State of Hawaii v. Trump

Filing 201

MEMORANDUM re 65 MOTION for Temporary Restraining Order filed by T.A.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Certificate of Service)(Iwao, Regan)

GOODSILL ANDERSON
QUINN & STIFEL LLP

WILLKIE FARR & GALLAGHER
LLP

REGAN M. IWAO
7446-0
[e-mail]
LYNDA L. ARAKAWA
9543-0
[e-mail]
First Hawaiian Center
999 Bishop Street, Suite 1600
Honolulu, Hawaii 96813
Telephone: [phone]
Facsimile: [phone]

RICHARD D. BERNSTEIN*
[e-mail]
1875 K Street, N.W.
Washington D.C. 20006-1238
Telephone: [phone]
Facsimile: [phone]

Attorneys for Amicus Curiae T.A.
*Appearing Pro Hac Vice
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
STATE OF HAWAI‘I and ISMAIL
ELSHIKH,
Plaintiffs,
vs.
DONALD J. TRUMP, in his official
capacity as President of the United
States; U.S. DEPARTMENT OF
HOMELAND SECURITY; JOHN F.
KELLY, in his official capacity as
Secretary of Homeland Security; U.S.
DEPARTMENT OF STATE; REX
TILLERSON, in his official capacity as
Secretary of State; and the UNITED
STATES OF AMERICA,

CV. No. 1:17-cv-00050-DKW-KJM

BRIEF OF AMICUS CURIAE T.A.,
A U.S. RESIDENT OF YEMENI
DESCENT, SUPPORTING
PLAINTIFFS’ MOTION FOR A
TEMPORARY RESTRAINING
ORDER; EXHIBITS “1” – “6”;
CERTIFICATE OF SERVICE

Defendants.
BRIEF OF AMICUS CURIAE T.A., A U.S. RESIDENT OF YEMENI
DESCENT, SUPPORTING PLAINTIFFS’ MOTION FOR A
TEMPORARY RESTRAINING ORDER

TABLE OF CONTENTS
TABLE OF AUTHORITIES ................................................................................... iii 
STATEMENT OF INTEREST .................................................................................. 1 
INTRODUCTION ..................................................................................................... 2 
FACTUAL BACKGROUND .................................................................................... 4 
A.

President Trump’s Campaign Promise to Ban All Muslims ................. 4 
1.
2.

The Unadorned Muslim Ban (Dec. 2015 – Mar. 2016) .............. 5 

3.

Dressing the Muslim Ban in “National Security” Garb
(Jun. 2016 – present) ................................................................... 6 

4.

B.

Anti-Muslim Rhetoric (Jul. 2015 – Nov. 2015) ......................... 4 

Delivering on the Campaign Promise – The January 27,
2017 Executive Order and March 6, 2017 Amended
Order. .......................................................................................... 8 

T.A. ...................................................................................................... 11 

ARGUMENT ........................................................................................................... 11 
I.

THE GOVERNMENT’S NATIONAL SECURITY JUSTIFICATION
IS REVIWABLE BY THE JUDICIARY...................................................... 11 

II.

A CONSTITIONAL CLAIM IS STRENGTHENED WHERE THE
GOVERNMENT’S ASSERTED JUSTIFICATION OF NATIONAL
SECURITY APPEARS TO BE A PRETEXT FOR PREJUDICE. .............. 14 

III.

THE GOVERNMENT’S NATIONAL SECURITY ASSERTION IS
A PRETEXT FOR PREJUDICE. .................................................................. 15 
A.

The Evidence Cited in the Amended Order Regarding National
Security is Superficial. ........................................................................ 15 

B.

The Government’s Vetting Justification Illustrates the
Amended Order’s Fatal Overbreadth. ................................................. 19 

i

C.

The Timing Surrounding the Amended Order’s Roll-Out Belies
Any “National Security” Justification. ................................................ 21 

D.

The Extended Time Periods Under the Amended Order Further
Suggest “National Security” is a Pretext. ............................................ 24 

E.

Absent the Pretext, What Remains is Prejudice. ................................. 25 

CONCLUSION ........................................................................................................ 29 

ii

TABLE OF AUTHORITIES
Page(s)

Cases

Adarand Constructors, Inc. v. Pena,
515 U.S. 200 (1995)....................................................................................... 26
Alperin v. Vatican Bank,
410 F.3d 532 (9th Cir. 2005) ......................................................................... 12
American-Arab Anti-Discrimination Comm. v. Reno,
70 F.3d 1045 (9th Cir. 1995) ......................................................................... 12
Aptheker v. Sec’y of State,
378 U.S. 500 (1964)....................................................................................... 12
Boumediene v. Bush,
553 U.S. 723 (2008)....................................................................................... 12
Ex parte Endo,
323 U.S. 283 (1944)....................................................................................... 12
Hirabayashi v. United States,
828 F.2d 591 (9th Cir. 1987) ......................................................................... 26
Holder v. Humanitarian Law Project,
561 U.S. 1 (2010)........................................................................................... 12
Korematsu v. United States,
323 U.S. 214 (1944)...........................................................................25, 26, 27
McCreary County, Ky. v. Am. Civil Liberties Union of Ky.,
545 U.S. 844 (2005)....................................................................................... 15
Ex parte Milligan,
71 U.S. 2 (1866)............................................................................................. 12
Ex parte Quirin,
317 U.S. 1 (1942)........................................................................................... 12
Romer v. Evans,
517 U.S. 620 (1996).................................................................................14, 15

