State of Hawaii v. Trump

Filing 2

MOTION for Temporary Restraining Order Douglas S.G. Chin appearing for Plaintiff State of Hawaii (Attachments: # 1 Memorandum in Support of TRO, # 2 Certificate with Word Count, # 3 Proposed TRO)(Chin, Douglas)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI‘I

STATE OF HAWAI‘I,
Plaintiff,

v.

Civil Action No. ________

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,

MEMORANDUM IN SUPPORT
OF PLAINTIFF’S MOTION
FOR TEMPORARY
RESTRAINING ORDER

Defendants.

MEMORANDUM IN SUPPORT OF PLAINTIFF’S
MOTION FOR TEMPORARY RESTRAINING ORDER

TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ................................................................................... iii
INTRODUCTION ..................................................................................................... 1
FACTUAL BACKGROUND .................................................................................... 2
A.

Candidate Trump Calls For A Muslim Ban ..................................... 2

B.

President Trump Implements His Discriminatory
Bans .................................................................................................. 4

C.

The Order’s Impact .......................................................................... 8

STANDARD OF REVIEW ..................................................................................... 11
ARGUMENT ........................................................................................................... 11
A.

Hawai‘i Is Likely To Succeed on the Merits of Its
Claims............................................................................................. 12
1.

The Order Violates the Establishment Clause ..................... 12

2.

The Order Violates Equal Protection and the
Fifth Amendment’s Due Process Clause ............................. 18
a.
b.

The Order violates procedural due
process ....................................................................... 21

c.
3.

The Order violates equal protection and
the right to travel ....................................................... 19

The plenary-power doctrine does not
change the outcome ................................................... 23

The Order is Inconsistent with the Immigration
and Nationality Act .............................................................. 26
a.

The order’s nationality-based
classifications violate the INA .................................. 26
i

TABLE OF CONTENTS—Continued
Page
b.
c.

4.

The Order’s religion-based
classifications violate the INA .................................. 28
The INA does not authorize the President
to impose sweeping class-based
restrictions on immigration ....................................... 29

The Order’s Implementation Violates the APA .................. 32

B.

Hawai‘i Will Suffer Irreparable Harm If Relief Is
Not Granted ................................................................................. 35

C.

The Balance of the Equities and Public Interest
Favor Relief ................................................................................. 38

CONCLUSION ........................................................................................................ 39

ii

TABLE OF AUTHORITIES
Page(s)
CASES:
Access Fund v. U.S. Dep’t of Agric.,
499 F.3d 1036 (9th Cir. 2007) ......................................................................13, 16
Alfred L. Snapp & Son, Inc. v. Puerto Rico,
458 U.S. 592 (1982) ............................................................................................ 38
Arizona Dream Act Coal. v. Brewer,
757 F.3d 1053 (9th Cir. 2014) ............................................................................ 36
Bond v. United States,
564 U.S. 211 (2011) ............................................................................................ 36
Casas-Castrillon v. Dep’t of Homeland Sec.,
535 F.3d 942 (9th Cir. 2008) .............................................................................. 22
Chaplaincy of Full Gospel Churches v. England,
454 F.3d 290 (D.C. Cir. 2006) ............................................................................ 35
City of Sausalito v. O’Neill,
386 F.3d 1186 (9th Cir. 2004) ............................................................................ 34
Clinton v. City of New York,
524 U.S. 417 (1998) ............................................................................................ 32
Davis v. Passman,
442 U.S. 228 (1979) ............................................................................................ 19
Edwards v. Aguillard,
482 U.S. 578 (1987) ............................................................................................ 15
Employment Div. v. Smith,
494 U.S. 872 (1990) ............................................................................................ 19
Farris v. Seabrook,
677 F.3d 858 (9th Cir. 2012) ........................................................................11, 35

iii

TABLE OF AUTHORITIES—Continued
Page
FDA v. Brown & Williamson Tobacco Corp.,
529 U.S. 120 (2000) ............................................................................................ 32
Grayned v. City of Rockford,
408 U.S. 104 (1972) ............................................................................................ 23
Hampton v. Mow Sun Wong,
426 U.S. 88 (1976) ........................................................................................19, 24
Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC,
565 U.S. 171 (2012) ......................................................................................12, 13
In re Griffiths,
413 U.S. 717 (1973) ............................................................................................ 19
INS v. Aguirre-Aguirre,
526 U.S. 415 (1999) ............................................................................................ 28
INS v. Cardoza-Fonseca,
480 U.S. 421 (1987) ............................................................................................ 28
Kent v. Dulles,
357 U.S. 116 (1958) ............................................................................................ 21
Khan v. Holder,
584 F.3d 773 (9th Cir. 2009) .............................................................................. 28
Kleindienst v. Mandel,
408 U.S. 753 (1972) ..........................................................................17, 23, 24, 25
Kwai Fun Wong v. United States,
373 F.3d 952 (9th Cir. 2004) .............................................................................. 24
Landon v. Plasencia,
459 U.S. 21 (1982) ........................................................................................21, 22
Larson v. Valente,
456 U.S. 228 (1982) ......................................................................................13, 17
iv

TABLE OF AUTHORITIES—Continued
Page
Legal Assistance for Vietnamese Asylum Seekers v. Dep’t of State,
Bureau of Consular Affairs, 45 F.3d 469 (D.C. Cir. 1995),
vacated on other grounds, 519 U.S. 1 (1996) .................................................... 26
Lemon v. Kurtzman,
403 U.S. 602 (1971) ................................................................................13, 16, 18
Lincoln v. Vigil,
508 U.S. 182 (1993) ............................................................................................ 32
Mathews v. Eldridge,
424 U.S. 319 (1976) ............................................................................................ 22
McCreary Cty., Ky. v. Am. Civil Liberties Union of Ky.,
545 U.S. 844 (2005) ......................................................................................15, 16
Melendres v. Arpaio,
695 F.3d 990 (9th Cir. 2012) .............................................................................. 38
Miller v. Johnson,
515 U.S. 900 (1995) ......................................................................................19, 21
Missouri v. Holland,
252 U.S. 416 (1920) ............................................................................................ 36
Olsen v. Albright,
990 F. Supp. 31 (D.D.C. 1997) ........................................................................... 27
Oracle USA, Inc. v. Rimini St., Inc.,
2016 WL 5213917 (9th Cir. Sept. 21, 2016) ...................................................... 37
Patel v. INS,
811 F.2d 377 (7th Cir. 1987) .............................................................................. 28
Rosenberg v. Fleuti,
374 U.S. 449 (1963) ............................................................................................ 22
Sacora v. Thomas,
628 F.3d 1059 (9th Cir. 2010) ............................................................................ 33
v

TABLE OF AUTHORITIES—Continued
Page
Shelby Cty. v. Holder,
133 S. Ct. 2612 (2013) ........................................................................................ 36
Stone v. Graham,
449 U.S. 39 (1980) (per curiam) ...................................................................13, 14
Time Warner Cable Inc. v. FCC,
729 F.3d 137 (2d Cir. 2013) ............................................................................... 33
Town of Greece, N.Y. v. Galloway,
134 S. Ct. 1811 (2014) ..................................................................................16, 17
United Dominion Indus. v. United States,
532 U.S. 822 (2001) ......................................................................................27, 30
United States v. Juvenile Male,
670 F.3d 999 (9th Cir. 2012) .............................................................................. 30
United States v. Windsor,
133 S. Ct. 2675 (2013) ........................................................................................ 20
Utley v. Varian Assocs., Inc.,
811 F.2d 1279 (9th Cir. 1987) ............................................................................ 15
Wallace v. Jaffree,
472 U.S. 38 (1985) .............................................................................................. 14
Whitman v. Am. Trucking Ass’ns,
531 U.S. 457 (2001) ............................................................................................ 32
Winter v. Nat. Res. Def. Council,
555 U.S. 7 (2008) ................................................................................................ 11
Wong Wing Hang v. INS,
360 F.2d 715 (2d Cir. 1966) (Friendly, J.) ......................................................... 28
Zadvydas v. Davis,
533 U.S. 678 (2001) ................................................................................21, 23, 24
vi

