State of Hawaii v. Trump

Filing 198

MEMORANDUM re 65 MOTION for Temporary Restraining Order [MUSLIM ADVOCATES, AMERICAN MUSLIM HEALTH PROFESSIONALS, MUPPIES, INC., THE NATIONAL ARAB AMERICAN MEDICAL ASSOCIATION, AND NETWORK OF ARAB-AMERICAN PROFESSIONALS' BRIEF OF AMICI CURIAE IN SUPPORT OF PLAINTIFFS' MOTION FOR A TEMPORARY RESTRAINING ORDER], filed by American Muslim Health Professionals, Muppies, Inc., Muslim Advocates, Network of Arab-American Professionals, The National Arab American Medical Association. (Attachments: # 1 Declaration of Anton A. Ware, # 2 Exhibit 1 - Shutdown Press Release, # 3 Exhibit 2 - Anderson Cooper Interview, # 4 Exhibit 3 - State Rudy Guiliani, # 5 Exhibit 4 - Miller on Fox News, # 6 Exhibit 5 - WaPo Kansas Suspect, # 7 Exhibit 6 - Seattle Kent, # 8 Exhibit 7 - Fire store owner, # 9 Exhibit 8 - WaPo pipe attack, # 10 Exhibit 9 - Spate of mosque fires stretches across the country, # 11 Exhibit 10 - Politico absolute no choice but to close down mosques, # 12 Exhibit 11 - Georgetown Bridge Initiative Trump Cites Flowed Poll, # 13 Exhibit 12 - Republican Candidates Debate in North Charleston, South Carolina, # 14 Exhibit 13 - Transcript Donald Trump's national security speech, # 15 Exhibit 14 - 60 Minutes Trranscript, # 16 Exhibit 15 - Meet the Press, # 17 Exhibit 16 - Presidential Candidates Debates, # 18 Exhibit 17 - Christian Broadcasting Network, # 19 Exhibit 18 - Donald Trump on Twitter defends Muslim ban, calls work a 'horrible mess', # 20 Exhibit 19 - Pew Reseach Center 2016 Refugees, # 21 Exhibit 20 - DJT Tweet, # 22 Exhibit 21 - So called judge tweet, # 23 Exhibit 22 - See you in court tweet, # 24 Exhibit 23 - Sean Spicer press conference, # 25 Exhibit 24 - Stephen Miller key engineer, # 26 Exhibit 25 - Stephen Miller Islamofascism, # 27 Exhibit 26 - Pew Forum, # 28 Exhibit 27 - State Dept Country Report, # 29 Exhibit 28 - DHS, # 30 Exhibit 29 - DOJ Iraqi Kentucky, # 31 Exhibit 30 - Cato, # 32 Exhibit 31 - Lawfare, # 33 Exhibit 32 - Brennan Center, # 34 Exhibit 33 - Letter Former Officials on March 6 EO, # 35 Exhibit 34 - Trump delays new travel ban after well-reviewed speech - CNN Politics, # 36 Exhibit 35 - Families hoping to make the U.S., # 37 Exhibit 36 - Trump Muslim ban is tearing apart families, # 38 Exhibit 37 - Children and Refugees Who Planned Medical Care in the US Stuck After Trump Executive Order - Health News - ABC News Radio, # 39 Exhibit 38 - Trump's Travel Ban, Aimed at Terrorists, Has Blocked Doctors - The New York Times, # 40 Certificate of Service)(Kacprowski, Nickolas) Modified on docket title text on 3/14/2017 (ecs, ).

ALSTON HUNT FLOYD & ING
Nickolas A. Kacprowski 8627
1001 Bishop Street, Suite 1800
Honolulu, Hawai`i 96813
Telephone: [phone]
Facsimile: [phone]
E-mail: [e-mail]

ARNOLD & PORTER KAYE
SCHOLER LLP
Anton A. Ware (Appearing pro hac vice)
Three Embarcadero Center
Tenth Floor
San Francisco, CA 94111
Telephone: [phone]
Facsimile: [phone]
E-mail: [e-mail]

Attorneys for Amici Curiae Muslim Advocates;
American Muslim Health Professionals; Muppies, Inc.; The National Arab
American Medical Association; and Network of Arab-American Professionals
[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,
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.

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Case No. CV 17-00050

DKW-KSC

MUSLIM ADVOCATES,
AMERICAN MUSLIM HEALTH
PROFESSIONALS, MUPPIES,
INC., THE NATIONAL ARAB
AMERICAN MEDICAL
ASSOCIATION, AND NETWORK
OF ARAB-AMERICAN
PROFESSIONALS' BRIEF OF
AMICI CURIAE IN SUPPORT OF
PLAINTIFFS' MOTION FOR A
TEMPORARY RESTRAINING
ORDER; DECLARATION OF
ANTON A. WARE; EXHIBITS “1” –
“38”; CERTIFICATE OF SERVICE
[Dkt. No. 65]

ADDITIONAL COUNSEL
MUSLIM ADVOCATES
Johnathan James Smith (Appearing pro hac vice)
Junaid Sulahry (Appearing pro hac vice)
P.O. Box 71080
Oakland, CA 94612
Telephone: [phone]
Facsimile: [phone]
E-mail: [e-mail]
[e-mail]

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TABLE OF CONTENTS
I. 

INTERESTS OF AMICI CURIAE...................................................................1 

II. 

INTRODUCTION ...........................................................................................2 

III. 

