. 2703 (1976) .............................................................................................. 6
Page Law of 1875, Chapter 141, 18 Stat. 477 (1875) ......................................................... 3
Visa Waiver Program Improvement and Terrorist Travel Prevention Act
of 2015, Pub. L. No. 114-113, Div. O, Tit. II, 129 Stat. 2988 (2015) ...................... 16
OTHER AUTHORITIES
70 Cong. Rec. 3526 (1929) .................................................................................................... 4
70 Cong. Rec. 3620 (1929) .................................................................................................... 5
70 Cong. Rec. 4907 (1929) .................................................................................................... 4
T. Alexander Aleinikoff, Detaining Plenary Power: The Meaning and Impact of
Zadvydas v. Davis, 16 Geo. Immigr. L.J. 365 (2002)................................................... 7

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Gabriel J. Chin, Segregation’s Last Stronghold: Race Discrimination and the
Constitutional Law of Immigration, 46 UCLA L. Rev. 1 (1998) ........................................ 7
Sarah H. Cleveland, Powers Inherent in Sovereignty: Indians, Aliens, Territories,
and the Nineteenth Century Origins of Plenary Power Over Foreign Affairs, 81
Tex. L. Rev. 1 (2002) ........................................................................................................ 7
Congressional Research Service, Executive Authority to Exclude Aliens: In
Brief (Jan. 23, 2017) ......................................................................................................... 16
Nancy F. Cott, Marriage and Women’s Citizenship in the United States, 18301934, 103 Am. Hist. Rev. 1140 (Dec. 1998) .................................................................. 4
Press Release, Dep’t of Homeland Sec., DHS Announces Further Travel
Restrictions for the Visa Waiver Program (Feb. 18, 2016) ................................................. 16
Jamal Greene, The Anticanon, 125 Harv. L. Rev. 380 (2011) ........................................... 18
Louis Henkin, THE AGE OF RIGHTS (1990) ........................................................................ 7
Peter H. Irons, Unfinished Business: The Case for Supreme Court Repudiation of
the Japanese Internment Cases (2013) ................................................................................. 19
Stephen H. Legomsky, Immigration Law and the Principle of Plenary
Congressional Power, 1984 Sup. Ct. Rev. 255 (1984) ........................................................ 7
Douglas S. Massey, America’s Immigration Policy Fiasco: Learning from Past
Mistakes, 142 Daedelus J. Am. Acad. Arts & Sci. 5 (Summer 2013)........................... 7
Hiroshi Motomura, The Curious Evolution of Immigration Law: Procedural
Surrogates for Substantive Constitutional Rights, 92 Colum. L. Rev. 1625
(1992)................................................................................................................................ 11
Hiroshi Motomura, Immigration Law After a Century of Plenary Power:
Phantom Constitutional Norms and Statutory Interpretation, 100 Yale L.J.
545 (1990) .......................................................................................................................... 7
Proclamation 4417—An American Promise, 41 Fed. Reg. 7,085 (Feb. 19,
1976) ................................................................................................................................. 19

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Proclamation 5517—Suspension of Cuban Immigration, 51 Fed. Reg.
30,470 (Aug. 22, 1986) ................................................................................................... 15
Judith Resnik, “Within its Jurisdiction”: Moving Boundaries, People, and the
Law of Migration, 160 Proc. Am. Philosophical Soc’y 117 (2016) ................................ 7
Peter Schuck, The Transformation of Immigration Law, 84 Colum. L. Rev. 1
(1984).................................................................................................................................. 6
Staff Report, Select Commission on Immigration and Refugee Policy
(Apr. 20, 1981) .................................................................................................................. 3
Charles D. Weisselberg, The Exclusion and Detention of Aliens: Lessons From
the Lives of Ellen Knauff and Ignatz Mezi, 143 U. Pa. L. Rev. 933 (1995) ....................... 6

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INTEREST OF AMICI CURIAE
Amici curiae are scholars of federal constitutional law, federal court jurisdiction,
and the law of immigration, national security and citizenship.1 In light of the claims
advanced in this case about separation of powers, Executive authority, immigration,
and national security, Amici believe this overview of the history and governing legal
principles will be helpful.
ARGUMENT
Amici write to address the contention that the political branches’ control over
immigration is “plenary” and that the Executive has unreviewable authority to
suspend the admission of “any class of aliens”—even if the selection of a particular
class reflects invidious discrimination based on religion, race, or sex, or an arbitrary
exercise of authority lacking a rational basis. While decisions by the Executive on
matters related to immigration and national security are entitled to deference, the
President has no authority to ignore the Constitution, and the courts retain their
critical responsibility to “say what the law is.”
Our constitutional history demonstrates the harms of excessive deference to
Executive claims that national security requires it to target individuals of particular

