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

Filing 82

Submitted (ECF) Amicus brief for review and filed Motion to become amicus curiae. Submitted by Muslim Advocates, American Muslim Health Professionals, Council for the Advancement of American Muslim Professionals, Islamic Medical Association of North America, Muppies, Inc. National Arab American Medical Association, et al.. Date of service: 02/06/2017. [10304360] [17-35105] (Ware, Anton) [Entered: 02/06/2017 03:37 PM]

No. 17-35105
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

STATE OF WASHINGTON, et al.

Plaintiffs-Appellees,
v.
DONALD TRUMP, et al.,

Defendants-Appellants.
On Appeal from an Entry of a Temporary Restraining Order by the
United States District Court for the Western District of Washington
Case No. 2:17-cv-141, Hon. James L. Robart
BRIEF OF MUSLIM ADVOCATES, AMERICAN MUSLIM HEALTH PROFESSIONALS,
COUNCIL FOR THE ADVANCEMENT OF AMERICAN MUSLIM PROFESSIONALS, ISLAMIC
MEDICAL ASSOCIATION OF NORTH AMERICA, MUPPIES, INC., NATIONAL ARAB
AMERICAN MEDICAL ASSOCIATION, NETWORK OF ARAB-AMERICAN PROFESSIONALS,
AS AMICI CURIAE, SUPPORTING APPELLEES

ANTON WARE
Arnold & Porter Kaye Scholer LLP
Three Embarcadero Center
10th Floor
San Francisco, CA 94111-4024
[phone]

Counsel for Amici Curiae

CORPORATE DISCLOSURE STATEMENT
Pursuant to Federal Rules of Appellate Procedure 26.1 & 29(c)(1) and
Ninth Circuit Local Appellate Rule 26.1.1, amici curiae state the following:
(1) They have no parent corporations;
(2) There are no publicly held corporations that own 10% or more of their
stock;
(3) They are not aware of any publicly held corporations not a party to this
proceeding with a financial interest in its outcome.
CONSENT OF THE PARTIES
Counsel for the State of Washington and State of Minnesota parties have consented
to the filing of this brief. Counsel for the United States has not fully consented.
/s/ Anton Ware
ANTON WARE
Arnold & Porter Kaye Scholer LLP
Three Embarcadero Center
10th Floor
San Francisco, CA 94111
[phone]

Counsel for Amici Curiae
Date: February 6, 2017

i

TABLE OF CONTENTS
CORPORATE DISCLOSURE STATEMENT ................................................................ i
TABLE OF AUTHORITIES ......................................................................................... iii
INTEREST OF THE AMICI CURIAE.......................................................................... v
INTRODUCTION .......................................................................................................... 1
ARGUMENT .................................................................................................................. 2
I.

The President’s Executive Orders on Immigration Are Subject to
Important Constitutional Limitations.................................................................. 2
A.
B.

II.

The Executive Order Is Not Immune From Judicial Review ...................... 2
The Court Is Not Prohibited From Reviewing The Executive
Branch’s Motives ........................................................................................... 4

The Purpose and Effect of the Executive Order Is Animus Toward
Muslims.................................................................................................................. 7
A.

The Executive Order Is Animated By Overt Animus Toward
Muslims.......................................................................................................... 7

B.

The Executive Order Disproportionately Injures Muslims,
Including Longtime U.S. Residents .............................................................. 9

CONCLUSION............................................................................................................. 11

