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

Filing 21

Filed (ECF) State of Hawai'i Motion to intervene and response opposing motion (motion to stay lower court action) [14]. Date of service: 02/05/2017. [10302884] [17-35105]--[COURT UPDATE: Updated docket text to reflect content of filing, resent notice. 02/06/2017 by ASW] (Katyal, Neal) [Entered: 02/05/2017 09:55 PM]

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Ý¿-» ïæïéó½ªóðððëðóÜÕÉóÕÖÓ Ü±½«³»²¬ îóï Ú·´»¼ ðîñðíñïé Ð¿¹» ï ±º ìç íéç Ð¿¹»×Ü ýæ IN THE UNITED STATES DISTRICT COURT Plaintiff, v. Civil Action No. ________ DONALD J. TRUMP, in his official capacity as President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY; JOHN F. KELLY, in his official capacity as Secretary of Homeland Security; U.S. DEPARTMENT OF STATE; REX TILLERSON, in his official capacity as Secretary of State; and the UNITED STATES OF AMERICA, MEMORANDUM IN SUPPORT FOR TEMPORARY RESTRAINING ORDER Defendants. MOTION FOR TEMPORARY RESTRAINING ORDER Ý¿-» ïæïéó½ªóðððëðóÜÕÉóÕÖÓ Ü±½«³»²¬ îóï Ú·´»¼ ðîñðíñïé Ð¿¹» î ±º ìç íèð Ð¿¹»×Ü ýæ TABLE OF CONTENTS Page TABLE OF AUTHORITIES ................................................................................... iii INTRODUCTION .....................................................................................................1 FACTUAL BACKGROUND....................................................................................2 A. Candidate Trump Calls For A Muslim Ban .....................................2 B. President Trump Implements His Discriminatory Bans..................................................................................................4 C. ..........................................................................8 STANDARD OF REVIEW .....................................................................................11 ARGUMENT ...........................................................................................................11 A. Claims.............................................................................................12 1. The Order Violates the Establishment Clause .....................12 2. The Order Violates Equal Protection and the .............................18 a. b. The Order violates procedural due process .......................................................................21 c. 3. The Order violates equal protection and the right to travel .......................................................19 The plenary-power doctrine does not change the outcome ...................................................23 The Order is Inconsistent with the Immigration and Nationality Act ..............................................................26 a. -based classifications violate the INA ..................................26 i Ý¿-» ïæïéó½ªóðððëðóÜÕÉóÕÖÓ Ü±½«³»²¬ îóï Ú·´»¼ ðîñðíñïé Ð¿¹» í ±º ìç íèï TABLE OF CONTENTS Ð¿¹»×Ü ýæ Continued Page b. -based classifications violate the INA ..................................28 c. The INA does not authorize the President to impose sweeping class-based restrictions on immigration .......................................29 4. ..................32 B. Not Granted .................................................................................35 C. The Balance of the Equities and Public Interest Favor Relief .................................................................................38 CONCLUSION........................................................................................................39 ii Ý¿-» ïæïéó½ªóðððëðóÜÕÉóÕÖÓ Ü±½«³»²¬ îóï Ú·´»¼ ðîñðíñïé Ð¿¹» ì ±º ìç íèî Ð¿¹»×Ü ýæ TABLE OF AUTHORITIES Page(s) CASES: Access Fund v. , 499 F.3d 1036 (9th Cir. 2007) ......................................................................13, 16 Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592 (1982)............................................................................................38 Arizona Dream Act Coal. v. Brewer, 757 F.3d 1053 (9th Cir. 2014) ............................................................................36 Bond v. United States, 564 U.S. 211 (2011)............................................................................................36 Casas-Castrillon v. , 535 F.3d 942 (9th Cir. 2008) ..............................................................................22 Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290 (D.C. Cir. 2006)............................................................................35 City of Sausalito v. , 386 F.3d 1186 (9th Cir. 2004) ............................................................................34 Clinton v. City of New York, 524 U.S. 417 (1998)............................................................................................32 Davis v. Passman, 442 U.S. 228 (1979)............................................................................................19 Edwards v. Aguillard, 482 U.S. 578 (1987)............................................................................................15 Employment Div. v. Smith, 494 U.S. 872 (1990)............................................................................................19 Farris v. Seabrook, 677 F.3d 858 (9th Cir. 2012) ........................................................................11, 35 iii Ý¿-» ïæïéó½ªóðððëðóÜÕÉóÕÖÓ Ü±½«³»²¬ îóï Ú·´»¼ ðîñðíñïé Ð¿¹» ë ±º ìç íèí TABLE OF AUTHORITIES Ð¿¹»×Ü ýæ Continued Page FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000)............................................................................................32 Grayned v. City of Rockford, 408 U.S. 104 (1972)............................................................................................23 Hampton v. Mow Sun Wong, 426 U.S. 88 (1976)........................................................................................19, 24 Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171 (2012)......................................................................................12, 13 In re Griffiths, 413 U.S. 717 (1973)............................................................................................19 INS v. Aguirre-Aguirre, 526 U.S. 415 (1999)............................................................................................28 INS v. Cardoza-Fonseca, 480 U.S. 421 (1987)............................................................................................28 Kent v. Dulles, 357 U.S. 116 (1958)............................................................................................21 Khan v. Holder, 584 F.3d 773 (9th Cir. 2009) ..............................................................................28 Kleindienst v. Mandel, 408 U.S. 753 (1972)..........................................................................17, 23, 24, 25 Kwai Fun Wong v. United States, 373 F.3d 952 (9th Cir. 2004) ..............................................................................24 Landon v. Plasencia, 459 U.S. 21 (1982)........................................................................................21, 22 Larson v. Valente, 456 U.S. 228 (1982)......................................................................................13, 17 iv Ý¿-» ïæïéó½ªóðððëðóÜÕÉóÕÖÓ Ü±½«³»²¬ îóï Ú·´»¼ ðîñðíñïé Ð¿¹» ê ±º ìç íèì TABLE OF AUTHORITIES Ð¿¹»×Ü ýæ Continued Page Legal Assistance for Vietnamese Asylum Seekers v. Bureau of Consular Affairs, 45 F.3d 469 (D.C. Cir. 1995), vacated on other grounds, 519 U.S. 1 (1996) ....................................................26 Lemon v. Kurtzman, 403 U.S. 602 (1971)................................................................................13, 