Amici certify that (a) no party’s counsel authored any part of this brief, (b) no party or
party’s counsel contributed money that was intended to fund the preparation or submission of this
brief, and (c) no person other than Amici or their counsel contributed money that was intended to
fund the preparation or submission of this brief.
1

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nationalities, races, and religions. The powerful exemplar is the evacuation and
detention of more than 100,000 Japanese-American citizens and lawful residents
during World War II, to which the courts acceded and for which both the Executive
and Congress later apologized.
The Executive Order of January 27, 2017 raises a host of constitutional
questions, implicating the rights of visa holders, and the relationships of visa holders
to U.S. citizens, businesses, and educational institutions, as well as the rights and
obligations of states. Moreover, the Order stands in sharp contrast to congressional
enactments that during the second half of the twentieth century abolished overt race
discrimination in immigration law.
The assertion of unfettered Executive authority to take such action is
breathtaking in multiple ways: its disregard for the host of legally-cognizable interests
it affects; the haste with which the Order appears to have been drafted and
implemented; its indifference to constitutional obligations of even-handedness among
religions and of due process; and its circumvention of procedures designed to ensure
that Executive action will reflect the expertise of the relevant agencies. Most
fundamentally, the claim of blanket and unquestionable power that the Executive has
asserted is inconsistent with established law.
I. U.S. Law No Longer Reflects Doctrines of Unconstrained Authority And A
Tolerance of Invidious Discrimination That Once Had Currency In
Immigration Law.
There was a time when American immigration statutes incorporated, and the
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courts declined to invalidate, openly discriminatory immigration provisions. The
notion that the authority of the political branches over immigration is
unconstrained—“plenary”—derives from cases dating back to such periods. But the
lesson to be drawn from this unhappy history is precisely the opposite of the
government’s position. The Supreme Court has made clear that immigration rules
and statutes are subject to constitutional constraints. Moreover, the shift in the
Supreme Court’s approach is paralleled by shifts in Congress, which since the 1950s
has moved away from policies nested in invidious discriminations.
A list of those once excluded – based on national stereotypes, gender, and race
- makes the point. Congress’s exclusion of Chinese immigrants began in the late
nineteenth century, first with the Page Law of 1875, ch. 141, 18 Stat. 477 (1875), and
then with the Chinese Exclusion Act of 1882, which suspended immigration of
Chinese laborers for a period of ten years and also declared that “no State Court or
Court of the United States shall admit Chinese to Citizenship,” Chinese Exclusion
Act, ch. 126, §§ 1 & 14, 22 Stat. 58, 59-61 (1882). Exclusionary laws expanded over
several decades, culminating in the Immigration Act of 1924, which both re-codified
the race-based exclusionary laws and created a national-origins quota system that
would remain in place for decades thereafter. Immigration Act of 1924, 43 Stat. 153,
168 (1924). See Staff Report, Select Commission on Immigration and Refugee Policy
194-197 (Apr. 20, 1981). Moreover, American women who married noncitizen men
from certain countries (including those marrying men from India and China) lost their
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United States citizenship. See Nancy F. Cott, Marriage and Women’s Citizenship in the
United States, 1830-1934, 103 Am. Hist. Rev. 1140 (Dec. 1998).
During many of these decades, the courts acceded to such classifications and
exclusions. For example, Chae Chan Ping v. United States, 130 U.S. 581 (1889), upheld
the unilateral exclusion of a Chinese legal permanent resident who had been given
permission to reenter before he left the country. Fong Yue Ting v. United States, 149
U.S. 698 (1893), declined to review the expulsion of a Chinese national who had not
produced a “white” witness to testify to the lawfulness of his presence. And United
States v. Ju Toy, 198 U.S. 254 (1905), denied habeas corpus review of immigration
officials’ determination to exclude an individual notwithstanding his claim of United
States citizenship.
The 1924 Immigration Act not only excluded Asians, but set strict nationalorigin quotas aimed (as one member of Congress commented in 1929) “principally at
two peoples, the Italians and the Jews.” 70 Cong. Rec. 3526 (1929) (statement of Rep.
John J. O’Connor). By the late 1920s, the focus had shifted to other “others.” AntiMexican sentiments permeated discussion in the House of Representatives, as
proponents of criminalizing entry-after-deportation argued that migrants brought with
them poverty, disease, alcohol, as well as competition in labor markets and challenges
to America’s identity. One Representative claimed that “hordes of undesirable aliens
. . . [were] undermining [the] health, integrity, and moral fiber of the forthcoming
generations.” 70 Cong. Rec. 4907 (1929) (statement of Rep. Jed Johnson). Another
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argued the need to stop foreigners from “poisoning the American citizen.” 70 Cong.
Rec. 3620 (1929) (statement of Rep. William Thomas Fitzgerald).
But during the middle of the twentieth century, both Congress and the Court
moved away from these attitudes, mired in racial and religious stereotypes that echoed
the licensing, before Brown v. Board of Education, of domestic racial discrimination. In
terms of legislation, Congress gradually abolished overt race discrimination in the
nationality laws, first through providing in the Immigration and Nationality Act of
1952 that the “right of a person to become a naturalized citizen of the United States
shall not be denied or abridged because of race or sex.” Immigration and Nationality
