State of Hawaii v. Trump

Filing 247

MOTION for Leave to File Brief of Chicago, Los Angeles, New York, Philadephia, and Other Major Cities and Counties as Amici Curiae in Support of Plaintiffs' Motion to Convert the Temporary Restraining Order to a Preliminary Injunction (Dkt 238) Robert M. Kohn appearing for Amicus City and County of Honolulu (Attachments: # 1 Supplement Proposed Amici Curiae Brief, # 2 Appendix, # 3 Certificate of Service)(Kohn, Robert)

EDWARD N. SISKEL
Corporation Counsel
of the City of Chicago
BENNA RUTH SOLOMON*
Deputy Corporation Counsel
30 N. LaSalle Street, Suite 800
Chicago, IL 60602
[phone]
[e-mail]
*Pending Pro Hac Vice Motion
Attorneys for Amicus Curiae,
City of Chicago

DONNA Y. L. LEONG, 3226
Corporation Counsel
ROBERT M. KOHN, 6291
NICOLETTE WINTER, 9588
Deputies Corporation Counsel
530 S. King St., Room 110
Honolulu, HI 96813
[phone]
[e-mail]
[e-mail]
Attorneys for City and County
of Honolulu

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

STATE OF HAWAI‘I, et al.,
Plaintiffs,
v.
DONALD J. TRUMP, et al.,
Defendants.

Civil Action No. 1:17-cv-00050DKW-KSC

MOTION FOR LEAVE TO FILE BRIEF
OF CHICAGO, LOS ANGELES, NEW
YORK, PHILADELPHIA, AND OTHER
MAJOR CITIES AND COUNTIES AS
AMICI CURIAE IN SUPPORT OF
PLAINTIFFS’ MOTION TO CONVERT
THE TEMPORARY RESTRAINING
ORDER TO A PRELIMINARY
INJUNCTION (Dkt. 238)

Hearing March 29, 2017, 9:30 a.m.

Honorable Derrick K. Watson

RYAN P. POSCABLO
BRIAN NEFF
ELIBERTY LOPEZ
Riley Safer Holmes & Cancila LLP
1330 Avenue of the Americas
6th Floor
[phone]
[e-mail]
New York, NY 10019

NICK KAHLON
Riley Safer Holmes & Cancila LLP
Three First National Plaza
70 W. Madison Street, Suite 2900
Chicago, IL 60602
[phone]
[e-mail]
Attorneys for Amicus Curiae
City of Chicago

Additional Counsel for Amici Curiae
ZACHARY W. CARTER
Corporation Counsel
of the City of New York
100 Church Street
New York, New York 10007
Attorney for Mayor and the City
Council of New York
SOZI PEDRO TULANTE
City Solicitor
City of Philadelphia Law Department
1515 Arch Street, 17th Floor
Philadelphia, PA 19102
Attorney for City of Philadelphia
ANNE L. MORGAN
City Attorney
City of Austin Law Department
P.O. Box 1088
Austin, TX 78767
512-974-2507
[e-mail]
Attorney for City of Austin
EUGENE L. O’FLAHERTY
Corporation Counsel
One City Hall Square, Room 615
Boston, MA 02201
[phone]
[e-mail]
Attorney for Boston and
Mayor Martin J. Walsh
G. NICHOLAS HERMAN
General Counsel
The Brough Law Firm, PLLC
1526 E. Franklin St., Suite 200
Chapel Hill, NC 27514 (919)
929-3905
[e-mail]
Attorney for Town of Carrboro

MICHAEL N. FEUER
City Attorney
of the City of Los Angeles
200 N. Main Street, 800 CHE
Los Angeles, CA 90012
[phone]
[e-mail]
Attorney for
City of Los Angeles

MATTHEW T. JERZYK
City Solicitor
580 Broad Street
Central Falls, RI 02863
[phone]
[e-mail]
Attorney for James A. Diossa,
Mayor of Central Falls, Rhode Island

KIMBERLY M. FOXX
States Attorney for Cook County
69 W. Washington, 32nd Floor
Chicago, IL 60602
[phone]
[e-mail]
Attorney for Cook County, Illinois

GREGORY L. THOMAS
City Attorney for the
401 Broadway, Suite 101
Gary, IN 46402
[phone]
[e-mail]
Attorney for Gary

ELEANOR M. DILKES
City Attorney
410 E. Washington St.
Iowa City, IA 52240
[phone]
[e-mail]
Attorney for City of Iowa City
AARON O. LAVINE
City Attorney
108 E. Green St.
Ithaca, NY 14850
[phone]
Attorney for Svante L. Myrick,
Mayor of Ithaca
JEREMY FARRELL
Corporation Counsel
Jersey City Law Department
280 Grove Street
Jersey City, New Jersey 07302
Attorney for City of Jersey City
MICHAEL P. MAY
City Attorney
210 Martin Luther King Jr. Blvd.,
Room 401
Madison, Wisconsin 53703
[phone]
Attorney for City of Madison
SUSAN L. SEGAL
City Attorney
350 South 5th Street, Room 210
Minneapolis, MN 55415
[phone]
[e-mail]
Attorney for City of Minneapolis

MARC P. HANSEN
County Attorney
Montgomery County, Maryland
101 Monroe St., 3rd Floor
Rockville, Maryland, 20850
[phone]
Marc.Hansen@montgomerycountymd.
gov
Attorney for Montgomery County

BARBARA J. PARKER
City Attorney
1 Frank H. Ogawa Plaza, Sixth Floor
Oakland, California 94612
[phone]
[e-mail]
Attorney for Oakland

TRACY REEVE
City Attorney
430 City Hall
1221 SW Fourth Ave.
Portland, OR 97204
[phone]
[e-mail]
Attorney for Portland

JEFFREY DANA
City Solicitor
444 Westminster Street, Suite 220
Providence, RI 02903
[phone]
[e-mail]
Attorney for City of Providence and
Mayor Jorge O. Elorza

