State of Hawaii v. Trump

Filing 227

MOTION for Clarification re 219 Order on Motion for TRO, Brad P. Rosenberg appearing for Defendants John F. Kelly, Rex Tillerson, Donald J. Trump, U.S. Department of Homeland Security, U.S. Department of State, United States of America (Attachments: # 1 Memorandum of Law in Support of Motion for Clarification, # 2 Certificate of Service)(Rosenberg, Brad) Modified on 3/20/2017 (emt, ).

JEFFREY B. WALL
Acting Solicitor General
CHAD A. READLER
Acting Assistant Attorney General
ELLIOT ENOKI (No. 1528)
Acting United States Attorney
EDRIC M. CHING (No. 6697)
Assistant United States Attorney
JOHN R. TYLER
Assistant Branch Director
BRAD P. ROSENBERG (DC Bar No. 467513)
MICHELLE R. BENNETT (CO Bar No. 37050)
DANIEL SCHWEI (NY Bar)
Trial Attorneys
United States Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Avenue, N.W.
Washington, D.C. 20530
Tel: [phone]; Fax: [phone]
E-mail: [e-mail]
Attorneys for Defendants
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
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.

No. 1:17-cv-00050-DKWKSC
DEFENDANTS’
MEMORANDUM OF
LAW IN SUPPORT OF
MOTION FOR
CLARIFICATION OF
TRO
Judge: Hon. Derrick K.
Watson
Hearing: None Requested
Related Documents:
Dkt. No. 219

DEFENDANTS’ MEMORANDUM OF LAW
IN SUPPORT OF THEIR MOTION FOR CLARIFICATION OF
THIS COURT’S TEMPORARY RESTRAINING ORDER
On March 15, 2017, this Court entered a nationwide Temporary Restraining
Order that enjoined Defendants from enforcing Sections 2 and 6 of Executive Order
No. 13,780.1 See Order Granting Motion for Temporary Restraining Order, ECF
No. 219 (“TRO”). Although the Court’s TRO says that it enjoins Sections 2 and
6, many of the provisions in those sections were not addressed in the briefs that
Plaintiffs filed in support of their TRO motion. It is therefore unclear whether the
Court intended its injunction to extend to all of those provisions. Accordingly,
Defendants seek clarification from the Court that the TRO does not apply to the
provisions of the Executive Order that Plaintiffs have failed to meaningfully
challenge.
Specifically, Defendants request that the Court clarify the scope of its TRO
in two key respects.2 First, Plaintiffs’ arguments in their TRO papers focused
nearly exclusively on Section 2(c) of the Executive Order, which suspends the
issuance of visas for certain nationals of six identified countries for a period of 90
days.

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2

This Court’s decision similarly focuses on that suspension-of-entry

82 Fed. Reg. 13,209 (2017).

Notwithstanding this motion for clarification, Defendants note that they
immediately took steps to ensure full compliance with this Court’s TRO.

provision. Plaintiffs addressed only in passing the lawfulness of the provisions
contained in Section 6 of the Executive Order, which suspends adjudication of
refugee applications on a global basis, and the Court’s opinion did not squarely
address other provisions of Section 6 regarding refugees—including, in particular,
the provision that caps the number of refugees who can be admitted to the United
States in fiscal year 2017. Defendants accordingly seek clarification from the Court
that its TRO does not apply to Section 6.
Second, the TRO as currently written enjoins purely internal activities of the
government as described in both Sections 2 and 6, such as Section 2’s provisions
addressing agency review of global vetting procedures that was to take place during
the suspension-of-entry period. None of these internal activities—which could take
place in the absence of an Executive Order—has any immediate impact on
Plaintiffs, and enjoining them has the potential to disrupt government operations
and create confusion regarding internal and deliberative governmental activities
during the pendency of this litigation. Accordingly, Defendants seek clarity
regarding that aspect of the Court’s TRO as well.
BACKGROUND
As described below, both Sections 2 and 6 have numerous subparts, some of
which have no impact on Plaintiffs at all and were not the focus of Plaintiffs’
challenge.
2

Section 2 of the Executive Order concerns vetting procedures for
immigration benefits.

