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

Filing 58

Submitted (ECF) Amicus brief for review and filed Motion to become amicus curiae. Submitted by Massachusetts, Pennsylvania, New York, California, Connecticut, Delaware, District of Columbia, Iowa, Illinois, Maryland, Maine, New Mexico, Oregon, Rhode Island, Virginia, and Vermont. Date of service: 02/06/2017. [10303835] [17-35105]--[COURT UPDATE: Attached corrected PDFs with signatures added, resent notice. 02/07/2017 by LA] (Nadeau, Genevieve) [Entered: 02/06/2017 01:32 PM]

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 an Order of the United States District Court
for the Western District of Washington
MEMORANDUM OF LAW OF THE STATES OF NEW YORK,
CALIFORNIA, CONNECTICUT, DELAWARE, ILLINOIS, IOWA,
MAINE, MARYLAND, MASSACHUSETTS, NEW MEXICO,
OREGON, PENNSYLVANIA, RHODE ISLAND, VERMONT, AND
VIRGINIA, AND THE DISTRICT OF COLUMBIA AS AMICI
CURIAE STATES IN SUPPORT OF PLAINTIFFS-APPELLEES

MAURA HEALEY
Attorney General
Commonwealth of
Massachusetts
One Ashburton Place
Boston, MA 02108

ERIC T. SCHNEIDERMAN
Attorney General
State of New York
120 Broadway, 25th Floor
New York, NY 10271
[phone]

JOSH SHAPIRO
Attorney General
Commonwealth of
Pennsylvania
Strawberry Square, 15th Floor
Dated: February 6, 2017
Harrisburg, PA 17120

TABLE OF CONTENTS
Page
INTERESTS OF AMICI ............................................................................................1
ARGUMENT ..........................................................................................................2
I. Washington, Minnesota, and Other States Have Standing to Challenge
the Executive Order Because of the Harm It Inflicts on the States
Themselves. .....................................................................................................2
A.

Disruption and Additional Costs at State Colleges and
Universities. .............................................................................................3

B.

Disruption to State Medical Institutions.................................................. 8

C.

Diminished Tax Revenues from Students, Tourists, and Business
Visitors ....................................................................................................9

D.

Irreparable Harm from Establishment Clause Violations .....................12

E.

Harm to Sovereign and Quasi-Sovereign Interests ...............................13

II. The Emergency Motion for a Stay Should Be Denied Because
Granting It Would Cause Further Chaos. ......................................................16
CONCLUSION ........................................................................................................22

INTERESTS OF AMICI
The State of New York, together with the States California, Connecticut,
Delaware, Iowa, Illinois, Maine, Maryland, New Mexico, Oregon, Rhode Island,
and Vermont, the Commonwealths of Massachusetts, Pennsyvania, and Virginia,
and the District of Columbia submit this brief as amici curiae in support of appellees
the States of Washington and Minnesota. The Executive Order at issue in this suit
bars entry into the United States of nationals of seven majority-Muslim countries,
including those who hold valid U.S. visas for work, study, and travel. It hinders the
free exchange of information, ideas, and talent between the affected countries and
the States, including at the States’ many educational institutions; harms the States’
life sciences, technology, health care, finance, and other industries, as well as
innumerable small businesses throughout the States; and inflicts economic harm on
the States through diminished tax revenues and other means.
Although the residents, institutions, industries, and economies of the amici
States differ, all stand to face the concrete, immediate, and irreparable harms caused
by the Executive Order. Indeed, several amici have filed or intervened or sought to
intervene in parallel lawsuits raising similar claims. Those lawsuits may well be
affected by the decision in this case.

ARGUMENT
I.

Washington, Minnesota, and Other States Have Standing to
Challenge the Executive Order Because of the Harm It Inflicts
on the States Themselves.

The Executive Order is inflicting actual, concrete, and particularized injuries to
the States’ proprietary, sovereign, and quasi-sovereign interests. See Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560-61 (1992); Alfred L. Snapp & Son, Inc. v.
Puerto Rico ex rel. Barez, 458 U.S. 592, 601-08 (1982).1 These injuries 2 include
harm to state colleges and universities, medical institutions, tax revenues; States’
interests in seeing the Establishment Clause upheld within our jurisdictions; and
States’ interests in ensuring the health, welfare, and civil rights of our residents.3