MICHAEL A. GARVIN
City Counselor
City of St. Louis Law Department
1200 Market Street, Room 314
St. Louis, Missouri 63103
[phone]
[e-mail]
Attorney for City of St. Louis

SAMUEL J. CLARK
City Attorney
400 City Hall
15 Kellogg Blvd W
Saint Paul, MN 55102
[phone]
[e-mail]
Attorney for City of Saint Paul
DENNIS J. HERRERA
San Francisco City Attorney
City Attorney’s Office
City Hall Room 234
One Dr. Carlton B. Goodlett Pl.
San Francisco, California 94102
[phone]
Attorney for City and County of San
Francisco
JAMES R. WILLIAMS
County Counsel
OFFICE OF THE COUNTY
COUNSEL
70 West Hedding Street, 9th Floor
San Jose, California 95110-1770
[phone]
Attorney for Santa Clara County
JOSEPH LAWRENCE
Interim City Attorney
City of Santa Monica
1685 Main Street, Room 310
Santa Monica, CA 90401
[phone]
Attorney for City of Santa Monica
PETER S. HOLMES
Seattle City Attorney
701 Fifth Avenue, Suite 2050
Seattle, WA 98104-7097
[phone]
[e-mail]
Attorney for City of Seattle

MICHAEL M. LORGE
Corporation Counsel
5127 Oakton Avenue
Skokie, IL 60077
[phone]
Attorney for Village of Skokie

CRISTAL BRISCO
Corporation Counsel
City of South Bend Department of
Law
227 W. Jefferson Blvd., Suite 1200S
South Bend, IN 46601
[phone]
[e-mail]
Attorney for South Bend

MICHAEL JENKINS
JENKINS & HOGIN, LLP
1230 Rosecrans Avenue, Suite 110
Manhattan Beach, CA 90266
[phone]
[e-mail]
Attorney for West Hollywood

TABLE OF CONTENTS

Page
STATEMENT OF INTEREST OF AMICI CURIAE .................................................... 1
INTRODUCTION AND SUMMARY OF ARGUMENT ............................................... 8
I.

A.

II.

The Order’s Profound Effect Reveals Its Discriminatory Purpose....... 12

C.

The Order’s Avowed Purpose Is Discriminatory..................................... 9

B.

THE EXECUTIVE ORDER VIOLATES THE ESTABLISHMENT
CLAUSE. ............................................................................................................. 8

The Order Does Not Survive Strict Scrutiny. ....................................... 13

THE EXECUTIVE ORDER UNLAWFULLY DISCRIMINATES
BASED ON NATIONAL ORIGIN. ................................................................... 16

CONCLUSION............................................................................................................. 22

i

TABLE OF AUTHORITIES

Page(s)

Cases

Adarand Constructors, Inc. v. Pena,
515 U.S. 200 (1995) ........................................................................................... 16
Astoria Fed. Sav. & Loan Ass’n v. Solimino,
501 U.S. 104 (1991) ........................................................................................... 20
Aziz v. Trump,
2017 WL 580855 (E.D. Va. Feb. 13, 2017) ....................................................... 11
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah,
508 U.S. 520 (1993) ....................................................................................... 9, 11
City of Cleburne v. Cleburne Living Ctr.,
473 U.S. 432 (1985) ..................................................................................... 16, 17
City of Cuyahoga Falls v. Buckeye Community Hope Foundation,
538 U.S. 188 (2003) ........................................................................................ 9-10
City of New Orleans v. Dukes,
427 U.S. 297 (1976) ........................................................................................... 16
FDA v. Brown & Williamson Tobacco Corp.,
529 U.S. 120 (2000) ........................................................................................... 19
Friedman v. Rogers,
440 U.S. 1 (1979) ............................................................................................... 16
FTC v. Mandel Brothers, Inc.,
359 U.S. 385 (1959) ........................................................................................... 20
Gustafson v. Alloyd Co.,
513 U.S. 561 (1995) ........................................................................................... 20
Holt v. Hobbs,
135 S. Ct. 853 (2015) ......................................................................................... 16
International Refugee Assistance Project v. Trump,
2017 WL 1018235 (D. Md. March 16, 2017).......................................... 10-11, 20
Judulang v. Holder,
565 U.S. 42 (2011) ............................................................................................. 21

ii

Larson v. Valente,
456 U.S. 228 (1982) ....................................................................................... 9, 13
McCreary County v. American Civil Liberties Union of Ky.,
545 U.S. 844 (2005) ....................................................................................... 9, 11
Olsen v. Albright,
990 F. Supp. 31 (D.D.C. 1997) ..................................................................... 17-18
Romer v. Evans,
517 U.S. 620 (1996) ........................................................................................... 17
Santa Fe Indep. Sch. Dist. v. Doe,
530 U.S. 290 (2000) ............................................................................................. 9
Village of Arlington Heights v. Metropolitan Hous. Dev. Corp.,
429 U.S. 252 (1977) ............................................................................................. 9
Washington v. Trump,
847 F.3d 1151 (9th Cir. 2017) ..................................................................... 10, 13
Washington v. Trump,
2017 WL 992527 (9th Cir. March 15, 2017, Bybee, J., dissenting) ................. 10
Yick Wo v. Hopkins,
118 U.S. 356 (1886) ........................................................................................... 11
Statutes and Ordinances
8 U.S.C. § 1152(a)(1)(A) .......................................................................................... 18-20
8 U.S.C. § 1182(f) .................................................................................................... 19-21
Municipal Code of Chicago, Ill. § 13-72-040 ............................................................... 18
Municipal Code of Chicago, Ill. § 9-115-180 ............................................................... 18
Municipal Code of Chicago, Ill. § 2-160-010 ............................................................... 18
Municipal Code of Los Angeles Admin. Code § 4.400 ................................................ 18
Municipal Code of Los Angeles Charter § 104(i) ........................................................ 18
Municipal Code of Los Angeles Charter § 1024.......................................................... 18
New York City Charter, § 900 N.Y.C. Admin. Code § 6-108...................................... 18
New York City Charter, § 900 N.Y.C. Admin. Code § 4-116...................................... 18

