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

Filing 43

Submitted (ECF) Amicus brief for review and filed Motion to become amicus curiae. Submitted by Constitutional Scholars. Date of service: 02/06/2017. [10303342] [17-35105] (Shields, Rasha) [Entered: 02/06/2017 11:01 AM]

No. 17-35105
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STATE OF WASHINGTON, et al.,
Plaintiffs-Appellees,
v.
DONALD J. TRUMP, President of the United States, et al.,
Defendants-Appellants.

From the United States District Court, Western District of Washington
The Honorable James L. Robart, Case No. C17-0141JLR
BRIEF OF CONSTITUTIONAL SCHOLARS
AS AMICI CURIAE IN SUPPORT OF APPELLEES
(Filed With Consent of All Parties)

JONES DAY
Meir Feder
Nicole Henning
250 Vesey Street
New York, NY 10281
Telephone: [phone]
Rasha Gerges Shields
Erna Mamikonyan
555 South Flower Street, 50th Floor
Los Angeles, CA 90071
Telephone: [phone]

Of Counsel:
Kristin Collins
Judith Resnik
Stephen I. Vladeck
Burt Neuborne

Counsel for Amici Curiae
Constitutional Scholars

TABLE OF CONTENTS
Page
INTERESTS OF AMICI CURIAE ........................................................................1
ARGUMENT ...........................................................................................................1
CONCLUSION......................................................................................................15
ADDENDUM

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TABLE OF AUTHORITIES
Page
CASES
Arizona v. United States,
132 S. Ct. 2492 (2012) ........................................................................................10
Boumediene v. Bush,
553 U.S. 723 (2008) ..........................................................................................4, 8
Chae Chan Ping v. U.S.,
130 U.S. 581 (1889) ..............................................................................................4
Ex Parte Quirin,
317 U.S. 1 (1942) ................................................................................................13
Fiallo v. Bell,
430 U.S. 787 (1977) ..............................................................................................7
Fong Yue Ting v. U.S.,
149 U.S. 698 (1893) ..............................................................................................4
Galarza v. Szalczyk,
745 F.3d 634 (3d Cir. 2014) ...............................................................................11
Hamdi v. Rumsfeld,
542 U.S. 507 (2004) ............................................................................................12
INS v. Chadha,
462 U.S. 919 (1983) ..............................................................................................7
INS v. St. Cyr,
533 U.S. 289 (2001) ..............................................................................................8
Jean v. Nelson,
472 U.S. 846 (1985) ..............................................................................................9

