State of Hawaii v. Trump

Filing 368

MOTION for Temporary Restraining Order Neal Katyal appearing for Plaintiff State of Hawaii (Attachments: #1 Memorandum in Support of Plaintiffs' Motion for Temporary Restraining Order, #2 Exhibit Proposed Order, #3 Certificate of Service)(Katyal, Neal)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII

STATE OF HAWAII and ISMAIL
ELSHIKH,
Plaintiffs,
v.
DONALD J. TRUMP, in his official
capacity as President of the United States;
U.S. DEPARTMENT OF HOMELAND
SECURITY; ELAINE DUKE, in her
official capacity as Acting 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,

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

Defendants.

MEMORANDUM IN SUPPORT OF PLAINTIFFS’ MOTION FOR
TEMPORARY RESTRAINING ORDER

TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ................................................................................... iii
INTRODUCTION ..................................................................................................... 1
FACTUAL BACKGROUND .................................................................................... 2
A.

The First and Second Executive Orders .................................................... 2

B.

The Third Executive Order ....................................................................... 4

C.

The Effects of EO-3 on Plaintiffs ............................................................. 6
1.

The State of Hawaii .......................................................................... 6

2.

The Individual Plaintiffs .................................................................. 8

3.

The Muslim Association of Hawaii ................................................. 9

ARGUMENT ........................................................................................................... 10
A.

Plaintiffs Are Likely To Succeed On The Merits Of Their
Claims ....................................................................................................... 11
1.

The Order Is Reviewable ............................................................... 11

2.

EO-3 Violates the Immigration and Nationality Act ..................... 13
a.

EO-3 Violates the INA’s Prohibition on
Nationality-Based Discrimination ....................................... 13

b.

EO-3 Violates Section 1182(f) ............................................. 18
i.

ii.
3.

EO-3 does not adequately “find” that
entry “would be detrimental to the
interests of the United States” ................................... 18
EO-3 exceeds the longstanding limits on
the President’s § 1182(f) power................................. 22

EO-3 Violates the Establishment Clause ....................................... 30

i

B.

The Remaining TRO Factors Are Met ..................................................... 34

C.

The Court Should Issue A Nationwide Injunction ................................... 35

CONCLUSION ........................................................................................................ 37

ii

TABLE OF AUTHORITIES
Page(s)
CASES:
Am. Trucking Ass’ns, Inc. v. City of L.A.,
559 F.3d 1046 (9th Cir. 2009) ............................................................................ 34
Ariz. Christian Schs. Tuition Org. v. Winn,
563 U.S. 125 (2011) ............................................................................................ 12
Arizona v. United States,
567 U.S. 387 (2012) ......................................................................................22, 27
Armstrong v. Exceptional Child Ctr., Inc.,
135 S. Ct. 1378 (2015) ........................................................................................ 11
Burlington Truck Lines, Inc. v. United States,
371 U.S. 156 (1962) ............................................................................................ 19
Carlson v. Landon,
342 U.S. 524 (1952) ............................................................................................ 24
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah,
508 U.S. 520 (1993) ......................................................................................11, 33
Dada v. Mukasey,
554 U.S. 1 (2008) ................................................................................................ 14
Dames & Moore v. Regan,
453 U.S. 654 (1981) ......................................................................................12, 26
Galvan v. Press,
347 U.S. 522 (1954) ............................................................................................ 22
Hawaii v. Trump,
241 F. Supp. 3d 1119 (D. Haw. 2017) ......................................................3, 31, 34
Hawaii v. Trump,
245 F. Supp. 3d 1227 (D. Haw. 2017) ................................................................ 30
Hawaii v. Trump,
859 F.3d 741 (9th Cir. 2017) .......................................................................passim
iii

INS v. Nat’l Ctr. for Immigrants’ Rights, Inc.,
502 U.S. 183 (1991) ............................................................................................ 24
INS v. St. Cyr,
533 U.S. 289 (2001) ............................................................................................ 27
Int’l Refugee Assistance Project v. Trump,
241 F. Supp. 3d 539 (D. Md. 2017) ...................................................................... 3
Int’l Refugee Assistance Project v. Trump,
857 F.3d 554 (4th Cir. 2017) .......................................................................... 4, 17
Jama v. Immigration and Customs Enforcement,
543 U.S. 335 (2005) ............................................................................................ 27
Jean v. Nelson,
472 U.S. 846 (1985) ......................................................................................16, 24
Kent v. Dulles,
357 U.S. 116 (1958) ................................................................................22, 23, 26
Kerry v. Din,
135 S. Ct. 2128 (2015) ........................................................................................ 29
Kim Ho Ma v. Ashcroft,
257 F.3d 1095 (9th Cir. 2001) ......................................................................23, 24
Kleindienst v. Mandel, 408 U.S. 753 (1972) ........................................................... 30
Legal Assistance for Vietnamese Asylum Seekers (“LAVAS”) v. Dep’t
of State, 45 F.3d 469 (D.C. Cir. 1995) ..............................................12, 13, 15, 16
Loving v. Virginia,
388 U.S. 1 (1967) ................................................................................................ 17
Mahler v. Eby,
264 U.S. 32 (1924) ........................................................................................24, 26
McCreary Cty. v. ACLU,
545 U.S. 844 (2005) ......................................................................................31, 33
Melendres v. Arpaio,
695 F.3d 990 (9th Cir. 2012) .............................................................................. 34

iv

Nken v. Holder,
556 U.S. 418 (2009) ............................................................................................ 36
Olsen v. Albright,
990 F. Supp. 31 (D.D.C. 1997) ........................................................................... 16
RadLAX Gateway Hotel, LLC v. Amalgamated Bank,
132 S. Ct. 2065 (2012) ........................................................................................ 15
Romero v. INS,
39 F.3d 977 (9th Cir. 1994) ................................................................................ 24
Sale v. Haitian Centers Council, Inc.,
509 U.S. 155 (1993) ............................................................................................ 12
Santa Fe Indep. Sch. Dist. v. Doe,
530 U.S. 290 (2000) ............................................................................................ 35
Sekhar v. United States,
133 S. Ct. 2720 (2013) ........................................................................................ 26
Sierra Club v. Bosworth,
510 F.3d 1016 (9th Cir. 2007) ............................................................................ 35
Trump v. Int’l Refugee Assistance Project,
137 S. Ct. 2080 (2017) .......................................................................................... 4
United Dominion Indus., Inc. v. United States,
532 U.S. 822 (2001) ............................................................................................ 15
United States v. Juvenile Male,
670 F.3d 999 (9th Cir. 2012) .............................................................................. 15
United States v. Witkovich,
353 U.S. 194 (1957) ............................................................................................ 23
Util. Air Regulatory Grp. v. EPA,
134 S. Ct. 2427 (2014) ........................................................................................ 35
Washington v. Trump,
847 F.3d 1151 (9th Cir. 2017) .....................................................................passim

v

Winter v. Nat. Res. Def. Council, Inc.,
555 U.S. 7 (2008) ................................................................................................ 10
Wong Wing Hang v. INS,
360 F.2d 715 (2d Cir. 1966) ............................................................................... 17
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) ............................. 29
Zadvydas v. Davis,
533 U.S. 678 (2001) ............................................................................................ 23
Zemel v. Rusk,
381 U.S. 1 (1965) .........................................................................................passim
STATUTES:
5 U.S.C. §  702 ......................................................................................................... 11
8 U.S.C. § 1152(a) ............................................................................................passim
8 U.S.C. §  1182(a)(3)(B)......................................................................................... 29
8 U.S.C. §  1182(f) ............................................................................................passim
8 U.S.C. §  1185(a)(1) .............................................................................................. 15
8 U.S.C. §  1187(a)(12) ............................................................................................ 29
8 U.S.C. §  1361 ....................................................................................................... 20
Act of June 21, 1941, 55 Stat. 252 ........................................................................... 25
Foreign Relations Authorization Act,
Fiscal Year 1978, Pub. L. 95-105, §  511 (1977) ............................................... 27
Pub. L. 107-173 (2002) ............................................................................................ 28
Pub. L. 110-53 (2007) .............................................................................................. 28
Haw. Rev. Stat. Ann. § 368-1 .................................................................................... 8
Haw. Rev. Stat. Ann. § 378-2 .................................................................................... 8
Haw. Rev. Stat. Ann. § 489-3 .................................................................................... 8

