State of Hawaii v. Trump

Filing 191

REPLY to Response to Motion re 65 MOTION for Temporary Restraining Order filed by State of Hawaii. (Attachments: # 1 Certificate of Word Count, # 2 Certificate of Service)(Katyal, Neal)

DOUGLAS S. CHIN (Bar No. 6465)
Attorney General of the State of Hawai‘i
DEPARTMENT OF THE ATTORNEY
GENERAL, STATE OF HAWAI‘I
425 Queen Street
Honolulu, HI 96813
Telephone: [phone]
Fax: [phone]
Attorneys for Plaintiff, State of Hawai‘i

NEAL K. KATYAL*
HOGAN LOVELLS US LLP
555 Thirteenth Street NW
Washington, DC 20004
Telephone: [phone]
Fax: [phone]
*Admitted Pro Hac Vice
Attorneys for Plaintiffs, State of
Hawai‘i and Ismail Elshikh

(See Next Page For Additional Counsel)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI‘I

STATE OF HAWAI‘I and ISMAIL ELSHIKH,
Plaintiffs,
Civil Action No. 1:17-cv-00050DKW-KSC

v.

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;
U.S. DEPARTMENT OF STATE; REX
TILLERSON, in his official capacity as
Secretary of State; and the UNITED STATES
OF AMERICA,
Defendants.

REPLY IN SUPPORT OF
PLAINTIFFS’ MOTION FOR
TEMPORARY
RESTRAINING ORDER;
CERTIFICATE OF WORD
COUNT; CERTIFICATE OF
SERVICE

ADDITIONAL COUNSEL
CLYDE J. WADSWORTH (Bar No. 8495)
Solicitor General of the State of Hawai‘i
DEIRDRE MARIE-IHA (Bar No. 7923)
DONNA H. KALAMA (Bar No. 6051)
KIMBERLY T. GUIDRY (Bar No. 7813)
ROBERT T. NAKATSUJI (Bar No. 6743)
Deputy Attorneys General
DEPARTMENT OF THE ATTORNEY
GENERAL, STATE OF HAWAI‘I
425 Queen Street
Honolulu, HI 96813
Telephone: [phone]
Fax: [phone]
Email: [e-mail]
Attorneys for Plaintiff, State of Hawai‘i

COLLEEN ROH SINZDAK*
MITCHELL P. REICH*
ELIZABETH HAGERTY*
HOGAN LOVELLS US LLP
555 Thirteenth Street NW
Washington, DC 20004
Telephone: [phone]
Fax: [phone]
Email:
[e-mail]
THOMAS P. SCHMIDT*
HOGAN LOVELLS US LLP
875 Third Avenue
New York, NY 10022
Telephone: [phone]
Fax: [phone]
SARA SOLOW*
ALEXANDER B. BOWERMAN*
HOGAN LOVELLS US LLP
1835 Market St., 29th Floor
Philadelphia, PA 19103
Telephone: [phone]
Fax: [phone]
*Admitted Pro Hac Vice
Attorneys for Plaintiffs, State of
Hawai‘i and Ismail Elshikh

TABLE OF CONTENTS
INTRODUCTION ..................................................................................................1
ARGUMENT..........................................................................................................2
I.

Plaintiffs Have A High Likelihood of Success On The Merits. ................2
A. The Revised Order Violates the INA. ................................................3
1. The revised Order discriminates based on nationality. ................3
2. The revised Order exceeds the President’s authority.................10
B.
C.

II.

The Revised Order Violates Due Process.........................................14
The Revised Order Violates the Establishment Clause....................17

Plaintiffs Have Standing and Will Suffer Irreparable Harm....................21

III. The Balance of Equities Favors Emergency Relief. ................................24
IV. Facial, Nationwide Relief Is Appropriate. ...............................................25
CONCLUSION.....................................................................................................27

i

TABLE OF AUTHORITIES
Cases
Abourezk v. Reagan,
785 F.2d 1043 (D.C. Cir. 1986)..............................................................10, 13, 14
Alaska Airlines, Inc. v. Brock,
480 U.S. 678 (1987)............................................................................................26
Allende v. Shultz,
845 F.2d 1111 (1st Cir. 1988).................................................................10, 13, 14
Aziz v. Trump,
2017 WL 580855 (E.D. Va. Feb. 13, 2017) .................................................21, 26
Califano v. Yamaski,
442 U.S. 682 (1979)............................................................................................26
Chadha v. INS,
634 F.2d 408 (9th Cir. 1980) ............................................................................4, 5
Church of Lukumi Babalu Aye v. City of Hialeah,
508 U.S. 520 (1993)..........................................................................17, 18, 19, 20
Circuit City Stores, Inc. v. Adams,
532 U.S. 105 (2001)......................................................................................11, 12
City of Sausalito v. O’Neill,
386 F.3d 1186 (9th Cir. 2004) ............................................................................23
Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr.
Trades Council, 485 U.S. 568 (1988)...................................................................8
FDA v. Brown & Williamson Tobacco Corp.,
529 U.S. 120 (2000)..............................................................................................6
Gratz v. Bollinger,
539 U.S. 244 (2003)............................................................................................22
Gregory v. Ashcroft,
501 U.S. 452 (1991)............................................................................................16