1

See also Massachusetts v. EPA, 549 U.S. 497, 518-20 (2007) (recognizing that
a state’s “stake in protecting its quasi-sovereign interests” entitles it to “special
solicitude” in a standing analysis); United States v. Students Challenging Regulatory
Agency Procedures, 412 U.S. 669, 689 n.14 (1973) (emphasizing that the standing
inquiry focuses on the fact of an injury, not its magnitude).
2
All of the amici States support the legal arguments put forward in this brief,
although some of the facts alleged do not apply uniformly to them. For example, the
State of Delaware does not have a state medical hospital and is still in the process of
attempting to verify some of the other specified harms incurred by other amici states.
3

Moreover, because many of these harms are caused directly by the Executive
Order’s effect on nonimmigrant visa-holders, these injuries are not ameliorated by
the federal government’s current position that long-term permanent residents are
unaffected by the Executive Order (notwithstanding the plain language in Section
3(c) of the order).
2

A.

Disruption and Additional Costs at State Colleges and
Universities.

The Executive Order has inflicted and continues to inflict harm on state
colleges and universities across the country, including in the amici States, which rely
on faculty and students from across the world.
First, the Executive Order has disrupted our state educational institutions’
ability to meet their staffing needs. The Order is already preventing and dissuading
scholars from coming to our institutions—including scholars who had already
committed to filling positions. The University of Massachusetts has more than 120
employees who are affected by the Executive Order; the City University of New
York has 46 such employees; and the University of Maryland, College Park, has
about 350 such members of its community. While there is no absolute right to the
maintenance or continuation of a visa, our state educational institutions rely on
predictability in the visa system. Moreover, foreign-born faculty who are here on
visas typically have specialized expertise that cannot easily be replaced. Colleges
and universities are already forming task forces and making contingency plans to fill
these particular voids in their faculty rosters. These efforts represent a considerable
expenditure of scarce resources and may not be successful.
Contrary to the federal government’s suggestion, these expenditures are
compelled by the Executive Order, and are not merely elective or speculative. The
amici States are aware of numerous staffing-related harms to specific programs in
3

our state institutions. These include foreign scholars from the affected countries
holding duly-issued, otherwise-valid J-1 visas who have abandoned their plans to
come to the United States and teach because of the Executive Order. In some such
cases, the scholars were expected to teach during the spring semester of 2017,
leaving holes in faculty rosters that our institutions must immediately fill.
Additional immediate disruption to staffing has occurred in the context of
medical residency staffing. State medical schools participate in the “match” program
for purposes of placing residents in their various university hospital programs. These
medical residents perform crucial services at our hospitals, including, in many cases,
providing medical care for underserved residents. The state institutions’ decisions
on ranking these future residents are due on February 22; the computerized “match”
occurs on March 17; and matched residents are expected to begin work on July 1.
Many programs regularly match medical residents from the seven affected countries
and, prior to the Executive Order, medical schools like the University of
Massachusetts Medical School were already actively considering and had
interviewed specific applicants from the affected countries. These programs must

4

forgo ranking applicants from the affected countries or risk having insufficient
medical residents to meet staffing needs. 4
Second, the Executive Order creates uncertainty and will impose additional
costs related to nonimmigrant faculty and other employees who are already present
in the United States. Because of the “at least” 90-day freeze on processing of visa
applications under section 3(c) of the Executive Order, state institutions face the
imminent prospect of paying an additional $1,225 fee per visa for “Premium
Processing Service” to expedite the approval of certain eligible visas. 5
Third, the Executive Order has disrupted the process of admitting students for
enrollment and imminently threatens the loss of hundreds of millions of tuition
dollars. State colleges and universities across the country enroll thousands of
students from the affected countries. The City University of New York has more
than 800 affected undergraduate students; the University of California’s ten

4

If a program “matches” with an applicant who is then unable to come into
the country, the program is left with an open slot. The only way to fill the slot is to
seek a waiver from the National Resident Matching Program. Such a waiver puts a
medical school in the difficult position of trying to hire a resident from the pool of
applicants who did not match anywhere else, and the school may be unable to find a
resident at all. These problems are described in detail in Louhghalam v. Trump,
Declaration of Michael F. Collins, MD, No. 17-cv-10154-NMG, Dkt. No. 52-2, at 2
(D. Mass. Feb. 2, 2017).
5