3

Philadelphia Code, § 9-1101 ........................................................................................ 19
Philadelphia Code, § 9-1103 ........................................................................................ 19
Philadelphia Code, § 9-1106 ........................................................................................ 19
Philadelphia Code, § 9-1108 ........................................................................................ 19

4

STATEMENT OF INTEREST OF AMICI CURIAE

Amici curiae include some of the largest cities and counties in the United
States. The population of Chicago, Los Angeles, New York City, and Philadelphia
alone is well over 16.6 million.1 These cities account for almost one-fifth of the
country’s gross domestic product.2

Our cities are heavily dependent on the contributions of immigrants.3 Well
over five million residents of Chicago, Los Angeles, New York City, and
Philadelphia are immigrants, from more than 150 countries. As of 2015, this
included approximately 213,100 residents in the Chicago, Los Angeles, and New
York City metropolitan areas who were born in five of the six countries targeted by
the Executive Order.4
Chicago, Los Angeles, and New York City are also some of the largest
employers in their jurisdictions, collectively employing approximately 365,000
people. In New York City, 34% of city workers are foreign-born, as are 22% of Los

Support for the data in this statement of interest is included in the appendix to
this brief.
1

Ted Hesson, Why American Cities Are Fighting to Attract Immigrants,
https://www.theatlantic.com/business/archive/2015/07/us-cities-immigrantseconomy/398987/ (New York, Los Angeles, Houston, and Chicago account for onefifth of GDP).
2

Immigrants & Competitive Cities, Americas Society/Council of the Americas,
http://www.as-coa.org/sites/default/files/ ImmigrantsandCompetitiveCities.pdf.
3

Alan Berube, These communities have a lot at stake in Trump’s executive order on
immigration, https://www.brookings.edu/blog/the-avenue/2017/01/30/ thesecommunities-have-a-lot-at-stake-in-trumps-executive-order-on-immigration/.
4

Angeles municipal employees. Immigrants also make up a substantial portion of
our cities’ private workforces: 46% of the 4.3 million workers in New York; 26.5% of
the 1.27 million workers in Chicago; and approximately 17% of Philadelphia’s
workforce of more than 640,000. At least 12,500 private employees work on
international visas in Chicago alone. Immigrants make up more than half of New
York City’s business owners, 27% of in Chicago, 44% in Los Angeles, and 14% in
Philadelphia.

Chicago and Los Angeles welcome and resettle some of the largest numbers
of refugees in the United States. From October 2015 to September 2016,
approximately 2100 refugees were resettled in the Chicago area, including nearly

800 from the targeted countries. 2800 were resettled in the Los Angeles area, and
1900 were from Iran alone. 682 refugees arrived in Philadelphia, including 176
from the targeted countries. Approximately 1300 refugees have been resettled in
New York City in the past five years.

Chicago, Los Angeles, New York City, and Philadelphia also operate and are
served by international airports. On any given day, more than 400 flights arrive at
Chicago and Los Angeles airports from international destinations, bringing more
than 60,000 passengers. The tourism sectors of the local economies in Chicago, Los
Angeles, New York City, and Philadelphia account for roughly $70 billion a year in
local revenue. In 2016, our cities hosted more than 20 million foreign visitors, with
direct spending in Los Angeles County estimated at $6.3 billion dollars last year
alone, and $1.88 billion annually in Chicago, including $1.25 million by tourists
from the six targeted countries. As a result of the Executive Order, New York City

2

now predicts a 300,000-person drop in foreign visitors this year.5 More generally,
“[f]ollowing President Trump’s Jan. 27 executive order banning people from seven
predominantly Muslim countries from entering the United States, the demand for
travel to the United States took a nosedive, according to data from several travel
companies and research firms.”6 The second Executive Order is not meaningfully
different, and will have the same effect.
Chicago, Los Angeles, New York City, and Philadelphia together have 162
four-year colleges and universities, which have approximately 100,000 international
students. Chicago is also home to 44 major hospitals, which serve thousands of
international patients a year. And the Middle East region is the top source of
patients traveling to the U.S. for medical care.7
Amici are profoundly opposed to the Executive Order, which is as misguided
as it is unconstitutional. Amici are further opposed to actions by the federal
government pursuant to the Executive Order. Our cities serve as the gateways for
immigrants and refugees starting new lives in the United States. And when they

have come, “[e]verywhere immigrants have enriched and strengthened the fabric of

Patrick McGeehan, New York Expects Fewer Foreign Tourists, Saying Trump Is to
Blame, https://www.nytimes.com/2017/02/28/nyregion/new-york-foreign-touriststrump-policies.html?_r=0.
5

Shivani Vora, After Travel Ban, Interest in Trips to U.S. Declines,
https://www.nytimes.com/2017/02/20/travel/after-travel-ban-declining-interest-tripsto-united-states.html.
6

Kristen Schorsch, How Trump’s Travel Ban Could Hit Medical Tourism Hard,
http://www.chicagobusiness.com/article/20170201/news03/170209996/how-trumpstravel-ban-could-hit-medical-tourism-hard.
7

3

American life.”8 The Executive Order, and the anti-immigrant principles behind it,
offends our cities’ values; violates the principles girding our local governments; and
undermines our laws, including those prohibiting discrimination on precisely the
invidious grounds reflected in the Executive Order.
But beyond our ideals, the Executive Order subverts the very national
security purpose it claims to serve. The unlawful discrimination based on religion
and national origin undermines trust between our law enforcement agencies and
our immigrant communities, which in turn hinders our ability to protect our
residents. Chicago, Los Angeles, New York City, Philadelphia, and the other amici,
as financial, political, and cultural hubs in the United States, draw unique

attention from individuals looking to cause harm in this country. Additionally, local
law enforcement officers play an increasingly important role in efforts to detect and
protect against national security threats. For these and other reasons, cities are a
crucial part of the first-line defense against terrorism.9 To serve the purpose of
national security, our cities must be able to work in coordination with everyone in
our communities, including our diverse ethnic populations. Even at the strictly

local level, the safety and security of our residents and visitors, which is the

8

John F. Kennedy, A Nation of Immigrants 3 (Harper rev. ed 2008).