Act of 1952, ch. 477, § 311, 66 Stat. 163, 239 (1952).
What is known as the 1965 Hart-Celler Act (sponsored by Congressman
Emanuel Celler, for whom one of Brooklyn’s federal courthouses was named)
provides the next landmark. Congress responded to the history of racialized national
exclusivity by abandoning the national-origins quota systems. The 1965 Act replaced
the prohibitions on immigration from Asia and Africa and the severe limits on
migrants from certain European countries with uniform quotas of 20,000 per country
in Europe, Africa, Asia, and the Pacific. Immigration and Nationality Act, Pub. L.
No. 89-236, sec. 202, § 2(a), 79 Stat. 911-912 (1965). Section 202 of the Act
specifically stated that with regard to immigration admissions, “[n]o person shall
receive any preference or priority or be discriminated against . . . because of his race,
sex, nationality, place of birth, or place of residence.” Id. at 911. Although the 1965
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Act left certain countries in the Western Hemisphere without quotas, in 1976 the Act
was amended to subject each country in the Americas to a numerical cap of 20,000.
Immigration and Nationality Act, Pub. L. No. 94-571, sec. 101(a)(27), § 7(a), 90 Stat.
2703, 2706 (1976).
The Supreme Court in turn moved away from its “hands off” approach. To be
sure, the 1950s saw a mixture of approaches. On the one hand, Kwong Hai Chew v.
Colding, 344 U.S. 590 (1953), rejected the contention that a lawful permanent resident
could be excluded from the United States without being given notice of the charges
justifying his exclusion and an opportunity to be heard to object. On the other hand,
Knauff v. Shaughnessy, 338 U.S. 537 (1950), and Shaughnessy v. Mezei, 345 U.S. 206
(1953), held respectively that an individual seeking permanent residency and a
permanent resident seeking re-entry after a nearly two year absence could be excluded
without fair process.
Subsequent to those Cold War era decisions, the Supreme Court—while
continuing to recognize the need for appropriate deference—retreated from the
Knauff/Mezei licensing of unfettered government power in the immigration sphere. See
generally Charles D. Weisselberg, The Exclusion and Detention of Aliens: Lessons From the
Lives of Ellen Knauff and Ignatz Mezi, 143 U. Pa. L. Rev. 933, 938 (1995). A wealth of
scholarship has chronicled the shift in the doctrine as due process and equal
protection norms came to be reflected, albeit with variations, in immigration law. See,
e.g., Peter Schuck, The Transformation of Immigration Law, 84 Colum. L. Rev. 1, 4 (1984);
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Hiroshi Motomura, Immigration Law After a Century of Plenary Power: Phantom
Constitutional Norms and Statutory Interpretation, 100 Yale L.J. 545 (1990); T. Alexander
Aleinikoff, Detaining Plenary Power: The Meaning and Impact of Zadvydas v. Davis, 16
Geo. Immigr. L.J. 365 (2002); Gabriel J. Chin, Segregation’s Last Stronghold: Race
Discrimination and the Constitutional Law of Immigration, 46 UCLA L. Rev. 1, 54-58 (1998);
Judith Resnik, “Within its Jurisdiction”: Moving Boundaries, People, and the Law of Migration,
160 Proc. Am. Philosophical Soc’y 117 (2016); Stephen H. Legomsky, Immigration Law
and the Principle of Plenary Congressional Power, 1984 Sup. Ct. Rev. 255 (1984).
Furthermore, the vision of law that supported judicial approval of such
discriminatory legislation and produced pejoratives such as “the Yellow Peril,” (Oyama
v. California, 322 U.S. 633, 668–69 (1948) (Murphy, J., concurring)); and the “Latino
Threat” (see Douglas S. Massey, America’s Immigration Policy Fiasco: Learning from Past
Mistakes, 142 Daedelus J. Am. Acad. Arts & Sci. 5, 7-8, 11 (Summer 2013)), came to
be understood, as Professor Louis Henkin put it, as “an embarrassment”—”relics of a
bygone, unproud era.” Louis Henkin, THE AGE OF RIGHTS 137 (1990). Decisions
like the Chinese Exclusion Cases, Mezei, and Knauff exemplify outdated attitudes toward
national sovereignty premised on racial purity and religious dogma, which were swept
away in the wake of Brown by the Supreme Court’s recognition in diverse settings of
the centrality of the constitutional guaranties of due process, equal protection, and
religious liberty. See generally Sarah H. Cleveland, Powers Inherent in Sovereignty: Indians,
Aliens, Territories, and the Nineteenth Century Origins of Plenary Power Over Foreign Affairs, 81
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Tex. L. Rev. 1 (2002).
II. The Supreme Court Has Recognized Numerous Limits On Executive And
Legislative Power Over Immigration.
A. Section 1182(f), like any other statutory provision, must be construed to
avoid raising serious constitutional questions.
Immigration statutes, like other federal statutes, must be construed to avoid
serious constitutional questions. As is obvious here, such questions exist because the
President has claimed that 8 U.S.C. § 1182(f) vests him with unbounded authority to
exclude “any class of aliens” — even if those aliens are lawful permanent residents,
and even if his selection of the “class” were to be affected by invidious racial, gender,
religious, or other considerations.
It is a “cardinal principle” of statutory interpretation that when an Act of
Congress raises “a serious doubt” as to its constitutionality, the Supreme Court “will
first ascertain whether a construction of the statute is fairly possible by which the
question may be avoided.” Zadvydas v. Davis, 533 U.S. 678, 689 (2001). The Supreme
Court has repeatedly emphasized that it will “avoid an interpretation of a federal
statute that engenders constitutional issues if a reasonable alternative interpretation
poses no constitutional question.” Gomez v. United States, 490 U.S. 858, 864 (1989).
Moreover, statutes in tension with basic constitutional values are construed in accord
with strong “clear statement” presumptions, requiring that in the absence of explicit
language, a statute will not be interpreted to trench on those fundamental values. See,
e.g., Alden v. Maine, 527 U.S. 706 (1999); Webster v Doe, 486 U.S. 592, 603-05 (1988).
-8-

