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

Filing 28

Filed (ECF) Appellees State of Washington and State of Minnesota response opposing motion ([14] Motion (ECF Filing), [14] Motion (ECF Filing) motion to stay lower court action). Date of service: 02/06/2017. [10302892] [17-35105]--[COURT UPDATE: Replaced PDF of exhibits with redacted version. 02/07/2017 by RY] (Purcell, Noah) [Entered: 02/06/2017 12:51 AM]

NO. 17-35105
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STATES OF WASHINGTON AND MINNESOTA,
Plaintiffs-Appellees,
v.
DONALD TRUMP, President of the United States, et al.,
Defendants-Appellants.
ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
No. 2:17-cv-00141
The Honorable JAMES L. ROBART
United States District Court Judge
STATES’ RESPONSE TO EMERGENCY MOTION UNDER
CIRCUIT RULE 27-3 FOR ADMINISTRATIVE STAY
AND MOTION FOR STAY PENDING APPEAL
ROBERT W. FERGUSON, WSBA 26004
Attorney General
NOAH G. PURCELL, WSBA 43492
Solicitor General
ANNE E. EGELER, WSBA 20258
Deputy Solicitor General
COLLEEN M. MELODY, WSBA 42275
Civil Rights Unit Chief

MARSHA CHIEN WSBA 47020
PATRICIO A. MARQUEZ WSBA 47693
Assistant Attorneys General
Washington State
Office of the Attorney General
800 Fifth Avenue, Suite 2000
Seattle, WA 98104
[phone]

LORI SWANSON
Attorney General of Minnesota
ALAN I. GILBERT, MN #0034678
Solicitor General
JACOB CAMPION, MN #0391274
Assistant Attorney General
Office of the Attorney General
445 Minnesota Street, Suite 1100
St. Paul, MN 55101
[phone]

TABLE OF CONTENTS
I.

INTRODUCTION ................................................................................1

II.

BACKGROUND ..................................................................................1

III. ARGUMENT .......................................................................................5
A. Defendants’ Appeal is Procedurally Improper .....................................5
B. If the Court Considers the Appeal, Defendants’ Burden is High
and the Standard of Review Deferential..............................................6
C. Defendants Cannot Show Irreparable Harm from the TRO When
it Simply Reinstates the Status Quo....................................................7
D. Defendants Are Unlikely to Succeed on Appeal Because the
District Court Acted Within its Discretion ..........................................8
1. Courts can review the legality of executive action and the
executive’s true motives..............................................................9
2. The States have standing ........................................................... 11
a. Proprietary standing............................................................ 11
b. Parens Patriae standing ...................................................... 13
3. The States’ claims have merit .................................................... 14
a. Defendants are unlikely to prevail against the States’
Due Process claim .............................................................. 14
b. Defendants are unlikely to prevail against the States’
Establishment Clause claim ................................................. 18
c. Defendants are unlikely to prevail against the States’
Equal Protection claim ........................................................ 20

i

d. Defendants are unlikely to prevail against the States’
INA claim ......................................................................... 21
4. A nationwide TRO was appropriate............................................ 23
E. A Stay Would Harm the States and the Public Interest........................ 24
IV. CONCLUSION .................................................................................. 25

ii

I.

INTRODUCTION

On January 27, President Trump unleashed chaos by signing the
Executive Order at issue here. Within 72 hours, the State of Washington
(quickly joined by Minnesota) had filed a complaint and motion for temporary
restraining order (TRO), detailing the extraordinary and irreparable harms the
Order was inflicting on our States and our people. After hearing from
Defendants, the district court entered the TRO, finding that the States had met
their burden to obtain that relief. The effects of the TRO were positive and
immediate, as immigration procedures began to return to normal, families
reunited, stranded students and faculty began returning to our States, and
longtime State residents were able to return to their homes.
Defendants now ask this Court to unleash chaos again by staying the
district court order. The Court should decline. Defendants’ appeal is improper,
their burden to obtain a stay is high and unmet, and their arguments fail.
II.

BACKGROUND

Donald Trump campaigned on the promise to impose “a total and
complete shutdown of Muslims entering the United States.” ECF 18 ¶ 42-43.1
He repeatedly defended and reiterated this promise. ECF 18 ¶¶ 44-46.
1

All ECF citations are to the district court docket numbers.

