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

Filing 90

Submitted (ECF) Amicus brief for review and filed Motion to become amicus curiae. Submitted by The Jewish Federation of Greater Seattle. Date of service: 02/06/2017. [10304753] [17-35105]--[COURT UPDATE: Attached separate PDF files of motion and brief. 02/07/2017 by LA] (Udo, Chandler) [Entered: 02/06/2017 11:05 PM]

No. 17-35105
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STATE OF WASHINGTON, et al.,
Plaintiffs-Appellees,
v.
DONALD J. TRUMP, et al.,
Defendants-Appellants.
On Appeal from an Order of the United States
District Court for the Western District of Washington
__________________________
United States District Judge James L. Robart
Case No. 2:17-CV-00141-JLR
BRIEF OF THE JEWISH FEDERATION OF GREATER SEATTLE
AS AMICUS CURIAE IN SUPPORT OF APPELLEES

Matthew P. Bergman
BERGMAN DRAPER LADENBURG, PLLC
821 Second Avenue, Suite 2100
Seattle, WA 98104
(T) 206-957-9510
(F) 206-957-9549
Attorneys for Amici Curiae

CORPORATE DISCLOSURE STATEMENT
The Jewish Federation of Greater Seattle is a nonprofit corporation. It has no
parent corporations, and no publicly held corporation owns any portion of it.

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TABLE OF CONTENTS
INTEREST OF AMICI CURIAE

1

ARGUMENT

1

A. The Executive Order Barring Innocent Refugees is Not Rationally Related to
the Governmental Objective of Curtailing Terrorism.
1
B. The Executive Order Resurrects Discredited Constitutional Arguments.
CONCLUSION

4
9

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TABLE OF AUTHORITIES
Cases
Hirabayashi v. United States,
320 U.S. 81, 63 S. Ct. 1375 (1943)

4, 6

Hirabayashi v. United States,
828 F.2d 591 (9th Cir. 1987)

4, 5, 6, 7

Korematsu v. United States,
323 U.S. 214, 65 S. Ct. 193 (1944)

4, 7

Trop v. Dulles,
356 U.S. 86, 78 S. Ct. 590 (1958)

8

Rules
Federal Rule of Appellate Procedure 32(a)(7)(C)

9

Rule 32(a)(5)

9

Rule 32(a)(6)

9

Regulations
3 C.F.R. 1092

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INTEREST OF AMICI CURIAE
The Jewish Federation of Greater Seattle was founded in 1928 to serve the
Jewish community, locally and around the world. Over nearly nine decades of
service, helping refugees fleeing overseas persecution has been an important
concern of the Federation. As the community representative of a historically
persecuted religious minority, the Jewish Federation stands vigilantly opposed to
all forms of racial, ethnic and religious discrimination. Because the Executive
Order under challenge bars innocent refugees from seeking refuge in the United
States and discriminates against Muslims based primarily on their faith, and
because constitutional injuries will accrue immediately if the temporary restraining
order is stayed, the Federation has a strong interest in ensuring that the TRO
remains in place.
ARGUMENT
A.

The Executive Order Barring Innocent Refugees is Not Rationally
Related to the Governmental Objective of Curtailing Terrorism.

The story of the Jewish community -- like the collective story of the United
States -- is one of refugees and immigrants, children and families, seeking safety,
opportunity, and a better life in a country founded on the promise of opportunity
for all. Over thousands of years, from Israel to Babylon to Egypt to Spain to
Western and Eastern Europe, Jews have been torn from their homes through
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violence. This experience has imbued the Jewish Community with a commitment
to fulfill the biblical dictum: “You shall not oppress a foreigner, since you
yourselves know the feelings of a foreigner, for you also were foreigners in the
land of Egypt.” Exodus 23:9.
Washington State has always welcomed strangers and those seeking a new
start. Washington’s early leaders were Jewish immigrants -- including a territorial
governor and Seattle mayor. In the 20th Century survivors of regional conflict and
world wars found a home in our region. They brought hopes for a safer life. They
embraced with ingenuity and determination the opportunities unique to the United
States.
During the Holocaust, the United States turned down thousands of Jewish
refugees seeking sanctuary because they did not look like other Americans, or
speak the same language, or practice the same religion. In one of the most
infamous cases, in 1939 President Roosevelt turned away the transatlantic liner St.
Louis laden with 950 German refugees fleeing Nazi persecution. The ship was
sailing so close to Florida that the passengers aboard could see the Miami lights.
Nevertheless, with public opinion against taking in refugees — fueled by claims
that there were Nazi spies hiding among them or that they were a “menace to
America,” - the president shut the doors. With the United States unwilling to let
the ship dock and refusing to take in those aboard, the St. Louis turned back to
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Europe. Almost a quarter of the passengers aboard were slaughtered in the
Holocaust.
Jewish Family Service, on whose behalf, the Jewish Federation advocates, is
one of five refugee resettlement agencies in Washington. Each year, Jewish Family
Service resettles 300 refugees across the Puget Sound and helps almost 1,000
refugees and immigrants to make a life here - with job training, language skills,
mentoring and support. These are children and families fleeing persecution and
violence. Jewish Family Services has nearly 60 refugees waiting across the world,
who have already passed the rigorous screening process, airplane tickets in hand
and scheduled to travel within the next four weeks. This Executive Order will
immediately cancel their travel. Many clients are awaiting reunification with
family members who are still stuck overseas. Reinstatement of the Executive
Order will prevent their families from joining them in the U.S., leaving them in
vulnerable situations.
With more than 65 million people forcibly displaced from their homes,
today the world faces the worst refugee crisis since World War II. The refugee
screening process is the strictest, most intense of any process for persons trying to
enter this country. The Administration has failed to demonstrate how restricting
refugees from Syria, Iraq, Iran, Somalia, Yemen, Libya, and Sudan will make
America safer. Not a single individual from one of the affected countries has been
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involved in a terrorist attack on American soil since 9/11. While the Executive
Branch bears primary responsibility for protecting the homeland from terrorist
attack, wholesale exclusion of well-vetted refugees bears no rational relationship to
that laudatory objective.
B.