vi

Haw. Rev. Stat. Ann. § 515-3 .................................................................................... 8
CONSTITUTIONAL PROVISIONS:
U.S. Const. art. I, § 8, cl. 4 ....................................................................................... 36
Hawaii Const. art. I, §  4 ............................................................................................ 8
LEGISLATIVE MATERIALS:
87 Cong. Rec. 5051 (1941) ...................................................................................... 19
87 Cong. Rec. 5326 (1941) ...................................................................................... 25
H.R. Rep. No. 77-754 (1941)................................................................................... 24
H.R. Rep. No. 89-745 (1965).............................................................................14, 16
REGULATIONS AND EXECUTIVE MATERIALS:
22 C.F.R. §  58.53 (1945)......................................................................................... 25
Exec. Order No. 12,807 (1992) ................................................................................ 27
Exec. Order No. 13,606 (2012) ................................................................................ 27
Exec. Order No. 13,712 (2015) ................................................................................ 26
Exec. Order No. 13,769, 82 Fed. Reg. 8,977 (Feb. 1, 2017) ................................. 2, 3
Exec. Order No. 13,780, 82 Fed. Reg. 13,209 (Mar. 9, 2017) .................................. 3
Exec. Order No. 13,810, 82 Fed. Reg. 44,705 (Sept. 25, 2017) .............................. 10
Proc. 1473 (1918) ..................................................................................................... 24
Proc. 2523 (1941) ..................................................................................................... 25
Proc. 5517 (1986) ..................................................................................................... 27
OTHER AUTHORITIES:
Cong. Research Serv., Executive Authority to Exclude Aliens:
In Brief (2017)..................................................................................................... 27

vii

Letter from Noel J. Francisco, Solicitor Gen., United States Dep’t of
Justice, to Scott S. Harris, Clerk, Supreme Court of the United
States (Oct. 5, 2017) ............................................................................................. 6
U.S. Dep’t of State, Directory of Visa Categories,
https://goo.gl/c1t3P3 ........................................................................................... 21
U.S. Reply Br., Trump v. Hawaii, No. 16-1540 (U.S. Oct. 4, 2017) ...................... 14

viii

INTRODUCTION
On September 24, 2017, the President issued a proclamation that imposes an
indefinite nationality-based ban on travel and targets an overwhelmingly Muslim
population. The President has fulfilled his prior promises: He has issued a “larger,
tougher, and more specific”1 version of the travel ban that this Court and the Ninth
Circuit found violative of the Nation’s laws and most basic constitutional
commitments.
It should come as little surprise, then, that the new order replicates all of the
legal flaws evident in its precursors. It again openly “discriminate[s] * * * in the
issuance of an immigrant visa because of * * * nationality.” 8 U.S.C.
§ 1152(a)(1)(A). It still fails, despite its elaborate rationalizations, to make any
“find[ing]” remotely adequate to support its sweeping ban of millions of foreign
nationals. Id. § 1182(f). It exceeds the limits on the President’s exclusion
authority that have been recognized for nearly a century, by supplanting
Congress’s immigration policies with the President’s own unilateral and indefinite
ban. And it continues to effectuate the President’s unrepudiated promise to
exclude Muslims from the United States.

1

See [Proposed] Third Amended Complaint (“Compl.”) ¶ 87 (quoting statements
President Trump made on Twitter nine days before the new order was released).
1

These same defects led this Court and the Ninth Circuit to enjoin the old
travel ban, thereby preserving the fundamental boundaries of our immigration laws
and our constitutional scheme, and vindicating the Judiciary’s role as guardian of
our Nation’s liberties and the rule of law. Plaintiffs the State of Hawaii and Dr.
Ismail Elshikh, as well as prospective Plaintiffs John Does 1 and 2 and the Muslim
Association of Hawaii (the “Association”), respectfully ask this Court to do so
again.2 They request that the Court restore the rights that the laws and Constitution
afford them, protect their institutions and their dignity, and enjoin this illegal and
unconstitutional order.
FACTUAL BACKGROUND
A. The First and Second Executive Orders
By now, this Court is well familiar with the background of this case. For
over a year, then-candidate Donald J. Trump campaigned on a promise to enact a
“total and complete shutdown on all Muslims entering the United States.” Compl.
¶¶ 52-64. Just one week after taking office, he made good on that promise, signing
an executive order entitled “Protecting the Nation From Foreign Terrorist Entry
Into the United States” (“EO-1”). Id. ¶¶ 65-66; see Exec. Order No. 13,769, 82

2

The State of Hawaii and Dr. Elshikh are already Plaintiffs in this suit. John Does
1 and 2 and the Muslim Association of Hawaii are named parties to the Third
Amended Complaint that is the subject of a concurrently filed motion for leave to
file a Third Amended Complaint.
2

Fed. Reg. 8,977 (Feb. 1, 2017). The order was almost immediately enjoined by
multiple courts, including the U.S. District Court for the Western District of
Washington in an injunction that was upheld by the Ninth Circuit. See Washington
v. Trump, 847 F.3d 1151, 1169 (9th Cir. 2017) (per curiam).
Rather than continue defending EO-1, the Government decided to repackage
the order’s restrictions in a new guise. On March 6, 2017, the President issued a
second executive order (“EO-2”) with the same title as the first one, and virtually
identical travel and refugee bans. Compl. ¶¶ 75-80; see Exec. Order No. 13,780,
82 Fed. Reg. 13,209 (Mar. 9, 2017). In the words of Senior Advisor to the
President Stephen Miller, EO-2 achieved the “same basic policy outcome” as EO1. Compl. ¶ 76. Unsurprisingly, EO-2 met the same basic fate in the courts.
Before it could take effect, it was enjoined by this Court and the U.S. District
Court for the District of Maryland. See Hawaii v. Trump, 241 F. Supp. 3d 1119,
1140 (D. Haw. 2017); Int’l Refugee Assistance Project v. Trump, 241 F. Supp. 3d
539, 566 (D. Md. 2017).
Both orders were affirmed. The Ninth Circuit concluded that Plaintiffs were
likely to succeed on their claims for two principal reasons. First, the court found
that the President failed to comply with the “essential precondition” for invoking
Section 1182(f), by failing to make “findings” that “support[ed] the conclusion”
that a blanket ban on 180 million aliens was necessary to protect national security.
3

Hawaii v. Trump, 859 F.3d 741, 755, 770-773 (9th Cir. 2017) (per curiam).
Second, the court held that the President had plainly violated 8 U.S.C.
§ 1152(a)(1)(A) by discriminating on the basis of nationality in the issuance of
immigrant visas. Id. at 779. Meanwhile, the Fourth Circuit, sitting en banc, held
that EO-2 likely violated the Establishment Clause. Int’l Refugee Assistance
Project v. Trump (“IRAP”), 857 F.3d 554, 601 (4th Cir. 2017) (en banc).
The Supreme Court granted certiorari in both cases. Pending its review, it
rejected the Government’s request to overturn the injunctions. Instead, it left both
injunctions intact except as to persons who lacked “a credible claim of a bona fide
relationship with a person or entity in the United States.” Trump v. Int’l Refugee
Assistance Project, 137 S. Ct. 2080, 2088 (2017). The Government did not seek
expedited review, and the Court set oral argument for October 10, 2017. See id. at
2086.
B. The Third Executive Order
On September 24, 2017, just two weeks before the scheduled date for oral
argument, the President issued a proclamation entitled “Enhancing Vetting
Capabilities and Processes for Detecting Attempted Entry Into the United States by
Terrorists or Other Public-Safety Threats” (“EO-3”). Compl. ¶ 89; see also
Compl. Ex. 1 (text of EO-3). Despite the change in nomenclature, EO-3 is a direct
descendant of EO-1 and EO-2. The very first line of the Proclamation
4

acknowledges that it is the outgrowth of a process initiated and governed by EO-2.
EO-3 pmbl. And the order continues, and makes indefinite, substantially the same
travel ban that has been at the core of all three executive orders. See EO-3 § 2.
In particular, EO-3 continues to ban all immigration from five of the six
overwhelmingly Muslim countries covered by EO-2: Iran, Libya, Syria, Yemen,
and Somalia. And EO-3 swaps out the sixth Muslim-majority country, Sudan, for
another Muslim-majority country, Chad. In addition, the order prohibits all nonimmigrant visas for nationals of Syria, bars all non-immigrant visas except student
and exchange visas for nationals of Iran, and prohibits business and tourist visas
for nationals of Libya, Yemen, and Chad.
EO-3 also adds two non-Muslim countries. But both additions are almost
entirely symbolic. The order prohibits a small set of Venezuelan government
officials from traveling to the United States on business and tourist visas. EO3 § 2(f). And it bans all entry from North Korea—a country that sent fewer than
100 nationals (many of them diplomats) to the United States last year and that was
already subject to extensive bans on entry pursuant to previously-issued sanctions.
See Compl. ¶ 93 nn.57-59.3