ARGUMENT ...................................................................................................6 
A. 

The Motives for the Executive Order Are Not Immune From
Judicial Review .....................................................................................6 

B. 

The Executive Order Is Animated By Anti-Muslim Bias .....................8 
1. 

2. 

The Executive Order Reflects Anti-Muslim Bias on its Face ..16 

4. 

The Development of the Executive Order Demonstrates that
its National Security Justifications are Pretextual ....................18 

5. 

IV. 

The Context of the Executive Order Confirms that It Is
the Same Basic Policy As the Revoked Executive Order.........13 

3. 

C. 

The President’s Own Repeated Statements Confirm that the
Revoked Executive Order Was Intended to Implement His
Campaign Pledge to Put a Temporary Halt on Muslims
Entering the United States ..........................................................8 

That the Executive Order Halts Immigration by Many but
Not All Muslims In No Way Defeats Plaintiffs’ Allegations
of Animus ..................................................................................22 

The Executive Order Disproportionately Impacts Muslims ...............23 

CONCLUSION..............................................................................................24 

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TABLE OF AUTHORITIES
FEDERAL CASES
Access Fund v. U.S. Dep’t of Agriculture,
499 F.3d 1036 (9th Cir. 2007) .............................................................................. 4
Aziz v. Trump,
No. 1:17-cv-116-LMB-TCB,
2017 WL 580855 (E.D. Va. Feb. 13, 2017) ......................................................... 5
City of Cleburne, Tex. v. Cleburne Living Ctr.,
473 U.S. 432 (1985) ............................................................................................ 24
Elrod v. Burns,
427 U.S. 347 (1976) .............................................................................................. 6
Hunter v. Underwood,
471 U.S. 222 (1985) ............................................................................................ 19
INS v. Pangilinan,
486 U.S. 875 (1988) .............................................................................................. 8
Kerry v. Din,
135 S. Ct 2128, 2131 (2015). .........................................................................8, 18
McCreary County v. Am. Civil Liberties Union,
545 U.S. 844 (2005) ........................................................................................6, 19
Nguyen v. INS,
533 U.S. 53 (2001) ................................................................................................ 7
Pers. Adm’r of Massachusetts v. Feeney,
442 U.S. 256 (1979) ............................................................................................ 18
Shaw v. Hunt,
517 U.S. 899 (1996) ............................................................................................ 19
Shelby Cty., Ala. v. Holder,
133 S. Ct. 2612 (2013) ........................................................................................ 14
Statharos v. New York City Taxi and Limousine Comm’n,
198 F.3d 317 (2d Cir.1999) .................................................................................. 6
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Washington v. Trump,
847 F.3d 1151 (9th Cir. 2017) ..............................................................5, 7, 18, 19
Zadvydas v. Davis,
533 U.S. 678 (2001) .............................................................................................. 7
DOCKETED CASES
Hawai`i v. Trump,
No. 1:17-cv-00050-DKW-KSC (D. Haw. Mar. 7, 2017) ..................................... 7
Washington v. Trump,
No. 2:17-cv-00141-JLR (W.D. Wash. Feb. 3, 2017) ......................................... 14
Washington v. Trump,
No. 17-35105 (9th Cir. Feb. 16, 2017) ............................................................... 15
OTHER AUTHORITIES
Fifteenth Amendment to the U.S. Constitution ....................................................... 13
Kambiz Ghanea Bassiri, A History of Islam in America: From the
New World to the New World Order (Cambridge 2010) ................................... 24
January 27, 2017 “Protecting the Nation from Foreign Terrorist Entry
into the United States” (the “Revoked Executive Order”) ..........................passim
Revoked Executive Order § 1 ............................................................................. 16
Revoked Executive Order § 5(b) ........................................................................ 12
Revoked Executive Order § 5(e) ........................................................................ 12
March 6, 2017 “Protecting the Nation from Foreign Terrorist Entry
into the United States” (the “Executive Order”) .........................................passim
Executive Order § 1 .............................................................................................. 5
Executive Order § 1(b)(4) ..................................................................................... 5
Executive Order § 1(h) ....................................................................................... 20
Resolution 1327 (2003) of the Council of Europe................................................... 17

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Amici Curiae Muslim Advocates, American Muslim Health
Professionals, Muppies, Inc., The National Arab American Medical Association,
and Network of Arab-American Professionals (“Amici”) respectfully submit their
brief in support of the Plaintiffs’ Motion for a Temporary Restraining Order, filed
on March 8, 2017, Dkt. 65.
I.

INTERESTS OF AMICI CURIAE
Muslim Advocates, a national legal advocacy and educational

organization formed in 2005, works on the frontlines of civil rights to guarantee
freedom and justice for Americans of all faiths. The issues at stake in this case
directly relate to Muslim Advocates’ work fighting institutional discrimination
against the American Muslim community.
American Muslim Health Professionals (“AMHP”) works to
improve the health of Americans. AMHP has three areas of focus: (1) health
promotion and education; (2) professional development; and (3) state and national
advocacy on public health issues. AMHP has been a leader in expanding
healthcare coverage through teams of state liaisons and working with interfaith
communities through its “Connecting Americans to Coverage” campaign.
Muppies, Inc., also known as Muslim Urban Professionals
(“Muppies”), is a nonprofit, charitable organization dedicated to empowering and
advancing Muslim business professionals to be leaders in their careers and

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communities. Muppies members are leaders in the fields of finance, consulting,
technology, venture capital, healthcare, entrepreneurship and social enterprise.
The National Arab American Medical Association (“NAAMA”) is
the largest international organization of Arab American health care providers,
trainees and medical students based in North America. Members of the association
include well-trained clinicians, high ranking university professors, leaders of
several medical societies, and scientists involved in cutting edge research and
innovation.
Network of Arab-American Professionals (“NAAP”) is a
professional organization grounded in the notion that all Arabs in America need to
connect to advance the community. NAAP promotes professional networking and
social interaction among Arab-American and Arab professionals in the United
States and abroad and educates both the Arab-American and non-Arab
communities about Arab culture, identity, and concerns.
II.