ii

TABLE OF AUTHORITIES
Cases

Arce v. Douglas,
793 F.3d 968 (9th Cir. 2015) .................................................................................... 6
Cardenas v. United States,
826 F.3d 1164 (9th Cir. 2016) .............................................................................. 4, 7
Chae Chan Ping v. United States,
130 U.S. 581 (1889) .................................................................................................. 4
Church of Lukumi Babalu v. Hialeah,
508 U.S. 520 (1993) .................................................................................................. 7
Fong Yue Ting v. United States,
149 U.S. 698 (1893) .............................................................................................. 4, 5
Hampton v. Mow Sun Wong,
426 U.S. 88 (1976) .................................................................................................... 7
INS v. Chadha,
462 U.S. 919 (1983) .................................................................................................. 2
INS v. Pangilinan,
486 U.S. 875 (1988) .................................................................................................. 7
Kerry v. Din,
135 S. Ct. 2128 (2015) ...................................................................................... 4, 7, 8
Korematsu v. United States,
323 U.S. 214 (1944) .................................................................................................. 5
Locke v. Davey,
540 U.S. 712 (2004) .................................................................................................. 7
McCreary County, Ky. v. Am. Civil Liberties Union of Ky.,
545 U.S. 844 (2005) .............................................................................................. 5, 6
Nguyen v. INS,
533 U.S. 53 (2001) .................................................................................................... 3
Sante Fe Indep. Sch. Dist. v. Doe,
530 U.S. 290 (2000) .................................................................................................. 6
United States v. Windsor,
133 S. Ct. 2675 (2013) .............................................................................................. 6
Zadvydas v. Davis,
533 U.S. 678 (2001) .............................................................................................. 2, 3

iii

Other Authorities
Donald Trump on Orlando Shooting, FACTCHECK.ORG (June 14,
2016), http://www.factcheck.org/2016/06/donald-trump-on-orlandoshooting/.................................................................................................................... 9
Exec. Order No. 13,769, 82 FR 8977 (2017).............................................................. 1, 8
Fed. R. App. P. 29(c)(5) ................................................................................................. iv
Kambiz Ghanea Bassiri, A History of Islam in America: From the New
World to the New World Order (Cambridge 2010) ............................................... 12

iv

INTEREST OF THE AMICI CURIAE1
This amici curiae brief is submitted on behalf of the amici described below in
opposition to the Government’s Motion for Stay Pending Appeal.

Amici are

business, education, finance, healthcare, legal, science, technology, and other
professional members of the American Muslim community directly harmed and
stigmatized by the Executive Order.
Muslim Advocates, a national legal advocacy and educational organization
formed in 2005, works on the frontlines of civil rights to guarantee freedom and
justice for Americans of all faiths. Muslim Advocates advances these objectives
through litigation and other legal advocacy, policy engagement, and civic education.
Muslim Advocates also serves as a legal resource for the American Muslim
community, promoting the full and meaningful participation of Muslims in
American public life. The issues at stake in this case directly relate to Muslim
Advocates’ work fighting institutional discrimination against the American Muslim
community.
American Muslim Health Professionals (“AMHP”) works to improve the
health of Americans.

AMHP has three areas of focus: (1) health promotion and

education; (2) professional development; and (3) state and national advocacy on
public health issues. AMHP has been a leader in expanding healthcare coverage by

No counsel for a party authored this brief in whole or in part, and no party or
counsel for a party made a monetary contribution intended to fund the preparation
or submission of the brief. No person other than amici curiae or its counsel made a
monetary contribution to the preparation or submission of this brief. Fed. R. App.
P. 29(c)(5).
1

v

hiring a team of state liaisons and working with interfaith communities through its
“Connecting Americans to Coverage” campaign.

Its leadership has been at the

forefront of raising awareness about bullying, identity development, and other
mental health issues impacting the most vulnerable segments of society – our
children and youth.

AMHP has also spearheaded many social just initiatives

including “EnabledMuslim,” an online platform that provides spiritual and social
support for individuals and families impacted by disability.
Council for the Advancement of Muslim Professionals (“CAMP”) is an
association of mid- to senior-level Muslim professionals, which works to facilitate
and inspire the development of Muslim Professionals across the United States.
CAMP currently has a membership base of approximately 7,500 professionals and
has a physical presence in Chicago, New Jersey, New York, Philadelphia, and
Washington D.C. Founded in 1994 in Chicago as a face-to-face networking
organization, CAMP has grown to become a multi-city professional association,
which empowers Muslim professionals to advance and excel, not only in their
careers, but also in their broader community and philanthropic efforts.
The Islamic Medical Association of North America (“IMANA”) was founded in
1967 and represents the largest network of American Muslim physicians, dentists,
and allied healthcare professionals in North America. IMANA provides professional
networking opportunities for healthcare practitioners; acts as a medical ethics
resource for educational institutions, medical professionals and medical students,
residents and fellows; and provides continuing medical education.