Section 2(c) contains the 90-day suspension-of-entry

provision that was the near-exclusive focus of Plaintiffs’ briefing. See Executive
Order No. 13,780 § 2(c). The remainder of Section 2 sets forth a process by which
the President will make an additional determination about whether any restrictions
on entry are necessary for certain foreign nationals or categories of foreign
nationals. To begin that process, Section 2(a) requires the Secretary of Homeland
Security, in consultation with the Secretary of State and the Director of National
Intelligence, to conduct a worldwide review of vetting procedures to ensure that
foreign governments are providing information necessary to ensure that individuals
seeking visas or other immigration benefits are not a security or public safety threat,
while Section 2(b) requires the preparation and submission to the President of a
report based upon that review. See id. § 2(a), (b). Section 2(d) provides that,
following the submission of the report referenced in subsection (b), the Secretary
of State shall request that foreign governments begin to supply additional, needed
information. Id. § 2(d). Sections 2(e) and 2(f) contain various procedures that
assist the President in making subsequent determinations about whether restrictions
on entry are warranted for “appropriate categories of foreign nationals of countries
that have not provided the information requested[.]” Id. § 2(e), (f). Finally, Section
2(g) provides that the Secretaries of State and Homeland Security shall submit
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various joint reports on their progress in implementing the provisions of the Order.
Id. § 2(g).
Section 6 of the Executive Order concerns certain aspects of the U.S.
Refugee Admissions Program (“USRAP”). Section 6(a) suspends travel under
USRAP and decisions on refugee applications for a period of 120 days after the
effective date of the Executive Order, subject to waivers. See Executive Order
13,780 § 6(a). That subsection also provides that, during the suspension period,
the government shall conduct an internal review of USRAP application and
adjudication procedures; following that review and the resumption of USRAP, the
government is to implement additional procedures identified by the review in order
to ensure that decisions on applications for refugee status are made only for
stateless persons and nationals of countries where adequate additional procedures
to protect the security and welfare of the Nation are in place. Id. In Section 6(b),
the President proclaimed “that the entry of more than 50,000 refugees in fiscal year
2017 would be detrimental to the interests of the United States” and, on that basis,
“suspend[ed] any entries in excess of that number[.]” Id. § 6(b). Section 6(c) sets
forth various waiver provisions to the 120-day suspension. See id. § 6(c). Finally,
Section 6(d) sets forth a policy of coordinating refugee placement and settlement
with state and local jurisdictions. See id. § 6(d).

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ARGUMENT
Plaintiffs’ TRO briefing focused on the 90-day suspension-of-entry
provision contained in Section 2(c) of the Executive Order and the alleged impact
that the application of that provision would have on them. In significant contrast,
Plaintiffs’ briefs spoke comparatively little to the refugee provisions in Section 6
of the Executive Order, and did not speak at all either to the internal review
provisions in Sections 2 and 6 or to the 50,000-person cap on the number of
refugees in Section 6(b). The Court’s opinion likewise focused almost exclusively
on Section 2(c)’s entry suspension, and specifically on Plaintiffs’ challenge to that
provision under the Establishment Clause. Defendants respectfully submit that the
TRO should apply only to that provision.
Plaintiffs’ claims of harm principally relate to Section 2(c). For example,
Hawaii claimed that its university system would be harmed by the Executive Order
because it would not be able to recruit and retain foreign students and faculty from
the six countries subject to the suspension of entry. See Mem. in Supp. of Plaintiffs’
Mot. for a Temporary Restraining Order (ECF No. 65-1) (“Pl. Mem.”) at 14-15.
Hawaii also claimed that the Executive Order would harm the State’s economy
including, in particular, tourism. See id. at 17-18. This Court concluded that
Hawaii has Article III standing “[f]or purposes of” this early stage of the
proceedings because “(1) its universities will suffer monetary damages and
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intangible harms; (2) the State’s economy is likely to suffer a loss of revenue due
to a decline in tourism; (3) such harms can be sufficiently linked to the Executive
Order; and (4) the State would not suffer the harms to its proprietary interests in
the absence of implementation of the Executive Order.” TRO at 21. None of these
alleged harms, however, has anything to do with the Executive Order’s refugee
provisions, let alone provisions regarding internal review of the Nation’s screening
and vetting procedures to identify ways to improve those procedures.3
Plaintiffs’ merits arguments likewise focused on the application of Section
2(c). Neither Plaintiffs’ Due Process nor Establishment Clause arguments address
Section 6 of the Executive Order, save for a characterization by Plaintiffs of prior
statements by the President “that the original Order was intended to favor Christian
over Muslim refugees,” Pl. Mem. at 43, as well as a passing reference to refugee
claims in Plaintiffs’ reply, see Reply in Support of TRO (ECF No. 191) at 14.4 The

