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

Filing 44

Submitted (ECF) Amicus brief for review (by government or with consent per FRAP 29(a)). Submitted by Anti-Defamation League. Date of service: 02/06/2017. [10303410] [17-35105]--[COURT UPDATE: Attached corrected PDF of brief (motion removed and refiled in entry [79]), updated docket text to clarify filer, resent notice. 02/06/2017 by LA] (Hall, Kendra) [Entered: 02/06/2017 11:24 AM]

No. 17-35105

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

STATE OF WASHINGTON, et al.,
Plaintiffs-Appellees, v.
DONALD TRUMP, President of the United States, et
al., Defendant-Appellants.

ON APPEAL FROM THE UNITED STATES
DISTRICT COURT FOR THE WESTERN
DISTRICT OF WASHINGTON

AMICUS CURIAE BRIEF OF THE ANTIDEFAMATION LEAGUE IN SUPPORT OF THE
PLAINTIFFS-APPELLEES

RICHARD D. BARTON
(Bar No. 102613)
SHELLEY A. CARDER
(Bar No. 137755)
KENDRA J. HALL
(Bar No. 166836)
Procopio, Cory, Hargreaves &
Savitch, LLP
12544 High Bluff Dr., Ste. 300
San Diego, CA 92130
[phone]
[e-mail]
[e-mail]

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JOHN B. HARRIS
Counsel for Amicus
Curiae ADL
Frankfurt Kurnit Klein
& Selz, P.C.
488 Madison Avenue
New York, NY 10022
[phone]
[e-mail]

1

STEVEN M. FREEMAN
The Anti-Defamation
League
605 Third Avenue
New York, New York
10158
[phone]
[e-mail]

TABLE OF CONTENTS
Page
I. 

America’s Aspirations as a Refuge for the Oppressed ....................................5 

II. 

America Has Been at its Best When it Honors ItsCommitment to Its Core
Values ..............................................................................................................9 

III. 

When America Closed its Doors and Allowed Its Core Values to be
Compromised, The Country Later Looked Back in Shame ..........................13 
A. 

The St. Louis .......................................................................................14 

B. 

The “Chinese Exclusion” ....................................................................17 

C. 

The Japanese Internment .....................................................................21 

CERTIFICATION OF COMPLIANCE………………….………………………..26
CERTIFICATE OF SERVICE ................................................................................27 

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TABLE OF AUTHORITIES
Page(s)
FEDERAL CASES
Stormans, Inc. v. Selecky
586 F.3d 1109 (9th Cir., 2009) ............................................................................. 3
Winter v. Nat. Res. Def. Council, Inc.
555 U.S. 7 (2008) .................................................................................................. 3
FEDERAL STATUTES, REGULATIONS, AND RULES
50 United States Code
§ 4201.................................................................................................................. 23
§ 4202............................................................................................................ 22, 24
Federal Rules of Appellate Procedure
29........................................................................................................................... 2
29(a)(2) .............................................................................................................. 1, 2
29(a)(4)(E),............................................................................................................. 1

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STATEMENT OF INTEREST
The Anti-Defamation League (“ADL”) respectfully submits this brief as Amicus
Curiae in support of the relief sought by Plaintiffs-Appellees declaring invalid portions
of the Executive Order dated January 27, 2017, entitled “Protecting the Nation from
Foreign Terrorist Entry into the United States.” (the “Executive Order”). Accordingly,
Amicus asks this Court to affirm the February 3, 2017 Order of the United States
District Court for the Western District of Washington (Robart, J.) insofar as it
temporarily enjoined the Defendants-Appellants from enforcing portions of the
Executive Order. 1
Founded in 1913, ADL is a civil rights and human relations organization that
seeks to stop the defamation of the Jewish people, and to secure justice and fair
treatment for all people. Through its 26 regional offices throughout the United
States, including seven offices within the Ninth Circuit alone, ADL provides
materials, programs and services to combat anti-Semitism and all forms of bigotry.
Because of its history of fighting discrimination, including with respect to
prejudice toward immigrants and religious minorities, ADL can provide unique
and important insights for the Court in addressing the Executive Order and in
considering the historical context of the Executive Order’s provisions limiting or
1

Pursuant to FRAP 29(a)(4)(E), Amicus Curiae states that no counsel for any party authored this
brief in whole or in part and no entity or person, aside from Amicus and their counsel, made any monetary
contribution toward the preparation or submission of this brief. Pursuant to this Court’s Rule 29(a)(2), we
are advised that both plaintiffs and defendants have consented to the filing of amicus briefs from
interested parties.
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barring entry into the United States of persons coming from seven majorityMuslim nations.2 The ADL submits this brief under Fed. R. App. P. 29, Circuit
Rule 29(a)(2). All parties have consented to the submission of amici briefs in this
case.

