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

Filing 24

Submitted (ECF) Amicus brief for review and filed Motion to become amicus curiae. Submitted by American Civil Liberties Union and ACLU of Washington. Date of service: 02/06/2017. [10302888] [17-35105] (Chiang, Emily) [Entered: 02/06/2017 12:30 AM]

No. 17-35105
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STATE OF WASHINGTON; STATE OF MINNESOTA,
Plaintiffs-Appellees,
v.
DONALD J. TRUMP, President of the United States, et al.,
Defendants-Appellants.
Appeal from the United States District Court
Western District of Washington, Seattle
D.C. No. 2:17-cv-00141-JLR
BRIEF OF THE AMERICAN CIVIL LIBERTIES UNION AND ACLU
OF WASHINGTON AS AMICI CURIAE IN OPPOSITION TO
APPELLANTS’ MOTION FOR A STAY
Emily Chiang, WSBA No. 50517
ACLU OF WASHINGTON
FOUNDATION
901 Fifth Avenue, Suite 630
Seattle, WA 98164
[phone]
[e-mail]
Daniel Mach
Heather L. Weaver
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION
915 15th Street NW
Washington, DC 20005
[phone]
Attorneys for Amici (Additional
Counsel on Subsequent Page)

Lee Gelernt
Omar Jadwat
Andre Segura
Spencer Amdur
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION
Immigrants’ Rights Project
125 Broad Street
New York, NY 10004
[phone]
Cecillia Wang
Cody Wofsy
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION
39 Drumm Street
San Francisco, CA 94111
[phone]

Paul J. Lawrence, WSBA No. 13557
Kymberly K. Evanson,
WSBA No. 39973
Alanna E. Peterson,
WSBA No. 46502
PACIFICA LAW GROUP LLP
1191 Second Avenue, Suite 2000
Seattle, WA 98101
[phone]

CORPORATE DISCLOSURE STATEMENT
Pursuant to Rule 29(a)(4)(A) of the Federal Rules of Appellate Procedure,
the American Civil Liberties Union Foundation and ACLU of Washington
Foundation make the following disclosures:
1.) For non-governmental corporate parties please list all parent
corporations: None
2.) For non-governmental corporate parties please list all publicly held
companies that hold 10% of more of the party’s stock: None
Dated: February 6, 2017

Respectfully Submitted,
/s/ Emily Chiang
Emily Chiang, WSBA No. 50517
ACLU of Washington Foundation
901 Fifth Avenue, Suite 630
Seattle, WA 98164
[phone]
[e-mail]
Counsel for Amici

INTRODUCTION AND INTEREST OF AMICI
The American Civil Liberties Union (“ACLU”) is a nationwide,
nonprofit, nonpartisan organization dedicated to the principles of liberty and
equality embodied in the Constitution and this Nation’s civil rights laws.
The ACLU was founded in 1920, largely in response to the curtailment of
liberties that accompanied America’s entry into World War I.

In the

intervening nine decades, the ACLU has frequently appeared before this and
other courts during periods when the government has sought to abridge
rights in the name of national security.
The American Civil Liberties Union of Washington (“ACLU-WA”) is
a statewide, nonpartisan, nonprofit organization of over 50,000 members
carrying out the ACLU’s mission in the State of Washington. Like the
national ACLU and other affiliates across the country, ACLU-WA has
become a focal point to which many people harmed by the Executive Order
have turned.

Amici respectfully submit this brief in opposition to the

government’s motion for a stay pending appeal.1

1

All parties have consented to the filing of this brief. Amici affirm that no
counsel for any party authored this brief in whole or in part, and no counsel
or party made a monetary contribution intended to fund the preparation or
submission of this brief. No person other than Amici or their counsel made a
monetary contribution to its preparation or submission.

1

The United States Constitution forbids the government from
discriminating on the basis of religion. And yet, on January 27, 2017,
President Donald J. Trump issued an Executive Order that, inter alia,
banned from entering the United States all individuals from seven Muslimmajority countries—Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen—
and gave preference to the processing of non-Muslim refugees over Muslim
refugees from around the world. The Order is motivated by bias against
Muslims, as confirmed by the President’s own public statements, as well as
the absence of any rational justification for the categorical exclusion of
individuals from the seven identified nations or the complete ban on
refugees from around the world. The religious discrimination involved in
the Executive Order is inconsistent with the bedrock Establishment Clause
and equal protection principle that the government should never favor one
religion over another.
The District Court properly granted a Temporary Restraining Order,
putting a hold on the Executive Order until it can be more fully evaluated by
the court. The government seeks to stay the Temporary Restraining Order
and to reinstate the discriminatory and unlawful Executive Order. It invokes
the doctrine of “plenary power” over immigration matters, arguing that this
Court ought not engage in any real examination of the legality of this Order.