16, 18 Lincoln v. Vigil, 508 U.S. 182 (1993)............................................................................................32 Mathews v. Eldridge, 424 U.S. 319 (1976)............................................................................................22 McCreary Cty., Ky. v. Am. Civil Liberties Union of Ky., 545 U.S. 844 (2005)......................................................................................15, 16 Melendres v. Arpaio, 695 F.3d 990 (9th Cir. 2012) ..............................................................................38 Miller v. Johnson, 515 U.S. 900 (1995)......................................................................................19, 21 Missouri v. Holland, 252 U.S. 416 (1920)............................................................................................36 Olsen v. Albright, 990 F. Supp. 31 (D.D.C. 1997)...........................................................................27 Oracle USA, Inc. v. Rimini St., Inc., 2016 WL 5213917 (9th Cir. Sept. 21, 2016) ......................................................37 Patel v. INS, 811 F.2d 377 (7th Cir. 1987) ..............................................................................28 Rosenberg v. Fleuti, 374 U.S. 449 (1963)............................................................................................22 Sacora v. Thomas, 628 F.3d 1059 (9th Cir. 2010) ............................................................................33 v Ý¿-» ïæïéó½ªóðððëðóÜÕÉóÕÖÓ Ü±½«³»²¬ îóï Ú·´»¼ ðîñðíñïé Ð¿¹» é ±º ìç íèë TABLE OF AUTHORITIES Ð¿¹»×Ü ýæ Continued Page Shelby Cty. v. Holder, 133 S. Ct. 2612 (2013)........................................................................................36 Stone v. Graham, 449 U.S. 39 (1980) (per curiam)...................................................................13, 14 Time Warner Cable Inc. v. FCC, 729 F.3d 137 (2d Cir. 2013) ...............................................................................33 Town of Greece, N.Y. v. Galloway, 134 S. Ct. 1811 (2014)..................................................................................16, 17 United Dominion Indus. v. United States, 532 U.S. 822 (2001)......................................................................................27, 30 United States v. Juvenile Male, 670 F.3d 999 (9th Cir. 2012) ..............................................................................30 United States v. Windsor, 133 S. Ct. 2675 (2013)........................................................................................20 Utley v. Varian Assocs., Inc., 811 F.2d 1279 (9th Cir. 1987) ............................................................................15 Wallace v. Jaffree, 472 U.S. 38 (1985)..............................................................................................14 Whitman v. , 531 U.S. 457 (2001)............................................................................................32 Winter v. Nat. Res. Def. Council, 555 U.S. 7 (2008)................................................................................................11 Wong Wing Hang v. INS, 360 F.2d 715 (2d Cir. 1966) (Friendly, J.) .........................................................28 Zadvydas v. Davis, 533 U.S. 678 (2001)................................................................................21, 23, 24 vi Ý¿-» ïæïéó½ªóðððëðóÜÕÉóÕÖÓ Ü±½«³»²¬ îóï Ú·´»¼ ðîñðíñïé Ð¿¹» è ±º ìç íèê TABLE OF AUTHORITIES Ð¿¹»×Ü ýæ Continued Page STATUTES: 5 U.S.C. § 553(b)-(c) ...............................................................................................32 5 U.S.C. § 706(2) .....................................................................................................34 8 U.S.C. § 1152(a)(1)(A) .......................................................................26, 27, 28, 30 8 U.S.C. § 1182(f)..................................................................................26, 29, 30, 32 8 U.S.C. § 1522(a)(5)...............................................................................................29 Haw. Rev. Stat. §§ 378-2(1) ....................................................................................35 CONSTITUTIONAL PROVISIONS U.S. Const. amend. I ..........................................................................................12, 35 U.S. Const. amend. V.........................................................................................11, 21 U.S. Const. amend. XIV ..........................................................................................19 U.S. Const. art. I, § 8................................................................................................24 ...................................................................................35 LEGISLATIVE MATERIAL: H.R. Rep. No. 89-745 (1965)...................................................................................26 OTHER AUTHORITIES: 1 Annals of Cong. 730-731 (1789) ..........................................................................13 Cong. Research Serv., Executive Authority to Exclude Aliens: In Brief (Jan. 23, 2017) ...........................................................................................30 Statement by Secretary John Kelly on the Entry of Lawful Permanent Residents Into the United States (Jan. 29, 2017) ................................................31 vii Ý¿-» ïæïéó½ªóðððëðóÜÕÉóÕÖÓ Ü±½«³»²¬ îóï Ú·´»¼ ðîñðíñïé Ð¿¹» ç ±º ìç íèé TABLE OF AUTHORITIES Ð¿¹»×Ü ýæ Continued Page United Nations Convention Relating to the Status of Refugees art. 3, July 28, 1951, 19 U.S.T. 6259 ......................................................................26, 28 viii Ý¿-» ïæïéó½ªóðððëðóÜÕÉóÕÖÓ Ü±½«³»²¬ îóï Ú·´»¼ ðîñðíñïé Ð¿¹» ïð ±º ìç íèè Ð¿¹»×Ü ýæ INTRODUCTION On January 27, 2017, President Donald Trump signed an Executive Order that banned immigrants from seven Muslim-majority countries and created a preference for Christian refugees. That Order has triggered an uproar across the United States and the world. And rightfully so: As many have observed, the Order is a distressing departure from an American tradition that has long celebrated immigrants and opened its arms to the homeless, the tempest-tossed. But this pleading is not about politics or rhetoric it is about the law. The simple fact is that the Order is unlawful. By banning Muslims and creating a preference for Christian refugees, the Order violates the Establishment Clause of the United States Constitution. By those same acts, it violates the equal protection guarantee of the Fifth Amendment. By failing utterly to provide procedures or protections of any kind for people detained or turned away at our airports, it violates the Due Process Clause. And by enshrining rank discrimination on the basis of nationality and religion, it flies in the face of statutes enacted by Congress. residents from traveling 1 Ý¿-» ïæïéó½ªóðððëðóÜÕÉóÕÖÓ Ü±½«³»²¬ îóï Ú·´»¼ ðîñðíñïé Ð¿¹» ïï ±º ìç íèç Ð¿¹»×Ü ýæ nesses and universities from hiring as they see fit. Perhaps most importantly, it is degrading the pluralistic values has worked hard to protect and subjecting an identifiable portion of its population to discrimination and second-class treatment. blocking enforcement of key portions of the Order. The test for such a remedy is unlawful several enforcement. And those harms far outweigh the non-existent interest the Executive Branch has identified in enforcing its discriminatory regime. The motion should be granted. FACTUAL BACKGROUND A. Candidate Trump Calls For A Muslim Ban. Then-candidate Donald Trump made it crystal clear