2

ADL is aware that the parties dispute whether the Executive Order constitutes a ban of
Muslims as opposed a ban of persons from certain countries that the United States believes pose
a terrorist threat. Inasmuch as the vast majority of the persons affected by the Executive Order
are of the Muslim faith and inasmuch as the President has indicated that the ban does not apply
in the same manner to Syrians of the Christian faith, ADL considers the Executive Order to
implicate religion in a significant manner.
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Background
ADL recognizes that the United States is a nation dedicated to the ideals of
equality, liberty and justice. Adhering to these principles under changing domestic
and international circumstances is often a work in progress.

Throughout the

history of the United States, and often with respect to immigration, our ideals have
been tested. Sometimes the nation rises to meet the challenge, upholding the
values that make America exceptional. (Point II below). At other times, when
prejudice and fear predominate over reason and compassion, we falter, often with
devastating consequences, as set forth below in connection with the St. Louis
tragedy, the Japanese internment and the Chinese exclusion. When we later realize
that we have strayed from our principles, we are left to apologize to people who
have suffered (and, too often, to their descendants) and to promise to learn from
our mistakes and not to repeat them. (Point III below).
As the Ninth Circuit has held: “The proper legal standard for preliminary
injunctive relief requires a party to demonstrate (1) ‘that he is likely to succeed on
the merits, (2) that he is likely to suffer irreparable harm in the absence of
preliminary relief, (3) that the balance of equities tips in his favor, and (4) that an
injunction is in the public interest.’” Stormans, Inc. v. Selecky, 586 F.3d 1109,
1127 (9th Cir., 2009) (citing Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20
(2008). This brief seeks to provide important insight regarding how the Executive

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Order, absent injunctive relief, will almost certainly cause irreparable harm, similar
to other harms for which the United States has later apologized when it failed to
live up to values and the promise embodied in the Constitution. It also seeks to
demonstrate that the public interest lies squarely in support of injunctive relief, as
America has always been at its best when it opens its doors to refugees and
immigrants.
ADL was created at a time when fear and prejudice against Jews were so
great that a Jewish man, Leo Frank, was falsely accused of murder, convicted after
a trial marked by overt anti-Semitism and then lynched in 1915.3 ADL regularly
confronts discrimination against perceived outsiders, foreigners and strangers. As
an organization founded by immigrants in a nation of immigrants, as an
organization sworn to protect the interest of religious and ethnic minorities, ADL
believes that when our nation’s values are threatened we must look back at the
founding principles that propelled the United States – in the hope that future
generations can celebrate our resolve.

3

After the lynching, armed mobs ran through the streets of Atlanta, forcing Jewish
businesses to shutter their doors and about half of Georgia’s Jewish population to flee. Sixty
years later, the State of Georgia, faced with evidence of Frank’s innocence, posthumously
pardoned Frank and apologized for failing to protect him.
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ARGUMENT
I.

America’s Aspirations as a Refuge for the Oppressed
The promise of America has been manifest since before the American

Revolution. John Winthrop, while still on his transatlantic voyage to the New
World, admonished the future colonists of Massachusetts to always remember that
their new community would be “as a city upon a hill,” with the entire world
watching.4

In fulfilling this vision, the country welcomed in its early years those

disfavored and persecuted in their homelands based on their religious beliefs,
including the Pilgrims, the Puritans and the Huguenots. Since then, our nation’s
wisest leaders have been guided by Winthrop’s inspiring vision and have strived
toward a more inclusive democracy.5
The birth of the United States came in part because the Founders sought to
cast off the shackles of Europe’s endless religious wars and sectarian conflict in
order to form a more perfect union. In beseeching the country to separate from

4

John Winthrop, A Model of Christian Charity (1630).

5

“History will not judge our endeavors,” said President-elect John F. Kennedy in a speech
invoking Winthrop, “merely on the basis of color or creed or even party affiliation.” Speech to
the General Court of Massachusetts, January 9, 1961. Ronald Reagan also referred to
Winthrop’s vision of America on the eve of his election as President in 1980:

These visitors to that city on the Potomac do not come as white or black, red or
yellow; they are not Jews or Christians; conservatives or liberals; or Democrats or
Republicans. They are Americans awed by what has gone before, proud of what
for them is still…a shining city on a hill.
Ronald Reagan, Election Eve Address, November 3, 1980.
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England, Thomas Paine recognized that Europe was “too thickly planted with
kingdoms to be long at peace” and believed the discovery of America had a divine
purpose: “to open a sanctuary to the persecuted in future years, when home should
afford neither friendship nor safety.”6

Seven months later, the Declaration of

Independence enunciated the “self-evident truths” that “all men are created equal,
that they are endowed by their Creator with certain unalienable Rights, that among
these are Life, Liberty and the pursuit of Happiness.” Less quoted from the
Declaration is the Founders’ burning grievance that the English King had restricted
free immigration, having “endeavored to prevent the population of these States; for
that reason obstructing the Laws for the Naturalization of Foreigners [and] refusing
to pass others to encourage their migrations hither.”
After the United States won its independence, it faced the challenge of
designing laws that embodied the enlightened vision of the new nation. In 1785,
James Madison published “Memorial and Remonstrance Against Religious
Assessments” in opposition to a bill proposed to Virginia’s General Assembly that
would have levied a modest tax to support Christian education. Madison warned
that any measure, no matter how slight, that gave a preference to one religion over

6

Thomas Paine, Common Sense (January 10, 1776).

