State of Hawaii v. Trump

Filing 382

REPLY re #368 MOTION for Temporary Restraining Order filed by Ismail Elshikh, John Does 1 & 2, Muslim Association of Hawaii, Inc., State of Hawaii. (Attachments: #1 Certificate of Service)(Katyal, Neal)

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)
DEPARTMENT OF THE ATTORNEY
GENERAL, STATE OF HAWAII
425 Queen Street
Honolulu, HI 96813
Telephone: [phone]
Fax: [phone]
Email: [e-mail]
Attorneys for Plaintiff, State of Hawaii

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

Attorneys for Plaintiffs

(See Next Page For Additional Counsel)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII

STATE OF HAWAII, ISMAIL ELSHIKH, JOHN
DOES 1 & 2, and MUSLIM ASSOCIATION OF
HAWAII, INC.,
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,
Defendants.

REPLY IN SUPPORT OF
PLAINTIFFS’ MOTION
FOR TEMPORARY
RESTRAINING ORDER;
CERTIFICATE OF
SERVICE
Civil Action No. 1:17-cv00050-DKW-KSC

ADDITIONAL COUNSEL
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]
Attorneys for Plaintiff, State of Hawaii

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]
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
1735 Market St., 23rd Floor
Philadelphia, PA 19103
Telephone: [phone]
Fax: [phone]
*Admitted Pro Hac Vice
†
Admitted only in Maryland;
supervised by firm members
††
Admitted only in Virginia;
supervised by firm members
Attorneys for Plaintiffs

TABLE OF CONTENTS
Page
INTRODUCTION .....................................................................................................1
ARGUMENT .............................................................................................................2
A.

Plaintiffs Are Likely To Succeed On The Merits Of Their Claims. ...........2
1.

The Order Is Reviewable. ............................................................... 2

2.

EO-3 Violates the Immigration and Nationality Act. ..................... 4
a. EO-3 violates the INA’s prohibition on nationality-based
discrimination..............................................................................5
b. EO-3 violates Sections 1182(f) and 1185(a). .............................9
i. EO-3’s findings do not reasonably “support” its nationalitybased bans. ..............................................................................9
ii. EO-3 exceeds the substantive limits on the President’s
exclusion power. ...................................................................13

3.

EO-3 Violates the Establishment Clause. ..................................... 17

B.

The Remaining TRO Factors Are Satisfied. ..............................................19

C.

A Nationwide Injunction Is Appropriate. ..................................................20

CONCLUSION ........................................................................................................20

TABLE OF AUTHORITIES
Page(s)
CASES:
Abbott Labs. v. Gardner,
387 U.S. 136 (1967) .............................................................................................. 4
Armstrong v. Exceptional Child Ctr., Inc.,
135 S. Ct. 1378 (2015) .......................................................................................... 2
Chamber of Commerce of U.S. v. Reich,
74 F.3d 1322 (D.C. Cir. 1996) .......................................................................... 2, 3
Dada v. Mukasey,
554 U.S. 1 (2008) .................................................................................................. 6
DHX, Inc. v. Allianz AGF MAT, Ltd.,
425 F.3d 1169 (9th Cir. 2005) .............................................................................. 5
Franklin v. Massachusetts,
505 U.S. 788 (1992) .............................................................................................. 3
Gonzales v. Oregon,
546 U.S. 243 (2006) ............................................................................................ 16
Gulf States Utils. Co. v. Fed. Power Comm’n,
411 U.S. 747 (1973) ............................................................................................ 16
Haig v. Agee,
453 U.S. 280 (1981) ............................................................................................ 13
Hawaii v. Trump,
859 F.3d 741 (9th Cir. 2017) .......................................................................passim
In re Reyes,
910 F.2d 611 (9th Cir. 1990) .............................................................................. 18
Kent v. Dulles,
357 U.S. 116 (1958) ............................................................................................ 15
Kleindienst v. Mandel,
408 U.S. 753 (1972) ............................................................................................ 18
ii