The canon of constitutional avoidance has repeatedly been applied to limit
provisions of immigration statutes that on their face appeared to confer unconstrained
authority. In INS v. St Cyr, 533 U.S. 289, 299-300 (2001), the Court avoided
interpreting a statute to have barred habeas corpus, which would have required
addressing the Suspension Clause. In Zadvydas, where the text of the immigration
statute at issue contained no apparent time limit on the detention of certain aliens, the
Court read the statute to include an implicit reasonableness limitation, and
emphasized that “[w]e have read significant limitations into other immigration statutes
in order to avoid their constitutional invalidation.” Zadvydas, 533 U.S. at 689.
Here, the Order represents a major shift in immigration policy, well beyond any
prior use of § 1182(f), inconsistent with statutory bans on discrimination enacted after
§ 1182(f), see Immigration and Nationality Act, Pub. L. No. 89-236, sec. 202, § 2(a), 79
Stat. 911(1965) (“[N]o person shall . . . be discriminated against in the issuance of an
immigrant visa because of the person’s race, sex, nationality, place of birth, or place of
residence.”); 8 U.S.C. § 1324B(a) (making it illegal for employers to discriminate
against aliens based upon their national origin or citizenship), and in tension with the
specific statutory criteria for excluding persons believed to be involved in terrorist
activity, see 8 U.S.C. § 1182(a)(3). The Order is also tainted by disturbing evidence of
an intention to disfavor a particular religious group. See Aziz v. Trump, 17-cv-116,
2017 WL 580855 (E.D. Va. Feb. 13, 2017). Given the seriousness of the
constitutional issues raised by the Executive Order, the canon of constitutional
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avoidance compels reading § 1182(f) as complying with the anti-discrimination norms
enacted by Congress and embedded in the Constitution.
The Executive Order is also in tension with this Nation’s leadership role in
protecting religious freedom, in both domestic and international settings. In 1998,
Congress mandated establishment of an Office of International Religious Freedom in
the State Department, which prepares Annual Reports on International Religious
Freedom. See 22 U.S.C. § 6411. This congressional directive is inconsistent with the
notion that Congress intended to authorize the President to discriminate on the basis
of religion. Thus, § 1182(f) can and should be construed to avoid the many serious
constitutional questions raised by the Executive Order.
B. Courts have consistently exercised constitutionally-based judicial
review of the immigration process.
In addition to construing statutes to avoid constitutional difficulties, the federal
courts have repeatedly reviewed the political branches’ regulation of immigration for
constitutional soundness, and the Supreme Court has expressly said that the political
branches’ power over immigration “is subject to important constitutional limitations.”
Zadvydas, 533 U.S. at 695. The examples run from exclusion to detention and
deportation, and the individuals and institutions affected range from citizens and their
families, to universities, businesses, and states. The Supreme Court has insisted on
constitutional limits on the federal government’s power to prevent resident noncitizens from returning to the country after traveling abroad, see Landon v. Plasencia, 459