iii

United States v. Doe,
655 F.2d 920 (9th Cir. 1981) ........................................................................... 1
United States v. Robel,
389 U.S. 258 (1967) ..................................................................................... 13
Washington v. Trump,
847 F.3d 1151 (9th Cir. 2017) ................................................................10, 12
Washington v. Trump,
No. 2:17-CV-00141, (W.D. Wash. Feb. 3, 2017) ECF. No. 52 ................... 10
Washington v. Trump,
No. 17-35105, ECF. No. 14 (9th Cir. Feb. 4, 2017) ..................................... 23
Washington v. Trump,
No. 17-35105, 2017 WL 655437 (9th Cir. Feb. 4, 2017)............................. 12
Washington v. Trump,
No. 17-35105, ECF. No. 28-2 (9th Cir. Feb. 6, 2017).................................. 17

iv

STATEMENT OF INTEREST
Amicus files this brief in support of Plaintiffs’ Motion for a
Temporary Restraining Order to enjoin enforcement of President Trump’s
Amended Executive Order, dated March 6, 2017 (the “Amended Order” or the
“Amended Executive Order”).
T.A.1 is a United States citizen who was raised in Yemen. T.A.’s
father and many members of T.A.’s extended family hold Yemeni passports and
reside abroad. They are barred from entering the United States under the Amended
Order. Although the Government states that banned persons “could” apply for
“[c]ase by case” waivers under Section 3 of the Amended Order, Section 16(c)
provides that nothing in the Amended Order provides any “enforceable” right,
“substantive or procedural.” Am. Compl.,2 Ex. 1 (Amended Order) at § 16(c). The
Amended Order does not even provide for any unenforceable opportunity to be
heard as to any purported reason to deny entry, any timing for or notification of a
denial, much less any reason, or any ability to appeal a denial.

1

This brief uses initials, rather than T.A.’s full name, to reduce the risk of potential
reprisals to T.A. or his family members. United States v. Doe, 655 F.2d 920, 922
n.1 (9th Cir. 1981) (Even for a party, “[w]here it is necessary, however, to protect a
person from harassment, injury, ridicule or personal embarrassment, courts have
permitted the use of pseudonyms.”)
2

Citations to “Am. Compl.” refer to the Second Amended Complaint For
Declaratory and Injunctive Relief, filed March 8, 2017, at ECF No. 64.
1

INTRODUCTION
The travel ban in the Amended Order would cause severe harms to
T.A., his family, and countless others. This brief focuses on one issue: the
assertion that these harms that the Amended Executive Order would impose are
justified by national security. That assertion does not pass even rational basis
scrutiny.
The Amended Order is not rationally related to the Government
interests it purports to further. First, no national from any of the six countries has
committed a fatal terrorist attack in the United States since 1975. Thus, the
Amended Order is both widely overbroad and too narrow in comparison to its
stated purpose. The Amended Order applies to every national of the six countries
identified but, at the same time, does not include any national of the many other
countries whose nationals previously committed deadly terrorists attacks against
the United States, including 9/11.
Second, although the Amended Order cites the need to review
purportedly-deficient vetting procedures, as a Department of Homeland Security
(“DHS”) report indicates, there is no evidence of a correlation between the
adequacy of a country’s vetting procedures and the likelihood one of its nationals
will commit a terrorist attack within the United States. Nor is there any indication
that the United States cannot introduce its own sufficient, supplemental vetting

2

procedures to remedy any potential screening deficiencies in the six countries.
Indeed, the Amended Order concedes the Government will now do this for Iraqi
nationals.
Third, the timing of the Amended Order betrays its supposed national
security justification. President Trump first issued his Executive Order entitled
“Protecting the Nation From Foreign Terrorist Entry Into the United States” on
January 27, 2017 (the “Original Order” or “Original Executive Order”). Were
national security the true impetus for the Amended Order, the Administration
would not have waited more than 35 days—after the courts enjoined the
enforcement of the Original Executive Order—to roll out the Amended Order and
make it effective. And the Administration certainly would not have waited almost
a week to roll out the already-completed, revised version, for the sole purpose of
extending favorable press coverage for President Trump’s Joint Address to
Congress.
All of the above and more demonstrate that national security is more
of a pretext than a reason for the Amended Order. Stripped of this pretext, the
Amended Order is what it seems—a payoff on the President’s campaign promise
to ban Muslims because of their purported terrorist proclivities. That is prejudice
and would cause severe harms. Even assuming there was statutory authorization,
the travel ban in the Amended Order is unconstitutional.

3

FACTUAL BACKGROUND
A.

President Trump’s Campaign Promise to Ban All Muslims.
On January 27, 2017, President Trump issued the Original Executive

Order. Am. Compl., Ex. 2 (Original Executive Order). Nationals from seven
Muslim-majority countries, Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen,
were immediately “suspend[ed]” from entering the United States. Id. at § 3(c).
Although the Original Executive Order asserted that numerous “foreign-born
individuals” had “been convicted or implicated in terrorism-related crimes” since
September 11, 2001, id. at § 1, it provided no support for that claim. The
overwhelming public record demonstrates that this justification was and remains a
pretext for a travel ban targeted at Muslims.
1.