vi

IMANA has

active medical relief programs and emergency relief efforts to respond to disasters
and facilitates the transfer of medical knowledge around the world. The mission of
IMANA is to provide humanitarian aid and medical relief worldwide and to be an
advocate of compassionate, sustainable and quality healthcare policies. Its
objectives are to connect and assist Muslim physicians, dentists and allied health
professionals in North America with orientation, adjustment, finding appropriate
training and job opportunities. IMANA wishes to continue to promote and facilitate
medical education, research, publications and improve global healthcare delivery by
encouraging American-Muslim diplomacy, through medical relief work and other
charitable activities.
Muppies, Inc., also known as Muslim Urban Professionals (“Muppies”), is a
nonprofit, charitable organization dedicated to empowering and advancing Muslim
business professionals to be leaders in their careers and communities. Its mission is
to create a global community of diverse individuals who will support, challenge, and
inspire one another by providing a platform for networking, mentorship, and career
development. Muppies members are leaders in the fields of finance, consulting,
technology, venture capital, healthcare, entrepreneurship and social enterprise. As
a condition of acceptance to the organization, members must demonstrate
dedication to the development and advancement of themselves and their
communities, in addition to outstanding professional achievement.

Muppies

members contribute to the fabric of the U.S. economy in diverse ways, such as

vii

driving innovation, creating new opportunities for employment, and promoting
excellence through diversity and inclusion.
The National Arab American Medical Association (“NAAMA”) is the largest
international organization of Arab American health care providers, trainees and
medical students based in North America. Since its founding, twenty-seven
chapters have been established in the United States and Canada. In 1990, NAAMA
was created to support international medical assistance projects, educational
exchanges, scholarships, research grants, and emergency medical aid in areas of
conflict. Members of the association include well-trained clinicians, high ranking
university professors, leaders of several medical societies, and scientists involved in
cutting edge research and innovation.

In the United States, the foundation

supports professional and educational activities aimed at Arab American health
education

and

disease

prevention

in

cooperation

with

community-based

organizations. Members have also donated their time and money to help the relief
efforts following Hurricanes Katrina and Rita.

Internationally, the foundation

sponsors projects, focusing on the Arab world.

It has sponsored humanitarian

projects in Iraq in the wake of the Iraq War.

Currently, volunteers from the

association conduct periodic missions to countries surrounding Syria to provide
humanitarian medical care and establish eye care and dental clinics to benefit local
populations and refugees.
Network of Arab-American Professionals (“NAAP”) is a professional
organization grounded in the notion that all Arabs in America need to connect to

viii

advance the community.

Through collective contribution to strengthen our

individual and community standing, NAAP provides a channel for Arab-Americans
to realize their passions and pursue their interests through community
involvement.

NAAP promotes professional networking and social interaction

among Arab-American and Arab professionals in the United States and abroad;
educates both the Arab-American and non-Arab communities about Arab culture,
identity, and concerns; advances the Arab-American community by empowering,
protecting and promoting its political causes and interests in the United States and
abroad within all levels of society; supports the Arab student movement in the
United States; and serves society through volunteerism and community service
efforts.

ix

INTRODUCTION
The Government’s Motion for Stay Pending Appeal (“Motion”) should be
denied because the District Court did not abuse its discretion in issuing a
temporary restraining order (“TRO”) against the implementation of two provisions
of President Donald J. Trump’s executive order of January 27, 2017, entitled
“Protecting the Nation from Foreign Terrorist Entry into the United States” (the
“Executive Order”).

The Executive Order is unconstitutional on a number of

grounds including because its evident purpose and effect is animus toward Muslims.
The Government would have this Court ignore the ample evidence of this
unconstitutional purpose in deference to what the Government characterizes as an
“unreviewable authority of the President to suspend the admission of any class of
aliens.” Mot. at 2 (emphasis added). To do so, however, would be an abdication of
the judicial branch’s unique role in protecting suspect classes from unlawful and
discriminatory treatment at the hands of the executive branch.
Amici are business, education, finance, healthcare, legal, science, technology,
and other professional members of the American Muslim community directly
harmed and stigmatized by the Executive Order. Amici urge this Court to deny the
Government’s Motion for extraordinary interlocutory relief. Given the propriety of
judicial review in this case, and the irremediable harms to American citizens,
residents, and visa holders from the Executive Order, amici respectfully submit that
the TRO should remain in place and continue to protect amici’s members pending
resolution of the States’ motion for a preliminary injunction.