ii

TABLE OF AUTHORITIES—Continued
Page(s)
Grutter v. Bollinger,
539 U.S. 306 (2003)............................................................................................16
Haitian Refugee Ctr. v. Civiletti,
503 F. Supp. 442 (S.D. Fla. 1980) ........................................................................4
Hamdan v. Rumsfeld,
548 U.S. 558 (2006)............................................................................................18
Judulang v. Holder,
565 U.S. 42 (2011)................................................................................................4
Kerry v. Din,
135 S. Ct. 2128 (2015)............................................................................10, 16, 17
Kleindienst v. Mandel,
408 U.S. 753 (1972)................................................................................16, 17, 20
Legal Assistance for Vietnamese Asylum Seekers v. Dep’t of State,
45 F.3d 469 (D.C. Cir. 1995)......................................................................7, 9, 10
McCreary County v. ACLU,
545 U.S. 844 (2005)......................................................................................17, 18
Maine v. Taylor,
477 U.S. 131 (1986)............................................................................................16
Meachum v. Fano,
427 U.S. 215 (1976)............................................................................................15
Medellín v. Texas,
552 U.S. 491 (2008)..........................................................................................7, 8
Melendres v. Arpaio,
695 F.3d 990 (9th Cir. 2012) ..............................................................................24
Narenji v. Civiletti,
617 F.2d 745 (D.C. Cir. 1979)..............................................................................7

iii

TABLE OF AUTHORITIES—Continued
Page(s)
Neal v. Shimoda,
131 F.3d 818 (9th Cir. 1997) ..............................................................................22
Oklevueha Native Am. Church of Hawaii, Inc. v. Holder,
676 F.3d 829 (9th Cir. 2012) ..............................................................................22
Olsen v. Albright,
990 F. Supp. 31 (D.D.C. 1997).........................................................................4, 5
Preminger v. Peake,
552 F.3d 757 (9th Cir. 2008) ..............................................................................23
Rajah v. Mukasey,
544 F.3d 427 (2d Cir. 2008) .................................................................................7
Republic of Iraq v. Beaty,
556 U.S. 848 (2009)............................................................................................11
Sale v. Haitian Centers Council, Inc.,
509 U.S. 155 (1993)..............................................................................................7
Santa Fe Indep. School Dist. v. Doe,
530 U.S. 290 (2000)............................................................................................25
Scialabba v. Cuellar De Osorio,
134 S. Ct. 2191 (2014)..........................................................................................4
Sierra Club v. Bosworth,
510 F.3d 1016 (9th Cir. 2007) ............................................................................24
Spector v. Norwegian Cruise Line Ltd.,
545 U.S. 119 (2005)..............................................................................................5
Texas v. United States,
809 F.3d 134 (5th Cir. 2015) ........................................................................24, 26
United States v. Fausto,
484 U.S. 439 (1988)..............................................................................................6

iv

TABLE OF AUTHORITIES—Continued
Page(s)
United States v. Lopez,
514 U.S. 549 (1995)............................................................................................25
United States v. Wenner,
351 F.3d 969 (9th Cir. 2003) ........................................................................11, 12
W. Virginia State Bd. of Educ. v. Barnette,
319 U.S. 624 (1943)............................................................................................21
Washington v. Trump,
847 F.3d 1151 (9th Cir. 2017) .....................................................................passim
Statutes
8 U.S.C. § 1152 ..................................................................................................3, 6, 9
8 U.S.C. § 1153 ........................................................................................................ 10
8 U.S.C. § 1182 .................................................................................................passim
50 U.S.C. § 21 ............................................................................................................ 9
Other Authorities
138 Cong. Rec. 8071 (1992) ......................................................................................5
13B Charles A. Wright et al., Federal Practice & Procedure
§ 3531.11.1 (3d ed. 2008) ................................................................................... 24
H.R. Rep. No. 89-745 (1965).....................................................................................5
9 Trelles & Bailey, Immigration Nationality Acts, Legislative
Histories and Related Documents 1950–1978, Doc. 66, at 2 (1979)...................5

v

INTRODUCTION
The Government has a daunting task in this case: It must defend an Order
that the Executive itself says is a clone of the prior unlawful Order but for a few
“purely technical” changes. Faced with that steep climb, the Government
embraces two tactics. Each is fruitless.
First, the Government trots out a bevy of legal theories on which Supreme
Court and appellate precedent—including the Ninth Circuit’s recent decision in
Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017)—squarely slam the door. It
says, for example, that Hawaii’s harms are too “speculative” for standing, but it
fails to mention that the Ninth Circuit rejected an identical argument last month.
The Government says Dr. Elshikh’s claims are not ripe because his mother-in-law
could seek a waiver for entry, but it fails to mention it told the Ninth Circuit the
opposite last month. The Government says there can be no due-process claim
because the Order categorically bars entry from certain countries, but it fails to
mention that Washington rejected that argument too. And on and on. The
Government’s claims, in short, do not bear scrutiny. Some may sound plausible,
but all fall apart to the touch.
Second, the Government doubles down on the disturbing approach it
attempted in the Washington case: It once again claims an unreviewable authority
with respect to immigration and national security. But the Ninth Circuit

1

resoundingly rejected this assertion of unbridled power. This Court should do so
again. The Judiciary, after all, has the power to say what the law is. And nowhere
is that more important than in a situation like this, where another branch seeks to
override the protections for religious freedom and diversity that form the core of
our Constitution and our Nation.
In the end, much ink has been spilled but the situation is simple: The Court
is faced with an Order that—in the words of the President and his advisers—“has
the same basic policy outcome” as the original Order and was tweaked to “avoid
* * * litigation.” That original Order was a travesty; it flew in the face of this
Nation’s most basic values. That is exactly why the Ninth Circuit enjoined it.
Nothing has changed. The Court should enjoin this version too. An injunction
will merely return the Nation to a status quo that has existed for decades while the
Court fully adjudicates this issue.
ARGUMENT
I.

Plaintiffs Have A High Likelihood of Success On The Merits.
The Government misreads both the immigration statutes and Plaintiffs’

brief. Far from “implicitly recogniz[ing]” that constitutional challenges have been
“foreclose[d] by “the changes to the Order,” (Opp. 2), Plaintiffs explained the
doctrine of constitutional avoidance required deciding the weighty statutory

2

challenges first. But under either the Immigration and Nationality Act (“INA”) or
the Constitution, the Order is unlawful.
A.

