State of Hawaii v. Trump

Filing 122

MOTION for Leave to File AMICUS CURIAE BRIEF OF THE LAW PROFESSORS Claire Loebs Davis appearing for Amicus Amicus Curiae Law Professors (Attachments: # 1 Exhibit A, # 2 Certificate of Service)(Davis, Claire)

OF COUNSEL:
DAVIS LEVIN LIVINGSTON
MARK S. DAVIS
1442-0
MICHAEL K. LIVINGSTON 4161-0
MATTHEW C. WINTER
8464-0
851 Fort Street, Suite 400
Honolulu, Hawaii 96813
Tel: [phone] Fax: [phone]
Email: [e-mail]
LANE POWELL PC
CLAIRE LOEBS DAVIS
[Pro Hac Vice]
JESSICA N. WALDER
TAYLOR WASHBURN
AARON SCHAER
1420 Fifth Avenue, Suite 4200
Seattle, WA 98111
Tel: [phone] Fax: [phone]
Email: [e-mail]
Attorneys for Amicus Curiae Law Professors
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
STATE OF HAWAII AND ISMAIL
ELSHIKH,
Plaintiffs,
vs.
DONALD J. TRUMP, IN HIS OFFICIAL
CAPACITY AS PRESIDENT OF THE UNITED
STATES; U.S. DEPARTMENT OF
HOMELAND SECURITY; JOHN F.
KELLY, IN HIS OFFICIAL CAPACITY AS
SECRETARY OF HOMELAND SECURITY;
REX TILLERSON, IN HIS OFFICIAL
CAPACITY AS SECRETARY OF STATE; AND
THE UNITED STATES OF
AMERICA,
Defendants.

CIV. NO. 17-00050 DKW-KSC
AMICUS CURIAE BRIEF OF
LAW PROFESSORS ON ISSUE
OF STATE STANDING

EXHIBIT A

AMICUS CURIAE BRIEF OF
LAW PROFESSORS ON ISSUE OF STATE STANDING
I.

INTERESTS OF AMICUS CURIAE

The non-party law professors are Todd Aagaard of Villanova University,
Robin Kundis Craig of the University of Utah, Brigham Daniels of Brigham
Young University, Lincoln L. Davies of the University of Utah, Noah Hall of
Wayne State University, Alexandra B. Klass of the University of Minnesota, David
Owen of the University of California-Hastings, Zygmunt J. B. Plater of Boston
College, Alexander T. Skibine of the University of Utah, Lisa Grow Sun of
Brigham Young University, Joseph P. Tomain of the University of Cincinnati, and
Amy J. Wildermuth of the University of Utah (“the Law Professors”). The Law
Professors research, teach, and write on federal courts, constitutional law, and
administrative law. We are scholars who have spent considerable time studying
state standing. As such, our interest is in ensuring that the Court’s decision on
standing is consistent with this complex and evolving body of law. The Law
Professors maintain a neutral position on the underlying merits of the case, and
therefore do not file this brief in support of either party.
II.

INTRODUCTION

The State of Hawaii (“Hawaii” or “State”) has brought a challenge to the
Executive Order issued on March 6, 2017 (“Executive Order”), asserting claims
under the U.S. Constitution as well as several federal statutes, and seeking a

temporary restraining order (“TRO”) barring enforcement of the Executive Order.
See Plaintiffs’ Motion for Temporary Restraining Order (“TRO Motion”) (Dkt.
65).
There are few cases that address issues of state standing, and, as a result, the
Supreme Court has provided limited guidance in this area. Amici offer this brief to
provide our insight as to the appropriate analysis under existing law. 1 Based on our
analysis of the factual pleadings and supporting declarations filed by Hawaii, we
conclude that the State has properly asserted standing based on its interests to bring
this action and pursue a TRO.
III.