INTRODUCTION
Amici are business, education, finance, healthcare, legal, science,

technology, and other professional members of the American Muslim community
who are directly harmed and stigmatized by President Donald J. Trump’s executive
order of March 6, 2017 titled “Protecting the Nation from Foreign Terrorist Entry
into the United States” (the “Executive Order”), which revokes and replaces the

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January 27, 2017 Executive Order of the same title (the “Revoked Executive
Order”). Amici urge the Court to grant the Plaintiffs’ motion for a preliminary
injunction against enforcement of the Executive Order.
Like its predecessor, the Executive Order is unconstitutional on its
face. Its animating purpose is to reduce the flow of Muslims entering the United
States, based on the odious and false notion that Muslims are more likely than
others to commit or support acts of terrorism in America. This purpose was
broadcast by Mr. Trump during his campaign for the presidency, when he
promised “a total and complete shutdown of Muslims entering the United States,”
Ware Decl. Ex. 1, and proclaimed his belief that “Islam hates us,” and that it is
“very hard” to make a distinction between Islam and “radical Islam” because “you
don’t know who is who,” Ware Decl. Ex. 2. The same purpose animated the
Revoked Executive Order, which President Trump’s advisor and surrogate Rudy
Giuliani admitted was an attempt by the President to implement the “Muslim ban”
in a way that would pass legal muster. Ware Decl. Ex. 3. And the same purpose
has been carried through to the Executive Order, which President Trump’s Senior
Advisor and one of the architects of the Executive Order, Stephen Miller, has
admitted reflects the “same basic policy” as the Revoked Executive Order, Ware
Decl. Ex. 4, merely repackaged to address some of the original Order’s more
glaring due process concerns.

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The Constitution forbids government action that discriminates on the
basis of religion or that “conveys a message of endorsement or disapproval” of any
religion or religious group. Access Fund v. U.S. Dep’t of Agriculture, 499 F.3d
1036, 1045 (9th Cir. 2007). From its inception as a “Muslim ban” through its
failed implementation in the Revoked Executive Order and threatened re-implementation today, the Executive Order discriminates against Muslims and “conveys
a message of . . . disapproval” of Muslims. One need look no further than the
recent spate of hate crimes against persons perceived (often erroneously) to be
Muslim immigrants to see the danger inherent in such an insidious message. See,
e.g., Ware Decl. Ex. 5 (reporting the February 22, 2017 shooting in Olathe, Kansas
of two Indian men mistaken for Iranians); Ware Decl. Ex. 6 (reporting the March
3, 2017 shooting of an American man of Indian descent in Kent, Washington, by a
gunman who made statements to the effect of “Go back to your own country”);
Ware Decl. Ex. 7 (reporting a March 10, 2017 attempt to set fire to a convenience
store in Florida by a man who believed the owner was Muslim and wanted to “run
the Arabs out of our country”); Ware Decl. Ex. 8 (reporting a March 11, 2017
attack against an innocent restaurant employee in Oregon by a man wielding a
pipe, who had described the victim as a “Saddam Hussein-looking guy”). Ware
Decl. Ex. 9 (detailing at least four incidences of arson in the first two months of
2017 targeting U.S. mosques).

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Faced with damning evidence of its discriminatory motive, the
Government first argued that its actions and motives are immune from judicial
review. See, e.g., Aziz v. Trump, No. 1:17-cv-116-LMB-TCB, 2017 WL 580855,
at *5 (E.D. Va. Feb. 13, 2017) (noting Government’s argument that national
security judgments are beyond judicial review); see also Washington v. Trump, 847
F.3d 1151, 1161 (9th Cir. 2017) (noting Government’s contention that “the
President has ‘unreviewable authority to suspend the admission of any class of
aliens’”). The Ninth Circuit and other courts soundly rejected that argument. See,
e.g., Washington v. Trump, 847 F.3d at 1164 (“[I]t is beyond question that the
federal judiciary retains the authority to adjudicate constitutional challenges to
executive action.”); Aziz v. Trump, 2017 WL 580855, at *6 (“If the president’s
actions can be subject to judicial review when he is exercising his core Article II
powers . . . it follows that his actions are also subject to such review when he
exercises Article I powers delegated to him by Congress.”).
Now, the Executive Order seeks to erase its roots as a “Muslim ban”
by declaring by fiat that the Revoked Executive Order “did not provide a basis for
discriminating for or against members of any particular religion,” Executive Order
§ 1(b)(4), and by elaborating on the supposed national security purpose of the
policy, Executive Order § 1. But “the world is not made brand new every morning,” and this Court should reject the Government’s invitation to “turn a blind eye