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U.S. 21 (1982); Colding, 344 U.S. 590; to detain individuals pending their removal from
the country, see Zadvydas, 533 U.S. 678; and to deny judicial review to non-citizens held
in Guantánamo Bay and held outside the United States as “enemy combatants,” see
Boumediene v. Bush, 553 U.S. 723 (2008); Munfa v. Geren, 553 U.S. 674 (2008).
Further, even in cases relating to the federal government’s discretionary
issuance of visas, courts no longer approach immigration decisions as intrinsically free
from scrutiny. In Kleindienst v. Mandel, 408 U.S. 753 (1972), addressing the refusal of a
visa to an individual invited to a conference on a college campus, the Court declined
to adopt the government’s argument that Congress had delegated such matters “to the
Executive in its sole and unfettered discretion, and any reason or no reason may be
given.” Id. at 769. Rather, the Court upheld the Executive’s decision on the ground
that it was justified by a “facially legitimate and bona fide reason.” Id. at 770. Fiallo v.
Bell, 430 U.S. 787 (1977), rejected the argument that a policy “regulating the admission
of aliens” was not “subject to judicial review,” and instead recognized a “limited
judicial responsibility under the Constitution even with respect to the power of Congress to
regulate the admission and exclusion of aliens.” Id. at 793, n.5 (emphasis added).
Since Mandel and Fiallo were decided, the Supreme Court has consistently
refused to insulate immigration legislation and Executive action from constitutional
scrutiny. See Landon, 459 U.S. at 32-35, 37; INS v. Chadha, 462 U.S. 919, 940-41 (1983)
(invalidating legislative veto over decisions by the Executive to grant relief from
deportation). See generally Hiroshi Motomura, The Curious Evolution of Immigration Law:
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Procedural Surrogates for Substantive Constitutional Rights, 92 Colum. L. Rev. 1625 (1992).
The core concern is to protect against “arbitrary” decisions by any single branch of
government. See Chadha, 462 U.S. at 959. Cases in which immigration statutes were
construed to avoid constitutional difficulty, such as Zadvydas and St. Cyr, 533 U.S. at
304, are also pertinent here.
More recently, in Kerry v. Din, the Court considered the denial of a visa to a
non-citizen spouse of a U.S. citizen. 135 S. Ct. 2128, 2139 (2015). The concurring
opinion from Justice Kennedy, joined by Justice Alito, which constitutes the majority
holding, agreed with the denial of a visa, but based on their view that the reasons
provided met the “facially legitimate and bona fide” standard of Mandel. Id. at 2140.
The decision reflects a commitment to due process and judicial review in the visa
issuance context. Further, Justice Kennedy’s opinion noted that under the Mandel
standard, an “affirmative showing of bad faith” would require a court to “look
behind” the stated reasons for a decision. Id. at 2141. The Second Circuit has
similarly made clear that “discretion may not be exercised to discriminate invidiously
against a particular race or group or to depart without rational explanation from
established policies. . . . Such exercise of the power would not be ‘legitimate and bona
fide’ within the meaning of Kleindienst v. Mandel.” Betrand v. Sava, 684 F.2d 204, 212-13
(2d Cir. 1982). These are the concerns raised here, given that other courts have
already found such indications of bad faith in the multiple statements suggesting antiMuslim motivations for the Order. See Aziz, 2017 WL 580855, at *3-5, 8-9;
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Washington v. Trump, No. 17-35105, 2017 WL 526497, at *10 (9th Cir. Feb. 9, 2017)
(per curiam) (reh’g en banc pending).
Further constraints on the political branches’ plenary powers have come from
the structure of “Our Federalism,” illustrated by decisions addressing the applying the
non-commandeering principle of Printz v. United States, 521 U.S. 898 (1997), in the
immigration context. E.g., Galarza v. Szalczyk, 745 F.3d 634, 643 (3d Cir. 2014)
(“[T]he federal government cannot command the government agencies of the states
to imprison persons of interest to federal officials.”).
In sum, notwithstanding the discretion properly recognized in the political
branches with respect to many aspects of immigration law, the courts remain
responsible to ensure that those powers are exercised within the bounds set by the
Constitution.
C. Invocation of national security or foreign affairs does not displace the
essential role of the courts in enforcing constitutional limits.
Deployment of the term “national security” likewise cannot stop appropriate
judicial inquiry into the legality of, or the basis for, government actions. Indeed, in
the period since the events of September 11, 2001, courts have repeatedly addressed
the merits of claims of individuals and entities subjected to government orders
flowing from 9/11—even when dealing with measures specifically directed at
individuals believed to have engaged in terrorism. Executive claims based on national
security are properly entitled to significant deference, but that deference is not a