E.g., Mitch Silber and Adam Frey, Detect, Disrupt, and Detain: Local Law
Enforcement’s Critical Roles in Combating Homegrown Terrorism and the Evolving
Terrorist Threat,
http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2508&context=ulj; David
Thacher, The Local Role in Homeland Security, 39 Law & Soc’y Rev. 635 (Sept.
2005), https://deepblue.lib.umich.edu/bitstream/handle/2027.42/73848/j.15405893.2005.00236.x.pdf?sequence=1; DHS Announces Expansion of the Securing the
Cities Program, https://www.dhs.gov/news/2015/09/14/dhs-announces-expansionsecuring-cities-program.

9

4

foremost priority of any city in America, depends upon cooperation between the
residents and local police. The United States Department of Justice’s own Office of
Community Oriented Policing Services has emphasized this fact time and again.10

With decades of experience policing neighborhoods that are home to immigrant
populations, amici are keenly and uniquely aware that ostracized residents are
reluctant to report crimes, against themselves or others, or behavior that should, in
the interest of safety and national security, be reported as suspicious. In short, by
targeting immigrants based on religion and national origin, the Executive Order
makes all of our residents and visitors, and indeed everyone in the country, less
safe.

Amici have other very real concerns about the impact of the Executive Order
on their communities. The Executive Order’s message that citizens of majorityMuslim countries threaten national security conveys that members of those
communities, and other immigrant communities, are to be distrusted and feared.
Thus, targeting Muslims makes these immigrant residents more vulnerable to
victimization, and adds to the burden of local governments to provide protection. At
the extreme, this climate gives rise to hate crimes. The Southern Poverty Law
Center reports that in the first 34 days following the 2016 election, there were 1,094

hate crimes and lesser hate incidents; 315 were categorized as anti-immigrant, and

E.g., Community Policing Defined, Dep’t of Justice, Office of Community Oriented
Policing Services (rev. 2014), https://ric-zai-inc.com/Publications/cops-p157-pub.pdf.
10

5

112 as anti-Muslim.11 Cities across the country saw dramatic rises in hate crimes
in the three months after the election. Among these, New York City reported twice
the number of hate crime incidents compared to the same period a year prior;
Chicago had twice as many arrests for hate crimes; in Philadelphia, there was a

157% increase in the number of hate crimes reported to police, and a staggering
1433% increase in hate or bias incidents reported to the Philadelphia Commission
on Human Relations. In Los Angeles, hate crime incidents doubled, to 30, in the
month following the presidential election. And in the first five weeks of 2017, the
number of hate crimes recorded in Chicago was more than triple the number for the
same period in 2016.

Overt discrimination presents other dangers. Foreign residents of our cities
who feel unwelcome are more likely to cut themselves off from public life and
participation in public programs. They may refuse to participate in public health
programs such as vaccinations or seek medical care for contagious diseases. They
may keep their children out of school to avoid harassment and stay away from
mosques because of the fear that they will be unsafe. These effects will not be
limited to individuals from the six targeted countries. Thousands of other Muslims
in the amici cities have reason to worry that the public will embrace the Executive
Order’s anti-Muslim stance. The Order therefore places millions of people at risk of
harm or being driven underground, which makes both those residents and our cities

less safe.

Update: 1,094 Bias-Related Incidents in the Month Following the Election,
https://www.splcenter.org/hatewatch/2016/12/16/update-1094-bias-relatedincidents-month-following-election.
11

6

Finally, the Executive Order deprives our communities and our residents of
immigrants and students from the targeted six countries, and others who will
simply decide not to travel to the United States, much less to live here. These
individuals enrich us with their customs and celebrations, their hard work and
perseverance, and their unique skills and training. Our cities would be bereft
without them. Foreign residents and students also make an immeasurable
contribution to America’s ability to participate in the global economy, among other
reasons, because fewer than half of Americans have passports.12 Thus, many

Americans’ exposure to other cultures comes only if visitors and students from other
countries come here.
Our cities will always welcome immigrant residents, students, tourists, and
refugees. Indeed, perhaps uniquely in the world, the very identity of American
cities has been forged since the inception of our Nation from the toil of immigrant
communities and their love for the American ideal. The discriminatory and
unlawful Executive Order seriously harms amici by endangering the safety of our

residents and our communities, and undermining our ability to continue to welcome
immigrants and refugees. It also harms our businesses, hospitals, and educational
institutions; limits our labor pool; decreases our tax revenues; and dampens our
tourism industry. For these reasons, amici have a vital interest in this case and file
this brief to urge the Court to convert the TRO to a preliminary injunction against

the Executive Order.

Sally Herships, Trump’s travel ban worries international students,
http://www.marketplace.org/ 2017/02/08/world/overseas-students.
12

7

INTRODUCTION AND SUMMARY OF ARGUMENT

For months on the campaign trail, presidential candidate Donald J. Trump
promised that, if elected, he would impose a ban on Muslim immigration. In two
Executive Orders, President Trump has made good on his promise. This Court
properly entered a TRO against sections 2 and 6 of the current Order. These
sections violate the Establishment Clause by disadvantaging Muslim immigrants
based on their religion. In addition, these sections are irrational in violation of the
Due Process Clause and unlawful under the Immigration and Nationality Act of
1965. Amici address these issues to urge the Court to convert the TRO to a
preliminary injunction, for the reasons discussed in the Court’s TRO opinion, and
for the additional reasons set forth in this brief and the Plaintiffs’ motion. That
relief is necessary to ensure that this litigation moves along and to provide
nationwide relief against section 6 of the Executive Order.
I.