1

Shortly after taking office, President Trump signed an Executive Order
entitled “Protecting the Nation from Foreign Terrorist Entry into the United
States” (“the Order”). ECF 18 ¶ 49. The Order radically changes U.S.
immigration policy, imposing a 120-day moratorium on the refugee
resettlement program; indefinitely suspending entry of Syrian refugees; and
suspending for 90 days entry of anyone from seven majority-Muslim countries:
Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. ECF 18 ¶¶ 49-52.
President Trump subsequently stated his intent to prioritize Christians in the
Middle East for admission as refugees. ECF 18 ¶ 53.
The Order had immediate and significant effects in Washington. Over
7,000 noncitizen immigrants from the affected countries reside in Washington.
ECF 18 ¶ 11; ECF 4 ¶ 7, Ex. A. Those who were abroad were blocked from
returning home. ECF 33 ¶¶ 7-8. Husbands were separated from wives, brothers
from sisters, and parents from their children. ECF 18 ¶¶ 21-23; ECF 33 ¶ 5, 9.
Some who had waited decades to see family members had that reunion taken
away without warning or reason. ECF 18 ¶ 21; see also e.g., ECF 8 ¶¶ 11-13;
ECF 33 ¶¶ 5-9; ECF 43 ¶¶ 5-9.
Washington’s economy was also immediately impacted. Washington
receives substantial sales tax revenue every year from travelers from the

2

countries covered by the Order’s travel ban, and immediately began losing
some of that revenue. See ECF 17 ¶¶ 3-11. Washington-based travel company
Expedia began incurring costs assisting its customers who were suddenly
banned from travel to the United States. ECF 7 ¶¶ 12-14, 20. Washington
companies Amazon, Expedia, and Microsoft depend on skilled immigrants, and
the Order diminished their ability to recruit. ECF 18 ¶¶ 12-17; ECF 6 ¶¶ 3-4,
11; ECF 7 ¶¶ 7, 9, 21. As a result of the order, many employees were unable to
travel internationally, impairing business operations. ECF 7 ¶¶ 15-20; ECF 6
¶¶ 7-11; ECF 18 ¶¶ 14-15.
The Order also caused immediate harm to Washington’s public
universities, which are state agencies. Hundreds of their faculty, staff, and
students are from the affected countries. ECF 18 ¶ 28; ECF 9 ¶ 5; ECF 5 ¶ 5;
ECF 17-3 ¶¶ 4, 6; ECF 17-2 ¶ 10; ECF 17-4 ¶ 5. The Order instantly stranded
some faculty and students overseas, prevented others from traveling for
research and scholarship, and harmed the universities’ missions. ECF 9 ¶¶ 6-8;
ECF 5 ¶¶ 6-9. ECF 17-4 ¶¶ 6-7.
Due to these immediate and serious harms, Washington filed a complaint
and motion for TRO. ECF 3. Minnesota soon joined, alleging similar harms.
ECF 18 ¶¶ 30-36.

3

On February 3, the district court held a hearing on the States’ motion.
The Court granted the motion and entered a TRO barring Defendants from
enforcing several sections of the Order. ECF 52. The Court stated its intent to
promptly hold a hearing on the States’ forthcoming motion for preliminary
injunction and ordered the parties to propose a briefing schedule by the next
business day. ECF 52 at 6. The State proposed a briefing schedule to
Defendants. Decl. of N. Purcell In Support of State of Washington’s Response
to Emergency Motion for Stay Pending Appeal, Ex. K.
Following entry of the TRO, the State Department declared that it was
restoring visas that had been revoked under the Executive Order. Id. Exs. A, B.
It also stated that refugees could begin arriving as soon as Monday. Id. Exs. C,
D. The Department of Homeland Security started processing travelers with
visas as normal and resumed standard inspection procedures. Id. Exs. E, B, F.
Customs and Border Protection directed that nationals of the seven affected
countries and all refugees presenting a valid visa or green card be permitted to
travel to the United States. Id. Ex. G. Airlines announced that they will allow
travelers from the seven nations to board flights. Id. Exs. G, H, I, J, B, D. On
February 4, travelers from the previously banned countries began arriving at

4

U.S. airports. Id. Ex. B. More travelers are expected in the coming days. Id. Ex.
B.
On February 4, Defendants filed a notice of appeal and motion for stay
pending appeal.
III.

ARGUMENT

The Court should deny Defendants’ Motion to Stay as procedurally
improper and wrong on the merits.
A.