The Revised Order Violates the INA.
1.

The revised Order discriminates based on nationality.

The President’s new Order flatly violates the INA’s longstanding prohibition
on nationality-based discrimination. The Government’s only defense is that the
President is somehow exempt from that limit; but no court has ever accepted that
contention, no prior President has acted on it, and basic principles of statutory
construction refute it.
i.

Section 1152(a)(1)(A) provides that “no person shall * * * be

discriminated against in the issuance of an immigrant visa because of the person’s
* * * nationality.” 8 U.S.C. § 1152(a)(1)(A). The Order provides that “nationals of
* * * six countries” are presumptively ineligible for immigrant visas. Order § 2(c).
If that is not “discriminat[ion] * * * because of * * * nationality,” nothing is.
The Government effectively concedes as much. It makes an abortive
suggestion that the Order might be about “the procedures for the processing of
immigrant visa applications.” Opp. 27. But the Order is not about procedure. It
“suspend[s]” the issuance of visas or other immigration benefits to tens of millions
of individuals. Order § 2(c). That is a substantive change.

3

ii.

The Order also unlawfully discriminates on the basis of nationality in

granting non-immigrant visas. For five decades, courts have held that Congress
made nationality as well as race an “impermissible basis” for any admission or
deportation decision. Chadha v. INS, 634 F.2d 408, 429 (9th Cir. 1980), aff’d, 462
U.S. 919 (1983) (quoting Wong Wing Hang v. INS, 360 F.2d 715, 719 (2d Cir.
1966)); see Haitian Refugee Ctr. v. Civiletti, 503 F. Supp. 442, 453 (S.D. Fla.
1980). Indeed, in Olsen v. Albright, 990 F. Supp. 31 (D.D.C. 1997), the
Government conceded that it is not “permitted to engage in discrimination on the
basis of race, ethnicity, or nationality” in issuing “nonimmigrant visas.” Id. at 3738.
Abandoning its longstanding approach, the Government now claims (at 2627) that it is free to discriminate when issuing nonimmigrant visas. That cannot
be. When exercising its discretion under the immigration laws, the Government
must rely on factors “relevant” to the alien’s “fitness to reside in this country.”
Judulang v. Holder, 565 U.S. 42, 53 (2011). To determine what Congress deems
relevant, courts look to the “purposes of the immigration laws” and “the
appropriate operation of the immigration system.” Id. at 55; see Scialabba v.
Cuellar De Osorio, 134 S. Ct. 2191, 2212-13 (2014) (plurality op.).
“Congress could not have intended” an alien’s membership in a particular
“race or group” “relevant” to his fitness to reside in the United States. Chadha,

4

634 F.2d at 429. The 1965 Immigration Act reflects the determination that such
considerations are irrelevant. See Olsen, 990 F. Supp. at 37. President Kennedy
urged Congress to dismantle the national origins system because “discriminat[ing]”
in admission “on the basis of accident of birth” was “without basis in either logic
or reason.” 9 Trelles & Bailey, Immigration Nationality Acts, Legislative Histories
and Related Documents 1950–1978, Doc. 66, at 2 (1979). Congress concurred.
Br. of NAPABA 13-18 (Dkt. 140-1).
Congress reaffirmed that intention 27 years later in the International
Covenant on Civil and Political Rights (“ICCPR”). 138 Cong. Rec. 8071 (1992).
That treaty prohibits drawing “distinction[s]” on the basis of “national or social
origin.” ICCPR art 2.1. And according to the treaty’s authoritative exponent, that
requirement demands “nondiscrimination” with respect to “alien[s] [seeking] to
enter or reside in the territory of a State party.” U.N. Human Rights Comm.,
CCPR General Comment No. 15 ¶ 5 (1986); see Br. of International Law Scholars
6-9 (Dkt. 119). Courts must presume that Congress did not intend to authorize the
Executive to violate this international obligation. See Spector v. Norwegian Cruise
Line Ltd., 545 U.S. 119, 144 (2005).
iii.

Faced with the INA’s clear prohibitions on nationality discrimination,

the Government contends that Congress exempted the President from those bans

5

when it enacted sections 1182(f) and 1185(a)(1). This argument finds no footing
in the statute’s text, history, or context.
First, every applicable principle of textual interpretation refutes the
Government. Congress’s prohibition on nationality discrimination is later-in-time
than sections 1182(f) and 1185(a)(1), both of which were enacted in their present
form in 1952. Section 1152(a)(1)(A) is manifestly more specific than those highly
general provisions, and it exempts four specific subsections from its reach,
strongly indicating that no other exceptions were intended. Mem. 28.
The only textual argument the Government can muster is that “narrowing”
the President’s authority to engage in discrimination would effect an “implied
repeal.” Opp. 31. But sections 1182(f) and 1185(a) do not state that the President
may discriminate on the basis of nationality. At most, they might have implied that
the President had that authority prior to 1965. But as Justice Scalia explained, a
statute “does not stand repealed” merely because its “implications * * * [are]
altered by the implications of a later statute”; that is simply a part of the “classic
judicial task of reconciling many laws enacted over time, and getting them to
‘make sense’ in combination.” United States v. Fausto, 484 U.S. 439, 453 (1988);
see FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000) (“[T]he
meaning of one statute may be affected by other Acts, particularly where Congress
has spoken subsequently and more specifically to the topic at hand.”).