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another would constitute “a dangerous abuse of power” and would betray the
vision of “a city upon a hill:”
Because the proposed establishment is a departure from that generous
policy, which, offering an Asylum to the persecuted and oppressed of
every Nation and Religion, promised a lustre to our country, and an
accession to the number of its citizens. What a melancholy mark is the
Bill of sudden degeneracy? Instead of holding forth an Asylum to the
persecuted, it is itself a signal of persecution. . . . Distant as it may be
in its present form from the Inquisition, it differs from it only in
degree. The one is the first step, the other the last in the career of
intolerance. The magnanimous sufferer under this cruel scourge in
foreign Regions, must view the Bill as a Beacon on our Coast,
warning him to seek some other haven, where liberty and
philanthrophy in their due extent, may offer a more certain repose
from his Troubles. (emphasis supplied)
Virginia recognized Madison’s wisdom. It rejected the establishment bill
and instead adopted Thomas Jefferson’s “Statute for Religious Freedom,” which
firmly separated church from state and enshrined the principles of religious liberty
for all. When Madison went to the Constitutional Convention in 1787, he fought
for Jefferson’s view to become the law of the land, and it became a bedrock of the
rights confirmed by the First Amendment.
Although the makeup of the United States was overwhelmingly Christian at
its birth, our Founders were clear that the nation’s new laws prohibiting religious
discrimination extended to people of all faiths and backgrounds. When Jefferson
later reflected on his Statute for Religious Freedom, he extolled the broad
application of the law, which was evidence that the legislators “meant to

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comprehend, within the mantle of its protection, the Jew and the Gentile, the
Christian and the Mahometan [Muslim], the Hindoo [Hindu], and every Infidel of
every denomination.”7
The American values of accepting people into this country regardless of
their faith, race or nationality have been celebrated by our leaders. In 1855,
Abraham Lincoln confronted the burgeoning anti-immigrant “Know Nothing”
movement, soundly rejecting the Know Nothings vision of an America in which
“all men are created equal, except negroes, and foreigners, and Catholics." He said
of the movement: “When it comes to this I should prefer emigrating to some
country where they make no pretence of loving liberty -- to Russia, for instance,
where despotism can be taken pure …”
The vision of the “shining city on the hill” has also inspired poets. Walt
Whitman wrote: “These States are the amplest poem, here is not merely a nation
but a teeming Nation of nations.” Emma Lazarus’ immortal poem on the pedestal
of the Statue of Liberty urged “ancient hands” to give America “your tired, your
poor, your huddled masses yearning to breathe free … Send these, the homeless,
tempest-tost to me, I lift my lamp beside the golden door!”
In his 1959 book, “A Nation of Immigrants,” future President John F.
Kennedy studied the history of immigration in this country, both in terms of those

7

Thomas Jefferson, Autobiography, Works 1:71 (1821).

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subject to religious persecution and those facing other overpowering hardship. He
wrote: “America has always been a refuge from tyranny. As a nation conceived in
liberty, it has held out to the world the promise of respect for the rights of man.”8
II.

America Has Been at its Best When it Honors ItsCommitment to Its
Core Values
There are numerous examples where the United States has met its

aspirations as Winthrop’s “shining city on the hill,” opening itself to “anyone with
the will and the heart to get here.”9 At its best, the United States has been a beacon
of hope for refugees from war-town countries, victims of religious persecution,
natural disasters or other emergencies – fulfilling what President Kennedy
described in Nation of Immigrants as the “natural humanitarian impulses of the
American people which is in keeping with our traditions of shelter to the homeless
and refuge for the oppressed.”10 Indeed, many of these refugees have contributed
immeasurably to the fabric of America.
With the Truman Directive in 1945, and the Displaced Persons Act of 1948,
the United States – for the first time since its founding – began explicitly to focus
on its identity as a sanctuary for those fleeing persecution, as the first Americans
8

John F. Kennedy, A Nation of Immigrants (Harper Perennial, January 2008), at p. 7.

9

Ronald Reagan, “Farewell Address to the Nation," January 11, 1989, The American
Presidency Project, http://www.presidency.ucsb.edu/ws/?pid=29650 (last visited February. 3,
2017).
10

Kennedy, Nation of Immigrants, at p. 46.