ARGUMENT

When analyzing state standing, the first task is to identify the interest being
asserted by the state. In Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez,
458 U.S. 592 (1982), the Supreme Court articulated three categories of potential
interests for a sovereign seeking to bring suit:
(1) proprietary interests,
(2) quasi-sovereign interests, and
(3) sovereign interests.
1

This brief draws from two of the principal drafter’s articles: Amy J.
Wildermuth, Why State Standing in Massachusetts v. EPA Matters, 27 J. LAND,
RESOURCES, & ENVTL. L. 273 (2007), and Kathryn A. Watts & Amy J.
Wildermuth, Massachusetts v. EPA: Breaking New Ground on Issues Other Than
Global Warming, 102 NW. U. L. REV. 1029 (2008), 102 NW. U. L. REV. COLLOQUY
1 (2007).
2

Id. at 601–02. Because the standing analysis varies by the type of interest asserted,
it is essential to first identify the interest(s) at stake.
In this case, Hawaii has asserted that the Executive Order implicates
interests within each of these three categories. This brief will focus on Hawaii’s
proprietary interests and quasi-sovereign interests as examples of how to identify
these interests and apply the standing analysis.
A.

Proprietary Interests

Proprietary interests are direct interests of a state, such as ownership of land
or participation in a business venture. Id. These are interests of the same kind that a
private party would assert in litigation. Id.
When a state asserts an injury to or interference with its proprietary interest,
the Article III standing analysis should be no different than the one that would be
applied to a case brought by a private plaintiff. Cf. id. at 611 (Brennan, J.,
concurring) (“At the very least, the prerogative of a State to bring suits in federal
court should be commensurate with the ability of private organizations.”). Courts
therefore have required that states asserting a proprietary interest satisfy the wellknown requirements of Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) for
Article III standing, namely, demonstrating (1) an actual and concrete injury (or
“injury-in-fact”); (2) that this injury is traceable to the defendant’s conduct; and (3)
that a favorable decision will likely redress the injury. Id. at 560–61; see also
3

Washington v. Trump, 847 F.3d 1151, 1158–61 (9th Cir. 2017) (applying Lujan
factors in analyzing state standing based on alleged harm to proprietary interests).
Here, Hawaii asserts two main proprietary injuries stemming from the
Executive Order. The first is the negative financial impact that the Executive Order
will have on the University of Hawaii. Like most state universities, the University
of Hawaii is an arm of the state. See Haw. Const. art. 10, §§ 5, 6; Haw. Rev. Stat. §
304A-103 (2011); see also Mukaida v. Hawaii, 159 F. Supp. 2d 1211, 1221 (D.
Haw. 2001).
The financial impact of the Executive Order on the university is clear. The
university has an established record of recruiting students from the six affected
countries. For example, it estimates that twenty-three of its current graduate
students hail from those countries. Supplemental Declaration of Risa E. Dickson
(“Supp. Dickson Decl.”) (Dkt. 66-6, Ex. D-1) ¶ 7.
The prospective students who are without visas as of March 16, 2017,
however, are banned. As a result, the University of Hawaii will not be able to
collect the money that those students would have paid to attend. Id. ¶¶ 7–8
(“Individuals who are neither legal permanent residents nor current visa holders
will be entirely precluded from considering our institution.”).
In addition, the University of Hawaii has hired and supported many faculty
members and visiting scholars from the six listed countries: “The University also
4

has employees including faculty from two of the designated countries, namely Iran
and Sudan, who are here on immigrant visas. In addition, the University has at
least 29 visiting faculty members and scholars with valid visas from the six
countries affected by the new Executive Order.” Id. ¶ 7. The University of Hawaii
will no longer be able to recruit and hire faculty or staff from the affected
countries, or host visiting faculty and scholars from those areas, if they are without
valid visas on March 16, 2017. This will be a significant loss for the university
because those in faculty, scholarly, or other academic professional roles often
perform highly specialized work for which it is difficult to find replacements. The
university’s cost of finding others to perform the same tasks is expected to be
higher than the cost of recruiting such academic professionals from an open and
free market of job seekers, allowing for selection of individuals from all over the
world.
The Ninth Circuit cited similar injuries asserted by the states of Washington
and Minnesota in Washington v. Trump, 847 F.3d at 1158–61, in concluding that
“the States have alleged harms to their proprietary interests traceable to the
[previous version of the] Executive Order.” 2 Id. at 1161. In particular, the Ninth
Circuit observed that, under the prior Executive Order, “some [nationals of the
2