TABLE OF AUTHORITIES—Continued
Page
STATUTES:
5 U.S.C. § 553(b)-(c) ............................................................................................... 32
5 U.S.C. § 706(2) ..................................................................................................... 34
8 U.S.C. § 1152(a)(1)(A) .......................................................................26, 27, 28, 30
8 U.S.C. § 1182(f) ..................................................................................26, 29, 30, 32
8 U.S.C. § 1522(a)(5) ............................................................................................... 29
Haw. Rev. Stat. §§ 378-2(1) .................................................................................... 35
CONSTITUTIONAL PROVISIONS
U.S. Const. amend. I ..........................................................................................12, 35
U.S. Const. amend. V.........................................................................................11, 21
U.S. Const. amend. XIV .......................................................................................... 19
U.S. Const. art. I, § 8................................................................................................ 24
Hawai‘i Const. art. 1, §§ 2, 4 ................................................................................... 35
LEGISLATIVE MATERIAL:
H.R. Rep. No. 89-745 (1965)................................................................................... 26
OTHER AUTHORITIES:
1 Annals of Cong. 730-731 (1789) .......................................................................... 13
Cong. Research Serv., Executive Authority to Exclude Aliens: In
Brief (Jan. 23, 2017) ........................................................................................... 30
Statement by Secretary John Kelly on the Entry of Lawful Permanent
Residents Into the United States (Jan. 29, 2017) ................................................ 31

vii

TABLE OF AUTHORITIES—Continued
Page
United Nations Convention Relating to the Status of Refugees art. 3,
July 28, 1951, 19 U.S.T. 6259 ......................................................................26, 28

viii

INTRODUCTION
On January 27, 2017, President Donald Trump signed an Executive Order
that banned immigrants from seven Muslim-majority countries and created a
preference for Christian refugees. That Order has triggered an uproar across the
United States and the world. And rightfully so: As many have observed, the Order
is a distressing departure from an American tradition that has long celebrated
immigrants and opened its arms to the homeless, the tempest-tossed.
Hawai‘i joins the many voices that have condemned the Order. But this
pleading is not about politics or rhetoric—it is about the law. The simple fact is
that the Order is unlawful. By banning Muslims and creating a preference for
Christian refugees, the Order violates the Establishment Clause of the United
States Constitution. By those same acts, it violates the equal protection guarantee
of the Fifth Amendment. By failing utterly to provide procedures or protections of
any kind for people detained or turned away at our airports, it violates the Due
Process Clause. And by enshrining rank discrimination on the basis of nationality
and religion, it flies in the face of statutes enacted by Congress.
Hawai‘i and its residents are being grievously harmed by these violations of
the law. The Order is keeping Hawaiʻi families apart; it is blocking Hawaiʻi
residents from traveling; it is using the State’s airport facilities to further
discriminatory policies the State abhors; it is harming Hawaii’s critical tourism

1

industry; it is establishing a religion in Hawai‘i against the will of its residents; and
it is blocking Hawaii’s businesses and universities from hiring as they see fit.
Perhaps most importantly, it is degrading the pluralistic values Hawai‘i has worked
hard to protect and subjecting an identifiable portion of its population to
discrimination and second-class treatment.
Hawai‘i respectfully asks this Court to enter a temporary restraining order
blocking enforcement of key portions of the Order. The test for such a remedy is
met: Hawai‘i is likely to succeed in showing on the merits that the Order is
unlawful several times over. The State is being irreparably harmed by the Order’s
enforcement. And those harms far outweigh the non-existent interest the
Executive Branch has identified in enforcing its discriminatory regime. The
motion should be granted.
FACTUAL BACKGROUND
A.

Candidate Trump Calls For A Muslim Ban.

Then-candidate Donald Trump made it crystal clear throughout his
presidential campaign that if elected, he planned to bar Muslims from the United
States. Shortly after the Paris attacks in December 2015, Mr. Trump issued a press
release calling for “a total and complete shutdown of Muslims entering the United
States until our country’s representatives can figure out what is going on.” Compl.
¶ 30 & Ex. 5. When questioned about the idea shortly thereafter, he compared it to

2

President Roosevelt’s race-based internment of the Japanese during World War II,
saying, “[Roosevelt] did the same thing.” Compl. ¶ 31. And when asked what the
customs process would look like for a Muslim non-citizen attempting to enter the
United States, Mr. Trump said: “[T]hey would say, are you Muslim?” An
interviewer responded: “And if they said ‘yes,’ they would not be allowed into the
country.” Mr. Trump said: “That’s correct.” Id.
Later, as the presumptive Republican nominee, Mr. Trump began using
facially neutral language to describe the Muslim ban; he described his proposal as
stopping immigration from countries “where there’s a proven history of terrorism.”
Compl. ¶ 34. But he continued to link that idea to the need to stop “importing
radical Islamic terrorism to the West through a failed immigration system.” Id.
And he continued to admit, when pressed, that his plan to ban Muslims remained
intact. Asked in July 2016 whether he was retracting his call for “a total and
complete shut-down of Muslim” immigration, he said: “I don’t think it’s a
rollback. In fact, you could say it’s an expansion.” Compl. ¶ 36 & Ex. 6. And he
explained: “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.” Id.
Indeed, it is now clear that Mr. Trump—apparently recognizing that he
could not come right out and implement his Muslim ban without violating the

3

law—was working behind the scenes to create a suitable subterfuge. In a recent
television interview, one of the President’s surrogates explained what happened:
“So when [Donald Trump] first announced it, he said, ‘Muslim ban.’ He called me
up. He said, ‘Put a commission together. Show me the right way to do it legally.’”
Compl. ¶ 54 & Ex. 8. After his election, the President-Elect signaled that he would
not retreat from his Muslim ban. On December 21, 2016, he was asked whether he
had decided “to rethink or re-evaluate [his] plans to create a Muslim registry or ban
Muslim immigration to the United States.” He replied: “You know my plans. All
along, I’ve been proven to be right.” Compl. ¶ 38.
Donald Trump’s comments also targeted more specific groups. Throughout
the presidential campaign, he vowed to curb refugee admissions, particularly from
Syria. In June 2016, he issued a press release stating: “We have to stop the
tremendous flow of Syrian refugees into the United States.” Compl. ¶ 35. At one
point, he promised to deport the 10,000 Syrian refugees the Administration had
accepted for 2016. Compl. ¶ 29. Meanwhile, he asserted (wrongly) that Christian
refugees from Syria were being blocked. He said in July 2015: “If you’re * * * a
Christian, you cannot come into this country.” Compl. ¶ 28.
B.

President Trump Implements His Discriminatory Bans.