6

Second, the Government contends that prior Presidents have engaged in
nationality-based discrimination when making entry decisions. Opp. 28-30. Even
if true, that would be irrelevant; “past practice does not, by itself, create power.”
Medellín v. Texas, 552 U.S. 491, 532 (2008). But it is not true. Nearly all of the
examples the Government cites involve mere administrative restrictions imposed
on aliens after they had been admitted to the country. See, e.g., Narenji v. Civiletti,
617 F.2d 745, 746 (D.C. Cir. 1979) (reporting requirements for Iranian students);
Rajah v. Mukasey, 544 F.3d 427, 433-435 (2d Cir. 2008) (registration program for
resident aliens). As the D.C. Circuit has explained, these regulations do not
contravene Congress’s clear prohibition on using nationality to exclude aliens from
the United States altogether. See Legal Assistance for Vietnamese Asylum Seekers
v. Dep’t of State, 45 F.3d 469, 473 (D.C. Cir. 1995), vacated on other grounds, 519
U.S. 1 (1996). Likewise, in Sale v. Haitian Centers Council, Inc., 509 U.S. 155
(1993), the Court approved an order by President Reagan that did not make any
distinction based on nationality at all. See id. at 160 (prohibiting any unlawful
entry by sea). And the series of orders the Government cites (at 28) involved
restrictions on entry by members of foreign governments; none drew distinctions
based merely on a person’s nationality.
The only arguable example the Government can find is a 1986 order
regarding Cuba. Opp. 28. That order, however, had a unique legal basis: It

7

enforced an immigration agreement that Cuba had violated. Proc. 5517 (1986); see
Immigration Joint Communique, U.S.-Cuba, Dec. 14, 1984, T.I.A.S. No. 11,057,
1984 WL 161941. As the Supreme Court has recognized, the Constitution vests
the President with “an array of political and diplomatic means * * * to enforce
international obligations” that he does not otherwise possess under “domestic law.”
Medellín, 552 U.S. at 525. Even assuming that the 1986 order was lawful—and no
court ever said it was—no international agreement even arguably gives the
President the same power here.
Finally, the Government claims that prohibiting the President from
discriminating on the basis of nationality would raise “constitutional questions” by
affecting “the President’s ability to conduct the Nation’s foreign affairs and protect
its security.” Opp. 29-30. The Government fails to cite any case or constitutional
provision to substantiate this concern. That is fatal to its argument: A
constitutional problem must be “serious” to justify deviating from a statute’s most
natural reading, Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr.
Trades Council, 485 U.S. 568, 575 (1988), and vague allusion to foreign affairs
and national security cannot satisfy that burden.
In any event, reading the immigration laws as written would not disable the
President from protecting the country in a grave exigency. Section 1182 permits
the President to exclude potentially hostile aliens on numerous grounds other than

8

nationality—because they support a foreign adversary, for instance, or are
members of a terrorist organization. See, e.g., 8 U.S.C. § 1182(a)(3)(B)-(D).
Other statutes go further, and give the President authority to regulate and remove
“citizens * * * of [a] hostile nation or government” during a “declared war” or
where “any invasion or predatory incursion is perpetrated, attempted, or
threatened.” 50 U.S.C. § 21. As the D.C. Circuit has recognized, section
1152(a)(1)(A) itself may authorize nationality-based classifications where the
circumstances are “most compelling—perhaps a national emergency.” See Legal
Assistance, 45 F.3d at 473.
The Government, however, has not claimed—nor could it credibly claim—
that any such exigency exists here. The President abandoned any defense of his
original Order, waited more than a month to issue this new version, delayed release
an additional five days to avoid stepping on a favorable news cycle, and halted
implementation ten days after that. See Mem. 10-11; Order § 14. The Government
has pointed to no recent changed circumstances that compelled the Order’s
issuance, and concedes that the President adopted the Order in response to “[t]he
same concerns” that motivated Congress to make statutory amendments two years
ago, U.S. Supp’l Br. 37, Washington, No. 17-35105 (9th Cir. Feb. 16, 2017), ECF
No. 154; see Br. of T.A. 21, Ex. 5 (Dkt. 169-1) (“T.A. Br.”).

9

There is nothing, then, that might exempt the President from the normal
operation of the immigration laws. Those laws “unambiguously direct[] that no
nationality-based discrimination shall occur.” Legal Assistance, 45 F.3d at 473.
2.

The revised Order exceeds the President’s authority.

The revised Executive Order is also unlawful because it violates the
restrictions Congress imposed on excluding aliens on terrorism-related grounds. In
8 U.S.C. § 1153(a)(3)(B)(i), Congress “established specific criteria” that must be
satisfied before aliens may be excluded as terrorists. Kerry v. Din, 135 S. Ct.
2128, 2140 (2015) (Kennedy, J., concurring in the judgment). The Order ignores
them all, and deems millions of aliens inadmissible as potential “foreign terrorists”
for reasons Congress nowhere authorized. Order § 2(c). The President cannot
circumvent or “swallow[]” the rules set by Congress in this way. Abourezk v.
Reagan, 785 F.2d 1043, 1056 (D.C. Cir. 1986) (Ginsburg, J.); see Allende v.
Shultz, 845 F.2d 1111, 1118 (1st Cir. 1988) (Bownes, J., joined by Breyer, J.)
(same).
i.