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to the context in which [the] policy arose.” McCreary County v. Am. Civil
Liberties Union, 545 U.S. 844, 866 (2005). That context establishes that the
Executive Order is rooted in animus toward Muslims. It also establishes that the
articulated national security objectives have not, in fact, played a meaningful role
in the Executive Order’s design and implementation.
The irreparable harms threatened by the Executive Order’s enforcement are undeniable. “Because plaintiffs allege deprivation of a constitutional
right, no separate showing of irreparable harm is necessary.” Statharos v. New
York City Taxi and Limousine Comm’n, 198 F.3d 317, 322 (2d Cir.1999); Elrod v.
Burns, 427 U.S. 347, 373 (1976) (plurality) (deprivation of constitutional rights,
even for minimal periods of time, constitutes irreparable injury). If enforced, the
Executive Order threatens to again break apart families, stymie travel for religious,
work, family, and medical purposes, and destroy work and study opportunities,
among many other irreparable injuries. And it will do so on the basis of invidious
stereotypes about a minority religious group. Amici therefore respectfully urge the
Court to grant the requested preliminary injunction.
III.

ARGUMENT
A.

The Motives for the Executive Order Are Not Immune From
Judicial Review
Plaintiffs allege that the Executive Order was “intended to disfavor

Islam” and motivated by a desire to discriminate on the basis of religion and/or

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national origin, nationality, or alienage.” Proposed Second Amended Complaint
For Declaratory and Injunctive Relief at ¶¶ 108, 113, Hawai`i v. Trump,
No. 1:17-cv-00050-DKW-KSC (D. Haw. Mar. 7, 2017), ECF No. 58-1. Contrary
to arguments previously advanced by the Government in connection with the
Revoked Executive Order, the defendants’ motives in promulgating the Executive
Order are properly subject to meaningful judicial review even where the
Government is acting in the immigration or national-security sphere. Washington
v. Trump, 847 F.3d at 1161-64.
The anti-discrimination commands of the First and Fourteenth
Amendments, applicable to the Federal Government via the Fifth Amendment’s
Due Process Clause, apply in the immigration context. In Nguyen v. INS, 533 U.S.
53 (2001), the Court adjudicated a noncitizen’s Equal Protection challenges to
gender classifications in the statutory frameworks regulating derivative citizenship.
The Nguyen Court identified the “purpose of [the] statute” as the focus of the
inquiry, and carefully evaluated whether “important governmental interest[s]” were
furthered by the gender classification. Id. at 64, 67-68.
The so-called “plenary power’ doctrine, moreover, does not
extinguish this judicial scrutiny. See Zadvydas v. Davis, 533 U.S. 678, 695 (2001)
(holding that so-called “‘plenary power’ to create immigration law . . . is subject to
important constitutional limitations” in the treatment of aliens). The Supreme

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Court has long looked to “the historical record” to determine whether “the actions
at issue . . . were motivated by any racial animus.” INS v. Pangilinan, 486 U.S.
875, 886 (1988). As Justice Kennedy’s controlling opinion in Kerry v. Din directs,
courts should “look behind” the government’s stated reasons for a visa decision if
the plaintiff “plausibly alleged with sufficient particularity” “an affirmative
showing of bad faith.” 135 S. Ct. 2128, 2131 (2015). Here, that showing has been
abundantly made.
B.

The Executive Order Is Animated By Anti-Muslim Bias
Even before discovery, ample evidence supports Plaintiffs’ allegation

that the Executive Order is motivated, at least in substantial part, by negative and
false stereotypes about Muslims. This evidence is manifest in the context of the
Executive Order’s promulgation and on its face.
1.

The President’s Own Repeated Statements Confirm that the
Revoked Executive Order Was Intended to Implement His
Campaign Pledge to Put a Temporary Halt on Muslims
Entering the United States

Prior to taking office, then-candidate Donald J. Trump made
discrimination against Muslims a central pillar of his presidential campaign. On
November 18, 2015, in response to terror attacks in Paris, Mr. Trump stated that
“[w]e’re going to have no choice” but to close down some mosques in the United
States, where “some bad things are happening.” Ware Decl. Ex. 10. On
December 7, 2015, in the wake of the attack in San Bernardino, California,

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then-candidate Mr. Trump released a written statement, entitled “Donald J. Trump
Statement on Preventing Muslim Immigration,” which called for a “total and
complete shutdown on Muslims entering the United States until our country’s
representatives can figure out what is going on.” Ware Decl. Ex. 1. The statement
continued (emphasis added):
According to Pew Research, among others, there is great
hatred towards Americans by large segments of the Muslim
population. Most recently, a poll from the Center for Security
Policy released data showing “25% of those polled agreed that
violence against Americans here in the United States is justified
as a part of the global jihad” and 51% of those polled, “agreed
that Muslims in America should have the choice of being
governed according to Shariah.” Shariah authorizes such
atrocities as murder against non-believers who won’t convert,
beheadings and more unthinkable acts that pose great harm to
Americans, especially women.
The surveys cited in the statement had long since been discredited,
see Ware Decl. Ex. 11, but the message was clear: Many Muslims bear hostile
attitudes toward the United States and elevate violent ideology over American law.
This proposed “Muslim ban” became a core promise of the Trump
campaign, repeated by Mr. Trump and his advisors and surrogates at campaign
events across the country. Asked during a televised debate on January 14, 2016
whether he had rethought his “comments about banning Muslims from entering the
country,” Mr. Trump responded, “No.” Ware Decl. Ex. 12. On March 9, 2016,
Mr. Trump stated in a televised interview, “I think Islam hates us.” Ware Decl.