Anti-Muslim Rhetoric (Jul. 2015 – Nov. 2015)

On June 16, 2015, Donald J. Trump announced his candidacy for
Presidency. Soon after, at a July 11, 2015, Las Vegas rally, Mr. Trump said: “If
you are Islamic . . . it’s hard to believe, you can come in so easily.” Am. Compl.
¶ 36 (citing Louis Jacobson, Donald Trump says if you’re from Syria and a
Christian, you can’t come to the U.S. as a refugee, Politifact (July 20, 2015)).
At a September 30, 2015 New Hampshire rally, Mr. Trump told his
followers that a “200,000-man army” might grow out of the 10,000 Syrian
refugees the Obama administration had accepted for 2016. Id. ¶ 37 (citing Ali
Vitali, Donald Trump in New Hampshire: Syrian Refugees Are ‘Going Back, NBC
4

News (Oct. 1, 2015)). “[T]hey could be ISIS,” Mr. Trump said, but, “if I win,
they’re going back.” Id.
On November 18, 2015, Mr. Trump doubled down on his promise to
deport Syrian refugees if elected and, further, claimed that the United States would
have “absolutely no choice” but to shut down mosques where “some bad things are
happening.” Ex. 1 (Nick Gass, Trump: ‘Absolutely no choice’ but to close
mosques, Politico (Nov. 18, 2015)).
2.

The Unadorned Muslim Ban (Dec. 2015 – Mar. 2016)

In a December 7, 2015 press release, titled “Donald J. Trump
Statement on Preventing Muslim Immigration,” Trump declared: “Donald J.
Trump is calling for a total and complete shutdown of Muslims entering the United
States . . .[,]” because “there is great hatred towards Americans by large segments
of the Muslim population.” Am. Compl., Ex. 6 (Press Release, Donald J. Trump
for President, Donald J. Trump Statement on Preventing Muslim Immigration
(Dec. 7, 2015)). Offered a last chance the next day to soften his tone, Mr. Trump
declined to relent:
Interviewer: [What would the customs process look like for a Muslim noncitizen trying to enter the U.S.?]
Trump: [The official screening the entrant] would say, are you Muslim?

5

Interviewer: And if they said ‘yes,’ they would not be allowed into the
country.
Trump: That’s correct.
Am. Compl. ¶ 39 (citing Nick Gass, Trump not bothered by comparisons to Hitler,
Politico (Dec. 8, 2015)). Instead, Mr. Trump justified his proposal by invoking
one of this country’s great shames—the internment of Japanese Americans during
World War II—telling reporters, “[Roosevelt] did the same thing.” Id. (citing
Jenna Johnson, Donald Trump says he is not bothered by comparisons to Hitler,
The Washington Post (Dec. 8, 2015)).
In March 2016, Mr. Trump told another interviewer, “I think Islam
hates us,” adding that distinguishing between Islam and “radical” Islam was not
possible. Am. Compl. ¶ 41 (citing Anderson Cooper 360 Degrees: Exclusive
Interview With Donald Trump (CNN television broadcast Mar. 9, 2016, 8:00 PM
ET)). Asked whether “there [was] a war between the West and radical Islam, or
between the West and Islam itself,” Mr. Trump replied, “It’s very hard to separate.
Because you don’t know who’s who.” Id.
3.

Dressing the Muslim Ban in “National Security” Garb (Jun.
2016 – present)

When Mr. Trump became the presumptive Republican nominee, he
began to change his semantics. In June 2016, Mr. Trump promised to “suspend
immigration from areas of the world where there’s a proven history of terrorism
6

against the United States, Europe or our allies until we fully understand how to end
these threats.” Id. ¶ 42-43 (emphasis added) (citing Ryan Teague Beckwith, Read
Donald Trump’s Speech on the Orlando Shooting, Time (June 13, 2016); Press
Release, Donald J. Trump Addresses Terrorism, Immigration, and National
Security, (Jun. 13, 2016)). Still, he coupled this promise with dual exhortations to
world leaders to stop “importing radical Islamic terrorism to the West through a
failed immigration system” and “tell the truth about radical Islam” in order “to
protect the quality of life for all Americans—women and children, gay and
straight, Jews and Christians and all people.” Id.
On July 24, 2016, Mr. Trump admitted that he had changed only the
label of his Muslim Ban. During a Meet the Press interview, a journalist said to
the candidate: “The Muslim Ban. I think you’ve pulled back from it, but you tell
me.” Am. Compl., Ex. 7 (Transcript, Meet the Press (July 24, 2016)). Mr. Trump
responded: “I 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. Remember this. And I’m okay with that,
because I’m talking territory instead of Muslim.” Id. (emphasis added).
By the fall, Mr. Trump said his Muslim ban was now called “extreme
vetting.” During the October 9, 2016 Presidential debate, a moderator asked,
“Your running mate said this week that the Muslim ban is no longer your position.

7

Is that correct? And if it is, was it a mistake to have a religious test?” Am. Compl.
¶ 45 (citing The American Presidency Project, Presidential Debates: Presidential
Debate at Washington University in St. Louis, Missouri (Oct. 9, 2016)). Mr.
Trump replied: “The Muslim ban is something that in some form has morphed into
a[n] extreme vetting from certain areas of the world.” Id. (emphasis added).
Asked to clarify whether “the Muslim ban still stands,” Trump simply responded,
“It’s called extreme vetting.” Id. (emphasis added).
Former New York City Mayor and Trump-advisor Rudolph Giuliani
has confirmed that Mr. Trump’s intention to ban Muslims never changed. Mr.
Giuliani explained that Mr. Trump wanted to enact a “Muslim Ban,” and asked
how he could get away with it legally. Mr. Giuliani admitted: “When [Mr.
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.’” Am. Compl.,
Ex. 8 (Amy B. Wang, Trump asked for a ‘Muslim ban,’ Giuliani says – and
ordered a commission to do it ‘legally’, The Washington Post (Jan. 29, 2017)).
4.

