State of Hawaii v. Trump

Filing 202

MEMORANDUM re 98 MOTION for Leave to File Amici Curiae Brief in Support of Plaintiffs Brief of the Fred T. Korematsu Center for Law and Equality, Jay Hirabayashi, Holly Yasui, Karen Korematsu, Civil Rights Organizations, and National Bar Associations of Color, as Amici Curiae in Support of Plaintiffs; Certificate of Service filed by Asian American Legal Defense And Education Fund (AALDEF), Asian Americans Advancing Justice (AAJC), Asian Americans Advancing Justice (Asian Law Caucus), Asian Americans Advancing Justice (Atlanta), Asian Americans Advancing Justice (Chicago), Asian Americans Advancing Justice (Los Angeles), Fred T. Korematsu Center for Law and Equality, Jay Hirabayashi, Hispanic National Bar Association (HNBA), Japanese American Citizens League, Honolulu Chapter (JACL Honolulu), Karen Korematsu, LatinoJustice PRLDEF, Inc., National Bar Association, South Asian Bar Association of North America (SABA North America), Holly Yasui. (Attachments: # 1 Certificate of Service)(Ing, Louise)

ALSTON HUNT FLOYD & ING
Louise K.Y. Ing
2396
Claire Wong Black
9645
1001 Bishop Street, Suite 1800
Honolulu, Hawai`i 96813
Telephone: [phone]
Facsimile: [phone]
Email:
[e-mail]
[e-mail]

AKIN GUMP STRAUSS HAUER
& FELD LLP
Pratik A. Shah (Pro Hac Vice)
Robert S. Strauss Building
1333 New Hampshire Avenue, NW
Washington, DC 20036-1564
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Facsimile: [phone]
Email:
[e-mail]
Attorneys for Amici Curiae

(See Next Page for Additional Counsel)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI`I
STATE OF HAWAI`I and ISMAIL
ELSHIKH,
Plaintiffs,
v.
DONALD J. TRUMP, in his official
capacity as President of the United
States; U.S. DEPARTMENT OF
HOMELAND SECURITY; JOHN F.
KELLY, in his official capacity as
Secretary of Homeland Security; U.S.
DEPARTMENT OF STATE; REX
TILLERSON, in his official capacity as
Secretary of State; and the UNITED
STATES OF AMERICA,
Defendants.

Case No. 1:17-CV-00050 DKW-KJM
BRIEF OF THE FRED T.
KOREMATSU CENTER FOR
LAW AND EQUALITY, JAY
HIRABAYASHI, HOLLY YASUI,
KAREN KOREMATSU, CIVIL
RIGHTS ORGANIZATIONS, AND
NATIONAL BAR ASSOCIATIONS
OF COLOR, AS AMICI CURIAE
IN SUPPORT OF PLAINTIFFS;
CERTIFICATE OF SERVICE

ADDITIONAL COUNSEL
Eric Yamamoto
2337
Fred T. Korematsu Professor of
Law and Social Justice
2515 Dole Street
Honolulu, Hawai`i 96822
Telephone: [phone]
Facsimile: [phone]
[e-mail]

AKIN GUMP STRAUSS HAUER &
FELD LLP
Robert A. Johnson (Pro Hac Vice)
One Bryant Park
New York, NY 10036
Telephone: [phone]
Facsimile: [phone]
[e-mail]
Jessica M. Weisel (Pro Hac Vice)
1999 Avenue of the Stars, Suite 600
Los Angeles, CA 90067
Telephone: [phone]
Facsimile: [phone]
[e-mail]

TABLE OF CONTENTS
Page
INTEREST OF AMICI CURIAE .............................................................................1 
INTRODUCTION AND SUMMARY OF ARGUMENT ......................................6 
ARGUMENT ...........................................................................................................9 
I. 

THE “PLENARY POWER” DOCTRINE ORIGINATED
FROM RACIST NOTIONS THAT COURTS NOW REJECT. ........9 

II. 