Legal Assistance for Vietnamese Asylum Seekers v. Dep’t of State,
45 F.3d 469 (D.C. Cir. 1995) ................................................................................ 8
Lee v. Weisman,
505 U.S. 577 (1992) .............................................................................................. 4
McCreary Cty. v. ACLU of Ky.,
545 U.S. 844 (2005) ............................................................................................ 19
McGowan v. Maryland,
366 U.S. 420 (1961) .............................................................................................. 4
New York Cent. Sec. Corp. v. United States,
287 U.S. 12 (1932) .............................................................................................. 15
Sale v. Haitian Centers Council, Inc.,
509 U.S. 155 (1993) .............................................................................................. 2
United States ex rel. Knauff v. Shaughnessy,
338 U.S. 538 (1950) ......................................................................................15, 16
Washington v. Trump,
847 F.3d 1151 (9th Cir. 2017) ..............................................................1, 3, 18, 20
Webster v. Doe,
486 U.S. 592 (1988) .............................................................................................. 9
Zelman v. Simmons-Harris,
536 U.S. 639 (2002) .............................................................................................. 4
Zemel v. Rusk,
381 U.S. 1 (1965) ..........................................................................................13, 16
STATUTES:
5 U.S.C. § 702 ............................................................................................................ 3
5 U.S.C. § 706(2) ....................................................................................................... 3
8 U.S.C. § 1152(a).............................................................................................passim
8 U.S.C. § 1153(a).................................................................................................... 16
8 U.S.C. § 1153(b) ................................................................................................... 16
iii

8 U.S.C. § 1182(f) .............................................................................................passim
8 U.S.C. § 1185(a) ........................................................................................... passim
8 U.S.C. § 1185(b) ................................................................................................... 13
REGULATIONS AND EXECUTIVE MATERIALS:
Exec. Order No. 12,172 (1979) ............................................................................ 7, 14
Exec. Order No. 12,807 (1992) ................................................................................ 10
Exec. Order No. 13,662 (2014) ................................................................................ 14
Proc. 5829 (1988) ..................................................................................................... 10
Proc. 5887 (1988) ..................................................................................................... 10
Proc. 6730 (1994) ..................................................................................................... 14
Proc. 6958 (1996)..................................................................................................... 10
Proc. 8342 (2009) ..................................................................................................... 10
Proc. 8693 (2011) .................................................................................................... 10
OTHER AUTHORITIES:
86 U.S. Dept. of State Bull. No. 2116, Cuba: New Migration and
Embargo Measures (Nov. 1986) ........................................................................... 7

iv

INTRODUCTION
It has been eight months since the Ninth Circuit informed the President that
his claim to “unreviewable” authority over immigration policy “runs contrary to
the fundamental structure of our constitutional democracy.” Washington v. Trump,
847 F.3d 1151, 1161 (9th Cir. 2017) (per curiam). Yet the Government has once
again returned to this Court to claim an immigration power immune from
legislative, judicial, and even constitutional restrictions. The Government’s brief
repeatedly rejects statutory limits on that power; flatly ignores binding judicial
precedent that forecloses its arguments; and seeks to evade the constitutional
boundaries this Court is entrusted to uphold.
Thus, while Congress enacted Section 1152(a) to bar nationality-based
restrictions on the issuance of immigrant visas, and the Ninth Circuit held that the
provision forecloses nationality-based bans on entry, such bans are at the core of
EO-3. Similarly, Congress limited the President’s powers under Sections 1182(f)
and 1185(a); the Ninth Circuit explained how those limits apply to executive
orders; yet EO-3 again transgresses them. Moreover, EO-3 continues to violate the
Constitution itself, acknowledging on its face that the new proclamation is the
direct descendant of EO-2, an order this Court held was enacted for the primary
purpose of excluding Muslims.

1

“[I]mmigration, even for the President, is not a one-person show.” Hawaii
v. Trump, 859 F.3d 741, 755 (9th Cir. 2017) (per curiam). Because the President
cannot be permitted to flout the dictates of Congress, the Judiciary, and the
Constitution, EO-3 should be enjoined before it takes effect.
ARGUMENT
A.

Plaintiffs Are Likely To Succeed On The Merits Of Their Claims.
1. The Order Is Reviewable.
a. The Government begins by arguing (at 12-15) that Plaintiffs’ statutory

claims are unreviewable. The Ninth Circuit rejected precisely the same argument
in Hawaii. See 859 F.3d at 768-769. Likewise, although the Government pressed
this argument at length in Sale v. Haitian Centers Council, Inc., 509 U.S. 155
(1993),1 not a single Justice agreed, and all considered the plaintiffs’ claims on the
merits. The Government’s argument can be rejected for that reason alone.
It is also unpersuasive on its own terms. This Court has equitable power to
enjoin “violations of federal law by federal officials.” Armstrong v. Exceptional
Child Ctr., Inc., 135 S. Ct. 1378, 1384 (2015); see Chamber of Commerce of U.S.
v. Reich, 74 F.3d 1322, 1328 (D.C. Cir. 1996) (Silberman, J.). And the
Administrative Procedure Act (“APA”) empowers courts to “set aside agency

1

See U.S. Br. 13-18, Sale, 509 U.S. 155 (No. 92-344); Oral Arg. Tr., Sale, 509
U.S. 155 (No. 92-344), 1993 WL 754941, at *16-22.