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Kerry v. Din,
135 S. Ct. 2128 (2015) ..........................................................................................7
Kleindienst v. Mandel,
408 U.S. 753 (1972) ..........................................................................................6, 7
Korematsu v. United States,
323 U.S. 214 (1944) ............................................................................................13
Kwong Hai Chew v. Colding,
344 U.S. 590 (1953) ..............................................................................................4
Landon v. Plasencia,
459 U.S. 21 (1982) ................................................................................................7
Mukasey v. Rajah,
544 F.3d 427 (2d Cir. 2008) ................................................................................. 9
Narenji v. Civiletti,
617 F.2d 745 (D.C. Cir. 1979) .............................................................................. 9
Printz v. United States,
521 U.S. 898 (1997) ............................................................................................10
Reno v. Arab-Am. Anti-Discrimination Comm.,
525 U.S. 471 (1999) ..............................................................................................8
Zadvydas v. Davis,
533 U.S. 678 (2001) ..........................................................................................4, 8
STATUTES
8 U.S.C. § 1182(d)(5)(A) ...........................................................................................9
8 U.S.C. § 1182(f) ..................................................................................................5, 6
OTHER AUTHORITIES
T. Alexander Aleinikoff, Detaining Plenary Power: The Meaning and
Impact of Zadvydas v. Davis, 16 Geo. Immigr. L.J. 365 (2002).......................... 4
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Gabriel J. Chin, Segregation’s Last Stronghold: Race Discrimination
and the Constitutional Law of Immigration, 46 UCLA L. Rev. 1
(1998) ....................................................................................................................5
Sarah H. Cleveland, Powers Inherent in Sovereignty: Indians, Aliens,
Territories, and the Nineteenth Century Origins of Plenary Power
Over Foreign Affairs, 81 Tex. L. Rev. 1 (2002) ................................................... 5
Congressional Research Service, Executive Authority to Exclude
Aliens: In Brief (Jan. 23, 2017) .............................................................................6
Nancy F. Cott, Marriage and Women’s Citizenship in the United
States, 1830-1934, 103 Am. Hist. Rev. 1140 (Dec. 1998) .................................14
Henry M. Hart, Jr. and Herbert Weschsler, THE FEDERAL COURTS AND
THE FEDERAL SYSTEM (1953) ..............................................................................14
Louis Henkin, THE AGE OF RIGHTS (1990) ................................................................ 5
Jamal Greene, The Anticanon, 125 Harv. L. Rev. 380 (2011) ................................14
Stephen H. Legomsky, Immigration Law and the Principle of Plenary
Congressional Power, 1984 Sup. Ct. Rev. 255 (1984) ........................................ 5
Hiroshi Motomura, Immigration Law After a Century of Plenary
Power: Phantom Constitutional Norms and Statutory
Interpretation, 100 Yale L.J. 545 (1990).............................................................. 4
Judith Resnik, “Within its Jurisdiction”: Moving Boundaries, People,
and the Law of Migration, 160 Proceedings of the American
Philosophical Society 117 (2016) ......................................................................... 8
Peter Schuck, The Transformation of Immigration Law, 84 Colum. L.
Rev. 1 (1984) ........................................................................................................4
Carlos M. Vázquez, “Not a Happy Precedent”: The Story of Ex parte
Quirin, in FEDERAL COURTS STORIES (Vicki Jackson and Judith
Resnik eds., Foundation Press, 2010) .................................................................14

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Charles D. Weisselberg, The Exclusion and Detention of Aliens:
Lessons From the Lives of Ellen Knauff and Ignatz Mezi, 143 U.
Pa. L. Rev. 933 (1995) ........................................................................................15

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INTERESTS OF AMICI CURIAE
Amici curiae are professors of law who are in the course of preparing a brief
in another case also challenging the Executive Order, and are working on behalf of
scholars of federal constitutional law, federal court jurisdiction, immigration and
citizenship. 1 In light of the claims advanced in this case about Executive authority,
Amici believe that it will be helpful to the parties and the court to provide a brief
overview of the governing legal principles.
ARGUMENT
With the consent of the parties, Amici bring to the Court’s attention that they
are in the midst of preparing an amicus brief on behalf of constitutional scholars,
including those expert in the law of the jurisdiction of the federal courts and of
citizenship and immigration, to be filed under the current schedule on February 13,
2017 in Darweesh v. Trump, No. 17-480 (E.D.N.Y. 2017). Having learned of the
briefing schedule in Washington v. Trump, No. 17-35105 (9th Cir. 2017), Amici
believe it proper to provide this Court with a brief overview of the research now
underway and of the concerns that have prompted them to provide an amicus brief.

Pursuant to Federal Rule of Appellate Procedure 29(a)(4)(E), Amici hereby
certify that (a) no party’s counsel authored any part of this brief, (b) no party or
party’s counsel contributed money that was intended to fund the preparation or
submission of this brief, and (c) no person other than Amici or their counsel
contributed money that was intended to fund the preparation or submission of this
brief. All parties have consented to the filing of this brief.
1

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Specifically, Amici wish to address the contention that the political branches’
control over immigration is “plenary” and that the Executive consequently has
“unreviewable authority” to suspend the admission of “any class of aliens”—even,
apparently, if the Executive’s selection of a particular class were to reflect
invidious discrimination based on religion, race, or sex. That contention goes too
far: While the Executive’s actions in this area are indeed entitled to deference,
important constitutional obligations remain, as does a critical role for the courts.
Moreover, our constitutional history cautions strongly against proceeding with
haste, and without careful factual development, in addressing Executive claims that
national security requires it to target sets of individuals of particular nationalities.
Such haste has more than once resulted in decisions now widely recognized as
serious errors and sources of deep regret.
In this case, the unusual selection of seven countries whose nationals are
precluded from using the valid visas that they have or from obtaining visas for a
period of time, coupled with the apparently extensive evidence that the seven
countries were selected because of the religion of their citizens, raises a host of
constitutional questions as to the rationality of the Executive Order and as to its
discriminatory impact. Further, the Executive Order has caused great disorder
through its abrupt and dramatic disruption of the specific federal statutory scheme
in place. In addition to dislodging layers of law and regulation, the Executive