Information regarding U.S. Citizenship and Immigration Services’
expediting service, including the fee, is available at https://www.uscis.gov/i-907.
5

campuses have almost 500 affected graduate students and 40 affected
undergraduates; the State University of New York has 320 affected undergraduates;
the University of Massachusetts has 300 affected graduate and undergraduate
students; the California State University System has more than 1,300 students from
the affected countries with immigrant status and more than 250 students on student
visas; and there are more than 350 affected students at Virginia’s public institutions,
including Virginia Commonwealth University, Virginia Tech, George Mason
University, the University of Virginia, and William & Mary. The University of
Illinois has over 300 enrolled students from the affected countries and has already
admitted 20 students for Fall 2017 from the affected countries. Other public
institutions like the Pennsylvania State University, Texas A&M University, the
University of Central Florida, the University of Houston System, the University of
Texas at Arlington, and Arizona State University each have hundreds of affected
students. 6
The Executive Order has already disrupted the on-going admissions process
for the 2017-2018 school year. The amici States’ colleges and universities have
already extended some offers of admission to students from the affected countries

6

Abby Jackson, The 10 U.S. Colleges That Stand to Lose the Most from
Trump’s
Immigration
Ban,
Business
Insider
(Feb.
1,
2017),
https://amp.businessinsider.com/colleges-potentially-most-affected-trumpimmigration-ban-2017-2.
6

who may now be unable to attend, and anticipate that—but for the Executive
Order—they would admit many more over the coming months. Already, the amici
States are aware of students from the affected countries who have had to abandon
plans to enroll in their programs due to the Executive Order and students who have
withdrawn applications. As a result, these public institutions must now alter their
admissions processes because admitted students may not be able to accept or attend,
depriving these schools of tuition dollars. While public colleges and universities are
always subject to federal immigration law and policy, the Executive Order has
injured them unexpectedly, by up-ending with no advance notice the established
framework around which these institutions have designed their enrollment
processes.
Finally, the President’s Order has in many cases eliminated the ability of
faculty and students from the affected countries with nonimmigrant visas to travel.
The amici States are aware of specific examples where that inability to travel is
harming our institutions’ core missions of education and scholarship. These include
graduate and undergraduate students who traveled to see families abroad over winter
break and became trapped abroad; admitted students and recent faculty hires who
cannot now reach the United States; and faculty and doctoral students who are in the
United States but unable to travel abroad for fieldwork or conferences because they
will not be able to reenter. In some cases, such travel is necessary to complete a
7

dissertation or remain on the tenure track. Even if reentry ultimately may become
possible for foreign faculty and students who leave the country, the amici States are
concerned that the Executive Order’s suspension of the Visa Interview Waiver
Program will greatly prolong visa approval wait times, making travel more difficult
and unpredictable. See Executive Order, Sec. 8.
B.

Disruption to State Medical Institutions

The Executive Order has also inflicted or imminently threatens to inflict
similar injuries on state medical institutions and the provision of medical care within
the amici States—including at institutions serving some of our neediest populations.
In addition to disrupting the matching process by which our state medical schools
staff hospitals through medical residents, the Executive Order also has affected
medical residents who are already here and serving our patient populations as they
train in multi-year programs. If such residents are unable to renew or extend their
nonimmigrant visas, state medical schools will be unable to continue to employ
them; the schools will be left with unfilled positions in their years-long programs for
training physicians; and staffing gaps will open up at hospitals. Moreover, if the
residents are unable to complete their medical residencies, they will not be able to
become licensed physicians to serve the public. The University of Massachusetts
Medical School, for example, is particularly known for its primary care program—
at a time when primary care physicians are in short supply in many areas across the
8

country—and currently has six medical residents from the affected countries under
employment contracts.
Public medical institutions, including medical schools and public hospitals,
also employ individuals from the affected countries in many other positions,
including as fully trained physicians, research faculty, and post-doctoral researchers.
For example, 307 licensed healthcare professionals in Pennsylvania have trained in
one of the affected countries. The amici States are aware of employment offers from
public entities that have already been extended to and accepted by individuals from
the affected countries, who are now waiting for visas to be approved and uncertain
if and when they will be able to begin their employment. And the amici States have
current employees, located in the United States, who, for the time being, cannot
renew or extend their visas or statuses. Hospitals and medical schools will suffer
decreased staffing as a result. Although the federal government dismisses such
eventualities as speculative, they are not. Patients at our medical facilities cannot
wait for care, and those facilities must immediately adapt to these changed
circumstances—and spend precious time and resources to do so.
C.

