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 TRUMP, President of the United States, et al.,
Defendants and Appellants.
APPEAL FROM UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WASHINGTON
HON. JAMES L. ROBART, JUDGE, CASE NO. 2:17-CV-00141

AMICUS BRIEF OF THE FRED T. KOREMATSU
CENTER FOR LAW AND EQUALITY IN SUPPORT OF
APPELLEES
KOREMATSU CENTER FOR LAW
AND EQUALITY
ROBERT S. CHANG
901 12TH AVENUE, SULLIVAN HALL
SEATTLE, WA 98122-1090
TELEPHONE: [phone]
FACSIMILE: [phone]

AKIN GUMP STRAUSS HAUER &
FELD LLP
JESSICA M. WEISEL
1999 AVENUE OF THE STARS, SUITE 600
LOS ANGELES, CA 90067
TELEPHONE: [phone]
FACSIMILE: [phone]
ROBERT A. 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

CORPORATE DISCLOSURE STATEMENT
Pursuant to Federal Rules of Appellate Procedure 26.1 and 29(c)(1),
undersigned counsel for amici make the following disclosures:
The Fred T. Korematsu Center for Law and Equality is a research and
advocacy organization based at Seattle University, a non-profit educational
institution under Section 501(c)(3) of the Internal Revenue Code. The Korematsu
Center does not have any parent corporation or issue stock and consequently there
exists no publicly held corporation which owns 10 percent or more of its stock.

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TABLE OF CONTENTS
Page
CORPORATE DISCLOSURE STATEMENT ....................................................... I
INTEREST OF AMICUS ........................................................................................1
SUMMARY OF ARGUMENT ...............................................................................1
ARGUMENT ...........................................................................................................3
I.

The Plenary Power Doctrine Was Born Out Of Racist Notions
And Outdated Understandings Of Sovereignty That Courts
Now Reject. .........................................................................................3

II.

History Repudiates Decisions That Abdicate Judicial Review
Of Executive And Legislative Actions Against Entire Races Or
Nationalities.......................................................................................10

CONCLUSION ......................................................................................................12

ii

TABLE OF AUTHORITIES
Page(s)
Cases
Adarand Constructors, Inc. v. Pena,
515 U.S. 200 (1995) ............................................................................................ 11
Brown v. Board of Education of Topeka,
347 U.S. 483 (1954) ........................................................................................2, 10
Chae Chan Ping v. United States,
130 U.S. 581 (1889) .....................................................................................passim
Dred Scott v. Sandford,
60 U.S. 393 (1856) ................................................................................................ 5
Fong Yue Ting v. United States,
149 U.S. 698 (1893) ......................................................................................4, 7, 8
Harisiades v. Shaughnessy,
342 U.S. 580 (1952) .......................................................................................... 8, 9
Kerry v. Din,
135 S. Ct. 2128 (2015) .......................................................................................... 7
United States ex rel. Knauff v. Shaughnessy,
338 U.S. 537 (1950) .......................................................................................... 4, 9
Lynch v. Cannatella,
810 F.2d 1363 (5th Cir. 1987) ............................................................................ 10
Nishimura Ekiu v. United States,
142 U.S. 651 (1892) .............................................................................................. 4
Obadele v. United States,
52 Fed. Cl. 432 (2002) ........................................................................................ 11
Plessy v. Ferguson,
163 U.S. 537 (1896) ............................................................................2, 10, 11, 12
Raya-Ledesma v. I.N.S.,
55 F.3d 418 (9th Cir. 1994) .................................................................................. 9
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Reno v. Flores,
507 U.S. 292 (1993) .............................................................................................. 9
Shaughnessy v. United States ex rel. Mezei,
345 U.S. 206 (1953) ......................................................................................4, 8, 9
Tran v. Caplinger,
847 F. Supp. 469 (W.D. La. 1993) ..................................................................... 10
Statutes
Foreign Affairs Reform and Restructuring Act of 1998, 22 U.S.C. §
6501 et. seq. (1998)............................................................................................... 6
Other Authorities
International Convention on the Elimination of All Forms of Racial
Discrimination, G.A. Res. 2106 (XX) (Dec. 21, 1965), ratified by
140 Cong. Rec. S7634 (daily ed. June 24, 1994) ................................................. 6
Jamal Greene, The Anticanon, 125 Harv. L. Rev. 379 (2011) ................................ 11
Michael J. Klarman, The Plessy Era, 1998 Sup. Ct. Rev. 303 (1998) .................... 11
Michael Kagan, Plenary Power is Dead! Long Live Plenary Power,
114 Mich L. Rev. First Impressions 21 (2015)..................................................... 7
Natsu Taylor Saito, The Enduring Effect of the Chinese Exclusion
Cases: The Plenary Power Justification for On-Going Abuses of
Human Rights, 10 Asian Am. L.J. 13 (2003) ....................................................... 4
Plenary Power: Phantom Constitutional Norms and Statutory
Interpretation, 100 Yale L.J. 545 (1990).............................................................. 5
Stephen H. Legomsky, Ten More Years of Plenary Power:
Immigration, Congress, and the Courts, 22 Hastings Const. L.Q.
925 (1995) ............................................................................................................. 9
Susannah W. Pollvogt, Beyond Suspect Classifications, 16 U. Pa. J.
Const. L. 739 (2014) ........................................................................................... 12