2

But the plenary power doctrine does not permit the government to override
all constitutional rights and has never been applied to approve discrimination
striking at the very core of the value of religious equality so central to this
Nation’s founding.
The Order profoundly, directly, and irreparably harms people
throughout the United States, destabilizing the lives of thousands of
individuals and their families—including those seeking to live, find refuge,
visit, study, or work in the State of Washington. Under the Order, U.S.
citizens and legal permanent residents are unable to maintain their
relationships with their families when their family members are denied entry
at our borders. Those fleeing persecution cannot find a safe harbor here..
And workers and students with valid visas will lose their right to live, work,
and study here if they travel abroad.
In light of the substantial and widespread injuries at stake—to citizens
and noncitizens alike—Amici respectfully urge the Court to deny the
government’s motion for a stay of the Temporary Restraining Order, and to
leave in place this critical protection from further irreparable harm.

3

ARGUMENT
A. The Government’s Invocation Of The “Plenary Power” Doctrine
Is Flawed.
The United States invokes the plenary power doctrine to argue that the
Order’s religious classifications should be subject to essentially no judicial
scrutiny. See Appellant’s Br. 12-13, 16. But the Supreme Court’s recent
immigration decisions have taken a far more measured approach to the
plenary power doctrine than the government urges: the Court has repeatedly
refused to insulate federal immigration statutes from meaningful
constitutional review.

See, e.g., Zadvydas v. Davis, 533 U.S. 678, 695

(2001) (rejecting government’s reliance on the plenary power doctrine,
explaining that the government’s immigration “power is subject to important
constitutional limitations”); INS v. St. Cyr, 533 U.S. 289, 304 (2001)
(construing provision of immigration statute to avoid Suspension Clause
concerns); INS v. Chadha, 462 U.S. 919, 940-41 (1983) (invalidating the
legislative veto, stating that despite “[t]he plenary authority of Congress over
aliens,” courts must inquire into “whether Congress has chosen a
constitutionally permissible means of implementing that power”); Landon v.
Plasencia, 459 U.S. 21, 32-35, 37 (1982) (holding that exclusion procedures
for lawful permanent residents returning from brief trips abroad must
comply with the Due Process Clause); see also Boumediene v. Bush, 553
4

U.S. 723, 771 (2008) (holding that statute applicable to noncitizens detained
at Guantánamo Bay was unconstitutional, stating that “Congress must act in
accordance with the requirements of the Suspension Clause”). In short, the
government’s immigration powers are “subject to judicial intervention under
the paramount law of the [C]onstitution.” Carlson v. Landon, 342 U.S. 524,
537 (1952) (internal quotation marks omitted).
In any event, the Supreme Court has never applied the plenary power
doctrine to insulate from meaningful scrutiny an immigration classification
that discriminates on the basis of religion in the manner that the Executive
Order does here.

The government can point to no legal or historical

precedents to support the insulation of such discrimination from review.
The Court therefore should not deviate in this case from “the clearest
command of the Establishment Clause,” which is “that one religious
denomination cannot be officially preferred over another.”

Larson v.

Valente, 456 U.S. 228, 244 (1982). Now is not the point in our Nation’s
history to begin placing judicial imprimatur on religious discrimination.
B. The Order’s Discrimination On The Basis of Religion Irreparably
Harms Members Of Our Communities.
Since the President issued the Executive Order on January 27, its
effects have reverberated across the entire country, including in Washington.
Hundreds of individuals have contacted the ACLU, ACLU-WA, and other
5

ACLU state affiliates to report problems or seek advice on how best to
protect themselves, their families, and their loved ones from the Order.
Across the country, individuals feel uncertain about the future and question
the stability of their employment, education, and right to travel freely. It is
in the public interest to maintain interim injunctive relief to prevent
substantial and ongoing nationwide harm. See Preminger v. Principi, 422
F.3d 815, 826 (9th Cir. 2005) (courts consider the public interest in
determining whether to issue interim injunctive relief).
The individuals reaching out to the ACLU reflect the impact the Order
has on people in Washington and throughout the Nation. The Order visits
harm, among many others, against the following categories of people:
U.S. citizens with family or loved ones abroad. The Order impedes
the ability of U.S. citizens to have friends and family from the seven affected
countries visit or live with them, whether as immigrants or under tourist,
work, or student visas. Amici have received many such reports and requests
for help from citizens, including one report of a citizen who had waited two
years for the issuance of visas for her husband and step-daughter, only to
have their reunification blocked by the Order.
Legal permanent residents with family or loved ones abroad. The
ban similarly obstructs the ability of legal permanent residents to have their