3

EO-3 replaces only the country-based entry restrictions imposed by Section 2(c)
of EO-2. It does not disturb the limits on refugee admissions imposed by Sections
6(a) and 6(b) of EO-2, which remain partially enjoined pursuant to this Court’s
order. The Government has informed the Supreme Court, however, that it intends
5

One day after EO-3 was issued, the Supreme Court removed the case
challenging EO-2 from its oral argument calendar and ordered briefing on whether
that controversy is now moot. A decision on that question remains pending.
C. The Effects of EO-3 on Plaintiffs
In addition to replicating the content of EO-1 and EO-2, EO-3 mimics its
predecessors by inflicting the same profound harms on Plaintiffs.
1. The State of Hawaii
As a result of EO-3, the State of Hawaii will suffer numerous severe injuries
to its educational institutions, its tourism industry, and its sovereign rights.
First, EO-3 will hinder the University of Hawaii from recruiting and
retaining a world-class faculty and student body. Compl. ¶¶ 97-98; Straney Decl.
¶¶ 8-15 (Ex. F). The University has 20 students from the eight designated
countries, and has already received 5 new graduate applications from students in
those countries for the Spring 2018 Term. Straney Decl. ¶ 13. It also has multiple
faculty members and scholars from the designated countries. Compl. ¶¶ 99-100;
Straney Decl. ¶¶ 7-8.

to “undertake * * * new actions regarding refugees by October 24.” Letter from
Noel J. Francisco, Solicitor Gen., United States Dep’t of Justice, to Scott S. Harris,
Clerk, Supreme Court of the United States 6 (Oct. 5, 2017). Plaintiffs reserve the
right to seek leave to amend their complaint to challenge any such future actions,
as appropriate.
6

EO-3 will impede the University’s ability to recruit similar candidates in the
future and to retain those that they have. Some individuals will themselves be
covered by the ban on entry; others will be unwilling to accept offers or remain in
the country because the ban prevents their family members from immigrating with
them or even making brief visits. Compl. ¶¶ 97-101; Straney Decl. ¶¶ 9-14; Doe 3
Decl. ¶ 15 (Ex. C); Doe 4 Decl. ¶ 15 (Ex. D); Doe 5 Decl. ¶ 7 (Ex. E). Already, at
least two current professors have stated that they may leave the United States if
EO-3 takes effect. Doe 2 Decl. ¶¶ 8-9 (Ex. B); Doe 5 Decl. ¶¶ 9-10; see Doe 3
Decl. ¶ 14; Doe 4 Decl. ¶ 12.
EO-3 will also prevent the University from conducting events that involve
individuals from the targeted nations. For example, if EO-3 is implemented, the
University will be forced to cancel several upcoming speaking engagements by
individuals including a Syrian expert on his country’s civil war, Sharma Decl. ¶ 9
(Ex. H); a Chadian film director, id. ¶¶ 10-11; and three award-winning artists
from Syria and Iran, Chan Decl. ¶¶ 6-10 (Ex. G); see also Compl. ¶ 99.
Second, EO-3’s entry ban will strike at the backbone of Hawaii’s economy:
its tourism industry. Data from 2017 show that since EO-1 was adopted, the
number of visitors from the targeted regions has fallen every month as compared to
2016, in keeping with national trends reflecting a 44% drop in travel from the
banned countries. Compl. ¶¶ 103-106 & n.62; Szigeti Decl. ¶¶ 10-14 (Ex. J).
7

Third, because of EO-3, Hawaii will lose its sovereign right to fully
implement its policies prohibiting discrimination based on religion or nationality.
Compl. ¶¶ 108-109. Article I, § 4 of the Hawaii Constitution provides that “[n]o
law shall be enacted respecting an establishment of religion, or prohibiting the free
exercise thereof.” The State’s laws also declare “that the practice of discrimination
because of race, color, religion, age, sex, including gender identity or expression,
sexual orientation, marital status, national origin, ancestry, or disability * * * is
against public policy.” Haw. Rev. Stat. § 368-1; accord id. §§ 378-2, 489-3, 5153.
2. The Individual Plaintiffs
The three individual Plaintiffs are residents of the United States who have
family members in the targeted countries. Dr. Ismail Elshikh is an American
citizen of Egyptian descent who has lived in Hawaii for over a decade. Elshikh
Decl. ¶ 1 (Ex. I). He is also the Imam of the Muslim Association of Hawaii. Id.
¶ 2. John Doe 1 is an American citizen of Yemeni descent who has lived in
Hawaii for nearly 30 years and is a member of Dr. Elshikh’s mosque. Doe 1 Decl.
¶¶ 1, 3 (Ex. A). John Doe 2 is a legal permanent resident of the United States who
is a professor at the University of Hawaii. Doe 2 Decl. ¶¶ 1-3.
All three have family members who have concrete plans to immigrate to or
visit the United States, but who will not be able to do so as a direct result of EO-3.
8

Dr. Elshikh’s brothers-in-law, who are Syrian, are in the process of applying for
visas to travel to Hawaii for their nephews’ upcoming birthday party in March
2018. Compl. ¶ 129; Elshikh Decl. ¶ 6. One of them has already submitted his
application. Elshikh Decl. ¶ 6. Doe 1’s daughter has filed a visa petition for her
husband (Doe 1’s son-in-law), a Yemeni national, to immigrate to the United
States and reunite the family. Compl. ¶ 116; Doe 1 Decl. ¶¶ 7-9. Doe 2’s mother,
an Iranian national, has applied for a tourist visa to visit her son, as have other
close relations living in Iran. Compl. ¶¶ 119-120; Doe 2 Decl. ¶ 4. EO-3 will bar
all of these relatives from coming to the United States, depriving Plaintiffs of their
company and companionship. Compl. ¶¶ 130, 135, 139.
In addition, EO-3, like its predecessors, denigrates Dr. Elshikh and Doe 1 as
Muslims. It conveys to them that they are outsiders in their own country, and
subjects them to distinct burdens because of their faith.
3. The Muslim Association of Hawaii
The Association is a mosque with members from Syria, Somalia, Iran,
Yemen, and Libya. EO-3 will hamper the mosque’s ability to welcome new
members and visitors from the affected countries, and will cause current members
to leave the country. Ouansafi Decl. ¶¶ 11-15, 18 (Ex. L). Since the mosque
“relies on contributions from its members and from visitors” to support it, “EO-3
will harm [its] finances.” Id. ¶ 19. EO-3 will also interfere with the mosque’s
9

“religious practice” of welcoming visitors from abroad. Id. ¶ 10. Moreover, the
mosque, like the individual Plaintiffs, believes that EO-3 denigrates the Muslim
faith and those who practice it. Id. ¶ 20.
Unless EO-3 is enjoined, it will go into effect at 6:01 PM HST on October
17, 2017. These harms to the State of Hawaii, the individual Plaintiffs, the
Association, and the Nation as a whole will immediately ensue.
ARGUMENT
To obtain a temporary restraining order (“TRO”) or a preliminary injunction,
a plaintiff must demonstrate that (1) it “is likely to succeed on the merits;” (2) it “is
likely to suffer irreparable harm in the absence of preliminary relief;” (3) “the
balance of equities tips in [its] favor; and” (4) “an injunction is in the public
interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). As with
the prior orders, Plaintiffs readily meet this standard.4