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Symposium: The Changing Laws of War: Do We Need A New Legal
Regime After September 11?: The Constitution of Necessity, 79
Notre Dame L. Rev. 1257 (2004) ....................................................................... 11
T. Alexander Aleinikoff, Citizens, Aliens, Membership and the
Constitution, 7 Constitutional Commentary 9 (1990) .......................................... 5
W. Michael Reisman, Sovereignty and Human Rights in
Contemporary International Law, 84 Am. J. Int’l L. 866 (1990) ........................ 6

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INTEREST OF AMICUS
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.1
SUMMARY OF ARGUMENT
The government maintains that this Court may not review the Executive
Order of January 27, 2017, entitled “Protecting the Nation from Foreign Terrorist
Entry into the United States” (the “Executive Order”), because the President has
1

No counsel for any party authored this brief in whole or in part, and no
person or entity other than amicus made a monetary contribution to its preparation
or submission. This brief is filed with the consent of all parties. See Motion for
Leave to File Amicus Brief, filed concurrently.
1

“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. That argument advances the plenary power
doctrine, which, like the “separate but equal” doctrine, is a relic of an odious past
that has no role in modern American jurisprudence. Just as Plessy v. Ferguson was
influenced by nineteenth century views anathema today, the plenary power
doctrine derives from decisions like Chae Chan Ping v. United States, 130 U.S.
581 (1889) (“Chinese Exclusion Case”), that were premised on outdated racist and
nativist precepts that we now reject.
When confronted with a similar precedent in Brown v. Board of Education
of Topeka, 347 U.S. 483 (1954), the Supreme Court recognized that it “cannot turn
the clock back” and decide its former cases differently. Instead, it would have to
consider the subject of the law – public education in Brown, immigration policy
here – “in the light of its full development and its present place in American life
throughout the Nation.” Id. at 492-93. Consistent with that principle, courts have
not given total deference to executive and legislative decisions on exclusion, but
have engaged in appropriate judicial review. 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 must review the

2

Executive Order “to fulfill its constitutional role in our tripart government.” TRO
Order at 6-7. This Court should do the same.
ARGUMENT
I.

THE PLENARY POWER DOCTRINE WAS BORN OUT OF RACIST
NOTIONS AND OUTDATED UNDERSTANDINGS OF
SOVEREIGNTY THAT COURTS NOW REJECT.
The birthplace of the plenary power doctrine, the Chinese Exclusion Case,

relies on racist descriptions of Chinese immigrants that stoked xenophobia. The
Court stereotyped Chinese laborers as “industrious,” “frugal” and “content with the
simplest fare, such as would not suffice for our laborers and artisans.” 130 U.S. at
595 (emphasis added). These stereotypes informed the xenophobia of the opinion,
driven by fear of “strangers in the land, residing apart by themselves, and adhering
to the customs and usages of their own country”—whose presence amounted to
“an Oriental invasion.” Id.; see also id. at 606 (“the government of the United
States, though its legislative department,” could lawfully “consider[] the presence
of foreigners of a different race…who will not assimilate with us, to be dangerous
to its peace and security” despite the absence of “actual hostilities”) (emphasis
added).
Justice Field’s acceptance of Congress’s conclusion that Chinese immigrants
are incompatible with American society due to “differences of race” drove the
outcome in plenary power doctrine cases, which are “inextricably linked” to the