Defendants’ Appeal is Procedurally Improper
Defendants acknowledge that TROs are generally non-appealable.

Motion at 8. But they claim a right to appeal here because the order, in their
view, is akin to a preliminary injunction. Id. Not so.
In cases where this Court has treated a TRO as a preliminary injunction,
the parties had a full opportunity to brief issues and often put on evidence, and
the order extended for lengthy periods. See, e.g., SEIU v. Nat’l Union of
Healthcare Workers, 598 F.3d 1061, 1067 (9th Cir. 2010) (months passed
between complaint and TRO, and TRO was entered after 2-day evidentiary
hearing). Here, by contrast, Washington filed its complaint and motion
simultaneously, the TRO expressly ends when “the court can hear and decide
the States’ request for a preliminary injunction,” ECF 52 at 5, and the States

5

have proposed a schedule that would allow a hearing within 15 days of the
TRO’s entry. Purcell Dec. Ex. K. The Court should wait to review an order at
that time, not prematurely take up this one.
B.

If the Court Considers the Appeal, Defendants’ Burden is High and
the Standard of Review Deferential
If the Court deems this order reviewable, Defendants bear the heavy

burden of showing (1) a strong likelihood of success on the merits, (2) the
likelihood of irreparable injury if relief is not granted, (3) a balance of
hardships favoring Defendants, and (4) that reinstating the Executive Order is
in the public interest. See Hilton v. Braunskill, 481 U.S. 770, 776 (1987). In
assessing these factors, this Court reviews the district court order for abuse of
discretion. American Hotel and Lodging Assoc. v. Los Angeles, 834 F.3d 958,
962 (9th Cir. 2016). The review is “limited and deferential, and does not extend
to the underlying merits of the case.” Southwest Voter Registration Ed. Project
v. Shelley, 344 F.3d 914, 918 (9th Cir. 2003) (en banc). “If the underlying
constitutional question is close” the Court “should uphold the injunction and
remand for trial on the merits.” Ashcroft v. Am. Civil Liberties Union, 542 U.S.
656, 664-65 (2004).

6

C.

Defendants Cannot Show Irreparable Harm from the TRO When it
Simply Reinstates the Status Quo
Defendants concede that they must show “a likelihood that [they] will be

irreparably harmed absent a stay.” Motion at 8 (quoting Hilton, 481 U.S. at
776). But they offer no evidence that the time-limited TRO will cause
irreparable harm. In purporting to identify “facts” showing “the existence and
nature of the emergency” justifying their motion, Defendants resort to highlevel references to “separation of powers,” “harms [to] the public by thwarting
Enforcement of an Executive Order,” and the so-called harm of “secondguess[ing] the President’s national security judgment.” Motion at ii. These
purported harms fail to justify a stay.
First, separation-of-powers concerns do not automatically establish
irreparable harm. See, e.g., Lopez v. Heckler, 713 F.2d 1432, 1434 (9th Cir.
1983) (declining to stay district court order “restrain[ing]” the Secretary of
Health and Human Services from implementing an announced policy where
“separation of powers” was at issue). And Defendants cannot plausibly allege
that they suffer harm from being required to comply with the law, even where
they assert national security concerns. See, e.g., Holder v. Humanitarian Law
Proj., 561 U.S. 1, 34 (2010) (“Our precedents . . . make clear that national
security and foreign relations do not warrant abdication of the judicial role.”).

7

Second, Defendants’ argument amounts to claiming that returning to the
pre-Executive Order status quo would inflict irreparable harm. But that would
mean that until the Order was issued, Defendants were suffering some
unspecified, ongoing irreparable harm. That makes no sense. As this court has
held, preserving the status quo against sudden disruption is often in the interest
of all parties. See Feldman v. Ariz. Sec’y of State’s Office, 843 F.3d 366, 369370 (9th Cir. 2016) (en banc) (“preserv[ing] the status quo” to avoid the
“disruption” of a change in law pending review). That is precisely what the
TRO accomplishes here, stopping implementation of portions of the Order
until the district court determines whether they are lawful. While the Order is
reviewed, refugees and immigrants from the banned countries will continue to
undergo the rigorous screening processes that already existed prior to the
Order. Decl. of Nat’l Sec. Officials ¶ 6. Defendants nowhere explain how
reinstating a total ban is necessary to avoid irreparable injury. Id. ¶¶ 3-5
(concluding the Executive Order is likely to weaken, not strengthen, national
security).
D.