The Government insists (at 34) that section 1182(f) must be read

literally to authorize the President to exclude “any class of aliens” the President
chooses—even a class that guts the limits Congress imposed. That reading makes
no sense. Section 1182(a) provides a detailed list of the “[c]lasses of aliens”
Congress thought it detrimental for the President to admit. 8 U.S.C. § 1182(a). At

10

the end of that list, Congress included a catchall authorizing the President to
identify “classes of aliens” whose entry he “finds * * * detrimental to the interests
of the United States.” Id. § 1182(f). By far the most natural reading of this
provision is that it enables the President to add new classes Congress failed to
identify—war criminals, say, or violators of U.S. sanctions. See Mem. 34.
Congress did not bury in this residual subsection an authority for the President to
wipe away the carefully calibrated restrictions it elsewhere imposed.
This reading comports with precedent and common sense. The Supreme
Court has repeatedly instructed that where a catchall provision follows a list of
specific authorities, it should be interpreted to supplement, not override, the limits
in the preceding list. See Republic of Iraq v. Beaty, 556 U.S. 848, 860 (2009) (“a
generally phrased residual clause * * * serves as a catchall for matters not
specifically contemplated—known unknowns” (emphasis added)); Circuit City
Stores, Inc. v. Adams, 532 U.S. 105, 114 (2001) (reading “residual clause” so that
it does not “subsume[]” the “specific categories which precede[] it”). The Ninth
Circuit has done the same. See United States v. Wenner, 351 F.3d 969, 974 (9th
Cir. 2003) (declining to read “catchall” in a way that “renders the limitation on [a
prior] classification * * * superfluous”).
ii.

The Government caricatures this commonsense principle of statutory

interpretation by claiming that it means that the President may not use section

11

1182(f) to “touch[] a topic already addressed in Section 1182(a).” Opp. 34. That
is a straw man. The President is free to use section 1182(f) to exclude classes of
aliens that present the same “general concern” as classes enumerated in section
1182(a). Id. That is what Presidents have done for decades—excluding aliens who
are already subject to a bar on entry under section 1182(a), see, e.g., Proc. 4865
(1981) (suspending entry of undocumented aliens), or who present concerns
similar to such a class, compare, e.g., 8 U.S.C. § 1182(a)(3)(E)(ii) (excluding
aliens who “participated in genocide”), with Proc. 8697, § 1(b) (2011) (excluding
aliens who engaged in other “serious violations of human rights”). By excluding
these aliens, the President does not “subsume[]” any category Congress
established, Adams, 532 U.S. at 114, or “render * * * superfluous” any of the limits
it imposed, Wenner, 351 F.3d at 974.
What the President has done here is different. In section 1182(a)(3)(B),
Congress set a specific burden of proof that must be satisfied before an alien is
excluded as a potential terrorist: Among other things, there must be “reasonable
ground to believe” that that alien “is likely to engage after entry in any terrorist
activity.” 8 U.S.C. § 1182(a)(3)(B)(i)(II). The President, however, has concluded
that aliens present an unacceptable risk of terrorism merely if they are “[n]ationals
from * * * countries” that “present heightened threats.” Order § 1(a), (d). The
President has not simply addressed the same “general concern” as the terrorism

12

bar. He has obviated that provision’s criteria for excluding potential terrorists and
replaced them with his own. There is no precedent for that practice, and Congress
could not have intended to authorize it.
iii.

The Government claims (at 32-33) that Abourezk and Allende support

the President’s attempt to circumvent the terrorism bar in this manner. No. In
each of these cases, the courts held that the President could not use section
1182(a)(27)—a provision that permitted the exclusion of aliens who might “engage
in activities * * * prejudicial to the public interest”—to bar all members of a
Communist party from the United States; that interpretation, the courts explained,
would impermissibly allow “the Executive * * * to evade” the specific limits
Congress set in section 1182(a)(28), Abourezk, 785 F.2d at 1056-57, and “render
[them] duplicative,” Allende, 845 F.2d at 1118.
Seeking to avoid this clear repudiation of what it seeks to do here, the
Government claims that Abourezk and Allende elsewhere “made clear” that section
1182(a)(28) “did not prevent the President from achieving the same result using
Section 1182(f)’s ‘sweeping proclamation power.’” Opp. 33. It would be more
than passing strange if those courts held that the Executive may not take action
under 1182(a) that renders congressional restrictions “superfluous,” Abourezk, 785
F.2d at 1053, while stating in dicta that 1882(f) could be used for exactly that
purpose. And in fact, they did not. The Abourezk court observed that 1182(f)

13

could be used to exclude a “class [of aliens] that is not covered by one of the
categories in section 1182(a).” 785 F.2d at 1049 n.2 (emphasis added). Thus, the
court hypothesized that the Executive could use 1182(f) to exclude a category not
restricted in 1182(a) (Cuban government officials) even if it overlapped with a
class of aliens (members of the Communist party) that the Executive could not
categorically exclude. Id. The new category would not “nullify” Congress’s
restrictions on Executive power by barring the entry of aliens based purely on their
communist affiliation. Allende is to the same effect. 845 F.2d at 1118 &
n.13. The same cannot be said for the Order, which directly overrides Congress’s
instructions as to when an alien may be excluded based on the threat of terrorism.
B.

The Revised Order Violates Due Process.

The Ninth Circuit upheld the injunction of the previous Executive Order
because its due process flaws were obvious. The flaws are still present, and the
Government’s main tactic is to ignore the binding precedent.
First, the Government asserts (at 37) that Plaintiffs do not challenge the
deprivation of due process for non-citizens. But Plaintiffs explicitly asserted the
Due Process rights of refugees for the simple reason that the Ninth Circuit held that
a State has a “viable due process claim[]” with respect to these persons. Mem. 32
(quoting Washington, 847 F.3d at 1166). The Government posits that the Court’s

