State of Hawaii v. Trump

Filing 252

REPLY to Response to Motion re 238 MOTION to Convert Temporary Restraining Order to Preliminary Injunction filed by Ismail Elshikh, State of Hawaii. (Attachments: # 1 Certificate of Word Count, # 2 Certificate of Service)(Katyal, Neal)

DOUGLAS S. CHIN (Bar No. 6465)
Attorney General of the State of Hawai‘i
DEPARTMENT OF THE ATTORNEY
GENERAL, STATE OF HAWAI‘I
425 Queen Street
Honolulu, HI 96813
Telephone: [phone]
Fax: [phone]
Attorneys for Plaintiff, State of Hawai‘i

NEAL K. KATYAL*
HOGAN LOVELLS US LLP
555 Thirteenth Street NW
Washington, DC 20004
Telephone: [phone]
Fax: [phone]
*Admitted Pro Hac Vice
Attorneys for Plaintiffs, State of
Hawai‘i and Ismail Elshikh

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

REPLY IN SUPPORT OF
MOTION TO CONVERT
TEMPORARY
RESTRAINING ORDER TO
A PRELIMINARY
INJUNCTION;
CERTIFICATE OF WORD
COUNT; CERTIFICATE OF
SERVICE

ADDITIONAL COUNSEL
CLYDE J. WADSWORTH (Bar No. 8495)
Solicitor General of the State of Hawai‘i
DEIRDRE MARIE-IHA (Bar No. 7923)
DONNA H. KALAMA (Bar No. 6051)
KIMBERLY T. GUIDRY (Bar No. 7813)
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: [phone]
Fax: [phone]
Email: [e-mail]
Attorneys for Plaintiff, State of Hawai‘i

COLLEEN ROH SINZDAK*
MITCHELL P. REICH*
ELIZABETH HAGERTY*
HOGAN LOVELLS US LLP
555 Thirteenth Street NW
Washington, DC 20004
Telephone: [phone]
Fax: [phone]
Email:
[e-mail]
THOMAS P. SCHMIDT*
HOGAN LOVELLS US LLP
875 Third Avenue
New York, NY 10022
Telephone: [phone]
Fax: [phone]
SARA SOLOW*
ALEXANDER B. BOWERMAN*
HOGAN LOVELLS US LLP
1835 Market St., 29th Floor
Philadelphia, PA 19103
Telephone: [phone]
Fax: [phone]
*Admitted Pro Hac Vice
Attorneys for Plaintiffs, State of
Hawai‘i and Ismail Elshikh

TABLE OF CONTENTS
Page(s)
INTRODUCTION .....................................................................................................1
ARGUMENT .............................................................................................................2
I.

This Court Has Already Made The Findings Necessary For A
Preliminary Injunction...........................................................................2

II.

The Scope Of The Injunction Should Not Be Narrowed. .....................7

A.

Plaintiffs Have Standing To Challenge Sections 2 And 6 In Their
Entirety. .................................................................................................8

B.

The Merits Dictate That The Injunction Should Cover
Sections 2 and 6. ..................................................................................11
1.

The Establishment Clause violation requires
enjoining Section 6. ..................................................................12

2.

Recent case law does not suggest otherwise. ............................16

3.