Diminished Tax Revenues from Students, Tourists, and
Business Visitors

The Executive Order is also immediately causing the amici States to lose tax
revenue—and poses a grave, long-term threat to internationally-linked industries
that, in many cases, are the lifeblood of our economies. Such economic injuries, even
9

by themselves, give rise to Article III standing. See, e.g., City of Sausalito v. O’Neill,
386 F.3d 1186, 1199 (9th Cir. 2004).
Every foreign student, tourist, and business visitor to the amici States
contributes to our respective economies—through tuition and room and board
payments to state schools as well as through sales tax receipts from our hotel,
retailers, and other businesses. The Executive Order abruptly halted the entry of such
consumers from seven countries—and their tax revenue. As described above, the
amici States are aware of specific individuals—scholars, students, and others—
whose trips were abruptly cancelled. If the Order is not enjoined during the pendency
of this litigation, it will cost the States weeks or months of additional tax revenues
from such visitors, even if Washington and Minnesota ultimately prevail. Indeed,
even assuming the Executive Order continues to be enjoined, it has already created
economic damage that cannot be undone.
The collective amounts at issue are immense, even just with respect to student
tax dollars. In New York, in 2015, there were almost 1,000 nationals from the
affected countries studying on temporary visas, who collectively contributed $30.4
million to the State’s economy, including direct payments for tuition and fees and
living expenses.7 This figure does not include indirect economic benefits, such as

7

See http://www.iie.org/Research-and-Publications/Open-Doors/Data/
Economic-Impact-of-International-Students.
10

the contributions of international students and scholars to innovation in academic
and medical research. In 2014-15, more than 50,000 foreign students contributed an
estimated $1.5 billion to the economy of Illinois.8 And these are not the only States
affected. For example, in the 2014-2015 academic year, Iran sent 11,338 students to
institutions across the United States, yielding an estimated economic impact of $323
million. 9 California universities and colleges host the largest number of students
from the seven targeted countries. The overwhelming majority of them are from Iran,
with 1,286 visas issued to students headed to California institutions in 2015.10 The
Executive Order abruptly prevented a large number of anticipated tourists and
students from traveling to the States, directly and immediately decreasing the
revenues flowing to state academic institutions and tax authorities. 11

8

See Open Doors 2016 Fact Sheet: Illinois, Institute of International
Education, http://bit.ly/2lfVfBr.
9

Open
Doors
Data,
Fact
Sheets
for
Iran:
2015,
at
http://www.iie.org/Research-and-Publications/Open-Doors/Data/Fact-Sheets-byCountry/2015#.WJfgjGczWUk.
10

See T. Watanabe and R. Xia, Trump Order Banning Entry from Seven
Muslim-Majority Countries Roils California Campuses, Los Angeles Times
(January 30, 2017).
11

This case is thus unlike Pennsylvania v. Kleppe, 533 F.2d 668, 679-80
(1976) and Iowa ex rel. Miller v. Block, 771 F.2d 347, 353 (8th Cir. 1985)
11

The long-term harms to the amici States’ tax revenue caused by the Executive
Order from loss of tourism and business investment are certainly greater. Although
our regional economies may vary, we all depend on remaining internationally
competitive, attractive destinations for companies in the life sciences, technology,
finance, health care, and other industries, and for tourists and entrepreneurs. In
Illinois alone, for example, 22.1% of entrepreneurs are foreign-born, and immigrantand refugee-owned businesses employ more than 281,000 people. 12 The Executive
Order will create broad harm because it hampers the movement of people and ideas
from the affected countries into our States.
D.

Irreparable Harm from Establishment Clause Violations

The amici States have also suffered irreparable harm because the Executive
Order violates the Establishment Clause of the First Amendment. Where an
Establishment Clause violation is alleged, “infringement occurs the moment the
government action takes place—without any corresponding individual conduct.”
Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 303 (D.C. Cir. 2006).
This conclusion follows from “the inchoate, one-way nature of Establishment Clause
violations, which inflict an ‘erosion of religious liberties [that] cannot be deterred by
awarding damages to the victims of such erosion[.]’” Id. (quoting ACLU of Ill. v.

12

See The Contributions of New Americans in Illinois at 2, New American
Economy (Aug. 2016), http://bit.ly/2kRVaro.
12

City of St. Charles, 794 F.2d 265, 275 (7th Cir. 1986)). Thus, “where a movant
alleges a violation of the Establishment Clause, this is sufficient, without more, to
satisfy the irreparable harm prong for purposes of the preliminary injunction
determination.” Id. 13
E.