As Hawaii explains in its Complaint, the March 2017 Executive Order
currently under challenge was preceded by a similar order issued on January 25,
2017. The prior Executive Order was the subject of the Washington v. Trump
litigation. Complaint ¶¶ 47–71.
5

affected countries] will not enter state universities, some will not join those
universities as faculty, some will be prevented from performing research, and some
will not be permitted to return if they leave.” Id. 3 Here, Hawaii has similarly
asserted that the Executive Order will constrain its ability to attract and retain
faculty and students, and has therefore alleged “a concrete and particularized injury
to [its] public universities” sufficient to ground Article III standing. TRO Motion at
46 (quoting Washington, 847 F.3d at 1159). 4
Beyond alleging that the Executive Order will deprive the University of
Hawaii of tuition-paying students and hard-to-replace academic personnel, the
State also asserts that the Executive Order will “have the effect of depressing
international travel to and tourism in Hawai‘i,” which “directly harms Hawaii’s
businesses and, in turn, the State’s revenue.” Complaint ¶ 100. 5 According to

3

The Ninth Circuit also noted that if the prior Executive Order continued in
effect, the University of Washington “will lose its investment” in visa applications
for medicine and science interns barred under that Order from entering the country.
Washington, 847 F.3d at 1159–60.
4
The Ninth Circuit’s opinion appears to conflate two distinct concepts: (1) a
state’s standing to sue based on an injury to its own proprietary interests in the
form of financial harm suffered by the state’s universities; and (2) a state’s “thirdparty” standing “to assert the rights of the students, scholars, and faculty,”
Washington, 847 F.3d at 1159–61. What the Ninth Circuit calls “third-party” state
standing might be better classified as “quasi-sovereign” standing, which is
analytically distinct from proprietary-interest state standing. Notwithstanding this
distinction, the Ninth Circuit correctly held that financial harm to state universities
is a valid basis for a state to claim Article III standing. Id. at 1161 (identifying
harm to state universities as an injury to a state’s “proprietary interests”).
5
See also Supplemental Declaration of Luis P. Salaveria (“Supp. Salaveria
Decl.”) (Dkt. 66-4, Ex. C-1), ¶¶ 6–10 (“I expect, given the uncertainty the new
6

Hawaii, tourism is the State’s “lead[ing] economic driver,” accounting for $15
billion in spending in 2015. Id. ¶ 18. A decline in tourism would have a direct
effect on the State’s revenue. For example, as part of the draw for tourists, Hawaii
has 51 state parks encompassing approximately 30,000 acres. See About Our
Parks, Hawaii Department of Land and Natural Resources, Division of State Parks,
at http://dlnr.hawaii.gov/dsp/parks/about-our-parks/ (last visited on March 20,
2017). These parks rely on fees charged for various activities, such as camping,
which generate significant revenue for the State. When nationals from the
designated countries are banned from visiting the United States, they will not be
able to visit Hawaii’s many state parks, which will result in a direct loss of revenue
to the State.
As the Fifth Circuit held in Texas v. United States, 809 F.3d 134 (5th Cir.
2015), aff’d by an equally divided Court, 136 S. Ct. 2271 (2016), a state’s
“financial loss[es]” stemming from a federal action constitute a concrete and
immediate injury to the state’s proprietary interests for the purposes of standing.
Id. (considering the administrative costs imposed on the state by a federal law
requiring that the state issue drivers’ licenses to undocumented aliens); see also
Wyoming v. Oklahoma, 502 U.S. 437, 448 (1992) (holding that a state has standing

executive order and its predecessor have caused to international travel generally,
that these changing policies may depress tourism, business travel, and financial
investments in Hawaii.”).
7

to sue where it alleges “a direct injury in the form of a loss of specific tax
revenues”).
Although the financial injuries alleged by Hawaii could be substantial, even
limited monetary harm can satisfy Article III standing. Indeed, when any financial
damage is alleged, injury-in-fact for standing purposes “is often assumed without
discussion.” Danvers Motor Co., Inc. v. Ford Motor Co., 432 F.3d 286, 293 (3rd
Cir. 2006). This principle applies to state as well as private plaintiffs. Texas, 809
F.3d at 155 (state had proprietary-interest standing because it would incur “a
minimum of $130.89” in administrative costs in connection with each license
issued); see also Preminger v. Peake, 552 F.3d 757, 763 (9th Cir. 2008) (holding
that an injury-in-fact “may be minimal,” and relying on United States v. Students
Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 689 n.14
(1973), which noted that the Supreme Court has “allowed important interests to be
vindicated by plaintiffs with no more at stake in the outcome of an action than a
fraction of a vote, a $5 fine and costs, and a $1.50 poll tax”).
Hawaii has demonstrated (1) that its institutions of higher education will
suffer monetary damage, and that it is likely to suffer a loss of revenue due to a
decline in tourism; (2) that such monetary harm will be a direct result of the
Executive Order; and (3) that it would not lose that money in the absence of the
Executive Order. As a result, the State has satisfied the traditional Lujan test for
8

Article III standing to sue, as is required when a state asserts harm to its
proprietary interests.
B.