The Executive Order Resurrects Discredited Constitutional
Arguments.

The Administration castigates the district court for “second-guessing a
formal national-security judgment made by the President himself pursuant to broad
grants of statutory authority.” Reply Brief at 8. Appellant thus urges this Court to
withhold Constitutional and legal scrutiny because the Executive Order was
promulgated under the President’s plenary authority over immigration with the
ostensible goal of protecting the homeland from terrorist attack. In advancing this
argument, the Administration resurrects the same legal rationale that was used in
Hirabayashi v. United States, 320 U.S. 81, 63 S. Ct. 1375 (1943), and
Korematsu v. United States, 323 U.S. 214, 65 S. Ct. 193, 204–05 (1944), to uphold
the forced internment of Japanese Americans during World War II.
On February 19, 1942, President Roosevelt signed Executive Order No.
9066 authorizing the Secretary of War to prescribe military areas from which any
or all persons, citizens as well as aliens, might be excluded. Exec. Order No. 9066,
3 C.F.R. 1092 (1938–1943 Comp.). Based upon the authority of the Executive
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Order, General DeWitt began issuing orders requiring certain persons to obey
curfew restrictions and report at designated times and places for evacuation from
military areas. Hirabayashi v. United States, 828 F.2d 591, 595 (9th Cir. 1987).
Pursuant to this order, more than 110,000 Japanese Americans, who mostly lived
on the West Coast, were forcibly relocated into internments camps for the duration
of the war.
Gordon Hirabayashi was an American citizen of Japanese ancestry born in
Seattle, Washington. Id. at 591-92. In 1942, he refused to honor the curfew or to
report to the control station and was criminally convicted in the United States
District Court for the Western District of Washington. He appealed to the United
States Supreme Court on the grounds that the military orders were based upon
racial prejudice and violated the protections the Constitution affords to all citizens.
Id. As in this case, the Justice Department justified the exclusion and curfew
orders upon what it said was a reasonable exercise of national security judgment by
the Executive. Id. at 956. The Government argued that because of cultural
characteristics of the Japanese Americans, including religion, it was likely that
some, though not all, American citizens of Japanese ancestry were disloyal and
that because of the military exigencies it could not wait to segregate the loyal from
the disloyal. Id. Like Appellants in this case, the government’s brief argued that
national classifications were constitutionally permissible when deemed by the
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Executive as necessary for national security.
The classification was not based upon invidious race discrimination.
Rather, it was founded upon the fact that the group as a whole
contained an unknown number of persons who could not readily be
singled out and who were a threat to the security of the nation; and in
order to impose effective restraints upon them it was necessary not
only to deal with the entire group, but to deal with it at once.
Id.
As urged upon this Court by Appellants, the Supreme Court deferred to the
Executive’s Constitutional authority of national security and declined to overturn
the curfew that Hirabayashi was convicted of violating. While recognizing that
racial and ethnic classifications were constitutionally suspect, the Supreme Court
held that because “the Constitution commits to the Executive and to Congress the
exercise of the war power in all the vicissitudes and conditions of warfare, it has
necessarily given them wide scope for the exercise of judgment and discretion in
determining the nature and extent of the threatened injury or danger and in the
selection of the means for resisting it.” Hirabayashi, 320 U.S. at 93.
The following year in The Supreme Court displayed similar deference to the
Executive branch in upholding the forced relocation and internment of 110,000
Japanese Americans.
Exclusion of those of Japanese origin was deemed necessary because
of the presence of an unascertained number of disloyal members of
the group, most of whom we have no doubt were loyal to this country.
It was because we could not reject the finding of the military
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authorities that it was impossible to bring about an immediate
segregation of the disloyal from the loyal that we sustained the
validity of the curfew order as applying to the whole group. In the
instant case, temporary exclusion of the entire group was rested by the
military on the same ground.
Korematsu, 323 U.S. at 218–19. However, in a stirring dissent that has animated
jurists and scholars for 60 years, Justice Jackson upbraided the Court for abdicating
its Constitutional responsibility to administrative expediency.
Much is said of the danger to liberty from the Army program for
deporting and detaining these citizens of Japanese extraction. But a
judicial construction of the due process clause that will sustain this
order is a far more subtle blow to liberty than the promulgation of the
order itself. A military order, however unconstitutional, is not apt to
last longer than the military emergency. . . . But once a judicial
opinion rationalizes such an order to show that it conforms to the
Constitution . . . the Court for all time has validated the principle of
racial discrimination in criminal procedure and of transplanting
American citizens. . . . A military commander may overstep the
bounds of constitutionality, and it is an incident. But if we review and
approve, that passing incident becomes the doctrine of the
Constitution.
Id. at 245–46 (Jackson, J. dissenting).
This Court recognized that “[t]he Hirabayashi and Korematsu decisions
have never occupied an honored place in our history.” Hirabayashi, 828 F.2d at
593. In the six decades since those opinions were rendered, the legal rationale that
justified the Japanese internments has been relegated to the dustbin of judicial
disrepute -- together with arguments invoked to support Jim Crow laws and gender
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discrimination. Nevertheless, the arguments raised by Appellants to support the
Executive Order struck down by the district court in this case are hauntingly
familiar to the arguments advanced (and accepted) in Hirabayashi and Korematsu.
This Court should reject Appellants’ effort to resurrect arguments that have been
long surpassed by “the evolving standards of decency that mark the progress of a
maturing society.” Trop v. Dulles, 356 U.S. 86, 101, 78 S. Ct. 590 (1958).
Over a hundred years ago, Santayana observed that “[t]hose who cannot
remember the past are condemned to repeat it.” G. Santayana THE LIFE OF REASON
(1905). Seventy-five years ago, the United States turned away German refugees
seeking refuge from Nazi oppression, despite their posing no threat to our country.
Sixty years ago, Justice Jackson warned of the enduring consequences to
Constitutional liberties where courts abdicate their authority in times of national
emergency. The Executive Order before this Court offends long-enshrined
Constitutional principles of equal protection and religious neutrality and undercuts
America’s example as a beacon of hope for persecuted refugees yearning to
breathe free. This Court should heed the lessons from the past and uphold the
district court at this historic juncture in our nation’s history.