1

ARGUMENT
I.

THE PRESIDENT’S EXECUTIVE ORDERS ON IMMIGRATION ARE SUBJECT TO
IMPORTANT CONSTITUTIONAL LIMITATIONS
A.

The Executive Order Is Not Immune From Judicial Review

In support of its Motion, the Government repeatedly invokes a supposed
“plenary power” of the Government’s political branches with respect to excluding
particular groups from entering the United States. See, e.g., Mot. at 12 (citing

Cardenas v. United States, 826 F.3d 1164, 1169 (9th Cir. 2016)). This attempt to
shield the Executive Order from any meaningful judicial review fails for several
reasons.

First, the Supreme Court’s recent cases have clarified that the political
branches’ power over immigration matters is not immune from judicial review. See

Zadvydas v. Davis, 533 U.S. 678, 695 (2001) (holding that so-called “‘plenary power’
to create immigration law . . . is subject to important constitutional limitations” in
the treatment of aliens).

In particular, the political branches must use “a

constitutionally permissible means of implementing” the relevant policy. INS v.

Chadha, 462 U.S. 919, 941–942 (1983) (invalidating enforcement action against
alien plaintiff on the basis of a structural constitutional limit on governmental
power akin to the Establishment Clause).
The operation of constitutional constraints on the executive and legislative
branches’ power with respect to regulating immigration is embedded in a number of
important recent cases. These cases involve both U.S. citizens and aliens. At stake
are both individual antidiscrimination claims and structural constitutional limits on

2

the government’s power. Across diverse contexts, courts have carefully scrutinized
constitutional claims, accounting for both their form and context.
For example, in Zadvydas v. Davis, the Supreme Court ruled in favor of an
alien who had already been found removable, citing Procedural Due Process
concerns. 533 U.S. 678, 693 (2001). In Nguyen v. INS, 533 U.S. 53, 58 (2001), the
Court

adjudicated

a

noncitizen’s

Equal

Protection

challenges

to

gender

classifications in the statutory frameworks regulating claims of derivative
citizenship. The Nguyen Court carefully scrutinized the “important governmental
interest[s]” furthered by the gender classification. Id. at 64.

Second, as it is commonly applied today, the plenary power doctrine
addresses the standard of judicial review of an individual consular officer’s
discretionary denial of a visa to a specific non-resident alien. See, e.g., Cardenas v.

United States, 826 F.3d 1164, 1169 (9th Cir. 2016) (applying consular nonreviewability doctrine to discretionary denial of a visa).

Practical concerns of

administrability may support insulating the large volume of such discretionary,
fact-specific consular-level visa decisions from time-consuming judicial review.
Such concerns, though, have no application in the context of the States’ challenge to
the Executive Order. Rather than making a case-specific determination regarding
the appropriateness of allowing a specific individual to enter the United States, the
Executive Order bars entire populations and severely impacts longtime residents of
the United States who have already been deemed appropriate to reside in the
country. Moreover, as discussed in Part I.B below, even were it applicable, the

3

consular non-reviewability doctrine is not absolute. See Kerry v. Din, 135 S. Ct.
2128 (2015).

Third, to the extent the plenary power doctrine historically was given a
broader scope of application, it is important to recall the ignominious context in
which the doctrine originated. In Fong Yue Ting v. United States, 149 U.S. 698
(1893), and Chae Chan Ping v. United States, 130 U.S. 581 (1889), the Supreme
Court upheld the overtly racist Chinese Exclusion Acts.2 The same sort of animus
later led the federal government to intern Japanese-American citizens and aliens on
the West Coast, a decision the federal courts did not overturn. See Korematsu v.

United States, 323 U.S. 214, 216 (1944) (upholding wartime internment of
Japanese-Americans). The Government’s invocation of the doctrine in support of
the President’s “Muslim ban” will no doubt be remembered as synonymous with
these infamous historical precedents.
B.

The Court Is Not Prohibited From Reviewing The Executive Branch’s
Motives

The Government contends that any inquiry into “motive” would create
“substantial separation of powers problems.” Mot. at 17 (citing United States v.