Within one week of being sworn in as President, Donald Trump acted upon
his ominous campaign promises. On January 27, 2017, he signed an Executive

4

Order (“Order”), entitled “Protecting the Nation From Terrorist Entry into the
United States.” Compl. ¶¶ 2, 41 & Ex. 1. When signing the Order, President
Trump read its title, looked up, and said: “We all know what that means.” Compl.
¶ 43.
The Order has two dramatic effects: It categorically bans immigration from
seven Muslim-majority countries for a set period; and it halts admission of any
refugees, subject to a targeted carve-out for members of “minority religion[s]” in
each country.
First, Section 3(c) of the Order “suspend[s the] entry into the United States,
as immigrants and nonimmigrants,” of nearly all aliens from seven Muslimmajority countries—Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen—“for 90
days from the date of this order.” Exceptions are made for narrow categories of
diplomats. Putting aside those diplomats, Section 3(c) means that for 90 days all
non-U.S. citizens from those seven countries are barred. And it means that even
people who have been living legally in the United States—foreign students
enrolled in U.S. universities, refugees already granted asylum here, and people
employed in the United States on temporary work visas, among others—will be
halted at the border if they travel outside the United States. Section 3(g) gives the
Secretaries of Homeland Security and State discretion to “on a case-by-case basis
* * * issue visas or other immigration benefits to nationals of countries for which

5

visas and benefits are otherwise blocked.” Id. However, it provides no procedure
for an alien to request such an exception or for the Secretaries to process one.
By its plain terms, this order bars lawful permanent residents (LPRs) from
the seven prohibited nations from reentering the country. Two days after the order
was issued, Secretary of Homeland Security Kelly issued a press release purporting
to categorically exempt LPRs from the travel ban. Compl. ¶ 62. Four days later,
the White House changed its mind and issued a memorandum stating that, despite
the order’s language, LPRs were not covered in the first place. Compl. ¶ 64.
While the Order’s immigration ban currently applies only to people from the
seven designated countries, the Order indicates that more will be added to the list.
It directs the Secretary of State to “request [that] all foreign governments” provide
the United States with information necessary “to adjudicate any visa, admission, or
other [immigration] benefit * * * in order to determine that the individual * * * is
not a security or public-safety threat.” Id. § 3(a), (d). Foreign countries must “start
providing such information [to the United States] regarding their nationals within
60 days of notification.” Id. § 3(d). If foreign countries do not comply, the
Secretaries of Homeland Security and State are directed to “submit to the President
a list of [those] countries recommended for inclusion” in the immigration ban. Id.
§ 3(e).

6

The Order also bars refugees—and it does so in a way that discriminates
based on religion. Sections 5(a) and (b) impose a 120-day moratorium on the U.S.
Refugee Admissions Program, and Section 5(c) suspends entry of Syrian refugees
indefinitely. When refugee admissions resume, the Order directs the Secretary of
State to prioritize refugees claiming religious-based persecution, “provided that the
religion of the individual is a minority religion in the individual’s country of
nationality.” Id. § 5(b). It also provides that even during the initial 120-day
period, the Secretaries of State and Homeland Security can admit refugees on a
case-by-case basis, but only when doing so is “in the national interest.” Id.
§ 5(e). Three circumstances automatically fulfill that criterion; one is “when the
person is a religious minority in his country of nationality facing religious
persecution.” Id.
Because all seven countries named in the Order have majority-Muslim
populations, these provisions create a preference for Christians. They mean that
Christians (and other non-Muslim religions) may enter the United States as
refugees and may obtain priority treatment, while Muslims may not. In an
interview on January 27, President Trump told the Christian Broadcasting Network
that his intent was to “help” Christian refugees. Compl. ¶ 53& Ex. 7.

7

C.

The Order’s Impact

President Trump’s Order was greeted by widespread protests and
condemnation, as well as reports of chaotic conditions at the nation’s airports.
Within five days, more than 100 people had been detained at U.S. airports pursuant
to the Order’s directives. Compl. ¶ 55. That included dozens of lawful permanent
residents, an Iraqi national with Special Immigrant Visa status who had worked as
an interpreter for the U.S. army in Iraq, and a doctor at the Cleveland Clinic with a
work visa who was trying to return home from vacation. Compl. ¶ 57. Hundreds
of others were blocked from boarding flights to the United States or have been
notified that they can no longer come here—including foreign students with valid
visas and Syrian refugees with visas and U.S. placements already lined up. Compl.
¶ 58. According to a Justice Department lawyer, more than 100,000 visas have
been revoked since the Order was signed. Id.
Meanwhile, thousands of diplomats, former diplomats, and legislators from
both parties spoke out against the ban, calling it inhumane and discriminatory.
Hundreds of State Department officials signed a memo stating that the Order “runs
counter to core American values” including “nondiscrimination,” and that
“[d]espite the Executive Order’s focus on them, a vanishingly small number of
terror attacks on U.S. soil have been committed by foreign nationals” here on
visas. Compl. ¶ 60 & Ex. 10. Senators John McCain (R-AZ) and Lindsey Graham

8

(R-SC) stated: “This executive order sends a signal, intended or not, that America
does not want Muslims coming into our country.” Comp. ¶ 61.
The Order quickly impacted Hawai‘i too, as delineated in detail in the
attached Complaint. Hawai‘i is home to numerous nationals from the seven
designated countries—including foreign students, refugees, and temporary
workers—whose lives have now been upended by the Order. See Compl. ¶¶ 1011, 14, 68. Because of the Order, they cannot leave the country for family,
educational, religious, or business reasons if they wish to return. Indeed, one State
employee’s travel plans abroad have been severely disrupted by the Order. Decl.
of John Doe 2 (Ex. B), ¶¶ 8-11. Conversely, nationals of the seven designated
countries cannot relocate to or even visit Hawai‘i for any reason. Compl. ¶ 69.
Several Hawai‘i residents are being thwarted from reuniting with their families as a
result of the Order—including a U.S. citizen, and his wife and five children (all
also U.S. citizens), who are being prevented from seeing or reuniting and living
with their Syrian mother-in-law/mother/grandmother, Decl. of Elshikh (Ex. H),
¶¶4-7; and at least two others who are currently being separated from members of
their immediate family but are too fearful of future government retaliation to
provide details in a public filing, Decl. of John Doe 1 (Ex. A), ¶¶ 6, 10, 13; Decl.
of John Doe 3 (Ex. C), ¶¶ 3-4.

9

Hawai‘i qua Hawai‘i also is being actively harmed by the Order. For
example, Defendants are enforcing the Order on Hawaiʻi soil, including at
Honolulu and Kona International Airports. Compl. ¶ 67. As a result of the Order,
the facilities provided by Hawai‘i’s State Department of Transportation for
international passengers coming into Hawaii will be used by the federal
government to carry out the unlawful acts required by the Order. Compl. ¶ 71;
Decl. of R. Higashi (Ex. G), ¶¶ 5-7. Likewise, State universities and agencies
cannot accept qualified applicants for positions if they are nationals of one of the
seven designated countries; other employers within the State cannot recruit and/or
hire workers from those countries; and Hawai‘i can no longer welcome their
tourists—a direct harm to Hawai‘i’s critical tourism business. See Compl. ¶¶ 15,
72-78; Decl. of R. Dickson (Ex. D), ¶¶ 13-14; Decl. of G. Szigeti (Ex. F), ¶ 9;
Decl. of L. Salaveria (Ex. E), ¶¶ 9-12.
Last but not least, the Order is harming Hawaii’s identity and most basic
values. For many in Hawai‘i, including State officials, the Order conjures the
memory of the Chinese Exclusion Acts and the post-Pearl Harbor imposition of
martial law and Japanese internment. As Governor Ige said two days after
President Trump signed the Order: “Hawai‘i has a proud history as a place
immigrants of diverse backgrounds can achieve their dreams through hard work.
Many of our people also know all too well the consequences of giving in to fear of

10

newcomers. The remains of the internment camp at Honouliuli are a sad testament
to that fear. We must remain true to our values and be vigilant where we see the
worst part of history about to be repeated.” Compl. ¶ 81.
STANDARD OF REVIEW
To obtain a temporary restraining order or a preliminary injunction, a
plaintiff must demonstrate that (1) it is likely to succeed on the merits; (2) it is
likely to suffer irreparable harm in the absence of preliminary relief; (3) the
balance of equities tips in its favor; and (4) an injunction is in the public interest.
Winter v. Nat. Res. Def. Council, 555 U.S. 7, 20 (2008). The Ninth Circuit has
“also articulated an alternate formulation of the Winter test, under which ‘serious
questions going to the merits and a balance of hardships that tips sharply towards
the plaintiff can support issuance of a preliminary injunction, so long as the
plaintiff also shows that there is a likelihood of irreparable injury and that the
injunction is in the public interest.’” Farris v. Seabrook, 677 F.3d 858, 864 (9th
Cir. 2012) (internal quotation marks omitted).
ARGUMENT
Hawai‘i meets this standard. First, it has a substantial likelihood of success
on the merits because the Order is unlawful several times over: Among other
things, it imposes a “Muslim ban” in violation of the Establishment Clause;
discriminates against particular classes of people in violation of the Fifth