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had done hundreds of years earlier.11 President Truman led the assistance and
reconstruction effort to resettle hundreds of thousands of European Jews and other
Europeans displaced from their home countries who could not return in the
aftermath of WWII.12
In so doing, the country gave truth to Thomas Paine’s prophecy that the
United States would “open a sanctuary to the persecuted in future years, when
home should afford neither friendship nor safety.” The refugees welcomed to the
United States during or after World War II have made immeasurable contributions
to politics, science, literature, music, art, and social and scientific studies. Refugees
from that period include Madeleine Albright, Hannah Arendt, Bela Bartok, Marc
Chagall, Marlene Deitrich, Albert Einstein, Enrico Fermi, Henry Kissinger,
Raphael Lemkin, Vladimir Nabokov, Claude Levi-Strauss, Dr. Ruth Westheimer,
and Billy Wilder. American culture and science stands on the shoulders of many of
these contributions.
With the onset of the Cold War, Congress began assisting groups of refugees
from Communist regimes including those from the Soviet Union, Cuba, Hungary,
Poland, and Yugoslavia, as well as those fleeing Southeast Asia after the Vietnam

11

David W. Haines, “Learning From our Past: The Refugee Experience in the United
States,” reported at http://www.americanimmigrationcouncil.org/research/refugee-experienceunited-states.
12

Id.

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War. The openness to asylum seekers reflected in these efforts also demonstrated
a growing recognition that many refugees have significant education, skills, strong
family structures and commitment to hard work and success that make them ideal
new citizens.13
In the wake of the publication of A Nation of Immigrants, Congress enacted
the Immigration and Nationality Act of 1965, which allowed increased numbers of
people to migrate to the United States from Asia, Africa, the Middle East, and
Southern and Eastern Europe. Examples of notable refugees that came to the
United States from this period are: Sergey Brin, Joseph Brodsky, Gloria Estefan,
Milos Forman, Miriam Makeba, Thomas Petterffly, Regina Spektor, Roberto
Suarez, and David Tran.
In 1968 the United States was one of the first countries to sign the United
Nations Protocol Relating to the Status of Refugees, a key treaty in international
refugee law. The 1974 Jackson-Vanik Amendment ultimately permitted
approximately 500,000 Jews, evangelical Christians and Catholics to escape
religious persecution in the former Soviet Union by coming to the United States.
And in 1980 Congress signed the Refugee Act which standardized the resettlement
process and services for all refugees admitted to the United States.

13

Haines, supra, “Learning From our Past: The Refugee Experience in the United States.”

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Since the 1980s, the United States has resettled refugees from Darfur fleeing
genocide and violence; refugees from Bhutan forced out of their country; and
Syrian, Iraqi and Afghan refugees displaced by war. In addition, the U.S. has
facilitated the naturalization of Hmong veteran refugees who served in Laos in
support of U.S. forces and during the Vietnam War;14 assisted the children of
Vietnamese re-education camp survivors through the “McCain Amendment;”
assisted former Soviet and Indochinese nationals with a credible fear of
persecution through the “Lautenberg Amendment”; and assisted Iranian religious
minorities through the “Specter Amendment.15 Since 1975, the US has settled over
3 million refugees.16
It should come as no surprise that more than 40 percent of Fortune 500
companies were founded by recent immigrants or their children (even though such
immigrants account for roughly 10.5 percent of the US population); or that the
revenue generated by these companies is greater than the GDP of every country in
the world outside the U.S. except China and Japan; or that successful global

14

William J. Clinton: "Statement on Signing the Hmong Veterans Naturalization Act of
2000," May 26, 2000, The American Presidency Project,
http://www.presidency.ucsb.edu/ws/?pid=58559 (last visited Feb. 5, 2017)
15

Andora Bruno: “Refugee Admissions and Resettlement Policy,” November 30, 2016,
Congressional Research Service, Federation of American Scientists,
https://fas.org/sgp/crs/misc/RL31269.pdf (last visited Feb. 4, 2017).
16

Ruth Igielnick and Jens Manuel Krogstad, “Where Refugees to the U.S. Come From,”
Feb. 3, 2017, PEW RESEARCH CENTER, http://www.pewresearch.org/fact-tank/2017/02/03/whererefugees-to-the-u-s-come-from/ (last visited 2/5/2017).
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companies founded by American immigrants and refugees or their children span all
sectors of the economy, including some of the most valuable brands in the world
(Apple, Google, eBay, AT&T, General Electric, IBM, McDonald’s).17 As of 2016,
roughly 2 million veterans of the U.S. Armed forces living in the U.S. – of a total
18.8 million – are refugees/immigrants or have refugee/immigrant parents.18 As
President Kennedy observed, “[t]here is no part of our nation that has not been
touched by our immigrant background.”19
III.

