State of Hawaii v. Trump

Filing 192

MEMORANDUM in Support re 65 MOTION for Temporary Restraining Order (Brief of Amicus Curiae) filed by Anti-Defamation League. (Attachments: # 1 Appendix, # 2 Certificate of Service)(Altman, Nicole) Modified on 3/14/2017 (emt, ).

GOODSILL ANDERSON QUINN & STIFEL
A LIMITED LIABILITY LAW PARTNERSHIP LLP
NICOLE Y. ALTMAN
9452-0
[e-mail]
First Hawaiian Center, Suite 1600
999 Bishop Street
Honolulu, Hawaii 96813
Telephone: [phone]
Facsimile: [phone]
FRANKFURT KURNIT KLEIN & SELZ PC
JOHN B. HARRIS (Pro Hac Vice)
[e-mail]
488 Madison Avenue
New York, New York 10022
Telephone: [phone]
Facsimile: [phone]
Attorneys for Amicus Curiae
ANTI-DEFAMATION LEAGUE
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI‘I
STATE OF HAWAI‘I and ISMAIL
ELSHIKH,

Plaintiffs,
v.
DONALD TRUMP, in his official
capacity as President of the United
States, et al.,
Defendants.

6282843.1

CV 17-00050 DKW-KJM

BRIEF OF AMICUS CURIAE
ANTI-DEFAMATION LEAGUE
IN SUPPORT OF PLAINTIFFS’
MOTION FOR TEMPORARY
RESTRAINING ORDER;
APPENDIX; CERTIFICATE OF
SERVICE

TABLE OF CONTENTS
Page
STATEMENT OF INTEREST ..................................................................................1
BACKGROUND........................................................................................................................ 2
ARGUMENT .............................................................................................................3 
I. 

America’s Aspirations as a Refuge for the Oppressed .........................4 

II. 

America is at Its Best When It Honors Its Commitment to Its
Core Values ...........................................................................................9 

III. 

When America Closed Its Doors and Allowed Its Core Values
to be Compromised, The Country Later Looked Back in Shame .......14 
A. 

The St. Louis and Jewish Refugees During the Holocaust .......15 

B. 

The Chinese Exclusion .............................................................19 

C. 

The Japanese Internment...........................................................24 

CONCLUSION ........................................................................................................27 
APPENDIX ................................................................................................................1 

6282843.1

TABLE OF AUTHORITIES
Page(s)
Cases
Aziz v. Trump,
__ F. Supp. 3d __, No. 117CV116LMBTCB, 2017 WL 580855
(E.D. Va. Feb. 13, 2017) ..................................................................................... 26
Washington v. Trump,
847 F.3d 1151 (9th Cir. 2017) ........................................................................4, 26
Winter v. Nat. Res. Def. Council, Inc.,
555 U.S. 7 (2008) .................................................................................................. 3
Statutes
50 U.S.C. § 4202 ................................................................................................25, 26
Chinese Exclusion Act, ch. 126, 22 Stat. 58 (1882) (repealed 1943) ....20, 21, 22, 23
Civil Liberties Act, 50 U.S.C. § 4201 et seq. .......................................................... 25
Displaced Persons Act of 1948 (Pub.L. 80–774)..................................................... 10
Geary Act, ch. 60, 27 Stat. 525 (1892) (repealed 1943) .......................................... 22
Immigration and Nationality Act of 1965 (H.R. 2580; Pub.L. 89–236,
79 Stat. 911, enacted June 30, 1968) .................................................................. 11
Refugee Act of 1980 (Public Law 96-212) .............................................................. 12
Scott Act (1888), ch. 1064, 22 Stat. 504 (1888) (repealed 1943) ............................ 21

6282843.1

STATEMENT OF INTEREST
The Anti-Defamation League (“ADL”) respectfully submits this brief as Amicus
Curiae in support of the relief sought by Plaintiffs declaring invalid Sections 2 and 6
of the Executive Order dated March 6, 2017, entitled “Protecting the Nation from
Foreign Terrorist Entry into the United States” (the “new Executive Order”).1
Accordingly, Amicus asks this Court to grant Plaintiffs’ motion for temporary
restraining order enjoining enforcement of Sections 2 and 6 of the new Executive
Order. 2
Founded in 1913, ADL is a civil rights and human relations organization that
seeks to stop the defamation of the Jewish people, and to secure justice and fair
treatment for all people. Through its 26 regional offices throughout the United
States, ADL provides materials, programs and services to combat anti-Semitism
and all forms of bigotry. Because of its history fighting discrimination, including
prejudice toward immigrants and religious minorities, ADL can provide unique
and important insights for the Court in addressing the new Executive Order and in

1

The new Executive Order is a slightly revised version of an earlier order (the “original
Executive Order”) of the same title, which was issued on January 27, 2017.
2

Amicus Curiae states that no counsel for any party authored this brief in whole or in part and no
entity or person, aside from Amicus and their counsel, made any monetary contribution toward the
preparation or submission of this brief.