3

Plaintiff Elshikh similarly asserts that he will be harmed by the application
of Section 2(c), which he claims will preclude his mother-in-law from entering the
United States. See Pl. Mem. at 20.
4

Plaintiffs’ statutory arguments similarly focused on the entry suspension
provision. Indeed, one of the two statutory provisions primarily relied upon by
Plaintiffs, 8 U.S.C. § 1152(a)(1)(A), does not even apply to the refugee program
and thus has no bearing on Section 6 of the Executive Order. Plaintiffs’ statutory
argument regarding the refugee provision is otherwise relegated to an aside
regarding “applicant[s] for refugee status,” Pl. Mem. at 29-30, as well as a
conclusory assertion that Section 6 exceeds the President’s statutory authority
under 8 U.S.C. §§ 1182(f) and 1185(a), see id. at 50.
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Court—like Plaintiffs—similarly focused its Establishment Clause analysis on the
suspension of entry provisions contained in Section 2(c) of the Executive Order.
In concluding that Plaintiffs are likely to succeed on their Establishment Clause
claim, the Court focused on the six countries affected by Section 2(c). See TRO at
31 (discussing the makeup of those countries and noting that it would not be a
“paradigmatic leap to conclude that targeting these countries likewise targets
Islam”). That analysis can apply only to Section 2(c), as only Section 2(c) contains
operative provisions regarding the six countries.

By contrast, the refugee

provisions contained in Section 6 of the Executive Order do not target any countries
at all: The 120-day suspension of USRAP and the 50,000 refugee cap both apply
on a global basis to all refugees, regardless of country of nationality.
To the extent that Plaintiffs’ briefs refer to the effects of the Executive Order
on refugees, they only do so in a generalized manner with occasional references to
the 120-day suspension of the refugee program, see, e.g., Pl. Mem. at 12 (noting
that Section 6(a) “suspends [USRAP] for a period of 120 days”), or vague
predictions that the State’s “small” program “to resettle and assist refugees” will
be hindered, Pl. Mem. at 16; see id. at 48 (alleging that Hawaii will be forced to
“abandon” its refugee program).5 Plaintiffs’ briefs do not mention the 50,000