This Court should not parse Sections 2 and 6. ..........................18

CONCLUSION ........................................................................................................19

i

TABLE OF AUTHORITIES
Page(s)
Cases
In re Adelphia Commc’ns Corp., No. 02-41729,
2006 WL 1529357 (Bankr. S.D.N.Y. June 5, 2006) ............................................ 6
Arch Ins. Co. v. Sierra Equip. Rental, Inc.,
No. CIV S-12-0617 KJM, 2012 WL 5897327 (E.D. Cal. Nov. 13,
2012) ..................................................................................................................... 4
Aziz v. Trump,
-- F. Supp. 3d --, 2017 WL 580855 (Feb. 13, 2017)............................................. 6
Catholic League for Religious & Civil Rights v. City & Cnty. of San
Francisco,
624 F.3d 1043 (9th Cir. 2010) (en banc) .............................................................. 9
Church of Lukumi Babalu Aye, Inc. v. City of Hialeah,
508 U.S. 520 (1993) ......................................................................................13, 14
Church of Scientology v. City of Clearwater,
2 F.3d 1514 (11th Cir. 1993) .............................................................................. 14
Czwewski v. Jevic Holding Corp.,
-- S. Ct. --, 2017 WL 1066259 (Mar. 22, 2017) ................................................. 11
Elk Grove Unified School Dist. v. Newdow,
542 U.S. 1 (2004) ................................................................................................ 10
Fla. Democratic Party v. Scott,
No. 4:16-cv-626, 2016 WL 6080225 (N.D. Fla. Oct. 12, 2016) .......................... 3
Granny Goose Foods, Inc. v. Bhd. of Teamsters & Auto Truck Drivers
Local No. 70, 415 U.S. 423 (1974) ....................................................................... 5
G.G. ex rel. Grimm v. Gloucester Cnty. Sch. Bd.,
822 F.3d 709 (4th Cir.), remanded on other grounds, No. 16-273,
2017 WL 855755 (U.S. Mar. 6, 2017).................................................................. 4
Hernandez v. CIR,
490 U.S. 680 (1989) ............................................................................................ 13
ii

International Refugee Assistance Project v. Trump,
-- F. Supp. 3d --, 2017 WL 1018235 (D. Md. Mar. 16, 2017) ............................. 5
LFP IP LLC v. Midway Venture LLC,
No. 10-01546, 2010 WL 4395401 (C.D. Cal. Oct. 29, 2010) .............................. 3
Luxottica Grp. S.p.A. v. Light in the Box Ltd.,
No. 16-cv-05314, 2016 WL 6092636 (N.D. Ill. Oct. 19, 2016) ........................... 6
Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd.,
518 F. Supp. 2d 1197 (C.D. Cal. 2007) ................................................................ 2
Preminger v. Peake,
552 F.3d 757 (9th Cir. 2008) .............................................................................. 10
Productive People, LLC v. Ives Design,
No. CV-09-1080, 2009 WL 1749751 (D. Ariz. June 18, 2009) ........................... 3
Rostker v. Goldberg,
453 U.S. 57 (1981) .............................................................................................. 13
Sarsour v. Trump,
No. 17-cv-00120-AJT-IDD (ED. Va. Mar. 24, 2017) ..................................16, 17
Service Employees International Union v. Roselli,
No. 09-00404, 2009 WL 2246198 (N.D. Cal. July 27, 2009) .............................. 6
Ticketmaster L.L.C. v. RMG Techs., Inc.,
507 F. Supp. 2d 1096 (C.D. Cal. 2007) ................................................................ 4
Town of Greece, N.Y. v. Galloway,
134 S. Ct. 1811 (2014) ........................................................................................ 13
Washington v. Trump,
847 F.3d 1151 (9th Cir. 2017) .....................................................................passim
Rules
Fed. R. Civ. P. 65(b)(1).............................................................................................. 5

iii

INTRODUCTION
Ten days ago, the Court issued an order enjoining the President’s second
attempt, in a span of two months, to “suspend[] the entry of Muslims” to the
United States. Op. 36. Defendants’ primary tactic in opposing the present motion
is to create the illusion that the Court’s TRO should not be converted to a
preliminary injunction because there is a “significant procedural and substantive”
difference between a TRO and a preliminary injunction, and Plaintiffs are obliged
“to offer additional, relevant evidence to support their request.” Opp. 1.
Defendants are wrong; their brief distorts both Rule 65 and precedent. There
is no significant procedural or substantive difference between a TRO and a
preliminary injunction in a case like this one, where Plaintiffs submitted extensive
facts and declarations (specifically, a 38-page complaint, 14 exhibits, and eight
declarations); both parties submitted oversized briefs fleshing out their legal
theories; and a lengthy hearing occurred before the TRO was issued. Nor have
Defendants offered any new evidence or changed circumstances to undermine the
integrity of the lengthy opinion finding the facts and making the legal conclusions
necessary to issue emergency injunctive relief. They do not, for example, even
begin to dispute the accuracy of the factual premise of this Court’s opinion: the
numerous statements by the President and his aides reflecting discriminatory
intent. Nor can they deny that the Order bans refugees at a time when the major

1

refugee crisis involves Muslim-majority countries. All Defendants have done
here—as in their prior “clarification” motion—is present the same arguments that
this Court already rejected.
For these reasons, Plaintiffs respectfully request that the Court issue a
preliminary injunction without further proceedings. See Local Rule 7.2(d)
(permitting court to decide any motion without a hearing). That would enable the
parties to move toward the swift resolution of this dispute that all parties profess to
seek. And after the repeated stops and starts of the last two months, it would
ensure that the constitutional rights of the Plaintiffs, and of Muslim citizens
throughout the United States, could be finally and fully vindicated.
ARGUMENT
I.