1

considering the historical context of the new Executive Order’s provisions limiting
or barring entry into the United States of refugees.
BACKGROUND
The United States is a nation dedicated to the ideals of equality, liberty and
justice. (See infra Section I.) Adhering to these principles under changing
domestic and international circumstances often is a work in progress. Throughout
the history of the United States, and frequently with respect to immigration, our
ideals have been tested. Sometimes the nation rises to meet the challenge,
upholding the values that make America exceptional. (See infra Section II.) At
other times, when prejudice and fear predominate over reason and compassion, we
falter, often with devastating consequences. (See infra Section III.) We turned our
backs on the St. Louis, a ship with nearly 1,000 Jews fleeing from Nazi Germany,
condemning hundreds of them to their deaths; we passed laws that overtly
excluded and discriminated against the Chinese; and we rounded up more than
100,000 Japanese Americans and interned them in prison camps in the 1940s. In
each instance, when we later realized that we had strayed from our principles, we
were left to apologize to the people who suffered, or to their descendants, or to the
memory of those who perished without descendants, in each case promising to
learn from our mistakes and not to repeat them.

2

ADL was created at a time when fear and prejudice against Jews were so
great that a Jewish man, Leo Frank, was convicted of murder after a trial marked
by overt anti-Semitism and then dragged from his prison cell and lynched in 1915.3
ADL regularly confronts discrimination against perceived outsiders, foreigners and
strangers. As an organization founded by immigrants, as an organization sworn to
protect the interests of religious and ethnic minorities, ADL believes that when our
nation’s values are threatened, we are duty-bound to look back at the founding
principles that propelled this nation of immigrants – in the hope that future
generations can celebrate our resolve.
ARGUMENT
A plaintiff seeking a temporary restraining order must demonstrate that “he
is likely to succeed on the merits, that he is likely to suffer irreparable harm in the
absence of preliminary relief, that the balance of equities tips in his favor, and that
an injunction is in the public interest.” Winter v. Nat’l Res. Def. Council, Inc., 555

3

See Wendell Rawls, Jr., After 69 Years of Silence, Lynching Victim is Cleared, N.Y.
TIMES, Mar. 8, 1982. After the lynching, armed mobs ran through the streets of Atlanta, forcing
Jewish businesses to shutter their doors and about half of Georgia’s Jewish population to flee.
Sixty years later, the State of Georgia posthumously pardoned Frank on the grounds that the
State failed to protect him while he was in its custody. See STATE BOARD OF PARDONS AND
PAROLES, Pardon of Leo Frank (Mar. 11, 1986),
http://www.gpb.org/files/georgiastories/nsouthfrank176.jpg. See also Leonard Dinnerstein, Leo
Frank Case, NEW GEORGIA ENCYCLOPEDIA,
http://www.georgiaencyclopedia.org/articles/history-archaeology/leo-frank-case (last visited Feb.
7, 2017).

3

U.S. 7, 20 (2008).4 With this brief, ADL seeks to provide important insight
regarding how Sections 2 and 6 of the new Executive Order, absent injunctive
relief, will almost certainly cause irreparable harm, similar to other harms for
which the United States has later apologized when it failed to live up to values and
the promise embodied in the Constitution. ADL also seeks to demonstrate that the
public interest lies squarely in support of injunctive relief, as America has always
been at its best when it opens its doors to refugees and immigrants.
I.

America’s Aspirations as a Refuge for the Oppressed
The promise of America has been manifest since before the American

Revolution. John Winthrop, while still on his transatlantic voyage to the New
World, admonished the future colonists of Massachusetts to always remember that
their new community would be “as a city upon a hill,” with the entire world
watching.5 In fulfilling this vision, the country welcomed in its early years those
disfavored and persecuted in their homelands based on their religious beliefs,
including the Pilgrims, the Puritans, and the Huguenots. Since then, our nation’s
wisest leaders have been guided by Winthrop’s inspiring vision and have strived
toward a more inclusive democracy.
4

Winter “concerned a motion for a preliminary injunction, but the legal standards
applicable to TROs and preliminary injunctions are ‘substantially identical.’” Washington v.
Trump, 847 F.3d 1151, 1159 n.3 (9th Cir. 2017).
5

John Winthrop, A Model of Christian Charity (1630).

4

The birth of the United States came in part because the Founders sought to
cast off the shackles of Europe’s endless religious wars and sectarian conflict in
order to form a more perfect union. In beseeching the country to separate from
England, Thomas Paine recognized that Europe was “too thickly planted with
kingdoms to be long at peace” and believed the discovery of America had a divine
purpose: “to open a sanctuary to the persecuted in future years, when home should
afford neither friendship nor safety.”6 Seven months later, the Declaration of
Independence enunciated the “self-evident truths” that “all men are created equal,
that they are endowed by their Creator with certain unalienable Rights, that among
these are Life, Liberty and the pursuit of Happiness.”7 Less quoted from the
Declaration is the Founders’ burning grievance that the English King had restricted
free immigration, having “endeavoured to prevent the population of these States;
for that reason obstructing the Laws for the Naturalization of Foreigners [and]
refusing to pass others to encourage their migrations hither.”8
After the United States won its independence, it faced the challenge of
designing laws that embodied the enlightened vision of the new nation. In 1785,
James Madison published “Memorial and Remonstrance Against Religious
6

Thomas Paine, Common Sense (Jan. 10, 1776).

7

Declaration of Independence (July 4, 1776).

8

Id.