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Order has had a substantial impact on states, citizens, and on non-citizens, and
specifically those who—through the issuance of visas—have entered into a
significant relationship with the United States, which has found them eligible for
entry. The assertion of unfettered Executive authority, resting in part on
congressional legislation from a 1952 statute, is breathtaking in its disruption of the
procedures in place, and would authorize even what in the domestic context would
be recognized as the most clearly unlawful invidious discrimination.
Amici’s effort as scholars is to understand the law and to identify its
parameters. Their concern is that the Government’s claim of unlimited authority is
an inaccurate and incomplete picture of the law. As noted, Amici are preparing a
more detailed submission for filing next week. Here Amici provide a brief
overview of multiple ways in which a claim of blanket and unquestionable
authority fails under American constitutional law.
1.

As a descriptive matter, the federal courts have repeatedly reviewed

issues related to immigration—from exclusion to detention to deportation.
Notwithstanding occasionally overbroad descriptions of legislative and executive
authority over immigration—or antiquated precedents embodying limited
Nineteenth Century views of constitutional rights—it has long been settled, in a
range of contexts, that the political branches of the federal government do not have
unlimited power over immigrants and immigration. For example, the Supreme

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Court has insisted on constitutional limits on the federal government’s power to
prevent resident non-citizens from returning to the country after traveling abroad,
see Kwong Hai Chew v. Colding, 344 U.S. 590 (1953); to detain individuals
pending their removal from the country, see Zadvydas v. Davis, 533 U.S. 678
(2001); and to deny judicial review to non-citizens held outside the United States
as “enemy combatants,” see Boumediene v. Bush, 553 U.S. 723 (2008).
Indeed, the few long-ago holdings that endorsed discriminatory legislation
governing immigration now provide evidence of a profoundly misguided and
morally indefensible period in American immigration law. The Chinese Exclusion
cases of the late nineteenth century, sustaining the exclusion and removal of
Chinese nationals, Chae Chan Ping v. U.S., 130 U.S. 581 (1889) (sustaining
exclusion of Chinese nationals); Fong Yue Ting v. U.S., 149 U.S. 698 (1893)
(sustaining deportation of Chinese nationals), pre-date the recognition of the
central constitutional protections recognized in the Civil Rights era and
beyond. See, e.g., Peter Schuck, The Transformation of Immigration Law, 84
Colum. L. Rev. 1, 4 (1984) (describing demise of plenary power doctrine in light
of emerging equal protection and due process norms); Hiroshi Motomura,
Immigration Law After a Century of Plenary Power: Phantom Constitutional
Norms and Statutory Interpretation, 100 Yale L.J. 545 (1990) (same); T.
Alexander Aleinikoff, Detaining Plenary Power: The Meaning and Impact of

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Zadvydas v. Davis, 16 Geo. Immigr. L.J. 365 (2002) (describing “radical shift” in
immigration law to extend due process protections to aliens); Gabriel J. Chin,
Segregation’s Last Stronghold: Race Discrimination and the Constitutional Law of
Immigration, 46 UCLA L. Rev. 1, 54-58 (1998) (showing how due process and
equal protection norms trump plenary power in recent immigration cases); Stephen
H. Legomsky, Immigration Law and the Principle of Plenary Congressional
Power, 1984 Sup. Ct. Rev. 255 (1984) (identifying departures from plenary power
principles as rooted in equality and due process norms). These cases and the
racially discriminatory laws they upheld have become the subject of universal
condemnation. See, e.g., Louis Henkin, THE AGE OF RIGHTS 137 (1990) (“The
Chinese Exclusion Case—its very name an embarrassment—should join the relics
of a bygone, unproud era”).
Thus, during the last several decades, the breadth of the “plenary power”
notion that arose from the Chinese exclusion era cases has come to be understood
as located in Nineteenth Century visions of sovereignty that predate the elaboration
in the Twentieth Century of the due process and equal protection protections of the
constitution. See generally Sarah H. Cleveland, Powers Inherent in Sovereignty:
Indians, Aliens, Territories, and the Nineteenth Century Origins of Plenary Power
Over Foreign Affairs, 81 Tex. L. Rev. 1 (2002). The Department of Justice’s
representation of the President’s power under 8 U.S.C. § 1182(f) as unreviewable