5

Plaintiffs did not submit any declarations in support of their TRO on this
point or regarding refugees generally. See ECF No. 66.
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person refugee cap at all. The Court’s opinion did not address these aspects of
Plaintiffs’ allegations: it did not find standing based on Hawaii’s purported injury
to its refugee program, TRO at 16-21; it did not discuss application of the
Establishment Clause to provisions involving refugees, id. at 28-40; and it
expressly reserved judgment on Plaintiffs’ other claims, id. at 29 n.11.
It is well settled that “[i]njunctive relief is an ‘extraordinary remedy’ [which]
‘must be tailored to remedy the specific harm alleged.’” McCormack v. Hiedeman,
694 F.3d 1004, 1019 (9th Cir. 2012) (quoting Winter v. Nat. Res. Def. Council, Inc.,
555 U.S. 7, 24 (2008); Park Vill. Apartment Tenants Ass’n v. Mortimer Howard
Tr., 636 F.3d 1150, 1160 (9th Cir. 2011)). In that regard, “injunctive relief should
be no more burdensome to the defendant[s] than necessary to provide complete
relief to the plaintiffs.” Califano v. Yamasaki, 442 U.S. 682, 702 (1979); see Price
v. City of Stockton, 390 F.3d 1105, 1117 (9th Cir. 2004) (noting that an injunction
should “remedy only the specific harms shown by the plaintiffs, rather than ‘to
enjoin all possible breaches of the law’”) (quoting Zepeda v. INS, 753 F.2d 719,
728 n.1 (9th Cir. 1983)).
In light of the focus of Plaintiffs’ briefing and the Court’s analysis,
Defendants respectfully request that this Court clarify that its TRO only applies to
Section 2(c) of the Executive Order. Tailoring a TRO to Section 2(c) of the
Executive Order was the course taken in International Refugee Assistance Project
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v. Trump, in which plaintiffs specifically challenged both Sections 2 and 6,
including Section 6(b)’s cap on refugees for fiscal year 2017. See Civil Action No.
TDC-17-0361, 2017 WL 1018235 (D. Md. Mar. 16, 2017). That court, however,
declined the invitation to enter the injunction plaintiffs’ sought, finding that
“Plaintiffs’ Establishment Clause and INA arguments focused primarily on the
travel ban for citizens of the six Designated Countries in Section 2(c)” of that Order
and, accordingly, “enjoin[ed] that provision only.” Id. at *17. Because Plaintiffs
here have neither challenged nor demonstrated any harms associated with Section
6, the Court should clarify that its injunctive order does not apply to those
provisions.
In the alternative, if the Court clarifies that the TRO applies to Section 6, it
should nonetheless decline to apply the TRO to the 50,000 person refugee cap
contained in Section 6(b). Plaintiffs’ briefing makes no mention of the cap, and
this Court did not address it in its Order. Moreover, that cap—which has global
applicability—draws no distinction whatsoever on the basis of religion, and none
of the courts to analyze either the old or the new Executive Orders has called that
cap into question.
At a minimum, the Court should clarify that its TRO does not apply to the
provisions of Sections 2 and 6 that call for internal governmental activities.
Substantial portions of Sections 2 and 6 involve only such activities, including
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conducting reviews and updating policies. Others relate to inter-governmental
diplomatic and official communications. Specifically, if this Court declines to limit
its TRO to Section 2(c), Defendants request that the Court clarify that its TRO does
not apply to the following provisions:
• Section 2(a) (requiring Secretary of Homeland Security to conduct
worldwide review of vetting procedures to ensure that foreign governments
are providing information necessary to ensure that individuals seeking visas
or other immigration benefits are not a security or public safety threat);
• Section 2(b) (requiring the preparation and submission to the President of a
report based upon review described in Section 2(a));
•

Section 2(d) (providing that Secretary of State shall request that foreign
governments begin to supply additional, needed information about its
nationals);

• Section 2(e) (instructing the Secretary of Homeland Security to submit to the
President, after the period in Section 2(d) expires, recommendations
regarding future restrictions on entry of appropriate categories of foreign
nationals of countries that have not provided the requested information);

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• Section 2(f) (authorizing the Secretary of Homeland Security to make
additional recommendations to the President following the initial
recommendations); and
• Section 2(g) (providing that Secretaries of State and Homeland Security shall
submit various joint reports on their progress in implementing the provisions
of the Order).
Similarly, Defendants request that the Court clarify that its TRO does not apply to
those portions of Section 6(a) of the Executive Order regarding the review of the
USRAP application and adjudication procedures, including the implementation of
those procedures, as well as Section 6(d), which encourages the coordination of
refugee placement with state and local jurisdictions.
CONCLUSION
This Court should clarify that its TRO applies only to Section 2(c) of the
Executive Order.

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Dated: March 17, 2017

Respectfully submitted,
JEFFREY B. WALL
Acting Solicitor General
CHAD A. READLER
Acting Assistant Attorney General
ELLIOT ENOKI (No. 1528)
Acting United States Attorney
EDRIC M. CHING (No. 6697)
Assistant United States Attorney
JOHN R. TYLER
Assistant Director, Federal Programs Branch
/s/ Brad P. Rosenberg
BRAD P. ROSENBERG (DC Bar. No. 467513)
MICHELLE R. BENNETT (CO Bar. No. 37050)
DANIEL SCHWEI (NY Bar)
Trial Attorneys
U.S. Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Avenue, N.W.
Washington, D.C. 20530
Tel: [phone]
Fax: [phone]
E-mail: [e-mail]
Attorneys for Defendants

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