5

Assessments” in opposition to a bill proposed to Virginia’s General Assembly that
would have levied a modest tax to support Christian education.9 Madison warned
that any measure, no matter how slight, that gave a preference to one religion over
another would constitute “a dangerous abuse of power” and would betray the
vision of America as a shining city upon a hill:
Because the proposed establishment is a departure from that generous
policy, which, offering an Asylum to the persecuted and oppressed of
every Nation and Religion, promised a lustre to our country, and an
accession to the number of its citizens. What a melancholy mark is the
Bill of sudden degeneracy? Instead of holding forth an Asylum to the
persecuted, it is itself a signal of persecution. . . . Distant as it may be
in its present form from the Inquisition, it differs from it only in
degree. The one is the first step, the other the last in the career of
intolerance. The magnanimous sufferer under this cruel scourge in
foreign Regions, must view the Bill as a Beacon on our Coast,
warning him to seek some other haven, where liberty and
philanthrophy [sic] in their due extent, may offer a more certain
repose from his Troubles.10
Virginia recognized Madison’s wisdom. It rejected the establishment bill
and instead adopted Thomas Jefferson’s “Statute for Religious Freedom,” which
firmly separated church from state and enshrined the principles of religious liberty
for all.11 When Madison went to the Constitutional Convention in 1787, he fought

9

James Madison, Memorial and Remonstrance against Religious Assessments ¶ 9 (Jun. 20,

1785).
10

Id. (emphasis added).

11

Virginia’s Statute for Religious Freedom (Jan. 16, 1786).

6

for Jefferson’s view to become the law of the land, and it became a bedrock of the
rights confirmed by the First Amendment.
Although the makeup of the United States was overwhelmingly Christian at
its birth, our Founders were clear that the nation’s new laws prohibiting religious
discrimination extended to people of all faiths and backgrounds. When Jefferson
later reflected on his Statute for Religious Freedom, he extolled the broad
application of the law, which was evidence that the legislators “meant to
comprehend, within the mantle of its protection, the Jew and the Gentile, the
Christian and the Mahometan [Muslim], the Hindoo [Hindu], and every Infidel of
every denomination.”12
The American values of accepting people into this country regardless of
their faith, race or nationality have been celebrated by our leaders. In 1855,
Abraham Lincoln confronted the burgeoning anti-immigrant “Know Nothing”
movement, soundly rejecting the Know Nothings’ vision of an America in which
“all men are created equal, except negroes, and foreigners, and Catholics.”13 He
said of the movement: “When it comes to this I should prefer emigrating to some

12

Thomas Jefferson, Autobiography, Works 1:71 (1821).

13

Abraham Lincoln, Letter to Joshua F. Speed (Aug. 24, 1855).

7

country where they make no pretence of loving liberty — to Russia, for instance,
where despotism can be taken pure. . . .”14
The vision of the “shining city on the hill” has also inspired poets. In 1856,
Walt Whitman wrote: “These States are the amplest poem, here is not merely a
nation but a teeming Nation of nations.”15 Emma Lazarus’ immortal sonnet,
enshrined on the pedestal of the Statue of Liberty, urges “ancient hands” to give
America “your tired, your poor, your huddled masses yearning to breathe free. . . .
Send these, the homeless, tempest-tost to me, I lift my lamp beside the golden
door!”16
These values have endured to the modern day. In his 1959 book, A Nation
of Immigrants, future President John F. Kennedy studied the history of
immigration in this country, both in terms of those subject to religious persecution
and those facing other overpowering hardship. He wrote: “America has always
been a refuge from tyranny. As a nation conceived in liberty, it has held out to the
world the promise of respect for the rights of man.”17

14

Id.

15

Walt Whitman, Preface to Leaves of Grass (1855).

16

Emma Lazarus, The New Colossus (1883).

17

John F. Kennedy, A Nation of Immigrants 7 (Harper Perennial, January 2008).

8

On the eve of his election as President in 1980, Ronald Reagan also took
inspiration from Winthrop’s vision of America:
These visitors to that city on the Potomac do not come as white or
black, red or yellow; they are not Jews or Christians; conservatives or
liberals; or Democrats or Republicans. They are Americans awed by
what has gone before, proud of what for them is still . . . a shining city
on a hill.18
II.

America is at Its Best When It Honors Its Commitment to
Its Core Values
There are numerous examples where the United States has met its

aspirations as Winthrop’s “shining city on the hill,” opening itself to “anyone with
the will and the heart to get here.”19 At its best, the United States has been a
beacon of hope for refugees from war-torn countries, victims of religious
persecution, natural disasters or other emergencies, fulfilling what President
Kennedy described in A Nation of Immigrants as the “natural humanitarian
impulses of the American people which is in keeping with our traditions of shelter
to the homeless and refuge for the oppressed.”20 Indeed, many of these refugees
have contributed immeasurably to the fabric of America.
With the Truman Directive in 1945, and the Displaced Persons Act of 1948,
the United States — for the first time since its founding — began explicitly to
18

Ronald Reagan, Election Eve Address (Nov. 3, 1980).

19

Ronald Reagan, Farewell Address to the Nation (Jan. 11, 1989).

20

Kennedy, supra note 17, at 46.