Defendants Are Unlikely to Succeed on Appeal Because the District
Court Acted Within its Discretion
Defendants concede that to justify a stay they must also prove “a strong

likelihood of success on appeal.” Motion at 8 (quoting Hilton, 481 U.S. at 776).

8

They cannot. The district court correctly concluded that the States “have shown
that they are likely to succeed on the merits of the claims that would entitle
them to relief.” ECF 52 at 4. 2
1.

Courts can review the legality of executive action and the
executive’s true motives

Defendants offer two threshold arguments to limit this Court’s review,
claiming that invoking national security prohibits meaningful judicial review
and that courts cannot examine the Executive’s motives. Both arguments fail.
First, courts routinely review executive decisions with far greater
security implications than this Order. Even “in matters relating to the actual
prosecution of a war,” the courts “exercise their own time-honored and
constitutionally mandated roles of reviewing and resolving claims.” Hamdi v.
Rumsfeld, 542 U.S. 507, 535 (2004) (plurality opinion); see also id. at 545
(Souter, J., concurring in the judgment); Boumediene v. Bush, 553 U.S. 723
(2008); Korematsu v. United States, 323 U.S. 214, 234 (1944) (Murphy, J.,

Defendants repeatedly assert that the States bring a “facial” challenge
to the Order and thus must demonstrate its invalidity in every possible
application. Motion at 2, 9, 18. But the States’ claim is as-applied because the
States challenge only portions of the Executive Order. See, e.g., Hoye v. City of
Oakland, 653 F.3d 835, 857 (9th Cir. 2011) (“[T]he difference between an asapplied and a facial challenge lies only in whether all or only some of the
statute’s subrules (or fact-specific applications) are being challenged.”).
2

9

dissenting) (“Individuals must not be left impoverished of their constitutional
rights on a plea of military necessity that has neither substance nor support.”).
Second, Defendants cite Kleindienst v. Mandel, 408 U.S. 753 (1972),
and Kerry v. Din, 135 S. Ct. 2128 (2015), for the proposition that so long as the
President gives a facially legitimate reason for excluding an alien, the courts
will not look behind that reason. But those cases dealt with the President’s
power to exclude “an unadmitted and nonresident alien,” i.e., someone who
had no legal right to be here. Mandel, 408 U.S. at 762; Din, 135 S. Ct. at 2131.
This case, by contrast, involves longtime residents who are here and have
constitutional rights. Moreover, Justice Kennedy’s controlling opinion in Din
held that courts should look behind the stated motives for exclusion even as to
a nonresident alien if the plaintiff “plausibly alleged with sufficient
particularity” “an affirmative showing of bad faith.” Id. at 2141. See also
Cardenas v. United States, 826 F.3d 1164, 1171 (9th Cir. 2016) (same). Here,
the State has plausibly alleged with sufficient particularity that the President
acted in bad faith in an effort to target Muslims. ECF 18 ¶¶ 42-61. Thus, courts
have both the right and the duty to examine Defendants’ true motives.

10

2.

The States have standing

In establishing standing, states “are not normal litigants,” but instead
receive “special solicitude.” Massachusetts v. EPA, 549 U.S. 497, 518, 520
(2007). The States established two independent grounds for Article III
standing: (1) harms to their proprietary interests; and (2) harms to their quasisovereign interests. ECF 17 at 2-5. Defendants fail to overcome either basis.
Crucially, because this case is at the pleading stage, the States need only
“state a plausible claim that [they have] suffered an injury in fact fairly
traceable to the actions of the defendant[s] that is likely to be redressed by a
favorable decision on the merits.” Humane Soc’y v. Vilsack, 797 F.3d 4, 8
(D.C. Cir. 2015). “[G]eneral factual allegations of injury resulting from the
defendant’s conduct may suffice,” and the Court “presumes that general
allegations embrace those specific facts that are necessary to support the
claim.” Bennett v. Spear, 520 U.S. 154, 168 (1997).
a.