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by Article III courts reflects an untenably broad view of Executive authority and an
equally untenable dismissal of any role for the federal courts in enforcing the
Constitution. The Supreme Court has rejected that approach in prior cases and has
taken a more measured approach to the plenary power doctrine in the immigration
field.
In no case since the Chinese Exclusion cases has the Supreme Court blessed
the sort of discriminatory immigration rule at issue there. To be sure, the
government observes that every President over the last thirty years has issued at
least one Executive Order pursuant to 8 U.S.C. § 1182(f), and that many of those
orders excluded aliens on the basis of nationality. However, those orders were
targeted restrictions on individuals that had engaged in culpable conduct—not
categorical exclusions of broad classes deemed to pose a risk, as here—and,
critically, none of the previous executive orders has discriminated on the basis of
religion. See Congressional Research Service, Executive Authority to Exclude
Aliens: In Brief, at 6-10 (Jan. 23, 2017) (listing and describing all Executive Orders
issued pursuant to Section 1182(f) and observing that “in no case to date, though,
has the Executive purported to take certain types of action, such as . . . explicitly
distinguishing between categories of aliens based on their religion.”).
Further, the courts have steadily retreated from the notion that immigration
decisions are intrinsically free from scrutiny. For example, in Kleindienst v.

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Mandel, 408 U.S. 753 (1972), the Court declined to hold that the Executive may
exclude an alien even absent a “facially legitimate and bona fide reason.” Id. at
770. Similarly, in Fiallo v. Bell, 430 U.S. 787 (1977), the Court recognized a
“limited judicial responsibility under the Constitution even with respect to the
power of Congress to regulate the admission and exclusion of aliens….” Id. at 793
n.5 (emphasis added). More recently, in Kerry v. Din, the Court considered
whether the denial of a visa to a non-citizen non-visa holding spouse of a citizen
required additional review under the Kleindienst v. Mandel principle. 135 S. Ct.
2128, 2139 (2015). The controlling opinion of Justice Kennedy, joined by Justice
Alito, held that the reasons provided sufficed only because the “facially legitimate
and bona fide” standard of Kleindienst was satisfied. Id. at 2140.
Kerry is consistent with the Court’s modern plenary power jurisprudence.
Since Kleindienst and Fiallo were decided, the Supreme Court has consistently
been reluctant to insulate immigration legislation and Executive action from
constitutional scrutiny. See, e.g., 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 due process); INS v. Chadha, 462 U.S.
919, 940-41 (1983) (invalidating a provision authorizing one house of Congress to
veto a decision by the Executive to grant relief from deportation, stating that
although “[t]he plenary authority of Congress over aliens . . . is not open to

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question,” the Court must inquire into “whether Congress has chosen a
constitutionally permissible means of implementing that power”); Zadydas, 533
U.S. at 690 (rejecting government’s argument that the plenary power doctrine
justified an expansive construction of statute authorizing immigration detention,
emphasizing that a “statute permitting indefinite detention of an alien would raise a
serious constitutional problem”); INS v. St. Cyr, 533 U.S. 289, 304 (2001)
(construing provision of immigration statute to avoid Suspension Clause concerns);
Boumediene, 553 U.S. at 771 (holding that statute applicable to non-citizens
detained at Guantanamo was unconstitutional, stating that “[i]f the privilege of
habeas corpus is to be denied to the detainees now before us, Congress must act in
accordance with the requirements of the Suspension Clause”). In short, the
“border” is an important site in American law, but it is both constructed through
legal regimes (shifting authority both on and off shore) and governed by law. See
Judith Resnik, “Within its Jurisdiction”: Moving Boundaries, People, and the Law
of Migration, 160 Proceedings of the American Philosophical Society 117 (2016).
2.