4

Plaintiffs do not seek to enjoin the travel ban as to North Korea and Venezuela.
The President’s September 20, 2017 order imposing additional sanctions on North
Korea already excludes “North Korean person[s]” under Section 1182(f). See
Exec. Order No. 13,810 §§ 1(a)(iv), 5, 82 Fed. Reg. 44,705, 44,705, 44,707 (Sept.
25, 2017). That separate sanctions order is not part of the present challenge.
Moreover, the current state of relations between the United States and North Korea
presents the sort of exigent circumstance that has been found to justify executive
action of this sort. See infra pp. 14-15, 28. As for Venezuela, the President’s
decision to apply the ban only to certain Venezuelan officials distinguishes the
treatment of that country from the other nations affected by the ban. The Court
therefore need not address the lawfulness of EO-3 with respect to those two
countries.
10

A. Plaintiffs Are Likely To Succeed On The Merits Of Their Claims.
1. The Order Is Reviewable.
Plaintiffs plainly satisfy the primary requirement for judicial review: Article
III standing. Like EO-1 and EO-2, EO-3 will prevent the individual Plaintiffs from
reuniting with their family members and denigrate their faith. It will diminish the
State of Hawaii’s universities, harm its tourism industry, and override its sovereign
interests. The Ninth Circuit held these injuries sufficient to establish standing with
respect to the prior orders, and the result should be the same here. Hawaii, 859
F.3d at 762-765; Washington, 847 F.3d at 1158-61. Nor is there any question that
the Muslim Association of Hawaii has standing: EO-3 reduces the Association’s
membership, diminishes the financial contributions it receives from its members,
damages its community, and impairs its religious practice of welcoming visitors
from abroad. Ouansafi Decl. ¶¶ 11-20; see Church of the Lukumi Babalu Aye, Inc.
v. City of Hialeah, 508 U.S. 520, 528 (1993) (allowing religious organization to
challenge ordinance that interfered with religious practice).
Plaintiffs also satisfy the other requirements for review. See Hawaii, 859
F.3d at 768-769; Washington, 847 F.3d at 1161-64. Individuals aggrieved by a
statutory violation have a cause of action to enjoin “violations of federal law by
federal officials.” Armstrong v. Exceptional Child Ctr., Inc., 135 S. Ct. 1378, 1384
(2015); see 5 U.S.C. § 702. In adjudicating such claims, the Judiciary may
11

determine whether “the President [has] act[ed] in contravention of the will of
Congress.” Dames & Moore v. Regan, 453 U.S. 654, 669 (1981). That is no less
true when the President is exercising powers related to immigration. In Sale v.
Haitian Centers Council, Inc., 509 U.S. 155 (1993), for instance, the Supreme
Court evaluated whether “[t]he President * * * violate[d]” various provisions of the
INA by invoking his authority under 8 U.S.C. § 1182(f) to “suspend[] the entry of
undocumented aliens from the high seas.” 509 U.S. at 158, 160. Further, as the
Ninth Circuit found, Plaintiffs are within the “zone of interests” protected by the
relevant statutes. See Hawaii, 859 F.3d at 766-767; Legal Assistance for
Vietnamese Asylum Seekers (“LAVAS”) v. Dep’t of State, 45 F.3d 469, 471-472
(D.C. Cir. 1995).
It is equally clear that the Court may review Plaintiffs’ constitutional claims:
“If an establishment of religion is alleged to cause real injury to particular
individuals, the federal courts may adjudicate the matter.” Ariz. Christian Sch.
Tuition Org. v. Winn, 563 U.S. 125, 145 (2011). And the Ninth Circuit has
repeatedly rejected the Government’s contention that the President’s actions are
immune from statutory or constitutional review because of inapposite doctrines
that restrict the review of an individualized decision to exclude an alien, not
“sweeping” Executive branch policies. Washington, 847 F.3d at 1162-63
(emphasis added); see also Hawaii, 859 F.3d at 768-769.
12

2. EO-3 Violates the Immigration and Nationality Act.
EO-3 violates both the INA and the Establishment Clause. As the Ninth
Circuit has explained, principles of constitutional avoidance make it “appropriate
to turn first to the INA claim.” Hawaii, 859 F.3d at 761. Plaintiffs therefore begin
with the President’s statutory violations.
a. EO-3 Violates the INA’s Prohibition on Nationality-Based
Discrimination.
Section 1152(a)(1)(A) provides that “no person shall receive any preference
or priority or be discriminated against in the issuance of an immigrant visa because
of * * * nationality.” 8 U.S.C. § 1152(a)(1)(A). “Congress could hardly have
chosen more explicit language” in “unambiguously direct[ing] that no nationalitybased discrimination shall occur.” LAVAS, 45 F.3d at 473. The Ninth Circuit thus
had little difficulty concluding that, by “suspending the issuance of immigrant
visas and denying entry based on nationality,” Section 2(c) of EO-2 “exceed[ed]
the restriction of § 1152(a)(1)(A) and the overall statutory scheme intended by
Congress.” Hawaii, 859 F.3d at 779.
Instead of following the Ninth Circuit’s ruling, EO-3 reenacts and makes
indefinite precisely the same policy of nationality-based discrimination that the
Ninth Circuit deemed unlawful. EO-3 once again bans immigrant visas and denies
entry based on nationality to nationals of six countries. EO-3 § 2. In doing so,
EO-3 recreates the pernicious “national origins system” that Congress sought to
13

abolish in 1965 when it enacted Section 1152(a) as part of a landmark series of
civil rights laws. See H.R. Rep. No. 89-745, at 8 (1965).
The Government has previously attempted to circumvent Section
1152(a)(1)(A)’s plain statutory bar by asserting that the President’s travel bans
discriminate with respect to “entry,” not visa issuance. The Ninth Circuit rejected
that distinction, and it is meritless for two reasons. First, EO-3 specifies that a
national of one of the targeted countries—unlike any other would-be immigrants—
must obtain a waiver in order to secure the “issuance of a visa.” EO-3 § 3(c)(iii).
It is hard to imagine a more straightforward example of nationality discrimination
in the “issuance of an immigrant visa.” 8 U.S.C. §1152(a)(1)(A). Second, the
Government’s distinction between visa issuance and entry would impermissibly
render Section 1152(a)(1)(A) a “nullity.” Dada v. Mukasey, 554 U.S. 1, 16 (2008).
It would allow the President to circumvent the statute’s limits whenever he wished
by issuing visas and then refusing to honor them at the border based on the visaholder’s nationality. Hawaii, 859 F.3d at 777.
The Government has also argued that Section 1152(a) cannot bar
nationality-based distinctions like the ones in EO-3 because that would leave the
President unable to—for example—“temporarily bar the entry of all Iranian
nationals” if he knew “that an unidentified Iranian national was seeking to enter the
country with a dirty bomb.” U.S. Reply Br. 25-26, Trump v. Hawaii, No. 16-1540
14

(U.S. Oct. 4, 2017). That is plainly false. Section 1152(a) bars “discrimination,” a
well-established term in the law that typically does not extend to restrictions
narrowly tailored to a compelling interest. LAVAS, 45 F.3d at 473. The need to
prevent an imminent terrorist attack would undoubtedly qualify. But as Judge
Sentelle has explained, the fact that Section 1152(a) may permit the Government to
draw nationality-based distinctions in the face of the “most compelling” need does
not mean that the President may make such distinctions in the ordinary course. Id.
Equally unavailing is the Government’s claim that 8 U.S.C. §§ 1182(f) and
1185(a)(1) authorize the President to override Section 1152(a)’s ban on nationality
discrimination. That contention is squarely foreclosed by every available canon of
statutory interpretation. See Hawaii, 859 F.3d at 778. Section 1152(a)(1)(A) is
more “specific” than Sections 1182(f) and 1185(a)(1). See RadLAX Gateway
Hotel, LLC v. Amalgamated Bank, 132 S. Ct. 2065, 2071 (2012). It was enacted
more than a decade later. See United States v. Juvenile Male, 670 F.3d 999, 1008
(9th Cir. 2012). And it contains several express exceptions—some of them of
surpassing obscurity—that do not include Sections 1182(f) and 1185(a)(1). See 8
U.S.C. § 1152(a)(1)(A)-(B); see also United Dominion Indus., Inc. v. United
States, 532 U.S. 822, 836 (2001). Moreover, as the Ninth Circuit observed, no
“prior executive order[] [or] proclamation[]” has “suspend[ed] classes of aliens on