Proprietary standing

The States alleged and submitted evidence that that the Order is harming
us by stranding our university students and faculty overseas, preventing
university-sponsored faculty and staff from coming here, preventing students
and faculty who are here currently from making pre-planned trips for research

11

or scholarship, and decreasing state tax revenue. See infra at 2-3. On this
evidence, the district court correctly found that “the States themselves are
harmed” by the damage to “their public universities and other institutions of
higher learning, as well as injury to the States’ operations, tax bases, and public
funds.” ECF 52 at 5. Defendants show no likelihood that this finding is
incorrect.
Defendants first argue that the harms to state universities are speculative,
claiming that the Order’s waiver provisions may allow students and faculty to
travel or return. Motion at 10. But in the face of evidence that faculty and
students have actually been prevented from travelling, ECF 17-4, Defendants
offer no evidence that such waivers will be granted, and concede that some
may be denied. Motion at 10. Defendants’ speculative remedies cannot undo
the States’ real harms.
As to the States’ evidence of lost tax revenue, ECF 17 at 2-3, Defendants
never dispute the evidence, instead claiming that lost tax revenue can never
establish state standing. But the case law does not support that claim. While
Florida v. Mellon, 273 U.S. 12 (1927), determined that the particular tax
revenues at issue there were speculative, courts have repeatedly found lost tax
revenues sufficient to establish proprietary standing. See, e.g., Sausalito v.

12

Oneill, 386 F.3d 1186, 1198 (9th Cir. 2004) (holding that lost property and
sales tax revenues caused by increased traffic established standing without any
numeric quantification of the harm). And in Texas v. United States, 787 F.3d
733 (5th Cir. 2015), the court found that a change in immigration policy that
would increase state expenditures created standing. If increased expenditures
create standing, there is no logical reason why decreased revenues should not.
b.

Parens Patriae standing

The States also alleged and offered evidence that the Order is inflicting
grievous harms on our residents. ECF 17 at 4 (citing ECF 8 ¶¶ 6-14; ECF 18 ¶¶
18-23, 31-36). Based on this evidence, the district court correctly concluded
that: “The Executive Order adversely affects the States’ residents in areas of
employment, education, business, family relations, and freedom to travel.
These harms extend to the States by virtue of their roles as parens patriae.”
ECF 52 at 4-5. Defendants never meaningfully dispute these harms, instead
arguing that parens patriae suits against the federal government are never
permitted under Massachusetts v. Mellon, 262 U.S. 447 (1923). Not so.
Mellon expressly recognized that it did not prohibit state actions—such
as this one—seeking to protect quasi-sovereign interests. See id. at 481-82,
485; see also Massachusetts, 549 U.S. at 520 n.17 (same). Mellon also pointed

13

out that it did not bar all parens suits challenging the United States’
unconstitutional acts. Mellon, 262 U.S. at 487.
More recent Supreme Court decisions confirm the States’ parens
standing. In Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592 (1982),
the Court found that states have standing to sue based on discrimination against
their residents: “This Court has had too much experience with the political,
social, and moral damage of discrimination not to recognize that a State has a
substantial interest in assuring its residents that it will act to protect them from
these evils.” Id. at 609. And in Massachusetts v. EPA, the Court cemented
states’ standing to protect their quasi-sovereign interests, including in actions
against the federal government. 549 U.S. at 516-21. The Court rejected the
broad reading of Mellon advocated by Defendants, id. at 520 n.17, confirming
that a state can assert standing to protect its citizens when the federal
government violates federal law.
3.

The States’ claims have merit
a.

Defendants are unlikely to prevail against the States’
Due Process claim

The Order violates due process in several ways and the States’ claim is
very likely to succeed.

14

First, the Order denies entry to the United States of all persons from the
seven countries, regardless of whether they have lived legally in this country
for years.3 Thus, our States’ residents from these countries who travel abroad
will be deported if they attempt to re-enter this county, and those who remain
will be forced to forego international travel to avoid that devastating result.
This draconian restriction violates due process.
The Fifth Amendment protects all persons in the United States “from
deprivation of life, liberty, or property without due process of law,” regardless
of immigration status. Mathews v. Diaz, 426 U.S. 67, 69, 77 (1976); Zadvydas
v. Davis, 533 U.S. 678, 693 (2001). A temporary absence from the country
does not deprive longtime residents of their right to due process. See, e.g.,
Landon v. Plasencia, 459 U.S. 21, 33 (1982) (“[T]he returning resident alien is
entitled as a matter of due process to a hearing on the charges underlying any
attempt to exclude him.”) (internal citation omitted); Kwong Hai Chew v.
Colding, 344 U.S. 590, 601 (1953).