THE EXECUTIVE ORDER VIOLATES THE ESTABLISHMENT
CLAUSE.
The Establishment Clause prohibits any “law respecting an establishment of

religion.” It enshrines, in the first words to the First Amendment to the U.S.
Constitution, the special protection that the Framers intended for religion to have
from governmental compulsion. As Madison wrote: “we hold it for a fundamental
and undeniable truth, that Religion or the duty which we owe to our Creator and
the manner of discharging it, can be directed only by reason and conviction, not by
force or violence. The Religion then of every man must be left to the conviction and
conscience of every man; and it is the right of every man to exercise it as these may

8

dictate.” James Madison, Memorial and Remonstrance Against Religious
Assessments to the Honorable the General Assembly of the Commonwealth of
Virginia P1, reprinted in 8 The Papers of James Madison 299 (Robert A. Rutland
ed. 1973). Consistent with these principles, “[t]he clearest command of the
Establishment Clause is that one religious denomination cannot be officially
preferred over another.” Larson v. Valente, 456 U.S. 228, 244 (1982). The
Executive Order violates the Establishment Clause by disfavoring Muslim
immigrants.

A.

The Order’s Avowed Purpose Is Discriminatory.

The Establishment Clause extends beyond facial discrimination and protects
“against governmental hostility which is masked, as well as overt.” Church of the
Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 534 (1993). When
determining whether governmental action was motivated by an invidious
discriminatory purpose, courts often must look beyond the text, id., and may
examine “such circumstantial and direct evidence of intent as may be available,”
including “[t]he historical background of the decision” and “contemporary
statements” by decisionmakers. Village of Arlington Heights v. Metropolitan Hous.
Dev. Corp., 429 U.S. 252, 266-67 (1977). Indeed, scrutinizing purpose requires that
courts “not only can, but must” examine “the circumstances surrounding [the
policy’s] enactment,” Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 315 (2000), to
ascertain whether, in the eyes of an “objective observer,” a religious purpose
“emerges from readily discoverable fact[s].” McCreary County v. American Civil
Liberties Union of Ky., 545 U.S. 844, 862 (2005). Accord City of Cuyahoga Falls v.

9

Buckeye Community Hope Foundation, 538 U.S. 188, 196-97 (2003) (“[S]tatements
made by decisionmakers or referendum sponsors during deliberation over a
referendum may constitute relevant evidence of discriminatory intent in a challenge
to an ultimately enacted initiative.”).
To begin, the ban on immigrants and refugees from six countries is an
admitted guise for discriminating against Muslims. Numerous anti-Muslim
statements by then candidate Trump and later President Trump, and by his
advisors and others in his administration, have been well documented, both in this
case, e.g., Dkt. 58-1 at 7-15, and others, e.g., Washington v. Trump, 847 F.3d 1151,
1167 (9th Cir. 2017); and these statements confirm that the purpose of the
Executive Order is to discriminate against Muslims.13 As this Court recognized in
its order granting a TRO, “a reasonable, objective observer – enlightened by the
specific historical context, contemporaneous public statements, and specific
sequence of events leading to its issuance – would conclude that the Executive
Order was issued with a purpose to disfavor a particular religion.” Dkt. 219 at 28.
And two other district courts have likewise found that these statements show a

rampant and palpable discriminatory purpose. International Refugee Assistance

Indeed, it is not even necessary to “look behind” the Executive Order’s facial
purpose, Washington v. Trump, 2017 WL 992527, *5 (9th Cir. March 15, 2017,
Bybee, J., dissenting), or demand that the President disclose his “‘real’ reasons” for
the order, id. at *9, as the judges dissenting from the Ninth Circuit’s en banc
decision not to vacate the panel opinion concerning the prior Executive Order
believed. These have been aired by the President himself, early and often.
13

10

Project v. Trump, 2017 WL 1018235, at **17-18 (D. Md. March 16, 2017); Aziz v.
Trump, 2017 WL 580855, at **8-9 (E.D. Va. Feb. 13, 2017).14
It is of no moment that the Executive Order disclaims discriminatory intent
and professes a national security purpose, or that it eliminated the explicit religious
preference in the prior order. “Official action that targets religious conduct for
distinctive treatment cannot be shielded by mere compliance with the requirement
of facial neutrality.” City of Hialeah, 508 U.S. at 534. Accord Yick Wo v. Hopkins,

118 U.S. 356, 374 (1886) (even facially neutral law cannot survive when “no reason
for it exists except hostility to the race and nationality” of those adversely affected).
For this reason, it is “the duty of the courts” to distinguish a “sincere” secular
purpose from one that is a “sham,” or that is “secondary” to a “predominately
religious” purpose. McCreary, 545 U.S. at 864. Here the sham purpose could not be
more apparent: as this Court recognized in granting the TRO, the Executive Order,
by the administration’s own prior and concurrent admissions, targets Muslims.

E.g., Dkt. 219 at 33 (The record “includes significant and unrebutted evidence of
religious animus driving the promulgation of the Executive Order and its related
predecessor.”).

These courts considered campaign statements to determine intent, which the
federal government has contended is not appropriate. And in some circumstances,
it may not be appropriate, such as where a candidate promises to do one thing and
does something plainly different as an elected official. But here, President Trump
and his advisors have confirmed the discriminatory intent of the ban since he took
office – and it functions exactly as he promised when campaigning. Under these
circumstances, “[j]ust as the world is not made brand new every morning,”
McCreary, 545 U.S. at 866, intent is not made brand new simply by taking the oath
of office.
14

11

B.

The Order’s Profound Effect Reveals Its Discriminatory
Purpose.

Although the federal government asserts that the Executive Order is neutral
with respect to religion, this ignores the reality of the Order’s intended effects.