9

focus on its identity as a sanctuary for those fleeing persecution, as the first
Americans had done hundreds of years earlier.21 President Truman led the
assistance and reconstruction effort to resettle hundreds of thousands of European
Jews and other Europeans displaced from their home countries who could not
return in the aftermath of World War II.22
These new laws gave truth to Thomas Paine’s prophecy that the United
States would “open a sanctuary to the persecuted in future years, when home
should afford neither friendship nor safety.” The refugees welcomed to the United
States during or after World War II have made immeasurable contributions to
politics, science, literature, music, art, and social and scientific studies. Refugees
from that period include Madeleine Albright, Hannah Arendt, Bela Bartok, Marc
Chagall, Marlene Dietrich, Albert Einstein, Enrico Fermi, Henry Kissinger,
Raphael Lemkin, Thomas Mann, Vladimir Nabokov, Claude Levi-Strauss, Dr.
Ruth Westheimer, and Billy Wilder. American culture and science stand on the
shoulders of many of these contributions.

21

David W. Haines, Learning From our Past: The Refugee Experience in the United States,
AMERICAN IMMIGRATION COUNCIL,
http://www.americanimmigrationcouncil.org/research/refugee-experience-united-states (last
visited Feb. 7, 2017).
22

Id. In so doing, as set forth below, the United States began the process of making
amends for the tragic consequences of its turning away Jewish refugees during World War II,
dooming many of them to death or excruciating years in concentration camps.

10

With the onset of the Cold War, Congress began assisting groups of refugees
from Communist regimes including those seeking freedom from the Soviet Union,
Cuba, Hungary, Poland, and Yugoslavia, as well as those fleeing Southeast Asia
after the Vietnam War. The openness to asylum seekers reflected in these efforts
also demonstrated a growing recognition that many refugees have significant
education, skills, strong family structures, and commitment to hard work and
success that make them ideal new citizens.23 Examples of notable refugees that
came to the United States from this period include: Sergey Brin, Joseph Brodsky,
Gloria Estefan, Milos Forman, Wyclef Jean, Miriam Makeba, Thomas Peterffy,
Regina Spektor and David Tran.
In the wake of the publication of A Nation of Immigrants, Congress enacted
the Immigration and Nationality Act of 1965, which allowed increased numbers of
people to migrate to the United States from South America, Asia, Africa, the
Middle East, and Southern and Eastern Europe, abolishing the previous quotas that
had been set based on national origin. In 1968, the United States was one of the
first countries to sign the United Nations Protocol Relating to the Status of
Refugees, a key treaty in international refugee law. The 1974 Jackson-Vanik
Amendment ultimately permitted approximately 500,000 Jews, evangelical

23

Haines, supra note 21.

11

Christians and Catholics to escape religious persecution in the former Soviet Union
by coming to the United States. And in 1980 Congress signed the Refugee Act
which standardized the resettlement process and services for all refugees admitted
to the United States.
Since the 1980s, the United States has resettled refugees from Darfur fleeing
genocide and violence; refugees from Bhutan forced out of their country; and
Syrian, Iraqi and Afghan refugees displaced by war. In addition, the U.S. has
facilitated the naturalization of Hmong veteran refugees who served in Laos in
support of U.S. forces and during the Vietnam War;24 assisted the children of
Vietnamese re-education camp survivors through the “McCain Amendment;”25
assisted former Soviet and Indochinese nationals with a credible fear of
persecution through the “Lautenberg Amendment;”26 and assisted Iranian religious

24

William J. Clinton, Statement on Signing the Hmong Veterans Naturalization Act of
2000 (May 26, 2000).

25

Andorra Bruno, CONG. RESEARCH SERV., RL31269, Refugee Admissions and
Resettlement Policy (Nov. 30, 2016), https://fas.org/sgp/crs/misc/RL31269.pdf.

26

Id.

12

minorities through the “Specter Amendment.”27 Since 1975, the US has settled
over 3 million refugees.28
It should come as no surprise, then, that more than 40 percent of Fortune 500
companies were founded by recent immigrants or their children (even though such
immigrants account for roughly 10.5 percent of the U.S. population); or that the
revenue generated by these companies is greater than the GDP of every country in
the world outside the U.S. except China and Japan; or that successful global
companies founded by American immigrants and refugees or their children span all
sectors of the economy, including some of the most valuable brands in the world
(Apple, Google, eBay, AT&T, General Electric, IBM, McDonald’s).29 At least 18
percent of all scientists living in the U.S., of which there are millions, are
immigrants or refugees,30 and over 25% of all physicians and surgeons in the

27

Id.

28

Ruth Igielnick and Jens Manuel Krogstad, Where Refugees to the U.S. Come From, PEW
RESEARCH CENTER, (Feb. 3, 2017), http://www.pewresearch.org/fact-tank/2017/02/03/whererefugees-to-the-u-s-come-from/.
29

PARTNERSHIP FOR THE NEW AMERICAN ECONOMY, The ‘New American’ Fortune 500,
(June 2011), http://www.renewoureconomy.org/sites/all/themes/pnae/img/new-americanfortune-500-june-2011.pdf.
30

Flora Lan, Katherine Hale, and Emilda Rivers, Immigrants’ Growing Presence in the
U.S. Science and Engineering Workforce: Education and Employment Characteristics in 2013,
NATIONAL CENTER FOR SCIENCE AND ENGINEERING STATISTICS (Sept. 2015),
https://www.nsf.gov/statistics/2015/nsf15328/nsf15328.pdf.