This Court Has Already Made The Findings Necessary For A
Preliminary Injunction.
This Court’s detailed TRO opinion—issued after extensive merits briefing

and an adversarial hearing lasting approximately 90 minutes—already made all of
the findings necessary to grant a preliminary injunction. Mem. 9-14. Defendants
do not attempt to argue otherwise or offer a single reason why any of those wellsupported findings was incorrect. They simply “incorporate by reference” the
arguments they made in opposition to the TRO motion. Opp. 13. But the Court
did not find those arguments persuasive last week, and they have not grown more
so in the intervening days. Because the standards for issuing a TRO and a
2

preliminary injunction are “substantially identical,” Op. 27 (citing Stuhlbarg Int’l
Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001)), a
preliminary injunction restraining Sections 2 and 6 is appropriate.
Defendants nonetheless suggest that Plaintiffs bear some additional “burden
of proof,” or must present “additional * * * evidence,” to support issuance of a
preliminary injunction. Opp. 1, 9. That is just not true. Where the record has not
changed in the interim, courts regularly convert TROs to preliminary injunctions
without any additional showing by the plaintiff. See, e.g., LFP IP LLC v. Midway
Venture LLC, 2010 WL 4395401, at *2 (C.D. Cal. Oct. 29, 2010) (converting TRO
to preliminary injunction because “the Court has no reason to doubt its previous
findings”); Productive People, LLC v. Ives Design, 2009 WL 1749751, at *3 (D.
Ariz. June 18, 2009) (“Because Defendants have given the Court no reason to alter
the conclusions provided in its [Temporary Restraining] Order * * * the Court will
enter a preliminary injunction.”); Fla. Democratic Party v. Scott, 2016 WL
6080225, at *1 (N.D. Fla. Oct. 12, 2016) (“Nothing has changed since * * * this
Court issued the Temporary Restraining Order * * * [a]nd for those same reasons, a
preliminary injunction * * * is appropriate.”). There is certainly no requirement
that Plaintiffs present new evidence at the preliminary injunction stage—although
Plaintiffs have in fact done so, adding to the record (among other things) President
Trump’s admission that the revised Executive Order was merely “a watered-down

3

version of the first” (Dkt. 239-1, at 7), an extraordinarily telling statement
Defendants inexplicably wave away as a “fact[] on which th[e] Court should [not]
rely,” Opp. 21.
Courts routinely issue preliminary injunctions on the kinds of evidence
Plaintiffs have submitted: publicly available documents, see, e.g., Ticketmaster
L.L.C. v. RMG Techs., Inc., 507 F. Supp. 2d 1096, 1114–15 (C.D. Cal. 2007), and
the “well-pleaded allegations of [Plaintiffs’] complaint and uncontroverted
affidavits,” G.G. ex rel. Grimm v. Gloucester Cnty. Sch. Bd., 822 F.3d 709, 725–26
(4th Cir.), remanded on other grounds, No. 16-273, 2017 WL 855755 (U.S. Mar.
6, 2017). This is especially true where, as here, the defendants “have not provided
any facts contradicting” the plaintiff’s evidence. Arch Ins. Co. v. Sierra Equip.
Rental, Inc., No. CIV S-12-0617 KJM, 2012 WL 5897327, at *5 (E.D. Cal. Nov.
13, 2012). Indeed, the Ninth Circuit relied on substantially the same evidence in
upholding the injunction in Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017),
which it treated as a preliminary injunction. Id. at 1559.
Defendants claim (Opp. 9) that Rule 65(b) “contemplates” some additional
proceedings between the TRO stage and the preliminary injunction. Remarkably,
Defendants neglect to inform the Court that Rule 65(b) by its plain text—which
Defendants excise from their quotation—refers only to circumstances in which a
TRO is issued “without written or oral notice to the adverse party.” Fed. R. Civ.