15

the basis of national origin”; every example the Government has attempted to
muster is easily distinguishable. Hawaii, 859 F.3d at 778-779.
Thus, Section 1152(a) plainly prohibits national-origin discrimination as to
aliens seeking immigrant visas, and EO-3 must be enjoined to that extent. But
Section 1152(a) also indicates robust congressional opposition to any nationalitybased discrimination in the issuance of visas. Congress enacted this statute to
abolish the “national origins system” for selecting entrants to this country. Hawaii,
859 F.3d at 776 (quoting H.R. Rep. No. 89-745, at 8). Accordingly, since the
statute’s enactment, courts have held that the Executive is barred, except in
exceptional circumstances or where expressly authorized by Congress, from
drawing nationality-based distinctions for immigrants and nonimmigrants alike.
In Jean v. Nelson, 472 U.S. 846 (1985), for example, the Supreme Court
held that immigration officers generally must implement grants of “broad statutory
discretion * * * without regard to race or national origin.” Id. at 857. And in Olsen
v. Albright, 990 F. Supp. 31 (D.D.C. 1997), the district court concluded, and the
Government did not dispute, that the Government may not discriminate against
aliens on the basis of nationality with respect to “nonimmigrant visa[s].” Id. at 3839. In LAVAS, the D.C. Circuit flatly declared that “Congress has unambiguously
directed that no nationality-based discrimination shall occur.” 45 F.3d at 473; see
Hawaii, 859 F.3d at 778 (stating that Congress “in effect prohibited nationality16

based discrimination in the admission of aliens”). As Judge Friendly explained in
1966, one year after Section 1152(a)’s enactment, “discrimination against a
particular race or group” is an “impermissible basis” for exclusion, and the
Executive may not use its immigration authority to draw distinctions on that basis.
Wong Wing Hang v. INS, 360 F.2d 715, 719 (2d Cir. 1966).
This conclusion is reinforced by the backdrop norms of our constitutional
system. For decades, the Supreme Court has held that discrimination on the basis
of an inherent characteristic such as nationality is highly “suspect,” and subject to
the most serious scrutiny. IRAP, 857 F.3d at 614 (Wynn, J., concurring); see
Loving v. Virginia, 388 U.S. 1, 11 (1967). Absent a clear statement from
Congress, the immigration laws should not be construed to authorize such
disfavored and “invidious discrimination.” IRAP, 857 F.3d at 617-618 (Wynn, J.,
concurring).
No law relied on by the President in issuing EO-3 contains a clear statement
authorizing him to depart from this fundamental norm. And, indeed, Section
1152(a)(1)(A) expressly bars such discrimination. The order’s nationality-based
restrictions therefore should be enjoined in their entirety.

17

b. EO-3 Violates Section 1182(f).
EO-3 also exceeds the limits of the President’s authority under 8 U.S.C.
§ 1182(f).5 It fails to make “find[ings]” that support the sweeping bans it imposes,
and it excludes aliens on a ground that this provision’s text—when read in light of
its history and long-settled meaning—does not allow.
i. EO-3 does not adequately “find” that entry “would be
detrimental to the interests of the United States.”
Section 1182(f) permits the President to exclude aliens only if he “finds”
that their entry “would be detrimental to the interests of the United States.” As the
Ninth Circuit made clear, although this language is “broad,” it “is not unlimited.”
Hawaii, 859 F.3d at 770. The President cannot satisfy this “essential precondition”
for invoking his Section 1182(f) power merely through a “talismanic incantation”
of national security harm. Id. at 755, 774 (internal quotation marks omitted).
Rather, the President must make “findings” that actually “support the conclusion”
that the order’s restrictions are warranted. Id. at 770; see id. at 771, 774, 775
(same).

5

Although the order cites Section 1185(a) as well, the Government has never
identified any respect in which that statute “provides an independent basis for the
suspension of entry.” Hawaii, 859 F.3d at 770 n.10. Accordingly, this Court, like
the Ninth Circuit, should conduct its analysis on the “understanding that” the
President’s use of Section 1185(a) must, “at a minimum, align with the President’s
authority under Section 1182(f).” Id.
18

This interpretation accords with both longstanding precedent and common
sense. When a statute requires that an officer make “findings,” courts invariably
have authority to inquire whether there is some “rational connection between the
facts found and the choice made.” Burlington Truck Lines, Inc. v. United States,
371 U.S. 156, 168 (1962). Otherwise, the President could justify an exclusion for
an irrational reason or no reason at all—by “finding,” for example, that Somali
nationals must be excluded because their visas are printed in a color the President
dislikes. In addition, the statute’s history makes clear that Congress drafted this
statute and its predecessors to use the word “find,” rather than “deem,” precisely so
that the President would need to “base his [decision] on some fact,” and could not
rely on mere “opinion” or “guesses.” 87 Cong. Rec. 5051 (1941) (statements of
Rep. Jonkman and Rep. Jenkins).
The President fails to satisfy that requirement here. The principal reason the
order gives for banning every national of six countries is that those countries do
not follow adequate “identity-management and information-sharing protocols and
practices” to provide the United States “sufficient information to assess the risks”
that their nationals pose. EO-3 § 1(h)(i). That finding is wholly inadequate for
three reasons.6

6

The President did not find that Somalia’s information sharing and identitymanagement protocols failed to satisfy the “baseline” standards set by the
19

First, the law already addresses the problem the President identifies. As the
Ninth Circuit previously explained, “[a]s the law stands, a visa applicant bears the
burden of showing that the applicant is eligible to receive a visa,” and “[t]he
Government already can exclude individuals who do not meet that burden.”
Hawaii, 859 F.3d at 773 (citing 8 U.S.C. § 1361). EO-3, like EO-2, offers no
“reason explaining how this individualized adjudication process is flawed.” Id. If
a foreign government does not provide information necessary to determine whether
a national of that country is a terrorist, immigration officers can deny entry to that
individual. There is no logical reason why an additional, blanket ban is warranted
to exclude such individuals.
Second, EO-3 contradicts its stated rationale. If the Government in fact
“lack[ed] sufficient information to assess the risks,” EO-3 § 1(h)(i), that nationals
of the banned countries purportedly pose, then surely those nationals would need to
be barred from obtaining any visas. But EO-3 permits nationals from nearly every
banned country to enter on a wide variety of nonimmigrant visas—documents for
which applicants receive less vetting than immigrant visas. See EO-3 § 2(a)-(c),
(g)-(h). Just as EO-2 failed to explain why the 50,000th refugee would serve the
Secretary of Homeland Security. See EO-3 § 1(g), (i). Rather, the ban on Somalia
rests almost exclusively on the finding that a substantial “terrorist threat * * *
emanates from its territory.” Id. § 1(i), 2(h). The Ninth Circuit has already held
that this concern about “country conditions” cannot justify a ban based on
nationality. Hawaii, 859 F.3d at 773.
20

national interest but the “50,001st to the 110,000th” would not, Hawaii, 859 F.3d
at 776, EO-3 fails to explain why it would be detrimental to the national interest to
admit aliens as business travelers or tourists but not as crewmembers, exchange
visitors, or agricultural workers. See generally U.S. Dep’t of State, Directory of
Visa Categories, https://goo.gl/c1t3P3.
Third, EO-3 is substantially overbroad with respect to its asserted rationale.
The United States does not need information from a foreign government in order to
confirm that a child under the age of 5 or an alien fleeing persecution from that
very government is not a terrorist. Nor is it plausible that the banned countries
have meaningful information about aliens “who left as children” or “whose
nationality is based on parentage alone.” Hawaii, 859 F.3d at 773. Like EO-2,
EO-3 makes no finding sufficient to show that “nationality alone renders” the
banned individuals “a heightened security risk.” Id. at 772.7
Perhaps recognizing these problems, the President also offered an alternative
justification for the travel ban: EO-3 states that the bans will serve as a bargaining
chip to help “elicit” greater cooperation from the affected governments. EO-3
§ 1(h)(i), (iii). That reason is legally insufficient. Every restriction on entry