KOREMATSU STANDS AS A STARK REMINDER OF THE
NEED FOR VIGILANT JUDICIAL REVIEW OF
GOVERNMENTAL ACTION TARGETING DISFAVORED
GROUPS IN THE NAME OF NATIONAL SECURITY. ...............16 

CONCLUSION ......................................................................................................21 

i

TABLE OF AUTHORITIES
Page(s)
Cases
Aziz v. Trump, No. 17-cv-00116-LMB-TCB (E.D. Va. Feb. 13, 2017),
(ECF No. 111)....................................................................................................... 8
Chae Chan Ping v. United States,
130 U.S. 581 (1889) ..............................................................................7, 9, 10, 11
Fong Yue Ting v. United States,
149 U.S. 698 (1893) ................................................................................10, 11, 12
Harisiades v. Shaughnessy,
342 U.S. 580 (1952) ............................................................................................ 12
Hirabayashi v. United States,
320 U.S. 81 (1943) ..........................................................................................1, 17
Hirabayashi v. United States,
828 F.2d 591 (9th Cir. 1987) .............................................................................. 19
Kerry v. Din,
135 S. Ct. 2128 (2015) ..................................................................................14, 15
Kleindienst v. Mandel,
408 U.S. 753 (1972) ......................................................................................14, 15
Korematsu v. United States,
323 U.S. 214 (1944) .....................................................................................passim
Korematsu v. United States,
584 F. Supp. 1406 (N.D. Cal. 1984) ...............................................................9, 19
Landon v. Plasencia,
459 U.S. 21 (1982) .............................................................................................. 13
Reno v. Flores,
507 U.S. 292 (1993) ............................................................................................ 13
Shaughnessy v. United States ex rel. Mezei,
345 U.S. 206 (1953) ......................................................................................12, 13
ii

State of Wash. v. Trump,
847 F.3d 1151 (9th Cir. 2017) ..............................................................7, 8, 14, 15
Yasui v. United States,
320 U.S. 115 (1943) ........................................................................................1, 17
Yasui v. United States,
772 F.2d 1496 (9th Cir. 1985) ............................................................................ 19
Zadvydas v. Davis,
533 U.S. 678 (2001) ......................................................................................13, 14
Other Authorities
Executive Order No. 13780, “Protecting the Nation from Foreign
Terrorist Entry into the United States,” 82 Fed. Reg. 13209 (Mar.
6, 2017) ................................................................................................................. 6
Executive Order No. 13769, “Protecting the Nation from Foreign
Terrorist Entry into the United States,” 82 Fed. Reg. 8977 (Jan. 27,
2017) ..................................................................................................................... 6
Executive Order No. 9066, “Authorizing the Secretary of War to
Prescribe Military Areas,” 7 Fed. Reg. 1407 (Feb. 19, 1942) ............................ 17
Greene, Jamal, The Anticanon, 125 HARV. L. REV. 379 (2011) .............................. 20
Katyal, Neal K., The Solicitor General and Confession of Error, 81
FORDHAM L. REV. 3027 (2012-2013) ................................................................. 19
Paulsen, Michael Stokes, Symposium: The Changing Laws of War:
Do We Need a New Legal Regime After September 11?: The
Constitution of Necessity, 79 NOTRE DAME L. REV. 1257 (2004) ...................... 20
Saito, Natsu Taylor, The Enduring Effect of the Chinese Exclusion
Cases: The Plenary Power Justification for On-Going Abuses of
Human Rights, 10 ASIAN AM. L.J. 13 (2003) ..................................................... 10
U.S. Dep’t of Justice, Confession of Error: The Solicitor General’s
Mistakes During the Japanese-American Internment Cases (May
20, 2011) ............................................................................................................. 19

iii

INTEREST OF AMICI CURIAE
The Fred T. Korematsu Center for Law and Equality (“Korematsu
Center”) is a non-profit organization based at the Seattle University School of Law.
The Korematsu Center works to advance justice through research, advocacy, and
education. Inspired by the legacy of Fred Korematsu, who defied military orders
during World War II that ultimately led to the unlawful incarceration of 110,000
Japanese Americans, the Korematsu Center works to advance social justice for all.
The Korematsu Center does not, in this brief or otherwise, represent the official
views of Seattle University.
The Korematsu Center has a special interest in addressing government
action targeted at classes of persons based on race, nationality, or religion.
Drawing on its experience and expertise, the Korematsu Center seeks to ensure that
courts understand the historical—and, at times, profoundly unjust—underpinnings
of arguments asserted to support the exercise of such unchecked executive power.
Jay Hirabayashi, Holly Yasui, and Karen Korematsu are children of
three Japanese Americans who challenged the government’s racial curfew and
detention programs in the United States Supreme Court during World War II:
Gordon Hirabayashi (see Hirabayashi v. United States, 320 U.S. 81 (1943));
Minoru Yasui (see Yasui v. United States, 320 U.S. 115 (1943)); and Fred
Korematsu (see Korematsu v. United States, 323 U.S. 214 (1944)). Their interest

1

is in reminding this court of the legacy those judicial decisions had on their
generation and will have on future generations, and the impact of judicial decisions
that fail to protect men, women, and children belonging to disfavored groups in the
name of national security.