3

idea of the “‘Other’ in America today, whether by virtue of race, ethnicity, national
origin, religion, or citizenship status.” Natsu Taylor Saito, The Enduring Effect of
the Chinese Exclusion Cases: The Plenary Power Justification for On-Going
Abuses of Human Rights, 10 Asian Am. L.J. 13, 13 (2003).
Similar racist and xenophobic justifications pervade plenary power doctrine
cases flowing from the Chinese Exclusion Case. In these cases, the “right of selfpreservation” advanced as justification for the plenary power doctrine’s broad
immunity in exclusion cases was racial self-preservation, not the preservation of
borders or national security. E.g., Chinese Exclusion Case, 130 U.S. at 608; Saito
at 15; see also, e.g., Fong Yue Ting v. United States, 149 U.S. 698, 729-30 (1893)
(discussing the requirement that Chinese aliens prove the fact of their U.S.
residence “by at least one credible white witness” in order to remain in the
country); Nishimura Ekiu v. United States, 142 U.S. 651, 664 & n.1 (1892)
(exclusion of Japanese immigrant who was “likely to become a public charge”).2
These racial underpinnings have led courts to apply the plenary power doctrine,
relying on an “aberrational form of the typical relationship between statutory

2

Later cases do not explicitly discuss or express support for race-based
distinctions, but do so implicitly through their reliance on the reasoning of the
Chinese Exclusion Case and its progeny. See Shaughnessy v. United States ex rel.
Mezei, 345 U.S. 206, 210 (1953); United States ex rel. Knauff v. Shaughnessy, 338
U.S. 537, 543 (1950).

4

interpretation and constitutional law” in the area of immigration law. Hiroshi
Motomura, Immigration Law After a Century of Plenary Power: Phantom
Constitutional Norms and Statutory Interpretation, 100 Yale L.J. 545, 549 (1990);
see also T. Alexander Aleinikoff, Citizens, Aliens, Membership and the
Constitution, 7 Constitutional Commentary 9, 33 (1990) (Chinese Exclusion laws
“should serve as cautionary examples to those who would urge that the
immigration power be left unconstrained by the Constitution in order to promote
the maintenance of ‘communities of character.’”).
The overt racism of these cases contributes to an additional flaw in the
doctrine – their reliance on an outdated and race-based meaning of sovereignty.
The Chinese Exclusion Case states that “[t]he power of exclusion of foreigners” is
“an incident of sovereignty belonging to the government of the United States . . .
delegated by the [C]onstitution.”3 130 U.S. at 609. Since then, the concept of
sovereignty has evolved to incorporate principles of fundamental human rights and
anti-discrimination, shifting the system “from the protection of sovereigns to the

3

This same race-based concept of sovereignty is discussed at length in Dred
Scott v. Sandford, which explained that, historically, “negroes of African race”
were not “constituent members of this sovereignty[.]” 60 U.S. 393, 403-04 (1856).
Therefore, they had “none of the rights and privileges” that the Constitution
“provides for and secures to citizens of the United States” but only “such as those
who held the power and the Government might choose to grant them.” Id. at 40405.

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protection of people.” See W. Michael Reisman, Sovereignty and Human Rights in
Contemporary International Law, 84 Am. J. Int’l L. 866, 872 (1990). This change
is reflected in congressional action incorporating these principles in federal law.
See, e.g., Foreign Affairs Reform and Restructuring Act of 1998, 22 U.S.C. § 6501
et. seq. (1998) (adopting UN Convention Against Torture and issuing related
regulations, which prevent the U.S. government from removing or extraditing an
alien to a country where they may be subject to torture); International Convention
on the Elimination of All Forms of Racial Discrimination, G.A. Res. 2106 (XX)
(Dec. 21, 1965), ratified by 140 Cong. Rec. S7634 (daily ed. June 24, 1994);
Motomura at 566 (“By the 1950s, aliens’ rights decisions beyond the scope of
immigration law already conflicted with assumptions implicit in the plenary power
doctrine.”). These changes require reinterpretation, or modernization, of other
norms to avoid “the absurdity of mechanically applying an old norm without
reference to fundamental constitutive changes.” Reisman at 873.
Perhaps reflective of the shift away from race-based characterizations and
the outdated meaning of sovereignty, modern courts have refused to abdicate their
power to judicially review immigration matters. Relying on early dissents in
plenary power cases, numerous lower courts have applied contemporary
constitutional principles in reviewing immigration actions by the political
branches. After more than a century of erosion, the plenary power doctrine does