2

action” at the behest of an “aggrieved” person. 5 U.S.C. §§ 702, 706(2). The
Government offers two principal reasons why these two well-trod avenues of
review are unavailable here. Neither is compelling.
First, the Government argues (at 12-13 and 15 n.2) that review is precluded
by the doctrine of consular nonreviewability. As the Ninth Circuit has twice
explained, that doctrine is applicable only to “an individual consular officer’s
decision to grant or deny a visa,” Hawaii, 859 F.3d at 768, not to broader
Executive “policymaking.” Washington, 847 F.3d at 1162.
Second, the Government contends that judicial review is unavailable under
the APA because the President is not an “agency” under that statute. But
“injunctive relief against executive officials like” Cabinet Secretaries is certainly
“within the courts’ power,” and Plaintiffs’ injuries can be redressed that way.
Franklin v. Massachusetts, 505 U.S. 788, 800-803 (1992); see Hawaii, 859 F.3d at
788. Furthermore, the Court’s equitable power extends to the President and to
actions taken at his direction. See Chamber of Commerce, 74 F.3d at 1327-28.
b. The Government also asserts (at 15-18) that Plaintiffs’ constitutional
claims are unreviewable. The Ninth Circuit has rejected that argument, too,
Washington, 847 F.3d at 1163-64, and it is meritless in any event. The
Government does not dispute that the Court may review constitutional challenges
to exclusion decisions where plaintiffs have asserted a violation of their “own

3

constitutional rights.” Opp. 15-16. Plaintiffs’ Establishment Clause challenge
matches that description. The Establishment Clause “deem[s] religious
establishment antithetical to the freedom of all,” Lee v. Weisman, 505 U.S. 577,
591 (1992) (emphasis added), and protects every citizen from the threat of
“political tyranny and subversion of civil authority,” McGowan v. Maryland, 366
U.S. 420, 430 & n.7 (1961). It also “protect[s] States * * * from the imposition of
an established religion by the Federal Government.” Zelman v. Simmons-Harris,
536 U.S. 639, 678 (2002) (Thomas, J., concurring). Accordingly, so long as
Plaintiffs allege that the Federal Government has taken an action that establishes a
disfavored religion and that confers Article III standing, they assert a violation of
their own right to be free from federal establishments. See McGowan, 366 U.S. at
430-431. Plaintiffs easily clear that bar here.
c. Finally, the Government argues (at 14) that review of EO-3 is premature.
The Ninth Circuit already rejected that argument, Hawaii, 859 F.3d at 767-768,
and for good reason. The “impact” of EO-3 upon Plaintiffs “is sufficiently direct
and immediate as to render the issue appropriate for judicial review.” Abbott Labs.
v. Gardner, 387 U.S. 136, 152 (1967).
2. EO-3 Violates the Immigration and Nationality Act.
As the Ninth Circuit held, the INA precludes nationality-based bans on
immigration and prohibits any sweeping policy of exclusion that is predicated on

4

insufficient findings or that otherwise exceeds the limits of the President’s
delegated powers. EO-3 flouts these statutory limits, and the Government’s brief
barely attempts to square the President’s latest travel ban with either the statutes or
the binding Ninth Circuit precedent interpreting them.2
a. EO-3 violates the INA’s prohibition on nationality-based
discrimination.
The Ninth Circuit held that 8 U.S.C. § 1152(a) prohibits “nationality-based
discrimination in the issuance of immigrant visas” and “in the admission of aliens”
more generally. Hawaii, 859 F.3d at 778. In reaching that holding, it rejected the
assertion that the President could “circumvent” Section 1152’s clear prohibition by
deeming an entire nationality “inadmissible under [8 U.S.C.] § 1182,” or by
discriminating at the point of “entry” rather than in visa issuance. Id. at 777. It
further explained that any conflict between the President’s “broad authority to
exclude aliens” and Section 1152’s “specific” bar on nationality discrimination
must be resolved in favor of Section 1152, particularly given that Section 1152
identifies exceptions and Section 1182(f) is not among them. Id. at 778. Finally,
2