7

The order’s waiver provision does not solve this problem: It continues to subject
all individuals from the targeted countries to heightened restrictions, and it bars
their entry unless they can show that denying admission would cause “undue
hardship” and that “entry would be in the national interest.” EO-3 § 3(c)(i).
21

imposes diplomatic pressure on the target government, just as every such
restriction helps “preserv[e] * * * government resources.” Hawaii, 859 F.3d at
771. The Ninth Circuit made plain that such generic interests do not provide a
valid basis for a ban on entry. See id. Rather, the President must find that “absent”
the bans “there likely will be harm to our national interests.” Id. The order
contains no such finding.
ii. EO-3 exceeds the longstanding limits on the President’s
§ 1182(f) power.
Even if the Government’s findings were somehow deemed sufficient, EO-3
would still violate Section 1182(f) because the Order goes far beyond the
substantive authority that Congress delegated to the Executive through that
provision.
a. The Supreme Court and the Ninth Circuit have made clear that courts
should not construe “broad” immigration statutes as grants of “unbridled
discretion.” Kent v. Dulles, 357 U.S. 116, 127-128 (1958). The Constitution
entrusts immigration policy “exclusively to Congress.” Arizona v. United States,
567 U.S. 387, 409 (2012) (quoting Galvan v. Press, 347 U.S. 522, 531 (1954)).
While Congress often “paint[s] with a brush broader than it customarily wields”
when writing immigration laws, that “does not mean * * * it can grant the
Executive totally unrestricted freedom of choice.” Zemel v. Rusk, 381 U.S. 1, 17

22

(1965). “[E]ven for the President,” “immigration * * * is not”—and, under our
Constitution, cannot be—“a one-person show.” Hawaii, 859 F.3d at 755.
Accordingly, “[i]n the immigration context, courts have often read
significant limitations into statutes that appeared to confer broad power on
immigration officials.” Kim Ho Ma v. Ashcroft, 257 F.3d 1095, 1106 (9th Cir.
2001); see Zadvydas v. Davis, 533 U.S. 678, 689 (2001) (similar). In Kent, for
instance, the Court held that the President’s seemingly unqualified authority to
“designate and prescribe [passport rules] for and on behalf of the United States”
permitted the President to refuse passports “only” on “those two [grounds] * * *
which it could fairly be argued were adopted by Congress in light of prior
administrative practice.” 357 U.S. at 123, 128.8 Similarly, in United States v.
Witkovich, 353 U.S. 194 (1957), the Court held that the President’s “seemingly
limitless power” to request information of aliens acquired a far more “restrictive

8

Kent also relied on concerns that the President’s interpretation would violate the
First Amendment. But seven years later, in Zemel, the Court made clear its
interpretation of the statute did not rest on that premise: Construing the same
statute, the Court rejected the plaintiff’s contention that the statute raised First
Amendment concerns, but nonetheless “reaffirm[ed]” that it “must take its content
from history” so that it “does not constitute an invalid delegation.” 381 U.S. at 1718.
23

meaning” in light of the “Act as a whole” and the relevant “history” and
constitutional backdrop. Id. at 199-200. Other similar cases abound.9
b. Read in light of these principles, it is plain that Section 1182(f) does not
give the President the “unlimited” authority to implement sweeping and indefinite
policies like EO-3. Hawaii, 859 F.3d at 770. Rather, the settled meaning of
Section 1182(f)’s text—confirmed by nearly a century of practice—is that the
President may invoke 1182(f) to exclude (1) aliens akin to subversives, war
criminals, and the statutorily inadmissible, and (2) aliens who would undermine
congressional policy during an exigency in which it is impracticable for Congress
to act.
To start, this was the well-understood meaning of the statute’s words when
Congress enacted Section 1182(f) in 1952. Since 1918, Presidents had issued
proclamations during wartime that excluded spies, saboteurs, and other similar
aliens they deemed “prejudicial to the interests of the United States.” Proc. 1473,
§ 2 (1918). In 1941, President Roosevelt asked Congress to codify that authority
by enacting a provision that allowed the President to exclude aliens he found
harmful to “the interests of the United States.” H.R. Rep. No. 77-754, at 1 (1941).

9

See, e.g. INS v. Nat’l Ctr. for Immigrants’ Rights, Inc., 502 U.S. 183, 191-194
(1991); Jean, 472 U.S. at 855-856; Carlson v. Landon, 342 U.S. 524, 543-544
(1952); Mahler v. Eby, 264 U.S. 32, 40 (1924); Kim Ho Ma, 257 F.3d at 1106-11;
Romero v. INS, 39 F.3d 977, 980-981 (9th Cir. 1994).
24

Several members of Congress objected on the ground that this language appeared
to “give the President unlimited power, under any circumstances, to make the law
of the United States.” 87 Cong. Rec. 5326 (1941) (statement of Sen. Taft); see
also id. at 5050 (statement of Rep. Jonkman). But the bill’s sponsors and the
Roosevelt Administration both “assur[ed]” them that the words “interests of the
United States” merely codified the authority that had been exercised since 1918,
and that the statute “would not be used except for the objective” of “suppress[ing]
subversive activities.” Id. at 5386 (statement of Sen. Van Nuys); see id. at 5048
(statement of Ruth Shipley, Director, Passport Division, Dep’t of State). Congress
enacted the proposed language without change. Act of June 21, 1941, 55 Stat. 252.
From 1941 to 1952, Presidents fulfilled the Executive’s assurance. In 1941
and 1945, the President promulgated regulations excluding several “[c]lasses of
aliens” they deemed “prejudicial to the interests of the United States.” 22 C.F.R.
§ 58.53 (1945); see Proc. 2523, § 3 (1941). Those classes consisted, much as they
had since 1918, of (a) spies, saboteurs, and other subversives, (b) war criminals
and other serious violators of international law, and (c) aliens who were statutorily
inadmissible. 22 C.F.R. § 58.53(a)-(h), (j) (1945). In addition, the regulations
gave the President a residual authority to exclude “[a]ny alien[s] * * * in whose
case circumstances of a similar character may be found to exist, which render the

25

alien’s admission prejudicial to the interests of the United States, which it was the
purpose of the act of June 21, 1941 * * * to safeguard.” Id. § 58.53(k).
When Congress enacted Section 1182(f) in 1952, it copied the language of
these regulations, proclamations, and statutes almost verbatim. Under ordinary
principles of construction, the words “detrimental to the interests of the United
States” thus brought “the old soil with” them—that is, they continued to convey
the same meaning they had carried for decades. Sekhar v. United States, 133 S. Ct.
2720, 2724 (2013). That inference is particularly strong in light of Kent and
Zemel. There, too, the power at issue dated back to 1918, was reenacted in 1941,
and then was made permanent in 1952. Kent, 357 U.S. at 128. Just like here, the
President engaged in consistent “administrative practice” during the intervening
period. Id. Because that statute “must take its content from history,” Zemel, 381
U.S. at 17, Section 1182(f) must, too. See also Mahler, 264 U.S. at 40
(interpreting phrase “undesirable residents of the United States” in light of
“previous legislation of a similar character”).
Moreover, since 1952, every President—without exception—has applied
Section 1182(f) this way. See Dames & Moore, 453 U.S. at 686 (relying on
“systematic, unbroken, executive practice”). The overwhelming majority of
Section 1182(f) orders have excluded aliens who sought to subvert the United
States or its allies or support its adversaries, e.g., Exec. Order No. 13,712 (2015);
26