Guilt, loyalty, and threat are individual attributes.

When these attributes are imputed to racial, religious, or national origin groups,
courts play a crucial role in ensuring that there is a legitimate basis. Disaster has
occurred when courts have refused to play this role.
During World War II, Gordon Hirabayashi, Minoru Yasui, and Fred
Korematsu stood largely alone. Here, their children are gratified to have such a
broad coalition standing with them, and together, standing with those communities
and individuals most directly harmed by the Executive Order:
Asian Americans Advancing Justice (“Advancing Justice”) is the
national affiliation of five nonprofit, nonpartisan civil rights organizations: Asian
Americans Advancing Justice – AAJC, Asian Americans Advancing Justice –
Asian Law Caucus, Asian Americans Advancing Justice – Atlanta, Asian
Americans Advancing Justice – Chicago, and Asian Americans Advancing Justice
– Los Angeles. Members of Advancing Justice routinely file amicus curiae briefs
in cases in the federal courts. Through direct services, impact litigation, policy
advocacy, leadership development, and capacity building, the Advancing Justice
affiliates advocate for marginalized members of the Asian American, Native

2

Hawaiian, Pacific Islander and other underserved communities, including
immigrant members of those communities.
The

Asian

American

Legal

Defense

and

Education

Fund

(“AALDEF”), founded in 1974, is a national organization that protects and
promotes the civil rights of Asian Americans. By combining litigation, advocacy,
education, and organizing, AALDEF works with Asian American communities
across the country to secure human rights for all. The President’s Executive Order,
which would curtail the rights of immigrants to be free from discrimination
because of their race, national origin, or religion, raises issues central to
AALDEF’s mission. In 1982, AALDEF testified before the U.S. Commission on
Wartime Relocation and Internment of Civilians, in support of reparations for
Japanese Americans forcibly relocated and imprisoned in camps during World War
II. After 9/11, AALDEF represented more than 800 individuals from Muslimmajority countries who were called in to report to immigration authorities under
the Special Registration (“NSEERS”) program. AALDEF is currently providing
community education and legal counseling to Asian Americans affected by the
challenged Executive Order.
The Hispanic National Bar Association (“HNBA”) is comprised of
thousands of Latino lawyers, law professors, law students, legal professionals, state
and federal judges, legislators, and bar affiliates across the country. The HNBA

3

supports Hispanic legal professionals and is committed to advocacy on issues of
importance to the 53 million people of Hispanic heritage living in the United
States. The HNBA regularly participates as amicus curiae in cases concerning
immigration and the protection of refugees.
The Japanese American Citizens League of Hawaii, Honolulu Chapter
(“JACL Honolulu”) is a non-profit corporation under Section 501(c)(3) of the
Internal Revenue Code based in Honolulu, Hawaii. JACL Honolulu draws upon
Hawaii’s rich, multi-ethnic society and strong cultural values, with a particular
focus on discrimination and intolerance towards all people victimized by injustice
and prejudice. JACL Honolulu has supported redress for Japanese Americans
interned unfairly under Executive Order 9066, in addition to working on and
sponsoring annual events to commemorate and educate the public regarding the
internment and Executive Order 9066 as well as the suffering and injustice that
stemmed from these wrongful actions.

The President’s new Executive Order

concerning immigration and refugee admissions discriminates based on race,
national origin, or religion, and is reminiscent of Executive Order 9066 that paved
the way for the mass incarceration of thousands of Japanese Americans. The
history of Japanese Americans and Executive Order 9066 closely parallels current
actions targeting Muslims under the President’s new Executive Order.

This

injustice is one of the core reasons for the founding of the JACL Honolulu chapter.