throughout his presidential campaign that if elected, he planned to bar Muslims from the United States. Shortly after the Paris attacks in December 2015, Mr. Trump issued a press Compl. ¶ 30 & Ex. 5. When questioned about the idea shortly thereafter, he compared it to 2 Ý¿-» ïæïéó½ªóðððëðóÜÕÉóÕÖÓ Ü±½«³»²¬ îóï Ú·´»¼ ðîñðíñïé Ð¿¹» ïî ±º ìç íçð Ð¿¹»×Ü ýæ -based internment of the Japanese during World War II, Compl. ¶ 31. And when asked what the customs process would look like for a Muslim non-citizen attempting to enter the Id. Later, as the presumptive Republican nominee, Mr. Trump began using facially neutral language to describe the Muslim ban; he described his proposal as Compl. ¶ 34. But he continued to link that idea to the ne Id. And he continued to admit, when pressed, that his plan to ban Muslims remained al and complete shutrollback. Compl. ¶ 36 & Ex. 6. And he use the word Id. Indeed, it is now clear that Mr. Trump apparently recognizing that he could not come right out and implement his Muslim ban without violating the 3 Ý¿-» ïæïéó½ªóðððëðóÜÕÉóÕÖÓ Ü±½«³»²¬ îóï Ú·´»¼ ðîñðíñïé Ð¿¹» ïí ±º ìç íçï Ð¿¹»×Ü ýæ law was working behind the scenes to create a suitable subterfuge. In a recent sion together. Show me the right way to do it legally Compl. ¶ 54 & Ex. 8. After his election, the President-Elect signaled that he would not retreat from his Muslim ban. On December 21, 2016, he was asked whether he -evaluate [his] plans to create a Muslim registry or ban out the presidential campaign, he vowed to curb refugee admissions, particularly from Syria. point, he promised to deport the 10,000 Syrian refugees the Administration had accepted for 2016. Compl. ¶ 29. Meanwhile, he asserted (wrongly) that Christian refugees from Syria were being blocked. Christian, you cannot c B. President Trump Implements His Discriminatory Bans. Within one week of being sworn in as President, Donald Trump acted upon his ominous campaign promises. On January 27, 2017, he signed an Executive 4 Ý¿-» ïæïéó½ªóðððëðóÜÕÉóÕÖÓ Ü±½«³»²¬ îóï Ú·´»¼ ðîñðíñïé Ð¿¹» ïì ±º ìç íçî Ð¿¹»×Ü ýæ Order Compl. ¶¶ 2, 41 & Ex. 1. When signing the Order, President ¶ 43. The Order has two dramatic effects: It categorically bans immigration from seven Muslim-majority countries for a set period; and it halts admission of any refugees, subject to a targeted carveeach country. First, Section 3(c) majority countries Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen Exceptions are made for narrow categories of diplomats. Putting aside those diplomats, Section 3(c) means that for 90 days all non-U.S. citizens from those seven countries are barred. And it means that even people who have been living legally in the United States foreign students enrolled in U.S. universities, refugees already granted asylum here, and people employed in the United States on temporary work visas, among others will be halted at the border if they travel outside the United States. Section 3(g) gives the -by-case basis * * * issue visas or other immigration benefits to nationals of countries for which 5 Ý¿-» ïæïéó½ªóðððëðóÜÕÉóÕÖÓ Ü±½«³»²¬ îóï Ú·´»¼ ðîñðíñïé Ð¿¹» ïë ±º ìç íçí Ð¿¹»×Ü ýæ Id. However, it provides no procedure for an alien to request such an exception or for the Secretaries to process one. By its plain terms, this order bars lawful permanent residents (LPRs) from the seven prohibited nations from reentering the country. Two days after the order was issued, Secretary of Homeland Security Kelly issued a press release purporting to categorically exempt LPRs from the travel ban. Compl. ¶ 62. Four days later, the White House changed its mind and issued a memorandum stating that, despite e not covered in the first place. Compl. ¶ 64. seven designated countries, the Order indicates that more will be added to the list. other [immigration] benefit * * * in order to determine that the individual * * * is not a security or public- Id. § 3(a), (d). providing such information [to the United States] regarding their nationals within Id. If foreign countries do not comply, the Secretaries of Homeland Security and State are dir Id. 6 Ý¿-» ïæïéó½ªóðððëðóÜÕÉóÕÖÓ Ü±½«³»²¬ îóï Ú·´»¼ ðîñðíñïé Ð¿¹» ïê ±º ìç íçì The Order also bars refugees Ð¿¹»×Ü ýæ and it does so in a way that discriminates based on religion. Sections 5(a) and (b) impose a 120-day moratorium on the U.S. Refugee Admissions Program, and Section 5(c) suspends entry of Syrian refugees indefinitely. When refugee admissions resume, the Order directs the Secretary of State to prioritize refugees claiming religious- vided that the Id. § 5(b). It also provides that even during the initial 120-day period, the Secretaries of State and Homeland Security can admit refugees on a case-by- Id. § 5(e). person is a religious minority in his country of nationality facing religious Id. Because all seven countries named in the Order have majority-Muslim populations, these provisions create a preference for Christians. They mean that Christians (and other non-Muslim religions) may enter the United States as refugees and may obtain priority treatment, while Muslims may not. In an interview on January 27, President Trump told the Christian Broadcasting Network 7 Ý¿-» ïæïéó½ªóðððëðóÜÕÉóÕÖÓ Ü±½«³»²¬ îóï Ú·´»¼ ðîñðíñïé Ð¿¹» ïé ±º ìç íçë Ð¿¹»×Ü ýæ C. eeted by widespread protests and Within five days, more than 100 people had been detained at U.S. airports pursuant Compl. ¶ 55. That included dozens of lawful permanent residents, an Iraqi national with Special Immigrant Visa status who had worked as an interpreter for the U.S. army in Iraq, and a doctor at the Cleveland Clinic with a work visa who was trying to return home from vacation. Compl. ¶ 57. Hundreds of others were blocked from boarding flights to the United States or have been notified that they can no longer come here including foreign students with valid visas and Syrian refugees with visas and U.S. placements already lined up. Compl. ¶ 58. According to a Justice Department lawyer, more than 100,000 visas have been revoked since the Order was signed. Id. Meanwhile, thousands of diplomats, former diplomats, and legislators from both parties spoke out against the ban, calling it inhumane and discriminatory. f visas. Compl. ¶ 60 & Ex. 10. Senators John McCain (R-AZ) and Lindsey Graham 8 Ý¿-» ïæïéó½ªóðððëðóÜÕÉóÕÖÓ Ü±½«³»²¬ îóï Ú·´»¼ ðîñðíñïé Ð¿¹» ïè ±º ìç íçê Ð¿¹»×Ü ýæ (Rdoes not want M designated countries workers including foreign students, refugees, and temporary whose lives have now been upended by the Order. See Compl. ¶¶ 10- 11, 14, 68. Because of the Order, they cannot leave the country for family, educational, religious, or business reasons if they wish to return. Indeed, one State employee of John Doe 2 (Ex. B), ¶¶ 8-11. Conversely, nationals of the seven designated ts are being thwarted from reuniting with their families as a result of the Order including a U.S. citizen, and his wife and five children (all also U.S. citizens), who are being prevented from seeing or reuniting and living with their Syrian mother-in-law/mother/grandmother, Decl. of Elshikh (Ex. H), ¶¶4-7; and at least two others who are currently being separated from members of their immediate family but are too fearful of future government retaliation to provide details in a public filing, Decl. of John Doe 1 (Ex. A), ¶¶ 6, 10, 13; Decl. of John Doe 3 (Ex. C), ¶¶ 3-4. 