Harm to Sovereign and Quasi-Sovereign Interests

In addition to the injuries that the Executive Order is inflicting on States’
proprietary interests, the Executive Order also harms the amici States’ wellestablished sovereign and quasi-sovereign interests. See, e.g., Snapp, 458 U.S. at
602-608 (describing those interests). These harms further underscore the existence
of State standing to sue the federal government to invalidate the Executive Order.
1. Enforcing Antidiscrimination Laws
As the United States Supreme Court has observed, States have a sovereign
interest in “the exercise of sovereign power over individuals and entities within . . .
[their] jurisdiction” that includes “the power to create and enforce a legal code, both
civil and criminal.” Id. at 601. States also possess a quasi-sovereign interest in
protecting the civil rights of all residents within their jurisdiction. Id. at 609.

13

See also ACLU v. McCreary Cnty, 354 F.3d 438, 445 (6th Cir. 2003)
(presuming irreparable harm where plaintiffs were likely to succeed on the merits of
their Establishment Clause claim); Parents’ Ass’n of P.S. 16 v. Quinones, 803 F.2d
1235, 1242 (2d Cir 1986) (same).
13

The Executive Order harms these sovereign and quasi-sovereign interests by
preventing states from enforcing regimes of non-discrimination created by their state
constitutions and laws. Residents and businesses in many of the amici States—and
indeed many of the amici States themselves—are prohibited by state law from taking
national origin and religion into account in determining to whom to extend
employment and other opportunities.14 Although the States, state residents and state
businesses are always constrained in their employment decisions by validly-enacted
federal immigration law, the Executive Order represents an act of unconstitutional
discrimination. It is well recognized that States have standing to sue the federal
government where a federal law or federal action with the force of law impairs their
legitimate, sovereign interest in the continued enforceability of their own statutes.15

14

See, e.g., Cal. Const. art. I, §§ 7-8; Cal. Gov’t Code §§ 11135-11137; Conn.
Gen. Stat. § 46a-60; 5 Maine Rev. Stat. Ann. §§ 784, 4551-4634 (2013). Mass. Gen.
L. ch. 151B, §§ 1, 4; Mass. Gen. L. ch. 93, § 102; Md. Code Ann., State Gov’t § 20606; N.Y. Exec. Law §§ 291 (1)-(2); 296(1)a-e; 296(1-a) a-d; 296(2); 296(2-a);
296(3-b); 296(4); 296(5)(a)1-3,(b)1-2, (c)1-2,(d); 296(10)a; 296(13);296-c (2)a-c;
43 P.S. § 952(a); 43 P.S. § 952(b); 43 P.S. § 953; 43 P.S. § 955; Pa. Const. Art. I, §
1; Pa. Const. Art. I, § 3; Pa. Const. Art. I, § 26.
15

See, e.g., Gonzales v. Oregon, 546 U.S. 243, 273-75 (2006) (state challenge
to federal rule that purported to bar dispensing of controlled substances in the face
of state medical regime permitting such conduct); Wyoming ex rel. Crank v. United
States, 539 F.3d 1236, 1239-40 (10th Cir. 2008) (state challenge to federal agency’s
assertion that the federal definition of a statutory term controlled the meaning of the
same term in a state statute that defined the term differently).

14

2. Ensuring the Benefits of Existing Federal Laws and Regulations
A State has a legally cognizable “interest, independent of the benefits that
might accrue to any particular individual, in assuring that the benefits of the federal
system are not denied to its general population.” Snapp, 458 U.S. at 608. Here, in
direct violation of that interest, individuals arriving at the amici States from the seven
designated countries have been denied a variety of rights and procedures established
by federal statutes and regulations.
Individuals arriving at a port of entry in the United States are entitled to certain
rights and procedures specified by the Immigration and Nationality Act (INA), 8
U.S.C. §§ 1101 et seq. Sections 1158 and 1225 of the INA entitle aliens present or
arriving in the United States to apply for asylum. Section 1231 provides that an alien
may not be removed to a country where his or her life or freedom would be
threatened on certain specified grounds, and entitles an alien to attempt to make such
a showing. Id. § 1231(b)(3). Federal regulations set out detailed procedures for
effectuating these rights. For example, where an arriving alien subject to expedited
removal “indicates an intention to apply for asylum, or expresses a fear of
persecution or torture, or a fear of return to his or her country,” the alien is entitled
to a credible fear interview with an asylum officer and review by an immigration
judge. See 8 C.F.R. § 235.3(b)(1)(i), (4); see also id. §§ 208.30(g), 208.30(g)(2).