4

LatinoJustice PRLDEF, Inc. (“LatinoJustice”) is a national not-forprofit civil rights legal defense fund that has defended the constitutional rights and
equal protection of all Latinos under the law. LatinoJustice’s continuing mission is
to promote the civic participation of the greater pan-Latino community in the
United States, to cultivate Latino community leaders, and to engage in and support
law reform litigation across the country addressing criminal justice, education,
employment, fair housing, immigrants’ rights, language rights, redistricting, and
voting rights. During its 45-year history, LatinoJustice has litigated numerous
cases in both state and federal courts challenging multiple forms of racial
discrimination by government actors including law enforcement practices that
illegally target racial groups based upon their race, national origin and immigration
status.
The National Bar Association (“NBA”) is the largest and oldest
association of predominantly African-American attorneys and judges in the United
States. The NBA was founded in 1925 when there were only 1,000 AfricanAmerican attorneys in the entire country and when other national bar associations,
such as the American Bar Association, did not admit African-American attorneys.
Throughout its history, the NBA consistently has advocated on behalf of African
Americans and other minority populations regarding issues affecting the legal
profession. The NBA represents approximately 66,000 lawyers, judges, law

5

professors, and law students, and it has over eighty affiliate chapters throughout
the world.
The South Asian Bar Association of North America (“SABA”) is the
umbrella organization for 26 regional bar associations in North America
representing the interests of over 6,000 attorneys of South Asian descent. SABA
provides a vital link for the South Asian community to the law and the legal
system. Within the United States, SABA takes an active interest in the legal rights
of South Asian and other minority communities. Members of SABA include
immigration lawyers and others who represent persons that have been and will be
affected by the Executive Order.
INTRODUCTION AND SUMMARY OF ARGUMENT
History has taught us the risk of everlasting stains to this Nation’s
constitutional fabric when the Judiciary turns a blind eye to broad-scale
governmental actions targeting particular racial, ethnic, or religious groups. In
light of that history, this court must not abdicate its constitutional duty to critically
review Executive Order No. 13780, “Protecting the Nation from Foreign Terrorist
Entry into the United States,” 82 Fed. Reg. 13209 (Mar. 6, 2017) (“Executive
Order”).
The Executive Order replaces Executive Order No. 13769, 82 Fed.
Reg. 8977 (Jan. 27, 2017), which was enjoined by several courts, including the

6

Western District of Washington in an order affirmed by the Ninth Circuit. See
State of Wash. v. Trump, 847 F.3d 1151 (9th Cir. 2017). In defending the prior
Order, the federal government argued that the President has “unreviewable
authority” to suspend the admission of “any class of aliens,” regardless of the
constitutional rights and protections implicated by his action. Id. at 1161; see also
Emergency Motion Under Circuit Rule 27-3 for Administrative Stay and Motion
for Stay Pending Appeal at 2, State of Wash. v. Trump, No. 17-35105 (9th Cir. Feb.
4, 2017). For that sweeping contention, the government invoked the so-called
“plenary power” doctrine—a doctrine whose limited role in modern American
jurisprudence cannot bear the weight of the government’s arguments.
The plenary power doctrine derives from decisions such as Chae
Chan Ping v. United States, 130 U.S. 581 (1889) (“Chinese Exclusion Case”),
which were premised on racist and nativist precepts we now reject. In upholding a
law that prohibited Chinese laborers from returning to the United States, the
Chinese Exclusion Case relied on pejorative stereotypes to eschew judicial
scrutiny.

Hearkening back to dissents from early cases, and informed by

contemporary norms and the lessons of history, modern courts have refused to
afford complete deference to executive and legislative decisions in the realm of
immigration.

7

To that end, the Ninth Circuit emphatically rejected the federal
government’s contention that the President’s authority to “suspend any class of
aliens” is “unreviewable,” explaining that the proposition finds no support in
precedent and “runs contrary to the fundamental structure of our . . . democracy.”
847 F.3d at 1161. See also Mem. Op., Aziz v. Trump, No. 17-cv-00116-LMB-TCB
(E.D. Va. Feb. 13, 2017), ECF No. 111, at 10-12. Moreover, the court of appeals
admonished, judicial review is acutely important—and unbounded plenary power
is particularly untenable—where, as here, the governmental action being
challenged promulgates a broadly-applicable policy targeting groups based on
characteristics such as race, religion, or national origin. See 847 F.3d at 1162.
Such action, in the name of national security, is all too familiar to the
Korematsu Center, which owes its existence to the forced relocation and
incarceration during World War II of more than 110,000 men, women, and
children of Japanese descent that was challenged—to no avail—in Korematsu v.
United States, 323 U.S. 214 (1944). Decades later, upon finally vacating Mr.
Korematsu’s conviction for defying the baseless military order, a federal court
observed that the Korematsu precedent “stands as a constant caution that in times
of war or declared military necessity our institutions must be vigilant in protecting
constitutional guarantees”; “national security must not be used to protect
governmental actions from close scrutiny and accountability”; and courts “must be