Most of the 38,901 Muslim refugees admitted to the United States in fiscal year
2016 came from the six countries targeted by the Executive Order.15 Indeed, given
current global conditions of civil war, ethnic conflict, drought, famine, and radical
Islamic elements, most refugees worldwide come from predominately Muslim
countries.16 Under these circumstances, an Executive Order banning refugees is a
Muslim ban.

The Executive Order remains discriminatory despite the federal
government’s insistence that the ban is temporary and affects only a partial list of
countries with majority-Muslim populations. Tellingly, these are the countries from
which the majority of Muslim refugees come to the United States. Regardless,
“temporary” and “partial” are not defenses to an Establishment Clause violation.
And in fact, whatever the temporal duration or the geographic scope of this Order,

the federal government’s defense of this Order would allow defendants to later

Phillip Connor, U.S. admits record number of Muslim refugees in 2016,
http://www.pewresearch.org/fact-tank/2016/10/05/u-s-admits-record-number-ofmuslim-refugees-in-2016/.
15

Figures at a Glance, UNHCR, http://www.unhcr.org/en-us/figures-at-aglance.html.
16

12

extend the Order for a longer period of time and to more countries to reach the
desired “total and complete shutdown” the President has called for.17

C.

The Order Does Not Survive Strict Scrutiny.

Where, as here, a law “grant[s] a denominational preference,” the Supreme
Court’s cases “demand” that courts “treat the law as suspect” and “apply strict
scrutiny in adjudging its constitutionality.” Larson, 456 U.S. at 246. The law will
be upheld only if the government shows a compelling governmental purpose, id. at

247, and the law is “closely fitted to further [that] interest,” id. at 246. Amici
accept, of course, that the principles of enhancing national security and preventing
domestic terrorism are plainly compelling, but the Order is not narrowly tailored to
achieve that purpose and therefore fails strict scrutiny.

As the Ninth Circuit correctly observed in denying the motion to stay the
order enjoining enforcement of the original Executive Order, there is “no evidence
that any alien from any of the countries named in the Order has perpetrated a
terrorist attack in the United States.” Washington, 847 F.3d at 1168. Indeed, no
Americans have been killed on U.S. soil by foreign nationals from the targeted

countries since 1975.18 At the same time, while the original Executive Order cited

https://www.donaldjtrump.com/press-releases/donald-j.-trump-statement-onpreventing-muslim-immigration.
17

Alex Nowrasteh, Where Do Terrorists Come From? Not the Nations Named in
Trump Ban, http://www.newsweek.com/where-do-terrorists-come-not-sevencountries-named-550581.
18

13

the attacks of September 11, 2001 as an impetus, the countries whose citizens
carried out those attacks were excluded from the ban.19
The revised Executive Order contains several factual assertions apparently
designed to avoid these defects, but they do not withstand scrutiny. Tellingly, the
Order omits reference to the September 11th attacks – underscoring that the Order
would have done nothing to prevent that tragedy at all. Instead, the Order
generally states that its restrictions are necessary to prevent “foreign nationals who
may commit, aid, or support acts of terrorism” from entering the county. Order §

1(a). The federal government’s own internal documents refute this. Following the
Ninth Circuit’s ruling, the administration asked the Department of Homeland
Security to compile an intelligence report supporting a travel ban from the targeted
countries. That report rejects the Order’s premise, concluding that “country of
citizenship is unlikely to be a reliable indicator of potential terrorist activity.” Dkt.

64-10 at 1.
Other assertions in the Order likewise fail to support a finding that the Order
is narrowly, or even rationally, drawn. For example, the Order states that Attorney
General Sessions reported to the President that “more than 300 persons who

entered the United States as refugees are currently the subjects of counterterrorism
investigations by the Federal Bureau of Investigation.” Order § 1(h).20 Again, it is

Mark Berman, Trump and his aides keep justifying the entry ban by citing attacks
it couldn’t have prevented, https://www.washingtonpost.com/news/postnation/wp/2017/01/30/the-trump-white-house-keeps-justifying-the-entry-ban-byciting-attacks-it-couldnt-have-prevented/?utm_term=.599f86065bb0.
19

The Attorney General himself advocated while a Senator for restricting the
admission of Muslims to the United States. See June 14, 2016 Letter from Sen. Jeff
20

14

telling that the Order does not claim that any of these refugees came from the six
countries affected by this ban.21 Regardless, the Order appears to adopt a broad
interpretation of what qualifies as a “counterterrorism investigation,” and the
number is misleading because only a small fraction of terrorism inquiries conducted
by the F.B.I. ever lead to criminal charges.22 Moreover, with terrorism
investigations so broadly defined, 300 investigations is insignificant.
Similarly, the Order asserts that “[s]ince 2001, hundreds of persons born
abroad have been convicted of terrorism-related crimes in the United States.”
Order § 1(h). But the Executive Order does not restrict immigration of all foreignborn nationals; instead it attributes this problem to the six majority-Muslim

countries targeted. This data is also suspect because it includes individuals initially

Sessions and Sen. Ted Cruz to President Barack Obama,
https://web.archive.org/web/20161109030307/http://www.sessions.senate.gov/public/
_cache/files/f9d1d9f4-6ee8-42ff-a5f2-29a2518fe2f7/06.14.16-sens.-sessions-cruz-topresident-obama-on-terrorism-immigration.pdf.
At least 70% of suspects under review in these cases did not come from the six
targeted countries. Devlin Barrett et al., Internal Trump Administration Data
Undercuts Travel Ban, https://www.washingtonpost.com/world/nationalsecurity/internal-trump-administration-data-undercuts-travelban/2017/03/16/9a2dc6b4-098e-11e7-93dc-00f9bdd74ed1_story.html?hpid=hp_hpbanner-low_travelbanreport1230pm%3Ahomepage%2Fstory&utm_term=.f88154aa2956
21