14

statements with respect to “refugees” refer only to asylum seekers, but the Ninth
Circuit announced no such qualification.
Next, the Government attempts (at 38) to dispute the viability of due process
claims asserted by “those in the United States regarding the entry of others.” That
position is directly refuted by the Ninth Circuit. 847 F.3d at 1166 (“U.S. residents
and institutions” have “viable claims based on * * * due process rights.”).
Equally unavailing is the Government’s argument (at 39) that the Order
already provides all of the process that is due because individualized hearings
would be futile or because the Order authorizes case-by-case waivers. But these
arguments would mean that the prior Order—which also announced a categorical
rule and included a waiver provision—was constitutional, a result contrary to
Ninth Circuit precedent. Adding more examples to the Order’s discretionary
waiver provision cannot alter its constitutionality.
In any event, the Government misses the point. Plaintiffs do not claim that
Due Process requires “individualized hearings” where non-citizens can be told that
the Order bars their entrance. Their claim is far more fundamental than that: “The
touchstone of due process is protection of the individual against arbitrary action of
government.” Meachum v. Fano, 427 U.S. 215, 226 (1976). It is the height of
arbitrariness to deprive an individual or an institution of a protected interest based

15

on a rationale that is neither “legitimate” nor “bona fide.” Din, 135 S. Ct. at 2140
(Kennedy, J., concurring in the judgment).
Thus, Din made clear that in the immigration context, the Due Process
inquiry begins and often ends with the question “whether the Government ha[s]
provided a facially legitimate and bona fide” reason for denying a visa application.
Id. An “affirmative showing of bad faith” allows a court to “look behind” the
asserted rationale to determine whether the applicant has been denied an interest
based on an arbitrary or improper motive. Id. at 2141; see Kleindienst v. Mandel,
408 U.S. 753 (1972).
The Order flunks that test. Each Plaintiff is a “U.S. resident[]” or
“institution[]” whose rights are impermissibly affected by the Order’s exclusion of
non-citizens. 847 F.3d at 1166. Dr. Elshikh has a liberty interest in reuniting with
his mother-in-law. Din, 135 S. Ct. at 2139. State universities have a “compelling”
interest in “student body diversity” that is “grounded in the First Amendment.”
Grutter v. Bollinger, 539 U.S. 306, 329 (2003). The State has a sovereign interest,
rooted in the Tenth Amendment, “in the continued enforceability of its own
statutes” promoting diversity and equality. Maine v. Taylor, 477 U.S. 131, 137
(1986).1 The Order’s categorical exclusion of non-citizens from designated

1

To be sure, Congress may infringe on a State’s sovereign interests by
passing laws that exclude certain classes of immigrants. But basic principles of
16

countries burdens these interests; Plaintiffs have made an “affirmative showing of
bad faith”; and there is ample evidence that the asserted basis for the exclusion is
not “legitimate and bona fide.” Mem. 43-49.
The Government argues (at 39) that there is nonetheless no Due Process
violation because its illegitimate rationale is asserted on a “categorical” basis.
Again, that gets the Ninth Circuit’s holding backwards. The Court of Appeals
explained that judicial review should be more stringent in this context than in
Mandel and Din because those cases involved “the application of a specifically
enumerated congressional policy to particular facts” while this case involves “the
President’s promulgation of sweeping immigration policy.” 847 F.3d at 1162-63.
If the Order cannot survive the Din test that applies to an exclusion of a single
alien, it certainly cannot survive any more rigorous test that applies to the irrational
exclusion of thousands of non-citizens.
C.

The Revised Order Violates the Establishment Clause.

The Government’s Establishment Clause defense also blinkers reality. The
Government acknowledges—as it must—that the inquiry is governed by McCreary
County v. ACLU, 545 U.S. 844 (2005), and Church of Lukumi Babalu Aye v. City
of Hialeah, 508 U.S. 520 (1993). But the Government contends that, under these

federalism discourage a finding of preemption unless Congress’s intentions are
clear. See Gregory v. Ashcroft, 501 U.S. 452, 461 (1991).
17

cases, the purpose of a policy should be determined by considering its text,
operation, and effects, without reference to other extrinsic evidence. That is
wrong.
The Lukumi Court looked not only to the text and operation of the
challenged ordinances, but also to a wide swathe of extrinsic evidence of purpose.
508 U.S. at 542-543. That included the “historical background of the decision
* * *, the specific series of events leading to the enactment[s],” “contemporaneous
statements made by members of the decisionmaking body,” and even the positive
reactions of the public to the decisionmakers’ religious attacks. Id.; see also
McCreary, 545 U.S. at 862.
And, contrary to the Government’s fallback position (at 43-46), neither case
placed limits on the kind of extrinsic evidence that could be used. Rather,
McCreary emphasized that courts may not “ignore perfectly probative evidence”
of an improper religious motive. 545 U.S. at 865, 866. Nor does Hamdan v.
Rumsfeld, 548 U.S. 558, 624 (2006) suggest any limitation; it remarked only that
self-serving press statements could not justify an unlawful presidential action.
Indeed, in the Establishment Clause context, any form of public pronouncement is
particularly salient because the Clause prevents a “divisive announcement that in
itself amounts to taking religious sides.” McCreary, 545 U.S. at 863.

18

In any event, the President’s statements since taking office are more than
enough to reveal his improper purpose. See Mem. 5, 10; Br. of MacArthur Justice
Center 27-28 (Dkt. 114-3) (“MacArthur Br.”). To take just one example, the
President has repeatedly indicated that he has met 100% of his campaign
promises,2 all while maintaining the campaign website featuring his promise to
enact a Muslim ban, Press Release, Donald J. Trump Statement on Preventing
Muslim Immigration (Dec. 7, 2015), https://goo.gl/D3OdJJ.
And even if one (improperly) disregards this highly probative evidence of
purpose, the Government’s purported secular purpose is still revealed as a sham.
The Government refers repeatedly to a letter from the Attorney General and the
Secretary of DHS, but that letter is dated March 6, the very day the revised Order
was announced, and purports to propose the policy embodied in the Order, as if it
is a new idea sprung straight from the heads of the Cabinet Officers. It is hard to
imagine clearer evidence of pretext.
The Government also points to the face of the Order. But the policy covers
only Muslim-majority countries, and uses terms negatively associated with Islam,
such as “honor killings,” and “violent ideologies.” Order § 1. As the many amici
before this Court explain, such loaded terms suggests an improper purpose.
Lukumi, 508 U.S. at 534. Looking at the Order’s operation is equally unavailing:
2 E.g. Tara Golshan, Full transcript: President Trump’s CPAC speech, Vox
(Feb. 24, 2017, 11:47 ET), https://goo.gl/9RfYYV.
19