9 Ý¿-» ïæïéó½ªóðððëðóÜÕÉóÕÖÓ Ü±½«³»²¬ îóï Ú·´»¼ ðîñðíñïé Ð¿¹» ïç ±º ìç íçé Ð¿¹»×Ü ýæ qua Honolulu and Kona International Airports. Compl. ¶ 67. As a result of the Order, international passengers coming into Hawaii will be used by the federal government to carry out the unlawful acts required by the Order. Compl. ¶ 71; Decl. of R. Higashi (Ex. G), ¶¶ 5-7. Likewise, State universities and agencies cannot accept qualified applicants for positions if they are nationals of one of the seven designated countries; other employers within the State cannot recruit and/or tourists See Compl. ¶¶ 15, 72-78; Decl. of R. Dickson (Ex. D), ¶¶ 13-14; Decl. of G. Szigeti (Ex. F), ¶ 9; Decl. of L. Salaveria (Ex. E), ¶¶ 9-12. memory of the Chinese Exclusion Acts and the post-Pearl Harbor imposition of martial law and Japanese internment. As Governor Ige said two days after immigrants of diverse backgrounds can achieve their dreams through hard work. Many of our people also know all too well the consequences of giving in to fear of 10 Ý¿-» ïæïéó½ªóðððëðóÜÕÉóÕÖÓ Ü±½«³»²¬ îóï Ú·´»¼ ðîñðíñïé Ð¿¹» îð ±º ìç íçè Ð¿¹»×Ü ýæ newcomers. The remains of the internment camp at Honouliuli are a sad testament to that fear. We must remain true to our values and be vigilant where we see the worst part of history about to be rep STANDARD OF REVIEW To obtain a temporary restraining order or a preliminary injunction, a plaintiff must demonstrate that (1) it is likely to succeed on the merits; (2) it is likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in its favor; and (4) an injunction is in the public interest. Winter v. Nat. Res. Def. Council, 555 U.S. 7, 20 (2008). The Ninth Circuit has Winter test, un questions going to the merits and a balance of hardships that tips sharply towards the plaintiff can support issuance of a preliminary injunction, so long as the plaintiff also shows that there is a likelihood of irreparable injury and that the Farris v. Seabrook, 677 F.3d 858, 864 (9th Cir. 2012) (internal quotation marks omitted). ARGUMENT on the merits because the Order is unlawful several times over: Among other discriminates against particular classes of people in violation of the Fifth 11 Ý¿-» ïæïéó½ªóðððëðóÜÕÉóÕÖÓ Ü±½«³»²¬ îóï Ú·´»¼ ðîñðíñïé Ð¿¹» îï ±º ìç íçç Ð¿¹»×Ü ýæ Amendment; contravenes the Immigration and Nationality nationality- and religion-based discrimination; and, through its implementation, irreparable harm if relief is not granted: The Order imposes religious harms on the Order is enjoined because the Government can achieve its national security objectives through other means, while remedying constitutional and statutory violations is in the public interest. A. 1. The Order Violates the Establishment Clause. Because Sections 3(c) and Sections 5(a)-(c) and 5(e) of the Order plainly conflict with the Establishment Clause, plaintiffs are likely to succeed on their constitutional claims. The United States was settled by an ecumenically diverse set of immigrants seeking religious freedom. See, e.g., Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171, 182-183 (2012). The Framers enshrined One of those Clauses, - 12 Ý¿-» ïæïéó½ªóðððëðóÜÕÉóÕÖÓ Ü±½«³»²¬ îóï Ú·´»¼ ðîñðíñïé Ð¿¹» îî ±º ìç ìðð Ð¿¹»×Ü ýæ eminence * * * and establish a religion to which they would compel others to Id.at 184 (quoting 1 Annals of Cong. 730-731 (1789) (remarks of J. Madison)). Th Larson v. Valente, 456 U.S. 228, 244 (1982). To determine whether a particular policy runs afoul of that command, the Ninth Circuit typically applies the three-part test from Lemon v. Kurtzman, 403 U.S. 602 (1971). See, e.g., Access Fund v. , 499 F.3d 1036, 1042-43 (9th Cir. 2007). second, its principal or primary effect must be one that neither advances nor inhibits religion * * *; finally the statute must not foster an excessive government Lemon, 403 U.S. at 612-613 (internal quotation marks and citation omitted). A failure to satisfy any one of these requirements establishes a constitutional violation. The Order flunks all three. First, while the Government has asserted in the Order itself that it serves the aim is establishing a religious preference. Stone v. Graham, 449 U.S. 39, 41 (1980) (per curiam). For example, in Stone the Supreme Court invalidated a law requiring that the Ten Commandments be placed on classroom walls. The law 13 Ý¿-» ïæïéó½ªóðððëðóÜÕÉóÕÖÓ Ü±½«³»²¬ îóï Ú·´»¼ ðîñðíñïé Ð¿¹» îí ±º ìç ìðï Ð¿¹»×Ü ýæ the Ten Commandments is clearly seen in its adoption as the fundamental legal Id. But Id. The same is true here. The President and his aides have made it abundantly clear that they intend to exclude individuals of the Muslim faith, and that this Order which bans travel only with respect to certain Muslim-majority countries is part of that plan. See Compl. ¶¶ 27-43, 53-54. Sections 5(b) and 5(e) also explicitly direct the government to prioritize religious refugee claims if a system of religious preference that President Trump told the media was expressly designed to favor Christians. Compl. ¶¶ 51, 53 & Ex. 7. In the Establishment Clause context, these statements matter. Because Lemon purpose is Wallace v. Jaffree, 472 U.S. 38, 56sponsor of the bill * * * inserted into the legislative record dissent 14 apparently without Ý¿-» ïæïéó½ªóðððëðóÜÕÉóÕÖÓ Ü±½«³»²¬ îóï Ú·´»¼ ðîñðíñïé Ð¿¹» îì ±º ìç ìðî Ð¿¹»×Ü ýæ Edwards v. Aguillard, 482 U.S. 578, 586-587 (1987) (examin rather than Congress, the court may examine the statements of the President and his aides. Cf. Utley v. Varian Assocs., Inc., 811 F.2d 1279, 1285 (9th Cir. 1987) (in the affirmative action context, if a program was created by the Executive, the Indeed, public statements of purpose calculated to be heard by a wide audience carry particular weight. When the head of our government publicly they are ou McCreary Cty., Ky. v. Am. Civil Liberties Union of Ky., 545 U.S. 844, 860-861 (2005) (internal quotation marks and ellipses omitted). Thus, the Supreme Court has explained that a policy that might ot religion. Id. If there were any doubt as to the actual purpose of the policy, there is no question that the Presi believe that the policy is aimed at the Muslim faith: Witness, for example, the mass 15 Ý¿-» ïæïéó½ªóðððëðóÜÕÉóÕÖÓ Ü±½«³»²¬ îóï Ú·´»¼ ðîñðíñïé Ð¿¹» îë ±º ìç ìðí Ð¿¹»×Ü ýæ protests at airports and in cities across the country and the explicit statement of two Republican Senators. See supra at pp. 7-8. That in and of itself is enough to demonstrate an Establishment Clause violation under the second prong of Lemon. purpose, the practice under review in fact conveys a message of endorsement or Access Fund, 499 F.3d at 1045 (internal quotation marks omitted); see also McCreary, 545 U.S. at 868 n.14 (examining how a challenged action will ardly do more than articulate this inquiry to understand why the Order fails. And the same is true for Lemon -613 (internal quotation marks omitted). The exception for members of religious minorities alone hopelessly entangles the government in religious matters. To be sure, courts are inconsistent in how or whether they invoke Lemon, and the Supreme Court has applied several different frameworks in analyzing potential Establishment Clause violations. But no framework permits the government to enact a policy that amounts to a governmental preference for or against a particular faith. See, e.g., Town of Greece, N.Y. v. Galloway, 134 S. Ct. 1811, 1824 (2014) (declining to apply Lemon but upholding a policy in part because unlike the Order 16 Ý¿-» ïæïéó½ªóðððëðóÜÕÉóÕÖÓ Ü±½«³»²¬ îóï Ú·´»¼ ðîñðíñïé Ð¿¹» îê ±º ìç ìðì Ð¿¹»×Ü ýæ Larson, 456 U.S. at 246 (applying strict scrutiny immigration. See, e.g., Kleindienst v. Mandel, 408 U.S. 753, 770 (1972). That argument fails for two independent reasons. First, as discussed in greater length below, even if it is good law, the doctrine would not apply to a policy like this one. See infra at pp. 22-25. Second, the plenary