State of Hawaii v. Trump
Filing
25
MEMORANDUM in Opposition re 23 Emergency MOTION to Stay re 18 Link,,, filed by State of Hawaii. (Chin, Douglas)
NEAL K. KATYAL*
DOUGLAS S. CHIN (Bar No. 6465)
Attorney General of the State of Hawai‘i HOGAN LOVELLS US LLP
CLYDE J. WADSWORTH (Bar No. 8495) 555 Thirteenth Street NW
Washington, DC 20004
Solicitor General of the State of Hawai‘i
DEIRDRE MARIE-IHA (Bar No. 7923)
Telephone: (202) 637-5600
DEPARTMENT OF THE ATTORNEY
Fax: (202) 637-5910
Email:
GENERAL, STATE OF HAWAI‘I
425 Queen Street
neal.katyal@hoganlovells.com
Honolulu, HI 96813
*Pro Hac Vice
Telephone: (808) 586-1500
Fax: (808) 586-1239
Email: deirdre.marie-iha@hawaii.gov
Attorneys for Plaintiff, State of Hawai‘i
(See Next Page For Additional Counsel)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI‘I
Civil Action No.
1:17-CV-00050
STATE OF HAWAI‘I,
STATE OF
HAWAII’S
OPPOSITION TO
v.
UNITED STATES’
EMERGENCY
DONALD J. TRUMP, in his official capacity as
MOTION TO STAY
President of the United States; U.S. DEPARTMENT OF
ALL DEADLINES
HOMELAND SECURITY; JOHN F. KELLY, in his
PENDING
official capacity as Secretary of Homeland Security; REX
RESOLUTION OF
TILLERSON, in his official capacity as Secretary of
APPELLATE
State; and the UNITED STATES OF AMERICA,
PROCEEDINGS
REGARDING
Defendants.
NATIONWIDE
INJUNCTION
Plaintiff,
ADDITIONAL COUNSEL
KIMBERLY T. GUIDRY (Bar No. 7813)
DONNA H. KALAMA (Bar No. 6051)
ROBERT T. NAKATSUJI (Bar No. 6743)
Deputy Attorneys General
DEPARTMENT OF THE ATTORNEY
GENERAL, STATE OF HAWAI‘I
425 Queen Street
Honolulu, HI 96813
Telephone: (808) 586-1500
Fax: (808) 586-1239
COLLEEN ROH SINZDAK*
MITCHELL P. REICH*
ELIZABETH HAGERTY**
HOGAN LOVELLS US LLP
555 Thirteenth Street NW
Washington, DC 20004
Telephone: (202) 637-5600
Fax: (202) 637-5910
THOMAS P. SCHMIDT*
HOGAN LOVELLS US LLP
875 Third Avenue
New York, NY 10022
Telephone: (212) 918-3000
Fax: (212) 918-3100
SARA SOLOW*
ALEXANDER B. BOWERMAN*
HOGAN LOVELLS US LLP
1835 Market St., 29th Floor
Philadelphia, PA 19103
Telephone: (267) 675-4600
Fax: (267) 675-4601
*Pro Hac Vice Applications
Forthcoming
** Pro Hac Vice
Attorneys for Plaintiff, State of Hawai‘i
2
INTRODUCTION
On Friday, February 3, 2017, the State of Hawaiʻi filed its complaint
challenging President Trump’s Executive Order dated January 27, 2017, based
upon its patent unconstitutionality and inconsistency with federal statutes. That
same day, Hawaiʻi moved for a temporary restraining order asking this Court to
immediately bar implementation of the Executive Order nationwide. This Court
immediately ordered the hearing for Wednesday, February 8, 2017.
That hearing should be allowed to go forward.
The Government asks this Court to postpone the hearing until the Ninth
Circuit proceedings in Washington v. Trump CITE are resolved. In the alternative,
the Government suggests that if the nationwide stay imposed in the Washington
case is no longer in effect, it is amenable to an order requiring the Government to
respond to Hawaii’s motion for a temporary restraining order within 48 hours.
This Court should reject both of these options. Neither approach would solve the
problems that would arise if, for any reason, the Executive Order went back into
effect with Hawaii’s claims unadjudicated. Indeed, both options deliberately allow
that possibility to occur. Just hours ago, “Sean Spicer, the White House press
secretary, said the administration stood ready to reinstate the entire ban. ‘Once we
win the case, it will go right back into action,’ he said.” The White House has
already announced that, if the Ninth Circuit grants the stay, the order “will go right
1
back into action.” See https://www.nytimes.com/2017/02/06/us/politics/trumptravel-ban-court.html.
The constitutionality and legality of the Executive Order are grave questions
of national importance. The order raises the specter of the rank discrimination in
America’s past. It has sparked protests nationwide, including at the Honolulu
International Airport. Hawaiʻi families have been torn apart; their lives upended.
See Doc 1 (Compl.) at ¶¶ 2, 3, 55, 56, 57, 58, 59, 65, 66, 68, 69. It would cause
Hawaiʻi irreparable harm for this illegal order to be in place for any amount of
time, and the Court should not accede to a briefing and argument schedule that
would—under the White House’s admission earlier today—allow that very thing to
happen.
ARGUMENT
First, the Government’s invocation of judicial efficiency is misplaced. Its
proposals would not address the problem inherent in allowing the Executive Order
to go back into effect. That is exactly the same harm the TRO motion sought to
prevent when filed. The Government’s motion essentially asks this Court to bless
a scenario in which the Executive Order has gone back into effect after the orders
from other courts have been lifted or expired. This would necessarily involve a
window of time—certainly longer than 48 hours since it would require briefing and
argument—during which the Executive Order was once more causing all the harms
2
it caused before. Moving forward with the TRO hearing now, however, would
mitigate that risk.