It reveals a gross mismatch between the Order’s ostensible purpose and its
implementation and effects. See id. at 540 (“overbroad” and “underinclusive”
orders suggest improper purpose). For example, the Order’s focus on nationality
alone means that it bars entry by a Syrian national who has lived in Switzerland for
decades, but not a Swiss national who has immigrated to Syria during its civil war.
See T.A. Br. 19-21.
The Government defends these and other telling choices (at 42) by asserting
that the policy cannot suggest religious animus because the designated countries
represent only a fraction of Muslim-majority nations world-wide. By that logic,
the President could repeatedly express a desire to ban Jews, enact a policy barring
immigration from Israel, and then defend it by pointing out that there are many
Jews residing elsewhere.
More broadly, the Government asserts (at 42-43) that, under Mandel, this
court cannot look behind the government’s assertion of a “facially legitimate and
bona fide” national security rationale. But the Ninth Circuit explicitly rejected the
contention that Mandel limits review in this manner. Washington, 847 F.3d at
1166. There is more than ample evidence of pretext and bad faith regardless;
and—as another district court observed—concerns over judicial interference with
national security do not apply when the Government makes it more than clear that
the national security interest is simply a post-hoc rationalization for religious

20

discrimination. Aziz v. Trump, 2017 WL 580855, at *8 (E.D. Va. Feb. 13, 2017).
Allowing the President to evade an Establishment Clause challenge through hollow
appeals to nationality security will only invite further abuses. See MacArthur Br.
11-16.
That the Order does not impose restrictions on American citizens directly is
of no moment. There are two religion clauses in the First Amendment because
religious freedom depends both on the right to exercise one’s faith and the
certainty that the Government will not disfavor that faith or favor another. Without
the latter condition, citizens may be coerced to abandon the exercise of their
chosen religion, even if they cannot be commanded to do so. As Justice Jackson
observed at the height of World War II, “[t]hose who begin coercive elimination of
dissent soon find themselves exterminating dissenters. * * * The First Amendment
to our Constitution was designed to avoid these ends by avoiding these
beginnings.” W. Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 640–42
(1943).
II.

Plaintiffs Have Standing and Will Suffer Irreparable Harm.
Despite assuring the Ninth Circuit that “a U.S. citizen with a connection to

someone seeking entry” would have “a route to make a constitutional challenge,”
Oral Arg. 24:28-24:47, Washington, No. 17-35105 (9th Cir. Feb. 7, 2017), ECF
No. 124, the Government—now presented with that very case—attempts to bar the

21

courthouse doors to Dr. Elshikh. And the Government insinuates (at 18-21) that
Hawai‘i relies on injuries to “others,” ignoring that Hawaii is asserting injuries to
its own proprietary, sovereign, and quasi-sovereign interests. These arguments
fail.
The Government’s principal challenge rehashes an argument the Ninth
Circuit rejected: that the harms to Hawaii’s universities are too “speculative” to
support standing because the State has not identified “any particular person” who
will be denied entry by the Order. Binding precedent forecloses this claim. 847
F.3d at 1161.
The Government also repeatedly claims that Plaintiffs will not suffer
immediate injury because it is possible that individuals blocked by the Order may
obtain a waiver. That is wrong. “[T]he denial of equal treatment resulting from
the imposition of the barrier” itself constitutes an injury in fact, even if it does not
result in “ultimate inability to obtain the benefit.” Gratz v. Bollinger, 539 U.S. 244
(2003). Injury occurs the moment the Order goes into effect. Oklevueha Native
Am. Church of Hawaii, Inc. v. Holder, 676 F.3d 829, 838 (9th Cir. 2012) (“[W]e
are unpersuaded by the Government’s assertion that Plaintiffs’ request for
prospective relief is unripe because Plaintiffs did not request an exception”); Neal
v. Shimoda, 131 F.3d 818, 825 n.4 (9th Cir. 1997) (similar).

22

The Declarations before this Court show a harm to Hawai‘i and Dr. Elshikh
now. See Supp. Dec. of R. Dickson ¶¶ 7-8 (Dkt. 66-6) (“Dickson”); Dec. of
Elshikh ¶¶ 3-6 (Dkt. 66-1). There is nothing speculative about it. The
“University’s ability to recruit and enroll students and graduate students” and its
ability to “recruit and hire visiting faculty” is being “constrained” currently.
Dickson ¶ 7. Indeed, in two days the medical “match” program will begin, and
hiring season for faculty will soon commence. Br. of Illinois et al. 6, 14 (Dkt. 1543) (“Illinois Br.”). A University of Hawai‘i program in which the State has
invested resources is being thwarted from “further growth.” Dickson ¶ 8. And the
Order will “preclude[e]” potential students, scholars and faculty members from
even “considering” applying to the University, another immediate harm. Id.
Finally, the Government offers no response at all to Plaintiffs’ contention
that the Order’s unconstitutional establishment of religion confers standing and
inflicts irreparable harm. Mem. 46.
The Government’s remaining challenges are unpersuasive. The Government
argues that the new Order might inflict less injury to its tourism industry and tax
revenues because it is “narrower in scope.” Opp. 17. But the size of the harms is
irrelevant. Preminger v. Peake, 552 F.3d 757, 763 (9th Cir. 2008) (even “an
identifiable trifle is enough for standing”). And these economic harms are
immediate. Compl. ¶¶ 100-102; Supp. Dec. of G. Szigeti ¶¶ 5-8 (Dkt. 66-2);