In applying Kleindienst, the Supreme Court has never held that an

individual’s race, religion, or national origin constitutes a sufficiently “facially
legitimate and bona reason” for excluding or deporting an alien. Indeed, in Reno v.
Arab-American Anti-Discrimination Committee, 525 U.S. 471, 492 (1999), the
Court suggested that reversal would be appropriate in cases of “outrageous”

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discrimination. In Jean v. Nelson, 472 U.S. 846 (1985), the Supreme Court
exercised review over the denial of parole to Haitian arrivals pursuant to a statute
delegating to the Attorney General authority to grant parole to undocumented
aliens arriving in the United States “in his discretion.” 8 U.S.C. § 1182(d)(5)(A).
In that case, plaintiffs argued that the new policy of denying parole to all
undocumented aliens violated their equal protection rights because it discriminated
against them because they were black and Haitian. Reversing the Eleventh
Circuit’s conclusion that the plenary power permitted the executive branch to
discriminate on the basis of national-origin in making parole decisions, the
Supreme Court employed the doctrine of constitutional avoidance to construe the
statute and its implementing regulations to preclude such consideration of national
origin.
Further, the lower courts have tolerated such national origin classifications
only in narrow circumstances. In Narenji v. Civiletti, 617 F.2d 745 (D.C. Cir.
1979), during the height of the Iran hostage crisis, the D.C. Circuit sustained a
regulation requiring Iranian students to undergo special registration
procedures. More recently, in the aftermath of the September 11 terrorist attacks, a
number of circuit courts sustained a similar program requiring nationals of various
countries to undergo special registration procedures. See, e.g., Mukasey v. Rajah,
544 F.3d 427 (2d Cir. 2008). Those cases are a far cry from the present situation in

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which individuals who held valid visas, and some of whom had worked and lived
in the United States, and have family members here, were abruptly told they were
no longer permitted to be here—and also told that coming to the place they
understood to be their current home put them at risk of new penalties. In addition
to the substantive constitutional prohibitions this implicates, it also raises
substantial procedural due process problems by excluding these visa holders
without any individualized determination, based solely on gross generalizations
based on their nationality and religion.
3.

Additional constraints on plenary powers, even when invoked in the

context of national security and safety, have come from the structure of “Our
Federalism.” As is familiar, the Supreme Court recently affirmed the federal
government’s exclusive authority to criminalize violations of the immigration
laws. See Arizona v. United States, 132 S. Ct. 2492, 2501 (2012). But the exercise
of that authority provides another example of limits on claims of plenary powers
and of unfettered discretion when allegations of national security are made. The
federal authority over immigration does not translate into the ability to require
states to participate in all federal immigration programs, as is reflected in decisions
by lower court decisions addressing the interaction between immigration powers
and the non-commandeering principle of Printz v. United States, 521 U.S. 898
(1997), as well as the impact of the Fourth and the Fourteenth Amendments. An

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example comes from the Third Circuit decision in Galarza v. Szalczyk, 745 F.3d
634 (3d Cir. 2014), brought by a citizen who had been held pursuant to an
immigration detainer on suspicion of being an illegal alien. The county claimed
that the detainer was mandatory, but the court held that such an interpretation
would violate the Tenth Amendment prohibition against commandeering. As the
Third Circuit explained, “Under the Tenth Amendment, immigration officials may
not order state and local officials to imprison suspected aliens subject to removal at
the request of the federal government. Essentially, the federal government cannot
command the government agencies of the states to imprison persons of interest to
federal officials.” Id. at 643. Thus, the court read the relevant federal statute to
avoid compelling detention. Congressional statutes likewise invite state
participation in programs such as “secure communities” but are respectful of
states’ role in this federalism.
In short, although the Executive has substantial power to regulate
immigration, it is not the unlimited open-ended charter, such as that described in
the filings by the Department of Justice in the present case. Constitutional checks,
both structural and substantive, restrain its use. The federal courts have repeatedly
played a role to ensure that restrictions imposed on immigration are at the very
least based on “facially legitimate and bona fide reason.”
4.