When America Closed its Doors and Allowed Its Core Values to be
Compromised, The Country Later Looked Back in Shame
In sharp contrast to the times when the United States has shown its “natural

humanitarian impulses,” at other times the country has closed itself to others and
has succumbed to fear or bigotry, with tragic consequences.

Sometimes the

victims of this xenophobia and prejudice were Jews (the “St. Louis” tragedy) or
other religious minorities, sometimes they were from nations that were regarded as
undesirable (the “Chinese exclusion”) and sometimes they were groups the

17

Partnership For the New American Economy, “The ‘New American’ Fortune 500,” June
2011, http://www.renewoureconomy.org/sites/all/themes/pnae/img/new-american-fortune-500june-2011.pdf (Last visited February 4, 2017).
18

Jie Song and Jeanne Batalova, “Immigrant Veterans in the United States,” Migration
Policy Institute, http://www.migrationpolicy.org/article/immigrant-veterans-united-states (Last
visited February 5, 2017).
19
Kennedy, Nation of Immigrants at p. 3.
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government suspected as disloyal (the Japanese internment during World War II).
In each case, the United States apologized years too late.
A.

The St. Louis

The tragedy of the vessel St. Louis illustrates the devastating consequences
that can result when the United States turns its back on refugees in need. In May
1939, on the eve of World War II and after Kristallnacht (the “Night of Broken
Glass” in November 1938, in which hundreds of Jews were beaten, killed, or sent
to concentration camps),20 the St. Louis left Hamburg, Germany, carrying 937
passengers, nearly all of whom were Jews fleeing Nazi persecution. The ship was
headed to Havana, Cuba with the hope of having its passengers granted sanctuary
in the United States.
Prior to the ship’s departure, most of the Jewish passengers had obtained
valid paperwork permitting their entry to Cuba and had also applied for U.S. visas,
planning to stay in Cuba only until their entry to the U.S. was approved. By the
time the St. Louis arrived in Cuba on May 27, 1939, however, the Cuban president
had invalidated most of the passengers’ travel certificates.21 While United States-

20

The United States Holocaust Memorial Museum, “Kristallnacht,” Holocaust
Encyclopedia, https://www.ushmm.org/wlc/en/article.php?ModuleId=10005201. (Last visited
February 5, 2017).
21

The United States Holocaust Memorial Museum, “Voyage of the St. Louis,” Holocaust
Encyclopedia, https://www.ushmm.org/wlc/en/article.php?ModuleId=10005267. (Last visited
February 5, 2017.

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based Jewish organizations negotiated with Cuban officials to persuade them to
admit the other passengers, the United States refused to formally intercede on the
refugees’ behalf or publicly pressure the Cuban government to admit them.22
After negotiations with Cuba failed, the St. Louis headed towards Miami in
June 1939, coming within sight of the Florida coastline. Despite pleas from
passengers on board, President Roosevelt and the State Department refused to
accept the Jewish refugees into the United States,23 reflecting anti-immigrant and
anti-Semitic sentiments prevailing at the time. (A Gallup poll taken in January
1939 asked Americans if the government should allow 10,000 refugee children,
mostly Jewish, from Germany to be taken care of in American homes; 61 percent
opposed).24 A State Department telegram to a passenger on the ship explained the
government’s position that the passengers must “await their turns on the [visa]

22

Id. See also Dara Lind, “How America’s Rejection of Jews Fleeing Nazi Germany
Haunts Our Refugee Policy Today,” Vox, http://www.vox.com/policy-andpolitics/2017/1/27/14412082/refugees-history-holocaust (Last visited February on 5, 2017).
23

Kristine Guerra, “What the U.S. Learned from Turning Away Refugees who Fled the
Nazis,” The Washington Post, January 29, 2017, available at
https://www.washingtonpost.com/news/post-nation/wp/2017/01/29/what-the-u-s-learned-fromturning-away-refugees-who-fled-the-nazis/?utm_term=.e91085b6c047. (Last visited on
February 5, 2017).
24

See Ishaan Tharoor, “What Americans Thought of Jewish Refugees on the Eve of World
War II,” The Washington Post, November 17, 2015.
https://www.washingtonpost.com/news/worldviews/wp/2015/11/17/what-americans-thought-ofjewish-refugees-on-the-eve-of-world-war-ii/?utm_term=.a67eb4b68817 (Last visited on
February 5, 2017).
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waiting list and qualify for and obtain immigration visas before they may be
admissible into the United States.”25
Ultimately, the United States refused entry to the passengers of the St Louis,
forcing it to sail back to Europe. Historians estimate that more than a quarter of
the St. Louis passengers – 254 people – died in the Holocaust, including a number
at Auschwitz, after being refused entry in this country.26 (Added to this number
are thousands of other Jews who died in the Holocaust because of denied visas to
come to the United States, including Anne Frank).
In 2012, the United States government issued a formal apology for the
country’s refusal to provide refuge for the Jewish passengers aboard the St. Louis.27
Addressing the 14 surviving passengers, a State Department official stated: “To
the survivors of the MS St. Louis, on behalf of the president and Secretary of State,
I am honored to say what we should’ve said so long ago, welcome.”28 (Archival
photographs from the St. Louis are contained in the Appendix).