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Ex. 2. The full exchange between Mr. Trump and CNN’s Anderson Cooper is
instructive (emphasis added):
Cooper: Do you think Islam is at war with the West?
Trump: I think Islam hates us. There is something—there is
something there that is a tremendous hatred there. There’s a
tremendous hatred. We have to get to the bottom of it. There’s
an unbelievable hatred of us.
Cooper: In Islam itself?
Trump: You’re going to have to figure that out. OK. You’ll
get another Pulitzer, right? But you’ll have to figure that out.
But there’s a tremendous hatred. And we have to be very
vigilant. We have to be very careful. And we can’t allow
people coming into this country who have this hatred of the
United States . . . and of people that are not Muslim.
Cooper: I guess the question is, is there a war between the west
and radical Islam or between the west and Islam itself?
Trump: Well, it’s radical but it’s very hard to define. It’s very
hard to separate because you don’t know who is who.
Amid widespread outcry that the proposed Muslim ban would be
un-American and unconstitutional, Mr. Trump and his advisors began shifting their
rhetoric, all the while making clear that their goal continued to be some form of
ban on immigration by Muslims. On June 13, 2016, after the attack on a nightclub
in Orlando, Florida, Mr. Trump said in a speech: “I called for a ban after San
Bernardino, and was met with great scorn and anger, but now many are saying I
was right to do so.” Ware Decl. Ex. 13. Mr. Trump then specified that the Muslim
ban would be “temporary,” and apply to certain “areas of the world when [sic]
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there is a proven history of terrorism against the United States, Europe or our
allies, until we understand how to end these threats.” Ware Decl. Ex. 13. As
described below, the Executive Order ultimately adopted this framework.
Next, in a July 17, 2016 televised interview, Mr. Trump was
confronted with his then-running mate Mike Pence’s statement that the Muslim
ban would be unconstitutional. Mr. Trump’s response made clear that the same
purpose of stemming the flow of Muslim migrants would be pursued by other
ends: “So you call it territories, okay? We’re gonna do territories.” Ware Decl.
Ex. 14. A week later, in a July 24, 2016 interview, Mr. Trump was asked if his
shifting rhetoric signified a “rollback” from his proposed “Muslim ban.” He
answered: “I don’t think so. I actually don’t think it’s a rollback. In fact, you
could say it’s an expansion. I’m looking now at territories. People were so upset
when I used the word Muslim. ‘Oh, you can’t use the word Muslim.’ . . . And I’m
okay with that, because I’m talking territory instead of Muslim.” Ware Decl.
Ex. 15. And on October 9, 2016, during a televised presidential debate, Mr. Trump
stated, “The Muslim ban is something that in some form has morphed into a[n]
extreme vetting from certain areas of the world.” Ware Decl. Ex. 16.
On January 27, 2016, President Trump fulfilled his campaign promise
by signing the Revoked Executive Order. Among other things, the Revoked
Executive Order temporarily banned entry from (initially) seven countries whose

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nationals are overwhelmingly Muslim, temporarily suspended the entire U.S.
Refugee Admissions Program, established a policy of prioritizing certain religious
denominations over others upon resuming the program, and indefinitely barred
entry of Syrian refugees.
On the day he signed the Revoked Executive Order, President Trump
stated that one of the purposes of the changes in refugee policy he was adopting
was to favor Christian refugees over Muslim refugees. Ware Decl. Ex. 17 (claiming that “[i]f you were a Muslim [in Syria] you could come in [to the United
States], but if you were a Christian, it was almost impossible . . . . And I thought it
was very, very unfair. So we are going to help them [Christian refugees]”).1 This
religious-based preference was reflected in Sections 5(b) and 5(e) of the Revoked
Executive Order, which limited refugee claims based on religious-based persecution to individuals whose religion is a “minority religion in the individual’s country
of nationality.” Notably, the vast majority of the 38,000 Muslim refugees admitted
to the United States in 2016 were nationals of the seven Muslim-majority countries
identified in the Revoked Executive Order.2 Sections 5(b) and 5(e) of the Revoked
Executive Order would have rendered them ineligible for the religious-based
persecution preference.
1

See also Ware Decl. Ex. 18 (“Christians in the Middle-East have been
executed in large numbers. We cannot allow this horror to continue!”).
2

See Ware Decl. Ex. 19.

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The following day, January 28, 2017, President Trump’s advisor and
surrogate Rudy Giuliani admitted that the policy implemented in the Revoked
Executive Order resulted from an instruction by the President to find “the right
way” to “legally” implement the “Muslim ban.” Ware Decl. Ex. 3. As of the date
of this amicus submission, the Trump campaign’s December 7, 2015, press release
entitled “Donald J. Trump Statement on Preventing Muslim Immigration,” remains
on the Donald J. Trump campaign website3 and on President Trump’s Twitter
page,4 which President Trump has continued to use regularly (and apparently in an
official capacity) even after taking office.
2.

The Context of the Executive Order Confirms that It Is
the Same Basic Policy As the Revoked Executive Order

The Supreme Court has consistently held that a state actor cannot
circumvent the Constitution’s prohibitions on discrimination merely by rescinding
and reenacting the same policy with slight or technical variations. For example, in
a series of decisions called the White Primary cases, “the Court, in 1927, held
unconstitutional a Texas law barring black voters from participating in primary
election; in 1944, the Court struck down a ‘reenacted’ and slightly altered version
of the same law; and in 1953, the Court once again confronted an attempt by Texas
to ‘circumven[t]’ the Fifteenth Amendment by adopting yet another variant of the
3

Ware Decl. Ex. 1.