aliens who had committed serious violations of international law, e.g., Exec. Order
No. 13,606 (2012); and aliens who were statutorily inadmissible, e.g., Exec. Order
No. 12,807 (1992). See generally Cong. Research Serv., Executive Authority to
Exclude Aliens: In Brief 6-10 (2017), https://goo.gl/2KwIfV. The sole exception is
an order that President Reagan issued in 1986, which excluded certain Cuban
nationals because of Cuba’s ongoing breach of an immigration treaty. Proc. 5517
(1986). But that order fell within the second half of the President’s power: It
addressed a dynamic diplomatic crisis to which Congress could not easily respond,
see Hawaii, 859 F.3d at 772 n.13, 779, and it sought to further a congressional
policy in favor of normalizing relations with Cuba “on a reciprocal basis,” Foreign
Relations Authorization Act, Fiscal Year 1978, Pub. L. 95-105, § 511 (1977).
This understanding of Section 1182(f) accords with the longstanding balance
of authority in the immigration sphere. See INS v. St. Cyr, 533 U.S. 289, 305
(2001) (rejecting construction that would “depart[] from historical practice in
immigration law”). It ensures that Congress retains “exclusive[]” authority to set
immigration policy. Arizona, 567 U.S. at 409. Yet it still allows the President to
act in “changeable and explosive” circumstances to which Congress cannot
“swiftly” respond, Zemel, 381 U.S. at 17—the context in which it is “customary”
for the President to have the greatest discretion. Jama v. Immigration and Customs
Enforcement, 543 U.S. 335, 348 (2005).
27

c. EO-3 exceeds the longstanding limits on the President’s Section 1182(f)
authority. As an initial matter, EO-3 does not exclude aliens akin to subversives,
war criminals or the statutorily inadmissible—the heartland of the President’s
exclusion power for the last 99 years. Indeed, the Government has long disclaimed
any contention that all 180 million aliens the President is excluding are terrorists or
otherwise harmful. EO-3 is thus dissimilar to virtually every exclusion order for
the last century.
Nor does EO-3 fall within the President’s residual authority to further
congressional policy during an exigency. First, the order does not respond to an
exigency of any kind. Rather, it identifies problems in screening and vetting that
have existed for years if not decades—ones that Congress has repeatedly enacted
legislation to address. See, e.g., Pub. L. 110-53, §§ 701-731 (2007); Pub. L. 107173 (2002). Unlike President Reagan’s Cuba order or the wartime proclamations
issued in 1918 and 1941, EO-3 does not respond to a fast-breaking diplomatic
crisis, a war, a national emergency, or any other “changeable and explosive”
circumstance to which Congress cannot “swiftly” respond. Zemel, 381 U.S. at 17.
It seeks instead to make immigration policy that will endure indefinitely. Section
1182(f) does not confer that authority.
Second, EO-3 does not follow but instead subverts congressional policy.
Congress has established an intricate scheme for identifying and vetting terrorists.
28

That system includes “specific criteria for determining terrorism-related
inadmissibility,” Kerry v. Din, 135 S. Ct. 2128, 2140 (2015) (citing 8 U.S.C.
§ 1182(a)(3)(B)), finely reticulated vetting procedures, and exclusions from the
Visa Waiver Program for aliens from countries deemed to present a heightened
terrorist threat, 8 U.S.C. § 1187(a)(12). As the Ninth Circuit made clear,
“executive action” under Section 1182(f) “should not render superfluous” these
“specific grounds for terrorism-related admissibility.” Hawaii, 859 F.3d at 781782
Yet the President has effectively supplanted Congress’s scheme and replaced
it with his own. EO-3 excludes aliens who do not satisfy any of the criteria set in
the statutory terrorism bar. It sidesteps entirely the vetting scheme Congress
established. And whereas Congress determined—in the face of “similar security
concerns”—that aliens from five of the targeted countries could be admitted if they
underwent “vetting through visa procedures,” the Order deems such vetting
categorically inadequate and instead imposes a “blanket ban.” Hawaii, 859 F.3d at
774.
Just as in EO-2, then, the President has taken “measures that [a]re
incompatible with the expressed will of Congress, placing his power ‘at its lowest
ebb.’” Id. at 782 (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579,
637 (1952) (Jackson, J., concurring)). When Congress enacted Section 1182(f) in
29

1952, it assuredly did not give the President authority to cast aside its laws in this
manner. The order must be enjoined on that basis, as well.
3. EO-3 Violates the Establishment Clause.
As the Ninth Circuit held in evaluating EO-1, “[a] law that has a religious,
not secular, purpose violates [the Establishment Clause], as does one that officially
prefers one religious denomination over another.” Washington, 847 F.3d at 1167
(internal quotation marks, alterations, and citations omitted). A policy
implemented for the purpose of preventing Muslim immigration falls afoul of both
strictures. This Court has already held that EO-2 was enacted for just such an
unconstitutional purpose. EO-3, which on its face and in substance continues the
unlawful policies of EO-2, suffers from the same defect.10
The constitutional analysis in this instance is particularly straightforward.
The Establishment Clause inquiry involves examining “evidence of purpose
beyond the face of the challenged law,” including “the historical background of the
decision and statements by decisionmakers.” Washington, 847 F.3d at 1167-68.

10

In the past, the Government’s primary defense has been to ask the Court to look
away, relying on Kleindienst v. Mandel, 408 U.S. 753 (1972). But the Ninth
Circuit has already rejected Mandel’s application to “sweeping proclamations” like
EO-3, Washington, 847 F.3d at 1166. Thus, just as with EO-2, this Court is not
required to “pull the shutters closed” when confronted with an obvious
constitutional violation. Hawaii v. Trump, 245 F. Supp. 3d 1227, 1236 (D. Haw.
2017).
30

When this Court examined that evidence with respect to EO-2, it held that “[a]ny
reasonable, objective observer would conclude * * * that the stated secular purpose
of the Executive Order is, at the very least, ‘secondary to a religious objective’ of
temporarily suspending the entry of Muslims.” Hawaii, 241 F. Supp. 3d at 1137
(quoting McCreary Cty. v. ACLU, 545 U.S. 844, 864 (2005)). EO-3 expressly
acknowledges that it emerged as a result of EO-2, and it indefinitely continues the
bulk of EO-2’s entry suspensions. Thus, the historical record that prompted the
Court’s conclusion with respect to EO-2 applies equally to EO-3.
Moreover, since the Court concluded that EO-2 likely violated the
Establishment Clause, the record has only gotten worse. See Compl. ¶¶ 84-88. For
example, on June 5, 2017, days after the Government asked the Supreme Court to
stay the injunction of EO-2, President Trump issued a series of Twitter posts
championing the “original Travel Ban,” decrying the fact that the “Justice
Dep[artment]” submitted a “watered down, politically correct version * * * to
S.C,” and calling for “[a] much tougher version” of the ban. Compl. ¶ 86. Nine
days before EO-3 was released, he again used Twitter to demand a “larger, tougher
and more specific” ban, reminding the public that he remains committed to a
“travel ban” even if it is not “politically correct.” Compl. ¶ 87. And on the day
EO-3 was released, he made clear that the Proclamation was the harsher version of

31

the travel ban he had repeatedly championed, telling reporters “The travel ban: the
tougher, the better.” Compl. ¶ 94.
Even more to the point, though, is what the President has not said and what
he has not done. In the seven months since this Court ruled, the President has
never renounced his campaign promise to ban Muslim immigration, which
remained on his frequently updated campaign website until minutes before the
Fourth Circuit arguments on EO-2. And the President has never retreated from his
attempt to impose a ban that will overwhelmingly exclude Muslims. Indeed, while
EO-3 purports to be the result of a neutral process involving a study of vetting
procedures, it reimposes virtually the same travel restrictions as its predecessors
and makes them indefinite. Nor is that result surprising given that the “neutral”
process was itself dictated by EO-2, and given that the President has made clear
that the primary purpose of EO-3 is to impose a “tougher” version of his travel
ban.
To be sure, the new Order adds two non-Muslim majority countries to its
ban. But the addition has little practical significance: EO-3 bans immigration
from North Korea, whose nationals almost never apply for admission to the United
States and whose entry is restricted by a prior sanctions order. Compl. ¶ 93 &
nn.57-59. And while EO-3 also targets Venezuela, the restrictions on that country
affect only a small handful of government officials, not Venezuelan nationals in
32

general. The upshot is that, just as with EO-1 and EO-2, Muslims constitute the
overwhelming majority of those banned by EO-3. Compl. ¶ 92 & n.56.
Given this result, one might be forgiven for assuming that Venezuela and
North Korea were added to the list primarily to improve the Government’s
“litigating position.” McCreary, 545 U.S. at 871. Indeed, their addition resembles
nothing so much as the self-consciously secular trappings that the government
defendants in McCreary attempted to add to their display of the Ten
Commandments to improve their chances of surviving an Establishment Clause
challenge. The McCreary Court had no trouble looking past those trappings and
finding a constitutional violation, particularly given that the plainly religiouslymotivated resolution underlying the prior display remained in place. Id. at 871872. Because the Government’s efforts here are similarly transparent, and because
the travel bans in EO-2 similarly remain in place and have now been made
indefinite, this Court should follow the course set by McCreary and hold that EO-3
violates the Establishment Clause.11