25

The United States Holocaust Memorial Museum, “Voyage of the St. Louis,” Holocaust
Encyclopedia, https://www.ushmm.org/wlc/en/article.php?ModuleId=10005267. (Last visited
on February 5, 2017).
26

The United States Holocaust Memorial Museum, “Voyage of the St. Louis,” Holocaust
Encyclopedia, https://www.ushmm.org/wlc/en/article.php?ModuleId=10005267. (Last visited
on February 5, 2017).
27

Kamrel Eppinger, “State Department apologizes to Jewish refugees,” Scripps Howard
Foundation Wire, September. 26, 2012, http://www.shfwire.com/state-department-apologizesjewish-refugees/. (Last visited on February 5, 2017).
28
Id. Before the St. Louis sailed, Congress also rejected a bill that would have allowed
20,000 German children to settle in this country. Opponents took an “America-First” approach
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B.

The “Chinese Exclusion”

In the late 1860s and early 1870s, Chinese immigrants, including both
skilled and unskilled laborers, enjoyed easy passage to this country under the terms
of a treaty between the United States and China.29 Even with the treaty’s relaxed
standards, annual Chinese immigration never exceeded 40,000 people, and in 1890
there were only 107,000 Chinese nationals living in the United States.30
Nevertheless, hostility towards the Chinese escalated within certain portions of the
American public, who blamed wage decreases and other economic difficulties on
Chinese laborers.31 Although Government leaders initially resisted constituent
pressure to stop Chinese immigration,32 as John Kennedy noted in A Nation of

to reject the proposal, arguing that America should first focus on its own needy and homeless
citizens. The wife of the United States immigration commissioner, Laura Delano Houghteling,
testified that “120,000 charming children would all too soon grow into 2,000 ugly adults. Dara
Lind, “How America’s Rejection of Jews Fleeing Nazi German Haunts our Refugee Policy
Today,”
http://www.vox.com/policy-and-politics/2015/11/19/9760060/refugees-historyholocaust (Last visited on February 5, 2017).
29

See H. Res. 683, April 14, 2016, available at https://www.congress.gov/bill/114thcongress/house-resolution/683/text. See also Kennedy, Nation of Immigrants at p. 40.
30

Kennedy, Nation of Immigrants at p. 40.

31

Chinese Exclusion Act (1882), Harvard University Library Open Collections Program,
available at http://ocp.hul.harvard.edu/immigration/exclusion.html.
32

President Arthur initially vetoed the bill, which he viewed as incompatible with the
Burlingame Treaty. See “Veto of the Chinese Exclusion Act (April 4, 1882)” available at
http://millercenter.org/president/arthur/speeches/veto-of-the-chinese-exclusion-act.

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Immigrants, a “campaign of organized violence against Chinese communities took
form, and the hysteria led to public pressure too violent to be resisted.”33
The Chinese Exclusion Act of 1882, signed into law by President Arthur,
was the “first federal law ever passed excluding a group of immigrants solely on
the basis of race or nationality.”34 The thrust of the Chinese Exclusion Act was
that it barred Chinese laborers from entering the United States for 10 years,35 but it
also put in place other discriminatory systems, including a registry for all Chinese
(including non-laborers) who were then legally present in the United States.36
Additionally, Chinese laborers already in the country would have to obtain a
“certificate” to return to the United States, if they ever wanted to leave the
country.37 The Act also explicitly prohibited all state and federal courts from
naturalizing people of Chinese origin, regardless of whether they were legally in
this country.38 These sweeping restrictions were explained only by this statement
in the law’s preamble: “in the opinion of the Government of the United States the
33

Kennedy, Nation of Immigrants at p. 41.

34

“Chinese Americans in California,” California State Legislature, SJR-23, August 28,
2014, available at
http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201320140SJR23.

35

Chinese Exclusion Act, text available at
http://avalon.law.yale.edu/19th_century/chinese_exclusion_act.aspSJR-23.
36

Id.

37

Id. See also SJR-23.

38

Chinese Exclusion Act, section 14. See also SJR-23.