11

Amendment; contravenes the Immigration and Nationality Act’s prohibitions on
nationality- and religion-based discrimination; and, through its implementation,
violates the Administrative Procedure Act (APA). Second, Hawai‘i will suffer
irreparable harm if relief is not granted: The Order imposes religious harms on the
state, imposes immeasurable costs on Hawaii’s economy and tax revenues, and
discriminates against a portion of the State’s population. Third, the balance of
equities tips in Hawai‘i’s favor. The United States will suffer no hardship if the
Order is enjoined because the Government can achieve its national security
objectives through other means, while remedying constitutional and statutory
violations is in the public interest.
A. Hawai‘i Is Likely To Succeed on the Merits of Its Claims.
1. The Order Violates the Establishment Clause.
Because Sections 3(c) and Sections 5(a)-(c) and 5(e) of the Order plainly
conflict with the Establishment Clause, plaintiffs are likely to succeed on their
constitutional claims.
The United States was settled by an ecumenically diverse set of immigrants
seeking religious freedom. See, e.g., Hosanna-Tabor Evangelical Lutheran
Church & Sch. v. EEOC, 565 U.S. 171, 182-183 (2012). The Framers enshrined
that freedom in the First Amendment’s Religion Clauses. One of those Clauses,
the Establishment Clause, “addressed the fear that ‘one sect might obtain a pre-

12

eminence * * * and establish a religion to which they would compel others to
conform.’” Id.at 184 (quoting 1 Annals of Cong. 730-731 (1789) (remarks of J.
Madison)). Thus “[t]he clearest command of the Establishment Clause is that one
religious denomination cannot be officially preferred over another.” Larson v.
Valente, 456 U.S. 228, 244 (1982).
To determine whether a particular policy runs afoul of that command, the
Ninth Circuit typically applies the three-part test from Lemon v. Kurtzman, 403
U.S. 602 (1971). See, e.g., Access Fund v. U.S. Dep’t of Agric., 499 F.3d 1036,
1042-43 (9th Cir. 2007). “First, the statute must have a secular legislative purpose;
second, its principal or primary effect must be one that neither advances nor
inhibits religion * * *; finally the statute must not foster an excessive government
entanglement with religion.” Lemon, 403 U.S. at 612-613 (internal quotation
marks and citation omitted). A failure to satisfy any one of these requirements
establishes a constitutional violation. The Order flunks all three.
First, while the Government has asserted in the Order itself that it serves the
secular purpose of protecting against terrorism, “an ‘avowed’ secular purpose is
not sufficient to avoid conflict with the First Amendment” where the order’s actual
aim is establishing a religious preference. Stone v. Graham, 449 U.S. 39, 41
(1980) (per curiam). For example, in Stone the Supreme Court invalidated a law
requiring that the Ten Commandments be placed on classroom walls. The law

13

mandated that each display include a statement that “[t]he secular application of
the Ten Commandments is clearly seen in its adoption as the fundamental legal
code of Western Civilization and the Common Law of the United States.” Id. But
that was not enough because the “pre-eminent purpose” of requiring the display
was “plainly religious in nature.” Id.
The same is true here. The President and his aides have made it abundantly
clear that they intend to exclude individuals of the Muslim faith, and that this
Order—which bans travel only with respect to certain Muslim-majority
countries—is part of that plan. See Compl. ¶¶ 27-43, 53-54. Sections 5(b) and
5(e) also explicitly direct the government to prioritize religious refugee claims if
the “religion of the individual is a minority religion in the individual’s country”—a
system of religious preference that President Trump told the media was expressly
designed to favor Christians. Compl. ¶¶ 51, 53 & Ex. 7.
In the Establishment Clause context, these statements matter. Because
Lemon’s first step is concerned with “whether [the] government’s actual purpose is
to endorse or disapprove of religion,” courts routinely look to the public
declarations of an act’s originator to discern its true aim. Wallace v. Jaffree, 472
U.S. 38, 56-57 (1985) (finding an Establishment Clause violation because “[t]he
sponsor of the bill * * * inserted into the legislative record—apparently without
dissent—a statement indicating that the legislation was an ‘effort to return

14

voluntary prayer’ to the public schools”); Edwards v. Aguillard, 482 U.S. 578,
586-587 (1987) (examining the remarks of a bill’s sponsor during a legislative
hearing to determine whether a stated secular purpose was “sincere and not a
sham”). Accordingly, when a challenged policy is generated by the Executive,
rather than Congress, the court may examine the statements of the President and
his aides. Cf. Utley v. Varian Assocs., Inc., 811 F.2d 1279, 1285 (9th Cir. 1987)
(in the affirmative action context, if a program was created by the Executive, the
“analysis focus[es] on executive rather than congressional intent”).
Indeed, public statements of purpose calculated to be heard by a wide
audience carry particular weight. When the head of our government publicly
expresses “a purpose to favor religion,” it “sends the message to nonadherents that
they are outsiders, not full members of the political community.” McCreary Cty.,
Ky. v. Am. Civil Liberties Union of Ky., 545 U.S. 844, 860-861 (2005) (internal
quotation marks and ellipses omitted). Thus, the Supreme Court has explained that
a policy that might otherwise pass constitutional muster may be invalidated “if the
government justifies the decision with a stated desire” to promote a particular
religion. Id.
If there were any doubt as to the actual purpose of the policy, there is no
question that the President’s public statements have caused citizens to reasonably
believe that the policy is aimed at the Muslim faith: Witness, for example, the mass

15

protests at airports and in cities across the country and the explicit statement of two
Republican Senators. See supra at pp. 7-8. That in and of itself is enough to
demonstrate an Establishment Clause violation under the second prong of Lemon.
This second “prong * * * asks whether, irrespective of the government’s actual
purpose, the practice under review in fact conveys a message of endorsement or
disapproval.” Access Fund, 499 F.3d at 1045 (internal quotation marks omitted);
see also McCreary, 545 U.S. at 868 n.14 (examining how a challenged action will
be perceived by an “objective observer[ ]”). One need hardly do more than
articulate this inquiry to understand why the Order fails. And the same is true for
Lemon’s third prong, which considers whether a policy “foster[s] an excessive
government entanglement with religion.” 403 U.S. at 612-613 (internal quotation
marks omitted). The exception for members of religious minorities alone
hopelessly entangles the government in religious matters.
To be sure, courts are inconsistent in how or whether they invoke Lemon,
and the Supreme Court has applied several different frameworks in analyzing
potential Establishment Clause violations. But no framework permits the
government to enact a policy that amounts to a governmental preference for or
against a particular faith. See, e.g., Town of Greece, N.Y. v. Galloway, 134 S. Ct.
1811, 1824 (2014) (declining to apply Lemon but upholding a policy in part
because—unlike the Order—it did not “reflect an aversion or bias on the part of

16

town leaders against minority faiths”); Larson, 456 U.S. at 246 (applying strict
scrutiny and invalidating a policy because it unnecessarily “grant[ed] a
denominational preference”).
Some of the Order’s defenders attempt to avoid this conclusion by pointing
to older Supreme Court cases discussing Congress’s plenary power over
immigration. See, e.g., Kleindienst v. Mandel, 408 U.S. 753, 770 (1972). That
argument fails for two independent reasons. First, as discussed in greater length
below, even if it is good law, the doctrine would not apply to a policy like this one.
See infra at pp. 22-25. Second, the plenary power cases are not relevant to the
Establishment Clause anyway: The Court has never applied the doctrine with
respect to policies that draw religious distinctions in the immigration context. Nor
could it. Allowing an immigration exception would swallow the Establishment
Clause whole. After all, a primary means of establishing a national religion is to
exclude members of another faith from immigrating or to privilege the entry of
members of the faith one wishes to establish. Indeed, in one of the Supreme
Court’s most recent Establishment Clause cases, six members of the Court agreed
that requiring “an immigrant seeking naturalization * * * to bow her head and
recite a Christian prayer” would unquestionably violate the Establishment Clause.
Town of Greece, 134 S. Ct. at 1834 (Alito, J., joined by Scalia, J., concurring); id.