4

Ware Decl. Ex. 20.

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all-white primary. . . .” Shelby Cty., Ala. v. Holder, 133 S. Ct. 2612, 2633 (2013)
(citations omitted).
The context surrounding issuance of the replacement Executive Order
demonstrates that the Government here is attempting just such a circumvention of
the Constitutional prohibitions against religious discrimination. By the Government’s own admissions, the Executive Order and the Revoked Executive Order
reflect the same basic policy motivation.
On February 3, 2017, the U.S. District Court for the Western District
of Washington issued a Temporary Restraining Order enjoining the enforcement of
the Revoked Executive Order on a “nationwide basis.” Washington v. Trump,
No. 2:17-cv-00141-JLR (W.D. Wash. Feb. 3, 2017), ECF No. 52. President
Trump responded in a pair of Twitter posts that, as a result of the restraining order,
“many bad and dangerous people may be pouring into” the United States, and
vowed to have the decision of “this so-called judge” overturned. Ware Decl.
Ex. 21.
After the Ninth Circuit upheld the injunction on February 9, 2017,
President Trump signaled his intent to continue litigating the validity of the
Revoked Executive Order, posting on Twitter, “SEE YOU IN COURT,
THE SECURITY OF OUR NATION IS AT STAKE!” Ware Decl. Ex. 22,
capitalization included in original.

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One week later, however, on February 16, 2017, the Government
sought to discontinue litigation over the Revoked Executive Order by notifying the
courts that “the President intends in the near future to rescind the [Revoked
Executive Order] and replace it with a new substantially revised Executive Order.”
Appellants’ Supplemental Brief on En Banc Consideration at 4, Washington v.
Trump, No. 17-35105 (9th Cir. Feb. 16, 2017), ECF No. 154. That notice notwithstanding, on February 21, 2017, White House Press Secretary Sean Spicer told
reporters that the President would be updating—rather than rescinding—the
Revoked Executive Order. Ware Decl. Ex. 23.
That same day (February 21, 2017), Stephen Miller, a senior advisor
to the President and one of the chief architects of the immigration ban policy,5
Ware Decl. Ex. 24, explained in an interview with Fox News that, in the
Administration’s view: (a) “nothing was wrong with the [Revoked Executive
Order]”; (b) the Ninth Circuit decision declining to lift the injunction against the
Revoked Executive Order was “flawed” and “erroneous”; (c) the President would

5

Mr. Miller has long espoused discriminatory views of Islam. In a column
published in his high school newspaper, Mr. Miller wrote, “We have all heard
about how peaceful and benign the Islamic religion is, but no matter how many
times you stay that, it cannot change the fact that millions of radical Muslims
would celebrate your death for the simple reason that you are Christian, Jewish or
American.” Ware Decl. Ex. 24. Mr. Miller later as a senior in college established
the “Terrorism Awareness Project,” an initiative, he wrote, aimed at educating
students about the risk of “Islamofascism.” Ware Decl. Ex. 25.

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nevertheless be issuing a new executive order that would address the “very
technical issues that were brought up by the court”; (d) the new executive order
would differ from the Revoked Executive Order only in “minor technical” ways;
and (e) “the same basic policy outcome” would remain in place under the new
executive order. Ware Decl. Ex. 4.
3.

The Executive Order Reflects Anti-Muslim Bias on its Face

The Executive Order purports to repudiate “animus toward any
religion”—but manifestly fails. As was the case with the Revoked Executive
Order, the Executive Order singles out countries that are overwhelmingly Muslim,6
while at the same time ignoring other countries, such as Colombia, the Philippines,
and Venezuela, that have been designated by the U.S. State Department as safe
havens for terrorist groups but whose populations are not majority Muslim. Ware
Decl. Ex. 27.
Moreover, key language evincing stereotypical beliefs about Muslims
appeared in the Revoked Executive Order and is repeated in the Executive Order.
Section 1 of the Revoked Executive Order stated in part (emphasis added):
The United States cannot, and should not, admit those who do
not support the Constitution, or those who would place violent
6

The countries singled out by the Executive Order include: Iran (99.5%
Muslim), Libya (96.6% Muslim), Somalia (99.8% Muslim), Sudan (90.7%
Muslim), Syria (92.8% Muslim), Yemen (99.1% Muslim), and Iraq (99.0%
Muslim). See Exec. Order 13,780 §§ 1(f), 2(c), 4; Ware Decl. Ex. 26.