15

3. Protecting Our Residents, Businesses, and Communities
The Executive Order also harms state interests far broader than the injuries to
any single person who has been denied entry under the Executive Order. These
interests include States’ unique concern for their economies, academic institutions,
and public health. See, e.g., Snapp, 458 U.S. at 602 (noting States’ independent
interest “in the well-being of [their] populace”).
The harm that the Executive Order threatens to non-state academic institutions
and non-state providers of essential health-care services exacerbates the injuries that
research and public health sectors already suffer from the Executive Order’s effect
on state institutions. See supra at 3-9. In addition, the Executive Order threatens key
sectors of the States’ economies, such as technology and finance, that rely heavily
upon the talents and contributions of immigrants. See Br. for Tech. Cos. & Other
Bus. as Amici Curiae Supporting Plaintiffs-Appellees at 8-21, Washington v. Trump,
No. 17-35105 (9th Cir. Feb. 5, 2017), ECF No. 19-2.
II.

The Emergency Motion for a Stay Should Be Denied Because
Granting It Would Cause Further Chaos.
A stay is not a matter of right, but an “exercise of judicial discretion that is

dependent upon the circumstances of the particular case.” Lair v. Bullock, 697 F.3d
1200, 1203 (9th Cir. 2012) (citations and internal quotation marks omitted). In
evaluating a stay motion, this Court’s discretion is guided by a four factor analysis
that asks (1) whether the applicant “is likely to succeed on the merits;” (2) “whether
16

the applicant will be irreparably injured absent a stay;” (3) whether issuance of the
stay will “substantially injure” other interested parties; and (4) “where the public
interest lies.” Id. (quoting Nken v. Holder, 556 U.S. 418, 434 (2009).) The party
requesting the stay “bears the burden of showing that the circumstances justify an
exercise of this Court’s discretion.” Lair, 697 F.3d at 1203 (quoting Nken, 556 U.S.
at 433-34) (brackets omitted). 16
As the District Court concluded, Washington is likely to succeed on the
merits of its challenge to the Executive Order. Indeed, in the ten days since the
Executive Order was signed, district courts across the Nation have determined—
both expressly and by implication—that claims like those advanced by Washington
and Minnesota are likely to succeed on the merits.17

16

In the past, this Court has sometimes applied an alternative standard in the
context of issuing stays, allowing the moving party to demonstrate that the case
raised “‘serious legal questions’” and that the balance of the hardships tipped
“‘sharply in its favor.’” Golden Gate Restaurant Ass’n v. City and County of San
Francisco, 512 F.3d 1112, 1116 (9th Cir. 2008) (quoting Lopez v. Heckler, 713 F.3d
1432, 1435 (9th Cir. 1983). Since the Supreme Court’s decision in Nken, this Court
has indicated that this alternative approach remains available in the stay context. See
Leiva-Perez v. Holder, 640 F.3d 962, 964-966 (9th Cir. 2011) (per curiam).
Regardless of which approach this Court applies, the stay requested by the federal
government in this case should be denied.
17

See, e.g., Darweesh v. Trump, No. 17-cv-480, Dkt. No. 8 (E.D. N.Y. Jan.
28, 2017); Vayeghan v. Kelly, No. 17-cv-702, Dkt. No. 6 (C.D. Cal., Jan. 29, 2017);
Mohammed v. United States, No. 17-cv-786 (C.D. Cal., Jan 31, 2017); Arab17

The States have already been harmed by this Executive Order and its shifting
implementation by the federal government. See Emergency Mot. Ex. C at 4-5
(district court order); see supra Section I.A.-I.E. The Executive Order “unleashed
global chaos” almost as soon as it was issued on January 27. 18 Customs and border
control officials arrived at airports on January 28 without instructions on how to
implement it.19 The lack of advance warning led to “homeland security officials
‘flying by the seat of their pants[]’ to try to put policies in place.” 20 Officials at
different airports applied different policies. 21 Visitors to our country—and many
lawful permanent residents as well—were detained for days at airports, often without

American Civil Rights League v. Trump, No. 17-cv-10310, Dkt. No. 8 (E.D. Mich.
Feb. 2, 2017); Aziz v. Trump, No. 17-cv-116, Dkt. No. 38 (E.D. Va. Feb. 3, 2017).
18
M. Shear & R. Nixon, How Trump’s Rush to Enact an Immigration Ban
Unleashed Global Chaos, N.Y. Times (Jan. 29, 2017), available at
https://www.nytimes.com/2017/01/29/us/politics/donald-trump-rush-immigrationorder-chaos.html?_r=0 (last visited Feb. 5, 2017)
19

Id.