6

not appear to retain the support of a majority of justices on current Supreme Court.
See Kerry v. Din, 135 S. Ct. 2128 (2015) (in visa denial case, plurality opinion did
not rely on plenary power); see also See Michael Kagan, Plenary Power is Dead!
Long Live Plenary Power, 114 Mich L. Rev. First Impressions 21 (2015) (noting
that while the Court declined to repudiate the plenary power doctrine in Kerry v.
Din, the split between the Justices suggests the doctrine is no longer as impactful
as it once was). Courts have not - and should not - abdicate their responsibility to
uphold constitutional safeguards in the area of immigration.
One of the earliest plenary power cases, Fong Yue Ting v. United States, 149
U.S. 698, generated three dissenting opinions, each of which highlighted a resident
alien’s ties to the U.S. as a basis to justify greater legal protection. See, e.g., Fong
Yue Ting, 149 U.S. at 738 (Brewer, J. dissenting) (“I deny that there is any
arbitrary and unrestrained power to banish residents, even resident aliens.”).
Justice Field – who announced the opinion of the court in the Chinese Exclusion
Case – dissented in Fong Yue Ting. Even while praising the Chinese Exclusion
Case, upon which the majority relied to reach its holding, Justice Field sought to
limit the plenary power doctrine’s application with regard to non-citizen residents:
As men having our common humanity, they are protected
by all the guaranties of the constitution. To hold that they
are subject to any different law, or are less protected in
any particular, than other persons, is, in my judgment, to
ignore the teachings of our history, the practice of our

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government, and the language of our constitution.
Fong Yue Ting, 149 U.S. at 754 (Fields, J. dissenting) (emphasis added).
Nearly a century later, judicial skepticism regarding an unrestrained plenary
power persisted. Dissenting in Harisiades v. Shaughnessy, 342 U.S. 580 (1952),
Justice Douglas drew on Justice Brewer’s dissent in Fong Yue Ting, arguing that
the implied power of deportation should not be given priority over the express
guarantee of the Fifth Amendment. Harisiades, 342 U.S. at 599-600 (Douglas, J.
dissenting). Justice Douglas repeated Justice Brewer’s warning:
‘This doctrine of powers inherent in sovereignty is one
both indefinite and dangerous . . . The governments of
other nations have elastic powers. Ours are fixed and
bounded by a written constitution. The expulsion of a
race may be within the inherent powers of a despotism.
History, before the adoption of this constitution, was not
destitute of examples of the exercise of such a power;
and its framers were familiar with history, and wisely, as
it seems to me, they gave to this government no general
power to banish.’
Id. (Douglas, J. dissenting) (emphasis added).
Along with Justices Black, Jackson, and Frankfurter, Justice Douglas
supported limitations to the plenary power doctrine. These Justices “expressed
serious concern that aliens would be denied access to judicial review in such harsh
and unremitting terms,” dissenting in influential McCarthy-era plenary power
cases. See Motomura at 560; see also Shaughnessy, 345 U.S. at 217 (Black, J.

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dissenting) (“No society is free where government makes one person's liberty
depend upon the arbitrary will of another. Dictatorships have done this since time
immemorial. They do now.”); id. at 224 (Jackson, J. dissenting) (“I conclude that
detention of an alien would not be inconsistent with substantive due process,
provided – and this is where my dissent begins – he is accorded procedural due
process of law.”).
Over time, the dissents in Mezei, Knauff, and Harisiades gained influence,
leading to “an expansion in the number and range of claims that courts, including
the Supreme Court, would hear in immigration cases.” Motomura at 560. Lower
courts have declined to abdicate review entirely and instead have applied “the
rational basis test to substantive due process and equal protection challenges
[arising from deportation]; . . . the traditional Mathews v. Eldridge factors to
procedural due process challenges; and . . . First Amendment standards to
[immigration] restrictions [arising out of] political speech and association.”
Stephen H. Legomsky, Ten More Years of Plenary Power: Immigration, Congress,
and the Courts, 22 Hastings Const. L.Q. 925, 934–35 (1995); see e.g., Reno v.
Flores, 507 U.S. 292, 306 (1993) (holding that despite the broad power of the
political branches over immigration, INS regulations must meet the rational basis
test by “rationally advancing some legitimate governmental purpose.”); RayaLedesma v. I.N.S., 55 F.3d 418, 420 (9th Cir. 1994) (finding application of

9

residency requirement for discretionary relief from deportation had a rational basis
and therefore did not violate legal permanent resident’s right to equal protection);
Tran v. Caplinger, 847 F. Supp. 469, 478-79 (W.D. La. 1993) (engaging in
substantive due process analysis as to whether detention imposed was “merely
incidental to another legitimate governmental purpose”); Lynch v. Cannatella, 810
F.2d 1363, 1366 (5th Cir. 1987) (“We hold that even excludable aliens are entitled
to the protection of the due process clause while they are physically in the United
States. . . .”).
Thus, as these cases have implicitly recognized, courts are not required to
defer completely to the exercise of executive or legislative power over immigration
matters.
II.