8

prepared to exercise their authority to protect all citizens from the petty fears and
prejudices that are so easily aroused.” Korematsu v. United States, 584 F. Supp.
1406, 1420 (N.D. Cal. 1984).
That caution must be heeded here, and the new Executive Order must
be subjected to the same close judicial scrutiny used to enjoin the prior Order.
ARGUMENT
I.

THE “PLENARY POWER” DOCTRINE ORIGINATED FROM
RACIST NOTIONS THAT COURTS NOW REJECT.
1.

To the extent the Supreme Court ever recognized a truly

“plenary” power in the immigration realm that would preclude judicial review of
any constitutional claims (which it has not), that conception is linked to racist
attitudes from a past era and has long since fallen out of favor.
In the Chinese Exclusion Case, the Court upheld a statute preventing
the return of Chinese laborers who had departed the United States prior to its
passage.

130 U.S. at 581-582.

Describing the reasons underlying the law’s

enactment, the Court characterized Chinese laborers as “content with the simplest
fare, such as would not suffice for our laborers and artisans,” and observed that
they remained “strangers in the land, residing apart by themselves[,] . . . adhering
to the customs and usages of their own country” and unable “to assimilate with our
people.” Id. at 595. “The differences of race added greatly to the difficulties of the
situation.” Id. Residents of the West coast, the Court explained, warned of an
9

“Oriental invasion” and “saw or believed they saw . . . great danger that at no
distant day [the West] would be overrun by them, unless prompt action was taken
to restrict their immigration.” Id.
Far from applying a skeptical eye to the law in light of the clear
animus motivating its passage, the Court found that “[i]f the government of the
United States, through its legislative department, considers the presence of
foreigners of a different race in this country, who will not assimilate with us, to be
dangerous to its peace and security . . . its determination is conclusive upon the
judiciary.” Id. at 606. See also Natsu Taylor Saito, The Enduring Effect of the
Chinese Exclusion Cases: The Plenary Power Justification for On-Going Abuses
of Human Rights, 10 ASIAN AM. L. J. 13, 15 (2003). In reality, the “right of selfpreservation” that the Court validated as justification for the government’s
unbounded power to exclude immigrants was ethnic and racial self-preservation,
not the preservation of borders or national security. 130 U.S. at 608; see id. at 606
(“It matters not in what form . . . aggression and encroachment come, whether
from the foreign nation acting in its national character, or from vast hordes of its
people crowding in upon us.”). Similar racist and xenophobic attitudes are evident
in decisions following the Chinese Exclusion Case. See, e.g., Fong Yue Ting v.
United States, 149 U.S. 698, 729-30 (1893) (upholding requirement that Chinese
resident aliens offer “at least one credible white witness” in order to remain in the

10

country); id. at 730 (noting Congress’s belief that testimony from Chinese
witnesses could not be credited because of “the loose notions entertained by the
witnesses of the obligation of an oath” (quoting Chinese Exclusion Case, 130 U.S.
at 598)).
2.

While the Court’s early plenary power decisions were

undoubtedly influenced by such attitudes now repudiated, the Court nonetheless
recognized that the government’s sovereign authority is subject to constitutional
limitations. See Chinese Exclusion Case, 130 U.S. at 604 (“[S]overeign powers[]
[are] restricted in their exercise only by the constitution itself and considerations of
public policy and justice which control, more or less, the conduct of all civilized
nations.”). And even in those early years, the Court divided over the reach of the
government’s plenary power in light of those limitations. Fong Yue Ting, which
upheld a law requiring Chinese laborers residing in the United States to obtain a
special certificate of residence to avoid deportation, generated three dissenting
opinions. See 149 U.S. at 738 (Brewer, J., dissenting) (“I deny that there is any
arbitrary and unrestrained power to banish residents, even resident aliens.”); id. at
744 (Field, J., dissenting); id. at 762 (Fuller, J., dissenting) (similar). Even Justice
Field, who authored the Court’s opinion in the Chinese Exclusion Case, sought to
limit the plenary power doctrine’s application with regard to alien residents:
As men having our common humanity, they are protected by all the
guaranties of the constitution. To hold that they are subject to any
11