Delivering on the Campaign Promise – The January 27, 2017
Executive Order and March 6, 2017 Amended Order.

President Trump unveiled the Original Executive Order, “Protecting
the Nation From Foreign Terrorist Entry into the United States,” on January 27,
2017. Am. Compl., Ex. 2 (Original Order). Section 3(c) of the Original Order
“suspend[ed] entry into the United States, as immigrants and nonimmigrants” of
8

individuals from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. Id. § 3(c).
The Original Order also imposed a 120-day moratorium on the refugee
resettlement program and “suspend[ed]” indefinitely the entry of refugees from
Syria to the United States. Id. §§ 5(a), (c)–(d). Finally, Section 5(b) of the
Original Order directed the Secretaries of State and Homeland Security, “[u]pon
resumption of USRAP admissions,” to “prioritize refugee claims made by
individuals on the basis of religious-based persecution, provided that the religion
of the individual is a minority religion in the individual’s country of nationality.”
Id. § 5(b).
President Trump, in a January 27, 2017 interview with the Christian
Broadcasting network, stated that under his Order, Christians would be given
priority in refugee admissions. Am. Compl. ¶ 58 (citing Brody File Exclusive:
President Trump Says Persecuted Christians Will Be Given Priority as Refugees,
Christian Broadcasting Network (Jan. 27, 2017)). President Trump remarked:
Do you know if you were a Christian in Syria it was impossible, at least very
tough to get into the United States? If you were a Muslim you could come
in, but if you were a Christian, it was almost impossible and the reason that
was so unfair, everybody was persecuted in all fairness, but they were
chopping off the heads of everybody but more so the Christians. And I
thought it was very, very unfair. So we are going to help them.
Id.

9

On February 3, 2017, federal Judge James L. Robart of the Western
District of Washington issued a temporary restraining order (the “TRO”), enjoining
the Executive Branch from enforcing the Original Order after the State of
Washington challenged the ban on constitutional grounds. See Washington v.
Trump, No. 2:17-CV-00141, ECF. No. 52 (W.D. Wash. Feb. 3, 2017)). On
February 9, 2017, the Ninth Circuit denied the Government’s motion for an
emergency stay of the TRO. Washington v. Trump, 847 F.3d 1151, 1161 (9th Cir.
2017) (per curiam).
On March 6, 2017, President Trump issued the Amended Executive
Order. Am. Compl., Ex. 1 (Amended Order.) Although the Amended Order made
a number of changes, including the removal of Iraq from the list of affected
countries, and exempting lawful permanent residents, it retains the contours and
purpose of both the Original Order and the President’s campaign promises.
Indeed, the White House Press Secretary, Sean Spicer, heralded the issuance of the
Amended Order as the fulfillment of President Trump’s campaign promises, telling
reporters, “President Trump yesterday continue[d] to deliver on ... his most
significant campaign promises: protecting the country against radical Islamic
terrorism.” Ex. 2 (Press Briefing by Press Secretary Sean Spicer, (Mar. 7, 2017)
(emphasis added)). Mr. Spicer’s statement belies the Government’s argument that
the Amended Order can be divorced from President Trump’s campaign promises.

10

B.

T.A.
T.A. is a Muslim and a United States citizen who grew up in Yemen.

When T.A. was eighteen, he returned to the United States to attend college. He
currently lives and works here as a videographer.
T.A.’s father, aunts, uncles, and cousins—all of whom hold Yemeni
passports—now live in Jordan, to which they fled as refugees from the ongoing
Yemeni Civil War. Many of them would like to travel to the United States to visit
T.A. and their extended family. In particular, T.A.’s cousin, with whom he is
close, wishes to travel to this country to look at schools and visit his brother, a U.S.
citizen, as well as T.A. The Amended Order would bar T.A.’s father, cousin and
his extended family from traveling to this country.
ARGUMENT
I.

THE GOVERNMENT’S NATIONAL SECURITY JUSTIFICATION
IS REVIEWABLE BY THE JUDICIARY.
Both the Original and Amended Executive Orders asserted national

security as a justification. See Am. Compl. Ex. 2 (Original Order) at § 2 (The
Order is meant “to protect the American people from terrorist attacks by foreign
nationals”); Am. Compl., Ex. 1 (Amended Order) at § 1(a). The Government has
previously argued that this national security justification renders the Executive
Orders “unreviewab[le],” positing that “[j]udicial second-guessing of the
President’s determination” that the Orders were necessary “to protect national

11

security” was “an impermissible intrusion” on the Executive’s authority. See Mot.
for Administrative Stay 2, 15-16, Washington v. Trump, No. 17-35105, 2017 WL
655437 (9th Cir. Feb. 4, 2017). If the Government were correct that national
security assertions are unreviewable in this context, then even an open, avowed
ban of all Muslims—or Jews, Hindus, or Sikhs—would be unchallengeable. But,
as the Ninth Circuit ultimately concluded, the Government’s position is not, and
cannot be, the law.
Indeed, the Ninth Circuit found “no precedent to support” the
Government’s position. Washington, 847 F.3d at 1161. Citing a wealth of
controlling authority stretching back more than 150 years, the Ninth Circuit
confirmed that “concerns of national security . . . do not warrant abdication of the
judicial role.” Id. at 1161-64. (relying on Holder v. Humanitarian Law Project,
561 U.S. 1, 34 (2010); Boumediene v. Bush, 553 U.S. 723, 765 (2008); Aptheker v.
Sec’y of State, 378 U.S. 500 (1964); Ex parte Endo, 323 U.S. 283 (1944); Ex parte
Quirin, 317 U.S. 1, 19 (1942); Ex parte Milligan, 71 U.S. 2, 120-21 (1866);
Alperin v. Vatican Bank, 410 F.3d 532, 559 n.17 (9th Cir. 2005); American-Arab
Anti-Discrimination Comm. v. Reno, 70 F.3d 1045, 1056 (9th Cir. 1995)). Federal
courts uncontrovertibly possess the power “to review the political branches’
actions with respect to matters of national security.” Id.