17

at 1842 (Kagan, J., joined by Ginsburg, J., Breyer, J., and Sotomayor, J.,
dissenting).
The Order’s defenders have also suggested that if this Order is held to
violate the Establishment Clause, then all future immigration policies that
disproportionately aid or exclude members of a particular faith will be foreclosed.
That is simply not so. An immigration policy with a secular purpose and design
that just happens to disproportionately exclude members of a particular faith likely
would survive Lemon. But that is not this Order. Instead, the President that issued
it openly announced a desire to ban Muslims, told his advisors he wanted their
help to do just that while disguising his purpose, and then followed through by
signing a Muslim ban and tossing in a transparent fig leaf. Holding that that
practice violates the Establishment Clause will foreclose nothing more than cynical
attempts to skirt core constitutional commands.
2. The Order Violates Equal Protection and the Fifth Amendment’s
Due Process Clause.
There is little doubt that, under normal equal-protection and due-process
principles, the Order is unconstitutional: It discriminates based on protected
classifications, and it cannot survive strict scrutiny. The only question, then, is
whether the “plenary power” doctrine excuses the constitutional violations. It does
not.

18

a.

The Order violates equal protection and the right to travel.

To begin, the Order violates the Constitution’s guarantee of equal
protection.1
“From its inception, our Nation welcomed and drew strength from the
immigration of aliens.” In re Griffiths, 413 U.S. 717, 719 (1973). The
“contributions” of immigrants “to the social and economic life of the country” are
“self-evident.” Id. Thus any government classification based on alienage or
national origin is “objectionable.” Hampton v. Mow Sun Wong, 426 U.S. 88, 107
n.30 (1976). Similarly, courts must “strictly scrutinize governmental
classifications based on religion.” Employment Div. v. Smith, 494 U.S. 872, 886
n.3 (1990). Classifications based on religion and national origin are therefore both
subject to strict scrutiny, and must be “narrowly tailored to achieving a compelling
* * * interest.” Miller v. Johnson, 515 U.S. 900, 904 (1995)
Sections 3(c) and 3(e)-(f) of the Order plainly flunk that test. They are
premised on differentiating among people based on national origin: People from
certain countries can enter the United States, and people from other countries
cannot. In addition, those provisions as well as Sections 5(a) and (c) treat people

1

The Fourteenth Amendment’s Equal Protection Clause applies only against
the states, but “[i]n numerous decisions,” the Supreme Court has held that the same
equal protection analysis applies to the federal government through the Due
Process Clause of the Fifth Amendment. See, e.g., Davis v. Passman, 442 U.S.
228, 234 (1979).
19

differently because of their religion: They are intentionally structured in a way that
blocks Muslims while allowing Christians.
The Order is nowhere near “tailored” enough to justify that differentiation.
It asserts that it is meant to prevent terrorism. But if so, it is wildly over- and
under-inclusive. It is over-inclusive because it ensnares countless students,
tourists, businesspeople, refugees, and other travelers lacking even the remotest
connection to terrorism of any sort. And it is under-inclusive because it would not
have covered any of the perpetrators of the worst recent terrorist attacks on
American soil: September 11, the Boston Marathon bombing, San Bernardino, or
Orlando. Not a single fatal terrorist attack has been perpetrated in the United
States by a national of one of the seven identified countries since at least 1975.
Compl. ¶ 46.
Indeed, the fit between the Order’s coverage and its stated purpose is so poor
that it would fail even rational-basis review. The mismatch indicates that the real
purpose of the Order was simply to harm a politically unpopular group: Muslims.
That is unlawful. The “Constitution’s guarantee of equality ‘must at the very least
mean that a bare * * * desire to harm a politically unpopular group cannot’ justify
disparate treatment of that group.” United States v. Windsor, 133 S. Ct. 2675,
2693 (2013) (citation omitted).

20

Separately, the Order infringes the right to international travel. “Freedom of
movement is basic in our scheme of values.” Kent v. Dulles, 357 U.S. 116, 126
(1958). The right to travel abroad is therefore “part of the ‘liberty’” protected by
the Due Process Clause. Id. at 125. And because the Order curtails this right, it
must be “narrowly drawn to prevent the supposed evil.” Id. at 904. As explained
above, it does not come close.
b.

The Order violates procedural due process.

Sections 3(c) and 3(e)-(f) of the Order also violate procedural due process
requirements. “[T]he Due Process Clause applies to all ‘persons’ within the United
States, including aliens, whether their presence here is lawful, unlawful, temporary,
or permanent,” Zadvydas v. Davis, 533 U.S. 678, 693 (2001), and resident
foreigners have liberty interests in being able to re-enter the United States and in
being free from detention at the border, see Landon v. Plasencia, 459 U.S. 21, 32
(1982). The Government may only take away those liberty interests by “due
process of law.” U.S. Const. amend. V. The process that is “due” turns on three
factors: “First, the private interest that will be affected by the official action;
second, the risk of an erroneous deprivation of such interest through the procedures
used, and the probable value, if any, of additional or substitute procedural
safeguards; and finally, the Government’s interest, including the function involved
and the fiscal and administrative burdens that the additional or substitute

21

procedural requirement would entail.” Mathews v. Eldridge, 424 U.S. 319, 335
(1976).
The procedures in place here fall far short. Denial of reentry “is, without
question, a weighty” interest, and a person in that circumstance must be given “an
opportunity to present her case effectively.” Landon, 459 U.S. at 34, 36. But the
Order offers no procedural protections whatsoever: It allows for no counsel, no
hearings, no inquiry, no review—no process of any sort. That will not do. At the
very least, those barred from the country or detained pursuant to the Order should
be given some individualized consideration of their circumstances. “[T]he
returning resident alien is entitled as a matter of due process to a hearing on the
charges underlying any attempt to exclude him,” a principle in keeping with “the
general proposition that a resident alien who leaves this country is to be regarded
as retaining certain basic rights.” Rosenberg v. Fleuti, 374 U.S. 449, 460 (1963).
Similarly, detention of a resident at the border is an invasion of liberty that
requires the government to provide concomitant protections. “Even where
detention is permissible * * * due process requires ‘adequate procedural
protections’ to ensure that the government’s asserted justification for physical
confinement ‘outweighs the individual’s constitutionally protected interest in
avoiding physical restraint.’” Casas-Castrillon v. Dep’t of Homeland Sec., 535

22

F.3d 942, 950 (9th Cir. 2008) (quoting Zadvydas, 533 U.S. at 690). Those
protections are nonexistent here.
Moreover, while the Order authorizes executive officials to make certain
case-by-case exceptions, see, e.g., Order § 3(g), it creates no mechanism for
processing those exceptions and no procedure to ensure they are applied
consistently and fairly. That unfettered executive discretion is the antithesis of due
process. See Grayned v. City of Rockford, 408 U.S. 104, 108-109 (1972). It is
cold comfort for a resident seeking reentry to know that some provision for
exceptions is made, if that power is exercised arbitrarily and unreviewably. The
Due Process Clause requires more.
c.