different law, or are less protected in any particular, than other
persons, is, in my judgment, to ignore the teachings of our history, the
practice of our government, and the language of our constitution.
Id. at 754 (Fields, J., dissenting).
Nearly 60 years later, judicial skepticism regarding an unrestrained
plenary power persisted—and grew. Dissenting in Harisiades v. Shaughnessy, 342
U.S. 580 (1952), which upheld a provision permitting the deportation of resident
aliens who were members of the Communist Party, Justice Douglas quoted Justice
Brewer’s dissent in Fong Yue Ting, observing that it “grows in power with the
passing years”:
This doctrine of powers inherent in sovereignty is one both indefinite
and dangerous . . . . The governments of other nations have elastic
powers. Ours are fixed and bounded by a written constitution. The
expulsion of a race may be within the inherent powers of a despotism.
History, before the adoption of this constitution, was not destitute of
examples of the exercise of such a power; and its framers were
familiar with history, and wisely, as it seems to me, they gave to this
government no general power to banish.
Id. at 599-600 (Douglas, J., dissenting) (quoting Fong Yue Ting, 149 U.S. at 737738 (Brewer, J., dissenting)) (emphasis added).
In another McCarthy-era precedent, four Justices advocated for
limitations on the plenary power doctrine. In Shaughnessy v. United States ex rel.
Mezei, 345 U.S. 206 (1953), the Court rejected any constitutional challenge to the
exclusion of an alien who had previously resided in the United States, despite his
resulting detention at Ellis Island. In dissent, Justice Black, joined by Justice

12

Douglas, reasoned that “[n]o society is free where government makes one person’s
liberty depend upon the arbitrary will of another.” Id. at 217. “Dictatorships,” he
observed, “have done this since time immemorial. They do now.” Id. Justice
Jackson, joined by Justice Frankfurter, added that, while in his view the “detention
of an alien would not be inconsistent with substantive due process,” such
individuals must be “accorded procedural due process of law.” Id. at 224.
3.

Perhaps reflective of the shift away from race-based

characterizations and other outdated notions prevalent in its early plenary power
precedents, the Court in recent years has been more willing to enforce
constitutional limitations on the federal government’s authority over immigration
matters.
For example, in Reno v. Flores, 507 U.S. 292 (1993), the Court held
that, despite the broad power of the political branches over immigration, INS
regulations must at least “rationally advanc[e] some legitimate governmental
purpose.” Id. at 306. In Landon v. Plasencia, 459 U.S. 21 (1982), the Court
affirmed that a resident alien returning from a brief trip abroad must be afforded
due process in an exclusion proceeding, notwithstanding the government’s
expansive discretion to exclude. Id. at 33. And in Zadvydas v. Davis, 533 U.S.
678 (2001), in response to the government’s contention that “Congress has
‘plenary power’ to create immigration law, and . . . the Judicial Branch must defer

13

to Executive and Legislative Branch decisionmaking in that area,” the Court
observed that such “power is subject to important constitutional limitations.” Id. at
695 (citations omitted).

“[F]ocus[ing] upon those limitations,” id., the Court

determined that the indefinite detention of aliens deemed removable would raise
“serious constitutional concerns” and accordingly construed the statute at issue to
avoid those problems, id. at 682. See also State of Wash., 847 F.3d at 1162-1163
(collecting cases demonstrating reviewability of federal government action in
immigration and national security matters).
Indeed, even decisions the federal government cited in defending the
prior Executive Order do not support the invocation of the plenary power doctrine
in the present context. The Court’s most recent decision in this area (on which the
government relied) in fact suggests that, after more than a century of erosion, the
plenary power doctrine as the federal government conceives it no longer exists.
In Kerry v. Din, 135 S. Ct. 2128 (2015), the Supreme Court
considered a due process claim arising from the denial without adequate
explanation of a spouse’s visa application. Although it described the power of the
political branches over immigration as “plenary,” Justice Kennedy’s concurring
opinion in Din makes clear that courts may review an exercise of that power to
ensure that the reason offered for the exclusion of an alien is “legitimate and bona
fide.”