3

After taking a dizzying number of positions, Defendants landed on the
view that the travel ban “does not apply to lawful permanent residents.” See
Mot. at 6. Nonetheless, the text of the Order remains unchanged, and the
States’ challenge to that portion of Section 3(c) is not moot. See White v. Lee,
227 F.3d 1214, 1243 (9th Cir. 2000) (mootness based on voluntary cessation is
a “stringent” standard).

15

Due process requires that lawful permanent residents and visaholders not
be denied re-entry to the United States without “at a minimum, notice and an
opportunity to respond.” United States v. Raya-Vaca, 771 F.3d 1195, 1204 (9th
Cir. 2014). A resident denied re-entry must receive a “full and fair hearing of
his claims” and “a reasonable opportunity to present evidence on his behalf.”
Colmenar v. I.N.S., 210 F.3d 967, 971 (9th Cir. 2000); Gutierrez v. Holder, 662
F.3d 1083, 1091 (9th Cir. 2011).
The Order’s denial of re-entry to all visaholders and lawful permanent
residents from the impacted countries, without an opportunity to be heard,
violates these principles. The Order also deprives noncitizen residents of our
States of the right to travel, a constitutionally protected liberty interest. Kent v.
Dulles, 357 U.S. 116, 125-26 (1958) (holding that Secretary of State could not
deny passports to Communists on the basis that the right to travel abroad is a
constitutionally protected liberty interest).
Defendants never contest these principles. Instead, they argue that the
Order will not really affect our States’ residents, and that states cannot raise
due process claims, citing South Carolina v. Katzenbach, 383 U.S. 301 (1966).
But the States have alleged and offered evidence that many state residents,

16

including students and faculty at public universities, are being harmed by the
Order. Defendants cannot wish that away.
Moreover, unlike in Katzenbach, the States here assert proprietary
harms. Where, as here, a state asserts harms to students and faculty at its
institutions, the State should be allowed—just like any other proprietor of
educational institutions—to raise due process claims on their behalf. See, e.g.,
Pierce v. Soc’y of Sisters, 268 U.S. 510 (1925); Parks Sch. of Bus., Inc. v.
Symington, 51 F.3d 1480, 1487 (9th Cir. 1995) (holding that school had
standing to challenge harm to students that impacted school); Ohio Ass’n of
Indep. Schs. v. Goff, 92 F.3d 419, 422 (6th Cir. 1996) (same); see also Bd. of
Nat. Res. of State of Wash. v. Brown, 992 F.2d 937, 943 (9th Cir. 1993).
Even as to the States’ parens claims, Katzenbach does not control.
Katzenbach cited Mellon in holding that South Carolina could not use its
parens authority to challenge a federal statute. 383 U.S. at 323-24. But in
Massachusetts v. EPA, the Court clarified that “there is a critical difference
between allowing a State to protect her citizens from the operation of federal
statutes (which is what Mellon prohibits) and allowing a State to assert its
rights under federal law (which it has standing to do).” 549 U.S. at 520 n.17.
Here, the States seek not to protect our residents from federal statutes, but to

17

protect our residents against Defendants’ violations of federal law. This is what
States “ha[ve] standing to do.” Id.
b.

Defendants are unlikely to prevail against the States’
Establishment Clause claim

The State has alleged and offered substantial evidence even before
discovery that the Executive Order violates the Establishment Clause because
its purpose and effect are to favor one religion. “The clearest command of the
Establishment Clause is that one religious denomination cannot be officially
preferred over another.” Larson v. Valente, 456 U.S. 228, 244 (1982). In
Larson, the law at issue did not mention any religious denomination, but drew
a distinction between religious groups based on facially neutral criteria. Id. at
231-32. The Court nonetheless applied strict scrutiny because the law was
focused on religious entities and had the effect of favoring some. Id. at 246-47.
Larson applies here. The Order’s refugee provisions explicitly
distinguish between members of religious faiths. President Trump has made
clear that one purpose of the Order is to favor Christian refugees at the expense
of Muslims. ECF 18 ¶ 53, Ex. 8. And the States have plausibly alleged that the
countries chosen for the travel ban were chosen in part to disfavor Muslims.