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ideologies over American law. In addition, the United States
should not admit those who engage in acts of bigotry or
hatred (including “honor” killings, other forms of violence
against women, or the persecution of those who practice
religions different from their own) or those who would oppress
Americans of any race, gender, or sexual orientation.
This statement played off the false and bigoted notion, repeated by
then-candidate Mr. Trump throughout the presidential campaign, that Muslims are
more likely than others to place violent ideology over American law and to engage
in “honor killings” and other forms of violence against women. See Ware Decl.
Ex. 1 (claiming that “Shariah authorizes such atrocities as murder against nonbelievers who won’t convert, beheadings and more unthinkable acts that pose great
harm to Americans, especially women.”).
Section 11(iii) of the Executive Order reiterates this same invidious
association by ordering the Secretary of Homeland Security to collect “information
regarding the number and types of acts of gender-based violence against women,
including so-called ‘honor killings,’ in the United States by foreign nationals.”
The idea of honor killings is commonly and falsely associated with
Islam and Muslims.7 By citing honor killings as the most noteworthy kind of
7

See, e.g., Resolution 1327 (2003) of the Council of Europe (“The Assembly
notes that whilst so-called ‘honour crimes’ emanate from cultural and not religious
roots and are perpetrated worldwide (mainly in patriarchal societies or communities), the majority of reported cases in Europe have been amongst Muslim or
migrant Muslim communities (although Islam itself does not support the death
penalty for honour-related misconduct).”)
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gender-based violence, both Executive Orders suggest that Muslims as a group are
more prone to such gender-based violence than other groups. This is consistent
with the underlying false premise of the Executive Order that persons from
enumerated Muslim-majority countries are more prone to violence than other
groups.8 This is also consistent with Mr. Trump’s repeated claims during the
presidential campaign that “large segments of the Muslim population” hate
Americans and that many Muslims want to be governed according to a violent
ideology that authorizes “beheadings and more unthinkable acts that pose great
harm to Americans, especially women.” Ware Decl. Ex. 1.
Accordingly, the text of the Executive Order itself contains evidence
of invidious generalizations about a protected class that show “bad faith” and a
discriminatory intent. Kerry v. Din, 135 S. Ct. at 2131.
4.

The Development of the Executive Order Demonstrates that
its National Security Justifications are Pretextual

The Equal Protection Clause prohibits “a classification that is
ostensibly neutral but is an obvious pretext for … discrimination.” Pers. Adm’r of
Massachusetts v. Feeney, 442 U.S. 256, 272 (1979). Even when a law lacks a
facial classification, evidence of “both impermissible . . . motivation and . . .
8

Following the TRO issued in Washington v. Trump suspending the Revoked
Executive Order, 2:17-cv-00141-JLR (W.D. Wash. Feb. 3, 2017), ECF No. 52,
Mr. Trump posted on Twitter, “Because the ban was lifted by a judge, many very
bad and dangerous people may be pouring into our country.” Ware Decl. Ex. 21.

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discriminatory impact” require a court to look behind the government’s proffered
justification. Hunter v. Underwood, 471 U.S. 222, 232 (1985) (rejecting proffered
legitimate purpose for felon disenfranchisement law as pretextual); see also Shaw
v. Hunt, 517 U.S. 899, 932–33 (1996) (noting use of pretext analysis in discrimination cases “[i]n a variety of contexts, from employment to juror selection”).
Similarly, in the Establishment Clause context, the secular purpose behind a policy
“has to be genuine, not a sham, and not merely secondary to a religious objective.”
McCreary, 545 U.S. at 864. “It is well established that evidence of purpose
beyond the face of the challenged law may be considered in evaluating
Establishment and Equal Protection Clause claims.” Washington v. Trump, 847
F.3d at 1167.
Plaintiffs are likely to succeed in establishing that the purported
legitimate justifications for the singling out of six countries in Section 2(c) of the
Executive Order are pretextual. The Executive Order’s purposes remain the
discriminatory and religious purposes that propelled the Revoked Executive Order.
First, as noted above, the President’s own Senior Advisor, a key
engineer of the Executive Order policy, has admitted that the Executive Order has
“the same basic policy outcome” as the Revoked Executive Order and that the
changes between the two Orders were limited to addressing “very technical issues
that were brought up by the court.” Ware Decl. Ex. 4.

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Second, the Government’s own analyses and data contradict the
national security justification for singling out nationals of the six listed nations. In
an analysis prepared at the request of the Department of Homeland Security (DHS)
leadership in the wake of the courts’ injunction of the Revoked Executive Order,
analysts within the DHS analyzed data from the DHS, the State Department, and
the Justice Department concerning the association between these nationalities and
terrorism risk. The DHS analysts concluded that “country of citizenship is
unlikely to be a reliable indicator of potential terrorism activity.” Ware Decl.
Ex. 28, at 1.
The Executive Order nevertheless seeks to create an association
between the designated countries and terrorism risk by cherry-picking two past
cases. Executive Order § 1(h). Tellingly, however, neither case supports the
Order’s scope. The first case involved two Iraqi nationals—a curious choice given
that the Executive Order removes Iraq from the original list of countries included
in the ban under the Revoked Executive Order. Moreover, neither of the Iraqi
nationals in question was planning an attack in the United States.9 The second case
involved a Somali national admitted to the United States “as a child refugee” who
“later became a naturalized United States citizen” and subsequently, as an adult,
engaged in terrorist activity. The Order does not explain how increased vetting of
9

Ware Decl. Ex. 29.