Charlie Savage, F.B.I. Casts Wide Net Under Relaxed Rules for Terror Inquiries,
Data Shows, http://www.nytimes.com/2011/03/27/us/27fbi.html (citing Justice
Department document indicating that from December 2008 to March 2009 the
F.B.I. initiated 11,667 “assessments” of people and from that group opened 427
more intensive investigations).
22

15

investigated as part of a “terror-related” investigation but who were convicted of
charges that had no connection to terrorism.23
The national security claims advanced to support the Executive Order are not
supported by the evidence and thus cannot mask the Order’s discriminatory intent.
Instead, the Order cuts an indiscriminate swath through the heart of immigration
into this country. The Order fails strict scrutiny and violates the Establishment

Clause.24

Shirin Sinnar, More Misleading Claims on Immigrants and Terrorism,
https://www.justsecurity.org/38341/misleading-claims-immigrants-terrorism/; see
also Alex Nowrasteh, https://www.cato.org/blog/42-percent-terrorism-relatedconvictions-arent-terrorism 42 Percent of “Terrorism-Related Convictions Aren’t for
Terrorism (analysis of list compiled by Senator Sessions of terrorism convictions
from 9/11 until the end of 2014 indicated that “[o]nly 40 were convicted of planning,
attempting, or carrying out a terrorist attack on U.S. soil . . .”).
23

In addition to the Establishment Clause violation, the Executive Order’s blatant
discrimination against Muslims is invalid on two other grounds. First, it denies
equal protection. There is an equal protection component to the Fifth Amendment
Due Process Clause that applies to the federal government. E.g., Adarand
Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995). Distinctions based on religion
are inherently suspect. Friedman v. Rogers, 440 U.S. 1, 17 (1979); see also City of
New Orleans v. Dukes, 427 U.S. 297, 303 (1976) (heightened scrutiny applies to a
classification that is based on religion). Invidious classifications “are so seldom
relevant to the achievement of any legitimate state interest that laws grounded in
such considerations are deemed to reflect prejudice and antipathy – a view that
those in the burdened class are not as worthy or deserving as others.” City of
Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985). Accordingly, such laws
“are subjected to strict scrutiny and will be sustained only if they are suitably
tailored to serve a compelling state interest.” Id. As we explain, the Executive
Order plainly was motivated by a desire to discriminate and thus denies equal
protection. Second, the Executive Order’s discrimination based on religion violates
the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb-1. RFRA prohibits
action by the federal government that substantially burdens religious exercise
unless it is the least restrictive means of furthering a compelling governmental
interest. See Holt v. Hobbs, 135 S. Ct. 853, 859 (2015). A desire to discriminate
based on religion does not constitute a compelling governmental interest.
24

16

II.

THE EXECUTIVE ORDER UNLAWFULLY DISCRIMINATES BASED
ON NATIONAL ORIGIN.
The federal government’s defense that the Executive Order is not a religious

ban at all but one based on national origin does not save it. At the outset, as we
explain, the Order’s reliance on national origin is merely a pretext for
discrimination against Muslims. Regardless, the pretextual national origin basis
for the classification is itself unlawful.
For one thing, the Order violates the equal protection component of the Fifth
Amendment’s Due Process Clause.25 By banning nationals of countries not shown
to perpetrate terrorism in the United States and not banning nationals of countries
that do, the Executive Order is so staggeringly underinclusive and overinclusive for
the stated goal of national security and so profoundly arbitrary that it is
unconstitutional for that reason alone. Utterly irrational classifications that do not
serve the stated purpose violate equal protection. City of Cleburne v. Cleburne
Living Ctr., 473 U.S. 432, 446 (1985) (“The State may not rely on a classification
whose relationship to an asserted goal is so attenuated as to render the distinction
arbitrary or irrational.”); see also Romer v. Evans, 517 U.S. 620, 635 (1996)

(invalidating under the Equal Protection Clause “a status-based enactment divorced
from any factual context from which we could discern a relationship to legitimate
state interests; . . . a classification of persons undertaken for its own sake”).
Beyond that, the Order violates the Immigration and Nationality Act of
1965. “During most of its history, the United States openly discriminated against

As we explain above, the federal government is subject to the equal protection
requirement of the Due Process Clause of the Fifth Amendment.
25

17

individuals on the basis of race and national origin in its immigration laws.” Olsen
v. Albright, 990 F. Supp. 31, 37 (D.D.C. 1997). But, as President Kennedy noted,
“the national origins quota system ha[d] strong overtones of an indefensible racial
preference.” John F. Kennedy, A Nation of Immigrants 45 (Harper rev. ed 2008).
Accordingly, “[t]hroughout the latter half of the Twentieth Century, Congress
moved away from such discriminatory policies. The most profound change was the
Immigration and Nationality Act Amendments of 1965,” which “eliminated
discrimination on the basis of race and national origin.” Id.; see also 1965

U.S.C.C.A.N. 3328, 3328 (quoting S. Rep. No. 89-748) (principal purpose of the 1965
Act was “to repeal the national origin quota provisions of the Immigration and
Nationality Act, and to substitute a new system for the selection of immigrants to
the United States”). The 1965 Act could not be more clear: “no person shall receive
any preference or priority or be discriminated against in the issuance of an
immigrant visa because of the person’s race, sex, nationality, place of birth, or place
of residence.” 8 U.S.C. § 1152(a)(1)(A). Moreover, “[t]he legislative history
surrounding the 1965 Act is replete with the bold anti-discriminatory principles of
the Civil Rights Era. Indeed, the 1965 Act was passed alongside the Civil Rights
Act of 1964 and the Voting Rights Act of 1965.” Olsen, 990 F. Supp. at 37. The
Executive Order is in direct violation of section 1152(a).