6

family or loved ones visit or join them in Washington and other places
throughout the country. Many lawful permanent residents also fear leaving
the country themselves, because the government’s many policy changes
toward them during the past week have created an atmosphere of uncertainty
and chaos. One permanent resident who contacted Amici, for example,
feared visiting her elderly grandparents abroad. Her mother would also be
unable to proceed with a planned visit here in the United States.
Individuals with refugee family members or friends fleeing
persecution and conflict. The blanket ban on all refugees for 120 days, and
on refugees from Syria indefinitely, exposes many refugees abroad to
extreme danger. Those who are set to be admitted to the United States have
already been extensively vetted, and many live in countries where their lives
are at risk on a daily basis. For them, the Executive Order is literally a
matter of life or death. Many of these refugees have family members or
friends in the United States who are likewise harmed by the Order. A Syrian
refugee family living in the United States, for example, contacted Amici to
seek help for their son, daughter, and son-in-law, who had obtained the
necessary approval to join the family in this country but were barred because
of the Order. They are from Aleppo, Syria, and their daughter is pregnant.

7

Refugees residing in Washington who wish to reconnect with their
families abroad. The ban also impedes the rights of refugees residing in
Washington and other areas of the country to either have their families join
them or to travel abroad to reconnect with their families. An Iraqi refugee,
for example, contacted Amici because she has not seen her fiancée since she
resettled in Washington two years ago, but now is afraid that if she leaves
the country to visit him she will not be allowed to return.
For each of these stories, there are no doubt many other families being
torn apart by the Order.

The ban prevents student visa-holders from

traveling abroad for study, travel, or to see their families. It restricts the
ability of individuals working in the United States pursuant to employmentbased visas to travel as needed for their work. This has a profound effect on
Washington companies in particular, which employ a significant number of
skilled workers under employment-based visas in positions that require
international travel. While purporting to advance national security, the ban
is discriminatory and lacks a rational connection to national security,
resulting in needless and irreparable harm to countless individuals living and
working in this country.

8

CONCLUSION
Amici respectfully request that the Court deny the government’s
motion for a stay of the Temporary Restraining Order.

February 6, 2017.
Respectfully submitted,
/s/ Emily Chiang
Emily Chiang, WSBA No. 50517
ACLU OF WASHINGTON
FOUNDATION
901 Fifth Avenue, Suite 630
Seattle, WA 98164
[phone]
[e-mail]
Lee Gelernt
Omar Jadwat
Andre Segura
Spencer Amdur
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
Immigrants’ Rights Project
125 Broad Street
New York, NY 10004
[phone]
Cecillia Wang
Cody Wofsy
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
39 Drumm Street
San Francisco, CA 94111
[phone]
9

Daniel Mach
Heather L. Weaver
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
915 15th Street NW
Washington, DC 20005
[phone]
Paul J. Lawrence,
WSBA No. 13557
Kymberly K. Evanson,
WSBA No. 39973
Alanna E. Peterson,
WSBA No. 46502
PACIFICA LAW GROUP LLP
1191 Second Avenue, Suite 2000
Seattle, WA 98101
[phone]

10

CERTIFICATE OF SERVICE
I hereby certify that on February 6, 2017, I electronically filed the
foregoing with the Clerk for the United States Court of Appeals for the
Ninth Circuit by using the appellate CM/ECF system. All participants in
this case are registered CM/ECF users and will be served by the appellate
CM/ECF system. There are no unregistered participants.
/s/ Emily Chiang
Emily Chiang, WSBA No. 50517
Dated: February 6, 2017

CERTIFICATE OF COMPLIANCE
This brief complies with the type-volume limitation of Fed. R. App. P.
32(a)(7)(B) because this brief is 10 pages in length, excluding parts of the
brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
I certify that this brief complied with typeface requirements of Fed. R.
App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6)
because the brief has been prepared in a proportionally-spaced typeface
using Microsoft Office 2011 in 14 point Times New Roman.
/s/ Emily Chiang
Emily Chiang, WSBA No. 50517
Dated: February 6, 2017