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coming of Chinese laborers to this country endangers the good order of certain
localities within the territory thereof[.]”39
The Chinese Exclusion Act was followed by a series of other laws designed
to exclude Chinese individuals from the United States both physically and
politically. The Scott Act of 1888 precluded Chinese laborers from leaving and
reentering the United States entirely and cancelled all previously issued
“certificates” as referenced in the Exclusion Act.40 This action prevented the
return of approximately 20,000 Chinese laborers who were abroad and counting on
their lawfully-obtained certificates to reenter.41 It also froze the migration of an
additional 600 Chinese individuals who were physically en route to the United
States at the time of its enactment.42 When the Chinese Exclusion Act was set to
expire in 1892, Congress passed the Geary Act, which extended it for another ten
years and introduced still further additional restrictions.43 It was not until 1943 that

39

Chinese Exclusion Act, preamble.

40

S.Res.201, October 6, 2011, available at https://www.congress.gov/bill/114thcongress/senate-resolution/201. See also H. Res. 683.
41

S.Res.201.

42

S.Res.201.

43

S.Res.201.

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Congress finally began repealing certain – and eventually all – of these
discriminatory laws.44
In October 2011, the United States Senate issued an apology for the Chinese
Exclusion Act and other laws.45 A similar report was announced by the United
States House of Representatives46 and, later, by the California State Legislature.47
In each instance, the government noted that the Chinese Exclusion Act and its
companion laws were and remain “incompatible with the basic founding principles
recognized in the Declaration of Independence that all persons are created
equal[.]”48 The announcements expressed commitment to “diversity in the United
States that contributes to the country’s economic, cultural, technological,
academic, an political growth[.]”49
In its apology the California legislature observed that “[t]he Chinese
Exclusion Act set the precedent for racist foreign and national policy that led to
44

S.Res.201.

45

S.Res.201.

46

H. Res. 683

47

SJR-23.

48

S.Res.201. See also SJR-23 (Pointing out that, “[p]aradoxically, the very same year that
the Chinese Exclusion Act was passed, financing abroad was completed for the Statute of
Liberty. . . . While the Statute of Liberty was being built, legislators were contradicting those
very ideals by discriminating against Chinese immigrants and lobbying Congress to do the
same[.]”).

49

SJR-23.

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broader exclusion laws and fostered an environment of racism that quickly led to
the Jim Crow laws of the 1880s, and further segregation legislation that would tear
our nation apart through most of the 20th Century[.]”50 Simply put, it concluded
that racism breeds racism, and any governmental policies that conflict with the
fabric of this country cannot be allowed to stand.
C.

The Japanese Internment

The internment of Japanese-Americans was authorized by Executive Order
9066,51 which President Roosevelt issued in early 1942, ten weeks after the Pearl
Harbor attack. Executive Order 9066 gave to the Secretary of War and the military
commanders to whom he delegated authority, the power to exclude any and all
persons, citizens and aliens from designated areas in order to provide security
against sabotage and espionage.52 The Order makes no reference to the Japanese,
just as the current Executive Order does not reference Muslims. However, within a
week of the issuance of the order, Lt. General John L. DeWitt issued the first of
108 relocation orders resulting in the forcible evacuation of approximately 120,000
Japanese-Americans, including 70,000 citizens, to concentration camps in desolate
areas of the United States for the duration of World War II.53

50

Id.

51

7 Fed.Reg. 1407 (Feb. 19, 1942)

52

Id.

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The justification for Executive Order 9066 was “military necessity.”54
However, Congress has since acknowledged that “these actions were carried out
without adequate security reasons and … were motivated largely by racial
prejudice, wartime hysteria, and a failure of political leadership.”55 (Anti-Japanese
bias was palpable: polls taken in 1944 indicated that more than 60 percent of
Americans thought that whites should be prioritized in hiring decisions over
Japanese Americans).56 This conclusion was bolstered by the fact that no effort
was made to invoke Executive Order 9066 to authorize internment of GermanAmericans and/or Italian-Americans.57
In 1976, President Gerald Ford issued a proclamation acknowledging that
“not only was that evacuation wrong, but Japanese Americans were and are loyal
Americans.”

In 1982, the Commission on Wartime Relocation and Interment of

Civilians issued a report entitled, “Personal Justice Denied,” which set the stage for
the moment in 1988 when President Ronald Reagan signed the Civil Liberties Act,
53

See Roger Daniels, Concentration Camps USA: Japanese Americans and World War II
33, 104 (1972)
54

U.S. Comm'n on Wartime Relocation and Internment of Civilians, Congress of 1980,
Report: Personal Justice Denied, at 6-8 (1982).

55

50 U.S.C. § 4202.

56

Stephen White, “Many Americans Support Trump’s Immigration Order; Many
Americans Backed Japanese Internment Camps, Too,” The Washington Post, February 2, 2017.
57

See U.S. Comm’n on Wartime Relocation and Internment of Civilians, Congress of 1980,
Report: Personal Justice Denied, at 3 (1982).