4

P. 65(b)(1); accord id. 65(b)(2) & (b)(3) (referring to an “order issued without
notice”); see also 11A Charles Alan Wright et al., Fed. Practice & Proc. § 2953 (3d
ed.) (describing procedures required by Rule 65(b)(2) when a TRO is “issued
without notice”); Granny Goose Foods, Inc. v. Bhd. of Teamsters & Auto Truck
Drivers Local No. 70, 415 U.S. 423, 442–443 (1974) (describing requirements
where “a temporary restraining order is granted without notice” (quoting Fed. R.
Civ. P. 65(b))).
When a defendant has “actually received notice of the application for a
restraining order,” and “there has been [a] hearing,” the law makes clear that a
TRO can simply “be treated as a preliminary injunction.” Wright et al., supra,
§ 2951. That is why the Ninth Circuit, as well as Judge Brinkema and Judge
Chuang, deemed it appropriate to issue or affirm a preliminary injunction
immediately after adversarial briefing and a hearing. See Washington v. Trump,
847 F.3d 1151, 1158 (9th Cir. 2017) (deeming TRO a preliminary injunction in
part because “[t]he parties vigorously contested the legal bases for the TRO in
written briefs and oral arguments before the district court.”); International Refugee
Assistance Project v. Trump, -- F. Supp. 3d --, 2017 WL 1018235, at *1 (D. Md.
Mar. 16, 2017); Aziz v. Trump, -- F. Supp. 3d --, 2017 WL 580855, at *1 (Feb. 13,
2017).

5

Defendants are also wrong to claim (Opp. 11) that courts “routinely” narrow
the scope of relief between a TRO and a preliminary injunction. In each case
Defendants cite, relief was narrowed because there was some changed
circumstance between the first injunction and the second. In Service Employees
International Union v. Roselli, 2009 WL 2246198 (N.D. Cal. July 27, 2009), the
court noted that it had “the benefit of a record of three months of discovery.” Id. at
*2. In Luxottica Grp. S.p.A. v. Light in the Box Ltd., 2016 WL 6092636 (N.D. Ill.
Oct. 19, 2016), the parties conducted “discovery,” put on “witness testimony,” and
entered “stipulations” that showed the plaintiff lacked evidence to support the
allegations on which the TRO rested. Id. at *2, *9. And in In re Adelphia
Commc’ns Corp., 2006 WL 1529357 (Bankr. S.D.N.Y. June 5, 2006), the TRO
had been entered ex parte. See id. at *1. It is telling that despite scouring district
courts across the country, Defendants are unable to find a single case in which a
court narrowed the scope of preliminary relief merely because the defendant
wished to make new arguments it neglected to include in its TRO briefing.
Finally, Defendants protest that Plaintiffs mischaracterize their briefs by
saying that Defendants “failed to argue the appropriate scope of any TRO that the
Court might issue.” Opp. 7 (citing Mem. 15). But it is Defendants who are doing
the mischaracterizing here. Plaintiffs accurately pointed out (on that very page)
that while Defendants proposed other means of narrowing the injunction in their

6

initial TRO briefing, they did not suggest this one. Rather, Defendants now “ask
the Court to make a distinction”—limiting the injunction to section 2(c)—“that the
Federal Defendants’ previous briefs and arguments never did.” (Dkt. 229).
And in the end, that is all Defendants’ Opposition is about. Having failed to
convince the Court to “clarify” the TRO to say something it obviously did not
(Dkt. 227), Defendants now try to get to the same end by asking the Court to
“revisit” questions it already decided, Opp. 10. However styled, this effort
supposes that the Court somehow erred in enjoining Sections 2 and 6 of the
President’s unconstitutional order. It did not. The Court closely considered every
argument Defendants raised and rightly rejected them all. Because nothing has
changed since the Court’s TRO decision that would warrant revisiting those
conclusions, the Court’s findings should be reaffirmed, and its temporary order
converted into a preliminary injunction.
II.

The Scope Of The Injunction Should Not Be Narrowed.
Even if the Court accepted Defendants’ invitation to reexamine the scope of

the injunction, their arguments are meritless. Defendants ask the Court to deny
Plaintiffs standing by ignoring its prior opinions, the Ninth Circuit’s opinion in
Washington, and the plain words of Plaintiffs’ declarations. And they invite the
Court to flout precedent by limiting the applicability of this Court’s well-grounded
Establishment Clause holding. Both lines of argument are wrong.