power cases are not relevant to the Establishment Clause anyway: The Court has never applied the doctrine with respect to policies that draw religious distinctions in the immigration context. Nor could it. Allowing an immigration exception would swallow the Establishment Clause whole. After all, a primary means of establishing a national religion is to exclude members of another faith from immigrating or to privilege the entry of members of the faith one wishes to establish. Indeed, in one of the Supreme Clause. Town of Greece, 134 S. Ct. at 1834 (Alito, J., joined by Scalia, J., concurring); id. 17 Ý¿-» ïæïéó½ªóðððëðóÜÕÉóÕÖÓ Ü±½«³»²¬ îóï Ú·´»¼ ðîñðíñïé Ð¿¹» îé ±º ìç ìðë Ð¿¹»×Ü ýæ at 1842 (Kagan, J., joined by Ginsburg, J., Breyer, J., and Sotomayor, J., dissenting). to violate the Establishment Clause, then all future immigration policies that disproportionately aid or exclude members of a particular faith will be foreclosed. That is simply not so. An immigration policy with a secular purpose and design that just happens to disproportionately exclude members of a particular faith likely would survive Lemon. But that is not this Order. Instead, the President that issued it openly announced a desire to ban Muslims, told his advisors he wanted their help to do just that while disguising his purpose, and then followed through by signing a Muslim ban and tossing in a transparent fig leaf. Holding that that practice violates the Establishment Clause will foreclose nothing more than cynical attempts to skirt core constitutional commands. 2. Due Process Clause. There is little doubt that, under normal equal-protection and due-process principles, the Order is unconstitutional: It discriminates based on protected classifications, and it cannot survive strict scrutiny. The only question, then, is not. 18 Ý¿-» ïæïéó½ªóðððëðóÜÕÉóÕÖÓ Ü±½«³»²¬ îóï Ú·´»¼ ðîñðíñïé Ð¿¹» îè ±º ìç ìðê a. Ð¿¹»×Ü ýæ The Order violates equal protection and the right to travel. To begin, the protection.1 In re Griffiths, 413 U.S. 717, 719 (1973). The - Id. Thus any government classification based on alienage or Hampton v. Mow Sun Wong, 426 U.S. 88, 107 nmental Employment Div. v. Smith, 494 U.S. 872, 886 n.3 (1990). Classifications based on religion and national origin are therefore both ing Miller v. Johnson, 515 U.S. 900, 904 (1995) Sections 3(c) and 3(e)-(f) of the Order plainly flunk that test. They are premised on differentiating among people based on national origin: People from certain countries can enter the United States, and people from other countries cannot. In addition, those provisions as well as Sections 5(a) and (c) treat people 1 equal protection analysis applies to the federal government through the Due Process Clause of the Fifth Amendment. See, e.g., Davis v. Passman, 442 U.S. 228, 234 (1979). 19 Ý¿-» ïæïéó½ªóðððëðóÜÕÉóÕÖÓ Ü±½«³»²¬ îóï Ú·´»¼ ðîñðíñïé Ð¿¹» îç ±º ìç ìðé Ð¿¹»×Ü ýæ differently because of their religion: They are intentionally structured in a way that blocks Muslims while allowing Christians. It asserts that it is meant to prevent terrorism. But if so, it is wildly over- and under-inclusive. It is over-inclusive because it ensnares countless students, tourists, businesspeople, refugees, and other travelers lacking even the remotest connection to terrorism of any sort. And it is under-inclusive because it would not have covered any of the perpetrators of the worst recent terrorist attacks on American soil: September 11, the Boston Marathon bombing, San Bernardino, or Orlando. Not a single fatal terrorist attack has been perpetrated in the United States by a national of one of the seven identified countries since at least 1975. Compl. ¶ 46. Indeed, the fit between that it would fail even rational-basis review. The mismatch indicates that the real purpose of the Order was simply to harm a politically unpopular group: Muslims. United States v. Windsor, 133 S. Ct. 2675, 2693 (2013) (citation omitted). 20 Ý¿-» ïæïéó½ªóðððëðóÜÕÉóÕÖÓ Ü±½«³»²¬ îóï Ú·´»¼ ðîñðíñïé Ð¿¹» íð ±º ìç ìðè Ð¿¹»×Ü ýæ Separatel Kent v. Dulles, 357 U.S. 116, 126 the Due Process Clause. Id. at 125. And because the Order curtails this right, it Id. at 904. As explained above, it does not come close. b. The Order violates procedural due process. Sections 3(c) and 3(e)-(f) of the Order also violate procedural due process States, including aliens, whether their presence here is lawful, unlawful, temporary, Zadvydas v. Davis, 533 U.S. 678, 693 (2001), and resident foreigners have liberty interests in being able to re-enter the United States and in being free from detention at the border, see Landon v. Plasencia, 459 U.S. 21, 32 (1982). The Government may only take away those liberty in second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural and the fiscal and administrative burdens that the additional or substitute 21 Ý¿-» ïæïéó½ªóðððëðóÜÕÉóÕÖÓ Ü±½«³»²¬ îóï Ú·´»¼ ðîñðíñïé Ð¿¹» íï ±º ìç ìðç procedur Ð¿¹»×Ü ýæ Mathews v. Eldridge, 424 U.S. 319, 335 (1976). opportunity to pr Landon, 459 U.S. at 34, 36. But the Order offers no procedural protections whatsoever: It allows for no counsel, no hearings, no inquiry, no review no process of any sort. That will not do. At the very least, those barred from the country or detained pursuant to the Order should returning resident alien is entitled as a matter of due process to a hearing on the charges underlying any attempt to exclu general proposition that a resident alien who leaves this country is to be regarded Rosenberg v. Fleuti, 374 U.S. 449, 460 (1963). Similarly, detention of a resident at the border is an invasion of liberty that sical Casas-Castrillon v. 22 , 535 Ý¿-» ïæïéó½ªóðððëðóÜÕÉóÕÖÓ Ü±½«³»²¬ îóï Ú·´»¼ ðîñðíñïé Ð¿¹» íî ±º ìç ìïð Ð¿¹»×Ü ýæ F.3d 942, 950 (9th Cir. 2008) (quoting Zadvydas, 533 U.S. at 690). Those protections are nonexistent here. Moreover, while the Order authorizes executive officials to make certain case-by-case exceptions, see, e.g., Order § 3(g), it creates no mechanism for processing those exceptions and no procedure to ensure they are applied consistently and fairly. That unfettered executive discretion is the antithesis of due process. See Grayned v. City of Rockford, 408 U.S. 104, 108-109 (1972). It is cold comfort for a resident seeking reentry to know that some provision for exceptions is made, if that power is exercised arbitrarily and unreviewably. The Due Process Clause requires more. c. The plenary-power doctrine does not change the outcome. -power doctrine. But that doctrine does not help them for two reasons. First, while it is true that the plenary-power doctrine gives Congress latitude Kleindienst, 408 U.S. at 766 (citation omitted), the Order here has profound discriminatory effects on aliens already within the United States. And the Supreme Court has made clear that political Zadvydas, 533 U.S. at 695. Specifically, aliens who are present within the United States are entitled to the full panoply of 23 Ý¿-» ïæïéó½ªóðððëðóÜÕÉóÕÖÓ Ü±½«³»²¬ îóï Ú·´»¼ ðîñðíñïé Ð¿¹» íí ±º ìç ìïï Ð¿¹»×Ü ýæ equal-protection and dueId. at 693. The Order here runs afoul of both those protections. It prevents people present in the United States from traveling and from seeing their loved ones, and it imposes that burden on the basis of religion and national origin. That is not constitutional, and the incantation of ake it so. See Hampton agree * * * that the federal power over aliens is so plenary that any agent of the National Government may arbitrarily subject all resident aliens to different substantive rules from those applied to cit Second, the plenary-power doctrine emphasizes the broad authority of Congress