20

Id.

21

See, e.g., J. Allen & B. O’Brien, How Trump’s Abrupt Immigration Ban
Sowed Confusion at Airports, Agencies, Reuters (Jan. 29, 2017), available at
www.reuters.com/article/us-usa-trump-immigration-confusion-idUSKBN15D07S
(last visited Feb. 5, 2017) (while many visa-holders reported being “allowed into the
country without a problem,” some lawful permanent residents were “turned away”).
18

access to counsel. 22 If this Court were to grant the stay that the federal government
now seeks, it would only exacerbate that harm.
This uncertainty was compounded by the actions of officials at the highest
levels of the federal government, who vacillated over how to interpret and apply the
Executive Order. For example, the federal government changed its mind multiple
times about whether the Executive Order applies to lawful permanent residents.23
On February 1, the White House Counsel acknowledged “that there has been
reasonable uncertainty about whether” the travel ban applies to lawful permanent
residents of the United States, and “clarif[ied] that Sections 3(c) and 3(e) [of the
Order] do not apply to such individuals.”24

22

M. Shear et al., Judge Blocks Trump Order on Refugees Amid Chaos and
Outcry Worldwide, N.Y. Times (Jan. 28, 2017), available at https://goo.gl/OrUJEr
(last visited Feb. 5, 2017); A. Whiting, Despite Court Order, US Officials Won’t
Allow Lawyers at Dulles to See Detainees, Washingtonian (Jan. 29, 2017), available
at
https://www.washingtonian.com/2017/01/29/customs-and-border-protectionstill-not-allowing-lawyers-to-see-detainees/ (last visited Feb. 5, 2017).
23

See, e.g., E. Perez, Inside the Confusion of the Trump Executive Order and
Travel
Ban
(Jan.
30,
2017),
available
at
http://www.cnn.com/2017/01/28/politics/donald-trump-travel-ban/index.html (last
visited Feb. 5, 2017); Press Release, U.S. Department of Homeland Security,
Statement By Secretary John Kelly On The Entry Of Lawful Permanent Residents
Into The United States (Jan. 29, 2017), available at https://goo.gl/6krafi (last visited
Feb. 5, 2017).
24

See Memorandum to the Acting Secretary of State, the Acting Attorney
General, and the Secretary of Homeland Security from Donald F. McGahn II (Feb.
19

The District Court’s temporary restraining order returned the policies and
procedures regarding travel to the United States to the status quo that existed before
the Executive Order. Emergency Mot. Ex. C at 5-6 (district court order). As a result
of the court’s order, the Department of Homeland Security announced on February
4 that it “has suspended any and all actions implementing the affected sections of
the Executive Order” and that “DHS personnel will resume inspection of travelers
in accordance with standard policy and procedure.” 25 In the aftermath of that
announcement, international airlines announced that they would allow citizens of
the affected nations onto flights bound for the United States. 26 News outlets are
reporting that travelers from those countries have already boarded planes headed to
the United States. 27

1, 2017), available at www.politico.com/f/?id=00000159-fb28-da98-a77dfb7dba170001 (last visited Feb. 5, 2017).
25

Press Release, U.S. Department of Homeland Security, DHS Statement on
Compliance with Recent Court Order (Feb. 4, 2017), available at
https://www.dhs.gov/news/2017/02/04/dhs-statement-compliance-recent-courtorder (last visited Feb. 5, 2017).
26

A. Dewan, Airlines Allow Passengers After Judge Blocks Travel Ban (Feb.
4, 2017), available at http://www.cnn.com/2017/02/04/politics/airlines-airportstrump-travel-ban/index.html (last visited Feb. 5, 2017).
27

See J. Kaleem, Department of Homeland Security Halts Enforcement of
Controversial Travel Ban, Los Angeles Times (Feb. 4, 2017), available at
http://www.latimes.com/politics/washington/la-na-essential-washington-updatesdepartment-of-homeland-security-halts-1486224232-htmlstory.html
20