The plenary-power doctrine does not change the outcome.

The Order’s defenders again seek refuge in the plenary-power doctrine. But
that doctrine does not help them for two reasons.
First, while it is true that the plenary-power doctrine gives Congress latitude
to “make rules for the admission of aliens,” Kleindienst, 408 U.S. at 766 (citation
omitted), the Order here has profound discriminatory effects on aliens already
within the United States. And the Supreme Court has made clear that political
branches’ power in that area is not plenary. To the contrary, it “is subject to
important constitutional limitations.” Zadvydas, 533 U.S. at 695. Specifically,
aliens who are present within the United States are entitled to the full panoply of

23

equal-protection and due-process protections, “whether their presence here is
lawful, unlawful, temporary, or permanent.” Id. at 693. The Order here runs afoul
of both those protections. It prevents people present in the United States from
traveling and from seeing their loved ones, and it imposes that burden on the basis
of religion and national origin. That is not constitutional, and the incantation of
“plenary power” does not make it so. See Hampton, 426 U.S. at 101 (“We do not
agree * * * that the federal power over aliens is so plenary that any agent of the
National Government may arbitrarily subject all resident aliens to different
substantive rules from those applied to citizens.”).
Second, the plenary-power doctrine emphasizes the broad authority of
“Congress.” See Kleindienst, 408 U.S. at 766 (emphasis added). Congress is, after
all, constitutionally empowered to regulate immigration. U.S. Const. art. I, § 8.
Even if the doctrine authorizes Congress to flatly ban a particular racial or religious
group from entering the United States—a highly doubtful proposition—it certainly
does not authorize the President to plow ahead and enact such a ban where
Congress has not provided for it. Indeed, the delegation of authority to the
President here is expressly subject to the INA’s antidiscrimination provision. See
Part 3, infra. And the President surely could not take a general grant of discretion
to make immigration rules and use it to decree that only whites or Christians are
allowed to immigrate into the United States. Cf. Kwai Fun Wong v. United States,

24

373 F.3d 952, 974 (9th Cir. 2004) (“We cannot countenance that the Constitution
would permit immigration officials to engage in such behavior as rounding up all
immigration parolees of a particular race solely because of a consideration such as
skin color.”).
The Supreme Court has made this clear. In Kleindienst, for example, the
Court explained that when Congress “delegate[s]” the exercise of “plenary power”
to the Executive, and “the Executive exercises this power negatively on the basis
of a facially legitimate and bona fide reason, the courts will neither look behind
the exercise of that discretion, nor test it.” 408 U.S. at 770 (emphasis added). The
inverse must also be true: When the Executive lacks “a facially legitimate and bona
fide reason” for excluding foreigners, the plenary-power doctrine is no shield for
unconstitutional discrimination.
That is the case here. As explained above, the profound mismatch between
the Order’s purported purpose and its scope reveals its true illegitimate purpose: to
burden a politically unpopular group. Moreover, the Order’s express terms and the
statements of President Trump and his advisors cast grave doubt on whether the
Order’s stated purpose was in fact its “bona fide” impetus.
For this reason, too, the plenary-power doctrine does not insulate the Order
from constitutional scrutiny, and the Order must fall.

25

3. The Order is Inconsistent with the Immigration and Nationality Act.
The Order also violates the plain terms of the immigration laws three times
over. It “discriminate[s]” against prospective immigrants based on “nationality,”
in violation of 8 U.S.C. § 1152(a)(1)(A); it “discriminat[es]” against refugees
based on “religion,” in violation of the United Nations Convention Relating to the
Status of Refugees art. 3, July 28, 1951, 19 U.S.T. 6259; and it grossly misapplies
the President’s authority to “suspend the entry” of aliens, 8 U.S.C. § 1182(f).
a. The order’s nationality-based classifications violate the INA.
First, the Order violates the Immigration and Nationality Act’s (INA) flat
prohibition on nationality-based discrimination.
Section 202(a)(1)(A) of the INA provides:
Except as specifically provided in paragraph (2) and in sections
1101(a)(27), 1151(b)(2)(A)(i), and 1153 of this title, no person
shall receive any preference or priority or be discriminated against
in the issuance of an immigrant visa because of the person’s race,
sex, nationality, place of birth, or place of residence.
8 U.S.C. § 1152(a)(1)(A). “Congress could hardly have chosen more explicit
language.” Legal Assistance for Vietnamese Asylum Seekers v. Dep’t of State,
Bureau of Consular Affairs, 45 F.3d 469, 473 (D.C. Cir. 1995), vacated on other
grounds, 519 U.S. 1 (1996). It “unambiguously directed that no nationality-based
discrimination shall occur,” id., and so “eliminat[ed] * * * the national origins
system as the basis for the selection of immigrations to the United States.” H.R.

26

Rep. No. 89-745, at 8 (1965); see Olsen v. Albright, 990 F. Supp. 31, 37 (D.D.C.
1997).
The Order flouts this clear command. Section 3(c) provides that aliens
“from” seven identified “countries” cannot enter the United States. Sections 3(e)(f) authorizes the President to bar entry by “foreign nationals * * * from
[additional] countries” he will subsequently identify. And Section 5 prohibits “the
entry of Syrian nationals as refugees,” id. § 5(c), and permits the Secretary of State
to resume refugee admissions “only for nationals of [designated] countries,” id.
§ 5(a). Each of these provisions facially discriminates on the basis of “nationality,
place of birth, or place of residence,” 8 U.S.C. § 1152(a)(1)(A)—exactly what
Congress said the Executive cannot do. The Order thus unilaterally resurrects the
“national origins system” that Congress ended in 1965.
The President cannot ignore Section 202(a)(1)(A) in this manner. Congress
specified exactly when federal officials could take nationality into account: “as
specifically provided in paragraph (2) [of Section 202(a)] and in sections
1101(a)(27), 1151(b)(2)(A)(i), and 1153 of” title 8. 8 U.S.C. § 1152(a)(1)(A).
None of those narrow exceptions is even arguably relevant here; and by
enumerating those few exemptions, Congress made clear it did not intend to
authorize others. See, e.g., United Dominion Indus. v. United States, 532 U.S. 822,
836 (2001) (describing expressio unius canon). The fact that the immigration laws

27

give the President some discretion makes no difference. As courts have recognized
for decades—and as Section 202(a)(1)(A) makes clear—“discretion” in enforcing
the immigration laws “may not be exercised to discriminate invidiously against a
particular race or group.” Wong Wing Hang v. INS, 360 F.2d 715, 719 (2d Cir.
1966) (Friendly, J.); see, e.g., Patel v. INS, 811 F.2d 377, 382 (7th Cir. 1987)
(same).
b. The Order’s religion-based classifications violate the INA.
Sections 5(b) and 5(e) of the Order also violate the INA by discriminating
against refugees on the basis of religion. In 1968, the United States ratified the
United Nations Protocol Relating to the Status of Refugees, Jan. 31, 1967, 19
U.S.T. 6223 (“UN Protocol”), a multilateral treaty that requires signatory states to
treat refugees “without discrimination as to race, religion or country of origin.”
United Nations Convention Relating to the Status of Refugees art. 3, July 28, 1951,
19 U.S.T. 6259; see UN Protocol art. I.1 (incorporating this requirement by
reference). Congress subsequently overhauled the INA “to bring United States
refugee law into conformity with the Protocol.” Khan v. Holder, 584 F.3d 773,
783 (9th Cir. 2009). Accordingly, the Ninth Circuit (echoing the Supreme Court)
has held that courts must “interpret the INA in such a way as to avoid any conflict
with the Protocol, if possible.” Id.; see INS v. Aguirre-Aguirre, 526 U.S. 415, 426427 (1999); INS v. Cardoza-Fonseca, 480 U.S. 421, 437 (1987). Nothing in the