See Kleindienst, 408 U.S. at 766 (emphasis added). Congress is, after all, constitutionally empowered to regulate immigration. U.S. Const. art. I, § 8. Even if the doctrine authorizes Congress to flatly ban a particular racial or religious group from entering the United States a highly doubtful proposition it certainly does not authorize the President to plow ahead and enact such a ban where Congress has not provided for it. Indeed, the delegation of authority to the See Part 3, infra. And the President surely could not take a general grant of discretion to make immigration rules and use it to decree that only whites or Christians are allowed to immigrate into the United States. Cf. Kwai Fun Wong v. United States, 24 Ý¿-» ïæïéó½ªóðððëðóÜÕÉóÕÖÓ Ü±½«³»²¬ îóï Ú·´»¼ ðîñðíñïé Ð¿¹» íì ±º ìç ìïî Ð¿¹»×Ü ýæ 373 F.3d 952, 974 (9th Cir. 2004) would permit immigration officials to engage in such behavior as rounding up all immigration parolees of a particular race solely because of a consideration such as The Supreme Court has made this clear. In Kleindienst, for example, the on the basis of a facially legitimate and bona fide reason, the courts will neither look behind inverse must also be true: When the Executive lacks -power doctrine is no shield for unconstitutional discrimination. That is the case here. As explained above, the profound mismatch between burden a politically unpopular statements of President Trump and his advisors cast grave doubt on whether the For this reason, too, the plenary-power doctrine does not insulate the Order from constitutional scrutiny, and the Order must fall. 25 Ý¿-» ïæïéó½ªóðððëðóÜÕÉóÕÖÓ Ü±½«³»²¬ îóï Ú·´»¼ ðîñðíñïé Ð¿¹» íë ±º ìç ìïí Ð¿¹»×Ü ýæ 3. The Order is Inconsistent with the Immigration and Nationality Act. The Order also violates the plain terms of the immigration laws three times in violation of 8 U.S.C. § Status of Refugees art. 3, July 28, 1951, 19 U.S.T. 6259; and it grossly misapplies 1182(f). a. -based classifications violate the INA. prohibition on nationality-based discrimination. Section 202(a)(1)(A) of the INA provides: Except as specifically provided in paragraph (2) and in sections 1101(a)(27), 1151(b)(2)(A)(i), and 1153 of this title, no person shall receive any preference or priority or be discriminated against sex, nationality, place of birth, or place of residence. 8 U.S.C. § Congress could hardly have chosen more explicit Legal Assistance for Vietnamese Asylum Seekers v. Bureau of Consular Affairs, 45 F.3d 469, 473 (D.C. Cir. 1995), vacated on other grounds, 519 U.S. 1 (1996). It -based id., 26 Ý¿-» ïæïéó½ªóðððëðóÜÕÉóÕÖÓ Ü±½«³»²¬ îóï Ú·´»¼ ðîñðíñïé Ð¿¹» íê ±º ìç ìïì Ð¿¹»×Ü ýæ Rep. No. 89-745, at 8 (1965); see Olsen v. Albright, 990 F. Supp. 31, 37 (D.D.C. 1997). The Order flouts this clear command. Section 3(c) provides that aliens - And Sec id. § 5(c), and permits the Secretary of State id. § 5(a). Each of these provisions facially discriminates on the ba 1152(a)(1)(A) exactly what Congress said the Executive cannot do. The Order thus unilaterally resurrects the The President cannot ignore Section 202(a)(1)(A) in this manner. Congress specifically provided in paragraph (2) [of Section 202(a)] and in sections 1101(a)(27), 1151(b)(2)(A)(i), and 1153 of U.S.C. § 1152(a)(1)(A). None of those narrow exceptions is even arguably relevant here; and by enumerating those few exemptions, Congress made clear it did not intend to authorize others. See, e.g., United Dominion Indus. v. United States, 532 U.S. 822, 836 (2001) (describing expressio unius canon). The fact that the immigration laws 27 Ý¿-» ïæïéó½ªóðððëðóÜÕÉóÕÖÓ Ü±½«³»²¬ îóï Ú·´»¼ ðîñðíñïé Ð¿¹» íé ±º ìç ìïë Ð¿¹»×Ü ýæ give the President some discretion makes no difference. As courts have recognized for decades and as Section 202(a)(1)(A) makes clear g Wong Wing Hang v. INS, 360 F.2d 715, 719 (2d Cir. 1966) (Friendly, J.); see, e.g., Patel v. INS, 811 F.2d 377, 382 (7th Cir. 1987) (same). b. -based classifications violate the INA. Sections 5(b) and 5(e) of the Order also violate the INA by discriminating against refugees on the basis of religion. In 1968, the United States ratified the United Nations Protocol Relating to the Status of Refugees, Jan. 31, 1967, 19 United Nations Convention Relating to the Status of Refugees art. 3, July 28, 1951, 19 U.S.T. 6259; see UN Protocol art. I.1 (incorporating this requirement by Khan v. Holder, 584 F.3d 773, 783 (9th Cir. 2009). Accordingly, the Ninth Circuit (echoing the Supreme Court) Id.; see INS v. Aguirre-Aguirre, 526 U.S. 415, 426427 (1999); INS v. Cardoza-Fonseca, 480 U.S. 421, 437 (1987). Nothing in the 28 Ý¿-» ïæïéó½ªóðððëðóÜÕÉóÕÖÓ Ü±½«³»²¬ îóï Ú·´»¼ ðîñðíñïé Ð¿¹» íè ±º ìç ìïê INA suggests that Congress intended to authorize immigration officials Ð¿¹»×Ü ýæ or the President discrimination. Indeed, the INA expressly prohibits States from discriminating 1522(a)(5). It is inconceivable that Congress intended federal officials to engage in s treaty obligations. As describe above, see supra at pp. 19-20, the Order does precisely that, and so cannot stand. c. The INA does not authorize the President to impose sweeping classbased restrictions on immigration. Sections 3(c), 3(e)-(f), 5(a), and 5(c) are also unlawful because the President and arbitrary bans on entry. As a basis for its immigration and refugee bans, the Order relies on Section U.S.C. § 1182(f); see Order §§ 3(c), 5(c). But Section 212(f) provides no support for the Order. That is so for two reasons. First as discussed above the INA prohibits nationality discrimination, and section 212(f) does not override that limit. See 29 Ý¿-» ïæïéó½ªóðððëðóÜÕÉóÕÖÓ Ü±½«³»²¬ îóï Ú·´»¼ ðîñðíñïé Ð¿¹» íç ±º ìç ìïé Ð¿¹»×Ü ýæ 8 U.S.C. § 1152(a)(1)(a). Section 202(a)(1)(A), with its focus on particular discretion. It also is later-enacted 1965 versus 1952. And it enumerates specific exceptions to its prohibition that do not include section 212(f). It therefore overrides any authority the President would otherwise have had under Section 212(f). See United States v. Juvenile Male, 670 F.3d 999 (9th Cir. 2012) (recognizing principle the later- United Dominion, 532 U.S. at 836. far beyond its limits. Presidents have invoked Section 212(f) dozens of times since it was enacted in 1952; in every instance, they used it to suspend entry of a discrete set of individuals based on an individualized determination that each prohibited member of the cla See, e.g., Pres. Proc. No. 8342 (Jan. 22, 2009) (suspending entry of human traffickers); Pres. Proc. No. 5887 (Oct. 26, 1988) (suspending entry of Sandinistas); see generally Cong. Research Serv., Executive Authority to Exclude Aliens: In Brief 6-10 (Jan. 23, 2017), https://fas.org/sgp/crs/homesec/R44743.pdf. Before now, no President attempted to invoke Section 212(f) to impose a categorical bar on admission based on a generalized (and unsupported) claim that 30 Ý¿-» ïæïéó½ªóðððëðóÜÕÉóÕÖÓ Ü±½«³»²¬ îóï Ú·´»¼ ðîñðíñïé Ð¿¹» ìð ±º ìç ìïè Ð¿¹»×Ü ýæ some members of a class might engage in misconduct. And no President has taken the further step of establishing an ad hoc scheme of exceptions that allows -by-case 3(g), or categorically, see Statement by Secretary John Kelly on the Entry of Lawful Permanent Residents Into the United States (Jan. 29, 2017) residents are entitled to a blanket exception). If these novel assertions of authority were accepted, the immigration laws could be nullified by executive fiat. It is always possible to claim that some broad group might include dangerous individuals; many countries, for example, have worse records of terrorism than the seven the President singled out. See of