The Government may be hoping that the Supreme Court will vacate the Ninth
Circuit’s opinion in Hawaii v. Trump on mootness grounds, as it did in Trump v.
International Refugee Assistance Project, No. 17-1351 (U.S. Oct. 10, 2017). Of
course, the Supreme Court has not vacated the Ninth Circuit decision. Moreover,
even if the Government’s hopes are realized, “a vacated opinion still carries
informational and perhaps even persuasive or precedential value.” DHX, Inc. v.
Allianz AGF MAT, Ltd., 425 F.3d 1169, 1176 (9th Cir. 2005) (Beezer, J.,
concurring) (collecting cases).

5

the Ninth Circuit refuted the Government’s claim that the President had imposed
nationality-based restrictions in the past, observing that the Government’s three
examples—the executive order at issue in Sale, President Carter’s Iran order, and
President Reagan’s Cuba proclamation—were all readily distinguishable. Id. at
779.
The Government ignores both the Ninth Circuit’s holding and its entirely
sound rationale, asking this Court to defy binding precedent without bothering to
explain why the Government believes the Ninth Circuit got it wrong. For example,
the Government contends that the President may discriminate on the basis of
nationality in deeming aliens inadmissible under 8 U.S.C. §§ 1182(f) and 1185(a),
Opp. 29, and may engage in nationality discrimination at the point of “entry,” Opp.
30 n.8. But the Government does not explain how this reading—which deprives
Section 1152 of any real force—could be correct, given that courts may not read
statutes in a way that renders them “nullit[ies].” Dada v. Mukasey, 554 U.S. 1, 16
(2008).
The Government also claims that Sections 1182(f) and 1185(a) should be
viewed as “specific” provisions that trump the “general” rule of Section 1152(a).
Again, however, this position conflicts with the Ninth Circuit’s square holding.
And again the Government does not explain why a general right to exclude is more
specific than a particular limit on nationality-based exclusions, or why the court

6

should view Sections 1182(f) and 1185(a) as exceptions to Section 1152(a) when
neither provision appears on the explicit list of exceptions within Section 1152(a)
itself.
The Government even reasserts (at 29-30) the same historical examples that
the Ninth Circuit already found inapposite, claiming that the executive order in
Sale, as well as the Iran and Cuba orders, “confirm[]” that nationality-based
discrimination is permissible. But the Government does not even begin to contend
with the facts that the order in Sale “made no nationality-based distinctions,” the
Iran order “did not ban Iranian immigrants outright,” and the Cuba order was “in
response” to Cuba’s reneging on a specific treaty. Hawaii, 859 F.3d at 779. Nor
does it acknowledge that neither the Iran nor the Cuba order was upheld by any
court.
Moreover, the Iran and Cuba orders were both issued in exigent
circumstances. Id. The Iran order came in the midst of a hostage crisis involving
the U.S. embassy, see Exec. Order No. 12,172 (1979). The Cuba order came after
lesser sanctions had failed and it became obvious that the Cuban government was
using the visa process to “traffick[] in human beings” by extorting funds from visa
applicants. 86 U.S. Dept. of State Bull. No. 2116, Cuba: New Migration and
Embargo Measures 86-87 (Nov. 1986). As the D.C. Circuit has held, Section
1152(a)’s prohibition on “discrimination” does not necessarily foreclose

7

nationality-based restrictions that are narrowly tailored to address a genuine
exigency. Legal Assistance for Vietnamese Asylum Seekers v. Dep’t of State, 45
F.3d 469, 473 (D.C. Cir. 1995). An ongoing hostage crisis and the discovery of
dramatic exploitation of the visa process might qualify, and the same is true with
respect to the “urgent crisis (e.g., the brink of war with a particular country)” that
the Government fears.3 Opp. 32. But the President points to no comparable
exigency that would justify the challenged provisions of EO-3, relying instead on a
unilateral desire to revise vetting procedures.
In short, the Government has offered no convincing reason why it should be
permitted to evade Section 1152(a)’s explicit prohibition on nationality-based
discrimination in the issuance of immigrant visas. Indeed, it has offered no reason
why it should be permitted to engage in nationality-based discrimination with
respect to the issuance of any kind of visa. Section 1152(a) embodies Congress’
desire “to abolish the ‘national origins system’ ” for entry to the United States, the
immigration laws have long been understood to preclude nationality-based
distinctions for immigrants and nonimmigrants alike, and our constitutional system
strongly disfavors such invidious discrimination. Mem. 16-17. EO-3’s entry bans
should therefore be enjoined in their entirety.
3

The Government’s fears in this respect are particularly ill-founded, as Plaintiffs
explicitly do not challenge the restrictions on North Korea for the very reason that
the President might legitimately claim an exigency with respect to that country.