12

The Ninth Circuit reiterated that while “deference” to the Executive
Branch is appropriate in cases involving national security determinations, “given
the relative institutional capacity, informational access, and expertise of the
courts,” national defense is not “an end in itself,” and its assertion may not be used
to justify unconstitutional exercise of power. Id. at 1163 (citing United States v.
Robel, 389 U.S. 258, 264 (1967) (“It would indeed be ironic if, in the name of
national defense, we would sanction the subversion of one of those liberties . . .
which makes the defense of the Nation worthwhile.”). The Executive Branch’s
“authority and expertise” in matters involving national security does not “trump the
Court’s own obligation to secure the protection that the Constitution grants to
individuals.” Id. Thus, courts should “review foreign policy arguments . . .
offered to justify legislative or executive action when constitutional rights are at
stake.” Id.
The cases cited by the Ninth Circuit prudently establish that under our
constitutional rule of law, the judiciary examines the extent of support for the
Executive’s invocation of national security. History is replete with too many
scares, terrors, and pogroms to mention that occurred when a judiciary lacked
either the authority or the resolve to perform such a constitutional role.

13

II.

A CONSTITUTIONAL CLAIM IS STRENGTHENED WHERE THE
GOVERNMENT’S ASSERTED JUSTIFICATION OF NATIONAL
SECURITY APPEARS TO BE A PRETEXT FOR PREJUDICE.
In many areas of constitutional law, where the “breadth” of

government action is “so far removed” from the government’s “particular
justifications,” those justifications are “impossible to credit.” Romer v. Evans, 517
U.S. 620, 632 (1996). For example, in Romer, the Supreme Court reviewed an
amendment to the Colorado state constitution that would have prevented any
locality in the state from taking any action to recognize homosexuals as a protected
class. Id. at 624. The Government justified the amendment by citing “respect for
other citizens’ freedom of association,” including the rights of landlords to evict
gay tenants if they found homosexuality morally offensive. Id. at 635. Justice
Kennedy, writing for the majority, held that the amendment’s “sheer breadth is so
discontinuous with the reasons offered for it that the amendment seems
inexplicable by anything but animus toward the class it affects; it lacks a rational
relationship to legitimate state interests.” Id. at 632 (the amendment “is at once too
narrow and too broad,” because it “identifies persons by a single trait and then
denies them protection across the board.”).
Because, as we next demonstrate, the Amended Executive Order is
both radically overbroad and under-inclusive, it cannot withstand any level of
review. As in Romer, the Amended Order “is at once too narrow and too broad,”

14

thus revealing its true purpose of animus toward a politically unpopular group. Id.
at 633. Such animus is even clearer here in light of the comments of the President
and his aides before and after the election. See supra at 4-10.
III.

THE GOVERNMENT’S NATIONAL SECURITY ASSERTION IS A
PRETEXT FOR PREJUDICE.
In reviewing the Amended Order, the Court should consider its

“historical context” and the “specific sequence of events leading to [its
pronouncement].” McCreary County, Ky. v. Am. Civil Liberties Union of Ky., 545
U.S. 844, 866 (2005). History debunks the national security assertion in the
Amended Executive Order.
A.

The Evidence Cited in the Amended Order Regarding National
Security is Superficial.
The Amended Order “suspend[s] entry” into the United States of

individuals from six countries: Iran, Libya, Somalia, Sudan, Syria, and Yemen.
Am. Compl., Ex. 1 (Amended Order) at § 2(c). The Amended Order asserts that
its aim is to prevent “the entry into the United States of foreign nationals who may
commit, aid, or support acts of terrorism.” Id. § 1(j). It asserts that the ban is
intended “to prevent infiltration by foreign terrorists. Id. §§ 1(d)-(e), 2(c).
Likewise, the Amended Order justifies its refugee ban on the ground that
“individuals seeking admission as refugees” may “pose a threat to the security and
welfare of the United States.” Id. § 6(a).

15

As the conservative-leaning Cato Institute has demonstrated, however,
no national from any of the countries listed in the Amended Order has committed a
fatal terrorist attack in the United States since at least 1975. Am. Compl. ¶ 53
(citing Alex Nowrasteh, Little National Security Benefit to Trump’s Executive
Order on Immigration, Cato Institute Blog (Jan. 25, 2017)). Cato also has
determined that any American’s chance of being killed by a refugee is
approximately 1 in 3.6 billion. See Ex. 3 (Alex Nowrasteh, Syrian Refugees and
the Precautionary Principle, Cato Institute Blog (Jan. 28, 2017)).
A leaked February 24, 2017 DHS draft report came to the same
conclusion as the Cato Institute: citizenship is an “unlikely indicator” of terrorism
threats against the United States, given that very few individuals from the seven
countries included in the Original Order, or the six countries included in the
Amended Order, carried out, or even attempted to carry out, non-fatal terrorist
activity within the United States since 2011. Am. Compl., Ex. 10 (Department of
Homeland Security, Citizenship Likely an Unreliable Indicator of Terrorist Threat
to the United States).
Specifically, of the eighty-two people inspired by a foreign terrorist
group to carry out, or attempt to carry out, attacks in the United States, only three
have been from Somalia, one each from Iran, Sudan, and Yemen, and none from
Syria or Libya. Am. Compl., Ex. 12 (Phil Helsel, DHS Draft Report Casts Doubt