State, National Consortium for the Study of Terrorism and Responses to Terrorism: Annex of Statistical Information (2016) (showing that 7 of the 10 co logic would therefore permit him and any future President to abandon governed by administrative whim. fundamental details of a regulatory scheme in vague terms or ancillary 31 Ý¿-» ïæïéó½ªóðððëðóÜÕÉóÕÖÓ Ü±½«³»²¬ îóï Ú·´»¼ ðîñðíñïé Ð¿¹» ìï ±º ìç ìïç Whitman v. Am. T Ð¿¹»×Ü ýæ , 531 U.S. 457, 468 (2001). Enabling the President to unilaterally suspend the immigration laws would surely be an elephant; and the vague terms of Section 212(f) never once in six decades interpreted in the manner the President now proposes are a quintessential mousehole. See FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159- trary that Congress could delegate such unbounded authority to the President. See Clinton v. City of New York, 524 U.S. 417, 443 (1998) (Congress cannot authorize Presiden Whitman, 531 U.S. at 472 sweeping and discriminatory immigration bans. 4. . and substantive fronts. APA Procedural Requirements. The APA requires that agencies provide Lincoln v. Vigil, 508 U.S. 182, 196 (1993); see 5 U.S.C. § 553(b)- 32 Ý¿-» ïæïéó½ªóðððëðóÜÕÉóÕÖÓ Ü±½«³»²¬ îóï Ú·´»¼ ðîñðíñïé Ð¿¹» ìî ±º ìç ìîð Ð¿¹»×Ü ýæ Time Warner Cable Inc. v. FCC follow, Sacora v. Thomas, 628 F.3d 1059, 1069 (9th Cir. 2010) (italics omitted). In this case, Sections 3 and 5 of the Order are substantive because they immigrants living in the United States can no longer leave and re-enter the country, and nationals of designated countries who have visas can no longer use them. But more to the point, the rules that agencies have to create to carry out the Order also are (and will be) substantive rules. After all, the Order speaks in broad generalities and leaves it to the agencies to implement binding norms around everything from -the-national-interest exemptions extend beyond the enumerated examples. Those newlyextraordinary ways. To take just one example, the implementing officials have changed their view as to whether lawful permanent residents fall within the -interest prong twice and have effectuated each change with no more than a press release. Compl. ¶¶ 62-64. That is plainly improper. The same 33 Ý¿-» ïæïéó½ªóðððëðóÜÕÉóÕÖÓ Ü±½«³»²¬ îóï Ú·´»¼ ðîñðíñïé Ð¿¹» ìí ±º ìç ìîï Ð¿¹»×Ü ýæ goes for the many similarly substantive rules that have been and will be APA Substantive Requirements. Defendants have also committed substantive violations of the APA. The APA prohibits federal agencies from U.S.C. §706(2). The Order, and agency norms See supra, A.1flagrantly arbitrary and capricious. The Order has been issued and implemented abruptly and with no reasonable explanation of how its various provisions further its stated objective. See City of Sausalito v. , 386 F.3d 1186, 1206 (9th Cir. tors first 72 hours, Defendants are reported to have changed their minds three times whether it applies to green card holders. Compl. ¶ 59. A few days later, they changed their minds yet again. Comp. ¶ 64. If this is not arbitrary and capricious executive action, it is hard to imagine what would be. 34 Ý¿-» ïæïéó½ªóðððëðóÜÕÉóÕÖÓ Ü±½«³»²¬ îóï Ú·´»¼ ðîñðíñïé Ð¿¹» ìì ±º ìç ìîî Ð¿¹»×Ü ýæ B. irreparably harmed if Defendants are not temporarily enjoined from enforcing Sections 3(c), 3(e)-(f), 5(a)-(c), and 5(e) of the Order. Implementation of these provisions has already caused significant religious, dignitary, and economic harms in and to Haw the damage will be immeasurable. For these reasons, the State a fortiori satisfies the requirements of Article III standing as well. First relief; in Establishment Clause cases, irreparable harm is presumed. See, e.g., Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 303 (D.C. Cir. 2006) (if a movant demonstrates a likelihood of success on an Establishment see also Farris, 677 F.3d at 868 (9th Cir. 2012) (adopting the same rule for First Amendment claims generally). Second Constit Const. art. 1, §§2, 4. Its statutes bar discrimination on the basis of ancestry. Haw. 35 Ý¿-» ïæïéó½ªóðððëðóÜÕÉóÕÖÓ Ü±½«³»²¬ îóï Ú·´»¼ ðîñðíñïé Ð¿¹» ìë ±º ìç ìîí Ð¿¹»×Ü ýæ Rev. Stat. §§ 378-2(1); 489-3; 515aim to further diversity. Compl. ¶ 72. that its laws and policies are given effect, and in following them itself. See Bond v. United States, 564 U.S. 211, 221 (2011); Missouri v. Holland, 252 U.S. 416, 431 (1920). Th become complicit in discrimination barred by its own Constitution and statutes: countries; state governmental airports to Customs and Border Patrol to detain and deport immigrants barred by own laws and policies, the Order inflicts dignitary harms that have no remedy. See, e.g., Shelby Cty. v. Holder broad autonomy in structuring their governments and pursuing legislative Arizona Dream Act Coal. v. Brewer, 757 F.3d 1053, 1068 (9th Cir. Third 36 Ý¿-» ïæïéó½ªóðððëðóÜÕÉóÕÖÓ Ü±½«³»²¬ îóï Ú·´»¼ ðîñðíñïé Ð¿¹» ìê ±º ìç ìîì Ð¿¹»×Ü ýæ Compl. ¶ 15. The Order prevents any nationals of the designated countries from visiting the State, which will result in considerable lost revenues. Decl. of G. Szigeti (Ex. F), ¶¶ 9-11 (showing thousands of visitors in 2015 from the Middle East and Africa). The Order deters Muslim immigrants and non-immigrants across America from engaging in interstate travel that involves an airport, will become subject to an immigration ban. Decl. of L. Salaveria (Ex. E), ¶¶ 11- place of welcome a brand that it is has spent significant time and energy developing internationally. See Oracle USA, Inc. v. Rimini St., Inc., 2016 WL Finally, the Order inflicts irre a portion of its population to discrimination and marginalization, while denying all home to over 6,000 legal permanent residents, including numerous individuals from the designated countries. Compl. ¶ 10. It currently has 12,000 foreign students, including 27 graduate students from the designated countries at the 37 Ý¿-» ïæïéó½ªóðððëðóÜÕÉóÕÖÓ Ü±½«³»²¬ îóï Ú·´»¼ ðîñðíñïé Ð¿¹» ìé ±º ìç ìîë Ð¿¹»×Ü ýæ Decl. of R. Dickson (Ex. D), ¶ 9. The University of from the designated countries, and at least 30 faculty members with valid visas from the countries. Id. ¶¶ 10-11. Section 3(c) of the Order subjects these Hawaii residents to second-class treatment denying them their fundamental right to travel overseas, preventing them from tending to important family matters, and impairing their ability to complete necessary aspects of their work or study. Id. ¶ 12; Decl. of John Doe 3 (Ex. C), ¶¶ 3which prides itself on its ethnic diversity and inclusion to a discriminatory policy that differentiates among State residents based on their national origin. See, e.g., Decl. of R. Dickson (Ex. D), ¶ 13. -sovereign interest in Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592, 609 (1982). The Order is irreparably undermining that interest. C. The Balance of the Equities and Public Interest Favor Relief. The balance of the equities and public interest factors tip decidedly in favor of Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012). 