8

b. EO-3 violates Sections 1182(f) and 1185(a).
EO-3 may also be enjoined for the independent reason that it exceeds the
President’s authority under Sections 1182(f) and 1185(a).
i. EO-3’s findings do not reasonably “support” its nationalitybased bans.
a. The Ninth Circuit has already concluded that an order issued under
Sections 1182(f) and 1185(a) must contain “findings” that “support the conclusion
that entry * * * would be harmful to the national interest.” Hawaii, 859 F.3d at 770
& n.10. And it has invalidated an order where its findings did not meet that
requirement. Id.
Nonetheless, the Government argues that EO-3’s findings are “not subject to
review.” Opp. 20. Even if that contention were not flatly contrary to the Ninth
Circuit’s holding, it would still be meritless. The Government relies (at 20) on
Webster v. Doe, 486 U.S. 592 (1988), but the statute at issue in that case differed
from Section 1182(f) in a critical respect: It permitted the CIA Director to
terminate employees whenever he “deem[ed] [it] necessary or advisable.” 486
U.S. at 600. In Section 1182(f), Congress made the deliberate choice to use the
word “find” rather than “deem” precisely so as to avoid writing the President such
a blank check. Mem. 19.
The Government also observes (at 20) that prior orders have not included
“detailed” findings. That misses the point. The question is not the elaborateness
9

of an order’s findings, but whether they actually “support” the exclusions ordered.
Hawaii, 859 F.3d at 770. Every past order the Government cites excluded aliens
because they were found to have engaged in some self-evidently harmful conduct,
such as supporting “subversive activities” against the United States or its allies,4
committing severe violations of international law,5 or attempting to enter the
country “illegally.”6 Those findings, while brief, plainly supported the exclusion
of the culpable aliens.
Furthermore, the Government asserts that Section 1185(a) permits the
President to exclude aliens without “any predicate findings.” Opp. 19. That
cannot be right. Reading Section 1185(a) in this way would nullify the “essential
precondition” contained in Section 1182(f), the provision that “specifically
provides for the President’s authority to suspend entry.” Hawaii, 859 F.3d at 755,
770 n.10. No prior President has construed Section 1185(a) as an independent
grant of authority to impose broad restrictions on entry without articulating some
“rationale” for the exclusion. Opp. 20-21.
b. EO-3 does not make any finding sufficient to support its sweeping
restrictions. As Plaintiffs explained, there is no rational connection between the
4

Proc. 5887 (1988); see Proc. 5829 (1988).
Proc. 8342 (2009) (human trafficking); Proc. 6958 (1996) (sheltering
international terrorists).
6
Exec. Order No. 12,807 (1992); see generally Proc. 8693 (2011) (excluding
aliens falling into all three groups).
5

10

problem the order identifies—that several countries ostensibly lack adequate
identity-management and information-sharing protocols—and the solution it
adopts: a near-complete ban on entry by all nationals of those countries. That ban
is unnecessary in light of existing vetting requirements, designed in a manner that
contradicts its stated purpose, and vastly overinclusive. Mem. 19-21; see Decl. of
Former National Security Officials (Ex. M).
The Government’s brief offers no coherent response to these objections.
The Government asserts that the Order “expressly contains * * * a finding” that
“current screening processes are inadequate.” Opp. 25. But the only finding the
Government points to is the statement that the targeted countries “have inadequate
information-sharing practices.” Id. (emphasis omitted). That finding simply does
not show why “th[e] individualized adjudication process is flawed.” Hawaii, 859
F.3d at 773. If immigration officers lack adequate information to adjudicate an
alien’s status, then “[a]s the law stands” they must exclude that alien for failing to
“meet th[e] burden” of showing he is “not inadmissible.” Id.
The Government defends the poor fit between EO-3’s purpose and its scope
by asserting that it is “perfectly rational to determine that [immigrants] pose
greater risks” than nonimmigrants. Opp. 26 n.6. That response, however, does
nothing to justify the order’s arbitrary distinctions among non-immigrants. See
Mem. 20-21. And if the Government truly “needed” more information to