If this Court were to grant a stay, it would resurrect the chaos experienced in
our airports beginning on the weekend of January 28 and 29, and cause harm to the
States—including to state institutions such as public universities, to the businesses
that sustain our economies, and to our residents. See supra Sections I & II. Travelers
with valid visas to enter the United States, who boarded planes to our country in
reliance on the order below and the guidance of the Department of Homeland
Security, will be stopped, detained, and turned around yet again. That shift would
exacerbate the confusion and uncertainty that has already harmed the amici States
and the public at large. See supra Section I.D. 28
Under these circumstances, the federal government cannot carry its burden of
showing that a stay is warranted. The District Court’s temporary restraining order
merely preserves the status quo that existed before President Trump’s Executive
Order. In contrast to the abstract injuries that the federal government asserts it has
suffered, a stay would lead to real and immediate hardships for the States, our

28

See also Pl.’s Emergency Mot. for TRO at 21-22, Washington v. Trump,
No. 17-cv-00141 (W.D. Wash. Jan. 30, 2017), ECF No. 3; Br. for Am. Civil
Liberties Union as Amici Curiae Supporting Pl. at 3-10, Washington, No. 17-cv00141 (W.D. Wash. Feb. 2, 2017), ECF No. 26-1; Br. for Serv. Employees Int’l
Union as Amici Curiae Supporting Pl. at 2-7, Washington, No. 17-cv-00141 (W.D.
Wash. Feb. 2, 2017), ECF No. 42-2; Br. for Wash. State Labor Council as Amici
Curiae Supporting Pl. at 8-11, Washington, No. 17-cv-00141 (W.D. Wash. Feb. 2,
2017), ECF No. 46-1; Decl. of Emily Chiang Supporting Pl.’s Emergency Mot. for
TRO at 2-8, Washington, No. 17-cv-00141 (W.D. Wash. Jan. 30, 2017), ECF No. 3.
21

residents, businesses, and institutions. The interests of the public, the States, and the
Nation would be best served by keeping the temporary restraining order in place—
and avoiding further turmoil—pending a more thorough review by the Court.
CONCLUSION
For the foregoing reasons, this Court should affirm the Temporary Restraining
Order and deny the Emergency Motion for Stay.
Respectfully submitted,
ERIC T. SCHNEIDERMAN
Attorney General
State of New York
BARBARA D. UNDERWOOD
Solicitor General
ANISHA S. DASGUPTA
Deputy Solicitor General
120 Broadway, 25th Floor
New York, NY 10271

/s/ Genevieve C. Nadeau
MAURA HEALEY
Attorney General
Commonwealth of Massachusetts
ELIZABETH N. DEWAR
GENEVIEVE C. NADEAU
JONATHAN B. MILLER
Assistant Attorneys General
One Ashburton Place
Boston, MA 02108

JOSH SHAPIRO
Attorney General
Commonwealth of Pennsylvania
JONATHAN SCOTT GOLDMAN
Executive Deputy Attorney General
Civil Law Division
Strawberry Square, 15th Floor
Harrisburg, PA 17120
XAVIER BECERRA
Attorney General
State of California
Suite 11000
455 Golden Gate Avenue
San Francisco, CA 94102

MATTHEW P. DENN
Attorney General
State of Delaware
Carvel State Building, 6th Floor
820 North French Street
Wilmington, DE 19801
22

x

GEORGE JEPSEN
Attorney General
State of Connecticut
55 Elm Street
Hartford, CT 06106

LISA MADIGAN
Attorney General
State of Illinois
100 West Randolph Street, 12th Floor
Chicago, IL 60601

THOMAS J. MILLER
Attorney General
State of Iowa
1305 E. Walnut Street
Des Moines, IA 50319

PETER F. KILMARTIN
Attorney General
State of Rhode Island
150 South Main Street
Providence, RI 02903

JANET T. MILLS
Attorney General
State of Maine
6 State House Station
Augusta, ME 04333

THOMAS J. DONOVAN, JR.
Attorney General
State of Vermont
109 State Street
Montpelier, VT 05609

BRIAN E. FROSH
Attorney General
State of Maryland
200 Saint Paul Place, 20th Floor
Baltimore, MD 21202

MARK R. HERRING
Attorney General
State of Virginia
202 North 9th Street
Richmond, VA 23219

HECTOR BALDERAS
Attorney General
State of New Mexico
408 Galisteo Street
Santa Fe, NM 87501

KARL A. RACINE
Attorney General
District of Columbia
Suite 1100 South
441 4th Street, NW
Washington, DC 20001

ELLEN F. ROSENBLUM
Attorney General
State of Oregon
1162 Court Street N.E.
Salem, OR 97301

Dated: February 6, 2017
23