Justice Kennedy explained that, although the Court in Kleindienst v.

14

Mandel, 408 U.S. 753 (1972), had declined to balance the constitutional rights of
American citizens injured by a visa denial against “Congress’s ‘plenary power to
make rules for the admission of aliens and to exclude those who possess those
characteristics which Congress has forbidden,’” Kerry, 135 S. Ct. at 2139 (quoting
Mandel, 408 U.S. at 766), the Court did inquire “whether the Government had
provided a ‘facially legitimate and bona fide’ reason for its action,” id. at 2140
(quoting Mandel, 408 U.S. at 770). And while as a general matter courts are
instructed not to “look behind” the government’s asserted reason for its decision
provided it is “bona fide and legitimate,” Justice Kennedy stated that exceptions to
that rule would apply if the challenger made “an affirmative showing of bad faith.”
Id. at 2141.
To be sure, Justice Kennedy’s opinion in Din acknowledged that the
political branches are entitled to wide latitude and deference in immigration
matters.

But, as the Ninth Circuit recognized, Din (and Mandel before it)

concerned an individual visa denial on the facts of that case. By contrast, the
Executive Order sets a nationwide immigration policy, presumptively suspending
entry and foreclosing visa adjudications for most aliens of certain nationalities.
While it may be sensible for courts to defer to the judgment of the political
branches when considering the application of immigration law to a particular alien,
“the President’s promulgation of a sweeping immigration policy,” 847 F.3d at

15

1162—especially one aimed at nationals of particular countries likely to share a
common religion—is properly the subject of closer judicial scrutiny. Recognizing
that critical distinction, the Ninth Circuit determined that the standard cited in Din
plainly does not apply to the Executive Order. Id.
All told, the proposition that courts may not review the Executive
Order is unsupported by modern judicial precedent. Even in cases concerning
individual visa denials, the Court has inquired as to whether the government
offered a “legitimate and bona fide” reason for the denial and has indicated that
courts may look behind the asserted rationale in circumstances suggesting bad
faith. Where, as here, the court is asked to review a broadly-applicable policy—
promulgated at the highest level of the Executive Branch and targeting aliens based
on nationality and religion—precedent and common sense demand a more
searching judicial review. But whatever the standard, there is no basis for finding
that the Executive Order is immune from judicial scrutiny.
II.

KOREMATSU STANDS AS A STARK REMINDER OF THE
NEED FOR VIGILANT JUDICIAL REVIEW OF
GOVERNMENTAL ACTION TARGETING DISFAVORED
GROUPS IN THE NAME OF NATIONAL SECURITY.
In telling the Ninth Circuit and other courts that the President’s

discretion to exclude “any class of aliens” is plenary and unreviewable—and, in
any event, is justified by national security—the federal government asked the
courts to take its word for it. But the notion that the political branches might use
16

national security as a smokescreen to discriminate against disfavored classes is not
an unfounded concern—it is validated by the tragic chapter in our Nation’s history
that gave rise to Korematsu v. United States, 323 U.S. 214 (1944).
Seventy-five years ago, President Roosevelt issued Executive Order
No. 9066, which authorized the Secretary of War to designate military areas from
which “any or all persons” could be excluded and “with respect to which, the right
of any person to enter, remain in, or leave” would be subject to “whatever
restrictions the Secretary of War or the appropriate Military Commander may
impose.”

Executive Order No. 9066, “Authorizing the Secretary of War to

Prescribe Military Areas,” 7 Fed. Reg. 1407 (Feb. 19, 1942). Although it did not
explicitly refer to Japanese Americans, that Order resulted in the forcible
relocation and incarceration of more than 110,000 men, women, and children of
Japanese descent.

Fred Korematsu, one of those Japanese Americans, was

convicted for defying the military’s invocation of the order. The Supreme Court
upheld his conviction, along with the convictions of Gordon Hirabayashi and
Minoru Yasui, thus effectively sanctioning Japanese-American incarceration
during World War II on the purported basis of military necessity. Korematsu v.
United States, 323 U.S. 214 (1944); see also Hirabayashi v. United States, 320
U.S. 81 (1943); Yasui v. United States, 320 U.S. 115 (1943).