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“blank check.” Hamdi v. Rumsefeld, 542 U.S. 507, 536 (2004).
Across a range of areas, the Government regularly argued that the judiciary had
no role, as the political branches were responding to “national security” concerns and
the Congress had authorized military engagements. The judiciary nonetheless has
repeatedly discharged its constitutional obligation. See id.; Hamdan v . Rumsfeld, 548
U.S. 557, 576-78 (2006); Boumediene, 553 U.S. at 771.
III. The Executive Order, At A Minimum, Raises Grave Questions Under The
First Amendment And The Due Process Clause.
As of this writing, federal district courts in Washington, Massachusetts, New
York, and Virginia have examined the Executive Order. All but the decision in
Louhghalam v. Trump, 17-cv-10154, 2017 WL 479779 (D. Mass. Feb. 3, 2017), have
found the Order constitutionally suspect. Indeed, in a per curiam decision, a
unanimous panel of the Ninth Circuit denied the Government’s request to stay a
district court’s TRO enjoining enforcement of the Executive Order, because the panel
concluded that (1) there was a likelihood of success on the merits for upholding a
preliminary injunction on due process grounds, and (2) adequate evidence of
unconstitutional religious animus existed to warrant a full judicial exploration.
Washington, 2017 WL 526497, at *7-10. A Virginia District Judge found that evidence
of unconstitutional religious animus merited issuance of a preliminary injunction
against the ban’s enforcement in Virginia against Virginia residents, students, or
employees of Virginia’s schools. Aziz, 2017 WL 580855, at *11.