Deployment of the term “national security” has not and cannot stop

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appropriate judicial inquiry into the legality of, or the basis for, a particular
government action. The role for courts is especially relevant here, as the Executive
Order has been explained in the press as animated by views that link together
individuals of a particular religion, faith and national origin with blanket
allegations of terrorist efforts.
On the record provided thus far, the Executive Order appears to lack a
rational basis for such accusations. Rationality is the touchstone of constitutional
governance, just as the exercise of arbitrary power is its antithesis. At a minimum,
serious questions have been raised about the factual basis for the Executive Order.
The religious animus that has been alleged to underlie the order, if proved, would
be a sad exemplar of an arbitrary basis for government action.
Moreover, since the terrible events of September 11, courts have repeatedly
responded to issues of national security and addressed the merits of claims of
individuals subjected to government orders flowing from 9/11. In those cases, the
Government regularly argued that the political branches could not be checked by
the judiciary where they were responding to “national security” concerns. Despite
such arguments—which are echoed in the Department of Justice briefing in this
case—the judiciary has several times discharged its constitutional obligation. See
Hamdi v. Rumsfeld, 542 U.S. 507 (2004). In short, Executive claims based on
national security are properly entitled to a significant measure of deference, but

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that deference is not a blank check. The courts retain a critical role in ensuring that
there is a basis for such claims and that the action so justified does not transgress
constitutional requirements.
5.

Several of the constitutional questions raised by the Executive Order

(and the plaintiffs’ legal challenge thereto) are as important as they are unsettled,
and thus demand careful and deliberate consideration—rather than a rush to
judgment. The district court’s TRO quelled the litigation chaos and has now
permitted an opportunity for the development of the facts and for the evaluation of
the legal principles at stake, restoring a status quo that the Government has not
shown to pose any imminent risk of harm, or, indeed, to have ever resulted in any
of the harms said to justify the Executive Order.
Several times in our history, the Government has pressed for courts to defer
to claims of national security and of threats identified with people from particular
nationalities, with often tragic results. Ex Parte Quirin, 317 U.S. 1 (1942) and
Korematsu v. United States, 323 U.S. 214 (1944) are examples of undue hasty and
tragic approval of government activity justified in the name of national security
and focused against individuals based on national origin. Quirin—decided in 1942
and addressing the question of the permissibility of a military tribunal to try
alleged German saboteurs—has come to stand for an important proposition, much
invoked after 9/11: that, despite a president’s claim in an executive order to divest

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courts of jurisdiction, courts retained habeas jurisdiction. However, as recounted
in detail by Carlos Vázquez, when making that decision in a few short days, the
Court abandoned its deliberative practices and decided the merits, resulting in
executions that came before the Court’s opinion was written. See Carlos M.
Vázquez, “Not a Happy Precedent”: The Story of Ex parte Quirin, in FEDERAL
COURTS STORIES 219, 219-246 (Vicki Jackson and Judith Resnik eds., Foundation
Press, 2010). As the title of that book chapter reflects, Justice Frankfurter
famously described Quirin as “not a happy precedent.” See also Henry M. Hart,
Jr. and Herbert Weschsler, THE FEDERAL COURTS AND THE FEDERAL SYSTem 336,
1239 n.5 (1953).
Quirin is not the only instance in which courts have failed on the merits to
see critical issues of liberty and constitutional commitments to the rule of law.
Korematsu is another such instance, and one for which Congress has issued formal
apologies to those whose internment the Court approved. Such precedents are
viewed now as an “anti-canon” – as examples of what U.S. law no longer
understands to be constitutional. See Jamal Greene, The Anticanon, 125 Harv. L.
Rev. 380, 396, 456-60 (2011).
The Chinese Exclusion cases are similarly sources of national
embarrassment, as is the de-nationalization of U.S. citizen women who married
citizens of certain countries. Nancy F. Cott, Marriage and Women’s Citizenship in