7

A.

Plaintiffs Have Standing To Challenge Sections 2 And 6 In Their
Entirety.

Ruling on Defendants’ standing arguments is simple; the Court has already
done it twice. Just ten days ago, the Court held, without qualification, that
“Plaintiffs meet the threshold Article III standing requirements” to challenge both
Section 2 and Section 6. Op. 16. It noted that Dr. Elshikh “declares that the
effects of the Executive Order”—the whole Order—“are ‘devastating to me, my
wife and children” because it “sends a message to [Muslims] that they are
outsiders” and “targets Muslim citizens because of their religious views.” Id. at
24-25. And it observed that “a decision enjoining portions of the Executive
Order”—plural—“would redress that injury.” Id. at 25 (emphasis added). It then
exercised jurisdiction to enjoin “Sections 2 and 6” together. Id. at 42. Defendants
then spent much of their improper motion to “clarify” the injunction rehashing its
standing arguments, to no better effect.
Now Defendants urge for the third time (Opp. 19) that Dr. Elshikh’s
standing is entirely derivative of the harms to his “mother-in-law.” For the third
time, Defendants must be told that “is not true.” Op. 26; Dkt. 228, at 6. “Dr.
Elshikh alleges direct, concrete injuries to both himself and his immediate family
that are independent of his mother-in-law’s visa status.” Op. 26. And contrary to
Defendants’ representation (Opp. 18), those alleged harms are not limited to “the
suspension-of-entry provision” in Section 2. Dr. Elshikh’s declaration discusses at
8

length the harms inflicted by “the Executive Order” as a whole and “the message”
in “convey[s]” to him, his family, and his mosque. Op. 24; see, e.g., Dkt. 66-1 ¶ 4
(describing “knowledge” that the government would “discriminate” based on
“religious beliefs”); id. ¶ 7 (referring to the impression that the Order “targets
Muslim citizens because of their religious views”). The complaint, moreover,
states that “Sections 2 and 6 of President Trump’s March 6, 2017 Executive Order
are intended to disfavor Islam.” SAC ¶ 107; see also id. ¶ 90.
Defendants assert that they cannot see how the Order’s various refugee
provisions and its “internal-facing” requirements “could have injured” Dr. Elshikh.
Opp. 20, 25-26. But Dr. Elshikh’s claim is that all of these provisions are part of
the President’s policy of discrimination, and all of them convey the message that
Muslims are outsiders and threats to national security. That is unquestionably
sufficient to establish an Establishment Clause injury. See Catholic League for
Religious & Civil Rights v. City & Cnty. of San Francisco, 624 F.3d 1043, 1048
(9th Cir. 2010) (en banc) (holding that “adherents to a religion have standing to
challenge an official condemnation by their government of their religious views”).
Defendants may attempt to refute Plaintiffs’ claims about purpose and the message
conveyed, but that is their defense on the merits, not a basis for denying Dr.
Elshikh standing to raise the claim.

9

Defendants are also wrong in claiming that Hawai‘i lacks standing to
challenge Sections 2 and 6 in their entirety, although the Court need not decide that
question to convert the TRO. See Preminger v. Peake, 552 F.3d 757, 764 (9th Cir.
2008) (“‘[O]nce the court determines that one of the plaintiffs has standing, it need
not decide the standing of the others.’”). Defendants assert (Opp. 15-16) that the
State’s only proffered basis for standing is the effect of Section 2(c) on its
universities and tourism industry. Not so. The State, like Dr. Elshikh, alleges that
Section 2 and Section 6 are part of an unconstitutional establishment of religion,
SAC ¶¶ 106-110—a claim that the State has standing to raise both in its own right,
see Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1, 49 (2004) (Thomas, J.,
concurring in the judgment), and on behalf of its University’s students and
professors, see Washington, 847 F.3d at 1160 n.4 (holding that States had standing
to bring an Establishment Clause challenge to original Order’s refugee provisions
because the “the States [were] asserting the [Establishment Clause] rights of their
students and professors”). Nor should the harm to the University be easily
dismissed, particularly because it is currently admissions season.
The State has also asserted a quasi-sovereign interest in protecting residents
who have a relationship with refugees abroad (Dkt. 65-1, at 39-40, 49), a basis for
standing expressly endorsed by the Ninth Circuit, see Washington, 847 F.3d at