18

ECF 18 ¶ 61, Ex. 17. This case thus involves just the sort of discrimination
among denominations that failed strict scrutiny in Larson, and must fail here.4
Defendants claim that the Order “is neutral with respect to religion.”
Motion at 19. “But it is . . . the duty of the courts to distinguish a sham secular
purpose from a sincere one.” Sante Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290,
308 (2000); McCreary County, Ky. v. Am. Civil Liberties Union of Ky., 545
U.S. 844, 864 (2005) (citing Lemon v. Kurtzman, 403 U.S. 602, 612 (1971)).
Here, the sham of a secular purpose is exposed by both the language of the
Order and Defendants’ expressions of anti-Muslim intent. See, e.g., McCreary,
545 U.S. at 866 (courts consider the “historical context” of the government act
and “the specific sequence of events leading to [its] passage”).
Unable to respond on the merits, Defendants claim that States cannot
raise Establishment Clause claims themselves or as parens patriae. Motion at
11 n.4. But they cite no authority for these propositions. And one purpose of
the Establishment Clause was to protect States against the federal government

4

Even under the less demanding Lemon test, the Order is
unconstitutional. See ECF 19-1 at 12-14.

19

adopting a national religion. 5 There is no reason to bar States from enforcing
that right, whether on their own behalf or as parens patriae.
c.

Defendants are unlikely to prevail against the States’
Equal Protection claim

The States are likely to prevail on our equal protection claim because the
Executive Order is motivated by discriminatory animus and cannot survive any
level of review.
Classifications based on religion are inherently suspect and subject to
strict scrutiny. City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976). The
Order specifies that Defendants will give priority to refugee claims “on the
basis of religious-based persecution,” but only if “the religion of the individual
is a minority religion in the individual’s country of nationality.” Sec. 5(b). The
State has plausibly alleged and offered evidence that this policy change and the
list of countries targeted by the Order were intended to disfavor Muslims. The
States need not show that intent to discriminate against Muslims “was the sole
purpose of the challenged action, but only that it was a ‘motivating factor.”
Arce v. Douglas, 793 F.3d 968, 977 (9th Cir. 2015).
5

See, e.g., Richard Albert, The Constitutional Politics of the
Establishment Clause, 87 CHI.-KENT L. REV. 867, 874 (2012); Separation of
Church & State Comm. v. City of Eugene, 93 F.3d 617, 621 (9th Cir. 1996)
(O’Scannlain, J., concurring) (“[C]oncerns about federalism . . . motivated
ratification of the Establishment Clause.”).

20

Even if the Order did not make suspect classifications, it would be illegal
because “its sheer breadth is so discontinuous with the reasons offered for it
that the [Order] seems inexplicable by anything but animus toward the class it
affects.” Romer v. Evans, 517 U.S. 620, 632 (1996). For several months it bans
all travelers from the listed countries and all refugees, whether they be infants,
schoolchildren, or grandparents. And though it cites the attacks of September
11, 2001, as a rationale, it imposes no restrictions on people from the countries
whose nationals carried out those attacks. “It is at once too narrow and too
broad,” id. at 633, and cannot withstand any level of scrutiny. See, e.g., United
States v. Windsor, 133 S. Ct. 2675, 2693 (2013) (“The Constitution’s guarantee
of equality must at the very least mean that a bare [legislative] desire to harm a
politically unpopular group cannot justify disparate treatment of that group.”).
d.

Defendants are unlikely to prevail against the States’
INA claim

8 U.S.C. § 1152(a)(1)(A) states: “no person shall receive any preference
or priority or be discriminated against in the issuance of an immigrant visa
because of race, nationality, place of birth, or place of residence.” Defendants
argue that the national origin discrimination embodied in the Executive Order
is nonetheless justified under Section 1182(f), which allows the President to
suspend entry of aliens detrimental to the interests of the United States, and

21

that such immigration decisions are “generally shielded from administrative or
judicial review.” Mot. at 12. Neither argument is persuasive.
Section 1152 was enacted in 1965, thirteen years after Section 1182(f),
and it enumerates specific exceptions that do not include Section 1182(f).
Congress specified exactly when federal officials could take nationality into
account: “as specifically provided in paragraph (2) and in sections 1101(a)(27),
1151(b)(2)(A)(i), and 1153 of this title.” 8 U.S.C. § 1152(a)(1)(A). None of
these narrow exceptions apply here; and by enumerating those few exemptions,
Congress made clear it did not intend to authorize others. 6 See, e.g., United
Dominion Indus. v. United States, 532 U.S. 822, 836 (2001) (describing
expressio unius canon).
Further, despite Defendants’ references to “plenary” power over
immigration, Motion at 4—which actually resides with Congress, see U.S.
Const., Article I, § 8—the President’s authority under Section 1182(f) is
judicially reviewable. See Zadvydas, 533 U.S. at 698 (holding the political
branches’ power “is subject to important constitutional limitations”); Diouf v.