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refugee children, however, would or could identify those who may pose a risk of
committing acts of violence many years later—as adults, and after becoming
American citizens.
The DHS’s analysis is corroborated by a number of independent
analyses, including without limitation:
 The Cato Institute’s analysis of terrorism conviction data demonstrated that
“the chance of an American being murdered in a terrorist attack caused by a
refugee is 1 in 3.64 billion per year.” Ware Decl. Ex. 30.
 An analysis of Justice Department data by a former FBI analyst demonstrated
that “[a]bsolutely nothing in the large body of data we have about real terrorist
plots in the United States remotely supports either a focus on barring refugees
or a focus on these particular seven countries.” Ware Decl. Ex. 31.
 Another independent analysis demonstrates that the Justice Department’s own
data also is inconsistent with claims that “foreign-born individuals have a
greater propensity to commit terrorism, and that limiting foreign-born
individuals’ travel into the United States on this basis will have a positive
impact on national security.” Ware Decl. Ex. 32.
 In a letter to President Trump dated March 10, 2017, 134 former high-ranking
foreign policy officials in Republican and Democratic administrations stated
unequivocally that “[t]he revised executive order is damaging to the strategic

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and national security interests of the United States.” Ware Decl. Ex. 33, at 2
(emphasis added).
Third, the manner in which the administration implemented the
Executive Order belies any purported national security imperative of the ban.
Contrary to the President’s rhetoric of “bad and dangerous people” supposedly
“pouring” into the country as a result of court orders enjoining the Revoked
Executive Order, Ware Decl. Ex. 21, the White House is reported to have
repeatedly delayed signing the replacement Executive Order for political and
public relations reasons having nothing to do with national security. Ware Decl.
Ex. 34.
5.

That the Executive Order Halts Immigration by Many but
Not All Muslims In No Way Defeats Plaintiffs’ Allegations
of Animus

The fact that the Executive Order implements President Trump’s
campaign promise to halt Muslim immigration to the United States partially, rather
than fully, and does nothing to weaken the evidence of anti-Muslim bias described
above. In no other context is it the case that a failure to discriminate against all
members of a suspect class defeats any claim of discrimination. In United States v.
Windsor, for example, the Court invalidated on Equal Protection grounds a federal
statute “motived by an improper animus” against gays and lesbians. 133 S. Ct.
2675, 2693 (2013). The Court invalidated the statute even though it only applied

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to the subset of gays and lesbians who chose to marry. Id. at 2683.
A requirement that a discriminatory policy cover all and only
members of a protected class would invite the circumvention of constitutional
rights. Those motivated by unlawful purposes could easily avoid judicial review
by simply tweaking the scope of their actions—as the Government has attempted
to do in implementing its “Muslim ban” policy.
C.

The Executive Order Disproportionately Impacts Muslims
If allowed to be enforced, the Executive Order threatens to again

cause immediate suffering to U.S. citizens and lawful permanent residents with
family members excluded or exiled by the ban; to American civil society and
religious groups wishing to invite scholars and religious leaders; to universities and
businesses seeking to recruit the best available talent; and to nationals of the listed
countries currently in the United States on single-entry visas or visas that may
expire during the period of the ban; among others. 10 As American Muslims,
Amici are acutely threatened by these injuries.

10

See e.g., Ware Decl. Ex. 35 (detailing the struggles of families with children
affected by the Revoked Executive Order), Ware Decl. Ex. 36 (documenting the
experience of individuals affected by the Revoked Executive Order), Ware Decl.
Ex. 37 (discussing the complications suffered by children who had planned to seek
medical care in the United States), Ware Decl. Ex. 38 (detailing difficulties caused
by the Revoked Executive Order to medical professional working abroad).

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Amici also suffer an additional injury as a result of the stigma that has
attached to all American Muslims (and those perceived as Muslim as a consequence of their ethnicity), unfairly and irrationally, as a result of the Executive
Order and the public pronouncements of the President and his advisors in connection therewith. Contrary to the misperception spread by the “Muslim ban,” the
presence of Muslims in America is not a threat to American security. Muslims
have been a part of America since its founding, when 10-15% of slaves forcibly
brought to America were Muslim. Today, Muslims represent 1% of the U.S.
population. Muslims have expended their blood, sweat, and tears building and
defending the United States. In fact, today, more than 5,000 Muslims serve in the
U.S. military, and many have given their lives in recent wars in defense of U.S.
interests. They also provide necessary healthcare, educate our nation’s children,
create jobs, and contribute innovation that is an essential driver of our nation’s
economic growth.11
IV.

CONCLUSION
The Government has no legitimate interest in discriminating against

Muslims or in exploiting “negative attitudes, or fear” toward Muslims. City of
Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 448 (1985). The invidious

11

See generally Kambiz Ghanea Bassiri, A History of Islam in America: From
the New World to the New World Order (Cambridge 2010).

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stereotype that “Islam hates us”—or that Muslims, in the words of the Revoked
Executive Order, “bear hostile attitudes toward [the United States] and its founding
principles” and “would place violent ideologies over American law”—was not a
legitimate basis for the Revoked Executive Order and is not a legitimate basis for
the replacement Executive Order.
The policy underlying the Executive Order is pervaded by an
unconstitutional animus toward Muslims and, if not enjoined, will cause immediate
and irreparable injury to numerous American Muslim and their families and loved
ones. Amici therefore urge the Court to grant the requested preliminary injunction.
Dated: Honolulu, Hawai`i, March 14, 2017.
Respectfully submitted,

/s/ Nickolas A. Kacprowski
ALSTON HUNT FLOYD & ING
NICKOLAS A. KACPROWSKI
ARNOLD & PORTER KAYE SCHOLER LLP
ANTON A. WARE (pro hac vice)
MUSLIM ADVOCATES
JOHNATHAN SMITH (pro hac vice)
JUNAID SULAHRY (pro hac vice)
Attorneys for Proposed Amici Curiae
Muslim Advocates; American Muslim
Health Professionals; Muppies, Inc.;
The National Arab American Medical
Association; and Network of ArabAmerican Professionals

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