O’Brien, 391 U.S. 367 (1968)). This broad assertion of immunity from motive-based
judicial review is erroneous and would have startling and disruptive consequences if
accepted.
Contrary to the Government’s position, in reviewing the Executive Order, the
Court is duty-bound to consider not only the language of the Order but also its
For example, in Fong Yue Ting, the Court upheld a requirement that evidence of
residency for aliens of Chinese origin be supported by “one credible white witness.”
149 U.S. at 729-30.
2

4

“historical context” and the “specific sequence of events leading to [its
pronouncement].” McCreary County, Ky. v. Am. Civil Liberties Union of Ky., 545
U.S. 844, 866 (2005). As demonstrated in Part II.A, such a review can support only
one conclusion — that the Executive Order is motivated by animus toward Muslims
and the Islamic faith.
The courts’ duty to examine the context in which the Executive Order was
conceived and implemented flows from the nature of the constitutional and
statutory violations that the States have alleged.
With respect to the Establishment Clause, the District Court must consider
both “historical context” and the “specific sequence of events leading to” issuance of
the Executive Order to determine whether it was intended, at least in part, to
disfavor one faith over others. McCreary County, Ky., 545 U.S. at 866; Sante Fe

Indep. Sch. Dist. v. Doe, 530 U.S. 290, 308 (2000) (holding that courts have a “duty
. . . to distinguish a sham secular purpose from a sincere one”).
With respect to Equal Protection, the District Court must address the States’
credible allegations and evidence that the Executive Order was intended to
discriminate against Muslims. See Arce v. Douglas, 793 F.3d 968, 977 (9th Cir.
2015). Equal Protection challenges to federal action require judicial consideration
of both the “avowed purpose and practical effect of the law” to test its
constitutionality. United States v. Windsor, 133 S. Ct. 2675, 2693 (2013) (emphasis
added).
Yet another example is the Free Exercise Clause, which is closely related to
the Establishment Clause argument raised by plaintiff states. The Free Exercise

5

Clause requires a determination of whether “animus toward religion” motivated a
state action. Locke v. Davey, 540 U.S. 712, 725 (2004). Doing so means that judges
must look closely at a measure’s “history” and “operation.” Id.

They also look

closely at public statements made by the enacting body. Church of Lukumi Babalu

v. Hialeah, 508 U.S. 520, 541 (1993) (examining “minutes and taped excerpts” of
city council meeting that produced challenged ordinance, and finding “significant
hostility” toward a religious minority).
Nor does a different rule apply in the immigration context.
antidiscrimination

challenges

to

executive

In previous

immigration-related

action

by

noncitizens, the Court has looked to “the historical record” to determine whether
“the actions at issue … were motivated by any racial animus.” INS v. Pangilinan,
486 U.S. 875, 886 (1988). Moreover, the Court has exercised especially searching
review of executive action when an action appeared not to rest on relevant policy
expertise. See e.g., Hampton v. Mow Sun Wong, 426 U.S. 88, 103 (1976).
Finally, even if the plenary power doctrine were properly invoked here (it is
not), Justice Kennedy’s controlling opinion in Kerry v. Din, 135 S. Ct. 2128 (2015)3
directs that courts should “look behind” the government’s stated reasons for an
immigration decision if the plaintiff “plausibly alleged with sufficient particularity”
“an affirmative showing of bad faith.” Din, 135 S. Ct. at 2131. Here, the States
have alleged that the Executive Order reflects implementation of a bad faith effort
to target Muslims. ECF 18 ¶¶ 42–61. As demonstrated below, those allegations are
more than plausible in light of the publicly available evidence.

See Cardenas, 826 F.3d at 1171–72 (holding that Justice Kennedy’s concurrence in
Kerry v. Din “represents the holding of the Court”).
3

6

II.

THE PURPOSE AND EFFECT OF THE EXECUTIVE ORDER IS ANIMUS TOWARD
MUSLIMS
A.