16

on Extra Threat from ‘Travel Ban’ Nationals in U.S., NBC News (Feb. 24, 2017)).
As important, there is no evidence that any of these individuals were radicalized
before entering the United States. To the contrary, a second DHS report, dated
March 1, 2017, concludes that “most foreign-born, U.S.-based violent extremists
likely radicalized several years after their entry to the United States.” Am. Compl.,
Ex. 11 (Department of Homeland Security, Most Foreign-born, US-based Violent
Extremists Radicalized after Entering Homeland; Opportunities for Tailored CVE
Programs Exist (March 1, 2017)). Thus, the lack of “extreme vetting” could not
have contributed to their attacks.
Conversely, the countries with the most individuals on the DHS terror
list remained conspicuously absent from both the Original and Amended Executive
Orders. Am. Compl. ¶ 53 (citing Scott Schane, Immigration Ban Is Unlikely to
Reduce Terrorist Threat, Experts Say, N.Y. Times (Jan. 28, 2017)). Although the
Orders cite the attacks of September 11, 2001 as a rationale, the Amended Order
imposes no restrictions on travelers from the countries whose nationals carried out
those attacks (Egypt, Lebanon, Saudi Arabia, and the United Arab Emirates). In
reality, as nearly a dozen high-ranking national security and intelligence officials
have declared, these Orders “ultimately undermin[e] the national security of the
United States, rather than making us safer.” See Decl. Nat’l Security Advisors ¶ 3,
Washington v. Trump, No. 17-35105, ECF. No. 28-2 (9th Cir. Feb. 6, 2017))

17

(concluding that there is no national security purpose for a total bar on entry from
the seven countries named in the Original Order)).
Even the specific examples of individual terrorists cited in the
Amended Order only exacerbate the logical inconsistencies inherent in the
Administration’s national security argument. The Amended Order asserts that
“[r]ecent history shows that some of those who have entered the United States
through our immigration system have proved to be threats to our national security.”
Am. Compl., Ex. 1 (Amended Order) at § 1(h). Then it goes on to offer two
examples. The Amended Order would have prevented neither.
First, the Administration points to a “January 2013. . . [incident in
which] two Iraqi nationals admitted to the United States as refugees in 2009 were
sentenced to 40 years and to life in prison, respectively, for multiple terrorismrelated offenses.” Id. (emphasis added). But Iraq was removed from the list of
banned countries in the Amended Order. Id. at § 1(f).
The second example does not fare any better. The Amended Order
states, “[I]n October 2014, a native of Somalia who had been brought to the
United States as a child refugee and later became a naturalized United States
citizen was sentenced to 30 years in prison for attempting to use a weapon of mass
destruction as part of a plot to detonate a bomb at a crowded Christmas-treelighting ceremony in Portland, Oregon.” Id. (emphasis added). To start, no one

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claims that this person was radicalized before he came to this country as a “child
refugee,” so this cannot be an example of failed vetting. Moreover, Section 3(c)(v)
of the Amended Order provides for potential waivers in cases where the “foreign
national is an infant, a young child or adoptee… .” Id. at § 3(c)(v).

Thus, the

Government cannot use either example to justify the still-overbroad Amended
Executive Order on national security grounds.
B.

The Government’s Vetting Justification Illustrates the Amended
Order’s Fatal Overbreadth.
The Amended Order asserts that preventing nationals from Iran,

Libya, Somalia, Sudan, Syria, and Yemen from entering the United States, subject
to certain exceptions, is needed “[i]n light of the conditions in the[] six countries,
[and] until the assessment of current screening and vetting procedures required by
section 2 of this order is completed.” Am. Compl. Ex. 1 (Amended Order) at
§ 1(f). This purported justification in fact helps demonstrate the overbreadth of the
travel ban.
First, there is no demonstrated correlation between the adequacy of a
country’s vetting procedures and the likelihood that it will produce an individual
from that country who will commit a terrorist attack within the United States.
Were this the case, then Saudi Arabia and Egypt, two countries with vetting
procedures evidently stringent enough for the Administration to omit them from
the Amended Order’s travel ban list, see id. at § 1(f), would not have together
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produced sixteen of the nineteen 9/11 hijackers. See Ex. 4 (Sergio Pecanha and
K.K. Rebecca Lai, The Origins of Jihadist-Inspired Attackers in the U.S., New
York Times (Dec. 8, 2015)) (sixteen of the attackers were from Saudi Arabia, one
from Egypt, two from the United Arab Emirates, and one from Lebanon).
Second, the illogic of the Amended Order’s travel ban based on
nationality is striking. For example, a Sudanese national who has lived and
worked in, and travels to the United States from, Saudi Arabia as a doctor would
be banned. Am. Compl. ¶ 63(c) (citing Jane Morice, Two Cleveland Clinic doctors
vacationing in Iran detained in New York, then released, Cleveland.com (Jan. 29,
2017)). But a Saudi national of any background who lives and works in, and
travels to the United States from, Sudan is not. This illogical disparity is justified
by nothing, including national security.
Third, the Executive Branch has many undoubtedly constitutional
tools at its disposal—such as diplomacy, aid, withholding aid, and sanctions—to
induce other countries to improve their vetting procedures. But there is simply no
evidence that barring citizens of these six countries will induce their respective
governments to increase the stringency of their own vetting efforts.
Fourth, the Government has not demonstrated why, if unsatisfied with
the six countries’ existing vetting procedures, our country cannot engage in its
own, additional vetting. To the contrary, the Amended Order removes Iraq from