13

United States are born abroad.31 And as of 2016, roughly 2 million veterans of the
U.S. Armed Forces living in the U.S. — of a total 18.8 million — are
refugees/immigrants or have refugee/immigrant parents.32 As President Kennedy
observed, “[t]here is no part of our nation that has not been touched by our
immigrant background.”33 The new Executive Order, like the one before it,
betrays that history, and would exclude the talents, ideas and work ethic of
immigrants and refugees who, just as with generations past, would help to build
and protect our nation and strengthen our economy.
III.

When America Closed Its Doors and Allowed Its Core Values to be
Compromised, The Country Later Looked Back in Shame
In sharp contrast to the times when the United States has shown its “natural

humanitarian impulses,” at other times the country has closed itself to others and
has succumbed to fear or bigotry, with tragic consequences. Sometimes the
victims of this xenophobia and prejudice were Jews (the St. Louis tragedy and the
denial of visas) or other religious minorities, sometimes they were from nations

31

Nicole Fisher, 25% of Physicians Are Born Outside the U.S. Can Immigration Reform
Fix The Shortage?, FORBES: PHARMA & HEALTHCARE, Jul. 12, 2016,
http://www.forbes.com/sites/nicolefisher/2016/07/12/25-of-docs-are-born-outside-of-the-u-scan-immigration-reform-solve-our-doc-shortage/#446de1bc702b.
32

Jie Song and Jeanne Batalova, Immigrant Veterans in the United States, MIGRATION
POLICY INSTITUTE (Oct. 13, 2016), http://www.migrationpolicy.org/article/immigrant-veteransunited-states.
33

Kennedy, supra note 17, at 3.

14

that were regarded as undesirable (the Chinese exclusion) and sometimes they
were groups the government suspected as disloyal (the Japanese internment during
World War II). In each case, the United States apologized years later, after it was
too late.
A.

The St. Louis and Jewish Refugees During the Holocaust

The tragedy of the vessel St. Louis illustrates the devastating consequences
that can result when the United States turns its back on refugees in need. In May
1939, on the eve of World War II and after Kristallnacht,34 the St. Louis left
Hamburg, Germany, carrying 937 passengers, nearly all of whom were Jews
fleeing Nazi persecution. The ship was headed to Havana, Cuba with the hope of
having its passengers granted sanctuary in the United States.
Prior to the ship’s departure, most of the Jewish passengers had obtained
valid paperwork permitting their entry to Cuba and had also applied for U.S. visas,
planning to stay in Cuba only until their entry to the U.S. was approved. By the
time the St. Louis arrived in Cuba on May 27, 1939, however, the Cuban president

34

Kristallnacht, or the “Night of Broken Glass,” occurred in November 1938, when almost
100 Jews were murdered, countless more were attacked, and as many as 30,000 Jewish men were
arrested and sent to concentration camps. See THE HOLOCAUST ENCYCLOPEDIA, UNITED STATES
HOLOCAUST MEMORIAL MUSEUM, Kristallnacht,
https://www.ushmm.org/wlc/en/article.php?ModuleId=10005201 (last visited Feb. 7, 2017).

15

had invalidated most of the passengers’ travel certificates.35 While United Statesbased Jewish organizations negotiated with Cuban officials to persuade them to
admit the other passengers, the United States refused to formally intercede on the
refugees’ behalf or publicly pressure the Cuban government to admit them.36
After negotiations with Cuba failed, the St. Louis headed towards Miami in
June 1939, coming within sight of the Florida coastline. Despite pleas from
passengers on board, President Roosevelt and the State Department refused to
accept the Jewish refugees into the United States,37 reflecting anti-immigrant and
anti-Semitic sentiments prevailing at the time.38 A State Department telegram to a
passenger on the ship explained the government’s position that the passengers must

35

THE HOLOCAUST ENCYCLOPEDIA, UNITED STATES HOLOCAUST MEMORIAL MUSEUM,
Voyage of the St. Louis, https://www.ushmm.org/wlc/en/article.php?ModuleId=10005267 (last
visited Feb. 7, 2017).
36

Id. See also Dara Lind, How America’s Rejection of Jews Fleeing Nazi Germany Haunts
Our Refugee Policy Today, VOX (Jan. 27, 2017, 8:12 AM), http://www.vox.com/policy-andpolitics/2017/1/27/14412082/refugees-history-holocaust.
37

Kristine Guerra, What the U.S. Learned from Turning Away Refugees who Fled the
Nazis, THE WASHINGTON POST, Jan. 29, 2017, https://www.washingtonpost.com/news/postnation/wp/2017/01/29/what-the-u-s-learned-from-turning-away-refugees-who-fled-thenazis/?utm_term=.e91085b6c047.
38

A Gallup poll taken in January 1939 asked Americans if the government should allow
10,000 refugee children, mostly Jewish, from Germany to be taken care of in American homes;
61 percent were opposed. See Ishaan Tharoor, What Americans Thought of Jewish Refugees on
the Eve of World War II, THE WASHINGTON POST, Nov. 17, 2015,
https://www.washingtonpost.com/news/worldviews/wp/2015/11/17/what-americans-thought-ofjewish-refugees-on-the-eve-of-world-war-ii/?utm_term=.a67eb4b68817.