The Executive Order Is Animated By Overt Animus Toward Muslims

Among the stated purposes of the Executive Order is “to protect Americans
. . . [by] ensur[ing] that those admitted to this country do not bear hostile attitudes
toward it and its founding principles.” Executive Order Section 1. Statements by
the President and his advisors leave no doubt that the unstated premise of the
Executive Order is the false proposition that Muslims, by virtue of their religious
faith, are more likely than non-Muslims to “bear hostile attitudes toward [the
United States] and its founding principles.” This unfounded and irrational animus
toward

all

Muslims

has

permeated

the

conception,

promulgation,

and

implementation of the Executive Order, as demonstrated by the below chronology of
public pronouncements by the President and his advisors.
On November 18, 2015, Mr. Trump claimed that he believed that the United
States will have “absolutely no choice” but to close down mosques and pledged that,
if he won the presidency, “[Syrian refugees are] going out.” Ware Decl. Ex. A.
On December 7, 2015, following the terror attack in San Bernardino,
California, then-candidate Mr. Trump called for a “complete shutdown of Muslims
entering the United States.” Ware Decl. Ex. B. Mr. Trump justified this call by
claiming, without evidence, that “large segments of the Muslim population” favor
Sharia (Islamic law) over U.S. law and violence against Americans. Ware Decl. Ex.
C.

7

On December 8, 2015, Mr. Trump defended his proposed “Muslim ban,” and
falsely accused Muslims of failing to report the San Bernardino plot:4 “The Muslim
community is not reporting what’s going on. They should be reporting that their
next-door neighbor is making pipe bombs and they’ve got them all over the place.
The mother’s in the apartment, other people, his friend was buying him rifles.
Nobody was reporting that.” Ware Decl. Ex. D.
On January 14, 2016, during a Republican Candidate Debate in North
Charleston, South Carolina, Mr. Trump answered “No” when asked whether he had
heard anything that made him want to rethink his position on banning Muslims
from entering the country. Ware Decl. Ex. E.
On March 9, 2016, Mr. Trump told CNN’s Anderson Cooper that “Islam hates
us.” Ware Decl. Ex. F. Asked whether he made a distinction between Islam and
radical Islam, Mr. Trump asserted that, “It’s very hard to separate, because you
don’t know who is who.” Ware Decl. Ex. F.
On June 13, 2016, in a speech responding to the terror attack in Orlando,
Florida, Mr. Trump pledged to suspend immigration from areas of the world where
there is a proven history of terrorism against the United States, Europe, or our
allies. Ware Decl. Ex. G. According to public statements by Mr. Trump’s advisor,
Rudolph Giuliani, on the day the Executive Order was signed, this new formulation
reflected an instruction by Mr. Trump to his advisors to find a way to implement

Donald Trump on Orlando Shooting, FACTCHECK.ORG (June 14, 2016),
http://www.factcheck.org/2016/06/donald-trump-on-orlando-shooting/ (“There is no
evidence for Trump’s claim that “many people,” including neighbors of the San
Bernardino shooters, saw “bombs all over the floor” of the apartment, but did not
report it to authorities because of concerns about racial profiling.”).
4

8

the “Muslim ban” “legally.” Ware Decl. Ex. H. During the same June 13, 2016
speech, Mr. Trump accused Muslims of “trying to take over our children and
convince them how wonderful ISIS is and how wonderful Islam is.” Ware Decl. Ex.
G.
On August 10th, 2016, Mr. Trump’s National Security Adviser Michael Flynn
called Islam “a cancer” during remarks at an ACT for America event in Dallas,
Texas. Ware Decl. Ex. I. Mr. Flynn made similar remarks again during the same
month

at

a

speech

to

the

Ahavath

Torah

Congregation

in

Stoughton,

Massachusetts, saying, “This is Islamism, it is a vicious cancer inside the body of
1.7 billion people on this planet and it has to be excised.” Ware Decl. Ex. J.
At a campaign rally in Canton, Ohio, on September 14, 2016, Mr. Trump,
while discussing Syrian refugees, claimed that, “We don’t know where these people
come from. We don’t know if they have love or hate in their heart, and there’s no
way to tell.” Ware Decl. Ex. K.
On January 27, 2017, Mr. Trump said that Christian refugees would be given
priority in the refugee program.

Ware Decl. Ex. L. On February 3, 2017, Mr.

Trump posted on Twitter “We must keep ‘evil’ out of our country.” Ware Decl. Ex.
M.
B.