28

INA suggests that Congress intended to authorize immigration officials—or the
President—to violate the Protocol’s straightforward prohibition on religious
discrimination. Indeed, the INA expressly prohibits States from discriminating
against refugees with “regard to race, religion, nationality, sex, or political
opinion.” 8 U.S.C. § 1522(a)(5). It is inconceivable that Congress intended
federal officials to engage in such discrimination, in clear violation of the Nation’s
treaty obligations. As describe above, see supra at pp. 19-20, the Order does
precisely that, and so cannot stand.
c. The INA does not authorize the President to impose sweeping classbased restrictions on immigration.
Sections 3(c), 3(e)-(f), 5(a), and 5(c) are also unlawful because the President
lacks any affirmative authority to impose the Order’s sweeping, undifferentiated,
and arbitrary bans on entry.
As a basis for its immigration and refugee bans, the Order relies on Section
212(f) of the INA, which states that the President may “suspend the entry of * * *
any class of aliens as immigrants or nonimmigrants” if he “finds that the[ir] entry
* * * would be detrimental to the interests of the United States.” 8 U.S.C.
§ 1182(f); see Order §§ 3(c), 5(c). But Section 212(f) provides no support for the
Order.
That is so for two reasons. First—as discussed above—the INA prohibits
nationality discrimination, and section 212(f) does not override that limit. See
29

8 U.S.C. § 1152(a)(1)(a). Section 202(a)(1)(A), with its focus on particular
categories of protection, is more specific than Section 212(f)’s generalized grant of
discretion. It also is later-enacted—1965 versus 1952. And it enumerates specific
exceptions to its prohibition that do not include section 212(f). It therefore
overrides any authority the President would otherwise have had under Section
212(f). See United States v. Juvenile Male, 670 F.3d 999 (9th Cir. 2012)
(recognizing principle of statutory construction that “[w]here two statutes conflict,
the later-enacted, more specific provision generally governs.”); United Dominion,
532 U.S. at 836.
In any event, the Order’s reliance on Section 212(f) stretches that provision
far beyond its limits. Presidents have invoked Section 212(f) dozens of times since
it was enacted in 1952; in every instance, they used it to suspend entry of a discrete
set of individuals based on an individualized determination that each prohibited
member of the class had engaged in conduct “detrimental to the [United States’]
interests.” See, e.g., Pres. Proc. No. 8342 (Jan. 22, 2009) (suspending entry of
human traffickers); Pres. Proc. No. 5887 (Oct. 26, 1988) (suspending entry of
Sandinistas); see generally Cong. Research Serv., Executive Authority to Exclude
Aliens: In Brief 6-10 (Jan. 23, 2017), https://fas.org/sgp/crs/homesec/R44743.pdf.
Before now, no President attempted to invoke Section 212(f) to impose a
categorical bar on admission based on a generalized (and unsupported) claim that

30

some members of a class might engage in misconduct. And no President has taken
the further step of establishing an ad hoc scheme of exceptions that allows
immigration officers to admit whomever they choose on either a “case-by-case
basis,” Order § 3(g), or categorically, see Statement by Secretary John Kelly on the
Entry of Lawful Permanent Residents Into the United States (Jan. 29, 2017)
(determining, within two days of the Order’s issuance, that lawful permanent
residents are entitled to a blanket exception).
If these novel assertions of authority were accepted, the immigration laws
could be nullified by executive fiat. It is always possible to claim that some broad
group might include dangerous individuals; many countries, for example, have
worse records of terrorism than the seven the President singled out. See U.S. Dep’t
of State, National Consortium for the Study of Terrorism and Responses to
Terrorism: Annex of Statistical Information (2016) (showing that 7 of the 10
countries with the most terrorism were not included in the Order). The President’s
logic would therefore permit him—and any future President—to abandon
Congress’s immigration system at will, and replace it with his own rules of entry
governed by administrative whim.
That is not the law Congress enacted. “Congress * * * does not alter the
fundamental details of a regulatory scheme in vague terms or ancillary
provisions”—it does not, as Justice Scalia wrote, “hide elephants in mouseholes.”

31

Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468 (2001). Enabling the
President to unilaterally suspend the immigration laws would surely be an
elephant; and the vague terms of Section 212(f)—never once in six decades
interpreted in the manner the President now proposes—are a quintessential
mousehole. See FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159160 (2000) (declining to find that Congress “intended to delegate a decision of
[substantial] economic and political significance” whether authority ran “[c]ontrary
to [the Executive Branch’s] representations” for 80 years). Indeed, it is doubtful
that Congress could delegate such unbounded authority to the President. See
Clinton v. City of New York, 524 U.S. 417, 443 (1998) (Congress cannot authorize
President “to cancel portions of a duly enacted statute”); Whitman, 531 U.S. at 472
(Congress cannot delegate powers without an “intelligible principle” to govern
their exercise). Section 212(f) cannot be construed to authorize the Order’s
sweeping and discriminatory immigration bans.
4. The Order’s Implementation Violates the APA.
Finally, the Order’s implementation violates the APA, both on procedural
and substantive fronts.
APA Procedural Requirements. The APA requires that agencies provide
public notice and an opportunity for comment on any rule that is “legislative” or
“substantive.” Lincoln v. Vigil, 508 U.S. 182, 196 (1993); see 5 U.S.C. § 553(b)-

32

(c). “Substantive rules” are those that “change existing rights and obligations,”
Time Warner Cable Inc. v. FCC, 729 F.3d 137, 168 (2d Cir. 2013), and “limi[t]
administrative discretion or establish a binding norm” for agency officials to
follow, Sacora v. Thomas, 628 F.3d 1059, 1069 (9th Cir. 2010) (italics omitted).
In this case, Sections 3 and 5 of the Order are substantive because they
unquestionably affect existing “rights and obligations”: Immigrants and nonimmigrants living in the United States can no longer leave and re-enter the country,
and nationals of designated countries who have visas can no longer use them. But
more to the point, the rules that agencies have to create to carry out the Order also
are (and will be) substantive rules. After all, the Order speaks in broad generalities
and leaves it to the agencies to implement binding norms around everything from
which refugees get exemptions, to who counts as “immigrants and nonimmigrants”
under Section 3(c), to whether Section 5(e)’s in-the-national-interest exemptions
extend beyond the enumerated examples.
Those newly-minted norms will affect existing “rights and obligations” in
extraordinary ways. To take just one example, the implementing officials have
changed their view as to whether lawful permanent residents fall within the
Order’s national-interest prong twice—and have effectuated each change with no
more than a press release. Compl. ¶¶ 62-64. That is plainly improper. The same

33

goes for the many similarly substantive rules that have been and will be
promulgated under the Order’s auspices.
APA Substantive Requirements. Defendants have also committed
substantive violations of the APA. The APA prohibits federal agencies from
taking any action that is “arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law.” 5 U.S.C. §706(2). The Order, and agency norms
promulgated under the Order, are plainly “not in accordance with law.” See supra,
A.1-3. And Defendants’ issuance and implementation of the Order has been
flagrantly arbitrary and capricious. The Order has been issued and implemented
abruptly and with no reasonable explanation of how its various provisions further
its stated objective. See City of Sausalito v. O’Neill, 386 F.3d 1186, 1206 (9th Cir.
2004) (agencies must at least articulate “a rational connection between the factors
found and the choices made” (internal quotation marks omitted)). Just within the
first 72 hours, Defendants are reported to have changed their minds three times
about one of the Order’s essential aspects—whether it applies to green card
holders. Compl. ¶ 59. A few days later, they changed their minds yet again.
Comp. ¶ 64. If this is not arbitrary and capricious executive action, it is hard to
imagine what would be.