20

the travel ban list, and instead imposes additional screening procedures by the
United States for Iraqi nationals seeking a visa, admission, or other immigration
benefit. Am. Compl., Ex. 1 (Amended Order) at § 1(f), at § 4 (stating that Iraqi
applications will be subject “to thorough review, including, as appropriate,
consultation with a designee of the Secretary of Defense and use of the additional
information that has been obtained in the context of the close U.S.-Iraqi security
partnership . . .”). The Amended Order offers no reason why supplemental vetting
on the part of the United States would not similarly remedy any deficiencies in the
vetting procedures of any of the remaining six countries on the travel ban list. To
the contrary is a letter to President Trump from more than 130 generals and
national security experts from across the political spectrum—including former
Secretaries of State Susan Rice and John Kerry and two former Secretaries of the
Department of Homeland Security. That letter explains that the United States can
and should “implement any necessary [vetting] enhancements without a
counterproductive ban or suspension on entry of nationals of particular countries or
religions.” Ex. 5 (Nat’l Security Experts’ March 10, 2017 Letter to Trump).
C.

The Timing Surrounding the Amended Order’s Roll-Out Belies
Any “National Security” Justification.
The circumstances surrounding the Amended Order’s roll-out further

belies its “national security” justification. Discussing the Original Executive
Order, President Trump claimed that he initially considered a one-month delay
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between signing and implementation. Am. Compl. ¶ 60 (citing Kevin Liptak,
Trump: I wanted month delay before travel ban, was told no, CNN Politics (Feb. 9,
2017)). But after being told by advisors that “you can’t do that because then
people are gonna pour in before the toughness,” he says he relented and opted
instead for the ban to become effective immediately. Id. On January 30, 2017,
President Trump took to Twitter to explain: “If the ban were announced with a one
week notice, the ‘bad’ would rush into our country during that week.” Id. (citing
Donald J. Trump (@realDonaldTrump), Twitter (Jan. 30, 2017, 5:31 AM ET)).
Indeed, when Judge Robart enjoined enforcement of the Original
Executive Order, on February 3, 2017, President Trump’s Tweets over the next
two days reiterated that the threat to national security was immediate, real, and
severely exacerbated by Judge Robart’s order:
Feb 4, 2017 07:48:12 PM The judge opens up our country to potential
terrorists and others that do not have our best interests at heart. Bad
people are very happy!
Feb 4, 2017 04:44:49 PM Because the ban was lifted by a judge, many
very bad and dangerous people may be pouring into our country. A
terrible decision
Feb 4, 2017 03:44:07 PM What is our country coming to when a judge
can halt a Homeland Security travel ban and anyone, even with bad
intentions, can come into U.S.?
Feb 5, 2017 03:39:05 PM Just cannot believe a judge would put our
country in such peril. If something happens blame him and court system.
People pouring in. Bad!

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Ex. 6 (Selected Trump Tweets (emphasis added)). The Justice Department
sought an emergency stay of Judge Robart’s TRO in the Ninth Circuit, arguing
that the TRO put the security of the nation at immediate risk. See Gov’t’s
Emergency Mot. Under Cir. Rule 27-3 for Admin. Stay and Mot. for Stay
Pending Appeal at *20, Washington v. Trump, No. 17-35105, ECF. No. 14
(Feb. 4, 2017).
Despite the President’s rhetoric, his Administration nevertheless
took five weeks after the Original Order’s enforcement was enjoined to roll out
the Amended Order. Indeed, President Trump purposefully delayed rolling out
the Amended Order by nearly a week, even after it was already completed,
because his Administration did not want to disrupt a news cycle of favorable
press coverage. The Amended Order was finished and set for President
Trump’s signature on March 1, 2017. See Am. Compl. ¶ 74 (citing Laura
Jarrett, Ariane de Vogue & Jeremy Diamond, Trump delays new travel ban
after well-reviewed speech, CNN (Mar. 1, 2017 6:01 AM ET)). But after
President Trump’s February 28, 2017 Joint Address to Congress was well
received in the national press, the Administration decided to delay the issuance
of the Amended Order to March 6, 2017. Id. It strains credibility to suggest
that national security can be the true basis for the Amended Order if its
implementation comes second to favorable media coverage.
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D.

The Extended Time Periods Under the Amended Order Further
Suggest “National Security” is a Pretext.
Credibility is further strained by the time periods set forth in the