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which offered a formal apology and reparations for the “grave injustice” of
evacuating, relocating and interning tens of thousands of Japanese Americans
during the war.58 President Reagan, in his remarks on signing the Act, made clear
that the internment of Japanese Americans was a “grave wrong.”59 Congress too
acknowledged that this measure – carried out under the false banner of “national
security” – amounted to a “fundamental violation[] of the basic civil liberties and
constitutional rights of [] individuals of Japanese ancestry” and caused “enormous
damages, both material and intangible, … which resulted in significant human
suffering[.]”60
Conclusion
The ADL believes that the decision by the United States District Court for
the Western District of Washington enjoining provisions of the Executive Order is
consistent with the principles underlying the Constitution. Absent injunctive relief,
there will almost certainly be irreparable harm to countless people, just as there
was when the United States shamefully turned away those on the St. Louis
desperately seeking safety. As with the 254 passengers aboard the St. Louis who
died in the Holocaust, an apology years later would be woefully insufficient to
58

See 50 U.S.C. § 4201 et seq.

59

President Ronald Reagan, Remarks on Signing the Bill Providing Restitution for the
Wartime Internment of Japanese-American Civilians (Aug. 10, 1988),
http://www.reagan.utexas.edu/archives/speeches/1988/081088d.htm.
60

50 U.S.C. § 4202.

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address the damage done. ADL believes that enforcing the Executive Order risks
once again sacrificing the nation’s core values in favor of prejudice and fear – a
sacrifice that history has repeatedly proven has profound consequences both to the
persons who suffer as a result and to the still-vibrant vision of the shining city on
the hill.
Dated: February 6, 2017

Respectfully submitted,
/s/ John B. Harris
JOHN B. HARRIS
Jeremy Goldman
Caren Decter
Jessica Smith
Rayna Lopyan
Lily Landsman-Roos
Lakendra Barajas
Counsel for Amicus Curiae ADL
Frankfurt Kurnit Klein & Selz, P.C.
488 Madison Avenue
New York, NY 10022
[phone]
[e-mail]

SIGNATURES CONTINUE ON NEXT PAGE

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/s/ Shelley A. Carder
RICHARD D. BARTON (Bar No. 102613)
SHELLEY A. CARDER (Bar No. 137755)
KENDRA J. HALL (Bar No. 166836)
Procopio, Cory, Hargreaves & Savitch, LLP
12544 High Bluff Dr., Ste. 300
San Diego, CA 92130
[phone]
[e-mail]
[e-mail]
/s/ Steven M. Freeman
STEVEN M. FREEMAN
Lauren A. Jones
Michelle N. Deutchman
Michael Lieberman
The Anti-Defamation League
Anti-Defamation League
605 Third Avenue
New York, New York 10158

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CERTIFICATION OF COMPLIANCE
This brief complies with the type-volume limitations of Fed. R. App. P.
29(a)(5) because it contains 5,241 words excluding the parts exempted by Fed. R.
App. P. 32(a)(7)(B)(ii).
Dated: February 6, 2017

/s/ Shelley A. Carder
RICHARD D. BARTON (Bar No. 102613)
SHELLEY A. CARDER (Bar No. 137755)
KENDRA J. HALL (Bar No. 166836)
Procopio, Cory, Hargreaves & Savitch, LLP
12544 High Bluff Dr., Ste. 300
San Diego, CA 92130
[phone]
[e-mail]
[e-mail]

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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 for the United States Court of Appeals for the Ninth
Circuit using the appellate CM/ECF system.
I certify that I am a registered CM/ECF user and that all parties have
registered CM/ECF users and that service will be accomplished by the appellate
CM/ECF system.
Dated: February 6, 2017

/s/Richard D. Barton
RICHARD D. BARTON (Bar No. 102613)
SHELLEY A. CARDER (Bar No. 137755)
KENDRA J. HALL (Bar No. 166836)
Procopio, Cory, Hargreaves & Savitch, LLP
12544 High Bluff Dr., Ste. 300
San Diego, CA 92130
[phone]
[e-mail]
[e-mail]

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Appendix
Passengers on the St. Louis

Source: Dara Lind, “How America’s Rejection of Jews Fleeing Nazi German Haunts our Refugee Policy Today,”
http://www.vox.com/policy-and-politics/2015/11/19/9760060/refugees-history-holocaust (Last visited on February
5, 2017).

Source: “Some of the 907 passengers on board the St. Louis arriving in Belgium after being refused entry into Cuba
and the U.S.,” American Jewish Joint Distribution Committee Archives, “The Story of the S.S. St. Louis (1939)”;
accessible at http://archives.jdc.org/educators/topic-guides/the-story-of-the-ss-st.html.

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In the wake of the Executive Order, and as a tribute to Holocaust Remembrance Day on January 27, 2017, a Twitter
account was established in the name of the St. Louis Manifest (@Stl_Manifest, accessible at
https://twitter.com/stl_manifest , which has tweeted out the names and stories of the ship’s passengers, examples of
which appear below:

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