10

1165 (finding that States had standing to challenge the prior Order’s deprivation of
“procedures [otherwise] provided by federal statute for refugees seeking asylum”).
Moreover, Hawai‘i has alleged harms to its proprietary interests that flow
from provisions of the Order other than Section 2(c). The State has described the
chilling effect the Order as a whole will inflict to its tourism economy—especially
the provisions in Section 2 that contemplate the addition of more countries. See
SAC ¶¶ 100-10; Dkt. 66-6 ¶¶ 6-10. This Court relied on that evidence to support
its finding about the State’s standing. Op. 20-21. Such pocketbook harms are
sufficient to confer standing; as the Supreme Court reaffirmed earlier this week,
“[f]or standing purposes, a loss of even a small amount of money is ordinarily an
‘injury,’ ” particularly in “the Establishment Clause” context. Czwewski v. Jevic
Holding Corp., -- S. Ct. --, 2017 WL 1066259, at *9 (Mar. 22, 2017). In any
event, courts have consistently held that the sort of Establishment Clause injury
inflicted by the Order irreparably harms plaintiffs. Op. 40 (collecting cases).
B.

The Merits Dictate That The Injunction Should Cover Sections 2
and 6.

Defendants dedicate the bulk of their “merits” argument to the contention
that the injunction should be narrowed because Plaintiffs are not likely to succeed
on their Establishment Clause challenge. As a preliminary matter, that completely
ignores the fact that Sections 2 and 6 could also be enjoined based on additional

11

statutory and constitutional grounds this Court has not yet reached. But it need not
reach them now either. Defendants’ argument veers off course at every turn.
1.

The Establishment Clause violation requires enjoining
Section 6.

Defendants begin by asserting (Opp. 21) that the factual record “fails to
support” the conclusion that Section 6 “was motivated by discriminatory animus
toward Muslims.” This Court has already flatly rejected that contention, holding
that the record “includes significant and unrebutted evidence of religious animus
driving the promulgation of the Executive Order and its related predecessor.” Op.
33. That animus is readily apparent with respect to Section 6. See Mem. 17-20.
For example, on the day the first Order was announced, the President stated that it
was designed to favor Christian refugees over Muslims, a statement made all the
more salient by the President’s recent declaration that the new Order is a “watereddown version” of the first.
Defendants contend (Opp. 21) that public statements like these are not “even
relevant to Section 6” and that the Court should instead look to the text. That is
factually and legally incorrect. The President’s statements about his “watereddown” Order were not limited in applicability; he made them in response to this
Court’s TRO, which expressly applied to both Sections 2 and 6. And the
statements are legally relevant. This Court, the Ninth Circuit, and the Supreme
Court, have all confirmed that in the Establishment Clause context, “evidence of
12

purpose beyond the face of the challenged law may be considered.” Op. 32
(quoting Washington, 847 F.3d at 1167 (citing Church of Lukumi v. City of
Hialeah, 508 U.S. 520, 534 (1993))); see also e.g., Hernandez v. CIR, 490 U.S.
680, 696 (1989) (facially neutral policy “born of animus” to one faith cannot
withstand scrutiny); Town of Greece, N.Y. v. Galloway, 134 S. Ct. 1811, 1824
(2014) (considering whether policy was prompted by “aversion or bias” in
Establishment Clause context); id. at 1831 (Alito, J., concurring) (an otherwise
constitutional policy would likely be unconstitutional if it were done with a
“discriminatory intent”); cf. Rostker v. Goldberg, 453 U.S. 57, 70 (1981) (holding
that even in the national security context “deference does not mean abdication” and
affirming constitutionality of selective service statute only after examining its
legislative history).
Defendants next attempt to distinguish Lukumi’s express holding that even a
facially neutral provision of a policy motivated by religious animus must be
invalidated. They contend (Opp. 23) that Lukumi held that the ordinances were not
severable because “there was no evidence” that they were passed for a
nondiscriminatory reason. But Lukumi itself says only that a nondiscriminatory
purpose was “implausible,” and the same can be (and has been) easily said of the
new Executive Order, including Section 6. 508 U.S. at 540; see Church of
Scientology v. City of Clearwater, 2 F.3d 1514, 1551 (11th Cir. 1993) (holding that