16

“await their turns on the [visa] waiting list and qualify for and obtain immigration
visas before they may be admissible into the United States.”39
Ultimately, the United States refused entry to the passengers of the St Louis,
forcing it to sail back to Europe.40 Historians estimate that more than a quarter of
the St. Louis passengers — 254 people — were killed in the Holocaust, including a
number at Auschwitz, after being refused entry to the U.S.41
In April 2009, at a commemoration for Yom HaShoah (Holocaust
Remembrance Day) held at the U.S. Capitol before the President and members of
Congress, Fred S. Zeidman, chairman of the U.S. Holocaust Memorial Council,
recalled the “infamous ship called the St. Louis” and reminded those gathered of
the “shameful result” and the consequences of inaction.42 Three years later, the
United States government issued a formal apology for the country’s refusal to

39

See “Voyage of the St. Louis,” supra note 35.

40

Recent images of refugee-seekers, having disembarked at U.S. airports after days-long
journeys, being immediately sent back to the countries from which they had fled, unavoidably
call to mind the passengers of the St. Louis who were turned away within sight of U.S. sanctuary.
See Appendix.
41

See “Voyage of the St. Louis,” supra note 35.

42

AMERICAN JEWISH JOINT DISTRIBUTION COMMITTEE ARCHIVES, Fred S. Zeidman’s
Remarks, Days of Remembrance Commemoration, Apr. 23, 2009,
http://archives.jdc.org/assets/documents/stlouis_fredszeidmanremarks2009.pdf.

17

provide refuge for the Jewish passengers aboard the St. Louis.43 Addressing the 14
surviving passengers, a State Department official stated: “To the survivors of the
MS St. Louis, on behalf of the president and Secretary of State, I am honored to say
what we should’ve said so long ago, welcome.”44 (Archival photographs from the
St. Louis are contained in the Appendix).
The passengers of the St. Louis were not the only victims of America’s
refusal to grant visas to Jews and other minorities during the Holocaust. Before the
St. Louis sailed, Congress rejected a bill that would have allowed 20,000 imperiled
German children to settle in this country. Opponents took an “America-First”
approach to reject the proposal, arguing that America should first focus on its own
needy and homeless citizens. The wife of the United States immigration
commissioner, Laura Delano Houghteling, refused to be swayed by the children’s
vulnerability, testifying that “20,000 charming children would all too soon grow
into 20,000 ugly adults.”45 Countless Jews denied visas to enter the United States
ultimately perished in Nazi concentration camps, including the Dutch teenager

43

Kamrel Eppinger, State Department apologizes to Jewish refugees, SCRIPPS HOWARD
FOUNDATION WIRE, Sep. 26, 2012, http://www.shfwire.com/state-department-apologizes-jewishrefugees/.
44

Id.

45

See Lind, supra note 36.

18

Anne Frank.46 Historian Richard Brietman reminds us that if not for an
immigration policy steeped in fear, an elderly Anne Frank could still be living in
the United States today.47 Instead she was murdered at Bergen-Belsen, made
immortal by the teenage diary that survived her. The new Executive Order ignores
the tragic lessons our Nation learned from turning our back on Jewish refugees
during World War II, and would again close America’s doors to some of the
world’s most vulnerable refugees and immigrants.
B.

The Chinese Exclusion

In the late 1860s and early 1870s, Chinese immigrants, including both
skilled and unskilled laborers, enjoyed easy passage to this country under the terms
of a treaty between the United States and China.48 Even with the treaty’s relaxed
46

In 1938, Otto Frank first applied for immigrant visas for himself, his wife Edith, and their
two daughters Margot and Anne. See Richard Breitman, Blocked by National Security Fears?:
The Frank Family and Shifts in American Refugee Policy, 1938-194I, YIVO INSTITUTE FOR
JEWISH RESEARCH, Feb. 14, 2007, https://www.yivo.org/cimages/richardbreitman-ottofrankwhitepaper.pdf?c=. The family was placed on a waiting list, which by 1939 had grown to
include 300,000 individuals. Id. at 2. Despite having multiple people willing to provide
affidavits for the Frank family, Otto was met with additional regulations, including proof of
booked transportation to the U.S., verification that no close relatives remained in German
territories, and the specter of the German refugee quota. Id. at 5. Ultimately, the Frank family
was denied refugee status and Anne, along with her mother and sister, all died in the
concentration camps.
47

Elahe Izadi, Anne Frank and her family were also denied entry as refugees to the U.S.,
WASHINGTON POST, Nov. 24, 2015,
https://www.washingtonpost.com/news/worldviews/wp/2015/11/24/anne-frank-and-her-familywere-also-denied-entry-as-refugees-to-the-u-s/?utm_term=.6e028f50e0dd.
48

See H.R. Res. 683, 114th Cong. (as passed by House, June 18, 2012). See also Kennedy,
supra note 17, at 40.