38 Ý¿-» ïæïéó½ªóðððëðóÜÕÉóÕÖÓ Ü±½«³»²¬ îóï Ú·´»¼ ðîñðíñïé Ð¿¹» ìè ±º ìç ìîê Ð¿¹»×Ü ýæ Defendants, in contrast, have identified no exigency that demands immediate implementation of this Order. They have no - and under-inclusive bans will actually prevent terrorism or make the Nation more secure. rights under the Constitution and federal law. CONCLUSION The Motion for a Temporary Restraining Order should be granted, and Defendants should be restrained from continuing to enforce Sections 3(c), 5(a)-(c), 017. Respectfully submitted, /s/ Douglas S. Chin NEAL K. KATYAL* COLLEEN ROH SINZDAK* MITCHELL P. REICH* ELIZABETH HAGERTY* HOGAN LOVELLS US LLP 555 Thirteenth Street NW Washington, DC 20004 Telephone: (202) 637-5600 Fax: (202) 637-5910 Email: neal.katyal@hoganlovells.com THOMAS P. SCHMIDT* HOGAN LOVELLS US LLP 875 Third Avenue DOUGLAS S. CHIN (Bar No. 6465) CLYDE J. WADSWORTH (Bar No. 8495) Solicitor General of the State of DEIRDRE MARIE-IHA (Bar No. 7923) KIMBERLY T. GUIDRY (Bar No. 7813) DONNA H. KALAMA (Bar No. 6051) ROBERT T. NAKATSUJI (Bar No. 6743) Deputy Attorneys General DEPARTMENT OF THE ATTORNEY 39 Ý¿-» ïæïéó½ªóðððëðóÜÕÉóÕÖÓ Ü±½«³»²¬ îóï Ú·´»¼ ðîñðíñïé Ð¿¹» ìç ±º ìç ìîé New York, NY 10022 Telephone: (212) 918-3000 Fax: (212) 918-3100 SARA SOLOW* ALEXANDER B. BOWERMAN* HOGAN LOVELLS US LLP 1835 Market St., 29th Floor Philadelphia, PA 19103 Telephone: (267) 675-4600 Fax: (267) 675-4601 Ð¿¹»×Ü ýæ 425 Queen Street Honolulu, HI 96813 Telephone: (808) 586-1500 Fax: (808) 586-1239 Email: deirdre.marie-iha@hawaii.gov *Pro Hac Vice Applications Forthcoming 40 Ý¿-» ïæïéó½ªóðððëðóÜÕÉóÕÖÓ Ü±½«³»²¬ ïðóï Ú·´»¼ ðîñðíñïé Ð¿¹» ï ±º ï ìëï Ð¿¹»×Ü ýæ IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAI‘I STATE OF HAWAI‘I, Plaintiff, v. DONALD J. TRUMP, in his official capacity as President of the United States; Civil Action No. U.S. DEPARTMENT OF HOMELAND SECURITY; JOHN F. KELLY, in his official capacity as Secretary of Homeland Security; U.S. DEPARTMENT OF STATE; REX TILLERSON, in his official capacity as Secretary of State; and the UNITED STATES OF AMERICA, Defendants. DECLARATION OF JOHN DOE 1 [Sealed copies provided to the Court for in camera review, pursuant to the concurrently filed Ex Parte Motion for In Camera Review of Exhibits A, B, and C to Declaration of Douglas S. Chin in Support of Plaintiff’s Motion for Temporary Restraining Order] EXHIBIT A Ý¿-» ïæïéó½ªóðððëðóÜÕÉóÕÖÓ Ü±½«³»²¬ ïðóî Ú·´»¼ ðîñðíñïé Ð¿¹» ï ±º ï ìëî Ð¿¹»×Ü ýæ IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAI‘I STATE OF HAWAI‘I, Plaintiff, v. DONALD J. TRUMP, in his official capacity as President of the United States; Civil Action No. U.S. DEPARTMENT OF HOMELAND SECURITY; JOHN F. KELLY, in his official capacity as Secretary of Homeland Security; U.S. DEPARTMENT OF STATE; REX TILLERSON, in his official capacity as Secretary of State; and the UNITED STATES OF AMERICA, Defendants. DECLARATION OF JOHN DOE 2 [Sealed copies provided to the Court for in camera review, pursuant to the concurrently filed Ex Parte Motion for In Camera Review of Exhibits A, B, and C to Declaration of Douglas S. Chin in Support of Plaintiff’s Motion for Temporary Restraining Order] EXHIBIT B Ý¿-» ïæïéó½ªóðððëðóÜÕÉóÕÖÓ Ü±½«³»²¬ ïðóí Ú·´»¼ ðîñðíñïé Ð¿¹» ï ±º ï ìëí Ð¿¹»×Ü ýæ IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAI‘I STATE OF HAWAI‘I, Plaintiff, v. DONALD J. TRUMP, in his official capacity as President of the United States; Civil Action No. U.S. DEPARTMENT OF HOMELAND SECURITY; JOHN F. KELLY, in his official capacity as Secretary of Homeland Security; U.S. DEPARTMENT OF STATE; REX TILLERSON, in his official capacity as Secretary of State; and the UNITED STATES OF AMERICA, Defendants. DECLARATION OF JOHN DOE 3 [Sealed copies provided to the Court for in camera review, pursuant to the concurrently filed Ex Parte Motion for In Camera Review of Exhibits A, B, and C to Declaration of Douglas S. Chin in Support of Plaintiff’s Motion for Temporary Restraining Order] EXHIBIT C Ý¿-» ïæïéó½ªóðððëðóÜÕÉóÕÖÓ Ü±½«³»²¬ ïðóì Ú·´»¼ ðîñðíñïé Ð¿¹» ï ±º ë ìëì IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAI‘I STATE OF HAWAI‘I, Plaintiff, v. DONALD J. TRUMP, in his official capacity as President of the United States; Civil Action No. U.S. DEPARTMENT OF HOMELAND SECURITY; JOHN F. KELLY, in his official capacity as Secretary of Homeland Security; U.S. DEPARTMENT OF STATE; REX TILLERSON, in his official capacity as Secretary of State; and the UNITED STATES OF AMERICA, Defendants. DECLARATION OF RISA E. DICKSON EXHIBIT D Ð¿¹»×Ü ýæ Ý¿-» ïæïéó½ªóðððëðóÜÕÉóÕÖÓ Ü±½«³»²¬ ïðóì Ú·´»¼ ðîñðíñïé Ð¿¹» î ±º ë ìëë Ð¿¹»×Ü ýæ Ý¿-» ïæïéó½ªóðððëðóÜÕÉóÕÖÓ Ü±½«³»²¬ ïðóì Ú·´»¼ ðîñðíñïé Ð¿¹» í ±º ë ìëê Ð¿¹»×Ü ýæ Ý¿-» ïæïéó½ªóðððëðóÜÕÉóÕÖÓ Ü±½«³»²¬ ïðóì Ú·´»¼ ðîñðíñïé Ð¿¹» ì ±º ë ìëé Ð¿¹»×Ü ýæ Ý¿-» ïæïéó½ªóðððëðóÜÕÉóÕÖÓ Ü±½«³»²¬ ïðóì Ú·´»¼ ðîñðíñïé Ð¿¹» ë ±º ë ìëè Ð¿¹»×Ü ýæ Ý¿-» ïæïéó½ªóðððëðóÜÕÉóÕÖÓ Ü±½«³»²¬ ïðóë Ú·´»¼ ðîñðíñïé Ð¿¹» ï ±º ê ìëç IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAI‘I STATE OF HAWAI‘I, Plaintiff, v. DONALD J. TRUMP, in his official capacity as President of the United States; Civil Action No. U.S. DEPARTMENT OF HOMELAND SECURITY; JOHN F. KELLY, in his official capacity as Secretary of Homeland Security; U.S. DEPARTMENT OF STATE; REX TILLERSON, in his official capacity as Secretary of State; and the UNITED STATES OF AMERICA, Defendants. DECLARATION OF LUIS P. SALAVERIA EXHIBIT E Ð¿¹»×Ü ýæ Ý¿-» ïæïéó½ªóðððëðóÜÕÉóÕÖÓ Ü±½«³»²¬ ïðóë Ú·´»¼ ðîñðíñïé Ð¿¹» î ±º ê ìêð Ð¿¹»×Ü ýæ Ý¿-» ïæïéó½ªóðððëðóÜÕÉóÕÖÓ Ü±½«³»²¬ ïðóë Ú·´»¼ ðîñðíñïé Ð¿¹» í ±º ê ìêï Ð¿¹»×Ü ýæ Ý¿-» ïæïéó½ªóðððëðóÜÕÉóÕÖÓ Ü±½«³»²¬ ïðóë Ú·´»¼ ðîñðíñïé Ð¿¹» ì ±º ê ìêî Ð¿¹»×Ü ýæ Ý¿-» ïæïéó½ªóðððëðóÜÕÉóÕÖÓ Ü±½«³»²¬ ïðóë Ú·´»¼ ðîñðíñïé Ð¿¹» ë ±º ê ìêí Ð¿¹»×Ü ýæ Ý¿-» ïæïéó½ªóðððëðóÜÕÉóÕÖÓ Ü±½«³»²¬ ïðóë Ú·´»¼ ðîñðíñïé Ð¿¹» ê ±º ê ìêì Ð¿¹»×Ü ýæ Ý¿-» ïæïéó½ªóðððëðóÜÕÉóÕÖÓ Ü±½«³»²¬ ïðóê Ú·´»¼ ðîñðíñïé Ð¿¹» ï ±º ë ìêë IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAI‘I STATE OF HAWAI‘I, Plaintiff, v. DONALD J. TRUMP, in his official capacity as President of the United States; Civil Action No. U.S. DEPARTMENT OF HOMELAND SECURITY; JOHN F. KELLY, in his official capacity as Secretary of Homeland Security; U.S. DEPARTMENT OF STATE; REX TILLERSON, in his official capacity as Secretary of State; and the UNITED STATES OF AMERICA, Defendants. DECLARATION OF GEORGE SZIGETI EXHIBIT F Ð¿¹»×Ü ýæ Ý¿-» ïæïéó½ªóðððëðóÜÕÉóÕÖÓ Ü±½«³»²¬ ïðóê Ú·´»¼ ðîñðíñïé Ð¿¹» î ±º ë ìêê Ð¿¹»×Ü ýæ Ý¿-» ïæïéó½ªóðððëðóÜÕÉóÕÖÓ Ü±½«³»²¬ ïðóê Ú·´»¼ ðîñðíñïé Ð¿¹» í ±º ë ìêé Ð¿¹»×Ü ýæ Ý¿-» ïæïéó½ªóðððëðóÜÕÉóÕÖÓ Ü±½«³»²¬ ïðóê Ú·´»¼ ðîñðíñïé Ð¿¹» ì ±º ë ìêè Ð¿¹»×Ü ýæ Ý¿-» ïæïéó½ªóðððëðóÜÕÉóÕÖÓ Ü±½«³»²¬ ïðóê Ú·´»¼ ðîñðíñïé Ð¿¹» ë ±º ë ìêç Ð¿¹»×Ü ýæ Ý¿-» ïæïéó½ªóðððëðóÜÕÉóÕÖÓ Ü±½«³»²¬ ïðóé Ú·´»¼ ðîñðíñïé Ð¿¹» ï ±º í ìéð IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAI‘I STATE OF HAWAI‘I, Plaintiff, v. DONALD J. TRUMP, in his official capacity as President of the United States; Civil Action No. U.S. DEPARTMENT OF HOMELAND SECURITY; JOHN F. KELLY, in his official capacity as Secretary of Homeland Security; U.S. DEPARTMENT OF STATE; REX TILLERSON, in his official capacity as Secretary of State; and the UNITED STATES OF AMERICA, Defendants. DECLARATION OF ROSS HIGASHI EXHIBIT G Ð¿¹»×Ü ýæ Ý¿-» ïæïéó½ªóðððëðóÜÕÉóÕÖÓ Ü±½«³»²¬ ïðóé Ú·´»¼ ðîñðíñïé Ð¿¹» î ±º í ìéï Ð¿¹»×Ü ýæ Ý¿-» ïæïéó½ªóðððëðóÜÕÉóÕÖÓ Ü±½«³»²¬ ïðóé Ú·´»¼ ðîñðíñïé Ð¿¹» í ±º í ìéî Ð¿¹»×Ü ýæ Ý¿-» ïæïéó½ªóðððëðóÜÕÉóÕÖÓ Ü±½«³»²¬ ïðóè Ú·´»¼ ðîñðíñïé Ð¿¹» ï ±º ì ìéí IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAI‘I STATE OF HAWAI‘I, Plaintiff, v. DONALD J. TRUMP, in his official capacity as President of the United States; Civil Action No. U.S. DEPARTMENT OF HOMELAND SECURITY; JOHN F. KELLY, in his official capacity as Secretary of Homeland Security; U.S. DEPARTMENT OF STATE; REX TILLERSON, in his official capacity as Secretary of State; and the UNITED STATES OF AMERICA, Defendants. DECLARATION OF ISMAIL ELSHIKH, PhD EXHIBIT H Ð¿¹»×Ü ýæ Ý¿-» ïæïéó½ªóðððëðóÜÕÉóÕÖÓ Ü±½«³»²¬ ïðóè Ú·´»¼ ðîñðíñïé Ð¿¹» î ±º ì ìéì Ð¿¹»×Ü ýæ Ý¿-» ïæïéó½ªóðððëðóÜÕÉóÕÖÓ Ü±½«³»²¬ ïðóè Ú·´»¼ ðîñðíñïé Ð¿¹» í ±º ì ìéë Ð¿¹»×Ü ýæ Ý¿-» ïæïéó½ªóðððëðóÜÕÉóÕÖÓ Ü±½«³»²¬ ïðóè Ú·´»¼ ðîñðíñïé Ð¿¹» ì ±º ì ìéê Ð¿¹»×Ü ýæ

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