Quasi-Sovereign Interests

Hawaii also has asserted standing based on its quasi-sovereign interests, i.e.,
in its role as parens patriae for its citizens. Quasi-sovereign interests are difficult
to describe, and “admittedly vague.” 13A CHARLES ALAN WRIGHT ET AL., FEDERAL
PRACTICE AND PROCEDURE JURIS. 2D § 3531.11, at 31 (1984). When a state brings
suit based on quasi-sovereign interests, it “must articulate an interest apart from the
interests of particular private parties.” Snapp, 458 U.S. at 607.
The Supreme Court has described this separate interest as the state’s own
interest “in the well-being of its populace,” id. at 602, and provided two examples:
(1) a state’s interest in protecting the health and well-being—“both physical and
economic”—of its citizens from injuries, such as transboundary pollution; 6 and (2)
a state’s interest in seeing that its “residents are not excluded from the benefits that
flow from participation in the federal system,” including “securing residents from
the harmful effects of discrimination.” Id. at 607–09 (citation omitted). 7
6

See, e.g., North Dakota v. Minnesota, 263 U.S. 365 (1923) (involving
flooding) and Georgia v. Tenn. Copper Co., 206 U.S. 230 (1907) (involving air
pollution in Georgia that was caused by the discharge of noxious gases from the
defendant’s plant in Tennessee).
7
As noted in fn. 4, supra, the Ninth Circuit held in Washington v. Trump that
the States had “third-party standing” to “assert the rights of the students, scholars
and faculty affected by the Executive Order.” 847 F.3d at 1160. Rather than invoke
the third-party standing doctrine, the Ninth Circuit could have relied upon the
9

Even where a state properly asserts a quasi-sovereign interest, an issue arises
whether it should be able to sue to protect its residents from the federal
government, because the federal government has a similar duty to protect those
same residents. In the past, Massachusetts v. Mellon, 262 U.S. 447 (1923) was
understood to have barred such suits: states could not sue the federal government
based on their parens patriae interests unless Congress waived the restriction. See
Maryland People’s Counsel v. FERC, 760 F.2d 318, 322 (D.C. Cir. 1985) (Scalia,
J.).
In Massachusetts v. EPA, 549 U.S. 497 (2007), however, the Court appears
to have lifted the bar to a state litigating against the federal government when a
quasi-sovereign interest is at stake. In doing so, the Court explained:
[T]here is a critical difference between allowing a State “to protect her
citizens from the operation of federal statutes” (which is what Mellon
prohibits) and allowing a State to assert its rights under federal law
(which it has standing to do). Massachusetts does not here dispute that
the Clean Air Act applies to its citizens; it rather seeks to assert its
rights under the Act.
Id. at 520 n.17. Commentators have noted that this footnote seems to confuse the
different interests a state might have—namely, it seems to focus on Massachusetts
asserting its own interests, for which there was traditionally no Mellon bar, not
those of its residents, for which there would have traditionally been a bar. The

States’ own quasi-sovereign interest in protecting its residents’ well-being and
freedom from discrimination.
10

Supreme Court, however, has not provided any further clarification on this point.
As a result, although Massachusetts v. EPA offered little explanation, it now
appears that a state can assert Article III standing based on a quasi-sovereign
interest of ensuring that its citizens are provided the benefits of federal law, such as
when the federal government acts or fails to act in a way that violates federal
statutory or constitutional law. See, e.g., Bradford Mank, Should States Have
Greater Standing Rights Than Ordinary Citizens?: Massachusetts v. EPA’s New
Standing Test for States, 49 WM. & MARY L. REV. 1701, 1769–74 (2008).
In this case, Hawaii has asserted harm to several quasi-sovereign interests.
For the purposes of our analysis, we focus on those suffered by the University of
Hawaii.
First, as the Ninth Circuit noted in considering the prior Executive Order, the
federal government’s actions have impacted the education of state residents
attending public universities. Washington, 847 F.3d at 1160–61; see also
Washington v. Trump, No. C17-0141JLR, 2017 WL 462040, at *2 (W.D. Wash.
Feb. 3, 2017). By restricting entry from the listed countries, the federal government
will block the state universities from attracting and retaining students and faculty
from these countries, thus diminishing and devaluing the learning environment that
is central to the mission of higher education. Supp. Dickson Decl. ¶¶ 5–9; see also
Grutter v. Gratz, 539 U.S. 306, 330 (2003) (“student body diversity promotes
11