The Executive Order Disproportionately Injures Muslims, Including
Longtime U.S. Residents

In the First Amended Complaint, the States have identified a number of
concrete harms that residents of the States have suffered and are suffering as a
result of the Executive Order. First Amended Complaint, State of Washington v.
Trump et al., No. 2:17-cv-00141 (JLR) (W.D. Wash. Feb. 1, 2017), ECF No. 18. As
9

American Muslim professionals, Amici have suffered and are suffering these
injuries to a disproportionate degree.5 Moreover, Amici are suffering an additional
injury as a result of the stigma that has attached to Muslims, unfairly and
irrationally, as a result of the Executive Order and the public pronouncements of
the President and his advisors in connection therewith.
Contrary to the misperception spread by the “Muslim ban,” the presence of
Muslims in America is not a threat to American security. Muslims have been a part
of America since its founding, when 10–15% of slaves forcibly brought to America
were Muslim. Muslims have expended their blood, sweat, and tears building and
defending the United States. In fact, today, more than 5,000 Muslims serve in the
U.S. military, and many have given their lives in recent wars in defense of US
interests. They also provide necessary healthcare, educate our nation’s children,
create jobs, and contribute innovation that is an essential driver of our nation’s
economic growth.

Today, Muslims represent 1% of the US population.

See

generally Kambiz Ghanea Bassiri, A History of Islam in America: From the New
World to the New World Order (Cambridge 2010).
The intentional and false stigmatization of Muslims as potential terrorists —
even if supposedly limited to Muslims from the 7 majority-Muslim countries
expressly included in the Executive Order — will, if not restrained, continue to
irreparably harm Amici.

At the appropriate time, Amici intend to seek leave of the District Court to submit
supporting evidence.
5

10

CONCLUSION
For the foregoing reasons, Amici respectfully request that the Court deny the
Government’s Motion.

11

Respectfully submitted,
/s/ Anton Ware
ANTON WARE
Arnold & Porter Kaye Scholer LLP
Three Embarcadero Center
10th Floor
San Francisco, CA 94111
[phone]
OF COUNSEL
FARHANA KHERA
AZIZ HUQ
BRENDA ABDELALL
MADIHHA AHUSSAIN
JUNAID SULAHRY
Muslim Advocates
P.O. Box 71080
Oakland, CA 94612
[phone]
DANIEL A. CANTOR
BETHAN R. JONES
Arnold & Porter Kaye Scholer LLP
601 Massachusetts Ave., NW
Washington, DC 20001
[phone]
ANDREW D. BERGMAN
Arnold & Porter Kaye Scholer LLP
700 Louisiana Street
Suite 1600
Houston, TX 77002
[phone]
CLARA WANG*
Arnold & Porter Kaye Scholer LLP
250 West 55th Street
New York, New York 10019
[phone]
*Admission pending in New York
Counsel for Amici Curiae
Date:

February 6, 2017
12

CERTIFICATION UNDER FEDERAL & LOCAL APPELLATE RULES
I certify that the text of this brief, as electronically filed, is identical to the
paper copies submitted to the Clerk of the Court.
I further certify that this brief complies with the type-volume limitation of
Fed. R. App. P. 28.1(e)(2) or 32(a)(7)(B). Excluding the portions of the brief
exempted by Fed. R. App. P. 32(a)(7)(B)(iii), this brief contains 4,552 words. This
brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the
type style requirements of Fed. R. App. P. 32(a)(6). It has been prepared in a
proportionally spaced typeface using the Century font in 12 point.
I also certify that the electronically filed PDF version of this brief has been
analyzed by the web-based virus scan service Virus Total and that no viruses were
detected.
/s/ Anton Ware
ANTON WARE
Arnold & Porter Kaye Scholer LLP
Three Embarcadero Center
10th Floor
San Francisco, CA 94111
[phone]

CERTIFICATE OF SERVICE
I certify that on February 6, 2017 the foregoing brief was filed using the
Court’s CM/ECF system. All participants in the case are registered CM/ECF users
and will be served electronically via that system.
/s/ Anton Ware
ANTON WARE
Arnold & Porter Kaye Scholer LLP
Three Embarcadero Center
10th Floor
San Francisco, CA 94111
[phone]

Counsel for Amici Curiae