19

standards, annual Chinese immigration never exceeded 40,000 people, and in 1890
there were only 107,000 Chinese nationals living in the United States.49
Nevertheless, hostility towards the Chinese escalated within certain portions of the
American public, who blamed wage decreases and other economic difficulties on
Chinese laborers.50 Although Government leaders initially resisted constituent
pressure to stop Chinese immigration,51 a “campaign of organized violence against
Chinese communities took form, and the hysteria led to public pressure too violent
to be resisted.”52
The Chinese Exclusion Act of 1882, signed into law by President Arthur,
was the “first federal law ever passed excluding a group of immigrants solely on
the basis of race or nationality.”53 The thrust of the Chinese Exclusion Act was
that it barred Chinese laborers from entering the United States for 10 years,54 but it
also put in place other discriminatory systems, including a registry for all Chinese

49

Kennedy, supra note 17, at 40.

50

HARVARD UNIVERSITY LIBRARY OPEN COLLECTIONS PROGRAM, Chinese Exclusion Act
(1882), http://ocp.hul.harvard.edu/immigration/exclusion.html (last visited Feb. 7, 2017).
51

President Arthur initially vetoed the bill, which he viewed as incompatible with the
Burlingame Treaty. See Chester A. Arthur, Veto of the Chinese Exclusion Act (Apr. 4, 1882).

52

Kennedy, supra note 17, at 41.

53

S. J. Res. 23, Res. Ch. 134 (Ca. 2014).

54

Chinese Exclusion Act, ch. 126, 22 Stat. 58 (1882) (repealed 1943) (hereinafter “Chinese
Exclusion Act.”).

20

(including non-laborers) who were then legally present in the United States.55
Additionally, Chinese laborers already in the country would have to obtain a
“certificate” to return to the United States, if they ever wanted to leave the
country.56 The Act also explicitly prohibited all state and federal courts from
naturalizing people of Chinese origin, regardless of whether they were legally in
this country.57 These sweeping restrictions were explained only by this statement
in the law’s preamble: “in the opinion of the Government of the United States the
coming of Chinese laborers to this country endangers the good order of certain
localities within the territory thereof[.]”58
The Chinese Exclusion Act was followed by a series of other laws designed
to exclude the Chinese from the United States, both physically and politically. The
Scott Act of 188859 precluded Chinese laborers from leaving and reentering the
United States entirely and cancelled all previously issued “certificates” as
referenced in the Exclusion Act.60 This action prevented the return of
55

Id.

56

Id. See also S. J. Res. 23, Res. Ch. 134 (Ca. 2014)

57

Chinese Exclusion Act, § 14. See also S. J. Res. 23, Res. Ch. 134 (Ca. 2014).

58

Chinese Exclusion Act, preamble.

59

The Scott Act (1888), ch. 1064, 22 Stat. 504 (1888) (repealed 1943).

60

S. Res. 201, 112th Cong. (as passed by Senate, Oct. 6, 2011). See also H.R. Res. 683,
114 Cong.
th

21

approximately 20,000 Chinese laborers who were abroad and had lawfullyobtained certificates permitting them to re-enter.61 It also froze the migration of an
additional 600 Chinese individuals who were en route to the United States at the
time of its enactment.62 When the Chinese Exclusion Act was set to expire in
1892, Congress passed the Geary Act,63 which extended Chinese exclusion for
another ten years and introduced even more restrictions.64 It was not until 1943
that Congress finally began repealing certain — and eventually all — of these
discriminatory laws.65
The repeal of the Chinese exclusionary laws was a first step in reestablishing the ideals of the Founders. In October 2011, the United States Senate
finally issued an apology for the Chinese Exclusion Act and other laws.66 A
similar report was announced by the United States House of Representatives67 and,
later, by the California State Legislature.68 In each instance, the government noted
61

S. Res. 201, 112th Cong.

62

Id.

63

The Geary Act, ch. 60, 27 Stat. 525 (1892) (repealed 1943).

64

S. Res. 201, 112th Cong.

65

Id.

66

Id.

67

H.R. Res. 683, 114th Cong.

68

S. J. Res. 23, Res. Ch. 134 (Ca. 2014).

22

that the Chinese Exclusion Act and its companion laws were and remain
“incompatible with the basic founding principles recognized in the Declaration of
Independence that all persons are created equal[.]”69 The announcements
expressed a commitment to “diversity in the United States that contributes to the
country’s economic, cultural, technological, academic, and political growth[.]”70
In its apology, the California legislature observed:
The Chinese Exclusion Act set the precedent for racist foreign and
national policy that led to broader exclusion laws and fostered an
environment of racism that quickly led to the Jim Crow laws of the
1880s, and further segregation legislation that would tear our nation
apart through most of the 20th Century[.]71
Simply put, our nation’s leaders recognized that racism breeds racism, and any
governmental policies that conflict with the founding ideals of this country cannot
be allowed to stand. The new Executive Order, and Sections 2 and 6 in particular,
is such a policy.

69

S. Res. 201, 112th Cong. See also S. J. Res. 23, Res. Ch. 134 (Ca. 2014) (pointing out
that, “[p]aradoxically, the very same year that the Chinese Exclusion Act was passed, financing
abroad was completed for the Statute of Liberty. . . . While the Statute of Liberty was being built,
legislators were contradicting those very ideals by discriminating against Chinese immigrants
and lobbying Congress to do the same”).
70

S. J. Res. 23, Res. Ch. 134 (Ca. 2014).

71

Id.

23

C.