Amended Executive Order. The January 27, 2017 Original Executive Order
declared that Section 3(c)’s entry ban was necessary to “reduce investigative
burdens on relevant agencies during the review period” regarding vetting
procedures. Am. Compl. at Ex. 2 (Original Order) at § 3(c). Accordingly, the
Original Order suspended travel from the seven listed countries for 90 days,
through April 27, 2017, ostensibly to facilitate such review. Id. § 3(c).
Yet, the March 6, 2017 Amended Executive Order, issued 38 days
after the original, delayed its effective date another 10 days and called for an
additional 90-day entry ban—until June 14, 2017—purportedly to enable
executive agencies to conduct their already-ongoing review. Compare Am.
Compl. Ex. 1 (Amended Order) at § 2(c), with Am Compl. Ex. 2 (Original Order)
at § 3(c). The Amended Order does not even try to explain why an additional 48
days are necessary for the review. That extension brings the total period for the
review, since January 27, 2017, to 138 days—a more-than-50% increase over the
90 days originally called for in the Original Order.
The Amended Order does not and cannot blame Judge Robart’s TRO
as a means to justify the 48-day extension. Nothing in any TRO across the country
would have prevented the review from occurring. The review undoubtedly could
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have continued, and, very likely did continue, after the TRO. The President does
not need an executive order to direct cabinet members, or the Director of National
Intelligence, to engage in the sort of review described in Section 3(a) of the
Original Order and Section 2(a) of the Amended Order. To the contrary, such
presidential direction to appointed officials is usually accomplished by phone call,
email, letter, or other informal communication.
Curiously, the conclusory March 6, 2017 letter from the Attorney
General and Secretary of DHS, that is Exhibit A to the Government’s brief, does
not even purport to request or justify the 48-day extension of the review. That
silence, and the letter’s belated timing, further suggest that national security is
being used as a pretext for the Amended Order.
In light of all the above, the unwarranted extension of the travel ban
until at least June 14, 2017 is further evidence of animus. So is the Amended
Order’s suggestion that the ban may well continue indefinitely beyond June 14,
2017, so long as the review is not “completed.” Am. Compl. Ex. 1 (Amended
Order) at § 2(c).
E.

Absent the Pretext, What Remains is Prejudice.
Unlike President Trump during the campaign, supra at 5-6, the

Government prudently has never cited Korematsu v. United States, 323 U.S. 214
(1944). Even Korematsu’s majority opinion provides no help as, among other

25

reasons, the United States is not at war with any of the six countries named in the
travel ban. See id. at 217-18 (relying on “the war power of Congress and the
executive”); id. at 219 (“Approximately five thousand American citizens of
Japanese ancestry refused to swear unqualified allegiance to the United States and
to remove allegiance to the Japanese Emperor, and several thousand refugees
requested repatriation to Japan.”).
Moreover, Korematsu is no longer considered good law by the Ninth
Circuit. See Hirabayashi v. United States, 828 F.2d 591, 593 (9th Cir. 1987) (“The
Hirabayashi and Korematsu decisions have never occupied an honored place in
our history.”). Every indication is that a majority of the Supreme Court would
agree. Justice Ginsburg and Breyer have said so. See Adarand Constructors, Inc.
v. Pena, 515 U.S. 200, 275 (1995) (Ginsburg, J. dissenting) (describing the use of
strict scrutiny in Korematsu to “yield[] a pass for an odious, gravely injurious
racial classification . . . . A Korematsu-type classification . . . will never again
survive scrutiny: Such a classification, history and precedent instruct, properly
ranks as prohibited.”); Stephen Breyer, Making Our Democracy Work: A Judge’s
View (Knopf, 2010) (“The decision has been so thoroughly discredited, that it is
hard to conceive of any future court referring to it favorably or relying on it.”).
And the Ninth Circuit’s website has published a “Reading List of Justice Anthony
M. Kennedy,” available at www.ca9.uscourts.gov, that cites Justice Murphy’s

26

dissent in Korematsu as an example of “key principles that are integral to our
nation’s DNA.”
The core of Justice Murphy’s dissent is: “Individuals must not be left
impoverished of their constitutional rights on a plea of military necessity that has
neither substance nor support.” Korematsu, 323 U.S. at 234. Justice Murphy
stated that claims by the Executive regarding military necessity “must [be] subject”
to the “judicial process of having . . . reasonableness determined and . . . conflicts
with other interests reconciled.” Id. at 234. That rational “relation” was “lacking”
because the internment order simply “assum[ed] that all persons of Japanese
ancestry may have a dangerous tendency to commit sabotage and espionage and to
aid our Japanese enemy.” Id. at 235. However, no “reason, logic or experience
could be marshalled in support of such an assumption.” Id.
What remained, Justice Murphy explained, as the real reasons behind
the internment were “an accumulation of much of the misinformation, half-truths,
and insinuations that for years have been directed against Japanese Americans by
people with racial and economic prejudices—the same people who have been
among the most foremost advocates of the evacuation.” Id. at 240. In Justice
Murphy’s view, even a “military judgment based upon such racial and sociological
considerations is not entitled to the great weight” ordinarily given to national

27

security considerations. Id. Justice Murphy described the government’s action as
the “legalization of racism” and concluded:
Racial discrimination in any form and in any degree has no justifiable
part whatever in our democratic way of life. It is unattractive in any
setting but it is utterly revolting among a free people who have
embraced the principles set forth in the Constitution of the United
States.
Id. at 242.
The same is true here. The Government has marshalled no “reason,
logic or experience” in support of the assumption that nationals from the six
countries possess some innate tendency to commit terrorism in the United States.
Instead, President Trump said in his campaign, “Islam hates us,” supra at 6, and
the White House Press Secretary trumpets that the Amended Order keeps one of
President Trump’s “most significant campaign promises: protecting the country
against radical Islamic terrorism.” Supra at 10 (emphasis added). That is
prejudice, not national security. That prejudice does severe harm. It is
unconstitutional.
/
/
/
/
/
/
/
/
/

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CONCLUSION
Plaintiffs’ Motion for a Temporary Restraining Order should be
granted.
Dated: Honolulu, March 14, 2017.
/s/ Regan M. Iwao
REGAN M. IWAO
LYNDA L. ARAKAWA
RICHARD D. BERNSTEIN (pro hac vice)
Attorneys for Amicus Curiae
T.A.

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