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CONCLUSION
The Court should deny Appellants’ motion.
Dated: February 6, 2017
Respectfully submitted,
/s/ Matthew P. Bergman
Matthew P. Bergman, WSBA #20894
BERGMAN DRAPER LADENBURG
821 Second Avenue, Suite 2100
Seattle, WA 98104
(T) 206-957-9510
(F) 206-957-9549
Attorneys for Amicus Curiae

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CERTIFICATE OF COMPLIANCE
Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(C), the
undersigned counsel certifies that this brief:
(i) complies with the typeface requirements of Rule 32(a)(5) and the type
style requirements of Rule 32(a)(6) because it has been prepared using
Microsoft Office Word 2007 and is set in Times New Roman font in a size
equivalent to 14 points or larger and,
(ii) amici have requested leave to file a 10-page brief.
Dated: February 6, 2017
Respectfully submitted,
/s/ Matthew P. Bergman
Matthew P. Bergman, WSBA #20894
BERGMAN DRAPER LADENBURG

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CERTIFICATE OF SERVICE AND FILING
I hereby certify that on the 6th day of February 2017, I electronically filed
Brief of The Jewish Federation of Greater Seattle As Amicus Curiae In Support of
Appellees with the Clerk of the Court for the United States Court of Appeals for
the Ninth Circuit by using the appellate CM/ECF system.
Participants in the case who are registered CM/ECF users will be served by
the appellate CM/ECF system.
Dated: February 6, 2017
Respectfully submitted,
/s/ Matthew P. Bergman
Matthew P. Bergman, WSBA #20894
BERGMAN DRAPER LADENBURG

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