learning outcomes, and better prepares students for an increasingly diverse
workforce and society”).
Second, these restrictions may affect University of Hawaii researchers’
ability to do important, sometimes life-saving research. Supp. Dickson Decl. ¶ 5.
Many researchers must travel to present their work at conferences. These venues
allow researchers to share knowledge quickly as well as to receive critical
feedback that moves their work forward. In addition, many researchers must travel
to sites where unique raw data or information is located, or to laboratories around
the globe to learn new techniques and processes. Hawaii hosts many such
conferences and is the home to many research collaboration laboratories and sites.
If researchers from the six impacted countries cannot travel to the University of
Hawaii to perform or share their work, the work of researchers at the University of
Hawaii will be negatively impacted. See, e.g., Henry Fountain, Science Will Suffer
Under Trump’s Travel Ban, Researchers Say, N.Y. TIMES (Jan. 30, 2017).
Once a state asserts a quasi-sovereign interest, the next issue is what further
showing is required to establish standing. Massachusetts sets forth the Court’s
most recent articulation of this standard. There, the Supreme Court analyzed the
quasi-sovereign interest under the three Lujan factors. The dissent pointed out,
however, that the Court’s analysis appeared to substantially “[r]elax[] Article III
standing requirements.” Massachusetts, 549 U.S. at 536–37 (Roberts, C.J.,
12

dissenting). Instead of a more rigid, traditional analysis of the Lujan factors, the
Court employed a less demanding version of the analysis: a “Lujan-lite” version.
Applying this standard, the Court held that Massachusetts had standing even
though its injury—the loss of coastal lands—would occur many years in the future,
and even though the relief sought by the parties was less than certain to
substantially remedy that harm. In so holding, the Court acknowledged that its
analysis was informed by the notion that states are entitled to “special solicitude”
when they assert quasi-sovereign interests. Id. at 520. 8
Because Massachusetts appears to have changed much with little
explanation, and because there has been little additional guidance from the Court,
the path for a state to assert quasi-sovereign interest standing is less clear than the
path to assert proprietary standing. Nevertheless, Massachusetts remains
controlling precedent: It removed the Mellon bar to a state bringing suit against the
federal government in its role as parens patriae, which means Hawaii may base its
standing to sue the federal government on its quasi-sovereign interests.
In fact, the quasi-sovereign interests asserted by Hawaii are stronger than
those invoked by the Commonwealth in Massachusetts. In that case, Massachusetts
relied on an injury to coastal lands many years in the future, a lengthy causal chain,
8

It is important to note that Massachusetts v. EPA limited its standing
analysis to territorial injuries. The Court in Massachusetts specifically noted, as
Snapp did, the “direct and important economic consequences” as part of the injury.
Massachusetts, 549 U.S. 521–22.
13

and unclear redressability in terms of solving the larger global problem of climate
change when the regulation impacted only greenhouse gas emissions from new
motor vehicles in the United States. Here, the injuries asserted by Hawaii—e.g., to
its students’ learning environment and to its academics ability to do their
research—are clear, are directly tied to the Executive Order, and would be
immediately remedied by restraining its enforcement.
IV.

CONCLUSION

Although amici offer no recommendation on the ultimate outcome of this
case, based on the analysis above, we would conclude that Hawaii has asserted
several proprietary and quasi-sovereign interests that would afford it standing to
pursue this action and a TRO.
DATED: Honolulu, Hawaiʿi, March 11, 2017.

______________________________
MARK S. DAVIS
MICHAEL K. LIVINGSTON
MATTHEW C. WINTER
LANE POWELL LLC
CLAIRE LOEBS DAVIS
Attorneys for
Amicus Curiae Law Professors

14