11

determine whether the covered aliens were terrorists, it would not admit them even
temporarily.
The Government further claims that EO-3 is not overinclusive because a
country’s identity-management practices “would apply to all of a foreign
government’s nationals.” Opp. 25. But the Government does not say, and neither
does the order, that countries are likely to have useful threat information about
nationals who left a country as infants or lack “significant ties” to their home
country. Hawaii, 859 F.3d at 773. Common sense strongly suggests otherwise.
Finally, the Government justifies EO-3 on the ground that it “place[s]
pressure on foreign governments” to adopt policies the President favors. Opp. 2223. Again, that rationale simply identifies a foreign policy goal the alien’s
exclusion is thought to advance. Section 1182(f), however, mandates a finding that
the alien’s “entry” would be “detrimental” to U.S. interests. Allowing the
President to invoke Section 1182(f) for this purpose would render it practically
“unlimited,” Hawaii, 859 F.3d at 770—allowing him to exclude all Canadians
because Canada will not agree to favorable trade terms or all Chinese immigrants
because China grants generous steel subsidies. The Ninth Circuit rightly made
clear the President cannot seize control of the Nation’s immigration system on
such flimsy justifications. See id. at 771.

12

ii. EO-3 exceeds the substantive limits on the President’s
exclusion power.
The Government also fails to rebut Plaintiffs’ argument that EO-3 exceeds
the longstanding limits on the President’s authority under Sections 1182(f) and
1185(a).
a. For nearly a century, Presidents have observed two limits on the exclusion
authority granted by Sections 1182(f) and 1185(a) and their predecessors: They
have excluded only (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. Mem. 24-27.
The Government asserts (at 27) that “these limitations find no basis in the
statutes’ text.” That is incorrect. Congress enacted these limits by borrowing the
phrase “class[es] of aliens * * * detrimental to the interests of the United States”
nearly verbatim from the statutes, proclamations, and regulations that had
consistently been interpreted in this manner. Mem. 26. Haig v. Agee, 453 U.S.
280 (1981), confirms the point: In that case—whose construction of Section
1185(b) the Government cites with approval, see Opp. 19—the Court held that
Congress necessarily “adopted the longstanding administrative construction” of a
statute when it enacted text “identical in pertinent part” to the earlier provision.
Haig, 453 U.S. at 297-298. The same is true for Section 1182(f). See, e.g., Zemel
v. Rusk, 381 U.S. 1, 17-18 (1965).
13

The Government fails to identify any order since 1952 that has deviated
from these limits. President Reagan issued his Cuba order after determining that
Cuba had evaded his prior attempts to punish its treaty non-compliance, and had
engaged in dramatic exploitation of the immigration process. See supra p. 7. The
order thus did not respond to an event 15 months earlier; it addressed a dynamic
diplomatic dispute that Congress could not plausibly manage on its own.
Meanwhile, President Carter’s Iran order did not itself exclude any aliens, did not
rely on Section 1182(f), and was issued within weeks of the seizure of the U.S.
embassy in Iran—as clear an exigency as can be imagined. Exec. Order No.
12,172 (1979). The other orders the Government cites fell well within the
President’s power to exclude aliens who subvert the United States or its partners
abroad, engage in serious violations of international law, or are statutorily
inadmissible.7
Finally, the Government is wrong that Plaintiffs’ construction would
contravene the “typical[]” balance of authority in foreign affairs. Opp. 28. To the
contrary, it would preserve the President’s discretion precisely when the

7

See Exec. Order No. 13,662 (2014) (excluding aliens subverting Ukrainian
government); Proc. 7524 (2002) (excluding aliens undermining democratic
institutions in Zimbabwe); Proc. 6730 (1994) (excluding aliens impeding Liberia’s
transition to democracy).