Second, the Government’s assertion that the TRO hearing will pose a risk of
potential inconsistency within the Ninth Circuit is not relevant. If any
inconsistency develops, that is something for the Ninth Circuit to resolve. This
Court need not stay its hand to avoid that; that is what appellate jurisdiction is for.
And while no one disputes that Ninth Circuit precedent binds this Court, it is quite
possible that no precedent will be generated now at all. It is an open question
whether the Ninth Circuit has jurisdiction over the Government’s appeal. See
Wilson v. U.S. Dist. Court for Northern Dist. of California, 161 F.3d 1185, 1187
(9th Cir. 1998) (TRO “cannot be appealed as of right, but is limited to the
consideration of a petition for mandamus.”) The Government has not filed a
petition for writ of mandamus in the Washington case.
Third, the Government’s assertion of potential harm to itself is equally
misplaced. The Government can have no legitimate interest in continuing to
implement an unconstitutional order. Just as importantly, a 48-hour window in
which to respond to Hawaii’s motion would exacerbate the continued confusion
about the Executive Order. Such a window would allow the Executive Order to go
back into effect not just for the 48 hours offered, but an even longer period before
this Court could hear and rule on the TRO. The Government suggests that it is
3
hard for them to brief and argue in two courts, despite the massive resources of the
federal government and their own claim that the issues in this case are similar to
those before the Ninth Circuit. That is not reason enough, given the stakes.
Holding the hearing as scheduled would minimize these risks. Hawaiʻi
notes that this Court need not necessarily rule on Wednesday; it could simply stick
to the briefing schedule and hold the hearing. If desired, the Court could await the
Ninth Circuit’s ruling and be prepared to rule immediately if necessary, having
already heard the arguments of the parties. The issues at stake certainly deserve
that level of caution. Should the TRO issued by a sister court dissolve or otherwise
be lifted, even one hour of the Executive Order’s resurgence would be one hour
too many. Forty-eight would be worse. Simply by attempting to board an airplane
at the wrong moment, yet another family would be split apart. And the
Constitution would be applied in a manner that is mercurial, arbitrary, and unfair.
Going forward poses none of those risks.
At a minimum, if the Court wishes to postpone the hearing, it should do so
only if the Government agrees not to implement the Executive Order provisions at
issue, nationwide, until this Court has a chance to rule on them.
CONCLUSION
This is no time to shut the courthouse door. The Executive Order evokes a
dark period of Hawaii’s history. Hawaii’s citizens recall the Government’s prior
4
Executive Order, based upon national security, authorizing the internment of
citizens and non-citizens due to nothing more than their Japanese ancestry.
Hawaii’s majority-minority population includes the descendants of those who
survived such discrimination. This Court should not thwart Hawaii’s timely
attempt to prevent that from happening again: The motion should be denied.
DATED:
Honolulu, Hawai‘i, February 6, 2017.
Respectfully submitted,
/s/ Douglas S. Chin
NEAL K. KATYAL**
COLLEEN ROH SINZDAK*
MITCHELL P. REICH*
ELIZABETH HAGERTY**
THOMAS P. SCHMIDT*
SARA SOLOW*
ALEXANDER B. BOWERMAN*
HOGAN LOVELLS US LLP
**Pro Hac Vice
*Pro Hac Vice Forthcoming
DOUGLAS S. CHIN (Bar No. 6465)
Attorney General of the State of Hawai‘i
CLYDE J. WADSWORTH (Bar No. 8495)
Solicitor General of the State of Hawai‘i
DEIRDRE MARIE-IHA (Bar No. 7923)
KIMBERLY T. GUIDRY (Bar No. 7813)
DONNA H. KALAMA (Bar No. 6051)
ROBERT T. NAKATSUJI (Bar No. 6743)
Deputy Attorneys General
DEPARTMENT OF THE ATTORNEY
GENERAL, STATE OF HAWAI‘I
Attorneys for Plaintiff, State of Hawai‘i
5
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI‘I
STATE OF HAWAI‘I,
Plaintiff,
Civil No. 17-00050-DKW-KJM
v.
DONALD J. TRUMP, et al.
Defendants.
CERTIFICATE OF SERVICE
I hereby certify that, on the dates and by the methods of service noted below,
a true and correct copy of State of Hawaii’s Opposition to United States’
Emergency Motion to Stay All Deadlines Pending Resolution of Appellate
Proceedings regarding Nationwide Injunction was electronically served through
CM/ECF on February 6, 2017:
Florence T. Nakakuni, Esq.
florence.nakakuni@usdoj.gov
Michelle R. Bennett, Esq.
michelle.bennett@usdoj.gov
DATED: Honolulu, Hawai‘i, February 6, 2017.
/s/ Douglas S. Chin
NEAL K. KATYAL**
COLLEEN ROH SINZDAK*
MITCHELL P. REICH*
ELIZABETH HAGERTY**
THOMAS P. SCHMIDT*
SARA SOLOW*
ALEXANDER B. BOWERMAN*
DOUGLAS S. CHIN (Bar No. 6465)
Attorney General of the State of Hawai‘i
CLYDE J. WADSWORTH (Bar No. 8495)
Solicitor General of the State of Hawai‘i
DEIRDRE MARIE-IHA (Bar No. 7923)
KIMBERLY T. GUIDRY (Bar No. 7813)
DONNA H. KALAMA (Bar No. 6051)
1
HOGAN LOVELLS US LLP
**Pro Hac Vice
*Pro Hac Vice Forthcoming
ROBERT T. NAKATSUJI (Bar No. 6743)
Deputy Attorneys General
DEPARTMENT OF THE ATTORNEY
GENERAL, STATE OF HAWAI‘I
Attorneys for Plaintiff, State of Hawai‘i
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