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the United States, 1830-1934, 103 Am. Hist. Rev. 1140, 1458 (Dec. 1998).
Further, while the Supreme Court’s decisions in Knauff and Mezei are often
invoked as the basis for plenary powers, the Supreme Court has long since
retreated from such notions of unfettered and unreviewable government power in
the immigration sphere. See also Charles D. Weisselberg, The Exclusion and
Detention of Aliens: Lessons From the Lives of Ellen Knauff and Ignatz Mezi, 143
U. Pa. L. Rev. 933, 938 (1995).
***
In short, at issue in cases now pending around the United States are
questions that go to the heart of American constitutional law and to the respective
roles of the branches of the federal government and of the states. Constitutional
history demonstrates the importance of deliberation to ensure that rulings respect
individual rights and liberties, and appreciate the contributions, concerns, and place
in the federal system of state governments. Courts are more than needed to insist
on fact-based analysis as they assess whether the legislature or Executive has run
afoul of constitutional and statutory commitments that prohibit certain forms of
discrimination and have breached the American law of justice.
CONCLUSION
The Court should deny the Appellants’ motion for stay pending appeal.

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Dated: February 6, 2017

Respectfully submitted,
JONES DAY
/s/ Meir Feder
Meir Feder
250 Vesey Street
New York, NY 10281
Telephone: [phone]
Rasha Gerges Shields
Erna Mamikonyan
555 South Flower Street, 50th Floor
Los Angeles, CA 90071
Telephone: [phone]
Counsel for Amici Curiae
Constitutional Scholars
Of counsel:
Kristin Collins
Judith Resnik
Stephen I. Vladeck
Burt Neuborne

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ADDENDUM
List of Amici constitutional scholars 2:
Kristin Collins, Professor of Law and Associate Dean for Intellectual Life, Boston
University
Judith Resnik, Arthur Liman Professor of Law, Yale Law School
Stephen I. Vladeck, Professor of Law, University of Texas School of Law
Burt Neuborne, Norman Dorsen Professor of Civil Liberties and Founding Legal
Director of the Brennan Center for Justice, New York University School of Law

2

Institutional affiliations are provided for identification purposes only; this
brief does not purport to represent the institutional views of any entity with which
Amici are affiliated.

CERTIFICATE OF SERVICE
I hereby certify that I electronically filed the foregoing with the Clerk of the
Court for the United States Court of Appeals for the Ninth Circuit by using the
appellate CM/ECF system on February 6, 2017. 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.
Dated: February 6, 2017

/s/ Rasha Gerges Shields
Rasha Gerges Shields
Jones Day
555 South Flower Street, 50th Floor
Los Angeles, CA 90071
[phone]
Counsel for Amici Curiae

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32(a)(5) and (6).
This brief complies with the longer length limit authorized by court order dated
The brief's type size and type face comply with Fed. R. App. P. 32(a)(5) and (6). The brief is
words or
pages, excluding the portions exempted by Fed. R. App. P. 32(f), if applicable.
This brief is accompanied by a motion for leave to file a longer brief pursuant to Ninth Circuit Rule 32-2
(a) and is
words or
pages, excluding the portions exempted by Fed. R. App. P. 32
(f), if applicable. The brief’s type size and type face comply with Fed. R .App. P. 32(a)(5) and (6).
This brief is accompanied by a motion for leave to file a longer brief pursuant to Ninth Circuit Rule 29-2
(c)(2) or (3) and is
words or
pages, excluding the portions exempted by Fed. R.
App. P. 32(f), if applicable. The brief's type size and type face comply with Fed. R. App. P. 32(a)(5) and
(6).
This brief complies with the length limits set forth at Ninth Circuit Rule 32-4.
The brief is
words or
pages, excluding the portions exempted by Fed. R. App. P.
32(f), if applicable. The brief’s type size and type face comply with Fed. R. App. P. 32(a)(5) and (6).

Signature of Attorney or
/s/ Rasha Gerges Shields
Unrepresented Litigant

Date

Feb 6, 2017

("s/" plus typed name is acceptable for electronically-filed documents)
(Rev.12/1/16)