14

Government agrees he needs it: in responding to “ever-changing circumstances” in
which it is necessary “to act quickly and flexibly.” Id.
b. Rather than accept the well-established limits on the President’s power,
the Government asks the Court to read Section 1182(f) as a grant of virtually
absolute “discretion” to the President. Opp. 19-20. It contends that the President
has unreviewable authority to determine “whether,” “when,” “for how long,” “on
what basis,” “on what terms,” and “who[m]” to exclude from the United States.
U.S. Br. 39-40, Trump v. Hawaii, No. 16-1540 (U.S. Aug. 10, 2017).
The text does not support this reading: Courts do not read immigration
statutes to confer “unbridled discretion.” Mem. 22 (quoting Kent v. Dulles, 357
U.S. 116, 127-128 (1958)). Rather, as the Supreme Court explained in United
States ex rel. Knauff v. Shaughnessy, 338 U.S. 538 (1950)—the Government’s
favored case—immigration provisions written “in broad terms * * * derive much
meaningful content from the purpose of the Act, its factual background and the
statutory context in which they appear.” Id. at 543 (emphasis added). The
Government offers no reason for departing from that longstanding approach here.
See Mem. 23-24.8

8

Even outside the immigration context, the Supreme Court has held that “[i]t is a
mistaken assumption” that a statute directing the Executive to act in “the ‘public
interest’ ” leaves it “without any standard to guide [its] determinations.” New York
Cent. Sec. Corp. v. United States, 287 U.S. 12, 24 (1932). This type of language

15

Moreover, the Government’s reading would upend the statutory scheme. It
would permit the President to suspend the immigration laws at will: He could, if
he wished, end all family-based immigration or restore the national-origins quota
system. Cf. 8 U.S.C. §§ 1152, 1153(a)-(b). Congress surely did not authorize the
President to “transform the [INA’s] carefully described limits * * * into mere
suggestions.” Gonzales v. Oregon, 546 U.S. 243, 260-261 (2006). Indeed, the
Government’s reading raises grave constitutional concerns, as it would give the
President a power of staggering breadth, without any “intelligible principle” to
guide its exercise. Hawaii, 859 F.3d at 770.
The Government claims (at 26) that this wholesale delegation is permissible
because, in dicta in Knauff, Justice Minton stated that the immigration power “is
inherent in the executive power” over foreign affairs. 338 U.S. at 542. Both the
Supreme Court and the Ninth Circuit, however, have since made clear that
immigration statutes cannot “grant the Executive totally unrestricted freedom of
choice,” and have construed such statutes narrowly to avoid rendering them
“invalid delegation[s].” Zemel, 381 U.S. at 17-18; see Hawaii, 859 F.3d at 770

gains content from “[t]he purpose of the Act,” “the context of the provision in
question,” and the manner in which the Executive “exercise[d] * * * the authority
conferred.” Id. at 24-25; see Gulf States Utils. Co. v. Fed. Power Comm’n, 411
U.S. 747, 756 (1973).

16

(expressing concern that, if “unlimited,” Section 1182(f) would be a “forbidden
delegation of legislative power”).
c. EO-3 exceeds the established limits on the President’s exclusion power.
The Government does not claim that EO-3 excludes aliens akin to subversives,
violators of international law, or the statutorily inadmissible. Mem. 28. Nor does
it claim EO-3 responds to an exigency. Id. That is enough by itself to render the
order invalid.
What is more, EO-3 thwarts the policies of the immigration laws. Mem. 2829. The Government claims (at 27-28) that Congress’s detailed system for
identifying and vetting potential terrorists merely “set[s] the minimum
requirements for an alien to gain entry,” and that the President may “add[]” to that
scheme. But the law’s terrorism-related provisions strike a careful balance,
specifying when and on what grounds the Executive may exclude aliens. Hawaii,
859 F.3d at 781-782. By treating the law’s “detailed” requirements as
“superfluous” and replacing them with the President’s own set of indefinite rules,
the President has acted contrary to “the expressed will of Congress.” Id.
3. EO-3 Violates the Establishment Clause.
On its face and in its essence, EO-3 is the latest outgrowth of a policy
initiative intended to make good on the President’s campaign promise to prevent
Muslim immigration. Because that purpose plainly violates the Establishment