13

a “predominantly * * * sectarian motive” requires that a court “permanently
enjoin[ ]” an ordinance as a whole; severance is possible only in the absence of
such motive). Defendants assert that this Order is distinguishable from the
ordinances in Lukumi either because the “entire Order” is “neutral with respect to
religion” (Opp. 22 n.13) or because Lukumi did not consider how to tailor an
injunction to the particular harms of the plaintiffs (Opp. 23 n.15). These
arguments appear in footnotes for a reason: This Court’s opinion thoroughly
explained why the Order is not neutral with respect to religion, and even if
Defendants simply mean that there is no overt sign of discrimination on the face of
the Order, that is wrong. Plaintiffs have repeatedly explained that the Order’s
improper purpose is apparent even without looking at extrinsic evidence: The
Order singles out Muslim-majority nations for targeting, it bans refugees at a time
when the publicized refugee crisis is focused on Muslim-majority nations, it uses
words such as “honor killings” that are associated with the Muslim faith, and the fit
between its stated secular purpose and its policy is both over- and under-inclusive.
As to tailoring, Plaintiffs have it backwards. Tailoring does not require a
court to leave new and unconstitutional policies in place; the purpose of a
preliminary injunction is to maintain the “status quo,” Op. 27—that is, the rights in
existence before the unconstitutional order was signed. And Plaintiffs are harmed
so long as any of the stigmatizing Order is in place. That conclusion is not altered

14

by Plaintiffs’ choice to challenge only Sections 2 and 6. Plaintiffs have never
conceded that the remainder of the Order is constitutional or is motivated by
something other than animus. Rather, Plaintiffs elected to focus their resources on
the most harmful and clearly discriminatory provisions in the Order. It would turn
the law’s preference for tailored relief on its head to require parties to request
injunctive relief with respect to all of their harms in order to get relief for any of
them.
Defendants’ arguments with respect to Section 6(b) fare no better.
Defendants claim (Opp. 24) that Plaintiffs have not explained why the refugee cap
should be enjoined, and that Plaintiffs have merely observed that Section 6 as a
whole is an “integrated” unit that is part of an Executive Order “motivated by
animus.” But that is the explanation of why Section 6(b) must be enjoined: It is
part and parcel of a provision designed to exclude refugees as a means of
implementing a broader policy of religious discrimination. Mem. 16. And, again,
it strains credulity to contend that the Establishment Clause permits Defendants to
keep in place a provision designed to cap refugees that is part of a “watered-down”
version of a policy that—in its first incarnation—explicitly discriminated against
refugees based on faith.

15

2.

Recent case law does not suggest otherwise.

Defendants point to three recent judicial opinions in an attempt to prop up
their arguments, to no avail. First, Defendants assert that the recent District Court
decision in Washington v. Trump, 2017 WL 1045950 (W.D. Wash. Mar. 16, 2017),
suggests that the new Executive Order is fundamentally different from the first.
But the Order they cite explicitly states that it “makes no ruling as to whether
Defendants accomplished” the goal of “eliminat[ing] [the] constitutional defects”
that plagued the first Order. Id. at *3. Second, they cite Sarsour v. Trump, No. 17cv-00120-AJT-IDD (ED. Va. Mar. 24, 2017). Of course, an out-of-circuit decision
from a different district court is not precedential. And even Sarsour does not deny
that there was sufficient evidence to enjoin the first Executive Order under the
Establishment Clause. (Dkt. 251-1, at 3, 21-22.) This Court and a Maryland
District Court recently held that the Second Order suffers the same defect, and for
good reason.1 As the President himself confirmed, the new Order is motivated by
precisely the same policy as the old. “Watering down” its provisions cannot
cleanse its discriminatory purpose.