Although Defendants argue that “courts have repeatedly affirmed” the
President’s authority to make distinctions based on nationality, Motion at 13,
none of the cases Defendants cite raised Section 1152.
6

22

Napolitano, 634 F.3d 1081, 1091 (9th Cir. 2011) (refusing to defer to DHS’s
regulations because the regulations “raise[d] serious constitutional concerns”).
Before now, no President has invoked 1182(f) to impose a categorical
bar on admission based on a generalized (and unsupported) claim that some
members of a class might engage in misconduct. Cf. Pres. Procl. 5517, 1986
WL 796773 (Aug. 22, 1986) (barring entry of certain Cuban nationals, with
many categorical exceptions). The Order flouts Congress’s clear command
prohibiting nationality-based discrimination.
4.

A nationwide TRO was appropriate

Defendants offer a halfhearted argument that a nationwide injunction
was inappropriate, but they offer no plausible narrower order that would have
provided the relief the States sought. In any event, nationwide relief was well
within the district court’s discretion given that (1) Congress and the courts have
emphasized the importance of uniformity in immigration policies; and (2)
nationwide relief was necessary to ensure that the States’ residents were not
stopped at other ports of entry around the country on their way to Washington
or Minnesota. See, e.g., Texas, 787 F.3d at 768-69 (affirming nationwide
injunction to ensure uniformity and provide full relief).

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E.

A Stay Would Harm the States and the Public Interest
The States have detailed at length the harms we suffered under the

Order. Staying the district court’s ruling would reinstitute those harms,
separating families, stranding our university students and faculty, and barring
travel. Defendants claim that national security requires these harms, but the
Court need not and should not allow constitutional violations merely based on
Defendant’s unsupported invocation of national security concerns. See Decl. of
Nat’l Sec. Officials ¶ 4; Hassan v. City of New York, 804 F.3d 277, 306-07 (3d
Cir. 2015) (“[I]t is often where the asserted interest appears most compelling
that we must be most vigilant in protecting constitutional rights.”). In any
event, the balance of equities and public interest always favor “prevent[ing] the
violation of a party’s constitutional rights.” Melendres v. Arpaio, 695 F.3d 990,
1002 (9th Cir. 2012).

///
///
///

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IV.

CONCLUSION

For the reasons above, the Court should deny Defendants’ request for
stay.
RESPECTFULLY SUBMITTED this 6th day of February 2017.
ROBERT W. FERGUSON, WSBA 26004
Attorney General
NOAH G. PURCELL, WSBA 43492
Solicitor General
ANNE E. EGELER, WSBA 20258
Deputy Solicitor General
COLLEEN M. MELODY, WSBA 42275
Civil Rights Unit Chief
MARSHA CHIEN WSBA 47020
PATRICIO MARQUEZ WSBA 47693
Assistant Attorneys General
Washington State
Office of the Attorney General
800 Fifth Avenue, Suite 2000
Seattle, WA 98104
[phone]
LORI SWANSON
Attorney General of Minnesota
ALAN I. GILBERT, MN #0034678
Solicitor General
JACOB CAMPION, MN #0391274
Assistant Attorney General
Office of the Attorney General
445 Minnesota Street, Suite 1100
St. Paul, MN 55101
[phone]

25

STATEMENT OF RELATED CASES
Pursuant to Circuit Rule 28-2.6(c) the Appellees state that there are no
related cases.

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CERTIFICATE OF COMPLIANCE (FRAP 32(a)(7))
I certify that pursuant to Fed. R. App. P. 27, the attached answering brief
is proportionately spaced, has a typeface of 14 points or more and contains
5,110 words.
February 6, 2017

s/ Noah G. Purcell
NOAH G. PURCELL, WSBA 43492

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CERTIFICATE OF SERVICE
I hereby certify that on February 6, 2017, I electronically filed the
foregoing with the Clerk of the Court of the United States Court of Appeals for
the Ninth Circuit by using the appellate CM/ECF system.
I certify that all participants in the case are registered CM/ECF users and
that service will be accomplished by the appellate CM/ECF system.

February 6, 2017

s/ Noah G. Purcell
NOAH G. PURCELL, WSBA 43492

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