17

Clause and the Constitution’s limits on religious discrimination, Plaintiffs are
likely to succeed on the merits of their constitutional challenge.
As with the prior iterations, the Government’s primary defense is the
assertion that Kleindienst v. Mandel, 408 U.S. 753 (1972), requires the Court to
shut its eyes to the President’s unconstitutional purpose. But Washington v. Trump
flatly held that Mandel does not apply to the review of “the President’s
promulgation of sweeping immigration policy.” 847 F.3d at 1162; see also In re
Reyes, 910 F.2d 611, 612-613 (9th Cir. 1990) (reviewing Executive Order
regarding immigration without any mention of Mandel). Contrary to the
Government’s claim (at 32), the Ninth Circuit did not “reserve consideration” of
Mandel’s application in the Establishment Clause context; the only thing it
“reserve[d]” was the application of the appropriate, non-Mandel Establishment
Clause standard to EO-1. Washington, 847 F.3d at 1167-68.
In any event, Mandel demands deference only in the face of a “facially
legitimate and bona fide” rationale. 408 U.S. at 769. The Government’s stated
rationale for EO-3 is not “bona fide” because—as this Court has already held—
there is ample evidence that the President instituted the policy from which EO-3
emerged for the primary purpose of excluding Muslims from the United States.
That same fact is fatal to the Government’s attempt to defend EO-3 on the
merits. The Government relies heavily on the elaborate process through which

18

EO-3 was developed, but that process was dictated by EO-2, an order enacted
primarily for the unconstitutional purpose of banning Muslims. Perhaps
recognizing the difficulty, the Government suggests that the President has
“repudiated” this prior unconstitutional policy. But the President has never once
done so. Instead, the Government is left holding the bag, relying on a single
speech in which he offered some general praise for Islam. That is not a
“repudiat[ion]” of the President’s stated goal of preventing Muslim immigration,
and it certainly is not a repudiation of EO-2 itself. Indeed, just as in McCreary
County v. ACLU of Kentucky, 545 U.S. 844, 867-868 (2005), the prior
unconstitutional policy remains on the books. And, far from rejecting it, the
President has called for a “much tougher version,” Third Amended Compl. ¶ 86,
and suggested that EO-3 is that harsher iteration, id. ¶¶ 87, 94. This Court enjoined
EO-2; the same treatment is appropriate for its “tougher” successor.
B.

The Remaining TRO Factors Are Satisfied.
EO-3 will inflict numerous irreparable harms on Plaintiffs. Mem. 6-10, 34.

The Government does not contest most of these harms. Instead, it asserts only that
delays in entry are not irreparable because they are too “speculative.” Opp. 38.
That is plainly wrong. As soon as EO-3 goes into effect, it will “prolong[]” family
separation and “constrain[]” the University of Hawaii. Hawaii, 859 F.3d at 782.

19

The balance of the equities and the public interest also favor Plaintiffs. The
Government asserts (at 39) that “[t]he Court should not interfere with” the
President’s national-security and foreign-policy judgments. But the Ninth Circuit
has rejected that argument before. Washington, 847 F.3d at 1168. The
Government also does not explain how the vetting process designed by Congress is
inadequate, nor does it identify an exigency that compels EO-3’s travel bans.
C.

A Nationwide Injunction Is Appropriate.
The Government argues (at 39) that injunctive relief must “be limited to

redressing a plaintiff’s own cognizable injuries.” That flies in the face of this
Court’s and the Ninth Circuit’s determination that a nationwide injunction of EO-2
was proper. See Hawaii, 859 F.3d at 787-788. The Government does not attempt
to distinguish these circumstances: Like EO-2, EO-3 violates the immigration
laws and the Establishment Clause and is invalid in all its applications. Moreover,
awarding the piecemeal relief the Government proposes would irrationally
fragment immigration policy. Mem. 35-36. Accordingly, only a nationwide
injunction can adequately cure the harms inflicted by EO-3.
CONCLUSION
For the foregoing reasons, Plaintiffs respectfully request that the Court grant
their requested TRO.
DATED: Washington, DC, October 15, 2017.

20

/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

NEAL K. KATYAL*
COLLEEN ROH SINZDAK*
MITCHELL P. REICH*
ELIZABETH HAGERTY*
YURI S. FUCHS*
SUNDEEP IYER*†
REEDY C. SWANSON*††
THOMAS P. SCHMIDT*
SARA SOLOW*
ALEXANDER B. BOWERMAN*
HOGAN LOVELLS US LLP

Attorneys for Plaintiff, State of Hawaii

Attorneys for Plaintiffs

21

*Admitted Pro Hac Vice
†
Admitted only in Maryland;
supervised by firm members
††
Admitted only in Virginia;
supervised by firm members

CERTIFICATE OF WORD COUNT
Pursuant to Local Rule 7.5(e), I hereby certify that the foregoing Reply in
Support of Plaintiffs’ Motion for Temporary Restraining Order is in Times New
Roman, 14-point font and contains 4,491 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