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Both the procedural due process and religious liberty issues are before this
Court. This case is focused on whether aliens who had returned to the United States
with valid travel documents and those who have lawful permanent residence have a
cognizable liberty interest under the Due Process Clause, as well as whether those in
relationship to the Petitioners - ranging from universities and employers to citizen
family members - have constitutional and statutory entitlements to individualized
consideration through specified procedures prior to the voiding of the visas.
Further, per the Court’s grant of intervention, the New York Attorney General
has asserted the rights of New York State, its businesses, universities, and hospitals,
the health of its economy and citizens, and the civil rights of its residents. Through its
pleadings, New York has raised claims that are not derivative of the rights of aliens
but reflect independent harms in New York and in its interactions across the country.
To be sure, every President over the last thirty years has issued at least one
Executive Order pursuant to 8 U.S.C. § 1182(f), many of them directed at particular
nations. Each, however, was narrowly tailored to focus on a particular concern that
did not involve invidious stereotyping. In the most sweeping example, President
Reagan reacted to the decision of the Cuban government to suspend its then-existing
immigration agreement with the United States by using § 1182(f) to temporarily
exclude all Cubans, other than those eligible for family reunification visas.
Proclamation 5517—Suspension of Cuban Immigration, 51 Fed. Reg. 30,470 (Aug.
22, 1986). Other legislation and orders have imposed extra vetting, most notably
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determinations that travelers who had been present in Iraq, Syria, Iran, Sudan, Libya,
Somalia, and Yemen on or after March 1, 2011, were, unlike some others, required to
obtain visas to travel to the United States. See 8 U.S.C. § 1187(a)(12)(A), Visa Waiver
Program Improvement and Terrorist Travel Prevention Act of 2015, Pub. L. No. 114113, Div. O, Tit. II, 129 Stat. 2988 (2015) (extra vetting for individuals who have
traveled to Iran, Iraq, Sudan, or Syria on or after March 1, 2011); Press Release, Dep’t
of Homeland Sec., DHS Announces Further Travel Restrictions for the Visa Waiver Program
(Feb. 18, 2016), available at https://www.dhs.gov/news/2016/02/18/dhs-announcesfurther-travel-restrictions-visa-waiver-program (adding by executive order extra
vetting for individuals who have traveled to Libya, Somalia, or Yemen).
Those provisions did not impose blanket exclusions but instead required that
certain individuals obtain visas prior to their travel, and none of these orders was been
tainted by statements proclaiming an intention to exclude members of a particular
religion from the United States. See Congressional Research Service, Executive
Authority to Exclude Aliens: In Brief, at 6-10 (Jan. 23, 2017) (describing all Executive
Orders issued pursuant to § 1182(f) and observing that “in no case to date, though,
has the Executive purported to take certain types of action, such as . . . explicitly
distinguishing between categories of aliens based on their religion.”).
While all lawmaking relies on categories as a “practical necessity,” not all
categories are equal. Romer v. Evans, 517 U.S. 620, 631 (1996). When the category is
race, religion, gender, or national origin, alarm bells go off. The Executive Order has
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echoes of the amendment invalidated in Romer, for it too can be described as:
“imposing a broad and undifferentiated disability” – here on nationals or visitors to
seven countries rather than, as in Romer, “a single named” group; “its sheer breadth is
so discontinuous with the reasons offered for it that the amendment seems
inexplicable by anything but animus toward the class it affects; it lacks a rational
relationship to legitimate state interests.” 517 U.S. at 632.
IV. Deliberation Based On A Full Factual Record Is Essential
Amici have set forth several constitutional doctrines that bear on the Executive
Order and which require careful and deliberate consideration—rather than a rush to
judgment. The order in Washington v. Trump has helped to limit the profound
disruption of the administration of justice, of businesses and universities, and of
families. The preliminary injunction in the Eastern District of Virginia has responded
to parallel problems in that state. These orders, like the prior order in this case,
permit an opportunity for careful judicial consideration of the factual and legal issues
posed by the Executive Order, restoring a status quo that the Government has not
shown to pose any imminent risk of harm, or, indeed, to have ever resulted in any of
the harms said to justify the Executive Order.
In carrying out such careful judicial consideration, one final facet of
constitutional history requires discussion, for this is not the first time in our history
that the Government has pressed courts to defer to claims of national security and of
threats identified with people from particular nationalities. The results of deference
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without factual support have often been tragic, as exemplified by the hasty approval
of Japanese internment. 2 Korematsu v. United States, 323 U.S. 214 (1944), has rightly
become part of an “anticanon” – deployed as examples of what U.S. law no longer
accepts as constitutional. See Jamal Greene, The Anticanon, 125 Harv. L. Rev. 380, 396,
456-60 (2011).
A few of the details of Korematsu bear repeating, as there – like here – national
origin stood in as a proxy for risk. In the 1940s, the Court deferred to the
Government’s assertion that national security required the detention of 117,000
people based on their race alone because time purportedly did not permit
individualized determinations. 323 U.S. at 218-219. This claim turned out to be false.
A bi-partisan Congressional Commission later concluded that no evidence supported
the claim of military necessity for internment, and that it was instead the result of
“race prejudice, war hysteria and a failure of political leadership. See Report of the
Commission on Wartime Relocation and Internment of Civilians, Personal Justice
Denied (Washington, D.C., 1982) at 18. Moreover, the government’s representation
that categorical detention was needed because it had insufficient time for

Even at its lowest ebb, the Supreme Court recognized in the companion case to Korematsu, Ex parte
Endo, that individualized hearings for each detainee were required. See 323 U.S. 283, 299-300, 30304 (1944). Faced with the requirement of individualized hearings, the United States released the
Japanese internees four months after the decision in Ex parte Endo. Thus, unless and until the
United States provides a mechanism for such individualized consideration in connection with the
cancellation of valid entry documents, this Court should enjoin the application of the blanket ban to
holders of otherwise valid entry documents.
2