The Japanese Internment

The internment of Japanese-Americans was authorized by Executive Order
9066,72 which President Roosevelt issued in early 1942, 10 weeks after the Pearl
Harbor attack. Executive Order 9066 gave to the Secretary of War and the military
commanders to whom he delegated authority, the power to exclude any and all
persons, citizens and aliens from designated areas in order to provide security
against sabotage and espionage.73 The Order makes no reference to the Japanese,
just as the current Executive Order does not reference Muslims. However, within a
week of the issuance of the order, Lt. General John L. DeWitt issued the first of
108 relocation orders resulting in the forcible evacuation of approximately 120,000
Japanese Americans, including 70,000 citizens, to internment camps in desolate
areas of the United States for the duration of World War II.74
The justification for Executive Order 9066 was “military necessity.”75
However, Congress has since acknowledged that “these actions were carried out
without adequate security reasons and . . . were motivated largely by racial

72

7 Fed. Reg. 1407 (Feb. 19, 1942).

73

Id.

74

See Roger Daniels, Concentration Camps USA: Japanese Americans and World War II
33, 104 (1972).
75

U.S. COMM’N ON WARTIME RELOCATION AND INTERNMENT OF CIVILIANS, REPORT:
PERSONAL JUSTICE DENIED at 6-8 (96th Cong.) (1982).

24

prejudice, wartime hysteria, and a failure of political leadership.”76 This
conclusion was bolstered by the fact that no effort was made to invoke Executive
Order 9066 to authorize internment of German-Americans and/or ItalianAmericans.77
In 1976, President Gerald Ford issued a proclamation acknowledging that
“not only was that evacuation wrong, but Japanese Americans were and are loyal
Americans.” In 1982, the Commission on Wartime Relocation and Interment of
Civilians issued a report entitled, “Personal Justice Denied.” The report set the
stage for the historic moment in 1988 when President Ronald Reagan signed the
Civil Liberties Act, which offered a formal apology and reparations for the “grave
injustice” of evacuating, relocating and interning tens of thousands of Japanese
Americans during the war.78 President Reagan, in his remarks on signing the Act,
made clear that the internment of Japanese Americans was a “grave wrong.”79
76

50 U.S.C. § 4202. Anti-Japanese bias was palpable: polls taken in 1944 indicated that
more than 60 percent of Americans thought that whites should be prioritized in hiring decisions
over Japanese Americans. Stephen White, Many Americans Support Trump’s Immigration
Order; Many Americans Backed Japanese Internment Camps, Too, THE WASHINGTON POST Feb.
2, 2017, https://www.washingtonpost.com/news/monkey-cage/wp/2017/02/02/u-s-publicopinion-supports-the-trump-immigration-order-it-backed-japanese-internment-campstoo/?utm_term=.a313ba0611d6.
77

See U.S. COMM’N ON WARTIME RELOCATION AND INTERNMENT OF CIVILIANS, supra note

72 at 3.
78

See 50 U.S.C. § 4201 et seq.

79

Ronald Reagan, Remarks on Signing the Bill Providing Restitution for the Wartime
Internment of Japanese-American Civilians (Aug. 10, 1988).

25

Congress too acknowledged that this measure — carried out under the false banner
of “national security” — amounted to a “fundamental violation[] of the basic civil
liberties and constitutional rights of [] individuals of Japanese ancestry” and caused
“enormous damages, both material and intangible, . . . which resulted in
significant human suffering[.]”80
Like Executive Order 9066, the new Executive Order here invokes national
security as its justification. Leaving aside the legal standards regarding how much
deference such an invocation deserves, the history of the Japanese internment
counsels that we must take an especially hard look at actions that undermine core
values and freedoms in the name of national security. In this regard, we note the
statements by other federal courts that there is “no evidence that any alien from
any of the countries named in the Order has perpetrated a terrorist attack in the
United States” and that the sequence of events leading up to both the original and
the new Executive Order raises questions as to whether national security concerns
in this regard are “rational.” Washington, 847 F.3d at1168; see also Aziz v. Trump,
__ F. Supp. 3d __, No. 117CV116LMBTCB, 2017 WL 580855, at *3 (E.D. Va.
Feb. 13, 2017).

80

50 U.S.C. § 4202.

26

CONCLUSION
ADL believes that enjoining Sections 2 and 6 of the new Executive Order is
consistent with the principles underlying the Constitution. Absent injunctive relief,
there will almost certainly be irreparable harm to countless people, just as there
was when the United States shamefully turned away those on the St. Louis
desperately seeking safety, excluded immigrants from China, and interned
Japanese Americans. As with the 254 passengers aboard the St. Louis who died in
the Holocaust, an apology years later would be woefully insufficient to address the
damage done. ADL believes that enforcing Sections 2 and 6 of the new Executive
Order risks once again sacrificing the nation’s core values in favor of prejudice and
fear – a sacrifice that history has repeatedly proven has profound consequences
both to the persons who suffer as a result and to the still-vibrant vision of the
shining city on the hill.
DATED: Honolulu, Hawaii, March 14, 2017.
Respectfully submitted,

NICOLE Y. ALTMAN
JOHN B. HARRIS (Pro Hac Vice)
Attorneys for Amicus Curiae
ANTI-DEFAMATION LEAGUE

27