23

Illinois Br. 2, 16; see also City of Sausalito v. O’Neill, 386 F.3d 1186, 1198-99
(9th Cir. 2004) (threatened harm to a locality’s “tourism industry” caused by
federal executive action was an “Article III injury”). The Government (at 18) also
belittles the harms to the State’s sovereignty as “intangible” and “amorphous
assertions about [Hawaii’s] values.” But Courts have had “no difficulty in
recognizing” state standing “to protect [its] * * * sovereign interests” in suits
challenging federal laws or policies. 13B Charles A. Wright et al., Federal
Practice & Procedure § 3531.11.1 & n.5 (3d ed. 2008); Texas v. United States,
809 F.3d 134, 153 (5th Cir. 2015). And even a day of delay in a student’s visa, or
her present fear that once here she will be landlocked, can impose harm.
III.

The Balance of Equities Favors Emergency Relief.
The balance of equities and the public interest also support granting

Plaintiffs their requested emergency relief. The Government cannot credibly claim
there is an urgent need to implement the Order given its own repeated delays. See
supra at 9. Moreover, issuing an injunction will merely preserve the status quo
that has existed for decades. Mem. 50. The Government tries to equate its
litigating position with the public interest, Opp. 49, but that contention fails given
Plaintiffs’ likelihood of success on the merits. See Melendres v. Arpaio, 695 F.3d
990, 1002 (9th Cir. 2012) (“[I]t is always in the public interest to prevent the
violation of a party’s constitutional rights”). The Government also asks for “the

24

greatest possible degree of judicial deference” towards its “[p]redictive judgment”
that the Executive Order will promote the public interest by enhancing the nation’s
security. Opp. 50. But the Ninth Circuit has already rejected that argument.
Washington, 847 F.3d at 1168.
IV.

Facial, Nationwide Relief Is Appropriate.
The Government argues that facial relief is inappropriate because the Order

is valid as applied to some people. Opp. 52. That is not true; every application of
the Order is rendered invalid because it exceeds the limits in the INA and is
motivated by anti-Muslim animus. Mem. 50. Moreover, the Ninth Circuit has
facially invalidated administrative actions “on many occasions” without
demanding a showing that “no set of circumstances exists under which the
regulation would be valid.” Sierra Club v. Bosworth, 510 F.3d 1016, 1023-24 (9th
Cir. 2007). Even if the Order might be lawful in a particular case, it must be
invalidated in its entirety if it fails to set forth elements or limitations the law
requires. See United States v. Lopez, 514 U.S. 549, 561 (1995) (facially
invalidating a statute because it “contain[ed] no jurisdictional element which
would ensure, through case-by-case inquiry, that” each application complied with
the Constitution). Likewise, the “mere passage * * * of a policy that has the
purpose and perception of government establishment of religion” warrants facial
relief. Santa Fe Indep. School Dist. v. Doe, 530 U.S. 290, 313-314 (2000).

25

That is particularly true here, where there is no sensible way for Plaintiffs to
challenge or the Court to enjoin applications of the Order piecemeal. It is
impossible for Hawai‘i to identify precisely which individuals may wish to travel
to the State or enroll in its universities, and bring as-applied challenges solely on
their behalf. Moreover, exempting from the Order only some individuals seeking
some types of visas would introduce chaos and unfairness into what Congress
intended to be an integrated and uniform immigration system. See Alaska Airlines,
Inc. v. Brock, 480 U.S. 678, 684 (1987) (provision must be enjoined in its entirety
if “the balance of the [provision] is incapable of functioning independently”). It
would be similarly inappropriate to limit the injunction’s geographic scope. “[A]
fragmented immigration policy would run afoul of the constitutional and statutory
requirement for uniform immigration law and policy.” Washington, 847 F.3d at
1166. Moreover, “[t]he scope of injunctive relief is dictated by the extent of the
violation established, not by the geographical extent of the plaintiff class.”
Califano v. Yamaski, 442 U.S. 682, 702 (1979). Aziz is not to the contrary; there,
the Eastern District of Virginia granted limited injunctive relief only because that
is all the Commonwealth of Virginia asked for in its filings, and because the Ninth
Circuit had already declined to stay a nationwide injunction. 2017 WL 580855, at
*10. Here, Hawai‘i has no such protection, and has made clear the imperative for a
nationwide injunction.

26

CONCLUSION
The Order should be enjoined.
DATED: Washington, D.C., March 14, 2017.
Respectfully submitted,

/s/ Neal K. Katyal
DOUGLAS S. CHIN (Bar No. 6465)
Attorney General of the State of Hawai‘i
CLYDE J. WADSWORTH (Bar No. 8495)
Solicitor General of the State of Hawai‘i
DEIRDRE MARIE-IHA (Bar No. 7923)
DONNA H. KALAMA (Bar No. 6051)
KIMBERLY T. GUIDRY (Bar No. 7813)
ROBERT T. NAKATSUJI (Bar No. 6743)
Deputy Attorneys General
DEPARTMENT OF THE ATTORNEY
GENERAL, STATE OF HAWAI‘I
Attorneys for Plaintiff, State of Hawai‘i

27

NEAL K. KATYAL*
COLLEEN ROH SINZDAK*
MITCHELL P. REICH*
ELIZABETH HAGERTY*
THOMAS P. SCHMIDT*
SARA SOLOW*
ALEXANDER B. BOWERMAN*
HOGAN LOVELLS US LLP
*Admitted Pro Hac Vice
Attorneys for Plaintiffs, State of
Hawai‘i and Ismail Elshikh