11

For much the same reason, EO-3 unconstitutionally discriminates on the basis of
race, religion, and nationality, in violation of the equal protection component of the
Due Process Clause. See Washington, 847 F.3d at 1167. Furthermore, by
stigmatizing and targeting individuals because of their faith, and impairing their
ability to practice their religion freely, EO-3 violates the Free Exercise Clause. See
Lukumi, 508 U.S. at 523-524.
33

B. The Remaining TRO Factors Are Met.
Plaintiffs will suffer grave and irreparable harms as a result of EO-3. See
supra pp. 6-10. Among other things, EO-3 will “hurt the State’s university
employees and students” and “separate[] families.” Washington, 847 F.3d at 1169.
As the Ninth Circuit has concluded before, those harms are more than sufficient to
sustain an injunction. See id.; Hawaii, 859 F.3d at 783. Indeed, they are textbook
examples of irreparable harms because they “cannot be adequately remedied
through damages.” Am. Trucking Ass’ns, Inc. v. City of L.A., 559 F.3d 1046, 1059
(9th Cir. 2009) (internal quotation marks omitted).
The balance of equities and the public interest also support Plaintiffs’
request for relief. Plaintiffs and the public have “a vested interest in the ‘free flow
of travel, in avoiding separation of families, and in freedom from discrimination.’”
Hawaii, 241 F. Supp. 3d at 1139 (quoting Washington, 847 F.3d at 1169-70). EO3 tramples on those interests: It cuts against the Nation’s and Hawaii’s storied
tradition of welcoming immigrants, separates families, and marginalizes religious
minorities. It also contravenes congressional and constitutional commands. See
Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) (“[I]t is always in the
public interest to prevent the violation of a party’s constitutional rights.” (internal
quotation marks omitted)).

34

Against all of that, the Government points to an amorphous national security
rationale. But the Government has not identified any exigency compelling EO-3’s
indefinite travel bans. See supra p. 28. Nor, as explained above, has it offered any
reason why the vetting process designed by Congress, which permits the exclusion
of aliens for whom the Government lacks adequate information, is insufficient to
address all of its purported national security concerns. See supra pp. 19-20. An
injunction would simply restore immigration procedures “to the position they were
in” prior to the travel bans, preserving the status quo that has existed for decades
and that prevails under this Court’s existing injunction. Hawaii, 859 F.3d at 783.
C. The Court Should Issue A Nationwide Injunction.
When an Executive Branch policy contravenes a statute, it is invalid in all its
applications and must be struck down on its face. See, e.g., Util. Air Regulatory
Grp. v. EPA, 134 S. Ct. 2427, 2449 (2014); Sierra Club v. Bosworth, 510 F.3d
1016, 1023-24 (9th Cir. 2007) (Ninth Circuit has “on many occasions” invalidated
administrative actions on their face). So, too, with an Establishment Clause
violation: When a government policy has the impermissible purpose of
denigrating a religion, all applications of that policy are tainted, and the policy
must be enjoined in full. See Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 314317 (2000).

35

As the Ninth Circuit has held, it would be improper to “limit the geographic
scope of the TRO.” Washington, 847 F.3d at 1166. A “fragmented immigration
policy” would contravene “the constitutional and statutory requirement for uniform
immigration law and policy.” Id. at 1166-67; see U.S. Const. art. I, § 8, cl. 4
(requiring a “uniform Rule of Naturalization”). In addition, in light of “the
nation’s multiple ports of entry and interconnected transit system,” limiting the
injunction to Hawaii would not prevent harm to the State or its citizens.
Washington, 847 F.3d at 1167.
Nor is there any other practicable way to limit the scope of the TRO. See id.
at 1166.12 Hawaii cannot identify in advance precisely which individuals may
wish to travel to the State or enroll in its universities. Nor can the Association
identify every individual who wishes to travel to Hawaii and visit the mosque or
join its membership. And sparing only the individual Plaintiffs from EO-3 would
produce precisely the fragmented immigration policy the Ninth Circuit cautioned
against. Only a nationwide injunction can adequately remedy the irreparable
harms stemming from EO-3.

12

The Supreme Court issued a partial stay of the injunction on EO-2, but a stay
may not be viewed as an adjudication on the merits. Nken v. Holder, 556 U.S.
418, 432 (2009) (a stay is not a “deci[sion] [on] the merits, in an expedited” form).
And, in any event, the balance of the equities with respect to EO-3 is shifted even
further in Plaintiffs’ favor because EO-3’s travel bans are indefinite.
36

CONCLUSION
For the foregoing reasons, Plaintiffs request that the Court issue a temporary
restraining order blocking the enforcement of Sections 2(a)-(c), (e), (g), and (h) of
EO-3.
DATED: Washington, DC, October 10, 2017.

Respectfully submitted,
/s/ Neal K. Katyal
DOUGLAS S. CHIN (Bar No. 6465)
Attorney General of the State of Hawaii
CLYDE J. WADSWORTH (Bar No. 8495)
Solicitor General of the State of Hawaii
DEIRDRE MARIE-IHA (Bar No. 7923)
DONNA H. KALAMA (Bar No. 6051)
KIMBERLY T. GUIDRY (Bar No. 7813)
ROBERT T. NAKATSUJI (Bar No. 6743)
KALIKO‘ONALANI D. FERNANDES
(Bar No. 9964)
KEVIN M. RICHARDSON (Bar No.
10224)
Deputy Attorneys General
DEPARTMENT OF THE ATTORNEY
GENERAL, STATE OF HAWAII
425 Queen Street
Honolulu, HI 96813
Telephone: [phone]
Fax: [phone]

NEAL K. KATYAL*
COLLEEN ROH SINZDAK*
MITCHELL P. REICH*
ELIZABETH HAGERTY*
YURI S. FUCHS**
SUNDEEP IYER**†
REEDY C. SWANSON**††
HOGAN LOVELLS US LLP
555 Thirteenth Street NW
Washington, DC 20004
Telephone: [phone]
Fax: [phone]

Attorneys for Plaintiff, State of Hawaii

SARA SOLOW*
ALEXANDER B. BOWERMAN*
HOGAN LOVELLS US LLP
37

THOMAS P. SCHMIDT*
HOGAN LOVELLS US LLP
875 Third Avenue
New York, NY 10022
Telephone: [phone]
Fax: [phone]

1735 Market St., 23rd Floor
Philadelphia, PA 19103
Telephone: [phone]
Fax: [phone]
*Admitted Pro Hac Vice
**Pro Hac Vice Application
Forthcoming
†
Admitted only in Maryland;
supervised by firm members
††
Admitted only in Virginia;
supervised by firm members
Attorneys for Plaintiffs, State of
Hawaii and Ismail Elshikh, and
Prospective Plaintiffs John Does 1 &
2 and the Muslim Association of
Hawaii, Inc.

38

CERTIFICATE OF WORD COUNT
Pursuant to Local Rule 7.5(e), I hereby certify that the foregoing
Memorandum in Support of Plaintiff’s Motion for Temporary Restraining Order is
in Times New Roman, 14-point font and contains 8,570 words, exclusive of case
caption, table of contents, table of authorities, and identifications of counsel, as
reported by the word processing system used to produce the document. This word
count is in compliance with the limitation set forth in Local Rule 7.5(b).

Respectfully submitted,
/s/ Neal K. Katyal
NEAL K. KATYAL*
HOGAN LOVELLS US LLP
555 Thirteenth Street NW
Washington, DC 20004
Telephone: [phone]
Fax: [phone]
Email: [e-mail]
*Admitted Pro Hac Vice

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