Strong enforcement of the INA’s antidiscrimination provision is profoundly
important to amici, which have adopted similar laws prohibiting discrimination in
their local communities in all aspects of life – housing, employment, public
accommodation, transportation, schooling, government services, and public

18

employment. E.g., Municipal Code of Chicago, Ill. §§ 2-160-010, 5-8-010, 9-115-180,
13-72-040; Los Angeles Charter §§ 104(i), 1024; Los Angeles Admin. Code §§ 4.400,
10.8, 10.13; New York City Charter, § 900; N.Y.C. Admin. Code §§ 4-116; 6-108;
Philadelphia Code, §§ 9-1101, 9-1103, 9-1106, 9-1108. Such laws reflect amici’s
strong commitment to equal opportunity and equal rights, just as section 1152(a)
does. The Executive Order’s blatant discrimination based on national origin turns
the clock back on this important civil rights guarantee, and it should be set aside.

To be sure, the President has broad authority over the entry of aliens
generally: “Whenever the President finds that the entry of any aliens or of any
class of aliens into the United States would be detrimental to the interests of the
United States, he may by proclamation, and for such period as he shall deem
necessary, suspend the entry of all aliens or any class of aliens as immigrants or
nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be
appropriate.” 8 U.S.C. § 1182(f). But for two reasons in particular, section 1182(f)
does not save the Executive Order.
First, section 1152(a)’s prohibition on discrimination was enacted after
section 1182(f) and is properly understood as a limitation on the authority
previously granted under section 1182(f) to suspend entry. “[T]he meaning of one
statute may be affected by other Acts, particularly where Congress has spoken
subsequently and more specifically to the topic at hand.” FDA v. Brown &
Williamson Tobacco Corp., 529 U.S. 120, 133 (2000). Thus, although section 1182(f)
grants the President authority to suspend entry of a class of immigrants whose
entry would be “would be detrimental to the interests of the United States,”—i.e.,

19

entrants belonging to Foreign Terrorist Organizations—section 1152 declares
Congress’s determination that it is not in the national interest to discriminate based
upon national origin. This reading also construes these provisions “as a

symmetrical and coherent regulatory scheme,” Gustafson v. Alloyd Co., 513 U.S.
561, 569 (1995), and “fit[s] all parts into an harmonious whole,” FTC v. Mandel
Brothers, Inc., 359 U.S. 385, 389 (1959). By contrast, to read section 1182(f) as
though section 1152(a) did not exist is inconsistent with settled rules of statutory
construction and should be rejected. E.g., Astoria Fed. Sav. & Loan Ass’n v.
Solimino, 501 U.S. 104, 112 (1991) (“[W]e construe statutes, where possible, so as to
avoid rendering superfluous any parts thereof.”).
Second, section 1182(f) should be read in light of the grounds for denial of
admission for terrorist activity that are specifically set forth in section

1182(a)(3)(B). That provision mandates an individualized inquiry; it does not
authorize blanket exclusion based solely on the applicant’s nation of origin.
Even considering section 1182(f) in isolation, the Executive Order’s exclusion
of all immigrants and refugees from six countries, solely because of the
happenstance of their place of birth, cannot stand.26 The plain language of section

1182(f) requires a determination that the entry of aliens or a class of aliens is

The district court in International Refugee agreed that plaintiffs there showed a
likelihood of success on their claim that the Executive Order violates section 1152(a)
by restricting the issuance of immigrant visas, although it did not find a likelihood
of success on the claim that section 1152(a) prevents the President from barring
entry in a discriminatory fashion. 2017 WL 1018235, *10. Respectfully, allowing
the President to deny entry based on national origin to persons who could not be
denied a visa on that basis makes no sense. Instead, to harmonize these provisions,
section 1182(f) should be read to allow the denial of entry only on other grounds, or
later information, but not on the precise basis that section 1152(a) forbids.
26

20

“detrimental to the interests of the United States,” and here it is simply not possible
to say that every single person, or even a majority of persons, born in the six
targeted countries presents a security risk to the United States. Most obviously
perhaps, this group includes people who left their place of birth as infants or
children, and perhaps were born to parents who themselves were not citizens of the
country where their children were born. These immigrants and refugees could have
lived nearly their entire lives in countries that even the federal government does

not think present any risk to the United States, and yet they are banned solely
because of where they were born. Even on immigration matters, discretion must be
exercised “in a reasoned manner.” Judulang v. Holder, 565 U.S. 42, 53 (2011). A
classification based on national origin is not rational.27

The Executive Order states the six targeted countries are unable to “share or
validate” data about individuals seeking to enter the United States. Order § 1(d).
But this assertion regarding vetting cannot be read as a blanket “determination”
that all individuals from the six countries are “detrimental” to the United States in
violation of section 1182(f).
27

21

CONCLUSION

For these reasons, and the reasons set forth in Plaintiffs’ motion, amici urge
the Court to grant the motion to convert the temporary restraining order to a
preliminary injunction.
Respectfully submitted,

s/Benna Ruth Solomon
s/Robert M. Kohn

RYAN P. POSCABLO
BRIAN NEFF
ELIBERTY LOPEZ
Riley Safer Holmes & Cancila LLP
1330 Avenue of the Americas, 6th Floor
New York, NY 10019
[phone]
[e-mail]
NICK KAHLON
Riley Safer Holmes & Cancila LLP
Three First National Plaza
70 W. Madison Street, Suite 2900
Chicago, IL 60602
[phone]
[e-mail]
Attorneys for Amicus Curiae,
City of Chicago

EDWARD N. SISKEL
Corporation Counsel
of the City of Chicago
BENNA RUTH SOLOMON
Deputy Corporation Counsel
30 N. LaSalle Street, Suite 800
Chicago, IL 60602
[phone]
[e-mail]
*Pending Pro Hac Vice Motion
Attorneys for Amicus Curiae,
City of Chicago

DONNA Y. L. LEONG, 3226
Corporation Counsel
ROBERT M. KOHN, 6291
NICOLETTE WINTER, 9588
Deputies Corporation Counsel
530 S. King St., Room 110
Honolulu, HI 96813
[phone]
[e-mail]
[e-mail]
Attorneys for City and County
of Honolulu

22