HISTORY REPUDIATES DECISIONS THAT ABDICATE JUDICIAL
REVIEW OF EXECUTIVE AND LEGISLATIVE ACTIONS
AGAINST ENTIRE RACES OR NATIONALITIES.
Perhaps it is not surprising that the Supreme Court that decided the Chinese

Exclusion Case had largely the same composition of the Court that upheld racial
segregation under the doctrine of “separate but equal” in Plessy v. Ferguson, 163
U.S. 537 (1896). Plessy was, of course, overturned on Equal Protection grounds in
Brown, 347 U.S. 483, and, like other cases that establish broad authority to
discriminate against entire races or nationalities, are now considered the nadir of
American jurisprudence.

10

Korematsu and Plessy are considered cases that “embod[y] a set of
propositions that all legitimate constitutional decisions must be prepared to refute.”
Jamal Greene, The Anticanon, 125 Harv. L. Rev. 379, 380 (2011); see also
Michael J. Klarman, The Plessy Era, 1998 Sup. Ct. Rev. 303, 304 (1998)
(“Commentators have called Plessy ‘ridiculous and shameful,’ ‘racist and
repressive,’ and a ‘catastrophe.’”).
Like the government urges here, those decisions gave broad deference to the
political branches of government to take action disfavored minorities. History,
however, has rejected judicial sanction of those actions. Not only do we dismiss
those cases as wrongly decided, we condemn those courts for allowing racist views
to go unchecked by the judiciary. See, e.g., Adarand Constructors, Inc. v. Pena,
515 U.S. 200, 275 (1995) (Ginsburg, J. dissenting) (describing the use of strict
scrutiny in Korematsu to “yield[] a pass for an odious, gravely injurious racial
classification . . . A Korematsu-type classification . . . will never again survive
scrutiny: Such a classification, history and precedent instruct, properly ranks as
prohibited.”); Obadele v. United States, 52 Fed. Cl. 432, 441 (2002) (“Half a
century of equal protection jurisprudence has confirmed the error of [Korematsu’s]
wartime judicial abdication.”); see also Symposium: The Changing Laws of War:
Do We Need A New Legal Regime After September 11?: The Constitution of
Necessity, 79 Notre Dame L. Rev. 1257, 1259 (2004) (complete “judicial

11

acquiescence or abdication” of performing checks on Presidential power “has a
name. That name is Korematsu”); Susannah W. Pollvogt, Beyond Suspect
Classifications, 16 U. Pa. J. Const. L. 739, 748-51 (2014) (deferential standard of
review applied in Plessy was “incapable of identifying and addressing
contemporary prejudices”).
History would look similarly at this case and this Court if it allows the
Executive Order to evade review. Relying on the plenary power doctrine, a
doctrine rooted in racism and xenophobia, to permit the Executive Order to stand
will be seen for what it is – the judiciary’s abdication of its duty to stand as a
bulwark against those who would undermine our core constitutional principles.
CONCLUSION
For the foregoing reasons, this Court should deny the emergency motion.

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Respectfully submitted,
Dated: February 5, 2017

AKIN GUMP STRAUSS HAUER &
FELD LLP
THE FRED T. KOREMATSU CENTER
FOR LAW AND EQUALITY

By

/s/ Jessica M. Weisel
Jessica M. Weisel

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

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CERTIFICATE OF COMPLIANCE
I hereby certify that, pursuant to Fed. R. App. P. 29(d) and 9th Cir. R. 32-1,
the attached brief is double spaced, uses a proportionately spaced typeface of 14
points or more, and contains a total of 2,904 words, based on the word count
program in Microsoft Word.
Dated: February 5, 2017

AKIN GUMP STRAUSS HAUER &
FELD LLP
THE FRED T. KOREMATSU CENTER
FOR LAW AND EQUALITY

By

/s/ Jessica M. Weisel
Jessica M. Weisel

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

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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 parties in the case are registered CM/ECF users and that
service will be accomplished by the CM/ECF system.
Dated: February 5, 2017

By

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/s/ Jessica M. Weisel
Jessica M. Weisel