1

To be sure, the Maryland court enjoined only Section 2(c), but not because it
doubted that the remainder of that Section and Section 6 could be enjoined. The
Court held only that, on the record in that case, those plaintiffs had not
“sufficiently develop[ed]” their arguments to apply to Sections 2 and 6 as a whole.
2017 WL 1018235, at *17. That determination has no significance for this Court.
16

Third, Defendants point (Opp. 23 n.14) to a set of dissents from denial of
rehearing en banc in Washington v. Trump. This is a curious citation given that—
as another Ninth Circuit judge explained—these dissents reflect the views of a
“small group of judges, having failed in their effort to undo.” (Dkt. 251-2, at 1
(Reinhardt, J., concurring).) They have no binding effect on anyone.
Nor does disagreeing with the Sarsour Court and en banc dissenters suggest
that the President is forever unable to make effective immigration policy. As this
Court correctly recognized, the Establishment Clause taint may be lifted by
“genuine changes in constitutionally significant conditions.” Op. 38. But
Defendants have done nothing to demonstrate a “genuine” change of purpose here.
They have not, for example, asked Congress—the body with constitutional
responsibility for immigration—to enact statutes or otherwise become involved in
its sweeping immigration reform. Instead, the Executive has overridden
Congress’s express judgment that conditions in the six designated countries are
best handled by exempting those countries from the visa waiver program. (See
Dkt. 145, at 41 (acknowledging that the President had a different view of how to
deal with the same circumstances).)
Similarly, after the first Order was invalidated, the Administration did not
announce an effort to study and explore how to sculpt its policy to address national
security concerns within constitutional boundaries. Instead, it announced a plan to

17

make only “technical” changes to the Order designed to get around a “bad
decision,” and it ignored two memos from the DHS suggesting that the policy
embodied in the Executive Order did not effectively combat terrorism. Op. 13.
Further, any claims that the Administration’s hands are tied are belied by the recent
enactment of the laptop ban for passengers on airlines departing from certain
Muslim-majority countries. See Suppl. Katyal Decl. Exs. D, E. Plaintiffs readily
acknowledge that policies like that one, justified with respect to a particular (even
if unspecified) new threat, implemented without accompanying statements of
animus towards Islam, and in harmony with Congressional policies and the
policies of our allies, raise no constitutional concerns. The same is true of the vast
majority of policies that lack one or more of these features. This Order lacks all of
them. It is, as the Court aptly stated, “unique.”
3.

This Court should not parse Sections 2 and 6.

Finally, Defendants contend (Opp. 25-29) that, at a minimum, the provisions
of Sections 2 and 6 that do not ban or cap admission should be excluded from the
injunction. That again ignores the fact that allowing implementation of any
provision of those sections permits Defendants to inflict a policy born of animus on
its citizens. Defendants’ arguments on this point also misunderstand the law with
respect to injunctions. Defendants claim that enjoining the consultation and
reporting provisions of Sections 2 and 6 will altogether prevent the Executive from

18

undertaking a necessary review of its vetting procedures. But, as Plaintiffs
explained in their motion, enjoining Section 2 and 6 does not prevent Defendants
from undertaking a review of their immigrations vetting systems, it merely
prevents them from doing so under the auspices of a discriminatory policy. A
court order barring the implementation of conduct motivated by religious animus
does not also bar conduct undertaken as part of a separate, neutral policy. These
distinctions are elementary. Notably, they are also ones that Defendants
themselves have made explicitly with respect to the injunction in Washington (see
Opp. 5-6; Washington v. Trump, No. 17-cv-141 (W.D. Wash. Mar. 14, 2017), ECF
No. 146), and implicitly by implementing increased vetting procedures worldwide
while the current injunctions of the Order are in place. See Suppl. Katyal Decl. Ex.
F.
CONCLUSION
For the foregoing reasons, the Court should convert the TRO into a
preliminary injunction prohibiting Defendants from enforcing or implementing
Sections 2 and 6 of the Executive Order across the Nation.

DATED: Washington, D.C., March 25, 2017.
Respectfully submitted,

19

/s/ Neal K. Katyal
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)
DONNA H. KALAMA (Bar No. 6051)
KIMBERLY T. GUIDRY (Bar No. 7813)
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

20

NEAL K. KATYAL*
COLLEEN ROH SINZDAK*
MITCHELL P. REICH*
ELIZABETH HAGERTY*
THOMAS P. SCHMIDT*
SARA SOLOW*
ALEXANDER B. BOWERMAN*
HOGAN LOVELLS US LLP
*Admitted Pro Hac Vice
Attorneys for Plaintiffs, State of
Hawai‘i and Ismail Elshikh