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individualized review was untruthful. See Peter H. Irons, Unfinished Business: The Case
for Supreme Court Repudiation of the Japanese Internment Cases 4, 7-9, 18-19 (2013).
In 1976, the order was formally terminated by President Gerald Ford, who
called the order a “setback to fundamental American principles.” President Ford
urged American’s “to resolve that this kind of action shall never again be repeated.”
Proclamation 4417—An American Promise, 41 Fed. Reg. 7,085 (Feb. 19, 1976).
The next chapter in Korematsu comes from the federal district court grant of a
writ of coram nobis to Mr. Korematsu. As that court wrote, “[a]s historical precedent,”
the decision is a “constant caution that in times of war or declared military necessity
our institutions must be vigilant in protecting constitutional guarantees.” Moreover,
“the shield of military necessity and national security must not be used to protect
governmental actions from close scrutiny and accountability.” Korematsu v. United
States, 584 F. Supp. 1406, 1420 (N.D. Cal. 1984).
One more aspect of Korematsu bears elaboration. The Court has come to
invoke the decision for the proposition that strict scrutiny applies to racial
classifications under equal protection doctrine. “All legal restrictions which curtail the
civil rights of a single racial group are immediately suspect. That is not to say that all
such restrictions are unconstitutional. It is to say that courts must subject them to the
most rigid scrutiny.” Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 288, (1978)
(quoting Korematsu, 323 U.S. at 216). See also Fisher v. Univ. of Tex. at Austin, 133 S. Ct.
2411, 2422, (2013); Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 214 (1995); Loving v.
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Virginia, 388 U.S. 1, 11, (1967).
As the Court explained in City of Richmond v. J.A. Croson Co., “[t]he history of
racial classifications in this country suggests that blind judicial deference to legislative
or executive pronouncements of necessity has no place in equal protection analysis.”
488 U.S. 469, 501 (1989) (citing Korematsu, 323 U.S. at 235-40). By linking national
origin discrimination with racial discrimination, the Court has made plain how one
noxious basis for classification leads to another. Indeed, as Justice Kennedy
eloquently put it: the “identification and protection of fundamental rights is an
enduring part of the judicial duty to interpret the Constitution.” Obergefell v. Hodges,
135 S. Ct. 2584, 2598 (2015).
Conclusion
The Executive Order of January 27, 2017 should not be allowed to stand
without a thorough review that entails fact-based analyses of its legality as a matter of
statutory and constitutional law.
Dated: February 16, 2017

Respectfully submitted,
JONES DAY

Of counsel:
Judith Resnik
Burt Neuborne

/s/ Meir Feder
Meir Feder
Matthew R. Cushing
250 Vesey Street
New York, NY 10281
Telephone: [phone]
Counsel for Amici Curiae Law Professors
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ADDENDUM
List of Amici law professors3:
Kerry Abrams, Professor of Law, University of Virginia School of Law
Bruce Ackerman, Sterling Professor of Law and Political Science, Yale Law School
Janet Cooper Alexander, Frederick I. Richman Professor of Law, Emerita, Stanford
Law School
Erwin Chemerinsky, Dean of the School of Law, Distinguished Professor of Law, and
Raymond Pryke Professor of First Amendment Law, University of California, Irvine
School of Law
Kristin Collins, Professor of Law and Associate Dean for Intellectual Life, Boston
University
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
Brandon L. Garrett, Justice Thurgood Marshall Distinguished Professor of Law,
University of Virginia Law School
Catherine Y. Kim, Associate Professor of Law, University of North Carolina School
of Law
Edward A. Purcell, Jr., Joseph Solomon Distinguished Professor of Law, New York
Law School
Hiroshi Motomura, Susan Westerberg Prager Professor of Law, UCLA School of Law
Burt Neuborne, Norman Dorsen Professor of Civil Liberties and Founding Legal
Director of the Brennan Center for Justice, New York University School of Law
Judith Resnik, Arthur Liman Professor of Law, Yale Law School

3

Institutional affiliations are provided for identification purposes only; this brief does not represent
the institutional views of any entity with which Amici are affiliated.

Stephen I. Vladeck, Professor of Law, University of Texas School of Law
Jonathan T. Weinberg, Professor of Law, Wayne Law

CERTIFICATE OF SERVICE
I hereby certify that I electronically filed the foregoing with the Clerk of the
Court for the United States District Court for the Eastern District of New York by
using the CM/ECF system on February 16, 2017. I certify that all participants in the
case are registered CM/ECF users and that service will be accomplished by the
CM/ECF system.
Dated: February 16, 2017

/s/ Meir Feder
Meir Feder
Jones Day
250 Vesey Street
New York, NY 10281
Telephone: [phone]
[e-mail]
Counsel for Amici Curiae Law Professors