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The Court’s decision in Korematsu produced vigorous dissents,
including one by Justice Murphy, who questioned the validity of the military
interest the government advanced. Although acknowledging that the discretion of
those entrusted with national security matters “must, as a matter of . . . common
sense, be wide,” Korematsu, 323 U.S. at 234, Justice Murphy opined that “[i]t is
essential that there be definite limits to military discretion” and that individuals not
be “left impoverished of their constitutional rights on a plea of military necessity
that has neither substance nor support.” Id. In his view, the Order “clearly d[id]
not meet th[is] test” as it relied “for its reasonableness upon the assumption that all
persons of Japanese ancestry may have a dangerous tendency to commit sabotage
and espionage.” Id. at 235. While conceding that “there were some disloyal
persons of Japanese descent on the Pacific Coast,” Justice Murphy dismissed the
“infer[ence] that examples of individual disloyalty prove group disloyalty and
justify discriminatory action against the entire group” as nothing more than “th[e]
legalization of racism.” Id. at 240-241, 242.
History has proven Justice Murphy right. More than a half-century
after the Court’s decision, the Acting Solicitor General acknowledged that,
contrary to its representations, the federal government knew at the time of the mass
incarcerations that only “a small percentage of Japanese Americans posed a
potential security threat, and that the most dangerous were already known or in

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custody.” U.S. Dep’t of Justice, Confession of Error: The Solicitor General’s
Mistakes During the Japanese-American Internment Cases (May 20, 2011),
https://www.justice.gov/opa/blog/confession-error-solicitor-generals-mistakesduring-japanese-american-internment-cases; see also Neal K. Katyal, The Solicitor
General and Confession of Error, 81 FORDHAM L. REV. 3027 (2012-2013). The
federal government’s revelation occurred decades after a district court reversed Mr.
Korematsu’s conviction and found “substantial support in the record that the
government deliberately omitted relevant information and provided misleading
information in papers before the court.” Korematsu, 584 F. Supp. at 1420. The
Ninth Circuit made similar findings on its way to vacating Gordon Hirabayashi’s
convictions. See Hirabayashi v. United States, 828 F.2d 591, 593 (9th Cir. 1987)
(observing that, although the Supreme Court accepted the government’s contention
that “the curfew was justified by military assessments of emergency conditions,”
available materials demonstrate that “there could have been no reasonable military
assessment of an emergency at the time, that the orders were based upon racial
stereotypes, and that the orders caused needless suffering and shame for thousands
of American citizens”) (footnotes omitted); see also Yasui v. United States, 772
F.2d 1496 (9th Cir. 1985) (vacating Minoru Yasui’s criminal conviction).
The Supreme Court’s decision in Korematsu gave virtually a blank
check to the Executive Branch to take action against disfavored minorities in the

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name of national security. Although the government asserted a facially valid
justification for its action, that justification was later discredited. The revelation
that the government’s unprecedented action was not in fact necessary is but one
reason that Korematsu is not only widely understood as wrongly decided as a
matter of law, but remains a black mark on our Nation’s history and serves as a
stark reminder of the dire consequences that result when abuses by the political
branches go unchecked by the Judiciary.

See, e.g., Michael Stokes Paulsen,

Symposium: The Changing Laws of War: Do We Need A New Legal Regime After
September 11?: The Constitution of Necessity, 79 NOTRE DAME L. REV. 1257,
1259 (2004) (Complete “judicial acquiescence or abdication” of performing checks
on Presidential power “has a name. That name is Korematsu”).
Korematsu, along with Plessy v. Ferguson, is regarded as
“embod[ying] a set of propositions that all legitimate constitutional decisions must
be prepared to refute.” Jamal Greene, The Anticanon, 125 HARV. L. REV. 379, 380
(2011). History may look similarly at this period if courts allow the Executive
Order to evade robust review based on a plenary power doctrine rooted in outdated
notions and xenophobia, or an unwillingness to apply healthy judicial skepticism to
governmental action taken in the name of national security. This court should not
abdicate its duty to stand as a bulwark against governmental action that
undermines our core constitutional principles.

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CONCLUSION
For the foregoing reasons, this court should grant the relief sought by
Plaintiffs.
DATED: Honolulu, Hawai`i, March 14, 2017.
Respectfully submitted,
/s/ LOUISE K.Y. ING
LOUISE K.Y. ING
CLAIRE WONG BLACK
PRATIK A. SHAH
ROBERT A. JOHNSON
JESSICA M. WEISEL
ERIC YAMAMOTO
Attorneys for amici curiae

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