34

B. Hawai‘i Will Suffer Irreparable Harm If Relief Is Not Granted.
Hawai‘i will be irreparably harmed if Defendants are not temporarily
enjoined from enforcing Sections 3(c), 3(e)-(f), 5(a)-(c), and 5(e) of the Order.
Implementation of these provisions has already caused significant religious,
dignitary, and economic harms in and to Hawai‘i. If Defendants are not enjoined,
the damage will be immeasurable. For these reasons, the State a fortiori satisfies
the requirements of Article III standing as well.
First, the Order is creating an unconstitutional “establishment” of religion in
Hawai‘i and across the country. This harm alone is sufficient to warrant injunctive
relief; in Establishment Clause cases, irreparable harm is presumed. See, e.g.,
Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 303 (D.C. Cir.
2006) (if a movant demonstrates a likelihood of success on an Establishment
Clause claim, “this is sufficient, without more, to satisfy the irreparable harm
prong”); see also Farris, 677 F.3d at 868 (9th Cir. 2012) (adopting the same rule
for First Amendment claims generally).
Second, the Order is inflicting irreparable harm on the State’s sovereign and
dignitary interests by commanding instruments of Hawaii’s government to support
discriminatory conduct that is offensive to its own laws and policies. Hawaii’s
Constitution protects religious freedom and the equal rights of all persons. Hawai‘i
Const. art. 1, §§2, 4. Its statutes bar discrimination on the basis of ancestry. Haw.

35

Rev. Stat. §§ 378-2(1); 489-3; 515-3. And Hawai‘i has a number of policies that
aim to further diversity. Compl. ¶ 72. Hawai‘i has a sovereign interest in seeing
that its laws and policies are given effect, and in following them itself. See Bond v.
United States, 564 U.S. 211, 221 (2011); Missouri v. Holland, 252 U.S. 416, 431
(1920).
The Order commands Hawai‘i to abandon its sovereign prerogatives, and
become complicit in discrimination barred by its own Constitution and statutes:
The State’s universities cannot enroll qualified persons from the designated
countries; state governmental entities cannot hire such persons; and the State’s
Department of Transportation must provide areas inside the State’s international
airports to Customs and Border Patrol to detain and deport immigrants barred by
the Order. In stopping Hawaii’s governmental entities from abiding by the State’s
own laws and policies, the Order inflicts dignitary harms that have no remedy.
See, e.g., Shelby Cty. v. Holder, 133 S. Ct. 2612, 2623 (2013) (states should “retain
broad autonomy in structuring their governments and pursuing legislative
objectives”); Arizona Dream Act Coal. v. Brewer, 757 F.3d 1053, 1068 (9th Cir.
2014) (irreparable harm is threatened when “there is no adequate legal remedy”).
Third, the Order is inflicting permanent damage on Hawaii’s economy and
tax revenues. Tourism is the “state’s lead economic driver”; in 2015 alone,
Hawai‘i had 8.7 million visitor arrivals, accounting for $15 billion in spending.

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Compl. ¶ 15. The Order prevents any nationals of the designated countries from
visiting the State, which will result in considerable lost revenues. Decl. of G.
Szigeti (Ex. F), ¶¶ 9-11 (showing thousands of visitors in 2015 from the Middle
East and Africa). The Order deters Muslim immigrants and non-immigrants
across America from engaging in interstate travel that involves an airport,
effectively precluding travel to Hawai‘i. And it will likely chill international
tourism to Hawai‘i more broadly, as nationals of other countries fear that they too
will become subject to an immigration ban. Decl. of L. Salaveria (Ex. E), ¶¶ 1114. These consequences will drastically reduce the State’s economic output and its
tax revenues, and they will inflict incalculable harm on Hawaii’s reputation as a
place of welcome—a brand that it is has spent significant time and energy
developing internationally. See Oracle USA, Inc. v. Rimini St., Inc., 2016 WL
5213917, at *2 (9th Cir. Sept. 21, 2016) (injunctive relief warranted when “injuries
[are] difficult to quantify and compensate”).
Finally, the Order inflicts irreparable damage to Hawai‘i because it subjects
a portion of its population to discrimination and marginalization, while denying all
residents of the State the benefits of a pluralistic and inclusive society. Hawai‘i is
home to over 6,000 legal permanent residents, including numerous individuals
from the designated countries. Compl. ¶ 10. It currently has 12,000 foreign
students, including 27 graduate students from the designated countries at the

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University of Hawai‘i alone. Decl. of R. Dickson (Ex. D), ¶ 9. The University of
Hawai‘i also has at least 10 faculty members who are legal permanent residents
from the designated countries, and at least 30 faculty members with valid visas
from the countries. Id. ¶¶ 10-11. Section 3(c) of the Order subjects these Hawaii
residents to second-class treatment—denying them their fundamental right to travel
overseas, preventing them from tending to important family matters, and impairing
their ability to complete necessary aspects of their work or study. Id. ¶ 12; Decl. of
John Doe 3 (Ex. C), ¶¶ 3-4 . More broadly, the Order subjects all of Hawai‘i—
which prides itself on its ethnic diversity and inclusion—to a discriminatory policy
that differentiates among State residents based on their national origin. See, e.g.,
Decl. of R. Dickson (Ex. D), ¶ 13. Hawai‘i has a quasi-sovereign interest in
“securing [its] residents from the harmful effects of discrimination.” Alfred L.
Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592, 609 (1982). The Order is
irreparably undermining that interest.
C. The Balance of the Equities and Public Interest Favor Relief.
The balance of the equities and public interest factors tip decidedly in favor of
Hawai‘i. The harms the Order inflicts are immediate and severe, and “it is always
in the public interest to prevent the violation of a party’s constitutional
rights.” Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012).

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Defendants, in contrast, have identified no exigency that demands immediate
implementation of this Order. They have no evidence that the Order’s wildly overand under-inclusive bans will actually prevent terrorism or make the Nation more
secure. Defendants can fully achieve the Order’s stated goal of strengthening the
country’s vetting procedures without also depriving millions of people of their
rights under the Constitution and federal law.
CONCLUSION
The Motion for a Temporary Restraining Order should be granted, and
Defendants should be restrained from continuing to enforce Sections 3(c), 5(a)-(c),
and 5(e) of the Executive Order, in Hawai‘i and nationwide.
DATED: Honolulu, Hawai‘i, February 3, 2017.
Respectfully submitted,
/s/ Douglas S. Chin
NEAL K. KATYAL*
COLLEEN ROH SINZDAK*
MITCHELL P. REICH*
ELIZABETH HAGERTY*
HOGAN LOVELLS US LLP
555 Thirteenth Street NW
Washington, DC 20004
Telephone: [phone]
Fax: [phone]
Email: [e-mail]
THOMAS P. SCHMIDT*
HOGAN LOVELLS US LLP
875 Third Avenue

DOUGLAS S. CHIN (Bar No. 6465)
Attorney General of the State of Hawai‘i
CLYDE J. WADSWORTH (Bar No.
8495)
Solicitor General of the State of Hawai‘i
DEIRDRE MARIE-IHA (Bar No. 7923)
KIMBERLY T. GUIDRY (Bar No. 7813)
DONNA H. KALAMA (Bar No. 6051)
ROBERT T. NAKATSUJI (Bar No.
6743)
Deputy Attorneys General
DEPARTMENT OF THE ATTORNEY
GENERAL, STATE OF HAWAI‘I
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New York, NY 10022
Telephone: [phone]
Fax: [phone]
SARA SOLOW*
ALEXANDER B. BOWERMAN*
HOGAN LOVELLS US LLP
1835 Market St., 29th Floor
Philadelphia, PA 19103
Telephone: [phone]
Fax: [phone]

425 Queen Street
Honolulu, HI 96813
Telephone: [phone]
Fax: [phone]
Email: [e-mail]

*Pro Hac Vice Applications
Forthcoming
Attorneys for Plaintiff, State of Hawai‘i

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