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

Filing 20

Submitted (ECF) Amicus brief for review and filed Motion to become amicus curiae. Submitted by Fred T. Korematsu Center For Law And Equity. Date of service: 02/05/2017. [10302882] [17-35105] (Weisel, Jessica) [Entered: 02/05/2017 09:42 PM]

No. 17-35105
IN THE

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STATE OF WASHINGTON, et al.,
Plaintiffs and Appellees,
v.
DONALD J. TRUMP, President of the United States, et al.,
Defendants and Appellants
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WASHINGTON
HON. JAMES L. ROBART, JUDGE, CASE NO. 2:17-CV-00141
MOTION FOR LEAVE TO FILE BRIEF OF THE FRED T. KOREMATSU
CENTER FOR LAW AND EQUALITY AS AMICUS CURIAE IN
SUPPORT OF PLAINTIFFS-APPELLEES AND AFFIRMANCE

THE FRED T. KOREMATSU CENTER AKIN GUMP STRAUSS HAUER
FOR LAW AND EQUALITY
& FELD LLP
ROBERT S. CHANG
901 12TH AVENUE, SULLIVAN HALL
SEATTLE, WA 98122-1090
TELEPHONE: [phone]
FACSIMILE: 310.229.1001

JESSICA M. WEISEL
1999 AVENUE OF THE STARS, SUITE 600
LOS ANGELES, CA 90067
TELEPHONE: [phone]
FACSIMILE: [phone]
ROBERT ALAN JOHNSON,
(ADMISSION TO BE FILED)
ONE BRYANT PARK
NEW YORK, NY 10036
TELEPHONE: [phone]
FACSIMILE: [phone]

ATTORNEYS FOR AMICUS CURIAE, THE FRED T. KOREMATSU CENTER FOR LAW AND
EQUALITY

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE OF THE FRED
T. KOREMATSU CENTER FOR LAW AND EQUALITY
Pursuant to Federal Rule of Appellate Procedure 29(b), The Fred T.
Korematsu Center for Law and Equality hereby submits this Motion for Leave to
File a Brief Amicus Curiae in support of Plaintiffs-Appellees and Affirmance.1
INTEREST OF AMICUS CURIAE AND REASONS WHY
THE MOTION SHOULD BE GRANTED
Amicus Curiae The Fred T. Korematsu Center for Law and Equality
(“Korematsu Center”) is a non-profit organization based at the Seattle University
School of Law. The Korematsu Center works to advance justice through research,
advocacy, and education. Inspired by the legacy of Fred Korematsu, who defied
military orders during World War II that ultimately led to the unlawful
incarceration of 110,000 Japanese Americans, the Korematsu Center works to
advance social justice for all. The Korematsu Center does not, in this brief or
otherwise, represent the official views of Seattle University.
The Korematsu Center has a special interest in addressing government
action toward persons based on race or nationality. Drawing from its experience
and expertise, the Korematsu Center has a strong interest in ensuring that courts
understand the historical – often racist – underpinnings of doctrines asserted to
support the exercise of such legislative and executive power.
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Plaintiffs-Appellees and Defendant-Appellants have consented to the filing
of the proposed amicus brief.
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The proposed Brief Amicus Curiae is being filed concurrently with consent
of the parties now pending in this Court. As the District Court concluded,
“Fundamental to the work of this court is a vigilant recognition that it is but one of
three equal branches of our federal government” and that it in determining whether
to grant the Plaintiffs-Appellants Temporary Restraining Order it must review the
Executive Order of January 27, 2017 entitled “Protecting the Nation from Foreign
Terrorist Entry into the United States” (the “Executive Order”) “to fulfill its
constitutional role in our tripart government.” TRO Order at 7.

The Defendants-

Appellants maintain that this Court may not review the Executive Order, because
the President has “unreviewable authority” to suspend admission of aliens to this
country. Emergency Motion under Circuit Rule 27-3 for Administrative Stay and
Motion for Stay Pending Appeal (“Mot.”) at 2. In Defendants-Appellants
advancement of the plenary power doctrine in support of limiting the judicial
branch’s authority to question any exercise of [his] executive power in this arena,
the proposed Brief seeks to demonstrate that the plenary power doctrine derived
from decisions like Chae Chan Ping v. United States, 130 U.S. 581 (1889)
(“Chinese Exclusion Case”) and its progeny, that were premised on outdated racist
and nativist precepts that we now reject and outdated understandings of
sovereignty. We urge this Court to consider the historical conditions under which

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the plenary power doctrine developed and justified prior historical developments
which we now recognize as anathema.
As the proposed Brief Amicus Curiae details, the influence of the plenary
power doctrine has been steadily eroded in the immigration context. Separately,
but equally significant, the proposed Brief reviews the historical threads of cases
that abdicated judicial review of executive and legislative actions against entire
races or nationalities and provided judicial sanction of discriminatory action taken
against disfavored minorities.
CONCLUSION
For these reasons, the Court should grant this Motion, and permit the
Korematsu Center to file their concurrently submitted Brief Amicus Curiae.

Respectfully submitted,
Dated: February 5, 2017

AKIN GUMP STRAUSS HAUER &
FELD LLP
By /s/ Jessica M. Weisel
Jessica M. Weisel
1999 Avenue of the Stars, Suite 600
Los Angeles, California 90067
Telephone: [phone]
Facsimile: [phone]
Email:
[e-mail]

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CERTIFICATE OF SERVICE
I hereby certify that I electronically filed the foregoing with the Clerk of the
Court for the United States Court of Appeals for the Ninth Circuit by using the
appellate CM/ECF system on February 5, 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 5, 2017

/s/ Jessica M. Weisel
Jessica M. Weisel

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